author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JONATHAN BYNUM et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 79-1082, 79-1083 cons.
    Opinion filed December 2, 1981.

      James J. Doherty, Public Defender, of Chicago (Ira Chur gin, Assistant Public Defender, of counsel), for appellant Eddie Watts, Jr.

      Ralph Ruebner and Gordon Berry, both of State Appellate Defender’s Office, of Chicago, for appellant Jonathan Bynum.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Mary Ellen Dienes, and Susan Ruscitti Grussel, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

This consolidated appeal concerns the armed robbery convictions of Jonathan Bynum and Eddie Watts, Jr., the defendants. After a jury trial, Bynum was sentenced to 15 years imprisonment and Watts was sentenced to 30 years imprisonment. Bynum contends that the trial court erred in sustaining the State’s objections to his questions at the hearing on the motion to suppress identification testimony. He also contends that he was denied effective assistance of counsel. Both defendants argue that error occurred when evidence of other crimes was admitted against them.

The convictions in the instant case were for the armed robbery of Clifford Cooper on July 21, 1978, at 12:10 a.m., near 1600 South Homan Avenue, in Chicago, Illinois. Cooper’s wallet and his mother’s automobile were taken.

Prior to trial, a motion was made to suppress evidence of two robberies that occurred shortly before and after the Cooper robbery. These robberies occurred at the Skylark Lounge, located in the 2700 block of West 16th Street, and on the street in the vicinity of the 3500 block of 77th Street. The trial court ruled that evidence of other crimes would be admissible for the limited purpose of identification and placing the defendants in the vicinity of the armed robbery of Clifford Cooper. The court also ruled that the witnesses to the other crimes could testify that they had seen Watts with a gun.

At trial, Jerry Jagade testified that on July 20,1978, at approximately 11 or 11:30 p.m., he was present at the Skylark Lounge. Three people,, including Watts, entered the tavern. Watts had a revolver and another man was carrying a shotgun. Jagade identified People’s exhibit No. 5 as a photograph of a shotgun similar to the one used at the tavern. He stated that he could see the third person only from the waist down because he was lying on the floor at the time.

Clifford Cooper testified that on July 21,1978, at about 12:10 a.m., he was with Craig Saddler. Cooper was driving his mother’s car, a brown, four-door, 1972 Delta 88, license plate number YD 8822. The car was stopped near the intersection of Homan and 16th Street under a street light. Additional lighting was given off by a liquor store which was approximately three to eight feet from the car. At that time a man approached the car on the passenger side and asked for a ride. The man, who was identified by Cooper as Watts, stood there for about three to five minutes. While Watts was offering them money, the rear door of the car was opened and another man jumped into the car behind Cooper and held a shotgun to Cooper’s head. Watts and a third man entered the back seat. Watts sat in the middle and the third man sat behind Saddler.

Cooper testified that he was ordered to drive north on Homan, and turn west on Monroe Street. When the car was about one and one-half blocks west of Homan he was ordered to stop the car. Watts pulled Cooper out of the car; and after Saddler got out of the car, the car proceeded west on Monroe, south on Central Park and west on Jackson. Five minutes later, Cooper and Saddler stopped a squad car.

Cooper further testified that he gave the police a description of Watts and the third man. At about 12 p.m. on July 21, he viewed a six-man lineup and identified two individuals, Watts and Smith. Cooper identified People’s Exhibit No. 5 as a photograph of a shotgun that was the same or similar to the one held by the first man who entered the back seat of the car.

Craig Saddler gave testimony that was substantially similar to Cooper’s. He identified Watts and Bynum and said that Bynum was the person who sat in the back seat of the car behind Cooper. Saddler testified that he saw Bynum’s face when Bynum slid across the back seat of the car and when he handed Bynum a match. Saddler stated that he identified Watts, Bynum and Smith at a police lineup.

Chicago Police Officer Thomas Wollschlager testified that on July 21, 1978, at approximately 12:45 a.m., he observed an abandoned 1972 black and brown, four-door Oldsmobile, license plate number YD 8822, at 73rd Place and Central Park. The car was registered to Ada Cooper.

Donna Zorich testified that on July 21, 1978, at about 12:50 a.m., she was sitting with a friend in a 1974 white Pontiac automobile, license plate number EN 9889. The car was in the middle of the street in the 3500 block of 77th Street.

During a sidebar, the trial court stated that Zorich could not testify that she saw the defendants in the Pontiac, that she was in the car with the defendants, or that she called the police. The judge ruled that Zorich could only testify that she saw the defendants in a car that night.

When Zorich resumed testifying, she identified Watts as the person she saw in the vicinity of the car. She stated that she saw Watts’ face after he got into the car and sat right next to her. Defense counsel’s objection to this line of questioning was sustained. Zorich then stated that she observed Watts’ face for 30 seconds.

Chicago Police Officer Michael Hughes testified that he received a radio message at about 12:50 a.m. on July 21, 1978, concerning a 1974 white Pontiac, license number EN 9889. He observed that car, occupied by two or three black males, travelling east on 79th Street and gave chase. The driver lost control of the car at approximately 2100 West 79th Street and the occupants exited. Officer Hughes testified that Watts and Smith ran into a prairie located to the south of the car. A third person, who exited from the driver’s side, ran in a southeasterly direction.

When other officers arrived, Hughes told them that three males had exited the car. He gave descriptions of the first two and then returned to the abandoned Pontiac. He found a loaded shotgun, a bag of money, two wallets, and some clothing in the car. One of the wallets belonged to Clifford Cooper. Watts and Smith were caught by the other police officers who brought them to Hughes for identification.

The State’s final witness, Chicago Police Officer Ronald Gall of Area 4 Robbery, testified that on July 21, 1978, he was sent to the Skylark Lounge, a tavern at 2725 West 16th Street. After a sidebar and motion for mistrial by both defendants, the court restricted Officer Gall’s testimony to his investigation of the Cooper robbery. Gall stated that he went to the 8th district police station and interviewed Smith. He then transported Smith and Watts to Area 4 and questioned Smith again. Gall then proceeded to an apartment building at 7255 South Euclid in search of the third offender. He arrested Bynum and brought him before Smith for viewing.

On redirect examination, Officer Gall stated that the description he had for the third offender included that person’s age, size and address. The suspect’s name was allegedly Joe Barrett and he worked for REO Movers. When the suspect was arrested it was ascertained that his name was Jonathan Bynum. He had a REO patch on his left sleeve.

The defendants rested without presenting any evidence, and the jury returned guilty verdicts against them.

Defendant Bynum initially argues that the trial court erred in sustaining the State’s objections to his questions at the hearing on the identification suppression motion. Specifically, Bynum contends that he was not allowed to question Craig Saddler fully regarding his opportunity to view the offenders, the description of Bynum that Saddler gave to the police and the order in which Saddler identified the suspects at the police linup.

It is well settled that a defendant has a right to a fair and impartial hearing to determine whether his identification was based solely on the witness’ observation of the robber at the time of the crime or whether it was improperly influenced by investigatory procedures or other extraneous factors. (People v. Robinson (1970), 46 Ill. 2d 229, 263 N.E.2d 57.) It is also well settled that the burden is on the defendant to prove that pretrial procedures were so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of the law. (E.g., People v. Richard (1980), 88 Ill. App. 3d 247, 410 N.E.2d 459; see People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121.) We have reviewed the record in the instant case and find that reversible error did not occur when the trial court sustained certain of the State’s objections during the examination of Craig Saddler by the defense. Many of the objections were sustained on the basis that the questions were not probative of suggestiveness, and we agree with that determination.

Furthermore, even where an erroneous ruling is made at an identification suppression hearing, the error may be harmless if the reviewing court, based on an informed judgment, can perceive from the trial record the presence of an independent origin for the in-court identification. (People v. McTush (1979), 78 Ill. App. 3d 603, 397 N.E.2d 463, rev’d on other grounds (1980), 81 Ill. 2d 513, 410 N.E.2d 861.) In the case at bar, Saddler’s in-court identification of Bynum was based on his ability to observe Bynum at the time of the offense. Saddler testified that he saw Bynum’s face after Bynum got into the car and slid across the back seat. Light was emitted from a street light overhead and from nearby stores. Saddler saw Bynum’s face again when he turned around to hand Bynum a match. Also important is the fact that Saddler identified Bynum on the day of the robbery. (See People v. Sakalas.) Considering the totality of circumstances, even assuming suggestive identification procedures, we find there was a sufficient independent origin for Saddler’s in-court identification of Bynum.

Bynum next contends that he was denied effective assistance by counsel who was appointed to represent him five days before trial. Bynum bases this contention on counsel’s failure to request transcripts of the lengthy pretrial hearings which were held prior to the appointment of his counsel. As a result of this failure, Bynum argues that his attorney was not familiar with his case and thereby erroneously made a motion to dismiss and erroneously objected to Watts’ motion to suppress evidence of Gary Smith’s confession. Bynum also argues that he was prejudiced by counsel’s failure to impeach Saddler’s trial testimony with statements made at the pretrial hearing.

Traditionally, a defendant’s representation by court-appointed counsel has been told constitutionally deficient where counsel was actually incompetent, as reflected by his performance as a trial attorney, and where the incompetence produced substantial prejudice to the defendant, without which the result would probably have been different. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203; People v. Hills (1980), 78 Ill. 2d 500, 401 N.E.2d 523.) Competency of counsel is presumed, and this presumption can be overcome only by strong and convincing proof. (People v. McCraven (1981), 97 Ill. App. 3d 1075, 424 N.E.2d 23.) Furthermore, competency depends upon the particular facts of each case, viewed in their totality, rather than from a narrow focus upon isolated instances occurring during the course of trial. People v. Clark (1977), 47 Ill. App. 3d 624, 365 N.E.2d 20.

In support of his argument Bynum cites People v. Jackson (1968), 96 Ill. App. 2d 99, 238 N.E.2d 234, in which an attorney was declared incompetent because he failed to request a pretrial transcript. However, Jackson is distinguishable from the instant case as the attorney in that case also committed numerous other prejudicial errors. Furthermore, the pretrial transcript in that case would have revealed information useful to the defense.

Bynum argues that the transcript in the instant case would have revealed inconsistencies in Craig Saddler’s pretrial and trial testimony regarding his lineup identification of Bynum. We disagree. At the pretrial hearing, Saddler testified that the police officer told him to take his time, and after Saddler made one identification, the police officer told him to look again. At trial, Saddler testified that the police officer only asked him whether he was positive of his identification after he made two selections and whether he had finished viewing the lineup. The minor inconsistencies in Saddler’s statements as to what the police officer said to him would not have substantially impeached the credibility of Saddler. Thus, while we do not wish to diminish the value of trial transcripts (see, e.g., United States v. Jonas (7th Cir. 1976), 540 F.2d 566; People v. Miller (1966), 35 Ill. 2d 615, 221 N.E.2d 653; People v. Russell (1972), 7 Ill. App. 3d 850, 289 N.E.2d 106), we do not believe that the failure of Bynum’s counsel to request the pre-trial transcripts proves incompetency under the facts presented in the case at bar.

Nor do we find that the defendant was prejudiced by his counsel’s mistaken motion to dismiss, which was subsequently withdrawn, or by his counsel’s objection to Watts’ motion to suppress Gary Smith’s confession. Although Smith’s confession would have been detrimental to the defendant’s case, the judge overruled the objection and suppressed the confession.

After reviewing the record in the instant case, we find that under the totality of circumstances, the defendant was not deprived of effective assistance of counsel. We believe Bynum’s counsel adequately prepared for trial and vigorously and competently represented the defendant.

The final issue, which is raised by both defendants, is that the trial court erred when evidence of other crimes was admitted.

At trial, evidence of other crimes was elicited through the testimony of Jerry Jagade, Donna Zorich and four Chicago police officers. The prosecutors also referred to the other crimes in opening and closing arguments. The crimes occurred at the Skylark Lounge, at 11 or 11:30 p.m. on July 20,1978, and in a car occupied by Donna Zorich at 12:50 a.m. on July 21,1978. The trial court ruled that the evidence of the other crimes was admissible for the limited purpose of identification and to show that the defendants were seen with a gun in the vicinity of and around the time of the Cooper robbery. The court further ruled, however, that the witnesses could not testify that the defendants had engaged in other robberies at those times.

Generally, evidence of the commission of crimes other than those at issue is inadmissible unless the evidence is relevant to the main issue by serving to place the defendant in proximity to the time and place of the presently charged offenses or by establishing identity, and tending to prove design, motive or knowledge. (E.gPeople v. Manzella (1973), 56 Ill. 2d 187, 306 N.E.2d 16, cert. denied (1974), 417 U.S. 933, 41 L. Ed. 2d 236, 94 S. Ct. 2644; People v. Diaz (1979), 78 Ill. App. 3d 277, 397 N.E.2d 148.) In determining the admissibility of evidence which informs a jury of a crime independent of or disconnected from the offense for which the defendant is being tried, it is necessary to weigh the probative value of such evidence against its probable prejudicial effect. People v. Diaz.

In the case at bar, evidence of the other crimes was admissible to place Watts in the area of the Cooper robbery shortly before and after the occurrence. The evidence established that within an hour before or less than a mile away from the robbery in question, Watts was seen by Jerry Jagade with two men. The evidence further showed that approximately one-half hour after the instant offense, the Cooper automobile was found abandoned at 73d Place and Central Park. Five minutes later, Watts was seen by Donna Zorich approximately five blocks from where the Cooper automobile was found. Although Zorich testified in violation of the trial court’s ruling that she saw Watts in the Pontiac in which she had been riding, we believe this testimony was proper because it verified that she had an opportunity to identify Watts. (See People v. Butler (1975), 31 Ill. App. 3d 78, 334 N.E.2d 448.) We further believe that the evidence regarding the theft and recovery of the Pontiac was admissible against both defendants to show the circumstances of their arrests for the Cooper robbery. See People v. McKibbins (1981), 100 Ill. App. 3d 787.

As there was no evidence to connect Bynum with the robbery of the Skylark Lounge, evidence concerning that robbery was not admissible against Bynum. However, the erroneous introduction of evidence relating to other offenses does not per se constitute grounds for reversal (see People v. Dallas (1980), 85 Ill. App. 3d 153, 405 N.E.2d 1202); and where it is clear that the jury would have convicted the defendant despite the erroneous admission of evidence, reversal is not required (see People v. Tranowski (1960), 20 Ill. 2d 11, 169 N.E.2d 347, cert. denied (1960), 364 U.S. 923, 5 L. Ed. 2d 262, 81 S. Ct. 290, cert. denied (1962), 368 U.S. 978, 7 L. Ed. 2d 440, 82 S. Ct. 484). We believe the jury in the instant case convicted Bynum based on his positive identification by Craig Saddler (e.g., People v. Miller (1981), 101 Ill. App. 3d 1029, 428 N.E. 2d 1038), and therefore we will not reverse his conviction.

Watts contends that he is entitled to a new trial because he was prejudiced by the State’s violations of the trial court’s orders prohibiting disclosure of his participation in other crimes. We disagree with this contention. For the reasons stated above evidence of Watts’ participation in other crimes in the vicinity of and around the time of the Cooper robbery was admissible in his trial for this offense. Whatever prejudice may have resulted to Watts by this testimony would not have justified the suppression of that probative evidence.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Affirmed.

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

       The third person indicted with Watts and Bynum was Gary Lee Smith. Smith was tried separately.

       The State contends that Bynum has waived all errors he argues on appeal because he failed to raise them in his nonspecific oral post-trial motion for a new trial. The State relies on People v. Boyd (1980), 88 Ill. App. 3d 825, 410 N.E.2d 931, but we find that case distinguishable. In Boyd, the hearing on the post-trial motion was continued to allow defense counsel ample time to prepare a motion specifying the grounds for error. In the case at bar, defense counsel was not given additional time to prepare a written motion.

       Bynum’s counsel made a motion to dismiss the case against Bynum because the indictment used an alias. Counsel was thereafter informed that the alias referred to one of the other defendants, and he subsequently withdrew this motion.

         Smith’s confession named Joe Barrett, not Jonathan Bynum, as one of the offenders. Bynum’s counsel argued against the suppression of the confession under the mistaken belief that the confession would clear his client of any wrongdoing. Bynum and Barrett were shown to be the same person.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    WESTERN TRANSPORTATION COMPANY, Plaintiff-Appellant, v. TERMINAL FREIGHT COOPERATIVE ASSOCIATION et al., Defendants-Appellees.
    First District (3rd Division)
    Nos. 80-2965, 81-690 cons.
    Opinion filed December 2, 1981.

      Abraham A. Diamond and Steven C. Weiss, of Chicago, for appellant.
    Arnstein, Gluck & Lehr, of Chicago (Arthur L. Klein, Michael A. Stiegel, and Shepard Gould, of counsel), for appellee Terminal Freight Cooperative Association.
    Chatz, Berman, Maragos, Haber & Fagel, of Chicago, for appellee Waterloo Industries, Inc.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Western Transportation Company filed a Chapter XI petition for rearrangement pursuant to the Bankruptcy Act. On May 30,1979, an auditor was authorized by the bankruptcy court to audit plaintiff’s freight bills to determine if claims existed for freight charges. As a result, plaintiff filed this action against defendants, Terminal Freight Cooperative Association and Waterloo Industries, Inc., seeking payment of freight undercharges for 61 shipments of goods. Some of the shipments were made as early as 1976.

Plaintiff is an interstate motor carrier which was engaged to and did carry the subject goods from Iowa to Chicago. Defendant Terminal Freight is a freight handling cooperative responsible for the transportation of the goods to various Sears Roebuck & Company stores and was the named consignee on the bills of lading which were prepared by defendant Waterloo for the shipments.

Defendants by answer and by motion to dismiss pleaded the three years’ statute of limitations applicable to the recovery of freight charges under the Interstate Commerce Act. (49 U.S.C. §11706(a), (g) (1978 Supp. II).) The trial court granted defendants’ motion to dismiss that portion of the complaint pertaining to shipments barred by the statute. The parties thereafter filed cross-motions for summary judgment. The trial court denied plaintiff’s motion and granted defendants’ motion for summary judgment.

Both in the trial court and in this court, the parties agree that the facts are undisputed and that the matter is proper for summary judgment. On appeal plaintiff contends that the trial court erred in holding that a portion of the action was barred by the statute of limitations. It also argues that the court erred in granting summary judgment in favor of defendants and in not awarding judgment in plaintiff’s favor. It has appealed both orders, and the appeals have been consolidated. Since our view is that the trial court correctly awarded summary judgment in favor of defendants, it is unnecessary to consider the statute of limitations issue.

In granting summary judgment for defendants, the trial court found that there had been no reconsignment of the goods within the meaning of the Middlewest Bureau Tariff 125-D, Item 820, which required that extra charges be assessed against a shipper whenever a reconsignment occurred. The tariff in question provides in pertinent part:

“Reconsignment or Diversion
A request for the reconsignment or diversion of a shipment will be subject to the following definitions, conditions and charges:
1. DEFINITION OF RECONSIGNMENT OR DIVERSION For the purpose of this rule, the terms “reconsignment” and “diversion” are considered to be synonymous and the use of either will be considered to mean:
a. A change in the name of the consignor or consignee.
b. A change in the place of delivery within original destination point.
c. A change in the destination point.
d. Relinquishment of shipment at point of origin.
e. Instructions received by the originating carrier prior to receipt of shipment.”

The pertinent bills of lading for the subject shipments contained the following printed words along the top:

“The goods described below, in apparent good order * * * marked, consigned, and destined as indicated below, which said carrier * * * agrees to carry to its usual place of delivery at said destination * *

The only address appearing on the face of the bills of lading was the following:

“Consigned to:
Terminal Freight Coop Assn.
5537 W. 26th Street
Cicero, Ill.”

Despite the Cicero address, the parties had an oral agreement for eight years whereby plaintiff would carry the goods only so far as its own terminal in Chicago. It was customary for plaintiff to pull all of its shipments into the terminal to rate the bills and to change from intercity to local drivers. At the terminal, plaintiff would telephone the consignee, Terminal Freight, to determine to which of two rail yards in Chicago the goods should be delivered. Although plaintiff always knew from the inception of the carriage that the goods were to be delivered either to the 63d Street or 47th Street Conrail rail yards in Chicago, it did not receive instructions as to the final disposition of the goods until it telephoned Terminal Freight from its own terminal.

Based on these undisputed facts, the trial court held that there was no reconsignment or diversion within the tariff’s meaning, since there was neither a change in the place of delivery nor a change in the name of the consignee. The court accepted defendant’s argument that parol evidence was admissible to determine whether the subject shipments were reconsigned or diverted within the meaning of the tariff.

Clear and unambiguous terms of a bill of lading, the contract between the parties, may not be varied or contradicted by parol evidence. (Quilico v. Union Oil Co. of Calif. (1978), 58 Ill. App. 3d 87, 374 N.E.2d 219.) In the present case, the Cicero address is clearly and unambiguously the place of delivery for purposes of the carrier’s liability which is fixed by the terms of the bill. (Georgia, Florida & Alabama Ry. Co. v. Blish Co. (1916), 241 U.S. 190, 60 L. Ed. 948, 36 S. Ct. 541.) In the present case, however, the carrier’s liability is not at issue. The issue is one of the application of charges to shipments delivered to a place satisfactory to all the parties. The question as to the place of delivery is only relevant insofar as it sheds light upon the ultimate issue whether there has been a change in the place of delivery sufficient to give the subject shipments the character of reconsignments or diversions. Where the issue involves ascertaining the character of a shipment, the courts have considered parol evidence as to the parties’ intent for that shipment despite contrary terms in the bill of lading. (Baltimore & Ohio Southwestern R.R. Co. v. Settle (1922), 260 U.S. 166, 67 L. Ed. 189, 43 S. Ct. 28; Atchison, Topeka & Santa Fe Ry. v. Harold (1916), 241 U.S. 371, 60 L. Ed. 1050, 36 S. Ct. 665; Southern Pacific Transportation Co. v. Interstate Commerce Commission (9th Cir. 1978), 565 F.2d 615.) The trial court therefore appropriately considered the parties’ eight-year arrangement under which each knew that the goods were always intended for one of two rail yards in Chicago.

Under the facts and circumstances of the present case, there was no change in the place of delivery and therefore no reconsignment. From the inception of the carriage, the goods were destined for Chicago. The particular rail yard in Chicago was not designated by Terminal Freight until plaintiff called from the Chicago Terminal where, as a normal custom, it always took shipments to have them rated, and to change drivers. Thus, when Terminal Freight indicated to which rail yard the goods should be delivered that place constituted the original place of delivery as contemplated by the agreement of the parties. Cf. Trans Ocean Van Service v. United States (U.S. Ct. Cl. 1970), 426 F.2d 329, supplemented (U.S. Ct. Cl. 1973), 470 F.2d 604.

The practice of Terminal Freight of withholding instructions as to the final place of delivery is analogous to that of the shipper in Southern Pacific Transportation Co. v. Interstate Commerce Commission. There the issue was whether a shipment, which ultimately spanned more than one State, should be characterized as either an interstate or an intrastate shipment. To determine the character of the shipment the court examined the parties’ actual intent at the inception of carriage as to the destination of the goods. The court found that the shipper only intended to send the goods to a point within the same State, and from there to a yet unknown destination. Since at the beginning of the carriage the shipper had not as yet formed the intent to ship the goods out of State, the shipment was characterized as intrastate, despite the fact that some of the shipments were ultimately delivered out of State. In so holding, the court noted that there was no suggestion of subterfuge or fraud.

Similarly here, in the true arrangement between the parties, Terminal Freight did not designate the place of delivery at the inception of the carriage. There is no suggestion that Terminal Freight purposely withheld this instruction in order to circumvent a reconsignment charge. It thus could not be deemed to have changed the place of delivery when it supplied the information to plaintiff at the terminal. Indeed, the fact that the optional places of delivery were both located in Chicago belies any conclusion that a subterfuge was intended. The only consequence of Terminal Freight’s practice was that plaintiff performed for it the service of telephoning to receive instructions. We need not address, however, whether this accommodation constituted a discriminatory privilege in violation of the Interstate Commerce Act, since the issue was not raised in the trial court. In this regard, Union Pacific R.R. Co. v. United States (1960), 362 U.S. 327, 4 L. Ed. 2d 766, 80 S. Ct. 737, cited by plaintiff, is inapposite.

Nor do we believe that there was a change in the name of the consignee. Plaintiff maintains that the ultimate delivery of the goods to Conrail at one of the two Chicago rail yards constituted a change in the name of the consignee. The receipts issued by Conrail clearly indicate that it received the goods only as an agent for Terminal Freight. The goods were originally and ultimately consigned to Terminal Freight in care of Conrail. The trial court properly granted summary judgment in favor of defendants.

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

Judgment affirmed.

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


author: PRESIDING JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE PERSON, Defendant-Appellant.
    First District (4th Division)
    No. 80-565
    Opinion filed December 3, 1981.

      Ralph Ruebner and Michael Kreloff, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

In a bench trial defendant Lawrence Person was found guilty of murder and was sentenced to the penitentiary for a term of 35 years. On appeal defendant contends: (1) the State’s refusal to disclose, prior to trial, whether it would seek imposition of the death penalty, coupled with the trial court’s allowance of voir dire questions concerning the death penalty coerced defendant into waiving his right to trial by jury and denied him due process of law; (2) defendant’s guilt was not established beyond a reasonable doubt; (3) the trial court erred in unduly restricting defendant’s cross-examination and impeachment of a State eyewitness; (4) defendant’s sentence should be reduced.

We affirm.

At trial the State presented the testimony of Jeanette Brown, who witnessed the events in question. She testified that on October 11,1978, at about 9 p.m. she drove with the defendant to the Rush Street area of Chicago “to prostitute.” They bought a pint of rum and drank it with coke in the car, which defendant had parked on Chestnut near Clark Street. Brown then stationed herself at the northwest corner of Chestnut and Clark to solicit business. At about 11:30 defendant came by to share a drink and then returned to the car. Brown “caught a date,” accompanying him to a nearby alley where she committed an act of fellatio for $20. She then returned to the corner. At about 1 a.m. a man subsequently identified as the victim, John Arcus, drove up. They conversed, she got into his car, and he parked it in the same alley she had used earlier.

It was established at trial that at the time of the incident Arcus was a Chicago police officer but was dressed in civilian clothes. According to Brown, Arcus was “kind of high”; his words were “blurry” and his breath smelled of alcohol. She performed an act of fellatio on him, for which he had agreed to pay $20. But he first refused to give her anything and then gave her only $10. They argued about the money and she told him to take her back to the corner. As Arcus was pulling up his clothes the defendant approached the driver’s side of the car with a knife in his hand. (At trial Brown twice stated that defendant pulled out the knife when he reached the car, but she corrected herself both times to say that he was holding the knife as he approached.) Defendant asked what was going on and stuck his head and arm through the open window on the driver’s side. Arcus pulled a gun out of the glove compartment. Brown warned defendant of the gun, and defendant began to struggle with Arcus, threatening to kill him if he did not relinquish the gun. Arcus did not give it up, and defendant cut him on the forehead with the knife. During this part of the struggle Arcus told defendant he could not give him the gun because he was a police officer.

As the struggle continued the horn sounded. Defendant pulled the car door open, Arcus fell out, and the two men continued to wrestle on the ground while Brown stayed in the car. Brown saw defendant obtain the gun from Arcus and begin to back up. Arcus got up and began walking toward defendant, asking him to return the gun because he was a police officer. Defendant told him not to approach or he would shoot. Arcus had his hands in the air with the palms straight up and open as he approached. Defendant kept telling him not to approach and then fired twice. Arcus grabbed his side and began to fall but then followed defendant, who had begun to run down the alley toward Chestnut. (Brown also testified that at this point Arcus started stumbling and went behind defendant, who then began backing up into the alley.) Brown then heard three more shots. She remained in the car about five minutes and then ran down the alley. She found Arcus lying on the ground in the alley. He asked her to get help and she ran to Chestnut Street where she encountered two police officers and reported the shooting.

On cross-examination Brown admitted that in the past she had used “T’s and Blues” (Talwin and Pyribenzamine) but denied ever being addicted to them. She denied having used them the day of the incident or any time in the seven-day period preceding it. She also testified that despite the alcohol she drank that day she was able to observe everything that occurred and her vision was not impaired.

According to police testimony the body of the victim was found about 50 to 60 feet into the alley. No weapons were found underneath or around him. The toxicologist who tested a blood sample from the victim testified that he found an alcohol level of .226 percent. The trial court took judicial notice of the fact that under Illinois law a level of .10 percent by weight alcohol in the blood creates a presumption of intoxication. (Ill. Rev. Stat. 1979, ch. 95M, par. 11 — 501(c).) The toxicologist also testified that in his opinion the victim was under the influence of alcohol at the time of his death. It was stipulated that if called Dr. Robert Stein, Medical Examiner of Cook County, would testify that his examination of the body revealed a bullet wound to the left elbow and another one to the chest. The cause of death was the bullet wound to the chest, which perforated the heart and aorta.

Chicago Police Officer Fred Stone testified that he arrested the defendant early on the morning of October 12, 1978. A knife with “.007” inscribed in gold letters on the handle was found in defendant’s pocket. According to Stone, Jeanette Brown had previously told him that the knife used by the defendant was a large “.007” knife.

Investigator Thomas Kaczka testified that when he questioned defendant at about 5 a.m. the same day he denied any knowledge of the occurrence. However, later that morning, according to the testimony of Assistant State’s Attorney Edward Ozog, when defendant was told of the statements of Brown he responded with the following account of the incident. When defendant approached Arcus’ car Arcus had a gun in his hand and defendant had a knife. They struggled, and defendant might have cut Arcus in the struggle. Defendant got the gun away from Arcus and went away from the car. Arcus followed, identifying himself as a police officer and asking for the gun. He offered money for it, but defendant responded that if he returned the gun Arcus would shoot him. When Arcus continued to approach defendant shot at him twice. Arcus grabbed his left arm, and defendant then ran south down the alley. When he turned and found Arcus pursuing him he fired two more shots and ran on toward the street. He reached the street, turned, and saw Arcus was coming toward him. Arcus had nothing in his hands. Defendant fired two shots and Arcus fell. Defendant fled, later discarding the gun. Ozog testified that he later returned to the scene with defendant, who retraced his steps. Defendant indicated to Ozog that when he fired the first two shots Arcus was 21 to 22 feet away. When he fired the last two shots Arcus was 30 to 45 feet away.

The State also called John Hunt, who lived in an apartment on the alley where the shooting took place. At about 2 a.m. that day he heard a car pull up in his driveway. He looked out and saw two people in the car, with the motor off. He walked away from the window and subsequently heard a horn blowing loudly. He heard his neighbor, James Yeutter, threaten to call the police if the noise persisted and then heard what sounded like two men scuffling. A woman said “Larry, he’s got a gun.” A man said “Call the cops.” Then he heard a man repeating “Don’t hurt me.” Hunt called the police, then heard a gunshot. As he again called the police he heard two more shots. He reported the shooting and again heard a shot.

The defendant presented the testimony of Hunt’s neighbor, James Yeutter. He testified that his apartment also overlooked the alley. That night he heard the sound of a horn and observed a man leaning into the window of a car. He heard three voices: one female, one high-pitched male, and one low-pitched male. The female voice said “Please, please, don’t shoot him.” From the lower male voice he could only hear mumbling. After Yéutter threatened to call the police the higher male voice yelled out to please call them.

Defendant testified that Jeanette Brown had asked him to drive her downtown. At her request he bought her a bottle of rum. She told him she had some “T’s and Blues” earlier that day and she needed some more. She was drinking to stave off sickness. Defendant denied that he drank anything before the incident. On the way downtown defendant gave Brown his knife. When they reached the Rush Street area he left the car to buy cigarettes. As he returned he heard Brown screaming for help and calling his name. He ran into the alley where he saw Arcus and Brown fighting in the front seat of a car. Defendant opened the door and found that Arcus was holding a gun. Brown was crying and said Arcus had tried to rape her. Arcus told defendant that Brown had cut him with the knife, and told him to get it from her. Defendant did so and gave the knife to Arcus. Defendant then sounded the horn to summon help. A man came out and threatened to call the police; defendant pleaded with him to do so.

At this point Brown grabbed for the gun held by Arcus. Defendant then began grappling with Arcus and wrested the gun from him. Arcus lurched at defendant with the knife. Defendant then ran down the alley, pursued by Arcus. Arcus had the knife and threatened to kill him. Defendant begged Arcus to stay back but he kept coming even after defendant fired several warning shots over and around him. Arcus was about four feet away when these first shots were fired. Defendant then fired several more times and Arcus fell down. Defendant testified that when he fired these shots he was afraid that Arcus might stab him with the knife. Defendant approached Arcus after he fell, asking him if he was all right and assuring him help was on the way. He then picked up the knife which was beside Arcus and ran. At trial defendant maintained that he gave this same account to Investigator Ozog.

On cross-examination defendant admitted that in the car Arcus had identified himself as a police officer. He also testified that he never saw the knife between the time Arcus threatened him with it in the car and when he found it next to Arcus after shooting him.

I

We first consider defendant’s contention that he was coerced into waiving his right to a jury trial by the actions of the court and the prosecution. Prior to trial defendant sought an order requiring the prosecution to disclose whether it would seek imposition of the death penalty. The prosecution responded that this was a potential death penalty case and they would be asking that the jury be voir dired under the guidelines of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. However, they also took the position that they were not required to divulge whether in fact they would seek the death penalty until the defendant was convicted. The trial court apparently agreed with this position, as defendant’s motion was not granted. Defendant then moved to prohibit questioning of the jury concerning capital punishment. This motion was also denied. Subsequently defendant waived his right to a jury trial. Defendant’s contention that the denial of these motions coerced his decision to choose a bench trial is based on the premise that a jury that is “death-qualified” under the guidelines of Witherspoon is more likely to convict than one not so qualified. Thus, when the prosecution refused to disclose its intentions and the judge refused to preclude questioning of the jury concerning the death penalty, defendant contends that to avoid a prosecution-oriented jury he had to choose a bench trial.

We find that two recent decisions of our supreme court dispose of these contentions. In People v. Brownell (1980), 79 Ill. 2d 508, 404 N.E.2d 181, the defendant also asserted that the court’s refusal to preclude questioning of the jury concerning the death penalty had the effect of improperly influencing him to waive his right to a jury trial because such questioning would have resulted in a jury biased in favor of the prosecution. The Brownell court rejected this contention, stating:

“No act of the court prevented the defendant from having a jury trial. If error had occurred in voir dire, the defendant could have objected at that point and counsel could have drawn the court’s attention to the error. If the error was not corrected, the defendant could raise the issue here. The defendant did none of this. Instead he argues that he was deprived of a jury trial because of error which might have occurred, but did not. We will not indulge in speculation as to what error the court might have committed, and we refuse to assume that the spectre of speculative error influenced the defendant to waive his right to trial by jury.” (79 Ill. 2d 508, 522, 404 N.E.2d 181, 188-89.)

These comments are equally applicable to the facts of this case. Moreover, our supreme court has recently rejected the underlying premise of defendant’s contention of coercion, that a jury selected in the manner he sought to proscribe would be prosecution-oriented. (People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346.) For these reasons we find that the actions of the trial court and the prosecution did not violate defendant’s right to due process by coercing his waiver of a trial by jury.

In his briefs filed with this court defendant has also asserted in a conclusory fashion that his trial defense was hampered by the State’s failure to notify him prior to trial of their intentions concerning the death penalty. However defendant has not specified in what manner his trial decisions were affected by this, other than his contentions concerning his choice of a bench trial, which we have already addressed. Because of defendant’s failure to support this contention we do not reach it. We would note, however, that similar contentions were addressed in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 397 N.E.2d 809, cert. denied (1980), 445 U.S. 953, 63 L. Ed. 2d 788, 100 S. Ct. 1603, and People v. Lewis (1981) , 88 Ill. 2d 129, 430 N.E.2d 1346, but in neither case did the majority substantively decide the matter.

II

We find no merit to defendant’s contentions that his guilt was not established beyond a reasonable doubt. The testimony of Jeanette Brown, together with defendant’s own statement to the police, established that when defendant fired the fatal shot his victim was unarmed, apparently wounded, and was about thirty feet away. The trial court, as the trier of fact, was not required to reject this testimony and accept the exculpatory version offered by the defendant at trial. (People v. Aliwoli (1976), 42 Ill. App. 3d 1014, 356 N.E.2d 891; see People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363.) Under these circumstances we find no basis for determining, as defendant suggests, that he acted in the belief, reasonable or unreasonable, that deadly force was necessary for his self-defense.

III

Although defendant asserts that he was unduly limited in his cross-examination and impeachment of Jeanette Brown, his arguments are directed solely toward the court’s allegedly improper refusal to allow certain impeaching testimony concerning her use of drugs. Indeed, on cross-examination of Brown defense counsel was permitted to elicit ample testimony concerning Brown’s use of drugs. He was permitted to question her concerning her use of “T’s and Blues” at the time of the incident and within the week prior to the incident. He elicited from her the admission that she had used those drugs in the past, although she denied ever having been addicted to them. Thus, we focus solely on the issue actually raised by defendant in his substantive argument, whether the court erred in barring testimony on this issue by other witnesses.

The evidence which defendant was precluded from introducing was as follows. It was stipulated that if called Dr. Victor Guerriero would testify that he took Brown’s medical history on January 24,1979, at Cook County Hospital. At that time she admitted to using “T’s and Blues” five times per day. It was also stipulated that Dr. Pyati would testify that in November 1976 he took Brown’s medical history and noted a past medical history of drug abuse. The State stipulated to this evidence subject to its objection to it on grounds of relevancy. The court reserved its ruling pending presentation of further evidence by defendant. That evidence was presented in the form of an offer of proof concerning the testimony of Dr. Carl Henson, a medical doctor with a private practice who also directed several drug abuse programs. Henson would have testified that as the result of his work he was familiar with the effects of Talwin and Pyribenzamine. He described Talwin as a depressant which causes distortion of perception and hallucinations. Pyribenzamine, an antihistamine, is used in concert with Talwin to increase the length of the euphoria brought on by Talwin. The combination is highly addictive. A usage of five times per day would indicate that the individual had been engaged in heavy use of the drug for at least four to six months because such dosages on a new user would be fatal. Users experience distortions of perception, such as interpreting friendly gestures as aggressive. Users also have been known to be subject to hallucinatory effects for five to seven days after use.

By this testimony defendant sought to impeach Brown’s denial of having used these drugs on the day of the incident. If, as this evidence suggested, she was using these drugs five times a day within three months of the incident, then, if Dr. Henson’s generalization concerning such heavy users were applied to her, it could be concluded that she must have been a user at the time of the incident. However the trial court barred this evidence, stating that it found it not impeaching. A trial judge is afforded great discretion in determining the admissibility of expert testimony; a court of review will not upset that determination unless it was clearly and prejudiciously erroneous. (People v. Aliwoli (1976), 42 Ill. App. 3d 1014, 356 N.E.2d 891.) In this instance we do not find that defendant was prejudiced by the court’s refusal to allow this testimony. Defendant had already testified that Brown had admitted to him that she had used the drugs at issue on the day of the incident. Moreover Brown herself had admitted to having consumed part of a pint of rum, and defendant’s denial of having drunk any of it suggested that Brown had consumed all of it herself. Thus the judge had been presented with evidence concerning Brown’s ability to perceive matters correctly on the day of the incident. Indeed, this direct evidence would appear to be much more convincing than that barred by the court, which would have required the acceptance and application of a series of generalizations concerning the effects of the drugs in order to arrive at the probability that the witness was under their effect when she witnessed the shooting. Nonetheless the court, while noting that Brown was under the influence of “at least [rum]” that night, pointed out that her testimony was corroborated by the defendant’s own statements and on that basis chose to accept its credibility. Under these circumstances we do not find that the admission of this additional evidence would have affected the court’s findings, and thus find no basis for reversal on these grounds.

IV

Finally defendant contends that his sentence was excessive. We have reviewed the trial court’s findings at the sentencing hearing and find no basis for determining that he abused his discretion. Accordingly, the sentence imposed will not be disturbed. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.

The judgment of the trial court is affirmed.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.

       Defendant had also been charged with the armed robbery of Arcus, based on his taking of Arcus’ gun while armed with a knife. One murder count in the indictment was based on his shooting of Arcus while committing this forcible felony; this could have supported the seeking of the death penalty. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(6).) However at the close of the State’s case the court dismissed the charge of armed robbery on defendant’s motion. The State never sought to argue that Arcus had been killed while in the performance of his official duties as a police officer, a circumstance which also could have supported the death penalty. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(1).) No death penalty hearing was sought upon defendant’s conviction.


text:
    MICHAEL F. DUHL et al., Plaintiffs-Appellants, v. NASH REALTY INC. et al., Defendants-Appellees.
    First District (4th Division)
    No. 80-2787
    Opinion filed December 3, 1981.
    Rehearing denied January 7, 1982.

      Glen H. Kanwit, of Hopkins & Sutter, of Chicago, for appellants.

      McKenna, Storer, Rowe, White & Farrug, of Chicago (Robert S. Soderstrom and Andrew Fylypovych, of counsel), for appellees.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The plaintiffs, relying on the defendant realtors’ advice as to the value and saleability of their house, purchased a new house through defendants. When they discovered that the defendants’ representations were in error, they sued in fraud, negligence, contract and for violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121½, par. 261 et seq.). The trial court dismissed the complaint as not stating a cause of action. We agree that the claim for breach of contract did not state a cause of action but reverse as to the other counts.

In deciding whether the complaint states a cause of action we must accept the facts alleged in the complaint as true. (Faber v. General Telephone Co. (1974), 19 Ill. App. 3d 135, 311 N.E.2d 281 (abstract), appeal denied (1974), 56 Ill. 2d 586.) According to the plaintiff’s amended complaint:

The plaintiffs, Michael and Judith Duhl (Duhls), own a home in Winnetka, Illinois. They purchased the home in 1973. Defendant Nash Realty is in the real estate brokerage business and holds itself out as an expert in the field. Defendant Reigel is a licensed real estate broker and an agent of Nash Realty Inc.

On or about March 20, 1979, the Duhls contacted Reigel, whose services they had used when they purchased their home in 1973, and told her they would like to engage her services for the purchase of a new home. Reigel agreed to act as their agent. The Duhls advised her that the price they could pay for a new home depended upon the price at which the present home could be sold, as they did not have any other sources of equity to finance the purchase of a new home. Reigel stated that she had the professional skill and competence to determine the market value of their present home, the price for which it could be sold and the speed with which it could be sold. The Duhls asked Reigel for her professional judgment on these matters, informing her that they had no knowledge of real estate values and were relying on her expertise. After inspecting the Duhls’ home, Reigel told them that, in her professional judgment, their home should be listed for $168,000, and that it would be sold very quickly for between $162,000 and $163,000. The Duhls expressed some doubt at this and told her they wanted to know with certainty how much the home could be sold for. They wanted to know the lowest possible price they would get, even if it was likely that the home would be sold for more since the proceeds from the sale would be their only source of equity for the purchase of a new home. Reigel stated that she had performed a great number of such appraisals over many years, that she had always been within five per cent of the actual selling price and that her representations as to the market value and speed of sale were correct. Nevertheless, as further confirmation, she promised that she would have Richard Nash, president of Nash Realty, appraise the house. She stated that Richard Nash was a professional appraiser and had the skill and expertise to form a professional opinion as to the precise price at which the home would sell.

In mid-April 1979 Reigel informed the Duhls that Richard Nash had appraised the home and that his professional judgment was that the home had a minimum market value of $158,000 and would sell for at least that amount. She also told them that Nash agreed that the home would be sold very quickly. At the same time, Reigel gave the Duhls a brochure entitled “Seven Reasons You Should Consult a Realtor.” The brochure, inter alia, stated:

“2. A REALTOR knows market value. When your property is priced right for the market, you can expect fast action — and full value. A REALTOR knows market value because he stays abreast of all real estate sales transactions as well as economic and social factors which affect property value.”

It was alleged in the original complaint that in reliance on these representations the Duhls engaged Reigel and Nash Realty as agents to purchase a new home. But regardless of the date on which their services were engaged, on May 4, 1979, the Duhls purchased a new home in reliance on their representations. (This contract was contingent on their acquiring financing within 14 days.) Reigel advised the Duhls that the house was worth that price and, for resale purposes, was a very desirable home which would always be able to be sold very quickly. The Duhls relied upon these representations as well in deciding to purchase the house and in setting a closing date of July 23, 1979. Nash Realty as agent for the seller earned a commission of $10,920 on the purchase of this new home.

About two weeks later, on May 20, 1979, the Duhls also engaged Nash Realty and Reigel as their exclusive real estate brokers to sell their present home. Following their representations and Reigel’s express recommendation at that time, the home was listed for $167,500. During the next two months they did not receive a single offer to purchase the home; indeed, less than five prospective buyers came to look at the house. Early in July 1979, at Reigel’s express recommendation, they reduced the asking price to $164,900. Reigel continued to assure them that the house would be sold for not less than $158,000. The Duhls, however, received no offers to purchase at the reduced asking price. Thereafter, the Duhls obtained independent appraisals as to the value of their home. Without exception, these appraisals indicated that the Duhls’ home had been grossly overpriced, and that the market value and price at which the home could be sold was at least $20,000 less than it had been represented to be by the defendant Reigel and Richard Nash. The Duhls conveyed this information to the defendant Reigel, who stated that she suspected that the house had been overpriced by $10,000 (though she had never mentioned this to the Duhls). She continued to hold to the position that the house would sell for at least $158,000.

The Duhls and the defendants agreed, however, to terminate the brokerage contract and on July 27, 1979, the home was listed with Baird and Warner for $144,000; this price was lowered to $137,000 on November 5, 1979. As of the date of the filing of the amended complaint (April 3, 1980) the plaintiffs had still not received any offers to purchase the home. Because of the defendants’ misrepresentations, the Duhls were forced to put the new house up for sale. The initial asking price was $185,000; this was reduced to $177,000 on November 5, 1979. As of the date of the amended complaint, plaintiffs had received no offers to purchase the new house at either price. As a direct result of defendants’ false representations, the Duhls have been injured in that:

1. they have been forced to incur substantial and continuing costs of owning two residences, including a complete refinancing of their loans on disadvantageous terms;

2. they purchased a home in excess of what they could finance, since the present house did not have the value represented; as a result they will be forced either to sell the new home at a loss, including a broker’s commission, or to incur additional borrowing costs;

3. they were deprived of an opportunity to sell their present home at a price approximating its true market value in May through July 1979 because it was overpriced. The price it will ultimately be sold for will be less than it could have been sold for in May 1979 had its true value been accurately represented.

The complaint was in four counts, seeking recovery in (1) breach of contract, (2) fraud and deceit, (3) negligent misrepresentation, (4) violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121M, par. 261 et seq.). The court granted the defendants’ motion to dismiss all four counts.

I

In their claim for breach of contract plaintiffs contended that defendants, having been engaged as real estate brokers in the purchase of a home, agreed to determine the market value and lowest price at which the home would sell and the length of time needed and breached the contract by their false representations. The plaintiffs have cited no cases for their contention that false representations can constitute a breach of such a contract and we have found none. According to the complaint, the defendants agreed to value the property and did indeed value the property. If they erred in the value, the remedy properly lies in tort. Accordingly we affirm the trial court’s dismissal of this count.

II

In count I of the complaint, plaintiffs alleged that Reigel and Nash Realty, intentionally and in reckless disregard of the truth, falsely represented that:

(a) Reigel was a professional real estate broker in whom the Duhls could place their trust, who knew real estate values and could determine the true market value of their present home, the price at which it could be sold and the speed with which it would sell;

(b) Richard Nash was a professional appraiser, an expert in real estate values, in whom the Duhls could place their trust and that Nash had the ability to determine the minimum market value of the Duhls’ present home, the lowest price at which the Duhls’ present home could be sold and the speed with which it would sell;

(c) the Duhls’ present home had a minimum market value of $158,000 and would sell for at least that amount;

(d) the home should be listed for $168,000 and would be sold very quickly;

(e) the new residence was worth $182,000 and was a type of house which would always sell very quickly;

(f) the Duhls’ present residence should continue to be listed at $164,900 and would be sold for not less than $158,000 even though Reigel believed it was overpriced by $10,000.

Plaintiffs further alleged that these representations were made in breach of defendants’ fiduciary capacity as their agents in order to induce Duhls to purchase a new home and to sell their present residence; Duhls relied upon these representations in purchasing a new home with the expectation that the new home could be sold quickly for $158,000 and in continuing to list the home at the recommended asking price and that this reliance was reasonable as the truth or falsity of the representations was a matter solely within the knowledge of the defendants. In moving to strike this count, defendants contended that plaintiffs failed to allege (1) that there was any misrepresentation made of a statement of fact, (2) that the alleged misrepresentation was not related to future or contingent events, and (3) that there was an intent to deceive on the part of defendants.

Generally a mere expression of opinion will not support an action for fraud. (Parker v. Arthur Murray, Inc. (1973), 10 Ill. App. 3d 1000, 295 N.E.2d 487, appeal denied (1973), 54 Ill. 2d 593.) Statements as to the value of property, particularly statements made by the seller, are often treated as mere expressions of opinion and if so intended and understood, fraud may not be predicated thereon. (Scott v. Wilson (1957), 15 Ill. App. 2d 456, 146 N.E.2d 397 (abstract); Standish v. Nicolls (1911), 162 Ill. App. 131, cert. denied.) However, where the representation as to value is not a mere expression of opinion but is made as a statement of fact for the listener to rely upon, the representation is treated as a statement of fact and the speaker is bound thereby. (Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 380 N.E.2d 1040; Auman v. McKibben (1913), 179 Ill. App. 425; Howell v. Wyatt (1912), 168 Ill. App. 651; and see Nicosia v. Riley (1957), 13 Ill. App. 2d 247, 141 N.E.2d 663 (abstract).) As stated by the Illinois Supreme Court in Buttitta v. Lawrence (1931), 346 Ill. 164, 173, 178 N.E. 390, 393:

“Wherever a party states a matter which might otherwise be only an opinion but does not state it as the expression of the opinion of his own but as an affirmative fact material to the transaction, so that the other party may reasonably treat it as a fact and rely upon it as such, then the statement clearly becomes an affirmation of the fact within the meaning of the rule against fraudulent misrepresentation. Statements of value are common examples, and where made in pursuance of a scheme on the part of the defendant to induce plaintiff to trade with him such statements constitute fraud and deceit.”

And in Yeoman v. Sherry (1935), 10 Cal. App. 2d 567, 572, 52 P.2d 555, 557, the court stated:

“It is settled also that a misrepresentation of value may be a misrepresentation of a matter of fact, and not the mere opinion of a broker. In the case of Reton v. J. D. Millar Realty Co., 132 Cal. App. 708, at page 711, [23 P. 2d 419,420], the court says: ‘Appellant contends that the representations as to value were merely matters of opinion, and hence not actionable. * 0 6 It is true that a bare and naked statement as to value is ordinarily deemed the opinion of the party making the representation. [Citation.] On the other hand, such statement may be a positive affirmation of a fact, intended as such by the party making it, and reasonably regarded as such by the party to whom it is made. When it is such, it is like any other representation of fact # * *. * ° ”

Likewise it was stated in F. H. Smith Co. v. Low (D.C. App. 1927), 18 F.2d 817, 819:

“The misrepresentations alleged in the declaration were actionable. They consisted in part of statements concerning existing facts and conditions. Some of these were statements of value, which generally are understood to be mere expressions of opinion. Such a statement, however, when ‘made under conditions which show that it was intended’ by one uttering it ‘to be treated as an immediate factor inducing action, and was made with knowledge that it would be accepted as a basis of action, instead of a mere element to be investigated before action, it becomes for all practical purposes a statement of fact.’ [Citation.]”

And see Mercer v. Parker (1928), 124 Or. 89, 262 P.2d 948.

Moreover, we must note that whether something is termed a fact or an opinion is not necessarily conclusive as to whether the statement is meant to be understood as one upon which the listener can rely. As aptly pointed out by Prosser, in the Handbook of the Law of Torts §109, at 726-27 (4th ed. 1971):

* ° [I]t has been recognized very often that the expression of an opinion may carry with it an implied assertion, not only that the speaker knows no facts which would preclude such an opinion, but that he does know facts which justify it. There is quite general agreement that such an assertion is to be implied where the defendant holds himself out or is understood as having special knowledge of the matter which is not available to the plaintiff, so that his opinion becomes in effect an assertion summarizing his knowledge. Thus the ordinary man is free to deal in reliance upon the opinion of an expert jeweler as to the value of a diamond, of an attorney upon a point of law, of a physician upon a matter of health, of a banker upon the validity of a signature, or the owner of land at a distance as to its worth, even though the opinion is that of his antagonist in a bargaining transaction. On the same basis it has been held that statements by a seller as to the capacity of the thing sold, or the condition of land, or other matters, which on the part of one without special knowledge would be regarded as mere opinion, may be relied on as statements of fact.”

Accordingly, accepting plaintiffs’ allegations as true, it follows that the defendants’ representations in this case could be found to have been meant by the parties to be understood as statements of fact to be relied upon rather than as expressions of mere opinion to be accepted solely as such.

As to defendants’ second contention, while misrepresentations as to something to be done in the future generally do not constitute fraud (McAfee v. Rockford Coca-Cola Bottling Co. (1976), 40 Ill. App. 3d 521, 352 N.E.2d 50), a statement of matters in the future, if affirmed as a fact, may amount to a fraudulent misrepresentation if it amounts to an assertion of fact. (Louis v. Louis (1970), 124 Ill. App. 2d 325, 260 N.E.2d 469, appeal denied (1970), 44 Ill. 2d 587.) In any event, the representations here related not to future events but to the current value of the two houses and the current state of the market.

Defendants’ third contention is that the plaintiffs failed to allege any intention to deceive. While we agree that plaintiffs’ allegations as to scienter are less than ideal, in light of the fact that allegations are only required to inform the defendants of the nature of the claim (Ill. Rev. Stat. 1979, ch. 110, par. 42(2)), we conclude that the contention that the defendants acted intentionally and with reckless disregard of the truth is sufficient. A party is considered to intend the necessary consequences of his own acts. (Posner v. Davis (1979), 76 Ill. App. 3d 638, 395 N.E.2d 133.) Accordingly, one who knowingly makes a false statement to another who relies thereon is guilty of fraud regardless of the defendant’s motive and the plaintiff is not required to prove an express fraudulent intent. (Case v. Ayers (1872), 65 Ill. 142; Broberg v. Mann (1965), 66 Ill. App. 2d 134, 213 N.E.2d 89; John V. Farrell Co. v. Nathanson (1900), 99 Ill. App. 185.) And knowledge of wrongdoing sufficient to support an action for fraud exists where representations which are in fact false are made in reckless disregard of their truth or falsity. (Hurley v. Frontier Ford Motors, Inc. (1973), 12 Ill. App. 3d 905, 299 N.E.2d 387, appeal denied (1973), 54 Ill. 2d 597; Solazzi v. Casola (1952), 345 Ill. App. 407, 103 N.E.2d 164 (abstract); Tone v. Halsey, Stuart & Co., Inc. (1936), 286 Ill. App. 169, 3 N.E.2d 142; Snively v. Meixsell (1901), 97 Ill. App. 365.) Likewise statements made in culpable ignorance of their truth or falsity are fraudulent. (Oltmer v. Zamora (1981), 94 Ill. App. 3d 651, 418 N.E.2d 506.) Indeed, it has been held that good faith is no defense where the fraud and deceit practiced consist, as here, of making false statements of fact as to the knowledge of the speaker. (Brennan v. Persselli (1932), 266 Ill. App. 441, aff'd (1933), 353 Ill. 630, 187 N.E. 820; National Bank v. Hamilton (1916), 202 Ill. App. 516.) As the Illinois Supreme Court remarked in Brennan v. Persselli (1933), 353 Ill. 630, 635, 187 N.E. 820, 822: “it is immaterial whether a party misrepresenting a material fact knows it to be false or makes the assertion of the fact without knowing it to be true, for the affirmation of what one does not know to be true is unjustifiable, and if another act upon the faith of it, he who induced the action must suffer, and not the other.”

The defendants in their brief also contend that the plaintiffs had no right to rely on defendants’ representations, both because they could have inquired elsewhere and because admittedly they were skeptical of Reigel’s first appraisal. This is a question of fact for the jury to decide, particularly in light of the subsequent repeated representations by Reigel as to the reliability of her statements and the second appraisal by Nash. Indeed, it might be concluded that in light of these representations the defendants are barred from contending that plaintiffs should not have relied on the advice — one should not be allowed to hold oneself out as an expert whose statements or advice is to be relied upon and then, after someone else has relied on that advice to his detriment, say “You should not have believed me.” The defendants cannot complain of the plaintiffs’ reliance where the defendant inhibited any inquiries by lulling them into a false .sense of security. Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393; Miller v. John (1903), 111 Ill. App. 56, aff'd (1904), 208 Ill. 173, 70 N.E. 27.

Ill

In count II of their complaint the plaintiffs alleged that defendants were engaged by plaintiffs to purchase a new home, and to advise them as to the market value of their present home, the lowest price at which it could be sold and the speed with which it could be sold; that defendants held themselves out to plaintiffs as experts in the real estate field in whom they could place their trust and confidence and rely upon to perform these services; that defendants failed to exercise that degree of care and competence reasonably required of them and negligently made the false representations already set forth in count I; that these representations were made by defendants in their fiduciary capacity as agents in order to induce them to purchase a new home and to sell their present residence; that defendants intended and expected plaintiffs to rely on these representations and plaintiffs did so rely and in so relying acted reasonably and with due regard for the protection of their own interests since the truth or falsity of the representations was a matter solely within the knowledge of the defendants. Defendants in their motion to dismiss contended that:

1. in the original verified complaint, which is binding on plaintiff, all of the statements occurred prior to the existence of any agreement and were the inducement to enter into the agreement (this is only partially true since plaintiffs also sought to recover for misrepresentations made after mid-April). Keeping in mind the admissions of the original verified complaint, the amended complaint does not state a cause of action for negligent misrepresentation because the plaintiffs have failed to show:

a. the existence of any duty owed to them by defendants;

b. the breach of any such duty.

2. in any event plaintiffs were contributorily negligent as a matter of law.

Patently in a complaint the plaintiff is not required to “show” anything; plaintiff is only required to allege such facts as would reasonably inform defendant of the nature of the cause of action. Ill. Rev. Stat. 1979, ch. 110, par. 42(2).

Illinois recognizes that an action for negligent misrepresentation is maintainable if the complaint alleges the necessary elements of an action for negligence. (Lyons v. Christ Episcopal Church (1979), 71 Ill. App. 3d 257, 389 N.E.2d 623; McAfee v. Rockford Coca-Cola Bottling Co. (1976), 40 Ill. App. 3d 521, 352 N.E.2d 50.) These elements are a duty owed by defendants to plaintiffs, a breach of such duty, and injury resulting proximately from such breach.

Defendants contend that they had no duty to plaintiffs because at the time the representations were made (or at least the majority of them) there was no brokerage agreement between the parties and that absent such relationship there could never be any duty to plaintiffs. This contention is obviously erroneous, and the cases relied on by defendants (City of Chicago v. Barnett (1949), 404 Ill. 136, 88 N.E.2d 477; Bau v. Sobut (1977), 50 Ill. App. 3d 732, 365 N.E.2d 724; Pawlowic v. Pearce (1965), 59 Ill. App. 2d 153, 207 N.E.2d 155) do not so state. While special duties may arise out of a brokerage relationship, the fact a person is a real estate broker does not exempt him or her from normal rules of negligence law, and it is elementary tort law that when one undertakes to perform a task, one assumes the duty to use proper care in the performance of the task. (Prosser, Handbook of the Law of Torts §56 (4th ed. 1971).) Here, accepting the allegations of the complaint, the defendants undertook to evaluate the plaintiffs’ property and to advise them as to what price it could be sold for and how quickly. Not only did the defendants undertake the task, but they repeatedly represented their expertise in the field and their ability to make valuations and representations which could be relied upon. Having undertaken this, defendants had a duty to plaintiffs not to act negligently in rendering this service. This conclusion is reinforced by Citizens Savings & Loan Association v. Fischer (1966), 67 Ill. App. 2d 315, 325, 214 N.E.2d 612, 617, appeal denied (1966), 33 Ill. 2d 627, which endorsed the American Law Institute’s stance on what constitutes negligent misrepresentation:

“One who in the course of his business or profession supplies information for the guidance of others in their business transactions is subject to liability for harm caused to them by their reliance upon the information if
‘ “(a) he fails to exercise that care and competence in obtaining and communicating the information which its recipient is justified in expecting, and
‘ “(b) harm is suffered
“(i) by the person or one of the class of persons for whose guidance the information was supplied, and
‘ “(ii) because of his justifiable reliance upon it in a transaction in which it was intended to influence his conduct or in a transaction substantially identical therewith.” Restatement, Torts, Sec 552.’ ”

The defendants, in the course of their business, supplied information for the guidance of plaintiffs in their business transaction of buying and selling a house and allegedly failed to exercise proper care and competence in obtaining the information. Harm was suffered by the persons to whom the information was supplied because of justifiable reliance encouraged by the defendants.

The defendants’ contention that plaintiffs were contributorily negligent as a matter of law in buying one house before they put the other up for sale is premature. A motion to dismiss under section 45 of the Civil Practice Act is used to attack defects in a pleading, and not to test the plaintiffs’ ability to recover where the complaint adequately states a cause of action. Furthermore, as this court has repeatedly stated, contributory negligence is nearly always a question for the trier of fact and not for the court to decide. Borus v. Yellow Cab Co. (1977), 52 Ill. App. 3d 194, 367 N.E.2d 277.

IV

Section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121%, par. 262) provides in part:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act’, approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act.”

The defendants moved to dismiss plaintiffs’ claim under the Act contending that the plaintiffs failed to show that there was any misrepresentation made of a statement of fact, and that the alleged misrepresentation was not related to future or contingent events and that there was an intent to deceive. These are the identical objections raised as to the fraud count (except that here defendants contended plaintiff failed to “show”; a contention which, as already pointed out, is clearly improper and insufficient in a motion to dismiss). This court has already ruled, in the discussion of the fraud count, that the complaint did allege an intentional misrepresentation of a present fact. More importantly, however, none of these elements is required by the Act.

Section 2 of the Act (which was held to apply to misrepresentations by real estate brokers to prospective purchasers in Beard v. Gress (1980), 90 Ill. App. 3d 622, 413 N.E.2d 448), indicates a decisive move on the part of the Illinois legislature to enact broad protective coverage of consumers from the many types of deceptive or unfair selling and advertising techniques used by businesses. (American Buyers Club v. Honecker (1977), 46 Ill. App. 3d 252, 361 N.E.2d 1370.) The sections clearly expand the consumers’ rights beyond those of the common law (Rice v. Snarlin, Inc. (1970), 131 Ill. App. 2d 434, 266 N.E.2d 183), and provide broader consumer protection than does the common law action of fraud. (Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 380 N.E.2d 1040.) There is a clear mandate from the Illinois legislature that the courts of this State utilize the Act to the utmost degree in eradicating all forms of deceptive and unfair business practices and grant appropriate remedies to injured parties. Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 380 N.E.2d 1040; American Buyers Club v. Honecker (1977), 46 Ill. App. 3d 252, 361 N.E.2d 1370; American Buyers Club v. Hayes (1977), 46 Ill. App. 3d 270, 361 N.E.2d 1383.

Since the Act affords even broader consumer protection than does the common law action of fraud, it is clear that a plaintiff suing under the Act need not establish all of the elements of fraud as the Act prohibits any deception or false promise. (Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 380 N.E.2d 1040.) And it is clear from the language of the Act, particularly its reference to false promises, that liability is not limited to existing material facts. Furthermore, it is well established that under the Act the intention of the seller (his good or bad faith) is not important and a plaintiff can recover under the Act for innocent misrepresentations. Beard v. Gress (1980), 90 Ill. App. 3d 622, 413 N.E.2d 448; American Buyers Club v. Honecker (1977), 46 Ill. App. 3d 252, 361 N.E.2d 1370; American Buyers Club v. Hayes (1977), 46 Ill. App. 3d 270, 361 N.E.2d 1383.

For the foregoing reasons, the judgment of the trial court dismissing the claim in contract is affirmed. However, the dismissal of the other counts is reversed and the case remanded for further proceedings.

Affirmed in part; reversed and remanded in part.

JOHNSON and LINN, JJ., concur.

       In their original complaint which like the amended complaint was verified, the Duhls did not allege that Reigel was engaged as a broker on March 20 but that she was subsequently engaged as broker in reliance on her representations, including her professional opinion and Nash’s appraisal.

       As pointed out by Prosser in his Law of Torts §107 (4th ed. 1971), one who gives curbside advice when it is requested by one who is not a client is only required to give an honest answer. We agree. But that was not the situation here.


text:
    LARRY GUTANSKY et al., Plaintiffs-Appellants, v. ADVANCE MORTGAGE CORPORATION, Defendant-Appellee.
    First District (4th Division)
    No. 80-2905
    Opinion filed December 3, 1981.
    Michael J. Goldstein, Allen L. Kaplan, and Larry D. Drury, all of Chicago, for appellants.
    Edwin A. Rothschild, Allan M. Posner, and Steven H. Frankel, all of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The plaintiffs attempted to bring a class action to recover statutory penalties for failure to release a mortgage within the 30 days required by law. The court refused to certify the class action; plaintiffs were granted judgment on their individual claim. The plaintiffs have appealed the denial of certification. We affirm.

Section 2 of “An Act relating to mortgages of property of public utilities” (Ill. Rev. Stat. 1977, ch. 95, par. 52) provides in part:

“Every mortgagee of real property, his assignee of record, or other legal representative, having received full satisfaction and payment of all such sum or sums of money as are really due to him from the mortgagor, and every trustee, or his successor in trust, in a deed of trust in the nature of a mortgage, the notes, bonds or other indebtedness secured thereby having been fully paid after the effective date of this amendatory Act of the 78th General Assembly [October 1975], shall make, execute and deliver to the mortgagor or grantor in a deed of trust in the nature of a mortgage, his heirs, legal representatives or assigns, an instrument in writing releasing such mortgage or deed of trust in the nature of a mortgage or shall deliver that release to the recorder or registrar for recording or registering. If the release is delivered to the mortgagor or grantor, it must have imprinted on its face in bold letters at least 1/4 inch in height the following: ‘FOR THE PROTECTION OF THE OWNER, THIS RELEASE SHALL BE FILED WITH THE RECORDER OF DEEDS OR THE REGISTRAR OF TITLES IN WHOSE OFFICE THE MORTGAGE OR DEED OF TRUST WAS FILED’. The recorder, or registrar, upon receipt of such a release and the payment of the recording or registration fee, shall record or register the release.”

Section 4 of “An Act relating to mortgages of property of public utilities” (Ill. Rev. Stat. 1977, ch. 95, par. 54) provides:

“If any mortgagee or trustee, in a deed in the nature of a mortgage, of real property, or his executor or administrator, heirs or assigns, knowing the same to be paid, shall not, within one month after the payment of the debt secured by such mortgage or trust deed, comply with the requirements of Section 2 of this Act [paragraph 52], he shall, for every such offense, be liable for and pay to the party aggrieved the sum of $200 which may be recovered by the party aggrieved in a civil action, together with reasonable attorney’s fees. In any such action, introduction of a loan payment book or receipt which indicates that the obligation has been paid shall be sufficient evidence to raise a presumption that the obligation has been paid. Upon a finding for the party aggrieved, the court shall order the mortgagee or trustee, or his executor or administrator, heirs or assigns, to make, execute and deliver the release as provided in Section 2 of this Act. The successor in interest to the mortgagee or trustee in a deed in the nature of a mortgage shall not be liable for the penalty prescribed in this Section if he complies with the requirements of Section 2 of this Act within one month after succeeding to the interest.”

In 1977, plaintiffs Larry and Cynthia Gutansky paid a secured debt owed to defendant Advance Mortgage Corporation. Admittedly defendant did not release the mortgage within the 30 days required by statute. Plaintiffs thereafter filed this action to recover the statutory penalty for themselves and others similarly situated.

The defendant filed a motion for a finding the action could not be maintained as a class action contending (1) a class action could not be brought to recover a penalty, (2) there was no common question of law or fact, citing McCabe v. Burgess (1979), 75 Ill. 2d 457, 389 N.E.2d 565, cert. denied (1979), 444 U.S. 916, 62 L. Ed. 2d 170, 100 S. Ct. 230. The trial judge granted defendant’s motion. While no findings or reasons were included in the order, it appears from the record that the order was entered because the judge believed “class action[s] cannot be maintained to recover a pecuniary statutory penalty.”

The trial court also refused to allow an immediate appeal of the denial of class certification. Thereafter summary judgment was entered for plaintiff for the $200 penalty and $200 attorney’s fees. It does not appear from the record that defendant, at any time after class certification was denied, disputed its liability on the individual claim. Because plaintiff refused to accept the award and release defendant, payment was made to the court.

I

Section 57.2 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57.2), sets out the requirements for the maintenance of a class action:

“Prerequisites for the Maintenance of a Class action, (a) An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.”

This statute banished many factors previously held to be requisite. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.) While class certification is a matter within the discretion of the trial court, the court will be reversed where it considered impermissible legal criteria, that is, criteria not set forth in the statute. (McCabe v. Burgess (1979), 75 Ill. 2d 457, 389 N.E.2d 565, cert. denied (1979), 444 U.S. 916, 62 L. Ed. 2d 170, 100 S. Ct. 230.) Whether a complaint seeks to recover a statutory penalty is not listed among the four criteria.

The defendant relies on Runyan v. Kelley (1975), 31 Ill. App. 3d 600, 335 N.E.2d 42, which held that a class action cannot be maintained for a penalty. Runyan was decided prior to the enactment of the class action statute and based its decision on the rationale that a class action could only be brought in equity and an action for a penalty is brought in law. The words in the class action statute “An action may be maintained as a class action in any court” (emphasis added) emphasize that the class actions so authorized are not to be limited to their historic role as creatures of equity. (Ill. Ann. Stat., ch. 110, par. 57.2, Supplement to Historical and Practice Notes, at 132, (Smith-Hurd 1981).) A class action may now be brought in any court and is not limited to an action in equity; indeed in light of the Illinois Constitution of 1970, article VI, section 9, there no longer properly are distinct courts of law and courts of chancery. Hoover v. May Department Stores Co. (1978), 62 Ill. App. 3d 106, 378 N.E.2d 762, rev’d on other grounds (1979), 77 Ill. 2d 93, 395 N.E.2d 541.

This does not mean that the fact a statutory penalty is sought could never be considered by a trial court. A trial court must determine whether the class action is an appropriate method for the fair and efficient adjudication of the controversy. It is clear from the record, however, that the trial court did not conclude that under the particular circumstances, after considering all the factors including the size of the class, such an action would be an inappropriate method. Indeed it could not have made such a conclusion since, due to defendant’s refusal to answer certain interrogatories, there was no evidence before the court as to the size of the class, the burden on the defendant if a class action is allowed and similar questions.

Since it appears from the record that the trial judge, believing he had no discretion to exercise, did not consider all of the factors set forth in section 57.2 and did not exercise his discretion, we normally would reverse for a fuller development of the issue. However we believe that following McCabe v. Burgess (1979), 75 Ill. 2d 457, 389 N.E.2d 565, cert. denied (1979), 444 U.S. 916, 62 L. Ed. 2d 170, 100 S. Ct. 230, we must affirm, because as a matter of law there is no predominant common question. It has always been the law of Illinois that a proper class action must present circumstances giving rise to questions of fact or law common to all the parties in the alleged class. (Forde, Illinois’s New Class Action Statute, 59 Chi. B. Rec. 120 (1977).) For example, the claims of all parties must be based on the common application of a statute or regulation, or all parties and class members must be aggrieved by the same or similar misconduct. To maintain a class action under Illinois law, however, the proponent must also show that the “common questions” predominate over any issues which may affect only individual members of the class. (Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 428 N.E.2d 489.) Generally, as this court stated in Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 273, 361 N.E.2d 815, 820, appeal denied (1977), 66 Ill. 2d 629: “A class action can properly be prosecuted where a defendant is alleged to have acted wrongfully in the same basic manner as to an entire class. In such circumstances, the common class questions * * * dominate the case * ° V’ Such would seem to be the situation here.

However the Illinois Supreme Court recently in McCabe v. Burgess (1979), 75 Ill. 2d 457, 389 N.E.2d 565, cert. denied (1979), 444 U.S. 916, 62 L. Ed. 2d 170, 100 S. Ct. 230, refused to allow a class action to recover illegal fines where the unconstitutionality of the statute and the right to recover had already been established. In McCabe v. Burgess, plaintiff sought to bring a class action to have convictions under the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, pars. 22 — 1 through 22 — 49.1) expunged and to recover the fines and costs which had been collected. In two earlier, unrelated cases it had already been established that the statute as it related to marijuana was unconstitutional and that those convicted under the Act had a right to the expungement of their convictions and the return of any fines and costs. Although the defendant clearly had acted wrongfully in the same basic manner to all members of the class, the Illinois Supreme Court affirmed the trial court’s denial of class certification, stating in 75 Ill. 2d 457, 465-66, 389 N.E.2d 565, 568-69:

“The common issues that would have justified maintaining this class action were the unconstitutionality of the Uniform Narcotic Drug Act as it applied to marijuana (Ill. Rev. Stat. 1969, ch. 38, pars. 22 — 1 through 22 — 49), and the right of those who had been convicted under the Act to have their convictions expunged and their fines and costs refunded. These were the two common questions that predominated over questions which would affect only individual members of the class, such as the nature of the offenses of which they were convicted and the amount of fines and costs paid. In a class action it is appropriate to litigate the questions of law or fact common to all members of the class and after the determination of the common questions to determine in an ancillary proceeding or proceedings the questions that may be peculiar to individual class members. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 340-42.) However, the question of the validity of the statute was decided by this court in People v. McCabe and the right of those convicted under the invalid statute to have their convictions expunged and their costs and fines refunded was established in People v. Meyerowitz. Thus, the common questions which predominate over the questions that relate only to the individual class members had been decided in these other cases. These questions are no longer.controverted. All that remains are the questions that relate only to individuals who were convicted under the invalid statute: (1) Of what offense was each convicted? and (2) What were the fines and costs paid? These questions must be determined as to each individual. There is no common question which predominates to be adjudicated independently of these questions that relate only to the individuals.”

Likewise in the present case, the persons whose mortgages were not timely released have a right to recover which is settled beyond doubt. Although in its original answer defendant raised the issue of the constitutionality of the statute, this issue has since been waived, and defendant conceded in its brief on appeal that it did not dispute its validity. Accordingly, as in McCabe, the common questions have all been settled. All that remains to be determined is whose mortgages were not timely released under the statute and the amount of attorney’s fees to be assessed in addition to the penalty.

For the reason stated the judgment of the trial court is affirmed.

Affirmed.

JIGANTI and LINN, JJ, concur.