author: JUSTICE PERLIN

text:
      In re MARRIAGE OF MARY R. GLESSNER, Petitioner-Appellant, and THOMAS O. GLESSNER, Respondent-Appellee.
    First District (2nd Division)
    No. 82—2221
    Opinion filed November 8, 1983.

      Donald Schultz and Nicholas B. Comerford, both of Chicago, for appellant.
    Bianco and Szycowski, of Chicago (Peter Bianco, Jr., of counsel), for ap-pellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Petitioner, Mary R. Glessner (Mary), appeals from the supplemental judgment entered by the circuit court of Cook County on August 13, 1982, apportioning the marital property, awarding to her maintenance of $400 per month for one year and designating certain property nonmarital and assigning it to respondent, Thomas O. Glessner (Thomas).

On appeal, Mary contends that because neither party allegedly prayed for partition of the marital home, the trial court erred in ordering its sale. Mary further contends that the trial court erred in failing to consider evidence or make a finding as to the value of Thomas’ accounting business; in awarding the accounting business to Mary while awarding to Thomas the accounts receivable or payable of that business; in accepting, as probative of value, Thomas’ testimony with respect to the market value of the Hoffman estates condominium in which he resides and in evaluating certain Florida property claimed by Thomas to be nonmarital; in finding that the condominium where Thomas resides and the Florida property were nonmarital; in finding that certain funds acquired during the marriage, and placed in trust by Thomas for the benefit of three of the parties’ children, constituted a gift and that the condominium in which Thomas resides, purchased in part with those trust funds, was nonmarital property, in failing to find that Thomas’ act of placing funds in trust was a dissipation of marital assets; in failing to consider or dispose of certain stock; in failing to dispose of the marital property in just proportions; and in limiting to one year the award to Mary of $400 per month as “rehabi-tated [sic] maintenance.”

The parties were married on June 6, 1953. The marriage produced six children, all of whom were, at the time the supplemental judgment was entered on August 12, 1982, emancipated. The parties’ two youngest children were on that date, living with Mary in the marital home.

On September 27, 1977, Mary filed a “Complaint for Separate Maintenance, Injunction and Other Equitable Relief.” On October 14, 1977, three of the parties’ children were not yet emancipated and were living with Mary when she was awarded $750 per month as temporary maintenance and child support. On February 17, 1978, the amount of this award was reduced by the trial court to $400 per month. On February 26, 1980, following an uncontested hearing, a judgment of dissolution was entered dissolving the parties’ 24-year marriage and reserving for future determination “all matters concerning the questions of the custody, visitation and support of the minor children of the parties, the maintenance of the petitioner, the respective rights of each party in and to the property *** including a division of all marital and non-marital property, awarding attorney fees and other matters.”

The record indicates that a hearing on those “reserved issues” was continued from time to time until August 7, 1981, when, as a result of Mary’s failure to act, the case was dismissed for want of prosecution. On December 23, 1981, Thomas filed a petition to vacate the court’s dismissal order and requested that the cause be reinstated. The court granted Thomas’ petition to vacate the August 7, 1981, dismissal order and reinstated the case.

When trial began on March 31, 1982, Mary, in apparent good health, was 56 years old, a high school graduate. During the first year of the marriage she was employed as a legal secretary. Thereafter she was a homemaker until 1971 when she became employed part-time as a clerk for Sears, Roebuck & Company. At the time of trial, and for the preceding three years, Mary was employed as a secretary in the legal department of Sears, Roebuck & Company. Her net income was approximately $225 per week ($967.50 per month) and she estimated her expenses were approximately $1,713 per month.

Thomas, an accountant, was, at the time of trial, 58 years old and apparently in poor health. The record indicates that he was taking medication for diabetes, high blood pressure and a heart condition which, in 1976, necessitated open-heart surgery. Thomas was sole proprietor of an accounting and tax service known as Thomas 0. Glessner and Associates. Thomas stated that his annual net income approximated $16,000 ($1,333 per month) and his annual expenses were approximately $14,000. His 1981 Federal income tax return indicates gross receipts of $47,230 and an adjusted gross income of $19,099. A profit and loss statement submitted by Thomas indicates that in 1981 he had a “net profit after income taxes” of $16,199.

On April 27, 1982, following three days of testimony, the trial court took the case under advisement and on August 13, 1982, entered its “Supplemental Judgment for Dissolution of Marriage,” including the court’s written findings and order.

The record indicates that, because the parties by agreement disposed of certain marital assets during the pendency of these proceedings, these assets were excluded from consideration by the court and no finding as to the total value of the marital estate was made. The trial court’s written findings, however, included certain evaluations and characterizations of the parties’ assets. The court found that “the improved real property constituting the former marital home of the parties *** [had] an appraised value stipulated by the parties to be $86,000 *** and is free and clear of any encumbrances.” The court also found: on December 1, 1977 (65 days after Mary’s initial complaint was filed), Thomas established two trust accounts at Austin Federal Savings in Schaumburg, each in the amount of $10,000, designating three of the parties’ children as beneficiaries and naming his sister, Nancy Weber, and a friend, Walter Klink, as co-trustees of those accounts; that after the parties were divorced in February 1980, Thomas asked the co-trustees to purchase with the trust funds (certificates of deposit), plus interest accrued, a condominium in Hoffman Estates, title to which was again placed in trust for the three children; that the original money used to establish the trust was a gift by Thomas to his children and, therefore, the condominium was nonmari-tal property; that each party was “approximately equal in his or her income production”; and that on July 25, 1980 Thomas “paid no money” to his mother or to his sister when they transferred to him their entire interest in certain improved real estate in Florida, and, as a result, that property was nonmarital.

The court awarded to Mary the Thomas 0. Glessner & Associates accounting business “by the agreement of the parties at the trial *** less the cash balance on hand and less the accounts payable and accounts receivable of the said business.” The court further ordered that the former marital home of the parties should be sold and the proceeds, after payment of costs and expenses of sale, should be divided equally between the parties; that Thomas be awarded “any cash he has on hand and the cash balance that he *** has accumulated for his business”; that Mary be awarded her interest in the Sears savings and profit sharing plan, including all stocks and cash in the said plans and any cash which she has on hand; that each party pay any or all of his or her own debts, liabilities and obligations and his or her •own attorney fees and costs; and that Thomas pay to Mary “the sum of $400 per month as and for rehabilitated [sic] maintenance for a period of one year.”

Mary appeals from the findings of the circuit court and from the supplemental judgment for dissolution of marriage.

Mary initially contends that because neither she nor Thomas prayed for partition of the marital home, the trial court erred in ordering its sale.

Section 514 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1979, ch. 40, par. 514) provides:

“A court having jurisdiction in an action for dissolution of marriage may, upon petition of one of the parties, hear and decide an action for petition subject to the provisions of ‘An Act in relation to the partition of real estate [Ill. Rev. stat. 1979, ch. 106, par. 44 et seq.]’ *** except as otherwise provided in this Act.”

This section apparently authorizes a trial court, as a matter of judicial economy, to consider, where requested, the partition of marital real estate in the course of a dissolution of marriage action. (See Ill. Ann. Stat., pars. 503(c), 514, Historical and Practice Notes at 796-97, (Smith-Hurd 1980).) Thus it has been held that in dividing real estate which is classified as marital" property under section 503 of the Act, the court is empowered to order the sale of co-owned real estate without the need for a separate partition action, provided one of the parties has petitioned for such partition. In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 838, 398 N.E.2d 868.

Thomas contends that he in fact petitioned the trial court here when, in his counterpetition for dissolution filed on February 17, 1978, he prayed for “a reasonable division of marital property and other equitable relief.” He argues that this prayer qualified as a petition for partition as set forth in Pieper.

In In re Marriage of Peoples (1981), 96 Ill. App. 3d 94, 96, 420 N.E.2d 1072, the respondent contended, as Mary does here, that “in the absence of a specific prayer for sale of the marital home, the court is without the authority to order what, in effect, is a partition of the property.” The court there concluded that petitioner’s prayer for “sole ownership of the marital home and such other relief as was equitable *** was sufficient to place the issue of the disposition of the marital home, including a possible sale, before the trial court.” (Emphasis added.) 96 Ill. App. 3d 94, 96-97.

In the instant case Mary’s prayer for use of the marital home and other equitable relief, and Thomas’ request for a division of the marital property and other equitable relief was, in our opinion, sufficient to place the issue of the disposition of the marital home, including its sale, before the trial court. The trial court, therefore, did not err in ordering the sale of the marital home with an equal division of the proceeds.

Mary next contends that the trial court erred in failing to consider evidence of or to make a finding of the value of Thomas’ accounting business.

It is generally established in Illinois that the Act does not require the court to place a specific value on each marital asset but only that there be competent evidence of value and that the court’s division of the property be supported by such evidence. In re Marriage of Carini (1983), 112 Ill. App. 3d 375, 379, 445 N.E.2d 412.

Our review of the record in the instant case indicates that the court heard Thomas’ testimony regarding the income and expenses of his business. Exhibits offered into evidence by Thomas, including his 1980 and 1981 tax returns, detailed the assets, liabilities, gross receipts and expenses of his business.

Although we note the paucity of effort and of evidence to explain a number of Thomas’ peculiar financial transactions and unusual bookkeeping methods, it is not the function of a reviewing court to tread beyond the record and to engage in speculation. Our review indicates that the trial court did consider the evidence submitted to it and acted in accordance with such evidence in apportioning the property. Since the business was offered to Mary by Thomas’ attorney and apparently accepted by Mary, she made no further attempt to introduce expert testimony of value, and it was unnecessary for the trial court to invite such further testimony.

Mary contends that she was prevented by the trial court’s actions from “personally” accepting or rejecting the offer of the business. She argues that her acceptance of the business was the result of her attorney’s “ill chosen response” and not of her individual action. A close review of the record, however, does not indicate that the trial court in any way interfered with Mary’s acceptance or rejection of the offer or that Mary, during trial, expressed disagreement with such acceptance. Under these circumstances, we find no error in the trial court’s failure specifically to evaluate the accounting business.

Mary further contends that since she is not an accountant, the action of the trial court in awarding her the accounting business was “illusory.” She argues that in awarding to Thomas the accounts receivable and payable of the accounting business and in permitting him to compete for the 12 to 14 active accounts of the business, Thomas retains everything of value in the business.

The evidence indicates that Thomas at times hired subcontractors to service the accounts, and Mary’s counsel acknowledged that “the business has some value and benefit apart from the labor that [Thomas] puts into [it].” During trial Mary did not disagree with the court’s handling of the accounting business, and we find no error in this instance.

Mary next contends that except for the testimony of Thomas to which she refers as “without proper foundation,” there was no evidence as to the value of the Hoffman Estates condominium in which Thomas resided with a lady friend or of certain Florida property deeded to him by his mother, Goldie Glessner, and his sister, Nancy Weber.

Mary argues that absent a proper foundation, “Thomas’ testimony is not probative of value.” Mary’s argument is, however, not supported by the record which contains many exhibits relied upon by Thomas in his testimony, including deeds and other transfer-of-title documents, which indicate the purchase price of these properties. Thomas’ mother, in her depositions and his sister at trial also testified about these properties and their purchase prices. In view of the documentation and the testimony of the witnesses, we do not find that the value of these properties was based solely upon Thomas’ testimony or that Thomas’ testimony was totally without proper foundation.

Mary also contends that the trial court erred in finding that the condominium in which Thomas resided and the Florida property were nonmarital.

The court found that the Hoffman Estates condominium in which Thomas resided was nonmarital property after determining that part of the funds used to purchase the condominium came from the trust established by gift from Thomas to three of the parties’ children and the balance of the purchase price of that condominium came from a loan to Thomas from his friend, Joseph Szatkowski. The court concluded that since the original funds placed in trust for the children were a gift, the condominium, also held in trust for the children, remained nonmarital property.

Mary asserts that Thomas’ sister, Nancy Weber, “is admittedly not the actual owner” and that she holds only “naked legal title to the condominium.” Mary argues that because Nancy Weber pays no expenses of the condominium and collects no rents from Thomas, who pays all the expenses and uses the condominium as his residence, title in her name is “illusory.” According to Mary, the transaction whereby Nancy Weber took title to this property was “merely colorable” and “a fraud on the marital rights of Mary.”

It is well established that “fraud against marital property is not to be condoned even though it occurs before dissolution.” (Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 220, 446 N.E.2d 499.) When the characterization of a transfer of marital funds into a trust by a spouse is questioned, “fraud” is properly assessed by referring to the donative intent of the settlor. (94 Ill. 2d 205, 221.) Where a transfer of real property is involved, the transfer can be voided only upon a showing by clear and convincing evidence that the purpose of the transferor was to defraud the marriage. 94 Ill. 2d 205, 221-22.

Courts have suggested that the intentions of the transferor should be examined in terms of his intent “either to retain or to part with the ownership of property.” (Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342; 359, 383 N.E.2d 185, citing Smith, The Present Status of “Illusory” Trust — The Doctrine on Newman v. Dore Brought Down to Date, 44 Mich. L. Rev. 151 (1945).) An illusory transfer, which Mary suggests exists in the instant case, “is one which takes back all that it gives” and “a colorable transfer is one which appears absolute on its face but due to some secret or' tacit understanding between the transferor and the transferee the transfer is, in fact, not a transfer because the parties intended that ownership be retained by the transferor.” Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 359.

The uncontradicted evidence in the record before us indicates that in December 1977 Thomas established two $10,000 “Totten” type trust accounts in the Austin Federal Savings Bank of Schaumburg, Illinois. Thomas’ sister, Nancy Weber, and his friend, Walter Klink, were named as trustees of these accounts. There is no indication from the record that Mary was aware of Thomas’ intent when he established the trusts nor that she protested Thomas’ actions. Although the record does not reflect the scope of the trustees’ authority, during oral argument before this court counsel for Mary agreed that under the terms of the trust the trustees did have authority to use the trust funds to purchase a condominium. In 1980, some two years after the trusts were established by Thomas, the trust funds were in fact used, along with an additional $20,000 which Thomas borrowed from Joseph Szatkowski, to purchase a condominium in which Thomas now resides. The title to the condominium was likewise placed in trust from Thomas’ children. Nancy Weber’s uncontradicted testimony was that she controls the property as trustee for the children and that, in lieu of rent, Thomas pays the expenses of maintaining the property.

A review of the evidence indicates that Thomas could not “take back” the property which was placed in trust for his children nor did he retain control, or ownership, of such property. In our opinion, the trial court did not err in finding that the trust funds were in fact a gift to Thomas’ children and that the condominium was, therefore, nonmarital property.

Mary also contends that it was error for the trial court not to have concluded that Thomas’ use of the $20,000 to establish the trust funds was a dissipation of a marital asset.

It has been held that “[dissipation may be found where the spouse uses marital property for his own benefit and for a purpose unrelated to the marriage at a time at which the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 462, 426 N.E.2d 1087.

Mary urges that in establishing the trusts and then converting them into the condominium, Thomas disposed of a large part of the marital assets while he retained the use, benefit and control of those assets. Mary, however, offered no substantive evidence at trial to mandate a change in our conclusion that Thomas did not retain the use of or control over the funds which were placed in trust for the children. Although Thomas resided in the condominium, he did, in lieu of rent, pay the expenses of maintaining that property for the ultimate benefit of the children who were the beneficiaries of the trust. Nancy Weber testified without contradiction that, as trustee, she alone controlled the property. The trial court’s finding that Thomas had not, in this instance, dissipated marital assets was, therefore, not error.

Mary further contends that the trial court erred in finding certain Florida property to be nonmarital property. She argues that the presence of a 40-eent Florida transfer tax stamp on the deed to the property, along with the fact that Thomas from time to time paid to his mother $200 to $300 when the family occupied her home during vacations, demonstrates that Thomas purchased the property and refutes Thomas' contention that the property was acquired by gift.

Thomas’ mother, Goldie Glessner, testified in her deposition that she purchased the Florida property in 1963 with the proceeds received by her from the sale of her house in McHenry, Illinois. On March 18, 1974, she transferred her interest in the Florida property by quit-claim deed to herself, her daughter, Nancy Weber, and to Thomas as joint tenants. In 1980, after the judgment of dissolution was entered in the instant case, the property was transferred by Mrs. Glessner and Nancy Weber to Thomas alone for a nominal consideration of $10. The warranty deed transferring sole ownership of the property to Thomas carries a 40-cent State of Florida documentary tax stamp to comply with the Florida statute (Fla. Stat. 1979, ch. 201, par. 201.02), which requires such a stamp on all Florida real estate title transfers.

The presence of the 40-cent tax stamp in this case, together with the evidence that nominal amounts of money were given by Thomas to his mother during family visits, is in our view, insufficient to refute the testimony of both donors and donee that the property was in fact a gift to Thomas. Because it is well established that property received by gift by a spouse during the marriage is nonmarital property (Ill. Rev. Stat. 1979, ch. 40, par. 503(a)(1)), the trial court in this instance did not err in finding that the Florida property was nonmarital.

Finally, Mary contends that the trial court erred in limiting to"*one year the award to her of $400 per month as rehabilitative maintenance.

It has long been established in Illinois that the award of maintenance is a matter within the sound discretion of the trial court and will not be disturbed on appeal unless it amounts to an abuse of discretion or is against the manifest weight of the evidence. (In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 507, 436 N.E.2d 228.) Such an abuse of discretion generally occurs only where no reasonable man would take the view adopted by the trial court. (106 Ill. App. 3d 502, 507.) Maintenance awards for a limited period, such as in this case, have been upheld by Illinois courts in cases where the award was intended to maintain a party for a limited period during which such party’s income-producing potential might be fully realized. In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 566, 425 N.E.2d 1146.

Mary argues that the award, limited to one year, is speculative and not based upon the evidence. The record, however, indicates that both parties are in their fifties and at the time of trial were producing approximately the same amount of income. From the record it would appear that Thomas was in poor health. His accounting business was awarded to Mary. Although Thomas disputes the amount of certain monthly expenses claimed by Mary, he does not contest the propriety of the maintenance order.

Under the circumstances of this case, we do not believe that it was unreasonable for the trial court to limit to one year the maintenance award to Mary.

In what appears to be a blunderbuss approach, Mary faults each of the trial court’s findings and orders. She has not, however, presented sufficient substantive evidence or pertinent argument to warrant a reversal by this court. In the points and authorities section of her initial brief filed with this court, she assigns as error the trial court’s failure to dispose of certain stock and, generally, to divide the marital assets in just proportions. Since she has failed to argue these issues in such brief, we deem these issues to be waived. 87 Ill. 2d R. 341(e)(7).

For the reasons herein stated, the judgment of the trial court is affirmed.

Affirmed.

DOWNING, P.J., and STAMOS, J., concur.

      Thomas has, in his arguments to this court, challenged the validity of certain of these expenses claimed by Mary (i.e., $400 per month food, $200 per month clothing).

      The record indicates that on December 31, 1981, Mary had accumulated 144+ shares of Sears stock and had net deposits of $848.62 in the Sears Savings and Profit Sharing Fund. She had total gross deposits of $3,848.62 as of that date but subsequently withdrew $3,071.58 “for legal expenses.”

      Thomas suggests that “division” and “partition” are synonymous and that the legislature, in granting the trial court the power to “divide marital property *** in just proportions *** also inferentially and logically included the power to order the sale of that property in order to implement the power to divide without the cumbersome and expensive process [of partition].”
      Recently the Illinois Supreme Court in In re Marriage of Smith (1981), 86 Ill. 2d 518, 532-33, 427 N.E.2d 1239, because of its disposition of that case, found it unnecessary to decide whether a trial court in a dissolution proceeding has inherent authority to partition jointly owned marital property. We note that courts of other jurisdictions have construed such statutory language as, “shall divide,” as authorizing the trial court hearing a dissolution action “to complete the task with respect to the real estate” by ordering its sale. Zillert v. Zillert (Me. 1978), 395 A.2d 1152, 1156-57; Jekot v. Jekot (1973), 32 Colo. App. 118,121, 507 P.2d 473, 475.
      Since we have determined, in this instance, that Thomas’ prayer for relief has in fact placed the issue of disposition of the marital home before the trial court, we need not further address this issue.

      The response Mary refers to was made after the business was offered to her by Thomas’ attorney and the court asked if she had any further witnesses to call. Mary’s counsel replied: “If we are going to be awarded the business I don’t have any further witnesses, I guess.”


source: Caselaw Access Project

author: PRESIDING JUSTICE WILSON

license: Public Domain

text:
    SANDBURG-SCHILLER et al., Plaintiffs-Appellees, v. LUIS F. ROSELLO, Defendant-Appellant.
    First District (5th Division)
    No. 82—1519
    Opinion filed October 28, 1983.
    Rehearing denied December 8, 1983.

      Daniel J. Leahy, of Leahy & Eisenberg, Ltd., of Chicago, for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, John B. McCabe, and Philip H. Hilder, of counsel), for appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Plaintiffs, owner/landlord and several tenants of an apartment building, filed a three-count complaint against defendant, a co-tenant, to recover damages suffered from a fire which originated in defendant’s apartment and spread throughout the building. The three counts of the complaint sounded in negligence (count I), res ipsa loquitor (count II), and wilful and wanton misconduct (count III). The trial court directed a verdict for defendant and against plaintiffs on count III and, pursuant to separate jury verdicts, entered judgment for plaintiffs and against defendant on counts I and II. On appeal, defendant contends that: (1) under Illinois law, a landlord has no cause of action against a tenant for fires occurring during the term of the lease; (2) evidence of defendant’s drinking was inadmissible without indicia of intoxication; (3) the trial court improperly limited the cross-examination of various witnesses as to possible causes of the fire; (4) the verdicts were against the manifest weight of the evidence and the trial court erred in denying defendant’s motions for a directed verdict, judgment n.o.v. and new trial; and (5) plaintiffs failed to establish a prima facie case of res ipsa loquitor. In the alternative only, plaintiffs cross-appeal, contending that the trial court erred in directing a verdict on count III. In addition, plaintiffs allege that because defendant’s notice of appeal was directed only to the jury verdict and not to the denial of the subsequent post-trial motion, this court lacks jurisdiction to consider the substance of the appeal. For the reasons that follow, we find that this court does have jurisdiction and affirm the judgment of the trial court.

Plaintiffs’ Case

At approximately midnight on December 10, 1974, or shortly thereafter on December 11, 1974, the Chicago fire department responded to a fire in defendant’s seventh floor efficiency apartment at 88 West Schiller, Chicago. Testifying as an adverse witness pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102), defendant stated that on the evening of December 10, 1974, from approximately 5:30 p.m. to 10 p.m., he attended a dinner party two blocks from his apartment. Approximately 10:15 p.m., he returned alone to his apartment. Generally, when it was early enough, he would have a cigarette and either read or watch television before going to bed. Although defendant recalled smoking at the party, he could not recall whether he had smoked upon returning home. If he had smoked, however, he would have done so while sitting on the sofa in the living room area. Defendant admitted to being a habitual smoker, having smoked for approximately 23 years. When he went to bed that evening, all electrical items, with the exception of the clock in the bedroom area, were turned off. Defendant had never received an electric shock from any of these items, and all cords were in good condition.

Approximately midnight, defendant was awakened by a shortness of breath. Although his apartment was filled with smoke, he did not see any sparking or flames, nor did he feel any concentration of heat on one side of the apartment or the other. He opened the window on the north wall behind his sofa in the living room area, breathed the air for a few seconds and then ran out of the apartment and sat down on the common stairway to catch his breath. He then went down to the first floor. Defendant never called the fire department or attempted to warn any of other tenants. Although defendant recalled talking to some firemen that night, he did not remember the substance of the conversation.

Defendant further testified that he lived alone in his apartment and had the only set of keys. On examination by defense counsel, defendant stated that he thought he went straight to bed after returning home from the party.

Next, Thomas Stuckey, security director for the apartment building, testified as to the construction and the hot water convection heating system of the apartment. On the morning of the fire, Stuckey arrived at the scene approximately one hour after the fire department had been called. After the firemen left, defendant’s apartment was locked. It was reopened to remove the drums of debris approximately one week later. The electrical system was left untouched for approximately one week.

On cross-examination, Stuckey testified that the only recognizable furnishings in defendant’s apartment after the fire were a floor safe, springs from a hide-a-bed, a metal filing cabinet, and sofa springs. The wood facing on the heating unit located on the north wall was charred and the center was missing and the kitchen cabinets were totally burned off the wall. The refrigerator and range were not removed until approximately two weeks later. On redirect, Stuckey explained that the metal portion of the heating unit always remained cool enough to touch.

Next Lieutenant Andrew Blaine, Chicago firefighter, testified that in December 1974, he was assigned to investigate fires for the bureau of fire investigation, a branch of the Chicago fire department which specialized in determining the cause and origin of fires. Blaine had been trained in investigation at the fire academy, had responded to over 10,000 fires and had investigated approximately 3,000 fires.

On the morning of December 11, 1974, Blaine and his partner, Ronald Drash, arrived at the scene of the fire after the main body of the blaze had been extinguished, went immediately to defendant’s apartment, perused the area, talked to the firefighters who were overhauling the debris, talked to defendant, and made an investigation of the scene to determine cause and origin. When Blaine asked defendant what had happened, defendant told him that he had been smoking on his sofa after returning from a party and had dropped a lit cigarette on the sofa.'

Blaine further stated that after he and Drash searched the apartment, eliminating various causes of ignition, it was their “opinion at that time *** that the fire had originated in the sofa by careless use of smoking materials.” Although Blaine found some fire damage in the kitchen and bathroom, he was satisfied by the height and depth of the burning or charring that the fire did not originate there. Moreover, there was no indication of arson or of an incendiary fire. He has never seen hot water heaters or pipes cause a fire. Further, the burn patterns in defendant’s apartment indicated that the fire had occurred on the north wall of the apartment in the living room area, outside of the radiator. Blaine noticed nothing unusual about the electrical circuitry. During the investigation, Blaine took notes which he referred to later that day when he and Drash wrote their reports.

On cross-examination, Blaine testified that although there was damage to the bedroom area wall and windows, it was clear that there had not been as much heat in the bedroom area as there had been over the sofa in the living room area. Blaine admitted that at one time he had stated that he thought the fire could have started in the hide-a-bed, but, at that time, he was under the impression that the sofa was used as a bed. Defense counsel then attempted to impeach Blaine by reading from a deposition taken in May 1975, in which Blaine stated that he thought the fire originated in the bedroom. In response, Blaine explained that he had been confused about the directions of the apartment at that time. Defense counsel then read from a deposition taken in October 1977, in which Blaine stated that: “We determined the fire had originated in the area against the wall where the sofa had been. *** I believe it was an interior wall.” At trial, Blaine testified that the fire originated on the north wall which was an exterior wall. In response to whether he meant the wall near the hi-fi, Blaine indicated that he was referring to the couch because when the window was opened above the smoldering couch, the oxygen would have raised the temperature of the fire and caused the more intense burning and charring in that area. Regarding the lighting in the apartment, Blaine indicated that although he is not an electrician, he inspected the lights “for signs of them burning, some such signs. I assume it wasn’t electrical.” There was no shorting damage at the outlet behind the couch.'

Defense counsel then attempted to impeach Blaine on several points by reading from depositions in which Blaine had stated: (1) he did not know whether wires in the outlets were damaged; (2) he did not recall defendant’s telling him that his dropped cigarette had caused the fire; (3) it could possibly have been an electrical fire caused by a malfunction of electrical circuitry behind the sofa. In response, Blaine testified that: (1) he never stated that he had examined the wires in the outlets; he merely looked at the outlets; (2) the questions asked at trial and during the deposition were dissimilar and required different answers; and (3) anything is possible; but in this case, all possibilities other than the cigarette had been ruled out.

Regarding televisions, wiring and electrical cords, Blaine admitted that he had heard that they can start fires. However, he had eliminated them as possible causes for three reasons: (1) no moving marks; (2) items were not turned on; and (3) he saw no other source of ignition other than a cigarette. Further, Blaine admitted that it is possible that there could have been other sources of ignition which he did not see. Blaine did not recall examining any of the electrical appliances, the hi-fi or the television, and admitted that it is possible that the cords he did not see could have caused the fire. However, he had never heard of an appliance that is turned off starting a fire and had never seen, read or heard of a lamp malfunctioning and causing a fire. On redirect, Blaine explained that as a lit cigarette burns into the material of a couch and falls below the surface of the couch, the heat which is contained in the area builds and eventually bursts into flame when sufficiently oxygenated.

Next, Donald Miller, causal investigative engineer, testified as to his examination of defendant’s apartment five days after the fire. Regarding the electrical service, Miller explained that each apartment has its own electrical distribution system which distributes power throughout the apartment via various circuits to receptacles, switches or light fixture outlet boxes. Miller examined the distribution feeders and pipes which encompassed the wiring as well as every fixture-type box and receptacle to inspect for electrical damage, looking for evidence of an electrical breakdown, i.e., short circuit or fault. Miller explained that when a short circuit has occurred, there is generally vaporization of the conductive material. There was no evidence of short circuit vaporization or any type of fault in the wiring. Miller also examined the electric range and refrigerator and all electrical feeders to them and concluded that there was no evidence of an electrical breakdown. Based on his experience and examination of defendant’s apartment, Miller stated, with a reasonable degree of certainty, that the electrical system was not involved in causing the fire. Further, because there was less significant burn damage in the kitchen and bathroom areas than in the living-dining area, Miller eliminated the kitchen and bathroom as areas of fire origin.

Miller further testified that because all of the debris had been removed from defendant’s apartment by the time he made his inspection, he was not able to determine a specific cause. However, he was able to get a better idea of burn patterns. The most severe melting of plastic was found in the receptacle on the north wall of the living-dining area, near the air conditioner, indicating that this area was either exposed to the longest term burn or to the highest localized area of heat. In response to plaintiffs’ counsel’s hypothetical which asked Miller to assume all facts previously put into evidence, Miller stated that his opinion as to the point of origin of the fire, based upon a reasonable degree'of scientific certainty, was that the fire started in the northwest corner of the living-dining area where the couch, table, hi-fi and end tables were located. As to the cause of the fire, Miller further stated, “Given the facts as I now know them, based on all of the photographs that are available to me and the testimony that has been made available for me to read, in my engineering opinion the fire being a smoldering type fire by necessity, because of all the smoke involved, originated in that couch.” The bases for this opinion were: (1) burn and char patterns, (2) heat and metal discoloration patterns, (3) photographs, (4) general personal observations, (5) location of a fuel source in that area, and (6) defendant’s observations.

Regarding the heating system, Miller stated that after examining the heater, he concluded that because the water temperature was far below the ignition temperature of combustible materials required to cause a fire, the heating system could not have caused the fire.

On cross-examination, Miller testified that although the wall behind the hide-a-bed in the bedroom area was partially gone, the burn and char patterns that were visible did not support the suggestion that the mattress had been smoldering. Further, because other metal objects in the apartment similar to the metal window frames behind the couch did not melt, Miller assumed that there had been a concentrated fuel load in the melted frame area and, more probably, a longer term burn. Although the windows were boarded up and the aluminum frames concealed by the time Miller inspected defendant’s apartment, he did see pictures of the outside of the building taken after the fire which showed no damage to the frames in the bedroom area.

Regarding the television set, Miller indicated that a television in the “off” position could catch fire only if it had an “instant on” feature. Regarding the lamp, Miller explained that when the switch is off, and the cord is plugged into an outlet, there is voltage running through the cord which might give a shock, but there is no electricity in the cord. Further, if a fault occurs between a receptacle and a switch, a resulting arc would generate substantial heat. Faults can develop over a period of time or occur spontaneously. However, when a fault causes an arc in a wire, there is some physical evidence of the occurrence at the receptacle, i.e., loss of ductility in the building wiring and discoloration on the copper conductive material. If an arc occurs near the lamp itself, the heat will usually burn the insulation off the cord all the way back to the receptacle. In defendant’s apartment, there had been on indication of arcing at the receptacles.

On redirect, Miller explained that when a television ignites, there is an open flame. Similarly, when arcing occurs, it generates a temperature in excess of 1900° F. which would immediately ignite materials in the vicinity, including the insulation material on the wiring, and cause an open flame, very little smoke and an odor. In Miller’s opinion, a smoldering fire caused the oxygen deficient atmosphere in the apartment. The source of the smoldering fire would have to have been a source of energy that would be long-term in order to ignite fire-retardant materials that do not readily burst into an open combustible flame. Miller indicated that he would not expect a black and white television such as defendant’s to smolder and cause a room to become oxygen deficient.

Next, Michael Boden, airline pilot and former tenant in the same building in which defendant resided, testified that prior to December 10, 1974, he had met with defendant twice for approximately 15 minutes each time to discuss the sale of defendant’s couch and carpeting. At both of these meetings, Boden observed defendant’s speech, complexion, and manner of walking and moving. On the night of December 10, 1974, approximately 11 p.m., Boden rode the apartment elevator with defendant from the lobby to the seventh floor where defendant exited. At that time, Boden noticed that defendant had an extremely flushed complexion, drooping eyelids, a generally slow manner and was leaning against the corner of the elevator. Further, when greeted by Boden, defendant mumbled an incomprehensible reply and did not make any eye contact. When Boden queried defendant as to their ongoing negotiations regarding the purchase of carpeting and furniture, defendant indicated that he did not want to discuss it at that time. Based upon his experience and training in detecting unusual aberrational behavior such as intoxication, Boden was of the opinion that defendant was intoxicated on the evening of December 10, 1974.

On cross-examination, Boden stated that at his meetings with defendant, defendant spoke slowly and distinctly, with a Cuban accent. When Boden saw defendant in the elevator on December 10, he did not notice defendant staggering nor did he smell liquor on his breath. Boden admitted that there was nothing unusual about a person leaning against the wall of an elevator, but, in light of defendant’s imminent move from the building, he did find it unusual that defendant did not want to discuss the sale of his couch and carpeting.

Pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102), defendant was then recalled as an adverse witness and testified that on the evening of December 10, 1974, he had had two glasses of wine with dinner. Further, defendant stated that he has been drinking wine with his dinner for 35 years and it does not make him intoxicated. He had had nothing to drink before or after dinner that evening.

Defendant’s case

On direct examination, defendant testified that the black and white television which he had at the time of the fire was the type whose picture came on “right away.” Defendant denied dropping a lit cigarette into his sofa on the night of December 10, 1974.

On cross-examination, defendant stated that he had purchased his television in approximately 1966 and that, at the time of the fire, it was in good condition, never having been repaired. On the night of December 10, 1974, the television was plugged into an outlet, although he was not sure which one. He did not see the television or anything else burning when he was awakened by shortness of breath.

Next, Ronald Drash, ex-fireman, testified that on December 10, 1974, while assigned to arson investigation for the Chicago fire department, he and his partner, Andrew Blaine, responded to the fire in question, and visually examined defendant’s apartment for approximately one-half hour. Based upon his training in the determination of cause and origin of fires, Drash was of the opinion that careless use of smoking materials caused the fire. At this point in the testimony, defense counsel moved that Drash be declared a hostile witness on the ground that defense counsel had called Drash in good faith and had been adversely surprised by his testimony. Outside the presence of the jury, defense counsel argued that in Brash’s deposition, he had stated that the fire could have been caused by either a cigarette or electrical malfunction. Further, when defense counsel spoke to Drash at his home a few days before trial, Drash had confirmed his opinion as to the two possible causes. At trial, however, he limited the cause to only a cigarette. The court denied defense counsel’s request on the ground that Drash had not categorically denied that there might be other causes and stated that when a witness gives a statement which is inconsistent with a prior statement, he does not automatically qualify as a hostile witness.

When questioning resumed in the jury’s presence, Drash stated that he was not aware of an opinion that there could be another cause of the fire. Defense counsel then renewed his motion which the trial court granted. Thereafter, during defense counsel’s cross-examination of Drash, Drash admitted to making the statements contained in the deposition, but stated that when defense counsel reread the deposition to him at his home several days before trial, he had stated that he did not understand the questions. He admitted that he had seen the remains of a television at the scene of the fire, but did not examine the inside of it. He did not recall seeing any lamps or electric cords, but did make a visual inspection of the heating unit.

Upon examination by plaintiffs’ counsel, Drash stated that, based upon his investigation of defendant’s apartment, he was of the opinion that the fire started on the “overstuffed couch” located in the northwest corner of the apartment. This opinion conforms to the report written by Drash and Blaine immediately after the fire.

Thereafter, defendant moved for a directed verdict on all three counts. The trial court denied the motion as to counts I and II, and allowed the motion as to count III, wilful and wanton misconduct.

Next, William Alletto, battalion fire chief for the Chicago fire department, testified as a rebuttal witness on behalf of defendant and stated that he had accompanied defense counsel to Brash’s home a few days before trial and observed the conversation between Drash and defense counsel. At that time, Drash indicated that he did not have an exact opinion as to the cause of the fire and that the questions and answers in the deposition were true and correct. Alletto did not hear Drash state that he did not understand the questions.

On cross-examination, Alletto admitted that he was paid by defense counsel to accompany him to Drash’s home and to testify at trial. Alletto took no notes of the conversation between defense counsel and Drash, made no tape recording, and there was no court reporter present.

Thereafter, the defense rested its case and plaintiffs moved for a directed verdict as to counts I and II and a directed finding as to plaintiff’s contributory negligence. The trial court denied the motion for a directed verdict and reserved its ruling on contributory negligence. Following plaintiffs’ rebuttal testimony and offers of proof given outside the presence of the jury, the court denied plaintiffs’ and defendant’s respective motions for a directed verdict and also denied defendant’s request for a rehearing on his motion to strike count II. In addition, the court granted plaintiffs’ motion for a directed finding as to plaintiffs’ contributory negligence on the ground that there was insufficient evidence to support the allegation. Following closing arguments, the jury returned with separate verdicts as to counts I and II, finding for plaintiffs and against defendant on each count. The trial court subsequently denied all post-trial relief and defendant’s timely appeal followed.

Opinion

At the outset, plaintiffs contend that this court lacks jurisdiction to review the substance of this appeal because defendant’s notice of appeal was directed solely to the jury verdict judgment and not to the subsequent denial of defendant’s post-trial motion.

Supreme Court Rule 303(c)(2) (87 Ill. 2d R. 303(c)(2)) states that the notice of appeal “shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court.” While this requirement is considered to be jurisdictional, it is widely recognized in Illinois that the appellate court does not lose its jurisdiction because of technical errors which do not otherwise prejudice the parties. (Peluso v. Singer General Precision, Inc. (1977), 47 Ill. App. 3d 842, 851, 365 N.E.2d 390.) In Peluso, the relief requested in appellant’s brief differed from that requested in their notice of appeal. Relying on National Bank of the Republic v. Kaspar American State Bank (1938), 369 Ill. 34, 15 N.E.2d 721, the Peluso court found that the discrepancy was merely a technical error and that defendants had been clearly apprised as to the substance of the appeal and, thus, were not prejudiced.

Similarly, in Karris v. Water Tower Trust & Savings Bank (1979), 72 Ill. App. 3d 339, 389 N.E.2d 1359, appellants’ notice of appeal prayed for reversal of the judgment entered on April 7, 1977, but failed to specify that the appeal was directed at both of the orders entered on that date. The court held that both orders were part of the final disposition of the issues and that appellees were “fairly and adequately notified of the judgment complained of and the relief sought.” 72 Ill. App. 3d 339, 356.

After careful review, we find that plaintiffs’ reliance on Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc. (1979), 78 Ill. 2d 56, 398 N.E.2d 3, and Behner v. Hand (1962), 190 Kan. 443, 375 P.2d 627, is misplaced. In Illinois Central Gulf R.R. Co., appellant’s notice of appeal sought review of the summary judgment order entered on April 5, 1978, and did not mention the earlier order of December 6, 1977, which dismissed the counterclaim. As a result, the appellate court ruled that the propriety of the dismissal order was not properly before it. Unlike in our case, the two orders were not essentially duplicative and the appeal of one order could not be said to have put appellees on notice as to the appeal of the second order. In Behner, appellant failed to file a motion for a new trial, or if he did so, failed to appeal from the trial court’s order overruling that motion or to specify such ruling as error. Based on “a long-standing rule” of the court, the Kansas supreme court held that “when an appellant seeks to have this court review alleged trial errors, he must appeal from the order overruling his motion for a new trial, and, in addition, must specify such ruling as error. He must do both.” Because Illinois law does not follow this rigid approach to technical errors in a notice of appeal, Behner is unpersuasive and noteworthy only for comparative purposes.

Under the circumstances present in this case, it cannot be argued that the jury verdict judgment, specifically noted in the notice of appeal, does not encompass all those points of error raised in defendant’s post-trial motion. Therefore, we find that plaintiffs were sufficiently notified of the substance of the appeal and, consequently, suffered no prejudice from defendant’s technical error.

We next address defendant’s contention that pursuant to Illinois law, a landlord has no cause of action against a tenant for fires occurring during the term of the lease on the theory that the tenant is a third-party beneficiary of the landlord’s fire insurance policy. This contention was initially raised prior to trial in defendant’s motion for partial summary judgment against plaintiff-landlord and was denied.

We find In re Estate of Enoch (1964), 52 Ill. App. 2d 39, 201 N.E.2d 682, and Logan v. 3750 North Lake Shore Drive, Inc. (1974), 17 Ill. App. 3d 584, 308 N.E.2d 278, dispositive of the issue. In In re Estate of Enoch, an action was brought to reopen a closed probate estate in order that the petitioner might prove that she was the common law wife of the deceased and thus have the table of heirship revised so that she could claim a widow’s rights in the estate as provided for in the statutes. During the time she was making her offer of proof, petitioner referred to an affidavit which had been filed as an exhibit in the prior summary judgment proceeding but which had not been offered in the hearing before the court. The court stated that it could not properly consider documents which were a part of the summary judgment proceeding unless they were re-offered as evidence in the present hearing. On appeal, the reviewing court noted that while there are exceptions to the trial court’s statement, the exceptions require that the documents be formally offered and authenticated at the time of the hearing before they can be considered by the court. 52 Ill. App. 2d 39, 50-51.

In Logan, plaintiff-lessee brought an action against lessor corporation seeking a declaration of her rights relative to the subletting of her apartment and for damages for defendant’s refusal to consider and approve a prospective sublessee. Prior to trial, plaintiff-lessee’s motion for summary judgment was denied. Subsequently, the trial court dismissed the proceedings on the ground that plaintiff had failed to introduce sufficient evidence to establish a prima facie case for relief in the nature of declaratory judgment or for the assessment of any damages against the defendant. In reversing the trial court’s decision, the appellate court noted that defendant failed to introduce as evidence at trial those documents which were part of the summary judgment proceeding. As a result, the appellate court was precluded from considering those documents on appeal. 17 Ill. App. 3d 584, 590.

In the present case, the record indicates that defendant did not raise his exculpatory defense in the pleading; no testimony was offered to authenticate the lease at trial; and the lease was never offered into evidence at trial. Although the lease does appear in the record as an exhibit to defendant’s motion for summary judgment, this does not constitute evidence. (Giddings v. Williams (1929), 336 Ill. 482, 488, 168 N.E. 514.) Defendant admits that he neither raised the lease provisions as a defense nor admitted the lease into evidence, but rationalizes his omission by stating that to raise the lease as a defense at trial after the trial court had already denied the summary judgment motion as a matter of law would have been pointless. In making this argument, defendant overlooks the most important reason for raising the defense at trial: to preserve the issue for appeal. (Banwart v. Okesson (1980), 83 Ill. App. 3d 222, 403 N.E.2d 1234.) Accordingly, we conclude that defendant has waived review of the lease provisions by failing to plead, offer proof upon or raise the issue of exculpatory language during the evidentiary trial. Our decision as to waiver obviates the need to discuss the substantive aspects of exculpatory lease language as a bar to liability.

We next address defendant’s contention that admission of evidence regarding defendant’s consumption of alcoholic beverages on the evening of the fire was reversible error because there was no evidence of defendant’s intoxication.

Evidence of alcoholic consumption is so prejudicial that more than mere drinking must be shown. Instead, actual intoxication must be established, indicating physical or mental capabilities. (Wagner v. Zboncak (1982), 111 Ill. App. 3d 268, 270, 443 N.E.2d 1085.) Whether a person is intoxicated are facts patent to the observation of all without the necessity for peculiar scientific knowledge and may be proven as other facts are proven, by the exercise of the perceptive facilities of the witness. (Nystrom v. Bub (1962), 36 Ill. App. 2d 333, 346-47, 184 N.E.2d 273; Schneider v. Kirk (1967), 83 Ill. App. 2d 170, 226 N.E.2d 655.) Further, intoxication may be shown by opinion evidence or by evidence of drinking intoxicants plus unusual behavior. (McCullough v. McTavish (1978), 62 Ill. App. 3d 1041, 1044, 379 N.E.2d 890.) Whether a person is intoxicated is a question of fact for the jury and it is in their particular province to decide from all of the evidence where the truth lies. Suppe v. Sako (1941), 311 Ill. App. 459, 467, 36 N.E.2d 603.

In the case at bar, prior to trial, the trial court granted defendant’s motion in limine which prohibited plaintiffs from introducing any evidence of consumption of alcohol without first establishing indicia of intoxication. Contrary to defendant’s position, the trial court did not reverse its ruling on this motion when it allowed testimony as to defendant’s consumption. Rather, prior to defendant’s admission that he had had two glasses of wine at a dinner party that evening, Michael Boden testified that, in his opinion, defendant was intoxicated that evening. In support of his opinion, Boden stated that defendant had an extremely flushed complexion, drooping eyelids, generally slow manner, inarticulate verbal responses, drooped head, and made no eye contact during attempted conversation. Once Boden testified as to the indicia of intoxication, plaintiffs could then properly introduce testimony - as to defendant’s consumption of alcoholic beverages that evening. Accordingly, because we find that evidence of defendant’s intoxication and consumption of alcohol were admissible, instructions relevant thereto were properly submitted to the jury.

We next address defendant’s contention that the trial court improperly limited his cross-examination of various witnesses as to possible causes of the fire. In particular, defendant focuses on his cross-examination of Donald Miller, causal investigative engineer, Andrew Blaine and Ronald Drash, firefighters. After a thorough reading of the record, we find no support for defendant’s contention.

Regarding Donald Miller: on direct examination, Miller testified that his investigation of defendant’s apartment eliminated the electrical system, heating system and the range and refrigerator as causes of the fire. In arriving at this conclusion, Miller testified in detail as to what he had examined and the condition of various significant items. On cross-examination, over plaintiffs’ objection, defendant was permitted to question Miller about the television as a possible cause of the fire. The court permitted such questioning on the condition that defendant would be introducing evidence to the effect that the television was an “instant on” type. Later, defendant was allowed to continue his pursuit as to the possibility that other furnishings or appliances could have caused the fire:

“DEFENSE: Mr. Miller, you do not know as a fact that none of the furnishings in here could have caused this fire, do you?
MILLER: I don’t understand your question. Furnishings are not a source of energy.
DEFENSE: Well, furnishings including lights, the TV, the lamp, hi-fi, any of the electrical appliances.
MILLER: Are you talking [about] those items that are sources of energy?
DEFENSE: Yes, sir.
MILLER: Yes, sir. I do know as a fact they did not cause it.
DEFENSE: Well, Mr. Miller, if the TV here in our hypothetical is an instant on and that caused fire, you would have to examine the TV to find out whether or not it was the cause, wouldn’t you?
MILLER: That’s not the only fact that I have to put together to say it was or was not the cause. There are many other factors in any given fire that have to be considered.
And if the other factors that are known automatically eliminate that -
DEFENSE: Well, sir, it is certainly a major factor, isn’t it, to examine the TV?
MILLER: Not necessarily, no.”

With respect to the lamp as a possible cause of the fire, defendant presented a hypothetical in which the lamp was plugged in and the switch was off. Miller then thoroughly discussed the potential energy in the wiring and the possibility of a fault. Defendant then presented another hypothetical in which a fault caused an arc in the wiring from the receptacle to the lamp. Miller stated that if that had occurred, there would have been evidence of loss of ductility and discoloration at the receptacle, both of which did not occur in this case. At this point, upon plaintiff’s objection, the court asked defense counsel if he expected to introduce any evidence of arcing. Defense counsel replied, “Your Honor, no one even investigated it here. I think we’re talking about a lot of speculation here.” Later, when defense counsel again hypothesized as to the occurrence of arcing, the following colloquy ensued:

“COURT: *** I’m concerned with the materiality of this evidence if there’s going to be no evidence of arcing.
DEFENSE: Well, Mr. Miller, let’s put in the hypothetical this all burns up in the cord when the plug -
PLAINTIFF: Excuse me, your Honor, still counsel has not answered your question as if [sic] he is going to introduce evidence of arcing later on.
DEFENSE: I have said how can we. No one even investigated.
COURT: Then I must sustain the objection.
PLAINTIFF: All right. And your Honor, can you also strike out all the previous testimony in this direct line as to arcing since he is not going to bring it in?
COURT: It is going to be difficult for the jurors to do.
They’ve sat and listened through this for the past several minutes and I’m not sure that the Court can adequately or properly tell them you are not to consider the last three or four questions and they will know which they are to consider and which they are not to consider.
I am going to refuse that request because of the logistic problem.”

Thus, it is obvious that even without the proper foundation (see Hahn v. Eastern Illinois Office Equipment Co. (1976), 42 Ill. App. 3d 29, 33, 355 N.E.2d 336), defendant was able to elicit extensive testimony regarding arcing as a possible cause of the fire before plaintiffs finally objected. In addition, contrary to defendant’s contention, we find extensive testimony by Miller on cross-examination regarding other possible causes such as the lamp and television set and, thus, conclude that the court did not improperly limit defendant’s cross-examination of Miller.

Regarding Andrew Blaine: the record reveals that defendant was given sufficient opportunity to query Blaine as to possible causes of the fire other than a cigarette. In fact, Blaine admitted that he had heard of television sets and electrical cords starting fires and further admitted that he had not examined any of the electrical appliances, hi-fi or the television set in defendant’s apartment. Further, although Blaine stated that with a reasonable degree of certainty he was able to determine that a cigarette was the cause of the fire, defense counsel was permitted to continue questioning Blaine as to other possible causes to the point that Blaine stated that anything is possible. Moreover, defendant was given ample opportunity to impeach Blaine’s testimony with statements from prior depositions. On recross, defendant continued to question Blaine as to alleged inconsistencies in his statements, at which point the following colloquy ensued:

“COURT: Are these the identical questions asked on cross-examination?
DEFENSE: Yes, but I am trying to bring up that he was mixed up on directions.
COURT: These are the identical questions that were asked of him on cross-examination. I am going to sustain the objection.”

Later, in chambers, the court further stated:

.“It seems to me what you are now asking is just a repeat of all this. If there is anything new, I will let you ask it; but if it’s the same, I am going to sustain the objection.”

Because defendant was given ample opportunity to query Blaine as to other possible causes as well as to impeach him with prior inconsistent statements, we do not find that defendant was improperly limited to his cross-examination of Blaine. See City of Aurora v. Hillman (1878), 90 Ill. 61, 66.

Regarding Ronald Drash: the record does not support defendant’s contention that he was not permitted to elicit information regarding other possible causes of the fire from Ronald Drash. On cross-examination as an adverse witness, Drash admitted that he had not examined defendant’s television set, and had not seen any lamps or electrical cords at defendant’s apartment. Further, he had made only a visual inspection of the apartment’s heating unit. During cross-examination, the court sustained plaintiffs’ objections to questions regarding the heating unit as a possible cause of the fire on the ground that no evidence had been introduced as to the heating unit being a cause of the fire. It is well established that it is error to allow an expert to testify as to hypothetical situations based on facts which have not been put into evidence. (Hahn v. Eastern Illinois Office Equip ment Co. (1976), 42 Ill. App. 3d 29, 33, 355 N.E.2d 336.) Accordingly, we find the trial court properly sustained plaintiffs’ objections regarding that line of questioning.

We next address defendant’s contention that the verdict was against the manifest weight of the evidence and that the trial court erred in denying defendant’s motions for directed verdict, judgment n.o.v. and new trial. Defendant argues that there was no probative evidence to support the submission of the negligence case to the jury because the testimony of plaintiffs’ only significant witnesses, the fire investigators, was impeached by the use of prior inconsistent statements.

In deciding whether to direct a verdict or to enter judgment n.o.v., it is incumbent upon the trial court to apply the standard enunciated by our supreme court in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, to the particular facts at bar. In the present case, when all the evidence is viewed in its aspect most favorable to plaintiffs, it cannot be said that it so overwhelmingly favors defendant that no contrary verdict based on the evidence could stand. In fact, in our opinion, it would have been highly inappropriate to direct a verdict in this case where there were numerous factual questions to be presented to the jury. David v. Black (1981), 98 Ill. App. 3d 1130,1131, 425 N.E.2d 4.

It is undeniable that many of these factual questions arose from circumstantial evidence. However, this in no way diminishes their importance in reaching a verdict. Where there is no eyewitness, a party has the right to prove his allegations by circumstantial evidence, which consists of proof of facts and circumstances from which the jury may infer other connected facts, reasonably following from the proven facts and circumstances. (Roth v. Meeker (1979), 72 Ill. App. 3d 66, 80, 389 N.E.2d 1248.) Only when there is a complete absence of probative facts with which to support the conclusion reached does reversible error occur. Lavender v. Kurn (1946), 327 U.S. 645, 90 L. Ed. 916, 66 S. Ct. 740.

In our opinion, the facts and circumstances in the instant case constitute a reasonable basis for the jury’s conclusion that defendant was responsible for the fire. The fire originated in defendant’s apartment; defendant lived alone; he had the only key; and he was the only person in the apartment from at least the early evening hours of December 10, 1974, to the time of the fire. The electrical system, heating system, range and refrigerator were eliminated by experts as probable causes of the fire. Three experts testified that in their opinion the cause and origin of the fire was careless use of smoking materials on the sofa in the living-dining area. Defendant testified that he might have smoked in his apartment during the late evening of December 10, 1974. In fact, defendant told one of the fire investigators on the night of the fire that he had returned from a party, smoked a cigarette while sitting on his sofa and dropped a lighted cigarette into the sofa. At trial, defendant did not deny making this admission. Rather, he stated that he could not recall what he had said to the investigators. Experts testified that burn and char patterns coupled with defendant’s description of the fire conditions when he awoke indicated a smoldering-type fire rather than an open flame-type which would have occurred from electrical arcing or ignition of a television set. Contrary to defendant’s position, his attempts to discredit the testimony of plaintiffs’ expert witnesses by the use of prior inconsistent statements were not grounds for a directed verdict. The credibility of the experts’ testimony remained a question for the trier of fact. Golden v. Big Bear Foods, Inc. (1968), 102 Ill. App. 2d 237, 248, 243 N.E.2d 730.

Relying on Systech Financial Cory. v. Vaughn (Tex. Civ. App. 1977), 558 S.W.2d 105, defendant argues that the evidence resulted in an improper determination based on pyramiding inferences. In Sys-tech, lessor instituted a suit against lessee alleging negligent use of smoking materials and, alternatively, negligent disposal of smoking materials by lessee. At trial, lessor introduced evidence showing that lessee was the tenant of the unit in which the fire originated, that lessee smoked, and that the fire started in a sofa in lessee’s living room. Further, a fire investigator testified that, in his opinion, the fire was caused by careless smoking on the sofa. At the close of lessor’s case, the trial court granted lessee’s motion for a directed verdict on the ground that there was “no probative evidence to support the submission of [the] negligence case to the jury.” (558 S.W.2d 105, 105.) In particular, the Systech court found that lessor was attempting to prove his case by pyramiding inferences, noting: (1) testimony revealed that lessee had spent very little time during the morning in question near the sofa where the fire originated; (2) testimony showed lessee sat on the opposite end of the sofa; and (3) there was no direct evidence that defendant was smoking on the sofa during the morning in question.

By contrast, in the present case, on the night of the fire, defendant admitted to the investigator that he had smoked that night while sitting on the sofa and had dropped his cigarette on the sofa. Further, at trial, defendant stated that if he had smoked in his apartment that night, he would have done so while sitting on the sofa. There was also direct evidence as to charring and bum patterns and as to defendant’s intoxicated condition on the evening of the fire. As a result, we conclude that there was ample probative evidence to support the submission of the case to the jury. Moreover, in light of the overwhelming evidence, both direct and circumstantial, we further conclude that the jury’s verdict as to count I was neither unreasonable nor arbitrary, but was fully supported by the evidence. (Brendel v. Hustava (1981), 97 Ill. App. 3d 792, 423 N.E.2d 503.) Accordingly, the trial court’s judgment will not be disturbed.

Finally, our decision to affirm based upon the negligence count obviates the need to discuss the res ipsa loquitor count, plaintiffs’ alternate ground of recovery (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1201(d)), and precludes discussion regarding plaintiffs’ cross-appeal which had been filed in the alternative only.

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

Affirmed.

LORENZ and MEJDA, JJ., concur.


author: JUSTICE SULLIVAN

text:
    BRUCE BRUNSFELD, Plaintiff-Appellant, v. MINEOLA HOTEL AND RESTAURANT, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—3011
    Opinion filed November 10, 1983.

      Harvey L. Walner & Associates, Ltd., of Chicago (Lawrence Schlam, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Howard T. Brinton and William F. Haley, of counsel), for appellee Mineóla Hotel and Restaurant, Inc.
    Roderick Bergin, of Chicago (Harvey N. Levin, of counsel), for appellee Mineóla Marine, Inc.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from a summary judgment for defendants in a personal injury action. The sole question for review is the propriety of that judgment.

Plaintiff was injured while operating a snowmobile on the frozen surface of Fox Lake, a public lake located in Illinois. He alleges that the accident occurred when his snowmobile went over a snow embankment and became entangled in a rubber tire marking the outer edge of a plowed area of the ice used for racing motorcycles (the track). In his amended complaint, he asserts that defendants “caused, created and constructed” the track; that they had a duty thereafter to maintain the track in a reasonably safe condition and/or provide adequate warnings of its existence; and that their breach of these duties proximately caused his injuries. A subsequent amendment adds a count alleging that defendants’ acts created a public nuisance, and that this nuisance endangered public safety and directly caused his particular injuries.

The pleadings, affidavits, and depositions of record establish that defendant Mineóla Marine, Inc. (Marine), is a foreign corporation engaged in boat maintenance and storage as well as the rental of docking space on Fox Lake during the summer months. Peter Jakstas is the president of Marine, and the land on which its business is situated is leased from Emily Jakstas, Peter’s mother. Mineóla Hotel and Restaurant, Inc. (the hotel), is an Illinois corporation engaged in the operation of a bar and restaurant located near the shoreline of Fox Lake. Emily Jakstas is the hotel’s president, and Paul Jakstas (her son) is its secretary. Marine and the hotel are located on adjoining parcels of land. For a number of years, motorcycle racing has taken place on the ice of Fox Lake, in an area of the lake known as Mineóla Bay.

Peter Jakstas stated in his deposition that from May through October, Marine places docks extending from the shoreline in front of its place of business into the waters of Fox Lake. From November through April the docking materials, including rubber tires, are removed from the water and stored outdoors along the shore. On occasion, racers borrowed the tires to mark the inner edge of the track. Similarly, a plow-equipped jeep owned by Marine was borrowed occasionally by the racers to plow the track, but had not been so used for at least one month prior to plaintiff’s accident. Once the track was cleared and the tires placed, it would remain that way from week to week, although races took place only on Sundays. Marine did not receive any payment for the use of its equipment, and the loan thereof was done as a favor, not to aid its business. Peter Jakstas further stated that he was one of the rescue workers called to aid plaintiff on the night in question, and that the accident occurred opposite the hotel several hundred yards from shore. He also averred that Marine never owned, leased, controlled, or held any rights in Fox Lake or any portions thereof; and that neither he nor any employee of Marine was involved in owning, designing, constructing, maintaining, supervising, or controlling the track, nor did they participate in promoting or supervising the activities thereon.

The affidavit of Emily Jakstas states that the hotel never owned, leased, controlled, or held any rights to Fox Lake or any portion thereof; that it did not own, lease, or control any equipment capable of creating the track; and that its employees and agents had never been involved in owning, designing, constructing, maintaining, supervising, or controlling the track nor participated in promoting or supervising the activities thereat.

Daniel Schmitt stated in a deposition that motorcycle races had been held on the ice on Sundays for at least 10 years, and that he had participated therein for six years. Prior to and at the time of the accident, the races were not formally organized events; whoever had a truck would plow the ice, and various racers would bring tires to mark the outer edges of the track, then remove the tires after racing was completed for the day. On occasions, racers and spectators would patronize the hotel’s bar and restaurant before, during, and after the races, and the Jakstas were aware that the races were being held. During that time, racers would occasionally place money in a pot, and the day’s winner would receive the proceeds. When the races became more organized in late 1978 or early 1979, a racing fee was charged and would be collected by participants, sometimes while sitting in the bar. Racers and spectators would park in the hotel’s parking lot or a lot owned by an adjacent condominium association and would work on their motorcycles in the lots, if necessary. Access to the track was over land owned by the condominium association. The Jakstas never told racers that they could not use the ice in front of the hotel for racing or that they could not use its premises while organizing the race. No one asked them to clean debris from the area, but they always did so and, to his knowledge, tires were always removed from the ice after racing was completed. On one occasion, he (Schmitt) placed a sign advertising a race on the wall inside the hotel’s bar; Emily Jakstas allowed any organizations or individuals to put up signs advertising their activities.

Based on the pleadings, affidavits, and depositions, the trial court granted defendants’ motion for summary judgment. A subsequent motion to vacate that order was denied, and this appeal followed.

Opinion

Summary judgment is proper only where the right of the moving party thereto is “clear, free from doubt, and determinable solely as a matter of law” (Marciniak v. O’Connor (1981), 102 Ill. App. 3d 381, 386, 430 N.E.2d 536, 539); that is, if the pleadings, depositions, exhibits, and affidavits of record, when construed most strongly against the movant (Patel v. Burke (1981), 102 Ill. App. 3d 554, 430 N.E.2d 162) reveal that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law (Martin v. Hertz Corp. (1982), 104 Ill. App. 3d 592, 432 N.E.2d 1262). Thus, in ruling on a motion for summary judgment, the trial court looks beyond the pleadings of the parties; even where those pleadings seem to raise issues of fact, summary judgment is appropriate if those issues are not supported by evidentiary facts. Bennett v. Raag (1982), 103 Ill. App. 3d 321, 431 N.E.2d 48.

With regard to count I of the complaint, alleging negligence, the trial court ruled that plaintiff had failed to establish any duty owed to him by defendants. Of course, the existence of a duty is an element of a cause of action for negligence (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267) and is a question of law to be determined by the trial court (Laufenberg v. Golab (1982), 108 Ill. App. 3d 133, 438 N.E.2d 1238). When the pleadings, depositions, and affidavits fail to establish an element of plaintiff’s cause of action, summary judgment is proper. (See Schuman v. Pekin House Restaurant & Lounge (1981), 102 Ill. App. 3d 532, 430 N.E.2d 145.) In the instant case, it is difficult to find the existence of any legal duty. The mishap occurred on public recreational lands several hundred yards from defendants’ premises. There is no allegation that the property in question was the normal means of ingress and egress for defendants’ businesses, and it appears that they did not create, construct, or maintain the condition thereon which purportedly caused plaintiff’s injuries. Nevertheless, we will examine the theories upon which plaintiff relies to establish the existence of a legal duty.

Plaintiff first contends that defendants voluntarily assumed a duty of care, relying on the well-established rule that “liability can arise from the negligent performance of a voluntary undertaking.” (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74, 199 N.E.2d 769, 773.) He argues that assumption of a duty to him can be inferred from the facts that (a) both defendants knew of the existence of the track, the use of the lake by snowmobilers, and the potential danger posed by the track; (b) Marine knew that its tires were occasionally used by motorcyclists to warn snowmobilers; and (c) the hotel warned its customers to clear debris from the track and provided a place for its disposal.

We find plaintiff’s arguments to be without merit. Even a casual reading of the authorities upon which he relies establishes that mere knowledge of a dangerous condition does not constitute assumption of a duty of care. (See, e.g., Hubbard v. Aetna Insurance Co. (1976), 37 Ill. App. 3d 666, 347 N.E.2d 396.) The underlying assumption in plaintiff’s argument is that defendants had a duty to act on their knowledge; in effect, that they had a duty to assume a voluntary duty. Even if defendants did know of the danger posed to snowmobilers, a fact not established by this record, mere knowledge of a hazardous condition does not give rise to a duty to correct it where a defendant is not responsible for the existence of that condition. (Cf. Hubbard v. Aetna Insurance Co. (insurance company which discovered hazardous conditions during safety inspection and notified insured thereof not liable for insured’s failure to remedy the condition); Fugate v. Galvin (1980), 84 Ill. App. 3d 573, 406 N.E.2d 19 (passenger who knew of driver’s intoxicated condition not liable in negligence for failing to prevent him from operating vehicle).) Nor are we persuaded that the hotel assumed a duty by suggesting that its customers remove debris from the ice. The hotel had no right to control its customers’ actions once they were off the premises and therefore had no duty to control that conduct. See Restatement (Second) of Torts sec. 315 (1965); Fugate v. Galvin.

Plaintiff’s alternative argument on this point is equally frivolous. He posits that “a foreseeably dangerous result of their business activities was the continuing unnatural condition on public lands which injured plaintiff.” In support thereof, he cites numerous cases holding that businesses have a duty to provide a safe means of ingress and egress for their business invitees (e.g., Cooley v. Makse (1964), 46 Ill. App. 2d 25, 196 N.E.2d 396), and that an owner of land abutting a public sidewalk may be liable for a dangerous condition created by his use of the sidewalk for his own purposes (e.g., McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345, 272 N.E.2d 369).

Here, it does not appear from the record that the surface of the lake was a means of ingress or egress to defendants’ businesses; and, in any event, plaintiff was not a business invitee. Moreover, neither Marine nor the hotel created the condition which allegedly caused plaintiff’s injury. Nevertheless, plaintiff makes the argument that “defendants, in the course of their business, have taken advantage of the frozen surface of Fox Lake for the special economic benefit and convenience of their abutting property by actively supporting the maintenance and use of the motorcycle racetrack.” He points to the fact that “on some occasions” Marine’s equipment was used to plow the ice and its tires were used to mark the track; however, he fails to explain how this was “an adjunct of” Marine’s business operation, or how Marine “benefitted economically.” The deposition of its president states that no economic benefit was received, and that the track had no connection with its business; plaintiff has not rebutted this assertion by showing any facts to the contrary. Moreover, there is nothing in this record to establish that Marine’s equipment had been used at the time of plaintiff’s injury or that his mishap was caused by any tire, let alone a tire provided by Marine.

Plaintiff proposes with regard to the hotel that it be held liable because it allowed the racers to patronize its bar and restaurant and use its parking lot. However, he does not cite, nor has our own research discovered, any case holding a defendant liable for the off-premises activities of its customers, which is essentially what plaintiff asks that we now hold. In determining whether some new legal duty should be created, we traditionally consider the probability or foreseeability of injury, “the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.” (Johnson v. Chicago Housing Authority (1980), 92 Ill. App. 3d 301, 302, 416 N.E.2d 38, 39.) If we were to hold that places of business which benefit economically from the existence of a publicly owned ree-reational facility in close proximity to their premises are liable for the off-premises actions of their customers in utilizing those facilities; then, to protect themselves, they would be forced to maintain the recreational area, to place appropriate warning signs, and to monitor and control the actions of all who used those public facilities. We do not believe that the law does or should impose such a heavy burden upon such places of business.

With regard to count II of plaintiff’s complaint, he argues that the track was an actionable purpresture or public nuisance for either of which defendants were liable, and summary judgment as to that count was therefore improperly granted.

A purpresture is an encroachment upon public lands for a private use (Hibbard, Spencer, Bartlett & Co. v. City of Chicago (1898), 173 Ill. 91, 50 N.E. 256) which may be abated upon an action either by the sovereign (Revell v. People (1898), 177 Ill. 468, 52 N.E. 1052) or by an individual who can show a special injury not suffered by the public in general (Mamolella v. First Bank (1981), 97 Ill. App. 3d 579, 423 N.E.2d 204).

It appears from the above-cited cases that the only action authorized is one for abatement of the purpresture; in none of those cases was the cause of action one for damages. Moreover, assuming ar-guendo that an action for damages would lie, plaintiff has not established that defendants caused the encroachment in question. His sole argument concerning Marine is that it maintained a pier extending into Fox Lake during the summer. Even if that pier could be considered a purpresture, it was not in place at the time of plaintiff’s injury, did not cause his injury, and is therefore totally irrelevant. With regard to the hotel, he contends that it allowed race participants and spectators to use its facilities, that this use “extended their business activities to encompass and exploit the weekly attraction of the motorcycle races,” and that “[t]his continuous exploitation of the adjoining lake for business purposes constituted an encroachment.” This argument is without merit. A purpresture is a physical thing; an enclosure or an obstruction placed on public lands (Mamolella) — here, the track. It is abundantly clear from the record that the hotel had nothing whatsoever to do with the placement of that track; it did not build it, maintain it, or control it. All that plaintiff’s allegations establish is that the hotel served customers who walked in and placed an order; that it allowed those customers to use its parking'facilities; and that it did not place any restrictions on what those customers talked about while on the premises or what they did off the premises. Those actions are not, by any stretch of the imagination, a physical obstruction of public lands.

It is apparently plaintiff’s position that, but for these activities, the track would not have been placed where it was and he would not have been injured by it. However, there is no evidence in the record before us which even remotely tends to show that the track was located where it was because the hotel was willing to serve the racers food and drink. It is just as logical to assume from these facts that the racers placed the track in Mineóla Bay because it was physically well-adapted to their sports activities, and they thereafter started patronizing the hotel because it was close to their chosen recreational area. For all of these reasons, we find that plaintiff’s contention that a purpresture was created by defendants is unsupported by law, fact, or logic, and summary judgment thereon was therefore proper.

Finally, plaintiff contends that the track was an actionable public nuisance; however, once again, he points to no act, structure, or device within defendant’s control which could constitute such a nuisance. The creator of the nuisance is liable therefor (City of Chicago v. Stern (1981), 96 Ill. App. 3d 264, 421 N.E.2d 260), as may be a person who continues or maintains a nuisance created by another (29 Ill. L. & Prac. Nuisances sec. 43 (1957)); but where it is not shown that a person created or continued a nuisance or that he owned, maintained, or controlled the premises on which it exists, such person has no responsibility therefor. (See City of Chicago v. Stern; Maisenbach v. Buckner (1971), 133 Ill. App. 2d 53, 272 N.E.2d 851.) The numerous cases cited by plaintiff are distinguishable, as in them the basis for nuisance liability was either the defendant’s act, structure, or device.

Finally, plaintiff apparently acknowledges that the facts before us do not support a theory of liability based on nuisance, since he argues no facts in support of his contention. Instead, he asks us to remand this cause to give him “reasonable time” for discovery, asserting that he may still be able to prove that this track “may be held to flow from or be the responsibility of defendants’ business activities.” In the first place, we believe that the facts already before us establish precisely the contrary, as we discussed in regard to plaintiff’s purpresture theory. In addition, plaintiff has had over four years in which to conduct discovery and develop his concept of the case. We realize that the count alleging nuisance was added late in the proceedings, apparently in an attempt to keep this lawsuit alive after the trial court found that he had not established any duty on the part of defendants which would support a cause of action in negligence. However, plaintiff never asked for an extension of time to conduct further discovery, nor did he indicate in any way to the trial court that further discovery was necessary or desired. Under such circumstances, we reject his request to remand for further discovery.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

WILSON, P.J., and MEJDA, J., concur.

      throughout his brief, plaintiff ascribes the hotel’s actions to Marine and vice versa, based on his conclusory statement, unsupported by the record and not even alleged in the pleadings, that they are “owned and controlled by interlocking, closely held, ‘family’ corporations.” We have searched this record in vain for evidence which would support plaintiff's assumption of fact in this regard. In the absence of that evidence, we shall consider them as separate corporations responsible only for their own actions.