author: PRESIDING JUSTICE JIGANTI

text:
    LORETTO FLYNN RIORDAN, Indiv. and as Special Adm’r of the Estate of James J. Riordan, Deceased, Plaintiff-Appellant, v. INTERNATIONAL ARMAMENT CORPORATION et al., Defendants-Appellees. — MARSHA BURKS, Indiv. and as Adm’r of the Estate of Alvin Burks, Deceased, Plaintiff-Appellant, v. SMITH & WESSON COMPANY, Defendant-Appellee.
    First District (4th Division)
    Nos. 83—2110, 83—2164 cons.
    Opinion filed April 4, 1985.

      Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Ralph L. Brill, and David A. Novolselsky, of counsel), for appellants.
    Haskell & Perrin, of Chicago (Donald M. Haskell and Brian H. Boyle, of counsel), for appellee Carl Walther Waffenfabrik, GmbH.
    Philip C. Stahl and Daniel A. Edelman, both of Reuben & Proctor, of Chicago, for appellee International Armament Corporation.
    Anne G. Kimball, James D. Fibber, and Cal R. Burnton, all of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee Smith & Wesson Company.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

These consolidated appeals present the issue of whether a cause of action in tort exists in Illinois against the manufacturers and distributors of handguns for injuries caused by the criminal misuse of their handguns by third parties.

On June 6, 1981, James J. Riordan was killed when, while attempting to restrain an individual in a downtown Chicago restaurant, he was struck by a bullet from a small caliber semiautomatic handgun manufactured and designed by defendant, Walther Waffenfabrik, GmbH, a West German corporation, and distributed in the United States by International Armament Corporation, also a defendant.

On December 26, 1981, Alvin Burks was shot to death by an assailant who was armed with a .38-caliber handgun designed, manufactured, and marketed by defendant, Smith & Wesson Company.

Wrongful death actions were filed by the plaintiffs, the wives and children of the decedents in the circuit court of Cook County against the manufacturers and distributors of the handguns used in the shootings. Plaintiffs sought recovery under theories of negligence, strict liability based on ultrahazardous activities, and strict liability for a defective product.

Motions to dismiss were filed by the defendants, handgun manufacturers and distributors, in each case. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615.) Thereafter, after hearings on the respective motions, the complaints in both cases were dismissed as insufficient in law.

These appeals were subsequently consolidated by this court.

Plaintiffs first assert that the trial court erred in dismissing those counts charging the defendants, handgun manufacturers and distributors, with negligent and wilful and wanton distribution. Plaintiffs alleged that based on the large number of injuries and deaths resulting from the use of handguns to commit crimes, criminal misuse was foreseeable and the defendants, handgun manufacturers and distributors, were negligent in marketing their handguns to the general public without taking adequate precautions to prevent the sale of their handguns to persons who were reasonably likely to cause harm to the general public. Plaintiffs claim that the defendants, handgun manufacturers and distributors, had a duty to determine whether their retailers had taken all reasonable measures to screen prospective purchasers and a duty to terminate sales to those retailers the defendants knew or had reason to know had a history of sales to persons who had used their handguns in crime.

This court recently rejected a claim identical to the plaintiffs’ in Linton v. Smith & Wesson (1984), 127 Ill. App. 3d 676, 469 N.E.2d 339, appeal denied (1984), 101 Ill. 2d 582. We find Linton to be dispositive of this issue. In Linton, the plaintiff appealed from the dismissal of his counts seeking recovery from a handgun manufacturer based on its negligent and wilful and wanton distribution of a handgun which was used by a third party to injure the plaintiff. This court upheld the dismissal of the plaintiff’s complaint on the basis that under Illinois law no common law duty exists upon the manufacturer of a nondefective handgun to control the distribution of that product to the general public. 127 Ill. App. 3d 676, 678-79, 469 N.E.2d 339.

The court found that the plaintiff’s reliance on Semeniuk v. Chentis (1954), 1 Ill. App. 2d 508, 117 N.E.2d 883, which the plaintiffs in the present case cite as their sole Illinois authority to support their contention, was misplaced. Semeniuk held that a retail seller of toy weapons to children was liable for injuries resulting to others from the child’s misuse of the toy. Citing section 308 of the Restatement (Second) of Torts, the Semeniuk court found that as children who, because of their youth and inexperience, are incapable of appreciating the risk inherent in the use of such products, a reasonable seller, exercising ordinary care, would anticipate or foresee that a child would misuse the product, thereby causing harm to bystanders. (Semeniuk v. Chentis (1954), 1 Ill. App. 2d 508, 512-14, 117 N.E.2d 883.) The situation in the present case, the Linton court found, was distinguishable from Semeniuk, where misuse of the product was not a foreseeable consequence of sales to the general public. Unlike the case with children, the distribution of handguns by the defendants-manufacturers was intended for the general public, who presumably can recognize the dangerous consequences in the use of handguns and can assume responsibility for their actions. (Linton v. Smith & Wesson (1984), 127 Ill. App. 3d 676, 678, 469 N.E.2d 339.) As the court in Linton pointed out, the distribution of firearms is heavily regulated on both the Federal and State levels. (See 18 U.S.C. sec. 921 et seq. (1976); Ill. Rev. Stat. 1983, ch. 38, par. 83 — 1 et seq.) Beyond this, the court stated, there is no basis for imposing common law negligence upon a handgun manufacturer for injuries sustained by the victims of illegal handgun violence. (Linton v. Smith & Wesson (1984), 127 Ill. App. 3d 676, 679, 469 N.E.2d 339.) Furthermore, as the Linton court observed, as the Semeniuk decision dealt only with the liability of a retail seller, Semeniuk provides no support for likewise holding a manufacturer or remote vendor liable for marketing its product to people whom they should have known would have misused the product. Linton v. Smith & Wesson (1984), 127 Ill. App. 3d 676, 678, 469 N.E.2d 339, citing Pitts v. Basile (1966), 35 Ill. 2d 49, 54, 219 N.E.2d 472.

Similarly unpersuasive are plaintiffs’ out-of-State authorities, which imposed liability upon those who negligently entrusted or supplied dangerous weapons to classes or persons incapable of using the product in a safe manner, i.e., children. (Mowing v. Alfono (1977), 400 Mich. 759, 254 N.W.2d 759; Stoelting v. Hauck (1960), 32 N.J. 87, 159 A.2d 385.) Mowing, a 1977 decision of the Michigan Supreme Court, held that a manufacturer, wholesaler and retailer of toy slingshots, which were marketed directly to children, owed a legal obligation of due care to bystanders affected by the use of such products. Stoelting involved the liability of parents to an injured third party for the negligent entrustment of a firearm to their minor child.

Accordingly, as there is no support for the plaintiffs’ theory in Illinois, we hold that under Linton the defendants, handgun manufacturers and distributors, owed no duty to plaintiffs to control the distribution of their handguns, based upon the allegations of negligent and wilful and wanton distribution. Consequently, these counts were properly stricken as being insufficient as a matter of law.

Similarly, we find no error in the dismissal of plaintiffs’ counts alleging negligent failure to warn. In their complaints, plaintiffs alleged that the defendants, manufacturers and distributors of handguns, had the duty to provide adequate warnings to consumers that possession of a handgun is dangerous and that concealed possession of a handgun is illegal under State and Federal law.

Plaintiffs initially assert that the duty to warn of a product’s dangerous propensities may be imposed upon manufacturers and distributors. Although Illinois courts have held that the failure to warn may be imposed upon all parties within the chain of distribution for strict liability in tort (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210; Venus v. O’Hara (1984), 127 Ill. App. 3d 19, 468 N.E.2d 405), this argument does not answer the critical question here, that is, whether a warning is necessary in this case.

Section 388 of the Restatement (Second) of Torts (1965), which governs the duty to warn in a negligence action, provides, in relevant part:

“One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
* * *
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition ***.” (Restatement (Second) of Torts sec. 388(b) (1965).)

Comment k, under this section, further states that where the supplier “has no reason to expect that those for whose use the chattel is supplied will discover its [dangerous] condition and realize the danger involved,” no requirement of warnings is necessary. (Restatement (Second) of Torts sec. 388 comment k (1965).) Thus, a supplier is absolved from liability where the dangerous condition is one which a consumer would be expected to realize. In strict liability actions alleging failure to warn, it has been held in Illinois that warnings are unnecessary where the injury results from a common propensity of the product which is open and obvious. Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465; Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194; see Restatement (Second) of Torts sec. 402 A, comment j (1965).

Because the purpose of a warning is to apprise the user or consumer of a danger of which he or she is not aware of, so that he or she can protect himself or herself against it, no duty to warn arose in the present case, as the dangers of illegal handgun misuse were obvious and open conditions that a manufacturer or distributor would have no reason to expect that a reasonable consumer or user would not realize. As such, the dismissal of this claim was appropriate.

Plaintiffs next argue that the trial court erred in dismissing their counts which sought to impose strict liability upon the defendants, handgun manufacturers and distributors, on the basis that the manufacturing and marketing of handguns to the general public constituted engagement in an ultrahazardous or abnormally dangerous activity.

While Illinois has long recognized strict liability for damages caused by engaging in an abnormally dangerous or ultrahazardous activity (e.g., City of Joliet v. Harwood (1877), 86 Ill. 110 (blasting); Clark v. City of Chicago (1980), 88 Ill. App. 3d 760, 410 N.E.2d 1025 (demolition); Opal v. Material Service Corp. (1956), 9 Ill. App. 2d 433, 133 N.E.2d 733 (storage of dynamite)), the plaintiffs have cited no Illinois cases in which the mere manufacture or sale of a product, as opposed to the actual use of that product, has been held to constitute an activity that is abnormally dangerous or ultrahazardous, giving rise to strict liability in tort.

Nevertheless, the plaintiffs urge this court to adopt the holding of the only case that supports the plaintiffs’ position, Rickman v. Charter Arms Corp. (E.D. La. 1983), 571 E Supp. 192, which held that the manufacture and sale of nondefective handguns to the general public should be treated as an abnormally dangerous or ultrahazardous activity warranting strict liability recovery. However, we have found no decision other than Rickman that has held that the lawful sale of a non-defective product can be an ultrahazardous activity.

Most recently, the Seventh Circuit in Martin v. Harrington & Richardson, Inc. (7th Cir. 1984), 743 F.2d 1200, which considered this issue, applying Illinois law, failed to adopt the conclusion reached in Rickman. We agree with the Seventh Circuit’s observation in Martin of the logical inconsistency of the Rickman court’s analysis. As the court in Martin pointed out, the Rickman court blurred the distinction between strict liability for selling unreasonably dangerous products, which requires a defect in the product, and strict liability for engaging in an ultrahazardous activity by making the sale of a product an activity. This conclusion, the Martin court reasoned, is not only erroneous, but, more importantly, would run counter to Illinois’ longstanding requirement that strict liability for the sale of a product be limited to unreasonably dangerous products. Martin v. Harrington & Richardson, Inc. (7th Cir. 1984), 743 F.2d 1200,1204.

As it is not the manufacture and sale of handguns that is ultrahazardous, but their use or misuse that is alleged in plaintiffs’ claim here, the plaintiffs have no grounds for recovery under the doctrine of strict liability for engaging in ultrahazardous activities. To accept plaintiffs’ contention, we would be considerably extending the ultra-hazardous activity theory far beyond its accepted meaning. As there is no support for plaintiffs’ proposition in Illinois law, dismissal of these counts was proper.

Finally, the plaintiffs contend that the dismissal of their counts alleging strict liability in tort for a defective product was erroneous. Plaintiffs alleged that the defendants’ handguns were defectively designed in that they were small, easily concealable, relatively inexpensive, and served no useful social purpose.

Illinois follows the formulation set forth in section 402 A of the Restatement (Second) of Torts (1965), which imposes strict liability for defective products upon one “who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property.” (Restatement (Second) of Torts sec. 402 A (1965); Rios v. Niagara Machine & Tool Works (1974), 59 Ill. 2d 79, 319 N.E.2d 232.) Under Illinois law, a product is in a “defective condition” where the condition is one not contemplated by the ultimate consumer (Restatement (Second) of Torts sec. 402 A, comment g (1965)), which condition causes the product to fail to perform in the manner reasonably to be expected in light of its nature and intended function. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 342, 247 N.E.2d 401; Illinois Pattern Jury Instruction (IPI), Civil, No. 400.06 (2d ed. Supp. 1977).) Illinois applies a “consumer expectation” test, whereby a defective condition of a product will be considered “unreasonably dangerous” when it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” (Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 216, 412 N.E.2d 959, quoting Restatement (Second) of Torts sec. 402 A, comment i (1965).) Thus, to recover under strict liability in tort for defective products, a plaintiff must prove that an unreasonably dangerous condition existed in the product, that the condition existed at the time the product left the manufacturer’s control, and that the condition was a proximate cause of the plaintiff’s injury or damage. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182; Illinois Pattern Jury Instruction, IPI Civil 2d, No. 400.01 (Supp. 1977).

Plaintiffs have failed to meet this test. The alleged design defects of size and concealability of the defendants’ handguns were not conditions which caused the handgun to fail to perform in the manner reasonably to be expected in light of its nature and intended function. Other courts which have considered this issue have rejected the plaintiffs’ argument. Martin v. Harrington & Richardson, Inc. (7th Cir. 1984), 743 F.2d 1200, 1203; Mavilia v. Stoeger Industries (D. Mass. 1983), 574 F. Supp. 107, 110-111; Richman v. Charter Arms Corp. (E.D. La. 1983), 571 F. Supp. 192, 197; DeRosa v. Remington Arms Co. (E.D. N.Y. 1981), 509 F. Supp. 762; Bennet v. Cincinnati Checker Co. (E.D. Ky. 1973), 353 F. Supp. 1206,1210.

Moreover, the plaintiffs’ challenge regarding the handgun’s size and concealability is not an attack upon a design defect innate to the particular models of handguns used to kill the plaintiffs’ decedents. Rather, plaintiffs are claiming in effect that all small, concealable handguns are defectively designed. However, the plaintiffs have cited no Illinois decision in which it has been held that an entire product line may be held to be defectively designed where the plaintiff’s injury was caused by that product’s operation precisely as it was designed to operate.

Notwithstanding our conclusion above, the plaintiffs urge this court to adopt the risk/benefit test set forth in Barker v. Lull Engineering Co. (1978), 20 Cal. 3d 413, 573 P.2d 443, 143 Cal. Rptr. 225, upon which the plaintiffs principally rely. Aside from whether Illinois has discarded the “consumer expectation” test in favor of a risk/ benefit analysis as the plaintiffs contend, we conclude that the result in this case would be the same. Under Barker, a product may be found defective in design if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of such factors as the gravity and likelihood of danger, the feasibility of safer alternative designs, the financial cost of improved design and the adverse consequences of an alternative design, that the benefits of the challenged design outweigh the risk of danger inherent in such design. (Barker v. Lull Engineering Co. (1978), 20 Cal. 3d 413, 432, 573 P.2d 443, 456, 143 Cal. Rptr. 225, 238.) However, the plaintiff in Barker alleged particular defects in the construction of a forklift truck, and argued that not all forklift trucks are inherently defective, but that the particular design of one type of forklift truck was defective. In contrast, the plaintiffs here contend that all handguns, or at least all small, concealable, relatively inexpensive handguns, are defectively designed. In essence, plaintiffs complain not of the product’s particular design, but of the product itself. Because plaintiffs challenge the entire line of small, concealable handguns, the Barker factors to show that changes in this particular type of small handguns are unreasonably dangerous, given the availability of alternative designs, are inapplicable.

Accordingly, as we are unable to find a duty upon which the liability of the defendants, handgun manufacturers and distributors, may be premised, the order of the circuit court of Cook County granting the defendants’ motion to dismiss the plaintiffs’ complaints for failure to state a cause of action is affirmed.

Affirmed.

LINN and ROMITI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DONALD W. WILSON, JR., Defendant-Appellee.
    First District (3rd Division)
    No. 82—1224
    Opinion filed April 17, 1985.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Stoioff, and Stephen E. Eberhardt, Assistant State’s Attorneys, of counsel), for the People.
    Denise Hertz-McGrath, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

On September 19, 1981, and December 26, 1981, the juvenile defendant, Donald W. Wilson, Jr., was charged with various violations of the Liquor Control Act and the Motor Vehicle Code. Some of the offenses were Class A and Class C misdemeanors, which carry potential jail sentences. Defendant moved to dismiss the complaints for lack of jurisdiction, claiming that under section 2 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 7), he was required to be tried pursuant to that Act since the violations were not punishable by fine only. The trial court granted the motion, and the State appeals. We affirm in part and reverse and remand in part.

Section 2 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 7) provides:

“(1) Except as provided in this Section, no minor who was under 17 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State or for violation of an ordinance of any political subdivision thereof.
(2) Subject to paragraph (1) of Section 2 — 8, any minor alleged to have committed á traffic, boating or fish and game law violation or an offense punishable by fine only may be prosecuted therefor and if found guilty punished under any statute or ordinance relating thereto, without reference to the procedures set out in this Act.”

Two appellate court districts have interpreted the meaning of these provisions, and in so doing have reached opposite conclusions.

In People v. Sims (1982), 104 Ill. App. 3d 55, 432 N.E.2d 633, on which the court in the present case relied in granting defendant’s motion to dismiss, the fourth district construed section 2 — 7(2) to mean “that any minor alleged to have committed a traffic, boating, or fish and game violation punishable by fine only, or any other offense punishable by fine only, may be prosecuted therefor.” (104 Ill. App. 3d 55, 56, 432 N.E.2d 633, 634.) In support of its interpretation, the court looked to the purpose of the Juvenile Court Act, which is to correct, not punish, minors.

Subsequently, the third district addressed this same issue, and it rejected the Sims interpretation of section 2 — 7(2). (People v. Folkers (1983), 112 Ill. App. 3d 1007, 446 N.E.2d 311.) While the Folkers court found the reasoning in Sims persuasive, it nevertheless concluded that the Sims interpretation did not give effect to the intent of the legislature. We agree.

As the Folkers court pointed out, the Sims construction would render the phrase “traffic, boating or fish and game law violation” meaningless and superfluous. (112 Ill. App. 3d 1007, 1009-10, 446 N.E.2d 311, 312.) Under the rules of statutory construction, where a statute can be reasonably interpreted so as to give effect to all its provisions, a court will not adopt a strained reading which renders one part superfluous. (Panarese v. Hosty (1982), 104 Ill. App. 3d 627, 628-29, 432 N.E.2d 1333, 1335.) Furthermore, while the Folkers court acknowledged the purpose underlying the Juvenile Court Act, it recognized that section 2 — 7(2) sets forth exceptions to that Act and found that the language and implications of section 2 — 7(2) show that “the purpose of this legislation is to except a minor under the age of 17 from the provisions of section 2 — 7(1) when a minor either commits an offense punishable by fine only or, also, if he violates any traffic, boating or fish and game law.” (People v. Folkers (1983), 1007, 1010, 446 N.E.2d 311, 313.) Since we believe that this interpretation more accurately reflects the legislative intent underlying the statute, we follow the decision in Folkers rather than Sims.

Our decision to follow Folkers is strengthened by the fact that on September 8, 1982, approximately six months after Sims was decided, the legislature amended section 2 — 7(2) to read:

“Subject to paragraph (5) of Section 3 — 6 [not relevant here] any minor alleged to have committed a traffic, boating or fish and game law violation whether or not the violation is punishable by imprisonment or an offense punishable by fine only may be prosecuted therefor and if found guilty punished under any statute or ordinance relating thereto, without reference to the procedures set out in this Act.” (Pub. Act 82 — 973.)

The legislature’s decision to reword this provision in a manner rendering the Sims construction impossible shortly after Sims was decided clearly supports the conclusion that the Sims interpretation was contrary to the legislative intent.

Accordingly, the trial court’s order granting defendant’s motion to dismiss is reversed and the cause is remanded for further proceedings, with the exception of the misdemeanor complaint for the offense of consumption of alcoholic liquor by a minor. Since this charge does not involve an offense punishable by fine only, or a violation of any traffic, boating or fish and game law, it was properly dismissed.

Affirmed in part; reversed and remanded in part.

WHITE, P.J., and McGILLICUDDY, J., concur.


author: JUSTICE LINN

text:
    A. T. KEARNEY, INC., Plaintiff-Appellee, v. INCA INTERNATIONAL, INC., et al., Defendants-Appellants.
    First District (4th Division)
    No. 83—2308
    Opinion filed April 11, 1985.
    Rehearing denied May 16, 1985.

      Terence E. Flynn and Thomas J. Fleischmann, both of Rooks, Pitts, Fullagar & Poust, of Chicago, for appellant George Kackert.
    William Van Hagey and William T. McGrath, both of Chadwell & Kayser, Ltd., of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, management consulting firm, hired defendant, interior design company, to coordinate the design of its new offices, relying on defendant’s project manager to secure bids for the architectural woodworking involved therein. The project manager presented plaintiff with a single bid, that of a corporation that, unbeknownst to plaintiff, the project manager and two of his associates had incorporated several weeks earlier.

Relying on the project manager’s advice, plaintiff accepted the bid presented and paid to the newly formed corporation an earnest-money deposit of $175,000 to commence work. Immediately upon receipt of plaintiff’s deposit, one of the incorporators of the woodworking corporation opened an account in the corporate name and used the deposit money to repay a personal loan of $100,000, made to him prior to incorporation by an associate with knowledge of the corporation’s financial dealings and the source of repayment.

The trial court found the incorporators and the creditor/payee of the $100,000 personal loan guilty of conversion and held them jointly and severally liable under a theory of constructive trust for the entire amount of plaintiff’s loss. The creditor/payee appealed.

We affirm in part, reverse in part, and modify.

Facts

Plaintiff, A.T. Kearney, Inc. (Kearney), a management consulting firm, hired defendant, Interior Dynamics, Ltd. (IDL), to coordinate the relocation of its new offices, to be completed by September 1980. IDL, through its project manager/executive vice-president Bharat Kothari, was to obtain bids for the furnishings and architectural woodworking involved in the project. In its contract with Kearney, IDL promised to secure “competitive bids” from “reputable contractors known by [IDL].” Kearney relied completely on Kothari to secure the bids and to investigate and deal with the various vendors.

Despite IDL’s promise to secure competitive bids from reputable contractors, Kothari submitted to Kearney on May 5, 1980, only a single bid, one from INCA International, Inc. (INCA), a corporation which, unbeknownst to plaintiff, had been incorporated only three weeks earlier by Kothari and two of his close business associates. Kothari advised Kearney to accept INCA’s bid and informed Kearney that the normal practice and custom in the trade was to remit 50% of the total contract price as an earnest money deposit. Relying on Kothari’s advice, Kearney accepted INCA’s bid and delivered to Kothari a check payable to INCA in the amount of $175,000, unapprised by Kothari of his relationship to INCA, of INCA’s three-week old status, and of various other facts that called into question Kothari’s role as fiduciary and INCA’s reputability and ability to perform under the contract.

Kothari delivered the Kearney $175,000 job deposit to INCA on May 12, 1980. On May 13, 1980, Joseph Popp, another of INCA’s incorporators and an officer thereof, called defendant, George Kackert, an associate of his in the construction and real estate development business and Popp’s personal creditor, and informed Kackert that he had received the money for INCA, that he planned to open an account at Glenview State Bank, and that he would meet Kackert at the bank to repay the $100,000 personal loan Kackert had made to him several months earlier.

Kackert, the appellant here, initially became involved with Popp in March 1980, when Popp turned to him for financial assistance to facilitate the acquisition of Aztec, a woodcrafting plant in Nebraska that Popp and Thomas Jolitz, another INCA incorporator, were trying to purchase out of bankruptcy to perform the actual woodworking on the Kearney project. Kackert met with Popp, Jolitz, and Kothari on numerous occasions to discuss the concept of INCA, which was to serve as a holding company for the recently bankrupt Aztec to alleviate any difficulties Aztec might have in obtaining performance bonds. Popp told Kackert that Kothari was involved in the program to design work, to bring in investors and to bring business into the project. Kackert had several phone conversations with Kothari, met with him and the other INCA incorporators at Kothari’s office, and traveled with them to construction conventions in Atlantic City and New York City, where they discussed plans for INCA-Aztec. Kackert flew to Nebraska with Popp and Jolitz to inspect the Aztec facilities and signed documents in the capacity as treasurer of Aztec.

A pre-incorporation agreement for INCA was signed by Kackert, Popp, and Jolitz on or about March 28, 1980. Later that same day, Kackert had occasion to go to the bank to check on a loan application that Popp and Jolitz were supposedly making to get funds pursuant to the agreement to put the INCA-Aztec project together. When Kackert got to the bank, he learned that neither Popp nor Jolitz had attempted to obtain the agreed-on line of credit. Kackert called Popp and informed him that he wanted to withdraw from the deal because he was “not comfortable with it,” it was “far too voluminous; there were too many loose ends,” and “no documentation *** the performances they were requested to do in every area, for myself, and ultimately in the end, the last straw was the bank ***.”

Popp informed Kackert of the difficult financial position in which Kackert’s sudden withdrawal left the project and asked Kackert to make a personal loan of $100,000 to Jolitz, who had already begun to pay bills incurred by INCA-Aztec. Kackert refused to lend the money to Jolitz because he questioned his reputability, but he agreed to make a personal loan to Popp, who secured the loan with assignments of beneficial interests in real estate he owned personally.

After Kackert withdrew from the INCA deal, around March 29, Popp and Jolitz brought in Kothari as the third INCA incorporator. INCA was officially incorporated on April 15, 1980, some three weeks before INCA’s bid on the Kearney project was accepted.

As of the beginning of May, Popp had neither repaid Kackert for the personal loan nor paid the bank on the $270,000 loan that was secured in part by Kackert’s interest in a certificate of deposit. On May 3, Kackert learned that the bank had cashed the certificate of deposit in order to satisfy Popp’s overdue loan. From that date forward, Kackert, who had cause to believe that “there was nothing there as far as assets for INCA were concerned,” aggressively pursued Popp for repayment of the personal loan. To reassure Kackert of payment, Popp informed him that INCA would soon be receiving a substantial deposit, and Kackert was aware of the expected job deposit due INCA from the Kearney deal.

On May 13, Popp called Kackert and told him he had received the earnest money from Kearney. He arranged to meet Kackert at the bank, where he opened an account in INCA’s name. Repayment to Kackert of Popp’s personal loan was made in the form of an INCA International check drawn on the INCA account. At the time he accepted the INCA check, Kackert was aware that he had loaned the money to Popp personally, that he had never loaned money to INCA, and that INCA owed him no money. Approximately one week after Kackert received the INCA check, Kothari telephoned Kackert to request a personal loan of $25,000. Kackert testified that the proximity of this loan request and repayment from Popp was strictly fortuitous.

Plans for the Kearney project went forward until late June 1980, when Kothari received a Mailgram from the president of Aztec, informing him that due to lack of sufficient operating capital, Aztec had been forced to close its facilities and terminate all its employees. Upon receiving this information, Kearney instructed Kothari to get back the $175,000 earnest money deposit it had paid to INCA. On August 1, Kothari made written demand on INCA for refund of Kearney’s job deposit. No demand was ever made on Kackert personally. After demands made to INCA proved fruitless, Kearney instituted the instant action.

Kearney brought a nine count complaint against defendants IDL, Kothari, INCA, Jolitz, Popp and Kackert. The complaint alleged constructive trust, common law fraud, conversion, deceptive trade practices, breach of contract and conspiracy. At trial, defendants IDL and Jolitz, who had filed for protection under the bankruptcy laws, interposed the automatic stay. INCA defaulted, and the trial proceeded against Kothari, Popp and Kackert. The trial judge found the defendants jointly and severally liable on the counts of constructive trust and conversion. The court found in favor of defendants on all other counts. Defendant Kackert now appeals.

Opinion

I

After hearing 10 days of testimony and argument and reviewing over 1700 pages of evidence and transcripts, the trial judge found that George Kackert was not an innocent third party without knowledge who might otherwise be insulated from liability to Kearney, and held that Kearney was entitled to judgment against Kackert under the theories of conversion and constructive trust. The trial court found that (1) Kackert had actual knowledge of the source of the funds that he was accepting in the discharge of Popp’s personal debts; (2) he understood Popp to be a corporate officer of INCA; and that (3) Kackert was thus charged with knowledge that the funds he received in repayment of a personal loan were funds held in trust by Popp as a deposit for the completion of the Kearney job. The trial court noted that Illinois law will not permit a party with knowledge of a breach of trust to receive trust funds in the discharge of personal debts and then withhold them from recapture by the aggrieved party.

Based upon the trial court’s findings of fact and our reading of Illinois law, we find that the imposition of a constructive trust on Kackert arising out of his knowledge of a breach of a fiduciary duty is not against the manifest weight of the evidence but that the finding of conversion was error.

II

A constructive trust is one raised by operation of law and imposed by a court of equity where the legal title to money or property is obtained by a person in violation of some duty owing to him who is equitably entitled thereto. (Compton v. Compton (1953), 414 Ill. 149, 111 N.E.2d 109.) A constructive trust will be used to compel a party who unfairly holds a property interest or money to convey that property to the one to whom it justly belongs (Labarbera v. Labarbera (1983), 116 Ill. App. 3d 959, 452 N.E.2d 684); to prevent a person from holding for his own benefit an advantage gained by the abuse of a fiduciary relationship (Perry v. Wyeth (1962), 25 Ill. 2d 250, 184 N.E.2d 861); or, where the person holding property would be unjustly enriched if he were permitted to retain such property. (Zack Co. v. Sims (1982), 108 Ill. App. 3d 16, 438 N.E.2d 663.) An action to prevent unjust enrichment is maintainable in all cases where one person has received money under such circumstances that in equity and good conscience he ought not be allowed to keep it. Village of Wheeling v. Stavros (1980), 89 Ill. App. 3d 450, 411 N.E.2d 1067.

A confidential or fiduciary relationship exists where there is a special confidence reposed on one side and a resulting superior knowledge and influence on the other. (Hubbard v. Schumaker (1980), 82 Ill. App. 3d 476, 402 N.E.2d 857.) A fiduciary or confidential relationship which does not exist as a matter of law must be proved by clear and convincing evidence in order to establish it as the basis for the imposition of a constructive trust. (Hubbard v. Schumaker (1980), 82 Ill. App. 3d 476, 402 N.E.2d 857.) A fiduciary relationship exists as a matter of law between principal and agent. Carroll v. Caldwell (1957), 12 Ill. 2d 487,147 N.E.2d 69.

In the instant case, the trial court found that Kothari, by virtue of Kearney’s reliance on him, was an agent and fiduciary of Kearney. Because the facts in a constructive trust case, including those facts which establish the existence of a fiduciary relationship, are of such consequence, the opinion of the trier of fact must be given especially great weight. (Whewell v. Cox (1977), 54 Ill. App. 3d 179, 369 N.E.2d 330.) In light of the record before us, and in view of Kothari’s admission that Kearney relied upon him to solicit bids and in accepting the INCA bid, the trial court’s finding of a fiduciary relationship is not against the manifest weight of the evidence.

A constructive trust may be imposed upon property obtained by a third person through his knowledge of or involvement in a fiduciary’s breach of duty. (Village of Wheeling v. Stavros (1980), 89 Ill. App. 3d 450, 411 N.E.2d 1067.) A third party’s knowing participation in a breach of duty by an agent is a wrong against the principal which may subject the third party to liability. (Village of Wheeling v. Stavros (1980), 89 Ill. App. 3d 450, 411 N.E.2d 1067.) An agent must make known to his principal all material facts which are within the agent’s knowledge that may in any way affect the transaction and subject matter of his agency. (Browder v. Hanley Dawson Cadillac Co. (1978), 62 Ill. App. 3d 623, 379 N.E.2d 1206.) An agent owes a duty of loyalty and full disclosure to his principal. Willis v. Ruthrauff & Ryan, Inc. (1957), 14 Ill. App. 2d 259,144 N.E.2d 636.

Here, Kearney relied completely on Kothari, its agent and fiduciary, to obtain construction bids for its office relocation. Kothari presented Kearney with but a single bid, that of INCA, the corporation of which, unbeknownst to Kearney, Kothari was an incorporator and with which he had extremely close ties. Kothari advised Kearney to accept the INCA bid and, relying on Kothari’s advice, Kearney did so. The trial court found that at the time Kearney accepted the INCA bid, Kothari had not disclosed many material facts, including his role as an incorporator of INCA; that INCA had only been incorporated some several weeks prior to bidding; and that the Aztec woodworking facility, which INCA proposed to use for the Kearney project, had just been purchased out of bankruptcy and had notably limited woodworking capabilities and experience.

It is more than reasonable to find that Kothari’s failure to disclose to Kearney these salient facts was a breach of his fiduciary duty. Moreover, it is clear from the record that Kothari’s failure to disclose these facts, his presentation to Kearney of but a single bid, his advice to Kearney that it accept the INCA bid, and his advice to Kearney that Kearney pay to INCA a 50% earnest money deposit on the job caused the property at issue, the $175,000, to be transferred to a third party, namely, INCA International.

“Where a fiduciary in violation of his duty to the beneficiary transfers property or causes property to be transferred to a third person, the third person, if he gave no value or if he had notice of the violation of duty, holds the property upon a constructive trust for the beneficiary.” (Emphasis added.) Restatement of Restitution sec. 201(1) (1937).

Here, the third party to which Kothari caused the property to be transferred was INCA International and Popp. The issue then becomes whether this third party had notice of Kothari’s violation of his fiduciary duty to Kearney. If so, INCA and Popp, its officer, held Kearney’s money upon a constructive trust for the benefit of Kearney.

If an officer of a corporation has knowledge or notice of a fact, that knowledge or notice is generally imputed to the corporation. (In re Pubs, Inc. (7th Cir. 1980), 618 F.2d 432.) The facts adduced at trial and the findings by the trial court support the proposition that Popp, an officer of INCA, had knowledge that the earnest money deposit obtained from Kearney was obtained in breach of Kothari’s fiduciary duty to Kearney. Popp’s intimate and ongoing relationship with Kothari, one of Popp’s co-incorporators in INCA, their meetings and discussions concerning INCA/Aztec, and Popp’s own knowledge of certain factors not disclosed to Kearney prior to its acceptance of the INCA bid suggest that Popp was not without notice of Kothari’s breach of duty when he received Kearney’s deposit. Both Popp and imputedly INCA, thus having notice of this violation of duty by Kothari, held the job-deposit money as constructive trustees for the benefit of Kearney. It was therefore a breach of their trust to transfer the funds paid to INCA, either on the ground that those funds were held in trust for commencement of the Kearney project, as the trial court found; or, by virtue of the fact that INCA took from a fiduciary, Kothari, with notice that he was violating his fiduciary duty. Robert P. Butts & Co. v. Estate of Butts (1970), 119 Ill. App. 2d 242, 255 N.E.2d 622.

These same facts support the finding that defendant Kackert, who took from INCA, is liable to Kearney under the theory of constructive trust:

“b. Transfer by non-fiduciary. Where a person has an equitable interest in property held by another who is not in a fiduciary relation to him, and the holder transfers the property to a third person who is not a bona fide purchaser, the equitable interest is not cut off by such transfer and the equitable claimant can enforce it against the third person. Thus, where a person acquires property by fraud or otherwise under such circumstances that he holds it upon a constructive trust for the transferor, and the transferee transfers the property to a person who is not a bona fide purchaser, the latter holds the property upon a constructive trust for the person equitably entitled to it.” Restatement of Restitution sec. 168(1), comment b, at 685 (1937).

Kearney had an equitable interest in the funds paid to INCA as an earnest money deposit on its design job. That money was held by INCA, who was not in a fiduciary relationship to Kearney. INCA, by Popp, an officer thereof, transferred the property to Kackert, Popp’s creditor. In the case of a holder of a negotiable instrument, a purchaser, here a creditor who received the negotiable instrument as security for an antecedent debt (4 Scott on Trusts sec. 306 (3d ed. 1967)), has such notice as to amount to bad faith and give rise to a constructive trust if he has knowledge that a fiduciary has negotiated the instrument in breach of his fiduciary duty. (Ill. Rev. Stat. 1983, ch. 26, par. 3 — 304(2).) It is not against the manifest weight of the evidence, based on the record before us, to find that Kackert had knowledge that Kothari procurred Kearney’s acceptance of the INCA bid in breach of his fiduciary duty; and that the money Kackert accepted as repayment of the personal loan he had advanced to Popp, in the form of a negotiable instrument drawn by INCA, was in fact the earnest money job deposit paid to INCA by Kearney. Kackert was therefore not a bona fide purchaser but rather held the property transferred to him as a constructive trustee for the benefit of Kearney. For these reasons, we find that the trial court’s imposition of a constructive trust upon Kackert was not error.

III

In addition to the imposition of a constructive trust for breach of a fiduciary duty, the trial court found defendant Kackert guilty of conversion. The elements of conversion are (1) unauthorized and wrongful assumption of control or ownership by one person over the personality of another; (2) the other person’s right in the property; (3) the right to immediate possession of the property; and (4) a demand for possession. (Scheduling Corp. of America v. Massello (1983), 119 Ill. App. 3d 355, 456 N.E.2d 298.) The essence of conversion is not acquisition by the wrongdoer but a wrongful deprivation of the owner thereof. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 419 N.E.2d 578.) We must agree with defendant that neither the essential elements nor the essence of conversion is present under the facts at bar.

It is undisputed that Kearney voluntarily permitted to be certified the deposit check Kothari delivered to INCA, thereby discharging Kearney from liability (Ill. Rev. Stat. 1983, ch. 26, par. 3 — 411) and necessarily curtailing its right to possession thereof. While Kearney maintained an equitable interest in the funds paid to INCA, it relinquished its legal right to possession upon certification, where, as here, there has been no evidence to show that the certification has been procured by mistake or fraud. (Van Geem v. Skokie Trust & Savings Bank (1963), 41 Ill. App. 2d 77, 190 N.E.2d 180.) It has not been proved that INCA was unauthorized to assume control or ownership of Kearney’s deposit money. At the time INCA, via Popp, turned over the funds to Kackert, Kearney no longer owned the funds. Kackert, therefore, did not wrongfully deprive Kearney of its deposit.

Moreover, Kearney readily admits that at no time did he ever make demand on Kackert for return of the job deposit. This court has formerly acknowledged that the cases are divided as to whether an allegation of demand and refusal is always necessary to maintain a cause of action for conversion. (Monroe County Water Cooperative v. City of Waterloo (1982), 107 Ill. App. 3d 477, 437 N.E.2d 1237.) The Monroe court noted, however, that in those cases which do not impose on a plaintiff the requirement of demand and refusal, the defendant has sold or otherwise disposed of the property in question and thus no longer has possession thereof. (107 Ill. App. 3d 477, 481, 437 N.E.2d 1237.) In such cases, demand would indeed be futile. This is not one of those cases. In the instant case, defendant Kackert is in possession of the subject property so that no such futility of demand exists. Correspondingly, an action for conversion under these circumstances must include a demand for possession or it cannot be said that there has been a deprivation. Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 407 N.E.2d 156.

In light of these considerations, we find that plaintiff has failed to carry his burden of proving all of the essential elements necessary to constitute conversion and his entitlement to the remedy arising therefrom.

IV

Defendant lastly contends that, under any view of these facts, he can only be held liable for the money he actually received, $106,452, and not for the entire amount of Kearney’s loss, the $175,000 deposit. The trial court found Kackert jointly and severally liable for the totality of Kearney’s loss based on its finding of conversion and constructive trust. Having found no conversion to lie, we find that joint and several liability is inappropriate solely in relation to the equitable remedy of constructive trust.

A constructive trust arises only where there is property on which it can be fastened, and such property is held by the person to be charged as constructive trustee. (Graham v. Mimms (1982), 111 Ill. App. 3d 751, 444 N.E.2d 549.) Once the court determines that a defendant must make restitution, it orders him to transfer that property of which he is a trustee to the beneficiary of this judicially created trust. (Graham v. Mimms (1982), 111 Ill. App. 3d 751, 444 N.E.2d 549.) So, where a person holds property subject to an equitable lien in favor of another and transfers it to a person who is not a bona fide purchaser, the latter holds that particular property as constructive trustee. Restatement of Restitution sec. 168(1), comment b, at 685 (1937).

The purpose of a constructive trust is to prevent unjust enrichment. (David v. Russo (1983), 119 Ill. App. 3d 290, 456 N.E.2d 342.) The amount by which Kackert was unjustly enriched was $106,452. The property upon which the judicially created constructive trust may be fastened and that by which defendant must make restitution is the property of which Kackert is in possession. Kackert must restore to plaintiff that in his possession which rightfully belongs to plaintiff. The trust property here and that to which the beneficiary, Kearney, is entitled is $106,452.

V

For all of the above reasons, we affirm the trial court’s imposition of a constructive trust, reverse the finding of conversion, and reduce the amount of the constructive trust imposed on defendant Kackert to $106,452, the money that he actually received.

Affirmed in part, reversed in part, and modified.

JOHNSON and ROMITI, JJ., concur.

       Defendants IDL, INCA, John J. Popp, Thomas Jolitz and Bharat Kothari are not parties to the instant appeal. The sole appellant is George Kackert.


author: JUSTICE McNAMARA

text:
    CHARLES E. WEBSTER et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (3rd Division)
    No. 83—2827
    Opinion filed April 17, 1985.

      Arnold M. Flamm and Marshall Patner, both of Orlikoff, Flamm & Patner, and Robert D. Allison, of Bilandic, Neistein, Richman, Hauslinger & Young, Ltd., both of Chicago, for appellants.
    James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan, Philip L. Bronstein, and Stanley Kaminski, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Charles Webster and Fredrick Blum, brought this action against defendant city of Chicago seeking a declaration that the Chicago Transaction Tax Ordinance is unconstitutional and an injunction enjoining the collection of the tax. The trial court granted the city’s motion to dismiss the action, and plaintiffs appeal.

On December 14, 1973, the city enacted chapter 200.1 of the Municipal Code under its home rule powers. Section 2.A.1 imposes a tax on the lease or rental of personal property at the rate of 6% of the lease or rental price. The ordinance provides, in section 2.A.2, that the ultimate incidence of and liability for the tax is on the lessee. The tax is collected by the lessor and remitted to the city through the purchase of tax stamps. The ordinance also provides for a tax on the transfer of title to real estate, which is not challenged here.

Webster rented automobiles, while Blum rented formal clothing, after January 1, 1974, the effective day of the ordinance. Both plaintiffs were charged the 6% tax by the lessors. On February 10, 1983, they brought this suit as a class action on behalf of all persons who leased personal property and paid the tax. Plaintiffs allege that the leasing tax provision violates article VII, section 6(e) of the Illinois Constitution (Ill. Const. 1970, art. VII, sec. 6(e)), because it is a tax on services or occupations and is measured by income or earnings.

We initially note that the constitutionality of the leasing tax was unsuccessfully challenged in Williams v. City of Chicago (1977), 66 Ill. 2d 423, 362 N.E.2d 1030, on equal protection and due process grounds. Williams is not decisive in this appeal, however, since the issues raised here have not been considered heretofore. Fujimura v. Chicago Transit Authority (1977), 67 Ill. 2d 506, 368 N.E.2d 105; Heany v. Northeast Park District (1935), 360 Ill. 254, 195 N.E. 649.

The 1970 Illinois Constitution adopted a system of home rule units and granted specific powers to those units. Section 6(a) of article VII provides:

“Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power *** to tax ***.”

Section 6(e) limits the taxing power as follows:

“A home rule unit shall have only the power that the General Assembly may provide by law *** to license for revenue or impose taxes upon or measured by income or earnings or upon occupations.”

The powers of a home rule unit are construed liberally. Ill. Const. 1970, art. VII, sec. 6(m).

Plaintiffs contend that the leasing tax is prohibited by section 6(e). Initially they maintain that the leasing of personal property is a service and that any tax on services is an impermissible tax on occupations. Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 432 N.E .2d 227.

In the context of Illinois tax law, the supreme court defined “service” as “all ‘sales’ transactions other than sales of tangible property.” (Waukegan Community Unit School District No. 60 v. City of Waukegan (1983), 95 Ill. 2d 244, 254, 447 N.E.2d 345.) During the Constitutional Convention debates on paragraph 4.4, which became section 6(e), the delegates indicated that a sales or use tax was permissible (4 Record of Proceedings, Sixth Illinois Constitutional Convention 3154 (hereinafter cited as Proceedings)), but a tax on service providers was prohibited. The types of services which could not be taxed were, for example, those provided by doctors, lawyers, accountants, beauticians, repairmen and travel agents. (4 Proceedings 3160, 3366.) Consequently, a tax on parking spaces and hotel rooms was constitutional (Jacobs v. City of Chicago (1973), 53 Ill. 2d 421, 292 N.E .2d 401; Springfield Hotel-Motel Association v. City of Springfield (1983), 119 Ill. App. 3d 753, 457 N.E.2d 1017), while a tax on utilities was unconstitutional. Waukegan Community Unit School District No. 60 v. City of Waukegan (1983), 95 Ill. 2d 244, 447 N.E.2d 345.

Although plaintiffs refer us to telephone books and various Federal publications which classify the business of leasing personal property as a service, we are of the opinion that the leasing tax is akin to the parking and hotel taxes. In each instance the consumer is paying for the use and temporary transfer of possession of tangible property. Any intangible activity provided by the lessor is incidental to the transaction. The Chicago Transaction Tax is not an invalid service tax.

Plaintiffs also maintain that, even if leasing is not a service, the leasing tax is invalid as a tax on the occupation of leasing. They argue that the practical operation of the ordinance, and not the inclusion of the “magic words” that the ultimate incidence of the tax is on the lessee, should determine the validity of the tax.

It has long been recognized that there is little distinction between a permitted tax on a sales transaction and an impermissible tax on the occupation of selling. However, such a distinction must be drawn. The tax is not within the home rule unit’s power to impose if it is one which was intended by the delegates to fall within the proscription of section 6(e). Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 432 N.E.2d 227.

In addition to imposing the tax burden on the lessee, the city’s leasing tax provides for fines and penalties against the lessee for failure to pay the tax. That the lessor must collect the tax and remit it to the city does not make the leasing tax a tax on occupations. (S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 284 N.E.2d 257.) Furthermore, nothing in the history of section 6(e) evidences an intent to prevent a tax on temporary transfers of personal property. The leasing tax is not a tax on occupations.

Plaintiffs finally contend that the leasing tax is a tax measured by income or earnings in violation of section 6(e).

The income or earnings restriction was included in paragraph 4.4 to avoid a problem experienced in Colorado when it adopted a home rule unit system. (4 Proceedings, 3156-57.) In 1957, the city of Denver attempted to impose an income tax, which the Colorado Supreme Court struck down. (City of Denver v. Sweet (1958), 138 Colo. 41, 329 P.2d 441.) Several years later the city adopted an “earnings” tax. This tax was also found to be invalid. (City of Denver v. Duffy Storage & Moving Co. (1969), 168 Colo. 91, 450 P.2d 339.) The delegates to our Constitutional Convention perceived the “income or earnings” language as one way to prevent a home rule unit from instituting a disguised occupation tax. In light of our holding that the leasing, tax is a tax on transactions which the legislature intended to permit, we do not believe that it is an invalid income or earnings tax.

For the foregoing reasons, the judgment of the circuit court of Cook County upholding the validity of the Chicago Transaction Tax is affirmed.

Judgment affirmed.

WHITE, P.J., and McGILLICUDDY, J., concur.


author: JUSTICE BARRY

text:
    JULIUS GIANAKOS, Plaintiff-Appellant, v. THE CITY OF PEORIA, Defendant-Appellee.
    Third District
    No. 3—83—0389
    Opinion filed November 30, 1984.
    Rehearing denied May 24, 1985.
    Julian E. Canned, of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria, for appellant.
    Brian M. Nemenoff, Corporation Counsel, of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The plaintiff, Julius Gianakos, is owner of certain real property in Peoria. The defendant, the city of Peoria, rezoned an area including the plaintiff’s property. The plaintiff challenged the rezoning in court. The trial court upheld the zoning ordinance and this appeal followed.

The property at issue is addressed as 104 Roanoke and 108 Roanoke. An old duplex currently stands on 104, while a 16-unit apartment complex built in 1977-78 stands on 108. The lots are adjoining. When the plaintiff acquired the property, it was zoned R-3, high density residential. On June 1, 1982, the city adopted a zoning reclassification ordinance for property in Peoria’s West Bluff area, an area known as the Randolph/Roanoke neighborhood. The ordinance affected 32 properties, including that at issue. It reclassified the plaintiff’s property as R-2, medium density residential.

Under the ordinance, the plaintiff’s apartment complex at 108 Roanoke is a lawful, nonconforming use. Under the city’s permanent zoning code the complex’s nonconforming use may continue indefinitely until either it is abandoned for more than one year or it is substantially destroyed. Under the ordinance, the plaintiff’s duplex at 104 Roanoke is a permitted use. However, the plaintiff claims he intended to build at 104 an eight-unit addition to the 108 Roanoke apartment building. Such an addition apparently would have been allowed under the R-3 classification, but is not allowed under R-2 zoning.

In reaction to the zoning ordinance, the plaintiff filed a two-count complaint. Only count I is relevant to this appeal. In count I the plaintiff alleged that the ordinance was invalid in that it was arbitrary, discriminatory, confiscatory and failed to bear any reasonable relationship to the public good. The plaintiff prayed, inter alia, for a declaratory judgment that the ordinance was unconstitutional and void, and that he was entitled to use the subject property for reasonable purposes allowed by an R-3 zoning classification.

At the trial, the plaintiff presented evidence that the enforcement of the ordinance decreased the market value of his apartment complex at 108 Roanoke and made impossible his intended development of the 104 Roanoke property. The plaintiff also presented evidence that there was a property with a 12-unit apartment building near the plaintiff’s property and within the Randolph/Roanoke neighborhood which was zoned R-3 and not included in the zoning rollback.

The trial court received other evidence, including written development plans for Peoria’s West Bluff and the downtown redevelopment areas. According to the plans, the West Bluff area is principally residential. It also includes Bradley University and some commercial property. The downtown redevelopment area includes Peoria’s principal commercial district plus some institutional and some residential properties. The two area maps overlap so that each contains the subject property. The subject property is in a residential area on the fringe of downtown Peoria.

The trial court also received the testimony of Wayne Anthony, Peoria’s director of planning and zoning. Mr. Anthony, who supervised a study of the West Bluff area, testified at the trial that the plaintiff’s property was properly treated under the West Bluff plan rather than the downtown redevelopment plan. Anthony testified that the Randolph/Roanoke area had been rezoned in correspondence with the West Bluff area plan. That plan was developed following a determination that it was desirable to limit the increase of density in the area. According to Anthony, the plan provides that there will be no R-3 zoning in the West Bluff area.

In support of the zoning change, Anthony stated that as it affected property which is not yet developed to the maximum allowed under R-3 zoning, such as the plaintiff’s duplex, the change to R-2 benefited the public by limiting future problems with levels of traffic, off-street parking, and deterioration and disinvestment in the neighborhood. Further, Mr. Anthony’s statements suggested that he considered there was also a public benefit in having the zoning change include property already developed to a density greater than R-2, such as the plaintiff’s apartment complex. According to Mr. Anthony’s statements, the change of zoning for the latter category of property benefited the public by providing more uniform zoning for the area. Mr. Anthony suggested that uniformity in zoning is desirable from the public’s perspective, since any zoning variations can encourage other property owners to seek variations and can make more likely additional alterations in the zoning. Variations may, then, frustrate the efforts and lessen the public benefit of the land use planning.

The trial court found that the zoning ordinance was not arbitrary, discriminatory or confiscatory but that it bore a reasonable relationship to the public’s health, safety, morals, and general welfare. The court entered judgment for the defendant, and the plaintiff appealed. On appeal, the plaintiff argues that the factors to be considered in determining the validity of the ordinance weigh substantially in his favor. He argues that there is no public benefit requiring a change in the original zoning ordinance.

A zoning ordinance is presumed valid. One challenging the ordinance bears the burden of establishing by clear and convincing evidence that the ordinance, as applied, is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare. (Tomasele v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899.) Factors which a court may consider in determining validity of a zoning ordinance include: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the zoning restrictions; (3) the extent to which the ordinance promotes the public’s health, safety, morals or general welfare; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; and (5) the suitability of the property for the zoning. (Harris Trust & Savings Bank v. Duggan (1983), 95 Ill. 2d 516, 449 N.E.2d 69.) Hi reviewing the judgment in a zoning case, we will not disturb the trial court’s findings unless they are against the manifest weight of the evidence. Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 377 N.E.2d 21.

We can understand the plaintiff’s displeasure with the zoning change, particularly given the circumstance that a neighboring apartment complex was not part of the instant rezoning. Furthermore, the record shows that the plaintiff may suffer hardship under the ordinance. However, there is also evidence that it was proper for the plaintiff’s property to be zoned with reference to the West Bluff plan and that there was a public benefit in the zoning change. The trial court found that the ordinance was valid. We do not find that the trial court’s findings were against the manifest weight of the evidence.

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

Affirmed.

STOUDER, P.J., and HEIPLE, J., concur.


author: JUSTICE MeGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT GRAHAM, Defendant-Appellant.
    First District (3rd Division)
    No. 79—422
    Opinion filed April 17, 1985.

      Steven Clark and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MeGILLICUDDY

delivered the opinion of the court:

Following a jury trial, the defendant, Robert Graham, was convicted of murder, attempted murder and armed robbery, and received concurrent sentences of 40 to 80 years, 30 to 60 years and 15 to 30 years, respectively. On appeal, the defendant contends that (1) his murder conviction must be reversed because the felony-murder rule was inapplicable where the deceased was a participant in the forcible felony; (2) the trial court erred in instructing the jury that the defendant could be found guilty of murder under a theory of accountability for Officer Patrick White’s conduct; (3) the trial court erroneously gave instructions which permitted the jury to find the defendant guilty of attempted murder without finding specific intent to kill; (4) the trial court improperly admitted hearsay evidence; (5) prosecutorial remarks in opening and closing statements and during trial were improper; and (6) imposition of the sentences defendant received was an abuse of the trial court’s discretion.

Officer White of the Chicago police department testified that at about 11:45 p.m. on August 13, 1974, while off duty, he went to the Jewel Food Store at 2323 West 111th Street, Chicago. Officer White was carrying a Colt .45 revolver and a Smith .357 revolver. In the parking lot, he met Patrick Murray, an acquaintance employed at the store. The two men were followed into the store by the defendant, Rodney Hewitt and Joe Larry Nicholson. The defendant walked to the customer service counter, Hewitt moved to the window and Nicholson went to the express checkout lane. Partially covering his face with a yellow bandana, the defendant drew a gun and announced a holdup. Hewitt and Nicholson also drew guns. The defendant demanded money from the woman working behind the service counter. Officer White pulled out his police star and .45 revolver, announced that he was a police officer and ordered the men to freeze. Nicholson shot once at the night manager and opened fire on Officer White. Hewitt and the defendant, whose scarf had fallen down, also began to shoot at the policeman. Officer White returned the gunfire. Nicholson ran toward the door, followed by Hewitt and the defendant. Nicholson fell just outside the door. Hewitt and the defendant tripped over Nicholson, regained their footing and ran on. Officer White pursued them, reaching the door. Just before the defendant rounded the corner of the building, he turned and shot at Officer White. Officer White fired back. The defendant fell around the comer as if he had been shot. Officer White noticed a gun in the hand of Nicholson, who was wounded and still on the ground, and another gun next to him. The policeman kicked the revolver out of Nicholson’s hand. As he chased Hewitt and the defendant, he observed a green 1972 Plymouth in the parking lot with no one in it. Hewitt and the defendant jumped over a wooden fence adjacent to the lot. Officer White returned to the store. Shortly thereafter, he observed that the Plymouth was gone, and he discovered a bloodstained paper bag by the fence.

Later that night, Officer White turned in his guns at the Area 2 police station for a ballistics check. He identified two photographs of the defendant. On September 26, 1974, Officer White identified the defendant in a lineup.

Patrick Murray testified that on August 13, 1974, he was employed by the Jewel Food Store at 2323 West 111th Street, Chicago. At 11:45 p.m. on that day, he encountered Officer White in the store parking lot as he arrived to pick up a paycheck. He described the robbery, corroborating Officer White’s testimony. On September 26, 1974, Murray identified the defendant in a lineup.

Millicent Speck testified that on August 13, 1974, she was working at the customer service desk of the Jewel Food Store at 2323 West 111th Street, Chicago. As she wrapped money in bands marked with the store’s name and address, she wrote her name and the amount on the bands. A man pointed a gun at her, announced a holdup and demanded money from the safe. Speck handed over three bands of money. When he asked for a paper bag, she told him to get one from the register. Then she heard a shot. She lay on the floor while more shots sounded, and got up when she heard familiar voices. Subsequently, Speck was taken to a police station, where she identified two money bands with her handwriting and the store’s name and address.

Dr. Eupil Choi testified that Joe Larry Nicholson died of a bullet wound to the head.

Sergeant Donald Smith, a Chicago police department firearms expert, testified that the bullet and bullet fragment removed from Nicholson’s body were .32 caliber and could only have been fired from a .32 caliber pistol. In connection with this case, he examined four guns: a J. C. Higgins .22 caliber pistol and a .25 caliber pistol, both recovered from the vicinity of Nicholson’s body, and Officer White’s Colt .45 revolver and .357 magnum revolver.

Sergeant Franklin Smith testified that at about 1:30 a.m. on August 14, 1974, he was working as a homicide investigator for the Chicago police department. He went to Provident Hospital to interview the defendant, who had been admitted with a gunshot wound to the abdomen. Sergeant Smith was following routine police procedure. He had no knowledge of the robbery. The defendant stated that he had been shot accidentally by John Lester while they were playing with a gun; that Ronald Waites had brought him to the hospital, and that he did not wish to press charges. About an hour later, Sergeant Smith heard a radio message regarding a man possibly shot in connection with the Jewel robbery. He informed police authorities of his interview with the defendant. The defendant was arrested at about 3 a.m.

Officer Thomas Boyd of the Chicago police department testified that after speaking with an informant, he and several officers headed toward a house at 115th Street and Vincennes Avenue in search of Orville McReynolds. At 112th Street, they stopped an automobile driven by Ronald Waites. Money protruded from the pants zipper of his passenger, Vemita Graham. Upon her refusal to remove the money, Officer Boyd took it. The money was wrapped in a band marked with the name and address of the Jewel store at 2323 West 111th Street. Officer Carolyn Basile of the Chicago police department searched Vernita Graham, recovering more banded money.

An examination of the house on 115th Street, where Waites lived, proved fruitless. The police proceeded to a house at 17134 Watkins Street. There, they found several items of clothing and a wallet that were blood-soaked. The wallet contained numerous pieces of identification bearing the name “Orville McReynolds.” Tests revealed that the blood on these items and on the paper bag was type B, the defendant’s blood type.

The jury returned guilty verdicts of murder, attempted murder and voluntary manslaughter against the defendant. The trial court sentenced the defendant to 40 to 80 years, 30 to 60 years and 15 to 30 years, respectively. The sentences were ordered to run concurrently. The defendant appeals.

The defendant contends that he cannot be convicted of murder in the death of his cofelon, Nicholson, under the felony-murder doctrine. Section 9 — 1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 1(a)(3)) provides that a person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death, he is attempting or committing a forcible felony other than voluntary manslaughter. Committee comments add that it is immaterial whether the killing is intentional or accidental, or is committed by a confederate without the connivance of the defendant, or even by a third person trying to prevent the commission of the felony. (Ill. Ann. Stat., ch. 38, par. 9 — 1(a)(3), Committee Comments, at 16 (Smith-Hurd 1979).) Where several persons conspire to do an unlawful act and another crime is committed in the pursuit of the common object, all are alike guilty of the crime committed if it is a natural and probable consequence of the execution of the conspiracy. (People v. Payne (1935), 359 Ill. 246, 194 N.E. 539.) A felon is responsible for those deaths which occur during a felony and which are the foreseeable consequence of his initial criminal acts. People v. Brown (1979), 70 Ill. App. 3d 922, 388 N.E.2d 1253.

In support of his contention, the defendant relies upon People v. Morris (1971), 1 Ill. App. 3d 566, 274 N.E.2d 898. In Morris, the defendant’s cofelon was justifiably killed by an innocent third party trying to prevent a forcible felony. The felony-murder doctrine was found inapplicable, and the defendant’s murder conviction was reversed, because the killing was not an act done in furtherance of the common design to commit a forcible felony. The defendant in the instant case urges us to similarly hold that he is not responsible for his cofelon’s death under the felony-murder rule. However, the instant facts are distinguishable from those in Morris. The evidence indicates that Nicholson was shot by the defendant or Hewitt as they fired at Officer White during their escape. The period of time involved in an escape with immediate pursuit after committing a crime is part of the crime itself. (People v. Hickman (1973), 12 Ill. App. 3d 412, 297 N.E.2d 582; see People v. Golson (1965), 32 Ill. 2d 398, 207 N.E.2d 68.) Under these circumstances, the killing was an act done in furtherance of the common design to commit a forcible felony.

Our research reveals only one Illinois case where a reviewing court considered the question whether the felony-murder rule applies when one cofelon kills a cofelon during the commission of a forcible felony. In People v. Rice (1982), 108 Ill. App. 3d 344, 438 N.E.2d 1333, the defendant was convicted of murder after he shot and killed his cofelon during their attempted armed robbery of Vincent Moore. On appeal, the defendant challenged the felony-murder instruction given to the jury, relying on Morris to argue that felony-murder did not apply where the victim was a participant in the forcible felony. In People v. Rice the court refuted this argument, distinguishing Morris:

“In Morris, it was held that since a co-felon was justifiably killed by an innocent party during the commission of an armed robbery, the felony murder theory did not apply to the surviving co-felon — the court’s rationale being that the death of the co-felon occurred during a struggle with an innocent third party, which was not an action done in furtherance of the armed robbery. Here, unlike Morris, the record does not permit a finding that defendant’s actions were justifiable or that he was an innocent party to the armed robbery of Vincent Moore.” (108 Ill. App. 3d 344, 354.)

The defendant’s conviction was affirmed.

Hickman applied the felony-murder doctrine to find the fleeing perpetrators of a forcible felony guilty of murder when a pursuing detective was mistakenly shot and killed by a police officer also in pursuit of the felons. The defendant attempts to distinguish Hickman from the instant case on the basis of the innocence of the deceased; in contrast, the defendant points out, Nicholson was a participant in the robbery. Such a distinction, however, is insufficient to preclude the application of the felony-murder doctrine to the case at bar. The legislative intent behind felony-murder was to deter persons from committing forcible felonies by holding them responsible for murder if death results. (People v. Viser (1975), 62 Ill. 2d 568, 343 N.E.2d 903.) We believe that purpose would be thwarted if we accepted the defendant’s position.

The defendant emphasizes that Hickman’s progeny attributes to it a two-pronged test for felony-murder: (1) evidence that shows the defendant was a participant in a forcible felony and (2) evidence that shows an innocent party was killed during the commission of the felony as a direct and foreseeable consequence of it. (People v. Burke (1980), 85 Ill. App. 3d 939, 407 N.E.2d 728; People v. Brown (1979), 70 Ill. App. 3d 922, 388 N.E.2d 1253.) Our examination of Hickman reveals no indication of an intent to render the felony-murder rule inapplicable where the deceased was not an innocent party to the forcible felony. Indeed, Hickman focused on the character of the killer, not the victim. Moreover, the felony-murder statute addresses the killing of “an individual” during a forcible felony; the language does not distinguish between victims who are innocent and victims who are co-felons. In keeping with its purpose, we find the guilt or innocence of the deceased irrelevant to the felony-murder doctrine. The defendant was properly convicted of murder in the death of Nicholson under the felony-murder rule.

The defendant argues that the trial court improperly instructed the jury on murder based on accountability for Officer White’s conduct. The instruction complained of is People’s Instruction No. 13, which provided as follows:

“A person who is attempting to commit or is committing an Armed Robbery is responsible for the consequences of the conduct of any person who is attempting to prevent the commission of the Armed Robbery.” Illinois Pattern Jury Instruction (DPI), Criminal, No. 5.03, modified (2d ed. 1978); People’s Instruction No. 13.)

The trial court explained that it was giving this instruction based on Hickman, where the defendant was held responsible for the consequence of the conduct of a police officer attempting to prevent the commission of burglary. The instruction properly articulated the applicable law to the jury.

The defendant alleges that, under Brown, he cannot be held accountable for Officer White’s conduct because they did not enter into a common plan. The defendant in Brown advanced a similar argument, maintaining that his culpability for his cofelon’s acts depended on proof of a common plan or design between the two to commit armed robbery. This court rejected this theory, noting that Illinois law imposes criminal liability on a felon not only when the death-causing act is done by a confederate in furtherance of the felony, but also when the death occurs during the felony as a foreseeable consequence of his initial criminal acts. A common plan between the felon and the one whose act killed the victim is not a requirement under the felony-murder rule. The trial court properly instructed the jury on murder based on accountability for Officer White’s conduct.

The defendant further asserts that the instructions erroneously permitted the jury to find him guilty of attempted murder without finding specific intent to kill. At the close of the evidence, over the defendant’s objection, the jury was instructed in pertinent part as follows:

“A person commits the crime of murder who kills an individual if, in performing the acts which cause the death, he intends to kill *** that individual; or he is attempting to commit or is committing the crime of Armed Robbery.” IPI Criminal 2d No. 7.01; Peoples Instruction No. 15.
“A person commits the crime of attempt [Murder] who, with the intent to commit the crime of Murder, does any act which constitutes a substantial step toward the commission of the crime of Murder.
The crime attempted need not have been committed.” IPI Criminal 2d No. 6.05; People’s Instruction No. 17.
“To sustain the charge of Attempt Murder, the State must prove the following propositions; [sic\
FIRST: That the defendant, or one for whose conduct he is responsible, performed an act which constituted a substantial step toward the commission of the crime of Murder of Patrick White; and
SECOND: That the defendant or one for whose conduct he is responsible, did so with the intent to commit the crime of Murder of Patrick White; and
THIRD: That at the time the defendant or one for whose conduct he is responsible, performed this act he intended to kill Patrick White.” IPI Criminal 2d No. 6.07; People’s Instruction No. 18.

The offense of attempt requires an intent to commit a specific offense, while the distinctive characteristic of felony-murder is that it does not involve an intent to kill. (People v. Viser (1975), 62 Ill. 2d 568, 343 N.E.2d 903.) An instruction must make it clear that to convict for attempted murder nothing.less than a criminal intent to kill must be shown. (People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28.) An attempted murder instruction must limit the accompanying definition of murder to an act committed with an intent to kill. (Peo pie v. Lotts (1978), 63 Ill. App. 3d 240, 380 N.E.2d 66.) In the instant case, People’s Instruction No. 18 properly instructed the jury that a finding of intent to kill Patrick White was requisite to an attempted murder conviction.

Defendant’s reliance on Viser, Harris and Lotts is misplaced. In each of those cases, the instruction on attempted murder authorized a conviction upon a finding of intent to commit murder; the accompanying murder instruction offered a definition of murder which was not limited to an intent to kill. Hence, the jury could have based its attempted murder conviction on a finding that the defendant acted with less than an intent to kill. As the offense of attempted murder requires a specific intent to kill (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 4; People v. Viser (1975), 62 Ill. 2d 568, 343 N.E.2d 903), these instructions were improper and compelled reversal. In the case at bar, while People’s Instruction No. 17 on attempted murder requires only an intent to commit the crime of murder, People’s Instruction No. 18 provides that to sustain the charge of attempted murder, the State must prove, inter alia, that the defendant intended to kill Officer White. Considering the instructions as a whole (People v. Porter (1957), 11 Ill. 2d 285, 143 N.E.2d 250; People v. Camacho (1979), 71 Ill. App. 3d 943, 389 N.E.2d 1213), they set out a correct statement of the law applicable to the attempted murder charge. The instructions did not permit the jury to find the defendant guilty of attempted murder without finding a specific intent to kill.

The defendant maintains that the trial court erred in allowing testimony as to an informer’s information and as to the identity of Waites and Vernita Graham, because such testimony was hearsay evidence. Hearsay is in-court testimony concerning an out-of-court statement offered to prove the truth of the matter asserted therein. (People v. Vanda (1982), 111 Ill. App. 3d 551, 444 N.E.2d 609.) Pursuant to the defendant’s motion in limine seeking to exclude such evidence, the trial court prohibited any State reference to statements of Vernita Graham, Waites or the informer.

The defendant complains that the State introduced testimony showing that the informer told the police that Orville McReynolds was one of the robbers. The record indicates that evidence was introduced showing that the informer was brought to the police station from the hospital, that he was questioned, and that, based on the information he gave, the police searched for Orville McReynolds. Such testimony was not hearsay evidence, as there was no out-of-court statement offered into evidence to prove the truth of the matter asserted therein.

The prosecutor, in closing argument, told the jury that the informer was brought to the police station to determine whether he knew anything about the robbery; that after speaking with him, the police looked for Hewitt and McReynoIds; that after arresting Hewitt, they spoke to the informer “trying to find the location of Orville McReynoIds”; and that several officers left the police station to search for McReynoIds at Waites’ home. At this time, defense counsel objected. The trial court sustained the objection and instructed the jury to disregard the last remark. The defendant urges on appeal that he suffered prejudice by the admission of this evidence. Again, no out-of-court statement was introduced or even discussed, so there is no basis for alleging that it was hearsay evidence. Furthermore, the trial court sustained defense counsel’s sole objection to this portion of the argument and instructed the jury to disregard the comment. This would be sufficient to cure any error and to find that the jury was not unduly influenced or misled. (See People v. Hoddenbach (1983), 116 Ill. App. 3d 57, 452 N.E.2d 32; People v. Davis (1982), 104 Ill. App. 3d 1027, 433 N.E.2d 1011.) The trial court did not improperly admit hearsay evidence.

The defendant next contends that he was denied his right to a fair trial by improper prosecutorial remarks during opening and closing arguments and at trial. He asserts that the prosecutor’s reference to Vernita Graham as the defendant’s “girl friend” in opening statement, a fact which was not proved at trial, caused prejudice because it bolstered weak identifications of the defendant by Officer White and Murray. Although the relationship between the defendant and Vernita Graham should not have been mentioned without competent evidence thereof, improper comments do not result in the denial of a fair trial where they do not constitute a material factor in the defendant’s conviction. People v. Hoddenbach (1983), 116 Ill. App. 3d 57, 452 N.E.2d 32; People v. Miller (1981), 101 Ill. App. 3d 55, 427 N.E.2d 987.

The defendant complains that reference to Officers Boyd and Carone as Gang Crimes investigators during the State’s opening and closing arguments suggested the defendant’s involvement with other crimes. Since counsel for the defendant did not object to such mention, the issue is waived and not properly before this court. (People v. Spann (1981), 97 Ill. App. 3d 670, 422 N.E.2d 1051.) The defendant argues that an equally prejudicial inference was suggested in opening and closing arguments when the prosecutor said that the Gang Crimes investigators knew that Hewitt, the defendant’s cofelon, owned a green 1972 Plymouth. It is well established that informing the jury of the consequential steps in the investigation of a crime is necessary and important to the full explanation of the State’s case. People v. Guyon (1983), 117 Ill. App. 3d 522, 453 N.E.2d 849.

The defendant claims that the prosecutor made comments that were not supported by the evidence, including reference to identification found in Vernita Graham’s apartment for Orville McReynolds as well as for the defendant, Robert Graham. Objection to that comment was sustained, and the jury was told to disregard the comment, thus curing any error. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) The defendant also refers to a closing remark regarding Waites’ participation in the lineup in which Officer White identified Hewitt. Since defense counsel did not object to the remark, the issue is waived. People v. Spann (1981), 97 Ill. App. 3d 670, 422 N.E.2d 1051.

The defendant alleges that the prosecutor loudly suggested, while entering the courtroom, that the defense attorney received special treatment and questioned whether the judge was “on the take.” While such comments in the presence of the jury would indeed be intolerable, the record does not indicate whether they were made or whether the jury heard them. The trial judge, who was preceding the assistant State’s Attorney into the courtroom, said that he did not hear any such remarks. Under these circumstances, the alleged comments did not prejudice the defendant.

The defendant challenges a statement by the assistant State’s Attorney in closing argument which advised that the State was prosecuting him because he was guilty. A prosecutor may not inject his personal opinion of a defendant’s guilt (People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295); however, error caused by the prosecutor’s closing argument does not become reversible error unless there is substantial prejudice to the accused (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Guyon (1983), 117 Ill. App; 3d 522, 453 N.E.2d 849). In light of the overwhelming evidence of the defendant’s guilt, any such statement was harmless error.

Finally, the defendant alleges that the trial court abused its discretion in sentencing him to 40 to 80 years for murder, 30 to 60 years for attempted murder and 15 to 30 years for armed robbery. While a reviewing court is empowered to reduce sentences (87 Ill. 2d R. 615(b)(4)), the imposition thereof rests within the discretion of the trial court, placed as it is in a superior position to weigh the factors which bear upon the sentence, and its determination will not be altered on review absent abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) A reasoned judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each case. (People v. Taylor (1983), 115 Ill. App. 3d 621, 450 N.E.2d 1256.) Such judgment depends upon many factors, including the defendant's credibility, demeanor, general moral character, mentality, social environment, habits and age. People v. Taylor (1983), 115 Ill. App. 3d 621, 450 N.E.2d 1256.

The defendant insists that the trial court unlawfully ignored his excellent potential for rehabilitation, as manifested by the fact that he worked, supported his children and avoided trouble during the three years preceding his conviction while out on bond. The defendant further maintains that under the circumstances — the only death was that of a co-felon who initiated the gunfire, and no innocent individual was hurt — the sentences were excessive. Before sentencing the defendant, the trial court indicated that it had considered a presentence investigation and was taking into account its knowledge of the defendant’s background, the seriousness of the offenses and other relevant factors. The defendant made a statement and counsel for both sides argued in aggravation and mitigation. We cannot say that the trial court abused its discretion in sentencing the defendant.

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

Affirmed.

McNAMARA and RIZZI, JJ., concur.