author: JUSTICE VAN DEUSEN

text:
    ENOCH SILVERSTEIN et al., Plaintiffs-Appellants, v. DONALD S. SCHAK et al., Defendants-Appellees.
    Second District
    No. 81-693
    Opinion filed July 8, 1982.

      Andrew J. Maxwell and Eric N. Macey, both of Levy and Erens, of Chicago, for appellants.
    B. G. Stone, of James B. O’Brien and Assoc., of Chicago, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiffs, Enoch Silverstein and Sidney Silverstein, who were trustees of 18 trusts collectively doing business as Commercial Coin Laundry Systems (Commercial), filed their two-count complaint against defendants Donald S. Schak, Cerda Schak, and Donald Crotty for injunctive relief and specific performance. The action arose from alleged breaches and interferences with the quiet enjoyment of a certain lease of a laundry room upon premises at 1037 Howell Plaza, Aurora, Illinois, an apartment complex. The defendants, beneficiaries of -a trust which presently owns the premises, filed a motion to dismiss pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48). In the motion, they purportedly raised an affirmative matter which would defeat plaintiffs’ claims. In support of their motion, defendants attached a copy of the mortgage for the complex, and the affidavits of Homer Offutt, Aurora Township Assessor; James R. Little, president of Earl Little & Son, Inc., the lessor in the lease upon which plaintiffs base their claims; Clement Novak, mortgage loan officer of Great American Federal Savings & Loan Association; and the defendants, Donald S. Schak, Gerda Schak, and Donald Grotty. Plaintiffs did not file any counteraffidavits.

The trial court granted defendants’ motion to dismiss both counts of the complaint, but also found that a year-to-year lease did exist between the parties and granted plaintiffs leave to amend their complaint to conform with that finding of fact. Plaintiffs did not file an amended complaint but chose to stand on their original complaint. Upon their motion for a finding of a final and appealable order, the trial court found that there was no just reason for delaying appeal from its order dismissing the complaint. Plaintiffs thereupon filed their notice of appeal.

The single controlling issue on this appeal is whether plaintiffs’ seven-year lease, originally entered into on November 12,1973, with Earl Little & Son, Inc. (Little), as lessor, remained fully binding and enforceable upon defendants who purchased the property following a foreclosure proceeding. Plaintiffs, as tenants in possession, were not made parties to the foreclosure action, and plaintiffs, therefore, contend their lease is still valid and enforceable.

Defendants contend that the rights of the mortgagee to which they succeeded were superior to those of the plaintiffs because the mortgage predated the lease and that the actions of the mortgagee in entering upon and taking possession of the premises for a condition broken terminated the lease upon which plaintiffs base their complaint.

In making the motion to dismiss, it is a general rule that defendants admit as true all facts well pleaded in the complaint (LaMonte v. City of Belleville (1976), 41 Ill. App. 3d 697, 704), but not conclusions of fact unsupported by specific facts (Zaborowski v. Hoffman Rosner Corp. (1976), 43 Ill. App. 3d 21, 25). However, under a section 48 motion to dismiss, a defendant is permitted to raise as grounds in support of his motion facts which do not appear on the face of the complaint by means of affidavits. (Ill. Rev. Stat. 1979, ch. 110, par. 48.) Since plaintiffs did not file any counteraffidavits, the facts alleged in defendants’ affidavits must be taken as true (D'Urso v. Wildheim (1976), 37 Ill. App. 3d 835, 839), and this generally remains true, even though the complaint is verified (Central Clearing, Inc. v. Omega Industries, Inc. (1976), 42 Ill. App. 3d 1025, 1028.)

In this matter, however, we discern no conflict between the facts well pleaded in the complaint and the facts alleged in defendants’ affidavits. The undisputed facts which we garner from the complaint and defendants’ affidavits appear to be as follows. On June 27,1972, Aurora National Bank, as trustee of trust No. 1074, conveyed a first mortgage for the premises in question to Oak Park Federal Savings & Loan Association. Earl Little & Son, Inc. (Little), was the beneficiary of trust No. 1074. On or about November 12, 1973, Little entered into the lease in question with Commercial.

Under the terms of the mortgage, in case of default, the mortgagee had authority either before or after foreclosure sale to enter upon and take exclusive possession of the premises, to make leases, terminate or modify existing or future leases, and collect rents. After entering into the mortgage, Oak Park Federal Savings & Loan Association, the mortgagee, changed its name to Great American Federal Savings Association (Great American). On or about June 1, 1977, Great American, as mortgagee, commenced foreclosure of its mortgage. For a period of time during the foreclosure proceedings, Great American entered the demised premises, operated and managed the complex, and began collecting rents. While in possession, Great American did not enter into any written or oral lease agreement with Commercial. Subsequent to the foreclosure proceeding, Great American transferred title to the foreclosed premises to a subsidiary, Interjacent Corporation. Interjacent subsequently sold the foreclosed property to Donald Schak and Gerda Schak. Donald Schak, Gerda Schak and Donald Grotty are presently beneficiaries of the trust which now holds title to the premises in question. Neither the defendants nor their agents have ever entered into a written or oral lease with Commercial.

Plaintiffs’ assertion that Commercial’s lease is still in full force and effect is premised upon its contention that Commercial’s right to possession as a tenant under a written lease was not affected by the mortgage foreclosure proceedings to which it was not made a party. Illinois law does provide that ordinarily tenants in possession are necessary parties to a foreclosure action (Richardson v. Hadsall (1883), 106 Ill. 476, 479; Chicago Title & Trust Co. v. Exchange National Bank (1974), 19 Ill. App. 3d 565, 569; South Side Bank & Trust Co. v. Sherlock Homes, Inc. (1955), 6 Ill. App. 2d 138, 143), and defendants do not contest that principle of law.

What plaintiffs fail to recognize is that the defendants do not assert that plaintiffs’ rights under the lease were in any way affected by the foreclosure judgment or that they are claiming rights against plaintiffs arising from the foreclosure proceeding. Rather, defendants assert that it was the mortgagee’s entry upon the premises for a condition broken that terminated the lease between Commercial and Little, not the foreclosure proceeding.

The trial court so held, and we agree.

The lease between Commercial and Little was executed subsequent to the execution of the mortgage. After the execution of a mortgage, the mortgagor, in this case, Little, could not execute a lease that would prevail against the mortgagee’s rights without the mortgagee’s consent. (West Side Trust & Savings Bank v. Lopoten (1934), 358 Ill. 631, 641; Rohrer v. Deatherage (1929), 336 Ill. 450, 454-55; Jetzinger v. Consumers Sanitary Coffee & Butter Stores (1932), 268 Ill. App. 482, 486.) Where the lease is executed subsequent to the mortgage, the lease has no force as to the mortgagee. (Rohrer v. Deatherage (1929), 336 Ill. 450, 455; Gartside v. Outley (1871), 58 Ill. 210, 214.) Where the mortgage was executed prior to the lease, then the mortgagee, after a breach of the mortgage, may enter upon the premises and take possession and either evict the tenant or recognize him or her as the mortgagee’s own tenant. (West Side Trust & Savings Bank v. Lopoten (1934), 358 Ill. 631, 641; Greenebaum Sons Bank & Trust Co. v. Kingsbury (1928), 248 Ill. App. 321, 331-32.) Unless the mortgagee does recognize the lessee as a tenant under the existing lease, the mortgagee’s entry onto the premises for condition broken terminates the existing lease between the mortgagor and the lessee. (Gartside v. Outley (1871), 58 Ill. 210, 214.) The fact that the tenant has performed the conditions of the lease with the mortgagor is no defense to the asserted rights of the mortgagee. (Rohrer v. Deatherage (1929), 336 Ill. 450, 455.) In this particular case, the affidavits of Clement Novak and the defendants established that when the mortgagee, Great American, took possession of the premises for condition broken, it did not enter into any oral or written lease agreement with the plaintiff or agree to recognize the lease between Little and Commercial. However, the acceptance of rent by the mortgagee, Great American, who entered the premises for a condition broken, did create the relationship of landlord and tenant. The receipt of rents by Great American created, however, only a tenancy from year-to-year. Gartside v. Outley (1871), 58 Ill. 210, 215.

In Gartside the court stated:

“The generally received doctrine seems to be, that the receipt of rents by the mortgagee will only create a tenancy from year to year, in analogy to the rule where the tenant holds over after the expiration of the lease. The doctrine proceeds upon the ground that the lease is inoperative as to the mortgagee, and is terminated by the act of entry. The rule of common law is well established, that the mortgagor can not, without the consent of the mortgagee, execute a lease that will prevail against the rights of the mortgagee, and it has been uniformly held that the entry of the mortgagee puts an end to the lease. Keech v. Hall, 1 Doug. 2.” (58 Ill. 210, 214-15.)

Our review of Illinois case law indicates that Gartside v. Outley remains the law in Illinois, and the trial court properly found that Commercial’s lease of the demised premises with Little was terminated by the entry of the mortgagee upon condition broken of the mortgage. Therefore, the trial court was correct in dismissing the complaint of the plaintiffs as both counts thereof were predicated upon the validity of the lease between Little and Commercial.

The trial court was also correct in finding that a landlord-tenant relationship did exist between the defendants and the plaintiff and that a year-to-year tenancy had been created by the mortgagee’s acceptance of rent from the tenant and was binding upon the defendants as successor in interests to the rights of the mortgagee.

As alternative relief on appeal, plaintiffs request this court to remand the matter to the trial court for further proceedings to determine the length and the nature of any lease created and the damages for violation of that lease.

The trial court in its initial ruling in this matter, presented plaintiff with an opportunity to amend its complaint to seek damages and other relief for breach of the year-to-year tenancy which the trial court found existed between the plaintiffs and the defendant. Plaintiffs chose not to do so, but rather to stand upon their original complaint for damages for breach and for specific performance of its lease with Little. Having chosen to stand on that original complaint, plaintiffs waived their right to amend their complaint. The judgment of the trial court dismissing the complaint of the plaintiff is affirmed.

Affirmed.

SEIDENFELD, P. J, and UNVERZAGT, J., concur.


source: Caselaw Access Project

author: JUSTICE ALLOY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EMORY C. HAYSLETTE, Defendant-Appellant.
    Third District
    No. 81-644
    Opinion filed July 8, 1982.
    James R. Fritze, of Eagle, Colorado, for appellant.
    Tony L. Brasel, State’s Attorney, of Watseka (Matthew M. Schneider, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

Following a guilty plea to the offense of driving under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95½, par. 11 — 501(a)), the defendant, Emory C. Hayslette, was placed on court supervision for a period of one year, beginning December 3, 1979. Docket entries of the guilty plea proceedings held on December 31, 1979, indicate that the defendant was orally advised of the following conditions of his one year period of supervision: “(1) that the Defendant shall not violate any criminal law of this State nor of any other jurisdiction during the period of Supervision (2) that the Defendant shall pay a fine of $220 plus $25 costs $80 of bond to apply. Defendant granted until January 11, 1980 to pay balance of fine and costs. (3) that the Defendant shall attend DWI School at the Salvation Army or Iroquois County Mental Health Center and report his satisfactory completion of the same. (4) the Defendant shall not operate any motor vehicle within 6 hours of having consumed any alcoholic beverage which [sic] on Supervision (5) Defendant to file a report of his compliance with Supervision upon the termination thereof.” An additional entry indicated that the State was to prepare the formal order of supervision.

The formal order of supervision, signed by the trial judge on January 4, 1980, contained the first four conditions cited above but omitted any reference to the fifth condition requiring the defendant to file a report upon the termination of his period of supervision.

On April 8, 1980, the defendant filed proof of his satisfactory completion of the D.W.I. school. No report was filed by the defendant following the termination of the one-year period of supervision on December 31, 1980.

On April 22,1981, nearly four months after the defendant’s period of supervision ended, the State filed a petition to revoke the defendant’s supervision, alleging that the defendant committed the offense of driving while under the influence of intoxicating liquor on October 26, 1980, and that he failed to file a report of compliance with supervision at the termination of the one year period of supervision. The defendant moved on June 12, 1981, to dismiss the State’s petition to revoke, alleging that the failure of the State to file the petition within the period of his supervision stripped the trial court of jurisdiction to hear the petition and that the filing of the petition in April 1981 for an alleged violation occurring in October 1980 denied him due process of law. The defendant’s motion to dismiss was denied at a hearing held on August 31, 1981.

Following two continuances, a hearing was held on the State’s petition to revoke the defendant’s supervision on September 29,1981. At that time the court found, based upon the stipulated evidence presented by the State, that the defendant violated the conditions of his supervision by driving while intoxicated. The court imposed an additional fine of $100 and $38.40 in court costs.

In this appeal, the defendant contends that the trial court lacked jurisdiction to revoke his supervision, because the one year period of supervision had run prior to the filing of the State’s petition to revoke. In support of his contention, the defendant cites to section 5 — 6—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 5 — 6—4), which provides for the violation, modification or revocation of probation, of conditional discharge and supervision. Section 5 — 6—4(a)(3) provides in part:

“Personal service of the petition for violation of probation or the issuance of such warrant, summons or notice shall toll the period of probation, conditional discharge or supervision until the final determination of the charge, and the term of probation, conditional discharge or supervision shall not run until the hearing and disposition of the petition for violation.”

The defendant asserts that there is no evidence in the record to show that the State did anything to toll the statutory period of supervision.

Although the defendant cites to no cases dealing directly with orders of supervision, and we were unable to locate cases specifically on point, a number of cases dealing with probation revocation support the defendant’s position that the trial court lacked jurisdiction to revoke his supervision. In 1978, our supreme court announced in in re Sneed (1978), 72 Ill. 2d 326, 381 N.E.2d 272, that probation may not be extended or revoked without notice and a hearing and a finding that the minor has violated a condition of his probation. Unless the State acts to toll the statute prior to the termination of the period of probation, probation cannot be revoked because it has, in fact, ended. (People v. Randolph (1981), 98 Ill. App. 3d 696, 424 N.E.2d 893.) Furthermore, the court has no authority to revoke probation after the period of probation has expired, even for an offense alleged to have occurred during the term of probation. In re Pacheco (1978), 67 Ill. App. 3d 396, 384 N.E.2d 986.

The defendant urges that we apply the rationale of these cases to reverse the trial court’s finding that he violated the terms of his court ordered supervision. The State counters the defendant’s argument with a two-pronged attack. First, the State argues that court supervision is a sufficiently distinguishable disposition from probation as to render the tolling provisions found in section 5 — 6—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—4) and the case law interpreting those tolling provisions inapplicable. In support of its argument the State cites to those statutory provisions setting forth the incidents and conditions of court supervision. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1.) Subparagraphs (d), (e) and (f) of those provisions read as follows:

“(d) The court shall defer entering any judgment on the charges until the conclusion of the supervision.
(e) At the conclusion of the period of supervision, if the court determines that the defendant has successfully complied with all of the conditions of supervision, the court shall discharge the defendant and enter a judgment dismissing the charges.
(f) Discharge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime. Two years after the discharge and dismissal under this Section a person may have his record of arrest expunged as may be provided by law. However, any defendant placed on supervision before January 1, 1980, may move for expungement of his arrest record, as provided by law, at any time after discharge and dismissal under this Section.” Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1(d), (e) and (f).

The State contends that because the court must make a determination at the end of a period of supervision concerning the entry of a judgment against the defendant, the period of supervision does not terminate until the court acts. The State distinguishes this process from that found in cases involving probation, where entry of judgment is not deferred until the conclusion of the probationary period. Further, the State argues that the period of supervision had not ended in the case at bar, since the court never made a determination concerning the defendant’s completion of his supervision.

The State’s second argument is an extension of its first. That is, the State argues that because the defendant failed to file a report of his compliance with supervision (and in fact, could not do so since he allegedly violated at least two of the conditions of his supervision), the court retained jurisdiction, even though the one-year period ended on December 31, 1980. In response, the defendant contends that he should not be held accountable for the report, since that condition of supervision was not included in the formal order of supervision prepared by the State and signed by the trial judge on January 4, 1980. We agree with the defendant. We will not presume awareness of the report requirement merely because the defendant was present in open court, as the trial court did. Rather, the formal written order of the court must control its oral pronouncements. It was incumbent upon the State, who was also present in open court and who prepared the formal order, to seek its modification or amendment so as to include the omitted fifth condition. It did not do so.

We agree with the defendant, also, that the trial court did not retain authority to hear the petition to revoke. The one-year period of supervision ordered by the court began on December 31, 1979. Thus, the one-year period of supervision ended on December 31, 1980. The petition to revoke supervision was filed in April 1981, based upon an alleged October 1980 violation of the conditions of supervision. The State’s petition to revoke was filed six months after the alleged offense occurred and four months after the period of supervision had ended. The State made no showing that the period of supervision had been tolled or otherwise attempted to justify its delinquency in filing the petition to revoke. Under the circumstances, the court had no authority, in April 1981, to revoke the defendant’s supervision. See In re Pacheco (1978), 67 Ill. App. 3d 396; People v. Randolph (1981), 98 Ill. App. 3d 696; People v. Ramirez (1970), 131 Ill. App. 2d 268, 270-71, 266 N.E.2d 520.

Although we find that the court was without authority to revoke supervision, we do agree with the State that the statutory provisions setting forth the conditions and incidents of supervision require further court action in relation to the defendant’s supervision. That is, the court must make a determination as to whether the defendant has successfully complied with all of the conditions of supervision. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 6—3.1(d), (e) and (f).) Neither the prior trial court action nor our reversal herein operates as a bar to such further court action as required by these statutory provisions.

For the reasons stated, we reverse the trial court’s revocation of supervision, including the imposition of a fine and payment of costs.

Reversed.

STOUDER and SCOTT, JJ., concur.


author: JUSTICE WILSON

text:
    GEORGE ZOIS, a Minor, by Chriso Zois, his Father and Next Friend, Plaintiff-Appellant, v. JOSEPHINE PINIARSKI, Defendant-Appellee.
    First District (5th Division)
    No. 80-3047
    Opinion filed June 25, 1982.
    Rosenfield, Kaplan & Halperin, of Chicago, for appellant.
    Tim J. Harrington, of Chicago (Edward O’Donnell and Robert Guilfoyle, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

This is an appeal from a judgment entered in favor of defendant by the trial court on the basis of a special interrogatory which indicated that plaintiff was guilty of contributory negligence. The issue raised on appeal is whether the special interrogatory was ambiguous and did not test the general verdict and, thus, should have been refused by the court. A detailed recitation of the facts is not necessary and only those facts germane to the issue raised will be discussed here.

Plaintiff, an eight-year-old child, sought compensatory damages as a result of being struck by an automobile being driven by defendant. The trial court submitted defendant’s special interrogatory to the jury, which read as follows:

“Was the Plaintiff, GEORGE ZOIS, a minor before and at the time of the occurrence, guilty of negligence which proximately caused the injury complained of? When I use the word negligence with respect to this Plaintiff, I mean that degree of care that a reasonably careful minor of the age, mental capacity and experience of the Plaintiff would use under circumstances similar to those shown by the evidence.”

The jury returned a general verdict for plaintiff in the amount of $10,000 but also answered the special interrogatory in the affirmative. Judgment was then entered in favor of defendant based on the answer to the special interrogatory.

Opinion

Plaintiff posits that the special interrogatory and answer thereto was ambiguous, did not test the general verdict, and thus it was error for the trial court to submit it to the jury. We agree.

The function of a special interrogatory is to require the jury’s determination as to one or more specific issues of ultimate fact and is a check upon the deliberations of the jury. (Vuletich v. Bolgla (1980), 85 Ill. App. 3d 810, 407 N.E.2d 566.) Generally, an inconsistent special finding controls a general verdict as a matter of common law, even if the statute does not expressly so provide. (Albaugh v. Cooley (1981), 87 Ill. 2d 241, 429 N.E.2d 837; Iverson v. Iverson (1977), 56 Ill. App. 3d 297, 370 N.E.2d 1135.) An “inconsistency” between the special finding and the general verdict exists only when special findings are clearly and absolutely irreconcilable with the general verdict. In determining any such inconsistency, the special interrogatory must be considered alone, unaided by any presumptions in its favor and without looking at the evidence. (Lewis v. Beckman (1978), 57 Ill. App. 3d 482, 373 N.E.2d 589.) Thus, the interrogatory should contain a single direct question and should not be repetitious, misleading, confusing or ambiguous and should use the same language or terms as are contained in the instructions. Hocking v. Rehnquist (1968), 100 Ill. App. 2d 417, 241 N.E.2d 337, rev’d on other grounds (1969), 44 Ill. 2d 196, 254 N.E.2d 515.

In the pending matter, we believe the special interrogatory is confusing and misleading as it improperly defines “negligence” of a minor.

The interrogatory defines the word “negligence” as “that degree of care that a reasonable, careful minor of the age, mental capacity and experience of the plaintiff would use under circumstances similar to those shown by the evidence.” Thus, in effect, the special interrogatory defines “negligence” as “due care.”

Further, the answer to the special interrogatory does not appear to be inconsistent with the general verdict because the jurors answer of “yes” to the interrogatory could mean that the jury determined that the plaintiff exercised that degree of care that a reasonable, careful minor of the age, mental capacity and experience of the plaintiff would use under circumstances similar to those shown by the evidence. Consequently, the answer to the special interrogatory would not be inconsistent with the general verdict and judgment should not have been entered in favor of defendant. A special finding will control a general verdict only when the two are inconsistent. (Iverson v. Iverson.) A faulty special interrogatory can be cured when other instructions and the evidence indicate that the jury was not confused by the interrogatory to the detriment of the plaintiff. (Bruske v. Arnold (1969), 44 Ill. 2d 132, 254 N.E.2d 453.) However, other instructions in the record do not cure this deficiency.

For the foregoing reasons, we vacate the judgment of the circuit court and remand this matter with directions to enter judgment in favor of plaintiff in the amount of $10,000 in accordance with the jury verdict.

Judgment vacated; remanded, with directions.

SULLIVAN, P. J., and LORENZ, J., concur.

       An interpretation of the jury’s answer to the special interrogatory to the effect that plaintiff did not use that degree of care that a reasonable, careful minor of the age, mental capacity and experience of the plaintiff would use under circumstances similar to those shown by the evidence could not reasonably and logically be made because the interrogatory does not include the phrase “failure to exercise” after the word “mean” in the last sentence. With this phrase omitted, the form of the interrogatory is additionally confusing as to its meaning.


author: JUSTICE LORENZ PRESIDING JUSTICE SULLIVAN,

text:
    BEATRICE FROUD, Indiv. and as Special Adm’r of the Estate of James Froud, Plaintiff-Appellant, v. THE CELOTEX CORPORATION et al., Defendants-Appellees. — RITA WILLIAMSON, Indiv. and as Adm’r of the Estate of Wyatt Williamson, Plaintiff-Appellant, v. THE CELOTEX CORPORATION et al., Defendants-Appellees. — SHIRLEY FRIDAY, Indiv. and as Special Adm’r of the Estate of John Friday, Plaintiff-Appellant, v. THE CELOTEX CORPORATION et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 81-0052, 81-0053, 81-0054 cons.
    Opinion filed June 25, 1982.
    SULLIVAN, P. J., specially concurring.
    John M. Burke, of Burke & Burke, of Chicago, for appellants.
    Phelan, Pope & John, of Chicago (Peter C. John and Barbara K. Halpern, of counsel), for appellee Raybestos-Manhattan, Incorporated.
    Donald J. O’Brien and Michael W. Rathsack, both of Chicago, for appellee Standard Asbestos Manufacturing and Insulating Company.
    Sweeny & Riman, of Chicago (Harry G. Sachrison, of counsel), for appellee Keene Corporation, individually and as successor to Baldwin-Ehret-Hill, Incorporated.
    Law Offices of John B. Grogan, of Chicago (Thomas J. Kane and John B. Grogan, of counsel), for appellee Grant Wilson, Incorporated.

      French & Rogers, of Chicago (Richard G. French and Thomas F. Lucas, of counsel), for appellee Armstrong Cork Company.
    Haskell & Perrin, of Chicago (Willis R. Tribier and Philip A. Jackman, of counsel), for appellee A & M Insulation Co.
    Tenney & Bentley, of Chicago (Michael J. Smith and Karen S. Quandt, of counsel), for appellee AARCO Products Corporation.
    Hubbard, Hubbard, O’Brien & Hall, of Chicago (Rory D. Cassidy, of counsel), for appellee Mauritzon, Incorporated.
    Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago (Edward F. Ryan and Keith A. Klopfenstein, of counsel), for appellee Union Carbide Corporation.
    Pretzel, Stouffer, Nolan & Rooney, of Chicago (John A. Goudge, Joseph B. Lederleitner, and Robert Marc Chemers, of counsel), for appellee Ruberoid Incorporated, a division of GAF Corporation.
    Kiesler & Berman, of Chicago, for appellee Ryder Cement.
    Kralovec, Marquard, Doyle & Gibbons, Chtd., of Chicago (Henry J. Marquard and Joseph J. McDonough, of counsel), for appellee Flintkote Company.
    Epton, Mullin, Segal & Druth, of Chicago (Edward J. McCambridge, of counsel), for appellee H. K. Porter Company.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Thomas J. Weithers, D. Kendall Griffith, and Frederick S. Mueller, of counsel), for appellee Owens-Corning Fibreglas Corporation.
    Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellee Forty-Eight Insulation.
    Schiff, Hardin & Waite, of Chicago (Roger Pascal and Robert H. Riley, of counsel), for appellee Owens-Illinois, Incorporated.
    Judge, Drew, Cipolla & Kurnik, of Park Ridge (James S. Stephenson, of counsel), for appellee Nicolet Industries, Incorporated, successor in interest to Keasvey-Mathison, Incorporated.

      Johnson, Cusack & Bell, Ltd., of Chicago (William V. Johnson, Thomas H. Pegan, and Robert Bell, Jr., of counsel), for appellee Johns-Manville Sales Corporation, individually and as successor in interest to Johns-Manville Products Corporation.
    Sloan & Connelly, of Chicago (Robert E. Davy and Mark A. Moynihan, of counsel), for appellee Celotex Corporation, individually and as successor in interest to Panacon Corporation and Philip Carey Manufacturing Company.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Harry J. O’Kane, and Daniel J. Cheely, of counsel), for appellee Pittsburgh Corning Corporation, Combustion Engineering, Incorporated, and Fibreboard Corporation.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (John F. White, Robert S. Soderstrom, and James P. DeNardo, of counsel), for appellee UNARCO Industries, Incorporated.
    Law Offices of Thomas J. Keevers, of Chicago (Debra S. Puchowitz, of counsel), for appellee Eagle-Picher Industries, Incorporated.
   JUSTICE LORENZ

delivered the opinion of the court:

These three consolidated appeals present the question of whether punitive damages can be recovered under the Survival Act (Ill. Rev. Stat. 1979, ch. 110½, par. 27 — 6) in a common law cause of action.

James Froud and John Friday were asbestos workers who allegedly contracted peritoneal mesothelioma from prolonged exposure to asbestos products which were manufactured and sold by the defendants. Wyatt Williamson was an asbestos worker who allegedly contracted bronchogenic carcinoma from prolonged exposure to the same asbestos products. After Froud and Friday filed actions against the defendants, they died, and administrators were appointed to prosecute the actions on behalf of their estates. Williamson died before filing an action, and his administrator brought an action on behalf of his estate.

In each of these actions, count one accuses the defendants of negligence, count two is based on strict liability in tort, and count three seeks recovery of punitive damages. The defendants moved to dismiss count three of each action on the grounds that these common law actions for punitive damages abated at the death of the injured parties. These motions were granted, and the trial court found that there was no just reason for delaying appeal of its dismissal orders. (73 Ill. 2d R. 304(a).) In deference to the trial court, we note that the court stated that it is illogical and unjust to permit defendants to escape liability for punitive damages merely because they are lucky enough to injure people who die before trial. However, the trial court reluctantly concluded that it was obligated to dismiss the actions for punitive damages.

We reverse.

The common law rule is that actions for “personal torts” abate at the death of the injured person. (Prosser, Torts sec. 126, at 898 (4th ed. 1971).) This common law rule is the source of the old adage that it was cheaper to kill people rather than to merely injure them. To counter the injustice caused by this rule, the Survival Act keeps various causes of action from abating at the death of the injured party, including “actions to recover damages for an injury to the person (except slander and libel)” (Ill. Rev. Stat. 1979, ch. 110½, par. 27 — 6). But, despite the fact that the statute does not distinguish between punitive and compensatory damages for injury to the person, Illinois case law has, for more than 100 years, interpreted the Act as providing that actions for punitive damages abate at the death of the injured person. (Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 33, 330 N.E.2d 509.) Thus, as far as liability for punitive damages is concerned, it continued to be cheaper to kill people rather than to merely injure them. 61 Ill. 2d 31, 38 (Goldenhersh, J., dissenting).

Relying on National Bank v. Norfolk ¿r Western By. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919, the administrators in the present cases argue that the supreme court no longer construes the Survival Act as providing for the abatement of actions for punitive damages. In National Bank, the supreme court held that a statutory cause of action for punitive damages under section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77) did not abate at the death of the injured person, even though section 73 does not contain any reference to the question of survivability. The court explained that it reached this result because the goal of promoting public safety through the use of punitive damages would be perverted if a wrongdoer could escape liability for outrageous misconduct merely because the injured person died before trial. 73 Ill. 2d 160, 174.

As interpreted by the supreme court in National Bank, “[t]he Survival Act itself neither authorizes nor prohibits punitive damages.” (73 Ill. 2d 160, 174.) The court further explained that “[pjunitive damages for injuries prior to death should be unaffected by the subsequent death of the injured person, for punitive recovery addresses only the nature and gravity of a defendant’s wrongful and wilful act.” 73 Ill. 2d 160, 174.

“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment.” Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77.

The precise question presented by the present appeals is whether the holding of National Bank is limited to statutory actions, or whether the court really meant it when it declared that “[t]he Survival Act itself neither authorizes nor prohibits punitive damages.” 73 Ill. 2d 160, 174.

Justice Ryan, in dissenting from National Bank, pointed out that (1) there is nothing in section 73 of the Public Utilities Act which indicates that the legislature intended for this statutory cause of action for punitive damages to survive the death of the injured person; and (2) there is nothing in the Survival Act to indicate that the legislature intended to distinguish between statutory and common law punitive damages. (73 Ill. 2d 160, 178.) Moreover, awarding punitive damages in common law actions is also intended to promote public safety by punishing outrageous misconduct, and this goal would be perverted in common law cases, as well as statutory actions, if wrongdoers could escape liability whenever an injured person dies before trial. Thus, Justice Ryan concluded that “if the Survival Act is a sufficient vehicle for preserving a cause of action for statutory punitive damages, it should also be capable of preserving a cause of action for common law punitive damages. 73 Ill. 2d 160, 178.

We agree that there is no apparent basis for distinguishing between statutory provisions for punitive damages, such as section 73 of the Public Utilities Act, and actions for punitive damages based on the common law. And we are persuaded that the holding in National Bank is based on an interpretation of the Survival Act as a neutral vehicle which “neither authorizes nor prohibits punitive damages” (73 Ill. 2d 160, 174) in both statutory and common law actions. We therefore conclude that, under the binding precedent of National Bank, common law actions for punitive damages survive the death of injured persons.

We note, however, that defendants’ brief contains a broad-based attack on the propriety of punitive damage awards in the context of mass tort litigation, such as the large number of asbestos cases which have been filed across the nation. It is feared that, in such mass tort cases, the possibility that each plaintiff could separately recover a substantial award of punitive damages might bankrupt even the richest defendants. The defendants therefore argue that public policy should prohibit punitive damages in mass tort cases. But we do not believe that defendants should be relieved of liability for punitive damages merely because, through outrageous misconduct, they may have managed to seriously injure a large number of persons. Such a rule would encourage wrongdoers to continue their misconduct because, if they kept it up long enough to injure a large number of people, they could escape all liability for punitive damages.

If the defendants believe that the multitude of asbestos cases filed against them may subject them to a large number of backbreaking awards of punitive damages, they may want to consider requesting that the trial court certify a class action of asbestos case claimants for the purpose of resolving the issue of punitive damages. See In re Northern District of California “Dalkon Shield” I.U.D. Products Liability Litigation (N.D. Calif. 1981), 526 F. Supp. 887 (Appeal docketed, No--, 9th Cir.).

In the Daikon Shield case, the defendant faced claims of $2.3 billion in punitive damages arising out of a large number of injuries allegedly caused through the use of its product, but the defendant itself had a net worth of only $280,394,000. Recognizing the danger of punitive “overkill,” the trial court granted defendant’s motion to certify a class action of plaintiffs for the purpose of resolving, in a single trial, the question of punitive damages in all Dalkon Shield cases. As contemplated by the district court, the jury — if it found for the named plaintiffs on the issue of liability, and found for the class on the issue of punitive damages — would be asked to award a single sum as punitive damages on behalf of all potential claimants. (526 F. Supp. 887, 920.) This procedure would permit each claimant who eventually prevailed on the issue of liability to share in the award of punitive damages, and it would eliminate the likelihood that the defendant would be bankrupted by multiple awards of punitive damages.

We express no opinion on the merits of such a procedure under Illinois law, but we mention it to show that courts can protect defendants in mass tort cases from “execution” by punitive damages without granting them immunity from such damages.

For the preceding reasons, the judgment of the circuit court is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded with directions.

MEJDA, J., concurring.

PRESIDING JUSTICE SULLIVAN,

specially concurring:

In view of the reasoning in National Bank v. Norfolk & Western Ry. Co., as set forth in the majority opinion, I concur in the result reached. However, that case involved an action under section 73 of the Public Utilities Act (Ill. Rev. Stat. 1977, ch. Ill 2/3, par. 77), which expressly provides for punitive damages and, because it was not specifically stated in National Bank that common law punitive damages were recoverable under the Survival Act, there remains a question in this regard.

I am in accord also with the suggestion of the majority that in class litigation, to avoid punitive damages “overkill,” Illinois could adopt the “Dalkon Shield” concept of a separate trial to award a single sum as punitive damages for all plaintiffs present and potential, with percentage to each based upon the compensatory damages received. Nevertheless, the Daikon Shield concept would not satisfy the contention of the 22 law firms appearing for defendants that public policy should prohibit awards of punitive damages.

While I disagree with this contention, it cannot be denied that the spectre of the destruction of companies, and even individuals, as a result of punitive damage awards is a threatening, present reality. Such awards have become increasingly greater in recent years, as indicated by the recent single personal injury jury verdict in the amount of $127.8 million, of which $125 million was for punitive damages. (Richard Grimshaw v. Ford Motor Co., Superior Court, Santa Ana, Cal., February 1978.) The punitive damages in that case were reduced by the trial court to $3.5 million, but the amount of the initial award and the many others rendered in considerable amounts point out the problem, as stated by Judge Friendly in Roginsky v. Richardson-Merrell, Inc. (2d Cir. 1967), 378 F.2d 832, 841:

“[T]he apparent impracticability of imposing an effective ceiling on punitive awards in hundreds of suits in different courts may result in an aggregate which, when piled on large compensatory damages, could reach catastrophic amounts. * * *
[A] sufficiently egregious error as to one product can end the business life of a concern that has wrought much good in the past and might otherwise have continued to do so in the future, with many innocent stockholders suffering extinction of their investments for a single management sin.”

Punitive damages, sometimes referred to as exemplary damages, appears to have been first recognized in Huckle v. Money (1763), 2 Wils. K.B. 206, 95 Eng. Rep. 768, as a means of justifying damage awards in excess of plaintiff’s tangible harm to punish defendants in instances of malice, oppression or gross fraud, i.e., where the manner of performance made the conduct “outrageous.” It has developed in this country to the extent that the amounts of such awards in the aggregate could not only result in the end of a business, as suggested by Judge Friendly, but also the financial destruction of an individual.

This is particularly so in Illinois, because it has been held in a recent case (Beaver v. Country Mutual Insurance Co. (1981), 95 Ill. App. 3d 1122, 420 N.E.2d 1058) that public policy prohibits insurance against liability for punitive damages arising out of one’s own conduct.

The possible catastrophic effect of this ruling is evident when it is realized that awards of punitive damages are readily obtainable in this State. The recovery may be had where the defendant is guilty of “wilful and wanton misconduct,” with the jury instructed as follows:

“If you find that defendant was guilty of wilful and wanton conduct which proximately caused injury to the plaintiff and if you believe that justice and the public good require it, you may, in addition to any damages to which you find plaintiff entitled, award plaintiff an amount which will serve to punish the defendant and to deter others from the commission of like offenses.” Illinois Pattern Jury Instructions, Civil, No. 35.01 (2d ed. 1971) (hereinafter IPI Civil).
Willful and wanton misconduct has been defined for the jury as “a course of action which shows actual or deliberate intention to harm or which, if not intentional, shows an utter indifference to or conscious disregard for a person’s own safety and the safety of others.” (IPI Civil No. 14.01.)

Under these instructions, as a practical matter, awards of punitive damages may be obtained where the conduct is only slightly greater in degree than mere negligence.

It appears that four States disallow awards of punitive damages— Massachusetts, Louisiana, Nebraska and Washington — and that England, which invoked the doctrine, has done away with it except in cases (1) “of oppressive, arbitrary or unconstitutional action by the servants of the government”; (2) “in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the defendant”; and (3) “in which exemplary damages are expressly authorized by statute.” Rookes v. Barnard (1964), AC 1129, 1220, 1223.

While it may be true, as defendants contend, that punitive damages are a windfall to plaintiffs who have already been fully compensated, it is noted that they are provided for in certain statutes and that there are extreme circumstances where such awards might serve some societal need. However, because of the problems as outlined above, particularly the possible unavailability of liability insurance, it does appear that the concept should be examined to determine, among other things, (1) whether the reason for punitive damages has ceased to exist and, if not, should they be awarded only for extremely flagrant conduct; (2) whether recovery should be allowed only by statute; (3) whether the amount recovered should bear some relation to the harm involved and the compensatory damages received; (4) whether the awarding of unlimited damages as a punishment to deter like offenses is unfair compared to the fixed minimum and maximum criminal penalties which are also imposed as punishment and deterrence; (5) whether the standard of proof should be “clear and convincing” rather than preponderance; and (6) whether payment of such awards should be made other than to the already fully compensated plaintiffs, such as to a public fund.

       Section 73 provides:

       It should be noted (a) that the district court decision promulgating the Daikon Shield concept is presently on appeal in the ninth Circuit Court of Appeals and (b) that the concept could be used only if Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 428 N.E.2d 478, which held that a class action may be maintained on behalf of nonresident plaintiffs, is not reversed by the United States Supreme Court — where a petition for certiorari has been granted.

       Such as $10,500,000 in Rosendin v. Avco-Lycoming (Santa Clara County, Cal., March 1971) and $850,000 in a MER-29 case in New York, where hundreds of similar cases were filed throughout the country.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WARREN L. BEAN, Defendant-Appellee.
    Third District
    No. 82-52
    Opinion filed July 12, 1982.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

An information filed in the circuit court of Rock Island County charged the defendant, Warren L. Bean, with unlawfully possessing less than 30 grams of a substance containing lysergic acid diethylamide (LSD), a controlled substance. The defendant moved to suppress the contraband, arguing that it was the fruit of an illegal warrantless search. The circuit court agreed and ordered the evidence to be suppressed. The State appeals from that ruling. We affirm.

The circumstances surrounding the search, as stipulated by the parties, are sparse. On July 7, 1981, two Rock Island police officers arrested the defendant for resisting arrest and aggravated "battery after a disturbance took place between the defendant and one officer outside the defendant’s apartment. We assume that the defendant had been patted down for weapons and had been restrained, but that police had not then removed his personal property from him. They escorted him to the station house for booking, and, according to established police “booking procedures and inventory search,” ordered him to surrender all his personal property, including his clothing and wallet. The defendant had kept the wallet, which was of a common billfold variety, in either his pants or shirt pocket. No contraband was visible from the folded wallet; an officer opened it and eventually discovered the controlled substance. Although the record is silent, we assume the LSD was held in some sort of package of its own, which the officer ripped open. At the suppression hearing, the defendant did not dispute that he was lawfully arrested for the offenses arising from the ruckus with the officer. Also, the State stipulated that the police had no probable cause to believe that the defendant possessed any controlled substances when his wallet was searched. Following the conclusion of counsels’ arguments, the court granted the suppression motion, finding that, while the State had lawfully arrested the defendant, the delayed warrantless search of his wallet, which contained its own expectation of privacy independent from the arrestee’s body, was unlawful as either a search incident to his arrest or an inventory search.

On appeal the State, relying on the recent opinion of People v. Hughes (1982), 105 Ill. App. 3d 738, 434 N.E.2d 828, renews its contention that the search of the defendant’s wallet was lawful whether the search is viewed as incident to the defendant’s lawful arrest or as an inventory of his possessions. On the other hand, the defendant argues that our recent decision in People v. Lafayette (1981), 99 Ill. App. 3d 830, 425 N.E.2d 1383, which the circuit court relied on in granting the motion to suppress, controls and mandates that we affirm the suppression order.

As Justice Powell commented in Arkansas v. Sanders (1979), 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586, while the general principles applicable to claims of fourth amendment violations are well established, State and Federal courts continue to be deluged with requests to exclude probative evidence in part because court decisions seemed to turn upon apparently infinitesimal factual differences. (See also Ross, Search and Seizure Law Report, vol. 8, No. 9 (Sept. 1981).) Today we address one area of fourth amendment law that has indeed spawned a considerable amount of case law recently: the warrantless postponed or station house search of a piece of personal property, which the police have no independent probable cause to examine, following the defendant’s lawful arrest. A brief review of this body of law illustrates the competing principles.

In Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034, the Supreme Court affirmed the principle that a warrantless contemporaneous search incident to a lawful custodial arrest did not violate the fourth amendment. A search of the individual arrested may be made because, once arrested, he surrenders his right to privacy, which the fourth amendment protects. A custodial arrest also authorizes a search of the area within the arrestee’s immediate control to prevent the arrestee from destroying evidence, becoming armed, or escaping. In United States v. Robinson (1973), 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467, the Supreme Court emphasized that the lawful custodial arrest itself was a reasonable intrusion; once that was established, a warrantless search incident thereto required no separate probable cause or exigent circumstance. In United States v. Edwards (1974), 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234, the Supreme Court appeared to extend the search-incident-to-arrest rule to delayed warrantless searches of the arrestee and his belongings after he had been arrested and placed in custody. There, one day after the defendant’s arrest, police took his clothing and searched it for evidence. Relying heavily upon the holding in Robinson, Justice White, speaking for a five-member majority, reasoned that because the warrantless search could have been made on the spot when the defendant was arrested, the same search could also have been made later when the arrestee was incarcerated. In a footnote, however, the court noted that, independent of the arrest, the police had probable cause to search and seize the arrestee’s clothing at the station house. Notwithstanding the cautionary footnote in Edwards, many courts believed after Robinson and Edwards that a lawful arrest was the sole requirement authorizing a warrantless search, either during the arrest or later at the station house, of the arrestee as well as any items within the arrestee’s immediate control. See 2 W. LaFave, Search and Seizure sec. 5.5, at 350 n.12 (1978).

Then the Supreme Court appeared to limit or at least re-examine the search-incident-to-arrest exception to the warrant requirement in United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476. There the government arrested the defendants immediately after they had placed a locked footlocker in the open trunk of their car. Agents also seized the footlocker, which had been located a few feet from the arrestees, and later opened it at the station house without obtaining a warrant. It contained marijuana. In affirming the defendants’ motion to suppress, the Supreme Court rejected the government’s argument that the footlocker was seized incident to the defendants’ lawful arrest. Emphasizing the defendants’ legitimate expectation of privacy in the footlocker’s contents, as evinced by the closed, locked container, the court held that such rights were not diminished merely because the defendants were arrested nearby: “[u]nlike searches of the person, United States v. Robinson [(1973), 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467]; United States v. Edwards [(1974), 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234], searches of possessions within an arrestee’s immediate control cannot be justified by any reduced expectations of privacy caused by the arrest.” (United States v. Chadwick (1977), 433 U.S. 1, 16 n.10, 53 L. Ed. 2d 538, 551, n.10, 97 S. Ct. 2476, 2486 n.10.) The court, while reaffirming the principle that a contemporaneous search incident to a custodial arrest may be conducted without a warrant or independently based probable cause, rejected the government’s contention that the search can later be made at the station house: * ° warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest,’ [citation] or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” (United States v. Chadwick (1977), 433 U.S. 1, 15, 53 L. Ed. 2d 538, 550-51, 97 S. Ct. 2476, 2485.) The Supreme Court applied Chadwick in Arkansas v. Sanders (1979), 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586, to invalidate a delayed warrantless search of an unlocked suitcase, finding that because a suitcase was in its fundamental character a repository for personal, private effects, a legitimate expectation of privacy arose in the contents. In a concurring opinion the author of Chadwick, Chief Justice Burger, said legitimate expectations of privacy in the contents of a container were not diminished upon arrest even where the arrestee carries the container in his hand. Since Sanders, the Supreme Court has made clear that the nature of the container is not determinative of whether its contents are to be clothed with legitimate expectations of privacy, saying that all containers must, in the eyes of the fourth amendment, afford the same degree of privacy to the contents held within. United States v. Ross (June 1, 1982), 50 U.S. L.W. 4580.

The authorities submitted by the parties, Lafayette and Hughes, show the uncertain effect Chadwick and its progeny have had on Robinson and Edwards. In Lafayette we held that a warrantless station house search of the defendant’s shoulder bag following his lawful arrest did not constitute a search incident to arrest and was therefore illegal. After comparing the defendant’s purse-like shoulder bag to a container such as the one in Sanders, the Lafayette court concluded that, because the bag was a repository for personal items, those contents were clothed with legitimate expectations of privacy that were not diminished when the defendant was arrested. In reaching this conclusion, Lafayette relied on the language in Chadwick indicating that an arrest alone did not diminish legitimately held expectations of privacy in personal property even though it may have been lying within the arrestee’s immediate control. Once the defendant was restrained and his purse taken into police possession, it could no longer be argued that the search of its contents was justified to prevent the arrestee from destroying evidence, becoming armed, or escaping. (See also People v. Helm (1981), 89 Ill. 2d 34, 431 N.E.2d 1033 (station house search of the arrestee’s purse not incident to her lawful arrest).) Hughes, on the other hand, specifically involved the legality of a so-called second look or subsequent station house search of personal property, a wallet, which had been previously seized from the defendant’s person during booking following his arrest. In dicta, however, the court discussed the first search, saying it was lawful even though police had no independent probable cause or exigent circumstance to search the wallet. Hughes interpreted Chadwick more narrowly, finding that it applied only to “ ‘personal property not immediately associated with the person of the arrestee.’ ” (People v. Hughes (1982), 105 Ill. App. 3d 738, 741, quoting from United States v. Chadwick (1977), 433 U.S. 1, 15, 53 L. Ed. 2d 538, 551, 97 S. Ct. 2476,2485.) The Hughes court reasoned that because the wallet was contained in the defendant’s clothing at the time he was arrested, it was “immediately associated” with the defendant and thus fell within the exception to Chadwick. The court then applied People v. Richards (1981), 103 Ill. App. 3d 1120, 432 N.E.2d 276, appeal allowed (No. 56275) (May 1982), to find that the evidence was nonetheless inadmissible because the second search was made without a warrant.

Because Hughes’s discussion of Chadwick did not form the basis of that court’s opinion regarding the propriety of the warrantless second search, we do not feel bound by its reasoning. Therefore, we hold that the station house search of the defendant’s wallet was unlawful because, regardless of whether the lawful arrest excused the requirement of a warrant, the search was not founded upon independently based probable cause. We can discern no possible distinction for fourth amendment purposes between the wallet here and the purse or shoulder bag in Layfayette or Helm; legitimate expectations of privacy reposed in both containers. Merely because a wallet folds shut while a purse may fasten shut will not change a person’s rights under the fourth amendment, for every container which shields its contents from plain view provides constitutionally enforced protection to its owner. United States v. Ross (June 1, 1982), 50 U.S.L.W. 4580.

Even assuming that a constitutionally viable distinction exists between items immediately associated with the arrestee’s person (Chadwick) and items within the arrestee’s immediate control (Chimel) as was suggested in Hughes (see also 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment sec. 5.5(a) (1978)), we refuse to follow Hughes insofar as it excuses not only the warrant requirement, but also the requirement of independently based probable cause when police conduct delayed warrantless searches of the contents of a container immediately associated with the arrestee’s person. Prior to Edwards the fourth amendment’s guarantees of probable cause and a warrant based thereon were inexorably tied together. Chimel and Robinson held that a contemporaneous search incident to arrest not only excuses the requirement that a search be preceded by a judicially issued warrant, but also that a search be conducted without separately established probable cause. Edwards extended the search-incident-to-arrest rule to station house searches but only addressed the issue of whether a warrant was necessary to search items immediately associated with the arrestee; the majority specifically declined to reach the issue of whether a delayed warrantless search of such items can be made without probable cause because probable cause existed in Edwards. In Chadwick and Sanders police had probable cause to seize the contents of the containers, but the delayed searches were ruled unconstitutional because they were made without a warrant, which of course must be founded upon probable cause. But Chadwick and Chief Justice Burger’s concurrence in Sanders make clear that the legitimate expectations of privacy existing in the contents of closed containers are not extinguished regardless of the container’s propinquity to the arrestee. Once the defendant is taken into custody and the container is placed in police possession, the justification to search the contents without probable cause — to prevent the destruction of evidence, injury to police, or escape of the arrestee — disappears. We believe that after Chadwick and Sanders, no longer will the search-incident-to-arrest exception to the warrant requirement also authorize delayed searches of items immediately associated with the arrestee without probable cause. Here, without reaching the issue of whether the defendant’s wallet falls within Chadwick’s “immediately associated” exception to the warrant requirement, we hold that even where closed containers are immediately associated with the arrestee’s person, police may not search and seize its contents at the station house without independently based probable cause.

Nor did the instant station house examination constitute a valid inventory of the wallet’s contents. Even though an inventory is not technically considered to be a search (South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092), it nonetheless invades legitimate expectations of privacy and that intrusion is tested for its constitutionality by an application of the fourth amendment reasonableness standard. (People v. Bayles (1980), 82 Ill. 2d 128, 411 N.E.2d 1346.) Our supreme court in Bayles and Helm announced that personal containers seized incident to a lawful arrest may not be opened and inventoried absent exigent circumstances which justify the intrusion. Instead property must be sealed if possible and properly stored. Here, the wallet’s nature did not prevent it from being safely sealed and stored to protect the items kept inside and to protect police from claims of lost property. People v. Lafayette (1981), 99 Ill. App. 3d 830, 425 N.E.2d 1383.

For the foregoing reasons, we affirm the order suppressing evidence entered in the circuit court of Rock Island County.

Affirmed.

ALLOY and SCOTT, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
    ALBERT W. WHITLER, Petitioner-Appellant, v. MACOUPIN COUNTY et al., Respondents-Appellees.
    Fourth District
    No. 17646
    Opinion filed July 12, 1982.
    William S. Hebron, of Hebron & Hebron, of Carlinville, for appellant.

      Edmond H. Rees, State’s Attorney, of Carlinville and Verticchio & Verticchio, of Gillespie, for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

The question presented here is whether, under sections 23 — 20 and 23 — 23 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, pars. 23 — 20, 23 — 23), a candidate for office who, according to the official canvass of the election, has lost by an extremely narrow margin, can obtain a recount upon a showing that the computer used to tally the ballots for the entire election was not operating properly but without showing that he would be the likely winner upon a recount. We conclude that he cannot and affirm the judgment appealed.

The judgment appealed was a summary judgment entered by the circuit court of Macoupin County on November 9,1981, against plaintiff, Albert W. Whitler, dismissing with prejudice the suit he brought on December 9,1980, against defendants, Macoupin County, Philip Brown, and Raymond J. Vernetti. He sought a recount of the ballots cast for the office of circuit clerk of Macoupin County at the general election held on November 4, 1980.

The record showed the following to be undisputed: (1) plaintiff was the candidate of the Republican Party and defendant Brown the candidate of the Democratic Party for the office in issue; (2) they were the only candidates whose names were on the ballot; (3) defendant Vernetti was the county clerk of Macoupin County; (4) the county was divided into 66 voting precincts; (5) by the official canvass Brown beat Whitler by 10,951 votes to 10, 920 votes; (6) the voting was conducted under an electronic voting system whereby the voter recorded a vote by marking or punching a card which was later counted by a data processing machine pursuant to article 24A of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 24A — 1 et seq.); and (7) all of the votes for the office in question were counted by a machine rented to Macoupin County by a private supplier.

Plaintiff Whitler has made no claim of fraud and the record does not show any trace of fraud having occurred. Plaintiff’s claims have been based upon an inaccurate tabulation of the vote. One claim arose from a situation whereby, after the cards from five precincts were run through the data processing machine, the officials responsible decided it was desirable to start the counting over again. Plaintiff’s other claim arose from a discovery recount of the ballots cast in each of 16 precincts selected by plaintiff pursuant to his rights under section 22 — 9.1 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 22 — 9.1). The complaint alleged and defendants admitted that the recount showed that 125 more votes were cast in those precincts for the office of circuit clerk than were shown by the official canvass figures for those precincts. Although defendant Brown received 70 of these additional votes to 55 for plaintiff, the latter maintains that because the precincts selected were strongly for Brown, the trend would indicate that if the ballots from all the precincts were recounted, the results would show plaintiff to have been the winner.

The record showed that plaintiff could not substantiate his claim that the recount of the first five precincts showed any substantial inaccuracy to have existed. A transcript of plaintiff’s discovery deposition contained testimony by plaintiff that others had told him that his vote total after a second count of the first five precincts was 200 less than after the first, but plaintiff was not able to present any firsthand information that this was so. Moreover, the unrefuted testimony of defendant Vernetti contained in his deposition was that the same five precincts were not tabulated first when the new tabulation was started. Vernetti’s unrefuted deposition testimony also indicated that the recount was done because of problems with the ability of the data processing machine to canvass the cumulative total of votes and that the problem had nothing to do with the ability of the machine to tabulate the vote for an individual precinct. Vernetti’s testimony also indicated that from the records he had available he could only compare the first tabulation with the second for three precincts and that in those the vote did not vary by more than one in any precinct.

Plaintiff was also unable to substantiate his contention that the results of the discovery recount revealed a trend indicating he would likely be the winner if all ballots from all precincts were recounted. Defendant Brown won 13 of the 16 precincts recounted in the discovery proceedings while plaintiff won in only three. Because he gained more votes on average in the precincts he won than defendant Brown did in those he won, plaintiff contends that the returns on recount from the other 50 precincts, 33 of which plaintiff won, would overcome Brown’s lead. We must categorize plaintiff’s theory as pure speculation. His claim of the gains he would make in the precincts he won is based on the returns from only three precincts.

The revelation that in an election won by only 31 votes, the apparatus failed to record 125 of the votes cast in one-fourth of the precincts is, nevertheless, a matter of concern. Nothing of record indicates that the machine failed to record more votes for one candidate than the other even though, generally, in areas where Brown was receiving more of the votes, the machine failed to record more of his votes and the reverse was true in areas where plaintiff got more of the votes. Although the record did not indicate that plaintiff would more likely than not win on a recount, it did show that neither candidate received an accurate count and that there was a less than even but, nevertheless, substantial chance plaintiff would win upon a recount.

The trial court dismissed the petition because the record presented showed that from the evidence available it could not be shown that plaintiff would more likely be the winner upon a recount. In doing so the trial court correctly followed precedent. Sections 23 — 20 and 23 — 23 of the Election Code, providing for election contests of the type here, make no mention of a requirement that the party seeking a recount allege or prove that he would be the most likely winner upon a recount. A rule requiring such allegation and proof has arisen from the case law.

The latest supreme court decision requiring that a contestant be shown to be the likely winner before a recount can be ordered is Zahray v. Emricson (1962), 25 Ill. 2d 121, 182 N.E.2d 756, which concerned a contest of a mayoral election. The petition filed in the circuit court alleged that: (1) unqualified voters had been permitted to vote in all precincts; (2) ballots included in the official count were not endorsed as required by law; (3) ballots included in the count were not properly marked; (4) the official canvass had not been conducted according to law; and (5) the tally of the votes for each candidate, when added together, did not equal the total votes represented as tallied. The court recognized that the purpose of the proceeding was to deliver a true vote but stated that the proceeding cannot be employed to allow a party upon mere suspicion to have “the ballots opened and subjected to scrutiny to find evidence upon which to make a tangible charge.” (25 Ill. 2d 121, 124, 182 N.E.2d 756, 758.) The court held the petition insufficient because it did not clearly allege a recount would change the result.

The rule of Zahray that the contestant must allege and prove the likelihood that the results of an election will be changed in order to obtain a recount has been established in this State and is also followed elsewhere. (People ex rel. Nourie v. Peltier (1914), 265 Ill. 630, 107 N.E. 200; Conway v. Sexton (1909), 243 Ill. 59, 90 N.E. 203; Louden v. Thompson (1971), 1 Ill. App. 3d 809, 275 N.E.2d 476; 29 C.J.S. Elections sec. 268(2), at 721 (1965).) Our affirmance is based upon this precedent.

The writer is of the opinion that a special rule, for which he can find no precedent, should be adopted to cover situations of the nature before us and permit a recount. Section 22 — 9.1 of the Election Code now permits a discovery opening of the ballots subjecting them to scrutiny “to find evidence upon which to make a tangible charge” in one-fourth of the precincts if the candidate requesting the discovery has received 95% of the votes of the declared winner. Under traditional methods of conducting elections, this gave the losing candidate reasonable opportunity to check for most of the types of irregularities that occurred. The system of tabulating votes under article 24A of the Election Code by the use of a data processing machine is of comparatively recent origin. When the machine is not functioning properly, it renders inaccurate not merely the results of a precinct but that of the entire county and in a case such as this, the entire election.

In the election under scrutiny here, plaintiff Whitler received 99.7% of the vote received by defendant Brown. In one-fourth of the precincts, 1.7% of the vote was not being counted by the machine that was processing the results of the entire election. The writer concludes that under modern voting procedures, a showing of an inaccuracy of this magnitude in a machine counting all of the votes in an election this close should be sufficient to require a total recount and the court made rule should be modified accordingly. Such a modification would be consistent with the dissent of Justice Albert Scott in Louden.

Affirmed.

LONDRIGAN and TRAPP, JJ„ concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID ALDACO, Defendant-Appellant.
    First District (5th Division)
    No. 80-2768
    Opinion filed June 25, 1982.

      James J. Doherty, Public Defender, of Chicago (Timothy Kosnoff and John Lanahan, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, and Paula Carstensen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was found guilty of attempt armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4) and was sentenced to a term of eight years in the Illinois Department of Corrections. He appeals, contending that (1) the trial court erred by admitting a transcript of the victim’s preliminary hearing testimony in that the State failed to exercise due diligence in procuring the victim’s attendance at trial, and (2) he was denied a fair trial by the trial court’s failure to ask prospective jurors questions during voir dire sufficient to allow him to intelligently exercise his peremptory challenges.

The following pertinent evidence was adduced at trial.

Chicago police officers James Molloy and John Farrell both testified for the State that they were assigned to a plainclothes Tactical Unit of the Chicago Police Department on May 28,1978. Shortly after midnight, they were patrolling westbound on 18th Street near 18th and Racine, in Chicago, Illinois, when they observed three Latino men standing on the sidewalk in a well-lighted area. The' three men were identified as the defendant, a shorter companion, and the victim, Salvador Razo.

Defendant was holding a gun to the head of Salvador Razo. The policemen stopped their car, and as they were exiting their vehicle, they were spotted by the three men. Defendant immediately threw the gun under a car and fled north up a nearby alley with the second man.

Officer Molloy testified that they did not chase the two men immediately because they knew who the defendant was and also knew where he lived. Officer Molloy recovered the gun while Officer Farrell went over to speak to Razo and placed him in the car.

They proceeded by car towards the direction of the defendant’s home and when they sighted defendant coming out of a gangway, Officer Molloy got out of the car and attempted to arrest him. Following a struggle, defendant escaped and ran a short distance until Officer Farrell drove the car in front of him, got out of the car, pulled out a gun and ordered him to stop. Defendant was placed under arrest.

The preliminary hearing testimony of Salvador Razo, which had originally been given in Spanish, was read to the jury. When translated by a court interpreter it consisted of essentially the following:

On May 28, 1978, at approximately 12:05 a.m., Razo was walking near the corner of 18th and Racine when two men “attacked me and tried to rob me.” He then made an in-court identification of defendant as being one of the men who had attacked him.

Razo further testified that defendant stopped him with a gun in his hand and asked for his money, but that when the two officers arrived defendant dropped the gun and started running.

Defendant testified on his own behalf that on the night in question, he was walking home from a friend’s house when two Mexicans across the street called out to him in Spanish, “Hey, brother, come here for a moment.”

He stated that the taller man asked him if he was interested in buying a gun, explaining that the immigration authorities had contacted him for deportation back to Mexico and he didn’t want to be caught by them with a gun.

Prior to the commencement of the trial, the State presented a motion to allow the use at trial of Razo’s testimony at the preliminary hearing and the following pertinent evidence was adduced at the hearing on the State’s motion.

Assistant State’s Attorney John Feely testified that on March 29,1979, he issued a subpoena for Salvador Razo, who responded to the subpoena and was interviewed by Feely on three occasions.

Razo informed him that he could be reached by telephone at the home of his brother, Anselmo Razo. Assistant State’s Attorney Edward Vienuzis testified that he called Anselmo Razo’s residence and spoke to Josephine Razo, Salvador Razo’s niece. She informed him that her uncle Salvador was in Mexico and she did not know how he could be contacted.

Richard C. Larson, an investigator for the Cook County Sheriff’s Police Department testified that sometime in April 1980, he was instructed by Feely to find Salvador Razo. Larson went to Razo’s last known address and spoke to several of the neighbors, who told him they had never heard of Razo.

Subsequently, a second investigator contacted Anselmo Razo at his place of employment. Anselmo stated that his brother had returned to Mexico to get married and was living in south-central Mexico with his fiancee’s family, and that he did not know where or how his brother could be contacted.

The selection of the jury at the commencement of trial was conducted entirely by the trial court. The voir dire examination included questions concerning the veniremen’s relationship with any State’s Attorneys or police officers and whether the fact that many of the witnesses and the defendant were Mexican-Americans would affect their ability to be impartial jurors, in addition to general individual questions concerning the prospective jurors’ family and background.

During voir dire, defense counsel stated that the court had not asked individual jurors certain questions submitted by defense counsel, and moved for a mistrial. The written questions in issue are not included in the record on appeal.

Opinion

We first address defendant’s contention that he was denied a fair trial by the admission of Salvador Razo’s preliminary hearing testimony at trial. He argues that the State failed to establish reasonable diligence in attempting to locate Razo for appearance at trial.

Citing People v. Burton (1972), 6 Ill. App. 3d 879, 286 N.E.2d 792, cert. denied (1973), 411 U.S. 937, 36 L. Ed. 2d 399, 93 S. Ct. 1917, defendant correctly asserts that the State has a three-pronged duty to fulfill before the preliminary hearing testimony of an absent witness may be admitted as substantive evidence against an accused at trial. The State must establish (1) that the witness is unavailable at the time of trial, (2) that the State has made a reasonably diligent good faith effort to procure his attendance at trial, and (3) that the accused had an adequate opportunity to cross-examine him at the preliminary hearing.

Defendant contends that the State has failed to meet its threshold burden of establishing the unavailability of its witness, and specifically argues that the State had not shown by competent evidence that Razo had indeed moved to a foreign country.

We agree that testimony elicited at a preliminary hearing is admissible at trial in only certain limited situations, which include cases where a witness is not available to testify and there has been an ample opportunity to cross-examine. (People v. Morgan (1977), 69 Ill. 2d 200, 370 N.E.2d 1063.) In such cases, the testifying witness must be either dead or unavailable despite a good faith effort by the State to produce him. People v. Brown (1977), 47 Ill. App. 3d 616, 365 N.E.2d 15.

The standard of review in relation to the exercise of diligence in securing the witness’ attendance at trial was set forth in People v. Niebes (1979), 69 Ill. App. 3d 381, 389, 387 N.E.2d 800, where the court, citing People v. Brown (1977), 47 Ill. App. 3d 616, 621, 365 N.E.2d 15, 19, stated: “ ‘It is the duty of the State’s Attorney to supervise and coordinate efforts to locate witnesses known to be missing prior to trial and secure their presence at trial. Whether good-faith and reasonable diligence has been exercised in these efforts is determined on a case-by-case basis after a careful review of the facts and circumstances of each case.’ ”

Under the special circumstances of the present case, the testifying witness was reported to be in Mexico. We note that with respect to the production of a testifying witness who is located outside of the country, the United States Supreme Court has commented that, “There have been, however, no corresponding developments in the area of obtaining witnesses between this country and foreign nations [in comparison to the State’s obligations to make a good faith effort to obtain the presence of the witness beyond the boundaries of the prosecuting state].” (Mancusi v. Stubbs (1972), 408 U.S. 204, 212, 33 L. Ed. 2d 293, 301, 92 S. Ct. 2308, 2313.) In such a situation, the Mancusi court held that “the predicate of unavailability [is] sufficiently stronger * * *." 408 U.S. 204, 212, 33 L. Ed. 2d 293, 301, 92 S. Ct. 2308, 2313.

With the foregoing principles in mind, we have carefully examined all the testimony adduced at the hearing on the motion to admit Salvador Razo’s preliminary hearing testimony. We find that the State exercised good faith and reasonable diligence in its efforts to locate Salvador Razo in the present case.

Two assistant State’s Attorneys who were assigned to this prosecution and their two investigators each participated in the effort to locate Razo. The record indicates that Razo had previously responded to a subpoena sent to 1340 W. l8th Street, Chicago, Illinois, and had been interviewed by assistant State’s Attorney Feely on three separate occasions.

On at least one occasion in March of 1979, Razo had come into court pursuant to subpoena. The record also indicates that he had been present for trial in April of 1979 when the case was continued on defense motion.

He was subsequently not found at his last known address, the same address where the subpoena had been sent, his name was not listed on the mailboxes, and his neighbors indicated they did not know him.

We are not persuaded by the defendant’s argument that the State must prove that the witness had actually moved to Mexico and was not just temporarily out of the jurisdiction under the circumstances of this case. There was nothing in the record to suggest that Razo was an illegal alien who was trying to avoid deportation or which refutes the reliability of Razo’s family’s statements that he had moved to Mexico to marry.

On the contrary, there is every indication that he fully and freely cooperated with the State’s Attorney’s office in the preparation of this case. We also note that Razo’s testimony was independently corroborated at trial by the testimony of the two plainclothes policemen who had witnessed the crime. Accordingly, we conclude that the trial court properly admitted Razo’s preliminary hearing testimony.

Defendant also contends that the trial court abused its discretion by failing to ask prospective jurors questions during jury selection which were sufficient to allow him to intelligently exercise his peremptory challenges.

The right to a jury trial guarantees to one accused of a crime a fair trial by a panel of impartial jurors. People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.

Under Supreme Court Rule 234 (73 Ill. 2d R. 234) the trial court has the primary responsibility in conducting the voir dire examination and may also “permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate * * *." The determination of whether a prospective juror possesses the state of mind which will enable him or her to give the accused a fair and impartial trial rests with the sound discretion of the trial court. People v. Singletary (1979), 73 Ill. App. 3d 239, 391 N.E.2d 440.

As the court in People v. Dallas (1980), 85 Ill. App. 3d 153, 165, 405 N.E.2d 1202, aptly stated, “[T]he court has discretion in making its decision. In reviewing the court’s exercise of its discretion, we must determine whether the court’s failure to ask defendants’ tendered question thwarted the selection of an impartial jury in the instant case; if it did, then we must determine that the court abused its discretion in declining to ask defendants’ question.”

Thus, a conviction will not be reversed unless the court has so abused this discretion that the defendant was prevented from intelligently exercising his right to challenge the prospective jurors. (People v. Sanders (1980), 87 Ill. App. 3d 708, 410 N.E.2d 182.) No such abuse has been shown here.

In the present case, the trial court began by introducing the attorneys, explaining the charge and giving a summarized description of the judicial system. The trial judge questioned the jurors collectively concerning any relationships they had with any State’s Attorneys or police officers. Each juror that responded affirmatively was questioned individually as to the nature of the relationship and any resulting bias that might affect his or her impartiality as a juror.

The court then dismissed two prospective jurors who stated that they would be influenced by their relatives who were police officers.

The venire panel was also questioned as to whether they had themselves been a party to a lawsuit; whether they knew the parties or witnesses; and whether the fact that the defendant and several witnesses were Mexican-American would affect their ability to be impartial jurors. While questioning the prospective jurors individually in panels of four, the trial court again asked each venireman if he could serve as a fair and impartial juror.

Defendant maintains, however, that the trial court’s refusal to ask several questions submitted by the defense counsel or to ask probative questions amounted to an abuse of discretion.

As to the former contention, we note that defendant had not submitted these written questions in the record on appeal as required by Supreme Court Rules 321 and 323. 73 Ill. 2d Rules 321, 323.

It is the responsibility of the appellant to see that the record is complete to enable the reviewing court to resolve the questions raised (City of Chicago v. Hutter (1978), 58 Ill. App. 3d 468, 374 N.E.2d 802) since the appellate court takes cognizance of and considers only those issues which are supported by the record. (Rasky v. Department of Registration and Education (1980), 87 Ill. App. 3d 580, 410 N.E.2d 69, appeal dismissed (1981), 454 U.S. 806, 70 L. Ed. 2d 75, 102 S. Ct. 78.) We therefore find that the defendant has waived review of this issue.

As to the defendant’s latter contention, we believe that the areas of inquiry covered by the court through its admonitions and questions to the prospective jurors were adequately probative. Accordingly, we conclude that the trial court did not abuse its discretion.

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

Affirmed.

SULLIVAN, P. J., and MEJDA, J., concur.