author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL REPPA, Defendant-Appellant.
    First District (3rd Division)
    No. 80-1664
    Opinion filed March 17, 1982.

      Ralph Ruebner and Bradley S. Bridge, both of State Appellate Defender’s Office, of Chicago, and Elaine Somogyi, law student, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and David S. Shapiro, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a jury trial, defendant, Paul Reppa, was convicted of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2) and sentenced to 20 years in the Department of Corrections. On appeal defendant argues that (1) he was not proved guilty beyond a reasonable doubt; (2) he was not adequately represented by counsel; (3) admission of evidence of; another crime constituted error; (4) he was prevented from testifying as to his state of mind at the time of his arrest; (5) he was prevented from testifying that he pleaded guilty to prior offenses used by the State for impeachment; (6) his motion for mistrial should have been granted where certain items found by the police were mentioned during an officer’s testimony but were not offered into evidence; (7) the court erred in giving an instruction regarding exclusive, unexplained possession of recently stolen property; and (8) the court erred in refusing to give instructions on theft tendered by defendant. We affirm.

Around 2 a.m. on August 29, 1979, a man wearing a ski mask and a green army jacket and holding a gun entered the Yale and Harvard Tavern at 204154th Place in Calumet City. The man took money from the cash register and from nearby drawers, including half dollars marked with red fingernail polish which the tavern owner gave to patrons to use in the jukebox. Shortly thereafter, a man similarly attired and also armed entered the Park View Inn at 248 153rd Place, Calumet City. In addition to taking currency, the robber took two personal checks and a small leather folder from the tavern’s owner.

The police responded to dispatch calls relating to the two tavern robberies. One officer saw a man running down an alley near the Park View Inn. The officer pursued the man but lost sight of him when he entered a yard. The man was then seen running across the street. The block was secured by various police officers, and a yard by yard search was conducted. As a result of this search, defendant was observed crouching under a porch. When defendant emerged, a green army jacket fell to the ground. A search of defendant and the jacket revealed large rolls of currency, half dollars with red marks on them, two checks and part of an old wallet. Defendant was placed under arrest.

At trial, defendant testified that while walking home around 2 a.m. on August 29, he saw a person come out of the Park View Inn, go down the alley, and toss his green army coat into a garbage can. Being curious, defendant went through the pockets of the jacket where he found some loose change and currency. As he began to proceed home, he saw a squad car with its lights flashing. Defendant fled down the alley and eventually hid under a porch because he did not feel safe when police were around.

Defendant first argues that he was not proved guilty beyond a reasonable doubt. He contends that the eyewitness testimony was weak and contradictory while his exculpatory testimony was corroborated. We disagree, since there was adequate evidence to prove defendant guilty beyond a reasonable doubt.

Although neither the owner of the Yale and Harvard Tavern nor the owner of the Park View Inn could identify defendant as the man who robbed their establishments, they both described the robber as wearing a green army jacket and ski mask and carrying a gun. They also described the items taken during the robbery. When defendant was arrested a short time after the robberies, he had a green army jacket and the stolen items with him.

The most direct evidence that defendant was the robber came from an “earwitness.” One of the patrons of the Park View Inn testified that he recognized the voice of the robber as that of defendant, whom he knew by the nickname Squirrel. The witness had known Squirrel for nine years and had heard his voice hundreds of times, the last time being approximately three months prior to the robbery. Although the witness could not immediately recall defendant’s proper name, he was able to associate defendant with a high speed chase to which he had been a witness. While there was some uncertainty as to whether this earwitness was able to identify defendant’s voice at the police station because it was distorted by an electronic device, the witness testified that he was positive he heard defendant’s voice in the tavern.

In addition, a police officer testified that he chased a suspect down an alley by the Park View Inn. Although he lost sight of the suspect, he soon saw the suspect run across the street. He subsequently arrested this suspect after finding him hidden under a porch. The officer recognized him from his height, general build and clothing as the man he had chased down the alley. This man was the defendant.

The jury, as trier of fact, has the task of determining the credibility of witnesses, the weight to be given their testimony and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733, 734.) The reliability of the identification testimony is clearly an issue of fact to be resolved by the jury. (People v. Jackson (1977), 69 Ill. 2d 252, 261, 371 N.E.2d 602, 606.) A jury is not required to accept the exculpatory statements of the defendant. (People v. Daniels (1979), 76 Ill. App. 3d 646, 651, 395 N.E.2d 163, 167.) Here, the evidence is merely conflicting, and we will not substitute our judgment for that of the trier of fact. People v. Akis (1976), 63 Ill. 2d 296, 298-99, 347 N.E.2d 733, 735.

Defendant next contends that he did not receive adequate representation. Specifically, defendant argues that his counsel’s decision to withdraw his motion to quash his arrest and to suppress evidence establishes his counsel’s incompetency. We disagree. Failure of counsel to file a motion to quash an arrest or suppress evidence is not per se incompetency. (See People v. Gray (1981), 95 Ill. App. 3d 879, 884, 420 N.E.2d 856, 861.) Competency must be determined from the total facts and circumstances of each case. (People v. Childs (1981), 95 Ill. App. 3d 606, 616, 420 N.E.2d 513, 521.) The question of whether or not a motion to quash an arrest or suppress evidence should be filed is generally considered to be a matter of trial strategy, and our review of counsel’s competence does not extend to this area. See People v. Hines (1975), 34 Ill. App. 3d 97, 100-01, 339 N.E.2d 489, 492.

Here, the record reveals that counsel for defendant did file a motion to quash the arrest and suppress the evidence recovered at the scene of the arrest. The fact that defense counsel subsequently withdrew the motion does not support defendant’s contention that he was incompetent. Before seeking leave to withdraw the motion, defense counsel informed the court that he had spoken with his colleague who had drafted the motion and with the State. This suggests that counsel’s decision not to pursue the motion was based on informed judgment and was a matter of trial strategy. Moreover, it is clear that defendant’s motion would not have been granted. The evidence shows that the arrest was legal since the police had reasonable grounds to believe that defendant had committed an offense (Ill. Rev. Stat. 1979, ch. 38, par. 107 — 2(c)) and that seizure of the evidence in the army jacket was proper since it resulted from a search of defendant’s immediate area for the purposes of protecting the officers from attack and discovering the fruits of the crime (Ill. Rev. Stat. 1979, ch. 38, par. 108 — 1(a), (c)). Defense counsel was not obligated to pursue specious claims of constitutional deprivation. (People v. Ruple (1980), 82 Ill. App. 3d 781, 787, 403 N.E.2d 129, 133.) Finally, a review of the record discloses that defense counsel performed in a competent manner during all phases of trial. For all these reasons, defendant’s argument regarding the incompetence of his counsel must fail.

Defendant also argues that reversible error occurred when the owner of the Yale and Harvard Tavern was permitted to testify regarding the armed robbery of his establishment since defendant was only being tried for the armed robbery of the Park View Inn. Generally, evidence of crimes other than the one for which the accused is being tried is not admissible. (People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489, 492.) Such evidence is admissible, however, if it fairly tends to prove the offense charged by placing the defendant in proximity to the time and place of the offense, aiding or establishing the perpetrator’s identity, or tending to prove design, motive or knowledge. (People v. Riley (1981), 94 Ill. App. 3d 775, 776, 419 N.E.2d 106, 108; see People v. Diaz (1979), 78 Ill. App. 3d 277, 279-80, 397 N.E.2d 148, 150.) Plainly, the evidence regarding the armed robbery of the Yale and Harvard Tavern falls within these exceptions. The armed robbery of that tavern occurred only minutes before the armed robbery of the Park View Inn, and defendant admits in his brief that the two robberies “were undoubtedly committed by the same person.” The decision as to whether the probative value of this other crime evidence outweighed any prejudicial impact it may have had was a proper subject for the trial court’s discretion, and we cannot say that the trial court abused its discretion in admitting this evidence. Furthermore, the jury was given a limiting instruction regarding the permissible use of this evidence. (See People v. Kirkwood (1980), 82 Ill. App. 3d 252, 260, 402 N.E.2d 677, 684.) We conclude that the other crime evidence was properly admitted.

In his next argument, defendant contends that he was denied a fair trial because he was prevented from testifying as to his state of mind at the time of his arrest. According to defendant, he was allowed to testify on cross-examination that he did not feel safe when the police were around but was not allowed to explain why during redirect examination.

The record reveals that on redirect examination, defendant was able to testify that he saw a police officer shoot a civilian in connection with a high-speed chase which occurred in 1975. Defendant was not involved in the arrest in that case. He testified for the police officer before the grand jury. Defense counsel then asked, “And the person that was shot was unarmed, right?” At this point, the prosecutor objected, and the objection was sustained.

We agree with defendant that evidence of defendant’s mental state at the time he fled was both competent and proper. (People v. Manion (1976), 40 Ill. App. 3d 362, 369, 352 N.E.2d 39, 45.) However, even if we were to conclude that the trial court erred when it sustained the prosecutor’s objection in regard to the question set forth above, defendant was not prejudiced by this error. Defendant’s testimony was sufficient to acquaint the jury with an explanation of his flight which was compatible with his innocence. (See People v. Davis (1963), 29 Ill. 2d 127, 131, 193 N.E.2d 841, 844.) Moreover, we cannot say that the outcome of the trial would have been different if the omitted testimony had been allowed in view of the overwhelming evidence presented against defendant. See People v. Wood (1977), 53 Ill. App. 3d 987, 990, 369 N.E.2d 209, 211, revd on other grounds (1978), 67 Ill. 2d 595.

Defendant also claims as error the fact that he was prevented from testifying that he had pleaded guilty to charges in other matters which were used by the State to impeach him, since this prevented him from rehabilitating himself. The decisions in People v. Ridley (1975), 25 Ill. App. 3d 596, 323 N.E.2d 577, and People v. Taylor (1979), 68 Ill. App. 3d 680, 386 N.E.2d 159, suggest that an accused should be permitted to show that he entered a plea of guilty to a prior offense and that when he was in fact guilty, he admitted it. However, while it may have been error for the court to have prevented defendant from informing the jury of the guilty pleas, this error does not require reversal of defendant’s conviction. In this case, defendant’s testimony that his prior convictions resulted from guilty pleas could not have so bolstered his credibility that the outcome of the trial would have been different had this testimony been allowed.

Next, defendant argues that his motion for mistrial should have been granted because the State elicited testimony from a police officer that the police had found a gun and hat, and the State failed to introduce either item into evidence. The testimony given by this officer during direct examination suggested that no gun or ski mask was found when the police searched the area following defendant’s arrest. During redirect examination, the officer was asked whether these items were recovered, arid he implied that they were. At this point, defendant objected, and the objection was sustained. The court further stated, “There will be no more conversation about it.” The State, however, proceeded to ask whether it was correct that these items were not found on the date of the robbery, and the officer replied, “That is correct.” Defendant again objected, and the court again sustained the objection and admonished the State that there would be no more discussion on this matter. Defendant then moved for a mistrial, and the court denied the motion. It also instructed the jury to disregard the officer’s testimony that a cap and gun were found subsequent to the date of the robbery, since nothing in the testimony indicated that these items had anything to do with this proceeding. The court concluded, “[Y]ou must strike that testimony from your minds and never consider it.”

Although the State should not have introduced testimony regarding the gun and ski mask since there was no evidence linking these items to defendant or to the crime (see People v. Liapis (1972), 3 Ill. App. 3d 864, 867, 279 N.E.2d 368, 370), and plainly should not have attempted to pursue this line of inquiry when the court had admonished it not to do so, the court did not err in denying defendant’s motion for mistrial. As soon as defendant objected to the questions posed by the State, the objections were sustained. Moreover, the jury was instructed in strong, clear language to disregard the improper testimony. We conclude that under the circumstances of this case, any error which may have resulted from this testimony was promptly cured. (People v. Outlaw (1979), 75 Ill. App. 3d 626, 646, 394 N.E.2d 541, 555.) In addition, defendant’s contention, made during oral argument, that defendant was prejudiced because the testimony gave rise to inferences that he was attempting to prevent the jury from hearing evidence and that the State had even more evidence than it presented is without merit. The court informed the jury that the testimony was being stricken because there was no connection between the items mentioned by the police officer and this case.

Another contention raised by defendant concerns the instruction given to the jury that if it found defendant had exclusive, unexplained possession of recently stolen property, it could infer that he obtained the property through armed robbery. (Illinois Pattern Jury Instructions, Criminal, No. 13.21 (2d ed. 1968).) In his reply brief, defendant withdrew that portion of his argument which dealt with the propriety of giving this instruction in light of the Illinois Supreme Court’s decision in People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151. Thus, we shall only address that portion of defendant’s argument which involves comments made by the prosecutor during his closing argument relative to this instruction.

Defendant argues that the prosecutor improperly argued to the jury that the inference arising from the exclusive, unexplained possession of recently stolen property “in and of itself is enough to convict the defendant of armed robbery.” We agree with defendant that this comment, as well as a similar statement made during the rebuttal portion of the State’s closing argument, was improper and erroneous. The inference of robbery based on unexplained, exclusive possession of recently stolen property is a permissive, not mandatory, inference. (See People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) The inference, standing alone, is insufficient to prove robbery beyond a reasonable doubt. (84 Ill. 2d 415, 423, 420 N.E.2d 151, 155.) It must also be shown that (1) there is a rational connection between defendant’s recent possession of property stolen during the robbery and defendant’s participation in the robbery, (2) defendant’s guilt of robbery is more likely than not to flow from his recent, unexplained and exclusive possession of robbery proceeds and (3) there is evidence corroborating defendant’s guilt. See 84 Ill. 2d 415, 424, 420 N.E.2d 151, 155; People v. Ross (1982), 103 Ill. App. 3d 883, 885-86.

Here, although the prosecutor erroneously told the jury that defendant’s possession of the currency, checks and coins taken during the robberies of the two taverns was sufficient to support a conviction, we conclude that this error does not warrant a reversal of defendant’s conviction. Immediately preceding the improper statement, the prosecutor informed the jury that it would be instructed by the court regarding defendant’s possession of stolen property. The court did, in fact, correctly instruct the jury on this point. In addition, immediately following the improper comment, the prosecutor stated that there was much more evidence to support a conviction and proceeded to discuss the other evidence. Therefore, the prosecutor’s argument in favor of conviction did not rely solely on the inference raised by defendant’s possession of recently stolen property. Since there was other evidence which was sufficient under the Housby criteria to support an inference of robbery from defendant’s possession of recently stolen property, and the jury was properly instructed by the court, we conclude that defendant was not prejudiced by the prosecutor’s remarks. It follows that the conviction should not be reversed because of the remarks. See People v. Radford (1978), 65 Ill. App. 3d 107, 113, 382 N.E.2d 486, 490-91.

Finally, defendant argues that the court erred when it refused to give theft instructions which he tendered, since the jury could have found him guilty of theft by obtaining control over stolen property. We disagree. In People v. Kimble (1980), 90 Ill. App. 3d 999, 414 N.E.2d 135, we held that a defendant cannot be convicted of theft if he has only been charged with robbery. In Kimble, we determined that theft is not an included offense of robbery. We therefore reject defendant’s contention that the jury should have been instructed on theft because it is an included offense of the crime with which he was charged, armed robbery.

Although we recognize that defendant’s trial was not free from error, we cannot say that the errors, whether considered individually or in total, denied defendant a fair trial. Accordingly, the judgment is affirmed.

Affirmed.

McNAMARA and McGILLICUDDY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, Trustee, Plaintiff-Appellee, v. ELIZABETH WARD BAILEY et al., Defendants-Appellees.—(JEAN MATILDA WARD MUSICK et al., Defendants-Appellants and Cross-Appellees; JENNIE FRANCES WARD STEWART et al., Defendants-Appellees and Cross-Appellants.)
    First District (4th Division)
    No. 81-129
    Opinion filed March 18, 1982.

      Chapman and Cutler, of Chicago (James N. Zartman and Raymond A. Fylstra, of counsel), for appellants.
    Paul A. Lutter and Robert W. Sacoff, both of Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago, for appellee Martha Jeane Shelhamer.
    Jay A. Canel, Lawrence A. Robins, and Don E. Glickman, all of Rudnick & Wolfe, of Chicago, for appellees Jennie Frances Ward Stewart, Edward Ward Stewart, Elizabeth Stewart, and Francis Edward Shelhamer.
    Lord, Bissell and Brook, of Chicago, for appellee Continental Illinois National Bank and Trust Company of Chicago.
    Gerber and Gerber, of Chicago, for other appellees.
   JUSTICE ROMITI

delivered the opinion of the court:

This case involves the construction of a will. Originally the property was placed in trusts divided among various children. The trust property of certain children has now been distributed and only property of certain other children remains in trust. Two of these children died recently without issue. According to the will, their trust property under such circumstances was to be added to and divided among the other “then existing shares or parts of my said trust estate.” The principal issue in this case is whether this language is to be literally enforced and the property divided only between the two shares of trust property still in existence or whether the property is to be divided among the heirs of all the children even though as to the others, the trusts terminated several years before the deaths of the children without issue. We agree with the trial court that the language of the will must be enforced as it is written and affirm. We also hold that the trial court erred in awarding attorney fees.

Edward J. E. Ward (testator) executed his will December 28, 1931. At that time he was 75; his wife was 80. There were eight living children.

They were:

NUMBER OF CHILDREN
NAME AGE IN 1931 IN 1931
Charles H. Ward 56 None
Samuel H. Ward 54 1
Mrs. Susan Shelhamer 52 2
Thomas H. Ward 48 5
Dora Ward 43 None
Mrs. Jennie F. Stewart 42 I
Mrs. Elizabeth Bailey 40 None
Mrs. Annie McKiernan 38 None

There was also one grandchild (Edward J. E. Ward II), son of another deceased child.

The will, after bequeathing the personal property to testator’s wife, left the rest of the estate in trust. The widow was to be paid $25,000 yearly out of the net income of the trust, and the balance of the net income of the trust during the widow’s lifetime was to be paid to the eight children. Immediately upon her death $25,000 was to be set aside for Edward J. E. Ward II. This amount was to be turned over to him at age 40. The rest of the trust was to be distributed as follows:

“Paragraph 6. (a) Immediately upon the death of my said wife, or after my death should she predecease me, and after my said Trustees (or Trustee) have set aside said trust fund for my said grandson, Edward J. E. Ward, II, provided the contingencies have arisen for establishing the same, then in the event that all of my said eight children, Charles H. Ward, Samuel H. Ward, Thomas H. Ward, Mrs. Susie Shelhamer, Mrs. Lizzie Bailey, Mrs. Annie G. McKiernan, Mrs. Jennie F. Stewart and Dora Ward, are living, my said Trustees (or Trustee) shall divide the balance of my said trust estate into eight equal shares or parts as nearly as practicable, or in the event of the death of any one or more of my said eight children prior to the death of my said wife, or prior to my death should she predecease me, leaving no lawful issue him, her or them surviving, then my said Trustees (or Trustee) shall divide the said balance of my said trust estate into as many equal shares or parts as the difference between eight and the number of my said eight children who shall have died prior to the death of my said wife, or prior to my death should she predecease me, leaving no lawful issue him, her or them surviving, and shall pay the net annual income in as nearly equal quarterly payments as possible from one of said shares or parts to each of my said children for and during the terms of their natural lives.
(b) In the event that one or more of my said eight children shall have died prior to the death of my said wife, or prior to my death should she predecease me, leaving lawful issue him, her or them surviving, then the said lawful issue of my said deceased child or children shall be alloted, per stirpes and not per capita, the share or part of my said trust estate to which his, her or their deceased parent or parents would have been entitled if living at the time of the death of my said wife, or at my death should she predecease me, and my said Trustees (or Trustee) shall pay the net annual income from the said share or part which has been allotted to the lawful issue of such child of mine so dying in as nearly equal quarterly payments as practicable for a period of twenty-one years after the death of such child of mine so dying, or twenty-one years after the death of the survivor of myself and my wife, whichever may be last, share and share alike, per stirpes and not per capita.
After the expiration of said period of twenty-one years, my said Trustees (or Trustee) shall convey, assign, transfer, set over and deliver the principal and all unexpended net income from the said share or shares, part or parts, which have been allotted to the said lawful issue of any such deceased child or children of mine, to the then living lawful issue of my said deceased child or children, share and share alike, per stirpes and not per capita, to be his, hers or theirs absolutely forever.
(c) In the event that the lawful issue of any one of my said deceased children should all die prior to the expiration of the said period of twenty-one years, then the principal and all unexpended net income of and from the said share or part to which such lawful issue would have been entitled if living at the expiration of the said period of twenty-one years shall become a part of the principal of my said trust estate and be divided as nearly equally as possible and added to the other shares or parts of my said trust estate. Paragraph 7. (a) Whenever, after the death of my said wife and after my said trust estate has been divided into shares or parts by my said Trustees (or Trustee) among my then surviving children and the lawful issue of any deceased child of mine, any one of my said children shall die without leaving lawful issue him, her or them surviving, the share or part, including all principal and unexpended net income therefrom which had been allotted by my said Trustees (or Trustee) to said child of mine so dying, shall become a part of my said trust estate and be divided as nearly equally as possible by my said Trustees (or Trustee) and added to the other then existing shares or parts of my said trust estate.
(b) When, however, after the death of my said wife and after my said trust estate has been divided into shares or parts by my said Trustees (or Trustee) among my then surviving children and the lawful issue of any deceased child of mine, any one of my said children shall die leaving lawful issue him, her or them surviving, the said lawful issue of my said child so dying shall be allotted, per stirpes and not per capita, the share or part of his or her deceased parent, and the annual income from said share or part and the principal and unexpended net income of said share or part of my said trust estate shall be conveyed, assigned, transferred, set over and delivered by my said Trustees (or Trustee) in the same manner and with the same limitations as are contained in sections (b) and (c) of Paragraph 6 of this my Will. It being my intention that the lawful issue of any of my said children who shall die after a share or part of my said trust estate has been allotted to any such deceased child of mine so dying shall be regarded as though this share or part had been originally allotted to such lawful issue, per stirpes and not per capita, under section (b) of Paragraph 6 of this my Will and that distribution of such share or part and of the net annual income therefrom be made to such lawful issue by my said Trustees (or Trustee) in accordance with said sections (b) and (c) of said Paragraph 6.”

Testator died June 28,1932. His wife died in January 1933. All of the eight children are now dead. They died as follows:

NAME DATE NUMBER OF CHILDREN
Charles H. Ward 1936 None
Samuel H. Ward 1951 1
Mrs. Susan Shelhamer 1971 2
Thomas H. Ward 1952 6
Dora Ward 1977 None
Mrs. Jennie F. Stewart 1981 1
Mrs. Elizabeth Bailey 1979 None
Mrs. Annie McKieman 1940 None

Since the trusts were to be distributed to the grandchildren 21 years after their respective parent’s death, the trust estates of the children of Samuel Ward and Thomas Ward, which each amounted to over $1 million, were distributed in early 1973 and June 1973 respectively. The trust estate of Susan’s children will not be distributed until 1992 and that of Jennie’s child not until 2002. In the meantime they are only receiving the net income for their respective shares.

Dora Ward and Elizabeth Bailey died in 1977 and 1979 respectively, without heirs. Under paragraph 7(a) of the will, their shares become part of the trust estate. Although the shares of Samuel and Thomas Ward had been distributed in 1973 and therefore were not “then existing” in 1977 and 1979 respectively, their heirs (the appellants here) contend that they are entitled to an outright distribution of one-fourth each (per stirpes) of Dora’s and Elizabeth’s shares. The trial court held that the provision was unambiguous and that the shares could only be added to the then existing trust estate, that is, the shares of Susan’s and Jennie’s children (the appellees here).

I

It is fundamental that in construing a will, the intention of the testator, as determined from the provisions of the will, is to be given effect unless contrary to law. (Weber v. Hawkins (1964), 30 Ill. 2d 278, 196 N.E.2d 695; Wiener v. Severson (1957), 11 Ill. 2d 347, 143 N.E.2d 225.) This intention is to be sought from the words actually used in the will. (Weber.) Here, as the lower court found, the language of the will is clear and unambiguous. Paragraph 7(a), which is the only provision applicable, clearly provides that the funds are to be distributed to the trusts then existing-, they cannot be distributed to trusts which used to exist but no longer do; they cannot be distributed as outright cash distributions as appellants seek. The provision of 7(a) differs markedly from the provision in paragraph 6(c), which applies only where issue of the children die without lawful issue within the 21-year period. That provision simply provides that such funds shall be divided and added to the other shares or parts of the trust estate. A will must be read and construed as a whole. (Feder v. Luster (1973), 54 Ill. 2d 6, 294 N.E.2d 293; Peters v. Gebhardt (1955), 6 Ill. 2d 534, 129 N.E.2d 731; Walters v. Mercantile National Bank (1942), 380 Ill. 477, 44 N.E.2d 429), and every word, phrase and clause given effect if possible. (Feder v. Luster (1973), 54 Ill. 2d 6, 294 N.E.2d 293; Davidson v. Davidson (1954), 2 Ill. 2d 197, 117 N.E.2d 769; In re Estate of Tognotti (1970), 128 Ill. App. 2d 120, 262 N.E.2d 803; Untz v. Untz (1979), 74 Ill. App. 3d 133, 392 N.E.2d 745.) Here the testator did not choose to treat the deaths of children without issue and grandchildren without issue in a similar fashion. Had he done so he could simply have referred to and adopted paragraph 6(c) in paragraph 7(a) as he did in paragraph 7(b). He did not. Instead he provided a different provision with different language and that language, being clear and unambiguous, must be enforced as written.

Continental Illinois National Bank & Trust Co. v. Llewellyn (1966), 67 Ill. App. 2d 171, 214 N.E.2d 471, appeal denied (1966), 33 Ill. 2d 627, relied on by the appellants, is not in point. In Llewellyn the will merely provided that in the event of the death of one of the children while part of the trust estate was being held for that child, the share “shall be added to the portions of Trust Estate to be distributed among the issue of my other children, as herein provided.” Reading this language as a whole, and emphasizing the words “portions * * * to be distributed ° ° ° as herein provided” the court held that the testator was not conditioning the application of such portion to the other portions of the trust upon these later portions still being in fact held for the issue of testator’s other children; rather, he was merely directing that the portions be distributed in accordance with other provisions of the will. The language emphasized in Llewellyn does not appear in paragraph 7(a), and the testator in Llewellyn did not limit application to the “then existing shares or parts of my said trust estate,” as the testator did here.

The appellants, relying on the presumption that the testator intended to dispose of his entire estate and not permit any part of it to pass by intestacy, citing Whitmore v. Starks (1959), 17 Ill. 2d 202, 161 N.E.2d 254, Caracci v. Lillard (1955), 7 Ill. 2d 382, 130 N.E.2d 514, Dalton v. Eash (1952), 411 Ill. 296, 103 N.E.2d 483, and First National Bank v. Wilmot (1971), 3 Ill. App. 3d 128, 278 N.E.2d 204, contend that the provision must be construed in their favor. This rule is inapplicable since there is no question of intestacy in this case. In each of the cases cited by appellants, one party was claiming the property did not pass by will and he was entitled to it by intestacy. In this case no one is claiming the property by intestacy.

The appellants, however, contend that the rule is applicable and dictates the construction in their favor. They contend that if the four of testators’ children who had issue had died first and the other four had died 22 years later, then one-half of the estate would have passed by intestacy. Furthermore, they contend that for all testator knew only one of his eight children might leave surviving issue. If that child died first and the other children died 22 years later without surviving issue, the 7/8 of the estate would have passed by intestacy. These contentions are not only contrary to what actually occurred, they are highly unlikely even as speculation as to what might have occurred. For the first hypothesis to occur, Charles, the eldest child, who was 56 when the will was executed, would have had to survive by 21 years the deaths of Jennie, Thomas, Susan and Samuel. Instead, as might have been expected, Charles died first and Jennie, the youngest child who had children, was the last of testator’s children to die (even surviving her two younger sisters who had no children). The second contention is even more unlikely since it presupposes not only that the oldest, Charles, would survive Jennie’s death by 22 years despite the 13-year difference in their ages but that a large number of grandchildren born before the testator executed the will would die prematurely, predeceasing their parents, aunts and uncles, that the sole child having children would die first and his or her siblings would survive the death by 22 years.

But even if we could accept the appellants’ argument that some of the property might have passed by intestacy, the presumption against intestacy cannot be indulged in to overcome the express language in a will. Where, as here, the language is clear, express and unambiguous, the court cannot distort the language of the will even at the price of partial intestacy. Whitmore v. Starks (1959), 17 Ill. 2d 202, 161 N.E.2d 254; Peoples Bank v. Hoffman (1949), 403 Ill. 463, 86 N.E.2d 185; Foss v. State Bank & Trust Co. (1931), 343 Ill. 94, 175 N.E. 12.

The appellants also contend that the disinheritance interpretation violates the rule that a peculiar or illogical scheme of distribution will not be followed where contrary to the clear intention of the testator (Continental Illinois National Bank & Trust Co. v. Llewellyn (1966), 67 Ill. App. 2d 171, 214 N.E.2d 471, appeal denied (1966), 33 Ill. 2d 627), and if two constructions are fairly possible, one of which indicates an absurd or unjust intention and the other indicates a reasonable and fair intention, the courts will give preference to that construction which indicates a fair and reasonable intention. (4 Bowe-Parker: Page on Wills §30.12 (1961).) But in this cause only one of appellants’ two constructions is reasonably possible. Likewise, even if the scheme of distribution is illogical or peculiar, it is not contrary to the clear intention of the testator as shown by the language of the will. This court must enforce this clear contention. Bergendahl v. Stiers (1956), 8 Ill. 2d 257, 133 N.E.2d 280; Peters v. Gebhardt (1955), 6 Ill. 2d 534, 129 N.E.2d 731; Wielert v. Larson (1980), 84 Ill. App. 3d 151, 404 N.E.2d 1111.

In addition, the appellants contend that the shares in question should be distributed among all the heirs because a construction conforming to the laws of inheritance will be favored over any other construction and equal treatment of descendents of equal degree is preferred. (Continental Illinois National Bank & Trust Co. v. Llewellyn (1966), 67 Ill. App. 2d 171, 214 N.E.2d 471, appeal denied (1966), 33 Ill. 2d 627.) But resort to such principles of interpretation is only proper when the testator’s intentions cannot be ascertainable from the language of the will without reference to these rules. (Horton v. Ferris (1962), 24 Ill. 2d 32, 179 N.E.2d 680; Wiener v. Severson (1957), 11 Ill. 2d 347, 143 N.E.2d 225; Allen v. Beemer (1939), 372 Ill. 295, 23 N.E.2d 724; White v. White (1942), 312 Ill. App. 628, 39 N.E.2d 79, appeal denied.) Courts are without power, under the guise of interpretation, to change a testator’s will or to make a new one for him. (Weir v. Leafgreen (1962), 26 Ill. 2d 406, 186 N.E.2d 293; Vollmer v. McGowan (1951), 409 Ill. 306, 99 N.E.2d 337; Domke v. McCue (1969), 110 Ill. App. 2d 1, 249 N.E.2d 287.) A court may not distribute the testator’s estate according to the court’s sense of equity and justice rather than the testator’s intention as expressed in the will. (Altemeier v. Harris (1948), 335 Ill. App. 130, 81 N.E.2d 22, affd (1949), 403 Ill. 345, 86 N.E.2d 229.) After all, except as limited by statute or contract, a testator has the right to distribute his property as he wishes. (Logsdon v. Logsdon (1952), 412 Ill. 19, 104 N.E.2d 622; In re Estate of Haines (1977), 51 Ill. App. 3d 163, 366 N.E.2d 548.) He can only do this through the words he employs in his will. Accordingly he must be able to rely on the fact that the court cannot and will not distort the clear language to achieve a result it prefers to the result the testator desired. It may be true, as appellants contend, that the quasi-tontine arrangement in the will is not equitable but it is not illegal. Being legal and not contrary to public policy, it must be given effect. Storkan v. Ziska (1950), 406 Ill. 259, 94 N.E.2d 185; Fleshner v. Fleshner (1941), 378 Ill. 536, 39 N.E.2d 9; Lenzen v. Miller (1941), 378 Ill. 170, 37 N.E.2d 833.

II

The appellants also ask this court to enter a declaratory judgment to the effect that if Jennie Stewart’s issue should die without issue before 2002, then under paragraph 6(c) that share would be distributed among all the issue of the other children. It would be improper for us to enter such a judgment since there is no actual controversy.

Since Jennie Stewart died in 1981, her share of the trust will be distributed in 2002. Jennie left one son, now approximately 62 years of age and one granddaughter, now approximately 33 years of age. Before any question as to the interpretation of paragraph 6(c) can arise both must die before the year 2002 and both must die without leaving other issue. There is obviously no certainty or even any reason to believe this will happen. A court will not declare the rights of parties on a state of facts which has not arisen and which may never arise or on a matter which is future, contingent, and uncertain. Midwest Petroleum Marketers Association v. City of Chicago (1980), 82 Ill. App. 3d 494, 402 N.E.2d 709, appeal denied (1980), 81 Ill. 2d 593; Baugher v. Walker (1977), 47 Ill. App. 3d 573, 362 N.E.2d 410; Berg v. City of Chicago (1968), 97 Ill. App. 2d 410, 240 N.E.2d 344, appeal denied (1968), 39 Ill. 2d 627.

III

As already stated, the trial court found the provision in controversy to be unambiguous. Nevertheless, it awarded the appellants $48,831.56 in attorney fees and the appellees have cross-appealed. We agree with the cross-appellants that the award was erroneous since the provision was unambiguous.

It is well established that while the question of attorney fees in an action to construe a testamentary agreement rests within the sound discretion of the trial court, such fees are allowable from the trust estate only if an ambiguity exists. (Northern Trust Co. v. Winona Lake School of Theology (1978), 61 Ill. App. 3d 966, 377 N.E.2d 1182, appeal denied (1978), 71 111. 2d 609.) Appellants contend that this "rule is inapplicable because they were not plaintiffs but defendants, the suit being brought by the trustee. This is a distinction without a difference. The trustees brought the suit because there were conflicting claims to the funds. The litigation was necessary because appellants pressed their claim in their answer. Obviously had appellants conceded in their answer that appellees were entitled to the disputed shares of the trust, the attorney fees would not have been incurred. Northern Trust Co. v. Winona Lake School of Theology (1978), 61 Ill. App. 3d 966, 377 N.E.2d 1182, appeal denied (1978), 71 111. 2d 609, is persuasive. In Winona, as here, the suit was brought by the trustee. The trial court found the trust agreement to be ambiguous. It awarded both the trustee and the defendants attorney fees. The appellate court found there was no ambiguity in the trust agreement and accordingly held that the trial court erred in allowing attorney fees as to the construction of that agreement. However, because the court also found that an honest difference of opinion existed on another issue at trial, the cause was remanded for determination of the amount of fees to be awarded.

As discussed earlier in the opinion, we believe the trial court’s ruling that the provision in question is unambiguous is correct. Accordingly we affirm the judgment of the trial court for the appellees. Since the provision was unambiguous, the authorities relied upon by the appellants which hold that where the will is ambiguous, all necessary parties to the litigation are entitled to attorney fees (e.g., Orme v. Northern Trust Co. (1962), 25 Ill. 2d 151, 183 N.E.2d 505, cert, denied (1962), 371 U.S. 935, 9 L. Ed. 2d 271, 83 S. Ct. 308), are inapplicable. Accordingly we reverse that part of the judgment awarding attorney fees to the appellant. While attorney fees were awarded to certain other parties, those awards were not appealed from and thus are not before this court for consideration.

Affirmed in part, reversed in part.

JIGANTI and LINN, JJ., concur.


author: JUSTICE LINN

text:
    MANH HUNG NGUYEN, Plaintiff-Appellant, v. JOHNSON MACHINE & PRESS CORPORATION et al., Defendants-Appellees.
    First District (4th Division)
    No. 81-292
    Opinion filed March 18, 1982.
    Philip H. Corboy & Associates, of Chicago (Philip H. Corboy and Robert A. Clifford, of counsel), for appellant.
    Raymond R. Cusack, of Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellee Amsted Industries, Inc.
   JUSTICE LINN

delivered the opinion of the court;

In 1978, the hands of plaintiff, Manh Hung Nguyen, were severed by a punch press manufactured by Bontrager Corporation. Bontrager had manufactured the punch press in 1960 and had sold it to plaintiff’s employer in 1962.

Following his injury, plaintiff brought this action in the circuit court of Cook County against numerous defendants seeking damages based on strict liability in tort. Two of the defendants, Amsted Industries, Inc., and South Bend Lathe, Inc., filed motions for summary judgment which were granted by the trial court. The court found no just reason to delay enforcement or appeal of its order. Plaintiff appealed.

The primary issue is whether Amsted or South Bend Lathe can be liable to plaintiff as successor corporation to the business of Bontrager.

We affirm.

Background

The punch press involved in this case was sold under a trade name as a “Johnson” press. Presses of this kind were originally manufactured and sold by Johnson Machine and Press Corporation in Elkhart, Indiana. In 1956, Bontrager purchased the assets of Johnson for cash. As part of the purchase, Bontrager also received one share of stock in Johnson so that Bontrager could continue to manufacture and sell presses under the Johnson name.

In 1960, Bontrager manufactured and leased the punch press to a party not involved in this case. On February 5, 1962, this press was sold and delivered to plaintiff’s employer. On August 29, 1962, Amsted and Bontrager entered into a purchase agreement under which Amsted was to purchase all the assets of Bontrager for approximately $1.2 million. Under the agreement, Bontrager promised to dissolve its corporate entity as soon as reasonably possible after the completion of the sale. Amsted was to assume the liabilities and obligations of Bontrager necessary for the uninterrupted continuation of the business. However, Amsted specifically refused to assume any liability resulting from injuries incurred from the use of presses manufactured and sold by Bontrager.

Following completion of the sale, Amsted continued the manufacture and sale of the Johnson presses using Bontrager’s plant in Elkhart. This business was carried on by one of Amsted’s divisions, South Bend Lathe. South Bend Lathe also had a plant in South Bend, Indiana, and after several years all of the operations carried out in Elkhart were transferred to the South Bend plant and the Elkhart plant was sold.

Though the parties disputed some of the facts, for the purpose of the summary judgment motion it was assumed that South Bend Lathe manufactured the Johnson presses by using the same employees, assets, physical location, and middle-level management personnel that Bontrager had used. However, none of the shareholders, directors, or officers of Bontrager became shareholders, directors, or officers of Amsted or South Bend Lathe.

Following the sale, Amsted informed Bontrager’s and Amsted’s customers that Amsted would thereafter be manufacturing and selling the Johnson presses. In 1964, Bontrager was voluntarily dissolved. Until 1975^ Amsted, through its South Bend Lathe division, continued the manufacture and sale of the Johnson presses. In 1975, Amsted sold all of the assets involving the Johnson presses to LWE, Inc. Thereafter LWE, Inc., changed its name to South Bend Lathe, Inc. (the other defendant that was granted summary judgment by the trial court). In 1978, plaintiff was injured.

Opinion

I

It is admitted that if Amsted could not be liable in this case then neither could South Bend Lathe, Inc. Accordingly, we will discuss this case with a view towards Amsted’s possible liability because of Amsted’s purchase of Bontrager’s assets.

Generally, a corporation that purchases the assets of another corporation is not liable for the debts and liabilities of the seller. (Hernandez v. Johnson Press Corp. (1979), 70 Ill. App. 3d 664, 388 N.E.2d 778.) The recognized exceptions to this rule are when (1) an express or implied agreement of assumption exists; (2) the transaction amounts to a merger of the seller into the buyer or a consolidation of the two; (3) the buyer is a mere continuation of the seller such as when the buyer comes into existence pursuant to the reorganization of the seller; or (4) the transaction is fraudulent in that it was entered into to allow the seller to escape its liabilities. People ex rel. Donahue v. Perkins & Will Architects, Inc. (1980), 90 Ill. App. 3d 349, 413 N.E.2d 29.

Under the second exception above, our courts have recognized that a de facto merger is sufficient to allow liabilities of the seller to be imposed on the buyer. (People ex rel. Donahue v. Perkins & Will Architects, Inc. (1980), 90 Ill. App. 3d 349, 413 N.E.2d 29.) A de facto merger may occur when the following are present: (1) there is a continuity of the business enterprise between seller and buyer, including continuity of management, employees, location, and assets; (2) there is a continuity of shareholders, in that shareholders of the seller become shareholders of the buyer; (3) the seller ceases operations and dissolves as soon as possible after the transaction; and (4) the buyer assumes those liabilities and obligations necessary for the uninterrupted continuation of the seller’s business. People ex rel. Donahue v. Perkins & Will Architects, Inc. (1980), 90 Ill. App. 3d 349, 413 N.E.2d 29; Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill. App. 3d 884, 403 N.E.2d 495.

Of the above requirements, the continuity of shareholders is absent from this case because the assets were purchased for cash and not exchanged for stock or other securities. Under corporate principles, this absence would be enough to defeat a finding of de facto merger and would prevent Amsted from being liable for any liabilities Bontrager may have had to its creditors or shareholders. (People ex rel. Donahue v. Perkins & Will Architects, Inc. (1980), 90 Ill. App. 3d 349, 413 N.E.2d 29.) Plaintiff, however, stresses that this is a strict liability case, and asks us to apply the law of strict liability and the policies underlying that law and reach the conclusion that continuity of shareholders should be ignored in determining whether Amsted should be liable. In essence, plaintiff asks us to create a special extension of the de facto merger doctrine that would apply to strict liability cases.

The step plaintiff asks us to take was taken by the Michigan supreme court in the case of Turner v. Bituminous Casualty Co. (1976), 397 Mich. 406, 244 N.W.2d 873. The reasoning in Turner is somewhat difficult to understand. The court declared, on the basis of facts similar to those here, that product liability law was the only law that governed the case. The court found that as far as plaintiff was concerned the problem was the same whether a corporate transfer was one involving an exchange of assets for cash or an exchange of stock. In either case, the plaintiff had nowhere to turn for a remedy except to the successor corporation. If the successor could not be liable, plaintiff would have no remedy.

Finding that one of the primary purposes of strict liability law was to impose liability on the party better able to gauge the risks and meet the costs of such liability, the court found the successor corporation could do so just as well as its predecessor. The successor could acquire insurance to protect against potential liability resulting from the predecessor’s products and could pass the costs on to its customers by increases in the price of the products it manufactured. The successor could also estimate the potential costs of liability and see to it that such costs are considered during the negotiations for sale of the predecessor’s assets.

The Michigan court also noted that the successor corporation, in an indirect way, benefitted from the predecessor’s sales of the product because the successor would enjoy the goodwill built up by the predecessor and would be able more easily to sell the products it manufactured in the future than it could if it were just beginning the manufacture and sale of the product. Since one purpose of strict liability law is to impose liability on those who reap a benefit from the sale of the product that has caused injury, the court found that this transfer of goodwill was sufficient to establish that the successor corporation reaped a benefit from the sales of the product by its predecessor.

After the above discussion justifying the imposition of liability on the successor corporation based on strict liability principles, the Michigan court, in an unexplained about-face, went on to decide the case by applying corporate law to the situation. The court merely extended the de facto merger doctrine by eliminating the requirement that there be a continuity of shareholders. Thus, if plaintiff could show (a) a continuity of the enterprise, including a continuity of management, employees, location, and assets; (b) a dissolution of the predecessor corporation as soon as possible after the transfer; and (c) an assumption by the successor of those obligations and liabilities necessary for the uninterrupted continuation of the predecessor’s business, then a plaintiff could bring a strict liability action against the successor for injuries caused by the predecessor’s product. Apparently, if any of these other elements for a de facto merger were not present, no action could be maintained. If strict liability principles were the only ones that applied, then how were the other elements of a de facto merger, a principle of corporate law, relevant to the issue of liability? If liability was to be imposed based on the court’s reasoning under strict liability principles, then it should have been sufficient for a plaintiff to show merely that the successor produced the same product as its predecessor and that plaintiff had lost his remedy against the predecessor because of dissolution.

The weakness in the Turner analysis was pointed out by the New Jersey supreme court in Ramirez v. Amsted Industries, Inc. (1981), 86 N.J. 332, 431 A.2d 811, a case involving the same corporate transfer as involved in this case. The New Jersey court, also declaring that strict liability law was the only law to be applied, analyzed the problem under strict liability principles and reached the same conclusions involving those principles as the court in Turner did. The three factors pointed out in Turner for justifying liability, (a) plaintiff’s inability to sue the predecessor; (b) the successor’s ability to gauge the risks of liability and protect against them; and (c) the enjoyment by the successor of the goodwill built up by the predecessor, were deemed sufficient justification by the Ramirez court for imposing liability on the successor corporation. However, the Ramirez court rejected the result reached in Turner and instead held that liability could be imposed on the successor when the above factors were present as long as the successor continued to manufacture and sell the same product as the predecessor. The elements of a de facto merger were not to be used in determining liability.

The analysis and result reached in Ramirez were the same as the analysis and result reached in Ray v. Alad Corp. (1977), 19 Cal. 3d 22, 560 P.2d 3, 136 Cal. Rptr. 574. The Ramirez court expressly adopted the California court’s decision in Ray. Ray has been specifically rejected by our courts. (E.g., Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill. App. 3d 884, 403 N.E.2d 495; Barron v. Kane & Roach, Inc. (1979), 79 Ill. App. 3d 44, 398 N.E.2d 244; Domine v. Fulton Iron Works (1979), 76 Ill. App. 3d 253, 395 N.E.2d 19; Hernandez v. Johnson Press Corp. (1979), 70 Ill. App. 3d 664, 388 N.E.2d 778.) The Turner case has not been specifically rejected by our courts.

Plaintiff’s arguments in this case have taken peculiar turns. Before the trial court, plaintiff specifically denied that he was seeking to impose liability by having the court adopt the Ray analysis and result. Instead, the plaintiff essentially argued that the Turner analysis and result should be adopted. On appeal, the bulk of plaintiff’s brief argues the adoption of the Ray and Ramirez cases. A small part of the brief seeks adoption of the Turner case. At oral argument, plaintiff again abandoned his argument to adopt Ray and Ramirez, and declared he was asking this court essentially to adopt the Turner case. In any event, we once again reject the analysis and result of Ray, and thus Ramirez, and also reject the imposition of liability in the manner in which the Michigan supreme court did in Turner.

Undeniably, one of the primary purposes of strict liability is to impose liability on those who create the risk of harm by being involved in the process which places the defective product in the stream of commerce. (Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, 338 N.E.2d 857.) It is quite obvious that Amsted did not create the risk of harm in this case because it had nothing to do with placing the product which injured plaintiff into the stream of commerce. The Ray, Ramirez, and Turner courts recognized that such was true in relation to successor corporations in general. For this reason, our courts have refused to adopt the doctrines of those other courts. (Domine v. Fulton Iron Works (1979), 76 Ill. App. 3d 253, 395 N.E.2d 19.) The Ray, Ramirez, and Turner courts found liability despite this reasoning. Those courts apparently deemed the successor’s lack of involvement in creating the risk to be unimportant. If those courts were holding that the successor should be liable based on a theory that the successor had to assume the potential liability of the predecessor, then perhaps the successor’s lack of involvement in creating the risk is unimportant. In such a case, the successor corporation should be liable because the predecessor corporation, whose liabilities the successor has assumed, could have been liable.

However, if those courts were holding not that the successor was assuming the potential liabilities of the predecessor but was simply liable in its own respect, then the successor’s innocence in creating the risk takes on fundamental importance. In this State, strict liability is still tort liability. Three elements are required for all tort liability: (a) plaintiff must have suffered an injury to an interest protected by law; (b) defendant must have had a duty to prevent the injury from occurring; (c) defendant must have breached that duty and the injury must have resulted from that breach. (Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307; Braband v. Beech Aircraft Corp. (1977), 51 Ill. App. 3d 296, 367 N.E.2d 118, affirmed (1978), 72 Ill. 2d 548, 382 N.E.2d 252, cert, denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857.) One who has done nothing to create a risk of injury cannot usually be burdened with the duty of preventing that injury. In strict liability cases, our courts have found an absolute duty of prevention in those parties who can be found to have created the risk of injury by being involved in placing the defective product that has caused injury into the stream of commerce. (See Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155.) However, it is impossible to conceive of such a duty on the part of the successor corporation unless circumstances following the corporate transfer give rise to the duty. For example, if the successor corporation learns that one of its predecessor’s products is defective and knows the location of that product, it may, though we do not so hold here, have a duty to warn of its defects before an injury occurs.

Thus, if the Ray, Ramirez, and Turner courts were simply creating liability in the successor corporation in its own respect, then those courts were creating liability without duty. They were not only extending the law of strict liability but abolishing strict liability as tort liability. It is unclear from the decisions in those cases whether the courts were creating liability in the successor corporation in its own respect or were merely holding that the successor had to assume the potential liability of the predecessor. If the former, then we must reject those decisions outright because this court will not create liability without duty. If the latter, then we have some fundamental problems with the reasoning of those cases.

To begin with, if the issue is solely one of the assumption of the predecessor’s potential liability, we find it difficult to understand how corporate law can be ignored in making the decision. Strict liability law has no principles to determine successor corporate liability. If the issue is whether the successor owes an independent duty to the plaintiff, then strict liability principles could be used to determine the issue. However, when the issue is the successor corporation’s assumption of the predecessor’s liability, then corporate principles must guide the decision. A change in corporate law must be made to find liability. Hence, the issue is not whether strict liability law or corporate law should determine the outcome, but whether the policies and principles of strict liability justify a change in corporate law.

Plaintiff contends that we should merely extend the de facto merger doctrine by eliminating the requirement of continuity of shareholders. Plaintiff argues that the distinction between a transfer of assets for cash and a transaction involving the transfer of shares is specious, and thus the change in corporate law we have to make is not important, and the policies of strict liability justify the change.

Plaintiff misapprehends the role continuity of shareholders has in determining successor corporate liability under corporate law. A corporation when formed takes on a legal identity in much the same way as a person is a legal entity. Any two corporations, like any two persons, are considered to be separate and distinct from each other. Each has its own assets and liabilities, and one cannot usually be responsible for the liabilities of another just as one person cannot be responsible for the liabilities of another. Also, it is the corporate entity that has liabilities and not the business that the entity does (a lawyer, and not his law practice, is liable for his debts).

When one corporation merges into another, one corporate entity becomes a part of another. By statute, the successor corporation in a merger assumes the liabilities of the predecessor. (Ill. Rev. Stat. 1979, ch. 32, par. 157.94.) This is logical because the entity that had liabilities is carried over into the successor. This is just, because in a merger the shareholders of the predecessor become shareholders or security holders of the successor. (Ill. Rev. Stat. 1979, ch. 32, par. 157.61.) The shareholders are the ones who ultimately enjoy the profits and suffer the losses of the corporation, and the shareholders of one corporation should not be able to move as a group to another corporation, enjoy the continuing profits of the same business the corporation performed before merger, but escape all possible losses that accumulated before merger.

When one corporation merely sells its assets to another, the corporate entity that had liabilities does not become a part of the successor. All that has transferred is the business, which is not an entity that has liabilities. As entities with liabilities, the predecessor and successor remain separate and distinct. There is little logic and little justice in requiring the successor to assume the liabilities of the predecessor. The successor has paid a substantial price for the assets of the predecessor, and the law should not require the successor to pay a greater price, especially after the fact of sale when it is impossible for the successor to return to negotiations to change the price. Left behind is the predecessor corporation with money in hand. It should meet whatever liabilities it had with the price it has exacted. Its shareholders should ultimately suffer the losses from liabilities the corporation had, not the shareholders of the successor. Of course, if the predecessor chooses to dissolve, with dissolution comes the destruction of all pre-existing liabilities. (Blankenship v. Demmler Manufacturing Co. (1980), 89 Ill. App. 3d 569, 411 N.E.2d 1153.) Nevertheless, the legislature has given a party with a claim against the dissolving corporation two years following dissolution in which to assert his claim. (Ill. Rev. Stat. 1979, ch. 32, par. 157.94.) The dead should be allowed to rest, but not too quickly.

As can be seen from this discussion, continuity of shareholders, rather than being a meaningless requirement in finding a de facto merger, is probably its most important element. Continuity of shareholders is the ultimate justification for allowing liabilities to carry over to the successor. The problem with corporate law in relation to strict liability in tort is not that it prohibits the transfer of potential liability, but that it allows the predecessor corporation, and the shareholders who should ultimately suffer the losses from the liabilities of that corporation, to escape strict liability in tort too soon after dissolution. Perhaps the solution to the problem would be for the legislatures of this and other States to require dissolving corporations to keep enough assets on hand or keep in force an insurance policy to meet potential liability for an extended time after dissolution. The failure to follow such a statute could be justification for transferring liability to the successor. However, the failure to enact such a statute is not justification for a court to transfer liability.

To allow successor corporate responsibility in cases such as these, we must make a significant change in corporate law. We must hold that the policies of strict liability justify a finding that, though a corporation has dissolved, potential liability in strict products liability should not dissolve with it and that another separate and distinct corporation should take on that liability. As previously noted, without continuity of shareholders, it does not appear just to require the successor corporation to assume the liabilities of the predecessor when it has already paid a substantial price for the assets of the predecessor. Thus, to make the change requested there must be ample justification for doing so. We now examine the points of justification offered by plaintiff.

The first justification offered by plaintiff for making this change is that plaintiff has lost his remedy against the predecessor and has no one to sue but the successor. As justification, this is meaningless. It is a statement of the problem, not the reason for solving the problem. Plaintiff has no remedy because corporate law dictates that the predecessor cannot be liable because it has dissolved. Strict liability came into being because of problems involving privity, contract disclaimer language, and plaintiff’s inability to prove fault. (See Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.) Plaintiff had no remedy against the party who should have been responsible for providing one. This lack of remedy was the problem to be solved. To solve the problem by merely stating there was one could not justify its solution. Here, the problem is that corporate law denies plaintiff a remedy. To justify a change in corporate law, we cannot merely state the problem as its solution. Justification must come from elsewhere.

The second justification offered by plaintiff is that one of the policies of strict liability is.to impose the costs of that liability on those better able to gauge the risks of that cost, insure against it, and pass the costs on to consumers. This is the primary justification offered by the Ray, Ramirez, and Turner courts. This is, of course, a reason strict liability was created. The injured plaintiff should not have to bear the costs of his loss. Manufacturers can presumably pass those costs on to the rest of the society and insure against the risk. In essence, the manufacturer can afford it, the plaintiff cannot.

Standing alone without other justification, this principle can hardly be used to make a fundamental change in corporate law. We would be simply saying that the successor should be liable because it can afford liability. Even if it were sufficient justification, we do not know whether the proposition is true. Recent studies indicate that many manufacturers, and in particular small manufacturers, have a difficult problem obtaining products liability insurance and find it impossible to cover the risks by raising prices because they have to compete with larger manufacturers who can keep the price down. (Schwartz, The Federal Government & the Product Liability Problem: From Task-Force Investigation to Decisions by the Administration, 47 Cinc. L. Rev. 573 (1978); Note, Products Liability and Successor Corporations: Protecting the Product User <b- the Small Manufacturer Through Increased Availability of. Products Liability Insurance, 13 U.C. Davis L. Rev. 1000 (1980).) Additionally, it is one thing to assume that a manufacturer can acquire insurance against potential liability for its own products and another to assume it can acquire such insurance for the products made by a different manufacturer. We do not know whether insurance companies will readily provide such insurance. We cannot assume it as fact.

When liability is imposed because a party has a duty to prevent injury, the ability to afford such liability is not of major importance. Thus, in most strict liability cases, the ability or inability of the defendant to bear the costs of that liability will not prevent liability. The defendant has violated a duty and should be made liable for the violation. However, when the issue is whether successor corporations should assume the liability of their predecessors, and the primary justification for the assumption is the successors’ ability to bear the costs, then before the successors should be required to bear the costs we must be sure they can do so. Legislatures and not courts are in a much better position to determine the issue. Legislatures can do studies, gather evidence, hold hearings, and come to a decision. It is not a decision that can be made in a court proceeding where all of the parties truly involved are not represented.

The final justification offered by plaintiff is that defendant has reaped the benefits of its predecessor’s accumulated goodwill and thus has reaped a benefit from the sale of the predecessor’s products. Since liability should be imposed on those who benefit from the sale of the defective product, plaintiff argues liability should be imposed in this case. If this were sufficient justification for imposing strict liability on the successor, then it would also be sufficient justification for imposing liability on successor corporations for all purposes. The Ray, Ramirez, and Turner cases seem to offer this justification simply to buttress the other arguments and show that a corporate relationship still exists between the successor and the predecessor so that liability can still exist. Perhaps those courts thought it irrelevant that the successor corporation pays a substantial price for the goodwill that has been accumulated, and the imposition of liability is a declaration that the successor should now pay a greater price than it agreed to pay. The successor cannot go back and amend the agreement. In any event, we believe the enjoyment of accumulated goodwill is not sufficient justification for making a significant change in corporate law.

Thus, the arguments offered by plaintiff do not justify imposing the predecessor’s potential liability on the successor. The successor corporation was not responsible for plaintiff’s injury. The party that should be liable, Bontrager, cannot be liable because of the law of dissolution. Perhaps that law should be changed, but the change must come from the legislature. Because the party that should be held responsible cannot be is not a reason for holding that a party who should not be held responsible should be.

Accordingly, we hold that Amsted and South Bend Lathe, Inc., could not have been found liable to plaintiff based on a theory that Amsted, and thus South Bend Lathe, should assume the liabilities of Bontrager. The trial court’s grant of summary judgment was proper.

II

Plaintiff also alleges that Amsted should be liable based on a theory that Amsted had a duty to warn of the defects in Bontrager’s products. Plaintiff alleges that Amsted had an independent duty to warn because it knew the Johnson Press in this case was defective and, since it had acquired all of Bontrager’s records, it knew where the product could be found. We find that we need not address this issue.

Plaintiff did not bring any action based on Amsted’s duty to warn. The issue was never raised below. Thus, the issue has been waived. Kubisen v. Chicago Health Clubs (1979), 69 Ill. App. 3d 463, 388 N.E.2d 44.

Affirmed.

JIGANTI and ROMITI, JJ„ concur.


text:
    CHARLES O. FINLEY, Plaintiff-Appellant, v. SHARON FINLEY KESLING et al., Defendants-Appellees.
    First District (4th Division)
    No. 81-945
    Opinion filed March 18, 1982.

      Mitchell S. Rieger, Aaron J. Kramer, Patrick J. Ward, and Frederick J. Sperling, all of Schiff, Hardin & Waite, and Raymond J. Smith and Ellen G. Robinson, both of Burke and Smith, Chartered, both of Chicago, for appellant.
    Leonard M. Ring and Judith E. Fors, both of Leonard M. Ring and Associates, of Chicago, for appellee Shirley M. Finley.
    Jonathan B. Gilbert and Arthur M. Holtzman, both of Pederson & Houpt, of Chicago, for other appellees.
   JUSTICE ROMITI

delivered the opinion of the court:

The plaintiff in this case was previously a party to a divorce action in Indiana. In that case he testified, under oath, that he owned 31% of certain stock, his wife 29% and his children 40%. The Indiana court accepted this testimony and so divided the particular property. Now the plaintiff has filed a lawsuit in Illinois claiming beneficial ownership of the stock which in Indiana he had testified was owned by the children. The trial court, while aware that Indiana will not apply collateral estoppel unless mutuality is present, held that even though the children were not parties to the Indiana action, it would be contrary to Illinois public policy to allow plaintiff to deny either his own previous testimony or the Indiana decree and to carry this issue further, and dismissed the action. We agree and affirm.

In 1954 the plaintiff, Charles Finley, organized a previously founded insurance brokerage business into Charles O. Finley & Co., Inc., an Illinois corporation. At that time, in view of his poor medical history and for tax reasons in the event of his early death, he put 10% of the stock in each of his four children’s names. The remaining 60% was divided between Finley and his wife. Although other children were born after 1954, no stock was given to them.

At the time of its formation in 1954, the total capitalization of the corporation was $5,000, all of which was contributed by Finley. In 1961, the corporation became the owner and operator of a major league professional baseball franchise; this was sold in 1980. At the same time the corporation, which now has a shareholder equity in excess of $20,000,000, adopted a plan of liquidation and distribution. Finley in the present action claims that although 40% of the stock is registered in the children’s names they are not entitled to any part of the liquidating distributions of the corporation.

As already stated, Finley filed this declaratory judgment action seeking a declaration that the children are not beneficial owners of the stock and that he is the beneficial owner of the stock. Defendants filed a motion to dismiss, pursuant to section 48(d) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48) on the grounds of res judicata. The pleadings and briefs of the parties in the trial court disclose that in about 1974, Shirley M. Finley, then the wife of the plaintiff, filed a suit for divorce in Indiana. At the hearing on her motion for temporary support, Finley testified:

e e So I said, ‘Well, that does sound like a good idea to give the stock to the kids and the wife.’ So I decided that I’d give her 29 percent and the four children 10 percent each. That was a total of 69 percent of the stock that I gave at the time I formed the corporation for tax purposes. That was my thinking in the event of an early death.
Q. Let me ask this: Was that done, then, as part of an estate plan contemplating your early death perhaps?
A. Yes, yes, it was part of the beginning of my estate planning.
Q. * * ° — by the way, does the stock still remain in the same percentage — 29 percent to Mrs. Finley, 31 to you and 10 to each of the four children.
A. Yes, it does.
Q. (Continuing) — that it did in 1954?
A. Yes, it does.
Q. How was that stock set up?
A. Identical to the stock of the Chicago corporation. I gave Mrs.
Finley 29 percent and the children 10 percent each — and for the same reason, for my estate planning, especially in event of an early death. In the event of an early death, I might say, they would have saved a tremendous amount of money on the stock.”

Likewise at a hearing on another motion Finley testified on direct examination:

“I personally own, I have 31 percent. Mrs. Finley owns 29 percent and four of the children own 10 percent each. So my wife and four children own 69 percent and I own 31 percent.”

One of the sons, Paul Finley, was called as a witness by his father. He testified on direct examination that he was one of the children who were stockholders with 10% interest. In addition, Finley’s attorney filed a motion to reopen for the introduction of further evidence “critical in establishing the net worth of the corporation and the value of the stock of Shirley Finley, Charles Finley and the children in that corporation.” Likewise, in the memorandum attached to the motion to correct errors, counsel reiterated that “as an estate planning device, Mr. Finley received 31% of the shares of each corporation, Mrs. Finley 29% of the shares and the remaining 40% was divided equally among the four (4) children living at that time.” The trial court in its decree of dissolution found that:

“The capital stock of Charles O. Finley of Illinois and Charles O. Finley of Indiana is now and has been for many years owned in these proportions: 31 percent by the husband, 29 percent by the wife and 40 percent in equal proportions by four of their children. Thus as to these two corporations we are concerned only with 60 percent of their authorized, issued and outstanding capital stock.”

The Illinois trial judge granted the motion to dismiss and dismissed the proceedings with prejudice. The written order expressly adopted his oral opinion in which he stated in part:

“Every relevant stage along the way to the final divorce decree, the plaintiff either affirmatively stated or acquiesced in the trial [and] in the Appellate Court case that he owned 31 percent and the four children owned the total of 40 percent. I cite specifically Mr. Finley’s direct testimony under questioning by his attorney, Mr. Ruman, Exhibit E, in the children’s reply, Mr. Finley saying, ‘I personally own, I have 31 percent, Mrs. Finley owns 29 percent, and the four children own 10 percent each, so that my wife and four children own 69 percent, and I own 31 percent.’ If the plaintiff, Mr. Charles Finley, here ever asserted in Indiana, as he does here, that he owns 71 percent, the formula for the property distribution would have been considerably different than the one ultimately adjudged and the Indiana trial court’s opinion could not possibly read the way it does read. And further, had Mr. Finley made such a claim, his wife could have and the four children certainly would have contested that assertion. Indeed, it’s my belief that had the plaintiff made such a reach into the children’s pockets in the process of the divorce action that it would have been necessary for him to bring them into that case to resolve the issue. He didn’t do that. There, apparently, was no contest on the percentage of the stock ownership in the children because the plaintiff never raised that issue in Indiana. And there was no reason for Mrs. Finley or the children to raise it since they concurred in his representation on the record and since they concurred in the findings by both the trial court and the Appellate Court.
If the text writers need a classic example of the folly of requiring mutuality of estoppel for estoppel by verdict, these facts and the plaintiff’s inconsistent positions taken in sister states supply it.
To my view, it’s immaterial here to debate over which state law on estoppel governs because Illinois has a strong public policy against the application of law in such a way as to subject the law to ridicule, against the application of law which generates absurd results, against the application of law in a manner which honor form over substance and which generates inequitable results. Illinois courts cannot allow the plaintiff here to carry this issue further without doing violence to its own public policy.”

Finley does not deny the statements he made and caused to be made in the Indiana court proceedings. Nor does he claim they were made by mistake, accidentally or without full knowledge of the facts. Likewise, he does not deny that the Indiana trial court found that the children owned the stock and that the Indiana appellate court stated the children owned the stock and it was not marital property. Finley has never suggested that at any time he attempted to correct these “misapprehensions” of the Indiana courts. Indeed, he has claimed in his brief and at oral argument that his wife could have the Indiana divorce award set aside and additional sums awarded if that court deemed such award proper. What he does contend is that, despite all this, he is not bound by the Indiana holdings because the children were not parties to the lawsuit and thus there could be no mutuality of estoppel and that Illinois is constitutionally required under the full faith and credit clause to follow Indiana’s doctrine of collateral estoppel rather than its own. It is not disputed that under the Illinois doctrine of collateral estoppel, Finley would be barred from bringing this action.

I

Indiana, unlike Illinois, still requires mutuality before it applies the doctrine of collateral estoppel. Indeed in one recent case, Indiana State Highway Com. v. Speidel (Ind. App. 1979), 392 N.E.2d 1172, appeal denied, the Indiana appellate court refused to apply the doctrine of collateral estoppel even though the parties had all been parties to a prior decision where the parties seeking to rely on the prior judgment would not have been bound by it had it gone the other way. We have difficulty believing that even Indiana, reluctant as it may be to follow the modern trend of cases abandoning the requirement of mutuality (see Annot., 31 A.L.R.3d 1044, 1067 (1970)), would permit Finley to avoid the effect of a ruling set forth not only in the judgment but in an appellate court decision, a ruling which he himself apparently had sought and which was based on his own pleadings and testimony and that of one of his witnesses. But it is not necessary to guess whether Indiana would cling to the doctrine of mutuality under these peculiar circumstances at the price of “[subjecting] the law to ridicule.” While we are required by the full faith and credit clause to give effect to the Indiana judgment, we are not required to give effect to the Indiana rules limiting application of the doctrine of collateral estoppel at the price of “[generating] absurd results.”

Article IV, section 1 of the Federal constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” The intended purpose of this clause is “to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.” (Milwaukee County v. M. E. White Co. (1935), 296 U.S. 268, 277, 80 L. Ed. 220, 228, 56 S. Ct. 229, 234, quoted in Order of United Commercial Travelers of America v. Wolfe (1947), 331 U.S. 586, 618, 91 L. Ed. 1687, 1705, 67 S. Ct. 1355, 1370.) Its intended function is to avoid the relitigation in other States of adjudicated issues. (Sutton v. Leib (1952), 342 U.S. 402, 96 L. Ed. 448, 72 S. Ct. 398.) On the other hand this clause does not compel the courts of one State to subordinate the local policies of that State to the policies and laws of another State. Williams v. State of North Carolina (1942), 317 U.S. 287, 87 L. Ed. 279, 63 S. Ct. 207; Biddy v. Blue Bird Air Service (1940), 374 Ill. 506, 30 N.E.2d 14; Application of Schatz (1972), 80 Wash. 2d 604, 497 P.2d 153.

It is undisputed that, as Finley contends, the judgment of a State court is entitled to the same validity and effect in another State as it has in its own and that the only pleas which can be raised against it in a second State are those which would be good to a suit thereon in the first State. (Hampton v. M’Connel (1818), 16 U.S. (3 Wheat.) 234, 4 L. Ed. 378; Lawrence v. Jarvis (1863), 32 Ill. 304; Welch v. Sykes (1846), 8 Ill. (3 Gilm.) 197.) The full faith and credit clause is intended to establish as constitutional law the principles embodied in the common law doctrine of res judicata. (Brownlee v. Western Chain Co. (1977), 49 Ill. App. 3d 247, 364 N.E.2d 926, appeal denied (1977), 66 Ill. 2d 629, cert. denied (1978), 435 U.S. 968, 56 L. Ed. 2d 59, 98 S. Ct. 1605, and see Riley v. New York Trust Co. (1942), 315 U.S. 343, 86 L. Ed. 885, 62 S. Ct. 608.) So that just as the doctrine of res judicata bars parties from relitigating a cause of action in the same State, it, through the constitutional provision, bars them from relitigating the cause of action in a different State.

It is also true, as Finley contends, that a judgment has no constitutional claim to a greater effect in the second State than it had in the first. (New York ex rel. Halvey v. Halvey (1947), 330 U.S. 610, 91 L. Ed. 1133, 67 S. Ct. 903.) And of course where the first court had no jurisdiction, the constitutional requirement is not applicable. Halvey; Bigelow v. Old Dominion Copper Mining & Smelting Co. (1912), 225 U.S. Ill, 56 L. Ed. 1009, 32 S. Ct. 641.

However, this does not mean that even though a State is not required by the constitution to give greater effect to a judgment than would the courts of the first State, it cannot give greater effect to the adjudication of the issue therein than would the first State. Finley has cited no case, and we have found none, which holds that a State is barred either by the full faith and credit clause or by section 1738 of the United States Code of Judiciary and Judicial Procedure (28 U.S.C. §1738 (1976)) (which, enacted pursuant to the constitutional mandate, requires that such acts, records and judicial proceedings have the same full faith and credit as in the courts of the State from which they were taken) from applying its own doctrine of collateral estoppel but instead must give effect not only to the judgment of the first State but to the rules of that State as to when collateral estoppel is to be applied. To the contrary, it has been recognized that the forum State may apply its own rules of collateral estoppel. Clark v. Clark (1964), 80 Nev. 52, 389 P.2d 69; Hart v. American Airlines, Inc. (Sup. 1969), 61 Misc. 2d 41, 304 N.Y.S.2d 810; Collateral Estoppel in Multistate Litigation, 68 Colum L. Rev. 1590 (1968); Carrington, Collateral Estoppel and Foreign Judgments, 24 Ohio St. L. J. 381 (1963), and compare Bigelow v. Old Dominion Copper Co. (1912), 225 U.S. 111, 56 L. Ed. 1009, 32 S. Ct. 641.

As stated in Hart, 61 Misc. 2d 41, 44, 304 N.Y.S.2d 810, 813-14:

“Defendant’s reliance on ‘full faith and credit’ to defeat the application of collateral estoppel herein is misplaced. This is not a situation where the judgment, as such, of the Texas court is sought to be enforced. What is here involved is a policy determination by our courts that ‘ “One who has had his day in court should not be permitted to litigate the question anew” ’ B.R. DeWitt Inc. v. Hall, 19 N.Y.2d 141, 144, 278 N.Y.S.2d 596, 599, 225 N.E.2d 195, 197, (supra), and, further, refusal ‘to tolerate a condition where, on relatively the same set of facts, one fact-finder, be it court or jury’ may find a party liable while another exonerates him leading to the ‘inconsistent results which are always a blemish on a judicial system’ (Schwartz v. Public Admin. of Co. of Bronx, 24 N.Y.2d 65, 74, 298 N.Y.S.2d 955, 962, 246 N.E.2d 725, 730, supra). It is in order to carry out these policy determinations in the disposition of cases in this jurisdiction that an evidentiary use is being made of a particular issue determination made in the Texas action.”

We recognize, although Finley does not raise the point, that as a simple choice of laws question, the effect of a judgment on the issues involved may be determined by the local law of the State where the judgment was rendered. (Restatement (Second) of Conflict of Laws §95 (1971), but see criticism in Carrington, Collateral Estoppel and Foreign Judgments, 24 Ohio St. L. J. 381 (1963).) But the applicability of such conflict of laws principles is always subject to the public policy of the forum State. This policy was accurately set forth by the trial court in this case.

II

However, even if this court were barred by either the full faith and credit clause or section 1738 of the Judicial Code from applying the doctrine of collateral estoppel if Indiana would not, Finley would still be barred by judicial estoppel from pursuing his claim here. The doctrine of judicial estoppel applies not to the judgment but to the testimony in the case. Accordingly both the constitutional and the statutory full faith and credit provisions are inapplicable and Illinois is free to apply its own law to determine whether a person may, in an Illinois court, contradict his sworn testimony in prior litigation.

The rule of judicial estoppel is a rule which estops a party from playing “fast and loose” with the court (Gray v. Fitzhugh (Wyo. 1978), 576 P.2d 88; Citizens Bank v. C & H Construction & Paving Co. (N.M. App. 1976), 89 N.M. 360, 552 P.2d 796, cert. denied (1976), 90 N.M. 7, 558 P.2d 619, modified as to amount of award (1977), 90 N.M. 208, 561 P.2d 481; Behrens v. Baldenecker (1956), 76 S.D. 327, 77 N.W.2d 917; Selected Risks Insurance Co. v. Kobelinski (E.D. Pa. 1976), 421F. Supp. 431), or blowing “hot and cold” (Garden City Sand Co. v. Christley (1919), 289 Ill. 617, 124 N.E. 729) during the course of litigation. It means that a party is not permitted to maintain inconsistent positions in separate judicial proceedings. (Grant v. Springer (1928), 330 Ill. 280, 161 N.E. 718; Trumbull v. Gale (1921), 222 Ill. App. 113; Gray v. Fitzhugh (Wyo. 1978), 576 P.2d 88; Citizens Bank v. C & H Construction & Paving Co. (N.M. App. 1976), 89 N.M. 360, 552 P.2d 796, cert. denied (1976), 90 N.M. 7, 558 P.2d 619, modified as to amount of award (1977), 90 N.M. 208, 561 P.2d 481; Yarber v. Pennell (Tex. Civ. App. 1969), 443 S.W.2d 382, writ ref'd n.r.e; Hartley v. Alabama National Bank (1946), 247 Ala. 651, 25 So. 2d 680; Selected Risks Insurance Co. v. Kobelinski (E.D. Pa. 1976), 421 F. Supp. 431.) When a party assumes a certain position in a legal proceeding and succeeds in maintaining that position, he may not thereafter assume a contrary position. (Garden City Sand Co. v. Christley (1919), 289 Ill. 617, 124 N.E. 729; Citizens Bank v. C & H Construction & Paving Co. (N.M. App. 1976), 89 N.M. 360, 552 P.2d 796, cert. denied (1976), 90 N.M. 7, 558 P.2d 619, modified as to amount of award (1977), 90 N.M. 208, 561 P.2d 481; Consolidated Copperstate Lines v. Frasher (1956), 141 Cal. App. 2d 916, 297 P.2d 692; Behrens v. Baldenecker (1956), 76 S.D. 327, 77 N.W.2d 917; Chicago, S.S. & S.B.R.R. v. Fleming (7th Cir. 1940), 109 F.2d 419; Gillespie v. Dunn (1929), 246 Mich. 415, 224 N.W. 374.) The doctrine of judicial estoppel rests upon public policy which upholds the sanctity of the oath (Allen v. Neal (1965), 217 Tenn. 181, 396 S.W.2d 344), and its purpose is to bar as evidence statements and declarations which would be contrary to sworn testimony the party has given in the same or previous judicial proceedings. (King v. Clodfelter (1974), 10 Wash. App. 514, 518 P.2d 206.) Having affirmed under oath that a given state of facts exists, a party cannot be permitted to later affirm that the contrary is true. (Grant v. Springer (1928), 330 Ill. 280, 161 N.E. 718; Gray v. Fitzhugh (Wyo. 1978), 576 P.2d 88; Coral Drilling, Inc. v. Bishop (Miss. 1972), 260 So. 2d 463, cert. denied (1972), 409 U.S. 1007, 34 L. Ed. 2d 300, 93 S. Ct. 438; Melton v. Anderson (1948), 32 Tenn. App. 335, 222 S.W.2d 666, cert. denied.) As recently remarked in Hild v. Avland Development Co. (1977), 46 Ill. App. 3d 173, 181, 360 N.E.2d 785, 792, appeal denied (1977), 66 Ill. 2d 630: “More important to us, however, is our inability to understand how a party to one lawsuit could swear to the untruth of a matter and then become party to another lawsuit and swear to the truth of the same matter. That would create a situation which we are unable to tolerate.”

Under the doctrine of judicial estoppel, as applied in Illinois, Finley having testified under oath that he owned only 31% of the stock and his children owned 40% and having succeeded in convincing the Indiana courts that this 40% belonged to the children and was not marital property, cannot now contend that stock is, in effect, his property. (Garden City Sand Co. v. Christley (1919), 289 Ill. 617, 124 N.E.2d 729.) Moreover, as noted by the Illinois trial court, he made no attempt to correct the allegedly mistaken belief of the Indiana courts that 40% of the stock did not belong to Finley in any way and was not marital property. As stated by the Illinois Supreme Court in Grimm v. Grimm (1922), 302 Ill. 511, 513, 135 N.E. 19, 20: “If the matter now relied on is true, it was within the knowledge of defendant and he deliberately perpetrated a fraud on the court by concealing it” and is thereby estopped to raise the issue now. We are aware that defendants’ motion to dismiss was based on section 48(d) of the Civil Practice Act, which applies to prior judgments, rather than section 48(i), which applies to other affirmative defenses. However the effect of Finley’s pleadings and testimony was fully raised below, and the decision of the trial court was based, at least in part, on this evidence.

To conclude, we hold that the full faith and credit requirement of the Federal constitution does not bar the application of the Illinois rules of collateral estoppel and that under those rules, Finley is barred from bringing the present action. We further hold that Finley is barred by the doctrine of judicial estoppel from denying that the children are the beneficial owners of the stock. Accordingly, the judgment of the trial court is affirmed.

Affirmed.

JOHNSON, P. J„ and JIGANTI, J, concur.