author: JUSTICE McGLOON

text:
    MICHAEL McDONNELL et al., Plaintiffs-Appellees, v. THE CITY OF CHICAGO et al., Defendants-Appellants.
    First District (1st Division)
    No. 80-1228
    Opinion filed December 14, 1981.
    Rehearing denied January 18, 1982.

      D. Kendall Griffith and Joseph J. O’Connell, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, and Stanley Garber, Corporation Counsel, both of Chicago (Robert R. Retke and Maureen J. Kelly, Assistant Corporation Counsel, of counsel), for appellants.
    Morris W. Ellis, of Chicago, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff Michael McDonnell filed an action for damages for injuries sustained in an altercation with defendant Fred McKinley, a police officer employed by defendant city of Chicago and as a security guard for defendant McCormick Inn Corporation. The jury returned a verdict in favor of plaintiff and against all defendants and awarded plaintiff $225,000 in damages. Defendants appeal.

On appeal, all defendants contend that plaintiff’s counsel improperly implied that McKinley was intoxicated and that the trial court erred in excluding from evidence plaintiff’s dramshop complaint. McCormick Inn Corporation also contends that (1) the trial court erred in denying its motion for a judgment notwithstanding the verdict; (2) plaintiff’s argument to the jury that McCormick Inn improperly supervised McKinley was prejudicial because the matter was not an issue; (3) plaintiff’s references to his domestic situation were improper and prejudicial; (4) excerpts from a transcript of McKinley’s extrajudicial statement erroneously were read to the jury; and (5) the conduct of plaintiff’s counsel deprived McCormick Inn of a fair trial. The city of Chicago also contends that the trial court erred in refusing an instruction based on the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 2 — 109 and 2 — 202).

We affirm.

At approximately 9:30 p.m. on November 10, 1973, plaintiff Michael McDonnell, his wife, and several friends went to a cocktail lounge at the McCormick Inn. They left the lounge at 11:30 p.m. Plaintiff testified that as he and his wife waited in the parking area for their car, he was bumped by McKinley and pushed into a column. McKinley continued walking and plaintiff stated, “Why don’t you watch where you’re going?” McKinley turned and told plaintiff that he was a Chicago police officer and worked at the Inn. He stated that plaintiff was under arrest. McKinley then drew his gun and threatened to shoot plaintiff. When McKinley repeated the threat, plaintiff’s wife ran into the hotel lobby to seek assistance. McKinley began firing his gun and plaintiff was struck in his leg. Bystanders disarmed McKinley after he fired two or three shots. Plaintiff further testified that he neither struck nor antagonized McKinley. He consumed four or five drinks while in the lounge, but was not intoxicated.

Patricia McDonnell, plaintiff’s wife, testified that after plaintiff was bumped by McKinley, plaintiff told McKinley to watch where he was going. McKinley stated that he was a police officer, that he worked for McCormick Inn and that plaintiff was under arrest. McKinley was shouting profanities and threatened to shoot plaintiff. Mrs. McDonnell sought assistance and upon returning to the scene heard a number of shots. Her husband did nothing to provoke McKinley’s conduct. On cross-examination, Mrs. McDonnell could not recall telling the assistant State’s Attorney that her husband was intoxicated on the evening in question or that her husband and McKinley were “actually going to fight.”

Plaintiff’s witness Daniel Comm witnessed the altercation. As he waited in line at the parking cashier, he saw McKinley pointing a pistol at plaintiff and heard McKinley shouting obscenities. Unaware that McKinley was a police officer, Comm ran behind McKinley, pulled him to the ground, and struggled to keep the gun pointed away from bystanders. While both men were on the ground, the gun fired four times. Comm’s wife tried to wrench the gun from McKinley’s hand, but another man came to Mrs. Comm’s assistance and took the gun from McKinley.

Edmond Hanley and his wife accompanied the McDonnells to the McCormick Inn. Hanley testified that they were waiting in the lobby when plaintiff and his wife went outside to the parking area. Moments later, Mrs. McDonnell ran into the lobby and shouted that someone was about to shoot her husband. Hanley went to the parking area and heard McKinley say “I’m going to blow your * * * brains out.” Upon hearing the gun fire, Hanley dropped to the ground. He had three or four drinks that evening. He neither threatened nor ran toward McKinley.

Defendant Fred McKinley was called as an adverse witness. He testified that on the date of the occurrence, he was employed as a Chicago police officer and a security guard for McCormick Inn. He had been a policeman for eight years and a security guard for two years. As he left the Inn at the end of his shift as security guard he heard plaintiff say “good-bye, nigger.” McKinley told Mrs. McDonnell to take her husband home because he might get arrested. Plaintiff then charged McKinley and struck McKinley three or four times. McKinley told plaintiff he was under arrest after plaintiff struck McKinley the first time. McKinley further testified that he drew his revolver only after plaintiff and Hanley began approaching and threatening him. At this same time, he announced that he was a police officer. Moments later, he was grabbed by Daniel Comm. As he and Comm fell to the ground, a number of people charged at him. McKinley fired his gun, trying to expend the ammunition. He feared that someone would take the weapon from him and use it to shoot him. Although the first shot was fired in the direction of plaintiff, McKinley did not intentionally aim the revolver in plaintiff’s direction. He tried to aim the remainder of the shots toward the ceiling.

McKinley was also called to testify as a defense witness. His testimony was substantially similar to that noted above. Additionally, he testified that the incident occurred after he had checked out at midnight.

Paul Froelich, a defense witness, testified that as he waited in line near the parking cashier, he heard plaintiff and McKinley arguing. He saw McKinley draw his gun. Shortly thereafter, Comm grabbed McKinley and the men fell to the ground. Plaintiff jumped McKinley and the gun fired. Froelich approached the three men and twisted the gun from McKinley’s hand.

Bruce Wexler, the general manager of McCormick Inn during 1973, testified he saw plaintiff and McKinley surrounded by a crowd of people in the parking area. Plaintiff and McKinley were talking loudly and plaintiff struck McKinley. McKinley drew his revolver, announced his office and stated that plaintiff was under arrest. Wexler also heard McKinley say he would “blow [plaintiff’s] 990 head off.” A man from the crowd forced McKinley to the ground. McDonnell jumped both men. Wexler then heard three or four gunshots. Two security guards from the Inn intervened and stopped the men from fighting. During the incident, Wexler noted that plaintiff was weaving and intoxicated.

Susan Bouchey was at McCormick Inn on the evening in question. While in the parking lot waiting room, a man staggered past her group and asked if anyone wanted to dance. The man crossed the driveway, and she later saw him in front of a crowd of people. Another man was aiming a gun at him, and the men were shouting. As Bouchey drove from the Inn, she heard gunfire.

Howard Pierson, the Inn’s security consultant, testified he recommended that the Inn hire McKinley as a security guard. Pierson had been a police commander for eight years prior to becoming a security consultant and had worked with McKinley during that time. He recommended McKinley for the security guard position because McKinley had been a good police officer. Most of the men hired by the Inn as guards were police officers. They worked at the Inn while off duty.

First, all defendants cite as error the attempt by plaintiff’s counsel to imply that McKinley was intoxicated. During direct examination, plaintiff was asked whether he had seen McKinley in the Inn prior to the altercation. Plaintiff responded he had seen McKinley sitting in the lounge. When counsel asked if plaintiff could see whether McKinley was drinking, defense counsel for the Inn objected on the ground that the question was leading. The trial court sustained the objection and ordered the question stricken.

McCormick Inn additionally contends that plaintiff’s attempt to elicit Comm’s opinion on McKinley’s state of sobriety constituted prejudicial error. During direct examination of Comm, counsel attempted to lay the foundation for the admission of Comm’s opinion. Comm was asked whether McKinley appeared intoxicated, but defense counsel objected on the ground that a proper foundation had not been laid. Here again, the trial court sustained the objection. Plaintiff abandoned the topic.

We find that the prejudice, if any, in counsel’s attempt to show that McKinley was intoxicated was cured by the sustaining of defendant’s objection. (Hirn v. Edgewater Hospital (1980), 86 Ill. App. 3d 939, 408 N.E.2d 970; Department of Public Works & Buildings v. Mitchell (1974), 19 Ill. App. 3d 1083, 312 N.E.2d 691.) We further note that counsel for the Inn raised the question of McKinley’s drinking when, during cross-examination of plaintiff, he asked if plaintiff could say that McKinley had an alcoholic drink. Plaintiff then stated he did not know what McKinley was drinking. Thus, defendants were able to cure any prejudice which might have occurred during direct examination of plaintiff.

All defendants contend that the trial court erred in excluding from evidence allegations in plaintiff’s dramshop complaint against McCormick Inn. They maintain that because of the sharp conflict in evidence regarding plaintiff’s sobriety, they should have been permitted to read the allegations of the dramshop complaint stating that plaintiff was intoxicated as a result of consuming alcoholic beverages at the Inn.

However, the dramshop complaint was neither signed nor verified by plaintiff. Generally, unsigned complaints cannot be used for impeachment or as admissions against interest of a party thereto in another action based on the same incident. (See Allen v. City of Ottawa (1980), 80 Ill. App. 3d 1032, 400 N.E.2d 629.) Without a verification there is no evidence that the party authorized or confirmed the truth of the allegations. We therefore find that the trial court did not err in excluding from evidence the allegations of the dramshop complaint.

Assuming arguendo that the dramshop complaint was admissible, its exclusion would not require reversal. The allegations contained therein regarding plaintiff’s intoxication would have affected only the weight and credibility accorded plaintiff’s testimony. (King v. Corsini (1975), 32 Ill. App. 3d 461, 335 N.E.2d 561; People v. Harris (1970), 124 Ill. App. 2d 234, 260 N.E.2d 325.) The record is replete with testimony bearing on this point. Plaintiff himself admitted consuming several drinks while at the Inn. Thus, the jury had ample evidence from which to determine plaintiff’s credibility and any error, if any, in excluding the evidence was harmless error.

McCormick Inn contends that as a matter of law McKinley was not acting within the scope of his employment as a security guard at the time of the altercation and that the trial court therefore erred in denying its motion for judgment notwithstanding the verdict. The Inn characterizes the altercation as a personal matter between plaintiff and McKinley and concludes that McKinley was not acting within the authorized scope of his duty to protect patrons and property of the Inn. Alternatively, the Inn argues that McKinley was not acting in his capacity as security guard because he had checked out prior to the incident.

Under the doctrine of respondeat superior, the negligence of an employee is imputable to the employer. (Bolwin v. El Kay Manufacturing Co. (1975), 32 Ill. App. 3d 138, 336 N.E.2d 502.) The doctrine is applicable where an employee is acting within the scope of his employment with respect to the transaction or occurrence from which the injury arose. (Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 383 N.E.2d 1242; Bolwin.) Generally, the issue of whether an employee is acting within the scope of his employment is decided by the trier of fact. Wallace v. Smith (1979), 75 Ill. App. 3d 739, 394 N.E.2d 665; Torrence v. DeFrates (1978), 56 Ill. App. 3d 118, 371 N.E.2d 1281.

In Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 383 N.E.2d 1242, and Sauer v. Iskowich (1967), 80 Ill. App. 2d 202, 224 N.E.2d 21, the courts utilized section 229 of the Restatement (Second) of Agency (1958) to determine whether an employee’s conduct fell within the scope of employment. Section 229 provides as follows:

“Kind of Conduct within Scope of Employment
(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.
(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:
(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
# # e
(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;
(f) whether or not the master has reason to expect that such an act will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing an authorized result; 6 e

Restatement (Second) of Agency §229 (1957).

In determining whether the trial court erred in denying the Inn’s motion for judgment notwithstanding the verdict, the Pedrick standard should apply. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) This standard requires a verdict be entered in favor of the movant if the evidence, when viewed most favorably to the nonmovant, so overwhelmingly favors the movant that no contrary verdict could stand.

In this case, sufficient facts and circumstances exist from which the jury could conclude that McKinley was acting within the scope of his employment as a security guard. McKinley’s responsibilities included quelling disturbances on the premises. His acts during the altercation were substantially similar to those authorized by the Inn and were, at the very least, not unexpectable in view of his responsibilities as a security guard. (See Restatement (Second) of Agency §245 (1958).) The incident occurred on the premises of the Inn. Also, the Inn knew that McKinley carried his revolver while on duty. While there is some evidence that McKinley may have been off duty, there is also evidence that the incident occurred prior to midnight, the hour at which McKinley stated he was off duty. Nevertheless, where the time is not too remote from that authorized, a master may still be liable. (Restatement (Second) of Agency §245, comment (d), at 540 (1958).) Furthermore, there is evidence that prior to the altercation, McKinley told plaintiff he was a security guard for the Inn.

The Inn has cited Korhorn v. Smith (1971), 3 Ill. App. 3d 532, 278 N.E.2d 864, and Bolwin v. El Kay Manufacturing Co. (1975), 32 Ill. App. 3d 138, 336 N.E.2d 502, in support of their contention that McKinley was not acting within the scope of his authorized duties. In Korhorn plaintiff and defendant’s employee engaged in a fist fight on a work site. The court found that because the fight resulted from personal animosities and defendant’s employee had completed the task assigned, defendant’s employee was not about his employer’s business. The court therefore held that the employer was not liable. In Bolwin, plaintiff’s truck was being loaded by defendant’s employee. Defendant’s employee struck plaintiff. In affirming the directed verdict for defendant, the court noted that no evidence was introduced connecting the attack with some function the employee performed for his employer. However, the acts giving rise to the causes of action in Korhorn and Bolwin were substantial deviations from the authorized acts of employment. Here, as noted above, McKinley’s acts were similar to those authorized and incidental to his employment as a security guard.

We find that under the facts and circumstances of this case, the decision of whether McKinley was acting within the scope of employment properly was within the province of the jury. The trial court therefore did not err in denying the Inn’s motion for judgment notwithstanding the verdict.

McCormick Inn further contends that portions of plaintiff’s closing argument were improper and prejudicial. It points to the arguments that McCormick Inn improperly supervised McKinley, thereby failing to protect its patron, that McCormick Inn was liable because it allowed security guards to carry weapons, and that it was liable because its manager Wexler improperly supervised McKinley and made no attempt to halt the altercation.

The Inn’s liability was predicated on the doctrine of respondeat superior, and the jury was instructed accordingly. Thus, the issues to be resolved by the jury were limited to this theory. No instructions regarding negligent supervision were tendered or given. The arguments cited above were therefore improper because they went beyond the issues presented. (Sisti v. Barker (1979), 70 Ill. App. 3d 734, 388 N.E.2d 1117.) However, in its answer to the special interrogatory, the jury found that McKinley was acting within the scope of his employment at the Inn. In our opinion, this answer was unaffected by counsel’s improper remarks and thus the error was harmless. Houck v. Martin (1980), 82 Ill. App. 3d 205, 402 N.E.2d 421.

McCormick Inn further argues that it was prejudiced by repeated references to plaintiff’s children and is therefore entitled to a new trial. The first reference occurred during plaintiff’s opening statement, where counsel stated that plaintiff had a wife and children. The second reference occurred during direct examination of plaintiff when plaintiff volunteered the fact that he had hired a babysitter on the evening in question. Third, plaintiff’s wife stated during direct examination that she, plaintiff, and their friends left the Inn at 11:30 because they had to relieve the babysitter that evening. Defendant’s objections to each of these remarks were sustained and the jury instructed to disregard the references to plaintiff’s children.

Generally, evidence of a party’s domestic circumstances is irrelevant in actions such as this where a plaintiff is seeking compensatory damages for personal injuries. (Pearson v. Ford Motor Co. (1975), 32 Ill. App. 3d 188, 336 N.E.2d 528.) But where plaintiff’s dependent family is not unduly emphasized and the trial court promptly sustains objections, no reversible error occurs. (Walsh v. Dream Builders, Inc. (1970), 129 Ill. App. 2d 280, 264 N.E.2d 247.) Here, all references were brief and plaintiff’s family was not unduly emphasized. Every objection to the matter was sustained. We therefore find that the prejudice, if any, to defendant was minimal, and the trial court did not abuse its discretion in denying defendant’s motions for a new trial on this ground.

McCormick Inn further contends that it was error for plaintiff’s counsel to read, during closing arguments, portions of McKinley’s statement which were used during trial for impeachment purposes. The Inn maintains that in doing so, counsel used the statement as substantive evidence. The statement was given by McKinley shortly after the incident.

However, plaintiff’s counsel did nothing more than review that part of the trial wherein McKinley’s testimony was impeached. He read the pertinent parts of the statement and stated, “And on the stand [McKinley] denied or couldn’t recall making these statements.” Counsel did not represent the statement as substantive evidence, and we therefore find the Inn’s contention to the contrary is without merit.

Finally, the Inn contends that plaintiff’s counsel engaged in a variety of improper and prejudicial conduct which deprived it of a fair trial. Its brief recites lengthy colloquys which, in the Inn’s opinion, support the contention. However, there are no citations of authority. Appellant is required not only to offer argument, but also to support that argument with some citation of authority. (Wilson v. Continental Body Corp. (1981), 93 Ill. App. 3d 966, 418 N.E.2d 56.) Failure to cite authority has been held to constitute a waiver of the issue on review. Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 385 N.E.2d 664; Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.

Nevertheless, the question of whether a party has been denied a fair trial due to misconduct of opposing counsel is generally left to the trial court’s discretion and absent an abuse of discretion, its ruling will be upheld. (Ferenbach v. DeSyllas (1977), 45 Ill. App. 3d 599, 359 N.E.2d 1214.) The trial court’s ruling is given great weight since it is in the unique position of hearing the testimony and arguments, observing the conduct of the parties and their counsel, and calculating the effect these matters have on the jury. (Johnson v. Cunningham (1969), 104 Ill. App. 2d 406, 244 N.E.2d 205.) Here, each instance of alleged misconduct was brought to the trial court’s attention in the post-trial motion. This court, too, has reviewed the instances and finds no abuse of discretion.

The city of Chicago contends that the trial court erred in refusing the city’s instructions based on sections 2 — 109 and 2 — 202 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 2 — 109, 2 — 202). However, the city failed to raise the issue in its post-trial motion, and in its failure to do so, waived this issue as a basis for a new trial or reversal on review. (Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 418 N.E.2d 431; Zukosky v. Grounds (1980), 85 Ill. App. 3d 355, 406 N.E.2d 848; United States ex rel. Maxey v. Morris (7th Cir. 1979), 591 F.2d 386, cert. denied (1979), 442 U.S. 912, 61 L. Ed. 2d 278, 99 S. Ct. 2828.) We therefore need not decide the merits of the issue.

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

Judgment affirmed.

GOLDBERG and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    CAROLYN SUE LeMARBE, Adm’r of the Estate of James G. LeMarbe, Deceased, Plaintiff-Appellant, v. DOW CHEMICAL COMPANY et al., Defendants-Appellees.
    First District (1st Division)
    No. 80-2296
    Opinion filed December 14, 1981.

      Michael H. Postilion, Ltd., of Chicago, for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, John W. Dondanville, and Richard H. Donohue, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is a wrongful death action based on strict tort liability brought by plaintiff, Carolyn Sue LeMarbe, administrator of the estate of her deceased husband, James G. LeMarbe, against defendants, Dow Chemical Company (Dow) and Thompson-Hayward Chemical Company (Thompson-Hayward). A jury found for defendants and judgment was entered for them on the verdict. Plaintiff appeals, presenting two issues: (1) whether questions asked of expert witnesses unreasonably called decedent’s conduct into question, and (2) whether the trial court erred in not giving to the jury certain of plaintiff’s instructions.

Dow manufactured a chemical with the trademark Chlor othene VG. This chemical was primarily used as a degreaser, cleaning grease off metal. It was distributed by Thompson-Hayward to industrial users. Deceased’s employer, the General Electric Company, purchased this chemical for use in its plant in Chicago Heights.

In her amended complaint, plaintiff alleged that the chemical was defective and unreasonably dangerous because it did not contain adequate and accurate warnings of the danger in its use and of the toxic properties which could cause injury or death.

Chlor othene VG is a chemical solvent. It is a highly volatile product; it evaporates easily and creates fumes which are heavier than air. When breathed, these fumes can cause dizziness and lightheadedness (Chlorothene VG had once been used as an anesthetic agent), unconsciousness and, after a period of time, a comatose condition and death. The fumes could also cause the heartbeat to be irregular, increasing the risk of death from atrial fibrillation.

In the industrial setting, Chlorothene VG was generally used in vapor degreasing operations, requiring the application of heat to vaporize the solvent. Metal passing through this vapor would be cleaned of grease and other foreign particles. Metal immersed in the solvent would also be cleaned. This process involved no heat.

General Electric used both methods in its metal-plating operations in Chicago Heights. This involved a large vapor degreasing machine, utilizing the hot process, and a “dip tank.” In using the vapor degreaser, metals were passed through the machine on a conveyor belt. The dip tank was stationed next to the larger vapor degreaser. Pieces too large or exceptionally dirty were immersed in this tank to clean them. A hood covered the dip tank when it was not in use.

Deceased met his death when he was involved in the cleaning of the dip tank. He was found at the bottom of the drained tank in an unconscious state. Efforts to revive him with oxygen were futile. There was no detectable odor of the solvent in the tank; however, an odor was detectable in his regular work clothes. It was evident that the deceased had scraped some sludge from the wall of the dip tank. This sludge contained concentrated vapors with a high level of toxicity.

Extensive evidence was presented by both parties describing the chemical properties of Chlorothene VG, its toxicity and its use in the industrial setting. Several witnesses who worked for General Electric at the time of the incident testified as to the two degreasing processes, how they were operated and cleaned and how they also differed in operation. These witnesses also testified to the level of their knowledge of the toxic effects of the fumes released by the use and cleaning of the degreasing machines. Several expert witnesses testified about the adequacy of the label found on the two degreasing machines and whether, if the instructions were followed, decedent’s death could have been prevented.

In pertinent part, the label posted on the two degreasing machines provided:

“This degreaser contains Chlorothene VG solvent. Chlorothene VG is the world’s safest chlorinated vapor degreaser solvent. However, the following precautions must be followed:
One. Safety precautions. Use with adequate ventilation. Avoid prolonged or repeated breathing of vapors or contact with the skin. Do not take internally. Do not smoke around degreaser or while handling any chlorinated solvent. Do not enter the degreaser, pit or a storage tank or clean out a degreaser without proper ventilation or self-contained or air supplied breathing apparatus. Gas masks are not adequate. Use a rescue harness with a life line. A second man must be present and observing at all times. Use protective equipment and appropriate protective garments. Protective garments should be discarded at first sign of solvent caused deterioration.
Train all operators in proper handling of Chlorothene VG.
Note: Keep away from flames and other ignition sources when used where vapors may be concentrated.”

The label also contained two sections of instructions relating to the start-up and maintenance of a degreasing machine. These instructions are largely related to the vapor degreaser, rather than the dip tank. A fourth section set out instructions for a “clean-out” of a degreaser. One of these instructions read in part:

“Wear approved respiratory equipment and provide adequate protective clothing and ventilation.”

A separate boxed-in section contained this statement:

“Chlorothene VG can be used for the vapor degreasing or cold cleaning of all common industrial metals including bronze, brass, zinc, copper, steel, stainless steel, aluminum, magnesium, nickel, Monel alloy, cadmium, tin, beryllium and titanium.”

Plaintiff alleged that the Chlorothene VG was in a defective and unreasonably dangerous state because it did not warn of the dangers involved in its use. It is further alleged that the warning was inadequate because it failed to warn of the toxic properties of Chlorothene VG.

Recently, the supreme court held that a failure to warn could result in an action fqr strict liability despite the otherwise nonactionable nature of the product. (Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 412 N.E.2d 959; Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194.) In strict liability cases, warnings function either to shift the risk or reduce it. (82 Ill. 2d 211, 221.) The label posted on the dip tank in this case was to serve the latter function, to reduce the probability that harm would occur at all.

The adequacy of warnings of either type usually presents a jury question. (Palmer v. Avco Distributing Corp.; Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 356 N.E.2d 779.) Likewise, the determination of what is unreasonably dangerous is usually a jury question. Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859; Ebbert v. Vulcan Iron Works, Inc. (1980), 87 Ill. App. 3d 74, 409 N.E.2d 112.

A review of the record reveals' conflicting expert opinions on the adequacy of the label. Plaintiff’s expert pointed out shortcomings in that the label did not warn specifically of the danger involved and did not spell out inherent dangers of the chemical compound itself. Defense experts, on the other hand, felt that the instructions adequately warned the reader of the proper techniques involved in handling Chlorothene VG. All of the experts testified that if the instructions on the label had been followed the accident would not have occurred. The jury heard this testimony and rendered its verdict.

Plaintiff contends this expert testimony unnecessarily makes an issue of the decedent’s conduct and that to allow this type of questioning and the answers is reversible error. Gus T. Handge & Son Painting Co. v. Industrial Com. (1965), 33 Ill. 2d 201, 210 N.E.2d 498; Ryan v. Blakey (1979), 71 Ill. App. 3d 339, 389 N.E.2d 604.

Defendant argues that plaintiff improperly preserved this issue for appeal by failing to object specifically to the questions and answers. Plaintiff claims that she did object and argued this objection before the trial court. The record reveals that plaintiff made a general objection, which was overruled, when defendants’ first expert testified that the accident would not have occurred had the decedent followed the instructions. The issue of this objection arose the following day during an in camera discussion relating to a second expert’s testimony. At this time, the trial judge appeared to equivocate on his decision. However, he ultimately followed his original ruling.

The record does not reveal any further objections. Plaintiff did not pursue this objection any further until her post-trial motion. Again,the trial judge followed his original ruling and allowed the questions and answers to stand. We note, too, that the record shows plaintiff’s counsel also asked the very question which is here in controversy.

Even though specific objections to controverted facts must be made to preserve an issue (Fletcher v. Industrial Com. (1970), 44 Ill. 2d 359, 255 N.E.2d 403), we find that the questions were properly allowed. They were within the realm of direct or circumstantial evidence. Gus T. Handge & Son Painting Co. v. Industrial Com. (1965), 33 Ill. 2d 201, 206; Estate of Whittington v. Emdeko National Housewares, Inc. (1981), 96 Ill. App. 3d 1007, 422 N.E.2d 26 (where an expert testified to the reasonableness of the instructions for using home fire alarms).

In a recent case we noted the liability issue in a product liability case cannot be tried in a vacuum in which the product is isolated. (Sanchez v. Black Brothers Co. (1981), 98 Ill. App. 3d 264, 423 N.E.2d 1309.) We do not feel that the questions propounded to the experts and their answers unreasonably called the decedent’s conduct into question. No error was committed in this regard.

Plaintiff next argues that her Instruction 5 should have been given and that Instructions 9A and 11A were improperly given. Instruction 5 stated:

“The conduct of the decedent James G. LeMarbe is no defense to this case.”

In Sanchez v. Black Brothers Co., the rejection of a similar instruction was upheld. We there said:

* 0 [T]he court should not instruct the jury as to the insignificance of plaintiff’s conduct in a product liability case. Counsel in his closing argument may adequately inform the jury of the insignificance of plaintiff’s conduct with respect to the issues and his theory of the case without the ‘assistance’ of comment by the court on that specific element of the evidence.” (98 Ill. App. 3d 264, 268-69.)

Instruction 5 was properly refused.

Plaintiff’s tendered Instructions 9 and 11, reading:

“Plaintiff’s Inst. 9
The Plaintiff claims that James G. LeMarbe died as a result of the use of the solvent and that there existed in the solvent at the time it left the control of the defendants a condition which made the solvent unreasonably dangerous in the following respect:
(a) It was not accompanied by adequate and accurate warnings.
The plaintiff further claims that the foregoing was a proximate cause of the death of James G. LeMarbe.
The defendants deny that any claimed condition of the solvent made the solvent unreasonably dangerous; and deny that any claimed condition of the solvent was a proximate cause of the death of James G. LeMarbe.
The defendants further deny that James G. LeMarbe died as a result of the condition of the solvent.”
“Plaintiff’s Inst. 11
The plaintiff has the burden of proving each of the following propositions:
First, that the condition claimed by the plaintiff as stated to you in these instructions existed in the solvent;
Second, that the condition made the solvent unreasonably dangerous;
Third, that the condition existed at the time the solvent left the control of the defendants;
Fourth, that James G. LeMarbe died.”

were rejected by the trial court and the following instructions were given to the jury in their stead:

“Inst. 9-A
The plaintiff claims that James G. LeMarbe died as a result of the use of the solvent and that there existed in the solvent at the time it left the control of the defendants a condition which made the solvent unreasonably dangerous in one or more of the following respects:
It was not accompanied by adequate and accurate warnings.
The plaintiff claims that the foregoing was a proximate cause of the death of James G. LeMarbe.
The defendants deny that the claimed condition of the label made the solvent unreasonably dangerous; and deny that the claimed condition of the label was a proximate cause of the death of James G. LeMarbe.”
“Inst. 11-A
The plaintiff has the burden of proving each of the following propositions:
First, that the condition claimed by the plaintiff as stated to you in these instructions existed in the solvent;
Second, that the condition of the label made the solvent unreasonably dangerous;
Third, that the condition existed at the time the solvent left the control of the defendants.”

Plaintiff argues that changing her instructions 9 and 11 to exclude the word “solvent” and to include the word “label” was prejudicial and unfairly reinforced defendants’ position. We disagree.

Taken as a whole, we feel the instructions given were sufficiently clear so as not to mislead the jury and fairly and correctly stated the law and plaintiff’s theory that the product was unreasonably dangerous because of an inadequate warning of the danger. Smith v. Verson Allsteel Press Co. (1979), 74 Ill. App. 3d 818, 393 N.E.2d 1; Cole v. Brundage (1976), 36 Ill. App. 3d 782, 344 N.E.2d 583.

The record shows that the label contained instructions for the proper handling of the degreasing machines. From the evidence presented by both parties, the jury could have reasonably determined that the warnings and instructions contained on the label were adequate and that if they had been followed decedent’s death would not have ensued.

As a result, we cannot say that the evidence so overwhelmingly favors plaintiff that a judgment for defendants could never stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504), or that the trial court committed error in the admission of evidence or in instructions given to the jury. The judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMBPELL, P. J., and GOLDBERG, J., concur.


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    BADGER BUILDING CORPORATION, Plaintiff and Counterdefendant-Appellant, v. KARLO GREGORIC, Defendant and Counterplaintiff-Appellee.—(JULIE PRAZNIK, Indiv. and as Next Friend of Michael Dobbs et al., Intervenor-Appellee.)
    First District (1st Division)
    No. 80-2329
    Opinion filed December 14, 1981.
    Edwin M. Raff el and Selwyn Coleman, both of Chicago, for appellant.
    Leonard R. Anderson, of South Holland, and Edward T. Joyce, Peter Ordower, and William J. Harte, all of Chicago, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Badger Building Corporation filed a complaint for specific performance of a contract against Karlo Gregoric. Karlo Gregoric had been deeded the property which is the subject matter of this lawsuit pursuant to the terms of a sales contract, which contract provided that in the event Gregoric was unable to secure mortgage financing within 60 days, the property would be deeded back to the grantor, Badger Building Corporation.

Karlo Gregoric filed a counterclaim against Badger Building Corporation claiming monies were due and owing to him based upon certain N.S.F. checks and services rendered.

Julie Praznik filed an intervening complaint, on behalf of herself and as next friend of certain minor grandchildren of herself and her then deceased former husband, Anton Konchan. In her complaint, she claimed a constructive trust in the subject real property.

The trial court ruled against Badger Building Corporation on its complaint and in favor of Julie Praznik on her intervening complaint, and also in favor of Karlo Gregoric on the counterclaim and against Badger Building Corporation in the sum of approximately $14,000 plus interest.

On appeal, Badger Building Corporation and Karlo Gregoric argue that the trial court erred in declaring Julie Praznik constructive trustee of the real property for the benefit of her grandchildren. Badger Building Corporation additionally argues that the trial court erred in awarding Karlo Gregoric approximately $14,000 in money damages.

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

Anton Konchan (Anton) emigrated to the United States and established a successful manufacturing business known as Badger Manufacturing Company (Badger Manufacturing) and a smaller company known as Badger Building Corporation (Badger Building). During his lifetime, Anton acquired a number of assets, including a six-acre tract of property in Vilas County, Wisconsin, which he and his family used as a summer vacation home. Badger Manufacturing held title to the property. Four acres of the six-acre tract of land is the subject matter of this dispute (the four acres will be referred to as “the Wisconsin property”).

Anton died in 1977. He was survived by his former wife Julie Konchan-Praznik (Julie), his son William Konchan (William), William’s two children and the five children of his deceased daughter Antoinette Konchan-Dobbs (Antoinette).

Julie and Anton were divorced in 1950. For more than 25 years after the divorce, Julie regularly visited the family residence in Wisconsin and spent much of her time there with Anton, their children and grandchildren. After the divorce, Julie remained an officer, and for a time, a director of the Badger companies. When Antoinette died in 1969, Julie cared for her daughter’s five children. She later adopted them.

Karlo Gregorio (Karlo) emigrated to this country in 1966 and lived with his aunt, who was Anton’s housekeeper. In January 1967, Karlo began working as a punch-press operator at Badger Manufacturing. He worked at the company for two years without pay. Later, he was paid approximately $5,000 for his two years of full-time service. He was promoted to foreman in 1969 and then to a plant manager in 1972. In addition to working at Badger Manufacturing, Karlo worked at Badger Building and another company known as Badger Motel Corporation. He also worked evenings and weekends for Bi years without compensation helping William build his home.

William was the only son of Anton and Julie. In 1959, Anton transferred to William by way of gift all of the stock of Badger Building. In 1968, Anton transferred to William all of the stock of Badger Manufacturing and the Wisconsin property. According to Julie, the latter transfer was subject to certain conditions which were intended to protect Anton’s own interests and those of his grandchildren and Antoinette. Julie testified that among other things, William and Anton agreed that the Wisconsin property would never be used for business purposes or as security for any company indebtedness.

The Badger ventures under William’s control began to experience economic troubles in early 1974. William used the Wisconsin property as collateral for a loan to the Badger companies. Title was transferred from Badger Manufacturing to Union Realty Company. Eventually, Union Realty reconveyed title to Badger Manufacturing. In February 1975, title to the Wisconsin property was transferred from Badger Manufacturing, which was experiencing substantial financial difficulty, to Badger Building. The purpose of this transfer was to extinguish a debt owed to Badger Building by Badger Manufacturing in the amount of $180,000.

The financial difficulties of Badger Building increased. William asked Karlo to accept title to the Wisconsin property to protect it from creditors of Badger Building. Karlo agreed. In order to make the conveyance appear to be a bona fide transaction, William had a contract drawn up. The contract indicated that Karlo had paid $30,000 in earnest money. Karlo wrote a $30,000 check, but the check was never negotiated. William was aware that Karlo did not have funds sufficient to back up the check. Despite the lack of initial consideration for the contract, the contract and deed of sale were executed. A rider to the purported contract called for a reconveyance to Badger Building in the event that Karlo was unable to obtain mortgage financing within 60 days. On April 11, 1975, the deed was signed and delivered to Karlo. On April 21, the deed was recorded in Vilas County, Wisconsin. That same day, Karlo and William listed the property for sale for $185,000, $70,000 over the contract price to Karlo.

Karlo continued working for William and the Badger companies from January to September, 1975, based on William’s promise that he would pay Karlo $350 per week. During that period, Karlo purchased $1,178.25 worth of goods from the auction of assets of Badger Manufacturing. He testified that William promised to reimburse him and that they would start a new business together and use the purchased items in the business.

Badger Building filed a complaint for specific performance against Karlo. It sought to enforce the term of the sales contract which provided that if Karlo were unable to secure financing within 60 days, he must reconvey the property to Badger Building. Karlo then filed a counterclaim against Badger Building, claiming that the company owed him money for services rendered and for the checks written to him which were marked insufficient funds.

Julie filed an intervening complaint on behalf of herself and as next friend of her grandchildren. In her complaint, Julie claimed that a constructive trust should be imposed upon the Wisconsin property for the benefit of her grandchildren.

The trial court found for Julie and against Badger Building and declared the Wisconsin property to be constructive trust property. Badger Building appeals, and Karlo cross-appeals from the order. Additionally, the court found for Karlo and against Badger Building and awarded Karlo $14,177.14 plus interest in money damages. Badger Building appeals from that order.

Badger Building and Karlo argue that the trial court erred in declaring Julie constructive trustee of the Wisconsin property for the benefit of her grandchildren. Julie contends that the manifest weight of the evidence supports the trial court’s finding that a fiduciary relationship existed between William and Anton and that William abused that relationship when he used the Wisconsin property for business purposes. She argues that the trial court did not err in imposing a constructive trust.

Constructive trusts are divided into two general classes — one in which actual fraud is considered as equitable grounds for raising the trust, and the other, where there exists a fiduciary or confidential relationship and a subsequent abuse of that relationship. (Ray v. Winter (1977), 67 Ill. 2d 296, 303, 367 N.E.2d 678; David v. Russo (1980), 91 Ill. App. 3d 1023, 1027, 415 N.E.2d 531.) Factors to be considered in determining whether a fiduciary relationship exists include the degree of kinship and disparity of age between the grantor and the grantee, the health and mental condition of the grantor and the extent to which the grantor entrusted the handling of his business and financial affairs to and reposed faith and confidence in the grantee. Desiderato v. Sullivan (1980), 84 Ill. App. 3d 1117, 1121, 406 N.E.2d 116; Wold v. Wold (1976), 43 Ill. App. 3d 773, 777, 357 N.E.2d 627.

Here, Anton and William were father and son. Although the record does not reflect the exact disparity of age between the two, it is not unreasonable to assume that Anton was at least 20 years William’s senior.

In 1968 when Anton transferred the Badger Manufacturing stock to William, Anton’s health was deteriorating, he no longer came to the office on a regular basis and William had to drive him around because he was unable to drive himself. The evidence with regard to these three factors does not conclusively establish the existence of a fiduciary relationship between Anton and William. (See Desiderato v. Sullivan (1980), 84 Ill. App. 3d 1117, 406 N.E.2d 116.) The fourth factor, the extent to which Anton entrusted his financial affairs and reposed confidence in William, is the key to determining whether the relationship between the two should be characterized as a.fiduciary relationship.

In 1959, Anton transferred to William by way of gift all of the Badger Building stock. In 1968, William threatened to leave the family business unless his father agreed to transfer all of the Badger Manufacturing stock to him as well. Anton acceded to William’s demand. Since title to the Wisconsin property was held by Badger Manufacturing, title to that property was transferred to William along with the stock. According to Julie and Karlo, William expressly agreed to Anton’s wishes that the property be kept for the family during Anton’s life and for Anton’s grandchildren after Anton’s death. Further, both Julie and Karlo testified that William promised that the Wisconsin property would not be sold or mortgaged or used for business purposes. The evidence clearly shows that a fiduciary relationship existed between Anton and William at the time Anton transferred the Badger Manufacturing stock to William.

Having established the existence of a fiduciary relationship, we must now consider whether William abused that relationship. In 1974, William used the Wisconsin property as collateral security for a loan to the Badger companies. In 1975, he staged a “sale” of that property to Karlo. In both of these transactions, William acted contrary to his father’s expressed desires. In so doing, he abused the fiduciary relationship.

William testified that when Anton transferred the stock to him, Anton placed no restrictions on the use of the Wisconsin property. Commenting on William’s testimony, the trial judge noted that it “lack[ed] all credibility,” “was a fabrication of a false story given with the intent to deceive the court,” and “showed [William] to be an habitual liar.” Since the trial judge is in a superior position to assess the witness’ credibility, a reviewing court should not disturb the trial court’s finding unless it is against the manifest weight of the evidence. (Rapp v. Bowers (1976), 38 Ill. App. 3d 668, 671, 348 N.E.2d 529.) In light of the trial judge’s harsh comments regarding William’s credibility and the patent inconsistencies in William’s trial testimony, we choose not to disturb the trial court’s finding. The imposition of a constructive trust was proper.

Badger Building additionally argues that the trial court erred in awarding Karlo approximately $14,000 in money damages. In his amended counterclaim, Karlo claimed he was entitled to reimbursement in the amounts of: $927.14 for checks written and returned marked insufficient funds; $1,500 for equipment he purchased for the Badger companies; and, $11,100 for services rendered as general manager of Badger Building and Badger Manufacturing between January 1972 and January 1975.

We have carefully examined the record and find that it was proper for the trial court to award Karlo money damages. We question, however, whether damages in the amount of $14,000 were proper. Clearly, Karlo is entitled to at least $927.14, the sum necessary to reimburse him for checks written to him and returned marked insufficient funds. But it is unclear whether he is actually entitled to the $11,100 for services rendered to the Badger companies between January 1972 and January 1975. Karlo himself testified that he was salaried by one or both of the companies during this period. It appears that the trial court, in awarding Karlo the amount requested in his amended counterclaim, was greatly influenced by the numerous inconsistencies and contradictions in William’s testimony. It may well be that Karlo is entitled to the entire amount he requested. We believe, however, that a hearing on the matter is warranted.

In addition, we believe that the trial court should consider whether the grandchildren should share as per stirpes or per capita beneficiaries.

In sum, we affirm the trial court’s finding against Badger Building and in favor of Julie on the constructive trust issue. We reverse and remand for a hearing on the amount of damages to which Karlo is entitled from Badger Building. Further, we remand for a hearing as to the proper distribution of the trust property.

For the foregoing reasons, we affirm in part, reverse in part, and remand with directions.

Judgment affirmed in part, reversed in part; cause remanded.

GOLDBERG and O’CONNOR, JJ., concur.


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      In re ESTATE OF SIDNEY ALPERT, Deceased.—(MICHAEL H. ROTMAN, Adm’r of the Estate of Sidney Alpert, Appellant, v. LILA JONES, Appellee.)
    First District (1st Division)
    No. 80-2489
    Opinion filed December 14, 1981.
    Glenn C. Fowlkes, of Evins, Fowlkes, Boyd & Gant, of Chicago, for appellant.
    Eric E. Graham, of Chicago (William H. Laws, of counsel), for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

This is a dispute over the distribution of the estate of Sidney Alpert, who died testate on January 9, 1979. At the time of his death, decedent owned a home in Skokie, Illinois in joint tenancy with his wife, Nettie Alpert. The joint tenancy property was held in a land trust at the American National Bank & Trust Company of Chicago (American National Bank).

Two months before he died, decedent borrowed $50,000 from the First National Bank of Lincolnwood (Bank of Lincolnwood). As security for the loan, decedent and his wife assigned to Bank of Lincolnwood their beneficial interest in the land trust.

Decedent’s will was admitted to probate on March 6, 1979. The will provided as follows:

“Subject to any contrary provisions, if any, of any trust agreements executed by me during my lifetime, I direct my executor to pay out of the residue of my probate estate the following obligations:
e # #

III. All indebtedness owed by me at the time of my death except such indebtedness as then is secured by a mortgage of real estate.” A codicil was admitted to probate on the same day as the will. The codicil devised a parcel of real estate to Mrs. Lila Jones. Specifically, the codicil provided:

“First I give, devise and bequeath all my interest in and to the building located at 814-22 West 76th Street, Chicago, Illinois and I direct my Executor after all my debts and taxes are paid and funeral bill, to see to it that Mrs. Lila Jones gets all the interest that I have in said building.”

The probate assets in decedent’s estate, which included the real estate devised to Lila Jones and some outstanding accounts receivable are estimated to be worth approximately $30,000. The claims and debts of the estate are estimated to be approximately $90,000. As a result, the probate assets are insufficient to satisfy the claims and debts of the estate.

A claim was allowed in favor of Bank of Lincolnwood for $50,000, the full amount of the loan to decedent and his wife. Lila Jones, the devisee of the real estate which is the subject matter of the codicil, argued in the trial court that the assets of the land trust should be inventoried as probate assets to satisfy Bank of Lincolnwood’s claim. The trial court ordered that Bank of Lincolnwood’s claim should be satisfied solely and specifically against the property held in land trust at American National Bank. The administrator of the estate appeals. We reverse.

The issues on appeal are: (1) whether property held in a land trust and in joint tenancy becomes a probate asset upon the death of the co-tenant; and (2) whether a collateral assignment of the beneficial interest in a land trust creates a mortgage on the real estate.

First, we must decide whether the joint tenancy property held in land trust at American National Bank became a probate asset upon the death of Sidney Alpert. The legal characterization of the joint tenancy property as a probate or nonprobate asset is of great practical significance. If we determine that the property is a nonprobate asset, the only probate asset against which Bank of Lincolnwood could satisfy its $50,000 claim is the building devised to Lila Jones, valued at approximately $30,000.

One of the essential characteristics of a joint tenancy is the right of survivorship, that is, the right of the survivor to take the whole of the estate upon the death of the cotenant. (Bonczkowski v. Kucharski (1958), 13 Ill. 2d 443, 451, 150 N.E.2d 144.) The surviving tenant takes joint tenancy property under the instrument by which the tenancy was created and not under the laws of intestate succession. (13 Ill. 2d 443, 451; Klajbor v. Klajbor (1950), 406 Ill. 513, 518, 94 N.E.2d 502.) As a result, the property does not become part of the probate estate. 4A Powell, Law of Real Property, ch. 51, “Ownership in Joint Tenancy,” par. 619.1 (1981).

In the case at bar, Sidney Alpert owned his family home in joint tenancy with his wife Nettie. Upon his death, title vested in Nettie by operation of law. Clearly, Mrs. Alpert’s interest in the residence, by virtue of her right of survivorship, did not become part of the probate estate.

Second, we must consider Lila Jones’ contention that the assignment of beneficial interest in the land trust to Bank of Lincolnwood created an equitable real estate mortgage. Jones maintains that since the transaction gave Bank of Lincolnwood a real property interest, the trial court order directing Bank of Lincolnwood’s claim to be satisfied against that property was correct.

A trustee of an Illinois land trust has both legal and equitable title. (Levine v. Pascal (1968), 94 Ill. App. 2d 43, 50, 236 N.E.2d 425; Chicago Federal Savings & Loan Association v. Cacciatore (1961), 33 Ill. App. 2d 131, 138, 178 N.E.2d 888, aff'd (1962), 25 Ill. 2d 535, 185 N.E.2d 670.) A beneficiary’s interest in an Illinois land trust is personal property and not real property. (Horney v. Hayes (1957), 11 Ill. 2d 178, 183, 142 N.E.2d 94; Shefner v. University National Bank (1976), 40 Ill. App. 3d 978, 980, 353 N.E.2d 126; Levine v. Pascal (1968), 94 Ill. App. 2d 43, 50, 236 N.E.2d 425; but cf. In re Estate of McGaughey (1978), 60 Ill. App. 3d 150, 376 N.E.2d 259 (In McGaughey, the assignee of the beneficial interest in the land trust was also the trustee of that trust).) It follows that an assignee of a beneficial interest in an Illinois land trust acquires only an interest in personal property. The transaction does not give the assignee a direct interest in the realty res of the trust. See 11 Ill. 2d 178; 40 Ill. App. 3d 978; 94 Ill. App. 2d 43.

The Alperts’ assignment of their beneficial interest in the land trust to Bank of Lincolnwood for purposes of securing a mortgage gave Bank of Lincolnwood a personal property interest only. We therefore reject Lila Jones’ argument that the assignment to Bank of Lincolnwood created an equitable real estate mortgage and reverse the trial court’s order directing Bank of Lincolnwood’s claim to be satisfied solely and specifically against the joint tenancy property held in land trust at American National Bank. We note that even if we were to accept Jones’ arguments that the Alpert home was a probate asset and that the transaction created an equitable mortgage, a reversal of the trial court’s order would still be appropriate, for decedent’s will expressly excludes the payment of any real estate mortgage from the probate assets of his estate.

For the foregoing reasons, we reverse the order of the circuit court of Cook County.

Order reversed.

O’CONNOR, J., concurs; CAMPBELL, P. J., dissents.


author: JUSTICE GOLDBERG

text:
    DAVID ZEUNERT, Indiv. and d/b/a David Zeunert and Associates, Plaintiff-Appellant, v. QUAIL RIDGE PARTNERSHIP et al., Defendants-Appellees.
    First District (1st Division)
    No. 80-2789
    Opinion filed December 14, 1981.

      Law Offices of Robert E. Zeitner and Andrew W. Pipitone, of Chicago, for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Edward J. Zulkey, and Donald B. Bruns, of counsel), for appellee Thomas J. Ellefson.
   JUSTICE GOLDBERG

delivered the opinion of the court:

This appeal involves one aspect of litigation brought by David Zeunert, individually, and doing business as David Zeunert and Associates (plaintiff), against Quail Ridge Partnership, a partnership, Curtis Brink, Paul E. Magnuson, Thomas J. Ellefson and Raymond Dryer, doing business as Quail Ridge Partnership (defendants). Plaintiff seeks reversal of an order quashing personal service of summons in the State of Wisconsin upon the defendants Thomas J. Ellefson and Paul E. Magnuson. No brief has been filed in this court by defendant Magnuson.

Plaintiff is an architect doing business in Illinois. In count I of plaintiff’s complaint, against all of the defendants, plaintiff alleged the four named individuals were partners doing business as Quail Ridge Partnership. It is alleged plaintiff met with three of the defendants in Wisconsin about March 20, 1979. Defendants represented that the partnership had purchased Wisconsin land for development of a Federally funded housing project. The defendants informed plaintiff they desired to employ him as architect for the entire project. Defendants agreed to follow Federal guidelines for plaintiff’s fees.

Plaintiff also alleged that about May 21, 1979, plaintiff met with defendant Curtis Brink in plaintiff’s office in Chicago. Plaintiff was “informed by Brink to proceed with” the project. About May 30, 1979, plaintiff “contacted” defendant Magnuson. Plaintiff was told the project was not proceeding and plaintiff should bill defendants for his services to date. The complaint prayed damages of $44,736 for architectural services.

The pertinent facts appear from the motions and the affidavits filed by defendants Ellefson and Magnuson in support of their motions to quash service of summons and responses thereto together with affidavits filed by plaintiff.

Ellefson stated under oath that he has been a resident of Wisconsin for 31 years. He met with plaintiff in Wisconsin on March 20,1979. He had no other or further contact with plaintiff. The meeting concerned a housing project in Wisconsin. Ellefson entered into no agreement with plaintiff and never agreed to pay plaintiff for services. Ellefson had no prior or subsequent contact with plaintiff. Ellefson had no contact or correspondence with plaintiff in Illinois. Ellefson also stated he was never a partner and was never involved in Quail Ridge Partnership.

Defendant Magnuson stated under oath he was in his office in Wisconsin in late February or early March 1979. Plaintiff called him there and asked about a proposed housing project in Wisconsin. Magnuson met with plaintiff in Wisconsin on March 20,1979, and again on April 30,1979. Magnuson received one telephone call in Wisconsin from plaintiff after April 30, 1979. He entered into no written or verbal agreement with plaintiff and never agreed to pay plaintiff for services. Magnuson never sent or received correspondence from plaintiff other than proposed copies of minutes of the meeting held in Wisconsin on March 20, 1979. Magnuson is not a resident of Illinois, never made agreements in Illinois and never conducted business in Illinois. He never was a partner in Quail Ridge Partnership and no partnership was ever established regarding the proposed housing project in Wisconsin.

Plaintiff filed an affidavit in which he stated he met with Brink, Magnuson and Ellefson on March 20,1979, in Wisconsin. He told them he was a licensed architect and exhibited some of his work. The three defendants told him they were partners who owned land in Wisconsin. They wished to employ plaintiff’s services as an architect for a housing project. The name of their partnership was Quail Ridge Partnership. Another meeting in Wisconsin was held on April 23,1979, with defendants Brink and Magnuson. Both “indicated” to plaintiff that they were accepting the work plaintiff had done. Plaintiff also met at his offices in Illinois with defendant Brink. Brink did not deny existence of the partnership. Brink “indicated” that “he was accepting the work” plaintiff had performed “for the partnership.” Brink told plaintiff the fees would be paid.

Plaintiff also stated about May 30,1979, he called Magnuson who told him the partnership had given up the option on the land and he should bill the partnership for work to date. All work by plaintiff, such as on drawings or plans, was performed in plaintiffs office in Chicago.

An additional affidavit was filed by defendant Ellefson. This affidavit included a copy of proposed minutes of the Wisconsin meeting held March 20, 1979, prepared by plaintiff, unsigned by any of the parties. It appeared from these proposed minutes that plaintiff stated a retainer would necessarily be negotiated regarding payment for his services. The affidavit states no retainer was ever agreed upon and no other agreement was reached. Defendant Ellefson never entered into any partnership agreement with any of the other defendants.

This appeal involves only the order entered by the trial judge on May 28, 1980, quashing service and dismissing the case for lack of jurisdiction as regards defendants Ellefson and Magnus on and a subsequent order denying the motion of plaintiff to vacate and reconsider this order.

Discussion of the legal problems created by these facts must commence from examination of the pertinent statute (Ill. Rev. Stat. 1979, ch. 110, par. 17):

“(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(a) The transaction of any business within this State;
(b) The commission of a tortious act within this State; * *

It is undisputed that plaintiff was at all times doing business in the State of Illinois. Defendants Ellefson and Magnuson were residents of the State of Wisconsin. Thus, the issue, generally speaking, is whether these defendants have transacted business within the State of Illinois so as to bring themselves within the jurisdiction of the State in accordance with the statute. Many cases have considered the application of this statute. In Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 402, 389 N.E.2d 155, cert. denied (1980), 444 U.S. 1060, 62 L. Ed. 2d 738, 100 S. Ct. 992, the court cited with approval the following statement from Nelson v. Miller (1957), 11 Ill. 2d 378, 389, 143 N.E.2d 673:

“ ‘Sections 16 and 17 of the Civil Practice Act reflect a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process clause.’ ”

The next problem is a delineation as to what extent the due process provision authorizes jurisdiction by the courts of this State over a nonresident.

In Chandler Leasing Co. v. Trus Joist Corp. (1980), 90 Ill. App. 3d 875, 880, 414 N.E.2d 15, this court with a citation of the pertinent cases, made this definitive statement:

“The essence of the due process requirement under either a minimum contacts or substantial business test is that the activities within the State are such that it is reasonable to require a foreign corporation to defend a particular suit because they have sought the benefits and protection of the law of the forum and that requiring it to defend does not offend the traditional notions of fair play and substantial justice.”

In addition, it is the duty of the trial court to pass upon the pertinent factual issues by consideration of the affidavits “and any evidence adduced upon disputed issues of fact.” (Ill. Rev. Stat. 1979, ch. 110, par. 20(2).) In this type of proceeding where “jurisdiction is denied by the defendant, the burden of proving its presence rests on the party asserting it.” Stephens v. Northern Indiana Public Service Co. (1980), 87 Ill. App. 3d 961, 965, 409 N.E.2d 423.

Since no testimony was offered by the parties, it is the duty of this court to determine from all of the affidavits before it, and from the pertinent allegations of plaintiff’s complaint, whether the contacts of defendants Ellefson and Magnuson with the State of Illinois were of such a type or nature as to subject them to the jurisdiction of the courts of Illinois under the statute first above cited.

It seems to us that plaintiff has in effect attempted primarily to assert the merits of his claim. For example, plaintiff depends strongly upon the statutory concept of partnership by estoppel. (Ill. Rev. Stat. 1979, ch. 106/2, par. 16.) However, that is not the issue before us. The record here shows that a judgment has been entered in favor of plaintiff against the defendants “Quail Ridge Partnership and Curtis Brink individually and as a partner in the Quail Ridge Partnership.” However, the notice of appeal has established our jurisdiction only to determine the narrow issue of whether the courts of Illinois can properly exercise jurisdiction over the individual defendants Ellefson and Magnuson.

As regards the defendant Ellefson, it appears that he had no contact with the State of Illinois. He attended one meeting with plaintiff in Wisconsin. His affidavit denies that he ever retained the services of plaintiff or made any agreement to pay plaintiff anything. We conclude that he did not have sufficient contacts with Illinois so as to vest personal jurisdiction in the courts of this State over him. It is also important to note that defendant Ellefson did not at any time “voluntarily seek the benefits and protections of the laws of this State” so that he became “subject to the jurisdiction of our courts.” Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 348, 395 N.E.2d 1131, citing Chicago Film Enterprises v. Jablanow (1977), 55 Ill. App. 3d 739, 371 N.E.2d 161.

It is also significant here that none of the activities of defendant Ellefson took place within Illinois. The few contacts Ellefson had with plaintiff were exclusively within the State of Wisconsin. The only solicitation of a contract here came from plaintiff and this was carried out, as regards defendant Ellefson, strictly and entirely within Wisconsin. Compare Morton v. Environmental Land Systems, Limited (1977), 55 Ill. App. 3d 369, 372, 370 N.E.2d 1106.

Plaintiff also claims the courts of Illinois have jurisdiction because defendants Ellefson and Magnuson committed “a tortious act within” Illinois. (See Ill. Rev. Stat. 1979, ch. 110, par. 17(1)(b).) Plaintiff’s complaint alleged defendants committed fraud by knowingly representing that they “owned” the property in Wisconsin, when in fact they owned only an option to buy the property which they subsequently declined to exercise. Plaintiff contends a tort was committed in Illinois because his injury, i.e., his performance of services without being compensated, occurred in Illinois. We find plaintiff’s contention without merit.

When a defendant challenges jurisdiction, a court will make a preliminary inquiry as to whether the complaint states a legitimate cause of action “to insure that acts or omissions which form the basis of a cause of action that is patently without merit will not serve to confer jurisdiction.” (Wiedemann v. Cunard Line Limited (1978), 63 Ill. App. 3d 1023, 1030, 380 N.E.2d 932.) In the case at bar, it is abundantly clear that the basis of plaintiff’s claim against these defendants is purely contractual and stems from the alleged breach of an alleged contract. The requisite elements of actionable fraud are not alleged in the plaintiff’s complaint. (See Oltmer v. Zamora (1981), 94 Ill. App. 3d 651, 653, 418 N.E.2d 506.) Also, even if fraud were present, the representations concerning the interest of defendants in the land were made in Wisconsin. We believe plaintiff’s count sounding in tort is legally insufficient and therefore cannot in itself serve as a basis for jurisdiction.

Defendant Magnuson did not file a brief in the instant controversy. Nevertheless, a reviewing court should adjudicate an issue if “the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee’s brief, e (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493.) In the case at bar, the factual and legal issues in adjudicating jurisdiction over Magnuson are virtually identical to those addressed in adjudicating jurisdiction over defendant Ellefson. Furthermore, even accepting the factual statements in plaintiff’s affidavits, we are impelled to conclude the trial court was correct in quashing service on defendant Magnuson. Therefore, we can readily dispose of the appeal regarding Magnuson without the benefit of another brief.

For these reasons the judgment appealed from is affirmed.

Judgment affirmed.

CAMPBELL, P. J., and McGLOON, J., concur.


text:
      In re ESTATE OF CHARLES CAPOCY, Deceased.—(SAM IZZI, Adm’r of the Estate of Charles Capocy, Appellee, v. HEIRS OF JOSEPHINE PIPER et al., Appellants.)
    First District (1st Division)
    No. 80-2890
    Opinion filed December 14, 1981.
    Paul V. Kaulas, of Chicago (Rory Cassidy, of counsel), for appellants Heirs of Josephine Piper.
    Jaros, Tittle & O’Toole, of Chicago (Thomas A. Rosiello and Joseph J. Jaros, Jr., of counsel), for appellant Taiman Home Federal Savings and Loan Association of Illinois.
    Daniel A. Riley, of Riley, Riley and Riley, of Hickory Hills, for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

This appeal involves disposition of the assets of a savings account trust executed by Charles Capocy (settlor) for the benefit of his niece, Josephine Piper, and deposited at Taiman Federal Savings and Loan Association of Illinois (Taiman). Upon motion of the independent administrator of the settlor’s estate, the trial court directed Taiman to release the proceeds of the account to the administrator for distribution to the Capocy heirs. Taiman and the heirs of Josephine Piper appeal.

The savings account in question was opened on October 5,1976. The account was in the name of the settlor as trustee for the benefit of Josephine Piper (beneficiary). Concurrent with the opening of the account, settlor executed a form trust agreement. The settlor made several deposits and withdrawals but never revoked nor modified the trust agreement or the savings account. The front of the trust agreement identified the settlor. The reverse side, also signed by the settlor, provided:

“TRUST AGREEMENT

The funds in the account identified on the reverse side hereof, together with earnings thereon, and any future additions thereto, are by these presents hereby assigned, transferred, conveyed and delivered to the trustee (identified on reverse side) for the benefit of the beneficiary or beneficiaries named (on reverse side). The conditions of said trust are: (1) The trustee is authorized to hold, manage, invest and re-invest said funds in his sole discretion; (2) The undersigned Settlor reserves the right to revoke said trust in part or in full at any time, and any partial or complete withdrawal by the original trustee, if he is the Settlor, shall be a revocation to the extent of such withdrawal, but no other revocation shall be valid unless written notice by the Settlor is given to the Association; (3) This trust, subject to the right of revocation, shall continue for the life of the Settlor, and thereafter as hereinafter specified: (a) If, upon the death of the Settlor, the beneficiary has reached his legal majority, the trust shall terminate and the proceéds delivered to the beneficiary; (b) If, upon the death of the Settlor, the beneficiary has not reached his legal majority, then the legally appointed guardian of the estate of the beneficiary, shall act as successor trustee hereunder for the support, education and maintenance of the minor, provided, however, if the balance of funds accountable to the minor be less than $1,000.00 any adult-with whom the minor resides may act as successor trustee, upon application to and acceptance of such adult by the Association; said successor trustee shall, in addition to his powers to administer this trust as successor trustee, have the full power to terminate this trust and take possession of the funds as Guardian (or Custodian if under $1,000 provision applies) of the minor beneficiary’s estate, and the receipt of such guardian shall be a complete discharge to the Association. In any event, this trust shall terminate and the proceeds shall be delivered to the beneficiary when he reaches his legal majority, subject to the condition precedent that the Settlor is then deceased;
(4) Two or more named beneficiaries shall have equal interests, one such share for each beneficiary living at the time of distribution. If any beneficiary shall die before distribution, his interest shall abate and be paid on an equal basis to the surviving beneficiaries unless such deceased beneficiary shall have one or more descendants then living, in which case the deceased beneficiary’s share shall be divided, per stirpes, among said descendants. The word descendants, as used herein, shall include those persons legally adopted into such status as well as those born therein. If, upon the death of the Settlor, there should be a complete failure of the beneficiaries of this trust, then the funds shall be considered owned in their entirety by the Settlor and shall be part of his estate;
(5) The original trustee is authorized at the discretion of said trustee, to delegate by written power of attorney, an attorney in fact to act on behalf of said trustee and upon any such appointment, the Association is authorized to act with respect to the account upon the signature of either the trustee or the attorney. Any such power granted shall terminate upon written notice to the Association by the trustee, or upon the death or incompetency of the original trustee, and the provisions of this trust shall govern the disposition of the funds; (6) The Association is authorized to pay the same or act in any respect affecting said account before or after the termination of this trust upon the signature of the trustee or successor trustee, or any attorney in fact, and has no responsibility to follow the application of the funds.
In this instrument, the singular includes the plural and the masculine includes the feminine and the neuter.
Dated 10/5/76_ Settlor Charles Capocy

On November 14, 1979, the beneficiary died leaving five heirs. Approximately months later, on March 26, 1980, the settlor died. The question before this court is whether the proceeds of this account become part of the estate of the settlor, or that of the beneficiary.

Initially, the administrator of the settlor’s estate suggests the savings account trust is a “Totten” trust. In re Totten (1904), 179 N.Y. 112, 125-26, 71 N.E. 748, 752, first recognized the type of property disposition now referred to as a “Totten trust.”

“A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass book or notice to the beneficiary.”

Because generally the beneficial interest in a Totten trust does not vest until the death of the settlor, the general rule developed in other jurisdictions (the issue has apparently not yet arisen in Illinois) that if the beneficiary predeceases the settlor, the trust fails and the corpus of the trust reverts to the estate of the settlor. See, e.g., Hyman v. Tarplee (1944), 64 Cal. App. 2d 805, 149 P.2d 453; In re Estate of Ungara (1944), 183 Misc. 907, 51 N.Y.S.2d 386; In re Bulwinkle (1905), 107 App. Div. 331, 95 N.Y.S. 176; United States v. Williams (D.N.J. 1958), 160 F. Supp. 761; also, Annot., 64 A.L.R.3d 221, 223 (1975), and cases there cited; note, Illinois Totten Trusts, 48 Chi-Kent L. Rev. 107 (1971).

However, in the case at bar, the savings account trust is not a Totten trust. As we stated in In re Estate of Anderson (1966), 69 Ill. App. 2d 352, 363, 217 N.E.2d 444:

“In the case before us, we have more than mere accounts in the name of the depositor as trustee. We have the specific trust declarations containing definite terms and provisions regarding the deposit and disposition of funds and the change, alteration, modification and termination of the trust. These trust accounts, therefore, cannot be considered ‘Totten or tentative’ trusts but, * * *\ they are express inter vivos trusts.”

See also In re Estate of Petralia (1965), 32 Ill. 2d 134, 204 N.E.2d 1.

The language of the instant trust agreement evidences intent to establish an immediate trust. The agreement opens with the language: “The funds in the account identified on the reverse side hereof ” e ” are by these presents hereby assigned, transferred, conveyed, and delivered to the trustee * * * for the benefit of the beneficiary or beneficiaries named (on reverse side).” The agreement expresses no condition or requirement that the beneficiary survive the settlor. On the contrary, the trust becomes operative immediately upon execution. Thus, the trust is not “tentative” but is rather a valid, revocable inter vivos trust. Therefore, any rule governing the disposition of Totten trusts is inapplicable here.

In whát appears to be the most recent analogous case, the appellate court of Michigan reached the same conclusion. In May v. American Savings Association (1973), 46 Mich. App. 668, 675, 208 N.W.2d 619, 623, the court held a savings account trust coupled with the execution of a form trust agreement established a valid inter vivos trust. Furthermore, the court held that when the beneficiary predeceases the settlor, the corpus of the trust becomes part of the estate of the beneficiary unless that disposition is incompatible with the language of the trust agreement.

The court reasoned:

“The beneficial interest of [the beneficiary] was expressly conditioned upon the absence of revocation by the grantor. But this fact alone does not mean that this Court should imply another and distinct condition, that of survival of the grantor. Though contingent, [the beneficiary’s] interest was transferable and became upon her death an asset of her estate.” 46 Mich. App. 668, 676, 208 N.W.2d 619, 623.

The same result was reached by the appellate court of California 40 years earlier in Sherman v. Hibernia Savings & Loan Society (1933), 129 Cal. App. Supp. 795, 20 P.2d 138. See also Randall v. Bank of America National Trust & Savings Association (1941), 48 Cal. App. 2d 249, 119 P.2d 754.

We agree with the courts of California and Michigan. We conclude that if the beneficiary of a revocable inter vivos savings account trust predeceases the settlor, upon death of the settlor, the corpus of the trust will pass to the estate of the beneficiary. This presumption will not govern if the settlor amends or revokes the trust during his lifetime, or if the language of the trust agreement indicates an alternate distribution. In the case at bar, the settlor clearly never revoked the trust. Therefore, we must look to the pertinent language of the trust agreement.

The only arguably relevant provision of the trust agreement is section (4) above quoted. The parties disagree as to the relevance and interpretation of this language.

The heirs of the beneficiary contend the provision applies only when at least two beneficiaries are designated in the trust and here the settlor named only one beneficiary. Taiman urges the provision does apply to the instant situation, and accordingly interprets the language as establishing the descendants of the beneficiary as a class of contingent beneficiaries. Thus, the contingent interest of the heirs of the designated beneficiary became vested upon her death before the death of the settlor.

The administrator of the settlor’s estate agrees with Talman’s co-appellant, the heirs of the deceased beneficiary, that the provision does not apply where a single beneficiary is named. The settlor’s administrator argues the agreement did not establish a class of contingent beneficiaries and, absent clear intent of the settlor to the contrary, the trust terminated upon the death of the beneficiary. Implicit in this argument is the assumption that the beneficiary’s interest was conditioned upon her surviving the settlor.

We believe the issue of applicability of section (4) of the trust agreement is irrelevant. In either event the proceeds of the trust become the property of the heirs of the beneficiary. Assuming the provision is not applicable, upon perusal of the entire trust agreement (2416 Corp. v. First National Bank (1980), 91 Ill. App. 3d 961, 977, 415 N.E.2d 420), we conclude the corpus of the trust became part of the beneficiary’s estate. We disagree with the argument of the settlor’s administrator that the trust implied the condition the beneficiary survive the settlor for her interest to vest. The language of the trust agreement indicates the intention immediately to transfer the interest in the trust corpus. The trust agreement specifies no conditions precedent for the vesting of a beneficiary’s interest. Therefore, we conclude the beneficiary’s interest became vested immediately upon the execution of the trust instrument, so that it was an inheritable part of the beneficiary’s estate.

Alternatively, assuming provision (4) is applicable, we believe the language specifies the descendants of a named beneficiary should take the beneficiary’s interest if the beneficiary predeceases the settlor. In our opinion, the death of the only named beneficiary leaving surviving heirs does not constitute the “complete failure of beneficiaries” specified in the final sentence of the paragraph.

For these reasons the judgment appealed from is reversed and the cause is remanded with directions that the trust estate and all avails thereof shall pass to the estate of the deceased beneficiary.

Reversed and remanded with directions.

McGLOON and O’CONNOR, JJ., concur.


text:
    WILLIAM A. GRIGGS, Plaintiff-Appellant, v. THE BOARD OF FIRE COMMISSIONERS OF THE NORTH MAINE FIRE PROTECTION DISTRICT et al., Defendants-Appellees.
    First District (1st Division)
    No. 81-0294
    Opinion filed December 14, 1981.

      Tatel, Levy & Hewlett, P. C., of Chicago (Lawrence M. Karlin, of counsel), for appellant.
    Wilhelm F. Levander, of Des Plaines, for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

On administrative review, the trial court affirmed a decision of the Board of Commissioners of the North Maine Fire Protection District (defendants) suspending William Griggs (plaintiff) for nine days without pay. Statements made by plaintiff were held to violate a regulation of the North Maine Fire Department (department). Plaintiff appeals.

Plaintiff is a fireman and paramedic in the employ of the department. He is also president of the local chapter of the firemen’s union. On March 15, 1980, the department’s front line ambulance became inoperative. The mechanical breakdown was discovered at 9:20 a.m. Initially it was estimated the repairs would take approximately 30 minutes to complete. However, the actual time of repair was approximately two hours. The officer in charge at the time of the incident, Lieutenant Kampka, contacted the Regional Emergency Dispatch Center, which informed him it could cover the area while the ambulance was inoperative.

The department also owns a station wagon. The vehicle is generally used by administrative personnel. It is department policy to use this station wagon as a temporary ambulance if the front line ambulance becomes inoperative. The transfer of necessary emergency equipment from the ambulance to the station wagon is readily made in from 2 to 5 minutes.

At the time of the incident, the station wagon was in the possession of Deputy Chief Holtz, who was not on duty. Lieutenant Kampka informed Holtz of the situation and asked him whether he felt it necessary to bring in the station wagon and activate it as a temporary ambulance. Holtz reportedly replied he did not think it was necessary, and did not bring the wagon down to the station. Holtz was not informed that, as above stated, the actual time of repairs was longer than first estimated. During the time the ambulance was inoperative, there were no emergency calls to the department.

Plaintiff was informed of the occurrence by a fellow fireman who thought it was a “matter of importance.” Plaintiff thereafter discussed the incident with eight other firemen.

On or about April 7,1980, plaintiff was contacted by a reporter from The Highlander, a local newspaper. The principal topic of the interview was the local tax situation and the loss of tax income to the Fire District. The article as published quoted plaintiff as stating that Deputy Chief Holtz “refused to bring the other ambulance to the station.” The article also contains a statement by plaintiff that Regional Emergency Dispatch Center had agreed to cover the area in the case of an emergency call. The article also reports a statement by Deputy Chief Holtz that he carries his “page everywhere I go” so he could “respond within a few minutes” and that he told the men that if the ambulance was “down longer than planned, I would bring the other one back.”

Section 5.17 of the Rules and Regulations of the department provides: “Discrediting Other Members. No member of the department shall wantonly or maliciously make or circulate or cause to circulate any false report regarding any other member, calculated to bring such member into discredit.”

In the proceedings below, defendants found plaintiff’s statement was knowingly false and maliciously intended to discredit Deputy Chief Holtz in violation of the above regulation. On administrative review, the trial court sustained his suspension. Defendants’ argument in this court stresses the inaccuracy of the word “refused” in plaintiff’s statement. Defendants contend because Deputy Chief Holtz was neither “ordered” nor “requested” to return the vehicle, he could not have “refused” to return it.

Plaintiff argues the statement was “substantially” correct particularly in light of the “innocent construction rule” and the statement was protected by the first amendment.

In our opinion, the factual issue here is one of plaintiff’s intent in making the published statement. The regulation is directed against wanton or malicious circulation of a false report. Defendants cite the legal or technical definition of “refusal” as stated in Black’s Law Dictionary 1152 (5th ed. 1979). This authority defines the word at length as including, “A rejection, a denial of what is asked.” However, the problem here is not the precise legal definition of the word but rather the ascertainment of the intent of plaintiff who is not a lawyer but a fireman. A simple definition of the word is thus more applicable to the case at bar.

“Refuse” is defined as “1: avoid, shun 2: to decline to accept: reject * * “ 3a: to show or express a positive unwillingness to do or comply with (as something asked, demanded, expected) # (Webster’s Third International Dictionary 1910 (16th ed. 1971).) Defendant’s argument appears based on the third definition; to exhibit a positive unwillingness to do something asked or demanded. While Deputy Chief Holtz may not have positively exhibited an “unwillingness to comply,” his actions could possibly be categorized as a “declination to accept” an invitation to return the vehicle.

We believe the matter here is best solved by application of the innocent construction rule. In John v. Tribune Co. (1962), 24 Ill. 2d 437, 442, 181 N.E.2d 105, cert. denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148, the supreme court held that “words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law.” Although John involved an action in libel while the case at bar does not, John is applicable because by specifying the statement must be made “wantonly or maliciously,” “false” and calculated “to discredit,” the regulation establishes a standard similar to the standard for libel. Cf. Dendor v. Board of Fire & Police Commissioners (1973), 11 Ill. App. 3d 582, 588, 297 N.E.2d 316.

The issue here is not made by statements of plaintiff to the reporter in the interview. The issue rises from the article as printed in the newspaper. John v. Tribune Co. requires that “the article is to be read as a whole and the words given their natural and obvious meaning ” e (24 Ill. 2d 437, 442-43, and cases there cited.) The complete absence of malicious intent from plaintiff’s mind is demonstrated strongly by plaintiff’s statement that if an emergency “occurred, an ambulance would have been dispatched from one of four neighboring Regional Emergency Dispatch (RED) Centers * * Also the article reflects the statement by Deputy Chief Holtz above quoted. This material minimized the entire incident and completely refuted any inference which could conceivably result from use of the word “refused.”

Furthermore, plaintiff’s statement in a quoted interview must be considered in the light of the first amendment and by more general public policy considerations. While the first amendment rights of a public employee may be limited, they may not be destroyed. (Muller v. Conlisk (7th Cir. 1970), 429 F.2d 901, 904.) Additionally the governmental body has the duty to demonstrate the impairment of free speech is justified. (Dendor v. Board of Fire & Police Commissioners (1973), 11 Ill. App. 3d 582, 589.) To sustain its burden, the public entity must show: (1) the plaintiff made the statement; (2) that the statement was in fact false; and (3) that the plaintiff made the statement intentionally knowing it was false or with reckless disregard of its truth or falsity. (Shipp v. Davis (1977), 48 Ill. App. 3d 463, 362 N.E.2d 822, appeal denied (1977), 66 Ill. 2d 636.) It is manifest that this record fails entirely to fulfill this third requirement.

In Shipp, this court sustained the suspension of a fireman whose statement was considered violative of departmental regulation and not constitutionally protected. However, Shipp is distinguishable from the case at bar. In Shipp, the plaintiff accused the Fire Chief of unlawfully favoring nonunion firemen in the promotion process. The court found evidence in the record to suggest the statement was “motivated by strong feelings of animosity” (48 Ill. App. 3d 463, 466), and with “no factual basis” (48 Ill. App. 3d 463,467). We find Shipp factually inapposite to the instant case where plaintiff stated Holtz “refused” to bring down the vehicle and where it is undisputed that Holtz “declined” to bring the vehicle to the station. Even if defendants could prove plaintiffs statement was factually inaccurate, the record falls far short of proof that the statement was “intentionally false” or made with “reckless disregard” for its veracity.

In Pickering v. Board of Education (1968), 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731, the Supreme Court reversed the dismissal of a teacher for publishing a letter in which the allocation of funds was criticized. The court enunciated a balancing test:

“The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U.S. 563, 568, 20 L. Ed. 2d 811, 817, 88 S. Ct. 1731, 1734-35.

The court noted that public employees are particularly acquainted with issues of public importance. “Accordingly, it is essential that they be able to speak out on such questions without fear of retaliatory dismissal.” Pickering, 391 U.S. 563, 572, 20 L. Ed. 2d 811, 819, 88 S. Ct. 1731, 1736.

In the case at bar, the statement made by plaintiff certainly dealt with a matter of public concern. The statement involved the emergency procedures of the department, which could readily reflect upon public safety. As noted by the court in Pickering, we find there was no showing in the hearing before defendants that the statement seriously impaired the normal operation of the department.

The findings by defendants are to be considered as “prima facie true and correct.” (Ill. Rev. Stat. 1979, ch. 110, par. 274.) However, it is the duty of this court, as a reviewing court, to ascertain “whether the findings and decisions of the administrative agency are against the manifest weight of the evidence.” (Davern v. Civil Service Com. (1970), 47 Ill. 2d 469, 471, 269 N.E.2d 713, cert. denied (1971), 403 U.S. 918, 29 L. Ed. 2d 695, 91 S. Ct. 2229. See also Baehr v. Health & Hospital Governing Com. (1980), 86 Ill. App. 3d 43, 47, 407 N.E.2d 817, and cases there cited.) The evidence here does not in any measure support the defendants’ finding that plaintiff maliciously circulated a false report to discredit his superior. Also, as above demonstrated, the result reached by defendants is contrary to law and to the first amendment of the Constitution so that reversal is required.

This opinion should not be considered as an invalidation of the departmental regulation here involved. We hold simply that the application of this regulation must be limited to malicious conduct so as not to avoid infringement upon the first amendment rights of the employees of defendant.

For these reasons, the judgment appealed from is reversed.

Judgment reversed.

CAMPBELL, P. J., and McGLOON, J., concur.