author: JUSTICE VAN DEUSEN

text:
    ILLINOIS HOUSING DEVELOPMENT AUTHORITY, Plaintiff-Appellant, v. SJOSTROM & SONS, INC., et al., Defendants-Appellees.
    Second District
    No. 81-686
    Opinion filed March 30, 1982.

      Alan S. Ganz, Margaret S. Garvey, and Stephen D. Sharp, all of Rooks, Pitts, Fullagar and Poust, of Chicago, and J. F. Heckinger, of Berry, Berry & Heckinger, of Rockford, for appellant.
    Greenwald, Maier & Newton, of Rockford, for appellee Sjostrom & Sons, Inc.
    Barrick, Jackson, Switzer, Long & Balsley, of Rockford, for appellee Know-land, Smith & Tyson, Inc.
    Jay S. Judge and Charles C. Hoppe, Jr., both of Judge, Drew, Cipolla & Kurnik, of Park Ridge, for appellee Bert M. Lafferty Company.
    McDermott, Will & Emery, of Chicago, and O’Brien, Healy, Wade & Gorman, of Rockford, for appellee Orput Associates, Inc.
    J. Todd Kennedy, of Reno, Zahm, Fóigate, Lindberg & Powell, and Harold L. Turner, of Turner and Shoemaker, both of Rockford, for appellee Mid-States Construction, Inc.
    Connolly, Oliver, Goddard, Coplan & Close, of Rockford, for appellee Fine-stone Corporation.
    Robert A. Calgaro and Dale F. Conde, both of Pedderson, Menzimer, Conde, Stoner & Killoren, of Rockford, for appellee Valley View Apartments, Ltd.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The plaintiff appeals from the dismissal of its 13-count complaint pursuant to section 48(1)(i) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(l)(i)).

In 1973, the defendant Valley View Apartments, Ltd. (Valley View), initiated an application for funding of a housing development in Rockford. Valley View sought the funding in order to construct a 13-floor residential building which was to contain 179 units of housing for the elderly. Valley View’s application sought funding from the plaintiff, the Illinois Housing Development Authority (IHDA). Shortly after funding was received, Valley View, as beneficial owner of the proposed development, entered into contracts with several of the defendants. These contracts were for construction and architectural services for the development.

The development was built and occupied by July of 1975. Shortly after the project was occupied, a water leakage problem developed. Over 85% of the units experienced water leakage. Apparently rain was able to penetrate the exterior stucco panels and seep in the apartments. The seepage problem was causing substantial interior and exterior damage. A final disbursement of funds from the mortgagee, the IHDA, was obtained on April 16, 1976.

On March 17, 1980, the IHDA filed a 12-count complaint naming as defendants the development’s general contractor, Sjostrom & Sons (Sjostrom); the preconstruction architect, Orput Associates, Inc. (Orput); the supervising architects, Knowland, Smith & Tyson, Inc. (Knowland); the beneficial owner, Valley View; the fabricator of the exterior stucco panels, Mid-States Construction, Inc. (Mid-States); and Mid-States’ supplier of materials and specifications, Finestone Corporation (Finestone).

In the complaint, the IHDA alleges that during the construction of the building, the defendants breached the provisions of the contracts which assured quality workmanship, and/or they negligently designed, installed or constructed the exterior stucco panels. The plaintiff sought monetary damages for the cost of repairing the water leakage problem and for impairment of their security interest.

On July 2, 1980, Valley View filed a counterclaim against four of the named defendants: Finestone, Mid-States, Sjostrom, and Knowland. They did not file a claim against Orput. Various parties then filed cross-claims. For over a year the parties took discovery. Numerous depositions were taken and numerous interrogatories were served.

On February 27, 1981, plaintiff filed a second amended complaint adding an additional negligence count and two defendants: Bert M. Lafferty Co. (Lafferty), the caulking subcontractor, and Harry Vernetti, the sole proprietor of Mid-States.

The 13-count, second amended complaint can be summarized as follows:

Defendants)_Theory of Recovery_

Count I Sjostrom breach of contract, brought as third-party beneficiary of contract with owner.

Count II Sjostrom breach of contract, brought as subrogee of contract with owner.

Count III Sjostrom negligent construction.

Count IV Valley View & breach of surety proOrput vision of Building Loan Agreement.

Count V Orput breach of contract, brought as third-party beneficiary of contract with owner.

Count VI Orput breach of contract, brought as subrogee to contract with owner.

Count VII Orput negligent design.

Count VIII Knowland breach of contract, brought as third-party beneficiary of contract with owner.

Count IX Knowland breach of contract, brought as subrogee to contract with owner.

Count X Knowland negligent supervision of construction.

Count XI Vernetti d/b/a negligent manufacturing Mid-States and design of stucco panels.

Count XII Finestone negligent manufacturing of materials used to make the stucco panels.

Count XIII Lafferty negligent caulking of the structure.

On June 25, 1981, the case was transferred from Judge Layng to Judge Smith. On July 16,1981, all of the defendants, except Valley View, filed a joint motion to dismiss all counts, except count IV, on the ground that the plaintiff lacked standing. On August 14,1981, after a hearing, the trial court granted the joint motion to dismiss. All counts, except count IV, were dismissed. In granting the joint motion, the trial court stated that because the owner was not in default in its mortgage payments and because the owner had counterclaimed requesting the same relief as plaintiff requested, the plaintiff, the IHDA, as a mortgagee, had no standing to bring the suit against any of the defendants other than the mortgagor.

On July 16, 1981, Valley View and Orput filed a motion to dismiss count IV, which alleged that Orput and Valley View breached the building loan agreement with the IHDA. On September 4, 1981, the court granted Orput’s and Valley View’s separate motions to dismiss. Count IV was dismissed on the ground that the building loan agreement between the mortgagor, Orput and the mortgagee was fully performed.

From these dismissals, the plaintiff appeals. On appeal, the plaintiff asserts that the trial court made several procedural errors in considering the two motions, and that the trial court erred in that each of the 13 counts of the complaint does state a cause of action.

We first consider the alleged procedural errors. The IHDA contends that the motions to dismiss should have been denied because they were not brought pursuant to the proper section of the Civil Practice Act.

Both motions to dismiss stated that they were brought pursuant to section 48(1) (i) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(l)(i)). Section 48(1)(i) states that a defendant may, within the time for pleadings, file a motion for dismissal of the action on the ground that “the claim or demand asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim or demand.” Ill. Rev. Stat. 1979, ch. 110, par. 48(l)(i).

An “affirmative matter” under this section is “something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint.” Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 96; see In re Marriage of Musa (1982), 103 Ill. App. 3d 189, 191-92.

In Hermes v. Wm. F. Meyer Co. (1978), 65 Ill. App. 3d 745, 747, the court stated that a lack of standing may be a basis for dismissing a suit pursuant to section 48(1) (i). In so holding, this court stated that section 48(1) (i) is to be “broadly construed to encompass basic defenses to a claim.” (65 Ill. App. 3d 745, 747.) In Hermes, the plaintiff, as an owner of 20% of the shares in a corporation, brought a suit against the corporation and other shareholders. The defendants filed a section 48 motion to dismiss, contending that plaintiff had divested himself of the shares and, therefore, lacked “legal capacity to sue.” In Hermes, the alleged transfer of ownership of the shares of stock, was an “affirmative matter” which could be raised pursuant to section 48.

It can be argued that here there is no alleged “affirmative matter” which avoids the effect of the claim, rather the defendants’ motions and the briefs in support of the motions contend only that plaintiff has failed to plead sufficient facts to establish that the IHDA has a sufficient interest in the development or the contracts to bring the suit. The defendants’ motions further assert that the facts as pleaded fail to establish either a right to subrogation, or a breach of a duty owed by the defendants to the IHDA upon which a negligent claim could be based. .

Under a very broad construction of the phrase “affirmative matter,” these assertions raised in the defendants’ motions to dismiss would be a proper subject for a section 48(1) (i) motion. Such a broad construction, however, would tend to infringe on the purposes of the section 45 motion. Section 45 motions, like the defendants’ motions, assert primarily that the plaintiff failed to plead sufficient facts which would establish all the essential elements of the cause of action and would entitle plaintiff to recovery. Newberg-Krug-Brighton v. State Toll Highway Authority (1978), 63 Ill. App. 3d 780.

From the motions and from the order entered by the trial court, it appears that the motions would have been proper if brought pursuant to section 45 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 45.) Even if the motions should have been labeled as section 45 motions to dismiss, designating a motion pursuant to the wrong section of the Civil Practice Act is not fatal. In Weber v. Weber (1979), 77 Ill. App. 3d 383, 385, the court held that even if a motion is labeled a section 48 motion, a reviewing court may treat the motion as one brought pursuant to section 45 if the legal theory of the motion is consonant with a section 45 motion.

The IHDA next contends that the trial court committed error in considering and granting the joint motion to dismiss, because the motion was not timely filed. Plaintiff asserts that because section 48 states that a defendant may file such a motion “within the time for pleading,” and because defendants have already answered, the section 48 motion was untimely. It should be noted, however, that section 45 does not contain any specific language concerning timeliness, and neither section sets a specific, absolute limitation on the time within which a motion to dismiss can be filed.

There is very little case law concerning the time period in which motions to dismiss can be filed. In Greenlee Brothers & Co. v. Rockford Chair & Furniture Co. (1969), 107 Ill. App. 2d 326, 332-33, however, this court did state that the trial court has discretion to permit the filings of tardy pleadings, and unless plaintiff can show that it was prejudiced by the late filing there is no abuse of discretion. See also Silberstein v. Joos (1978), 59 Ill. App. 3d 293; McGrath Heating & Air Conditioning Co. v. Gustafson (1976), 38 Ill. App. 3d 465.

Because this court can view the joint motion to dismiss as a section 45 motion, because section 45 does not refer to a time period in which such motions must be brought, and because plaintiff has failed to establish that it has been prejudiced by the late filing of the joint motion, the trial court did not abuse its discretion in ruling on the joint motion to dismiss, notwithstanding the fact that several of the moving defendants had previously filed answers to the complaint.

The plaintiff also asserts that the successful joint motion of Mid-States, Knowland, Sjostrom, Orput and Finestone was barred because, earlier in the proceedings, these defendants had filed similar motions before another judge, and these motions had been denied. In Miller v. Schultz (1977), 53 Ill. App. 3d 721, 723, the appellate court was faced with the same contention. There the court stated that even though one judge on a previous occasion has held a pleading to be sufficient, another judge may subsequently set aside that ruling if he deems that it was erroneous. This contention is without merit.

In dismissing all of the counts of the complaint, except count IV, the trial court found that the plaintiff did not have standing to bring suit against any of the defendants other than the mortgagor. The IHDA contends that it has three bases for standing: (1) that in counts I, V, and VIII, the IHDA has standing as third-party beneficiary of three of the contracts, (2) that in counts II, VI and IX, the IHDA has standing in that it is subrogated to the rights of the owner in the same three contracts, and (3) that in counts III, VII, X, XI, XII and XIII, the IHDA, as a mortgagee, may maintain an action for negligence.

In counts I, V, and VIII, the IHDA claims the status of a third-party beneficiary to three contracts: the construction contract between the owner and Sjostrom; the supervising architect contract between the owner and Knowland; and the architect’s agreement between the owner and Orput.

The IHDA contends that, as a third-party beneficiary, it can enforce the contracts even though it is not a party to the three contracts. The right of a person not a party to a contract to enforce the contract was discussed in Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252. In Carson the court stated that if a contract is entered into “for a direct benefit of a third person not a party thereto, such third person may sue for breach thereof. The test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract.” (346 Ill. 252, 257.) It is not enough that the beneficiary is an incidental beneficiary; only a direct beneficiary has a right against a promisor or promisee. People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381, 385.

Each case must depend upon the intention of the parties and that intention is to be gleaned from a consideration of all of the contract provisions and the circumstances surrounding the parties at the time of its execution. (Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 258.) The liability of the promisor to the third party must affirmatively appear in the language of the contract; furthermore, the liability arising from the contract language cannot be extended or enlarged on the sole ground that the situation and circumstances of the parties justify or demand further or other liability. 346 Ill. 252, 258; see also Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 54-55; People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381, 385.

The IHDA relies primarily on the case of People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381, to support its contention that it is a third-party beneficiary entitled to enforce the provisions in which the defendants promise the owner that the work done under the contract will be done in a professional, workmanlike manner.

In Resnik, the Illinois Building Authority (IBA) contracted with the defendant architects, Curtis & Davis, for services relating to the construction of the Vienna Correctional Center. The center was to be leased and used by the State; the IBA was not a State’s agency. The State nonetheless brought suit against Curtis & Davis for breach of its architectural contract with the IBA. The circuit court dismissed the complaint holding that the State was not a proper party to bring the suit. The appellate court reversed. In affirming the appellate court, the Illinois Supreme Court held that under the language of the contract, the State was a direct third-party beneficiary to the contract between the IBA and Curtis & Davis.

In the present case, the IHDA contends that, like the contract in Resnik, all three contracts here contain sufficient language to indicate that the IHDA is an intended, direct beneficiary of the contract. The provisions upon which the IHDA relies are set out or summarized below.

1. The construction contract between the owner and Sjostrom.

The contract language does seem to create some contract rights for the IHDA (Authority). Paragraph 3 of contract document 2 states:

“Authority has the right to monitor the Work at all times independent of the Parties’ right to do so. In this connection, Authority shall be given full and complete access to the Work. Authority, may, in its sole discretion, if it believes that the Work is not being done in accordance with the Contract exercise all of the rights given the Owner hereunder to the exclusion of the Owner. In addition, Authority may take such other action as it deems reasonable to protect its interests.”

Paragraph 6 of the same document states:

“Parties acknowledge that there is no privity of contract between Authority and themselves arising out of the Contract. Parties further acknowledge that because Authority is or has granted a mortgage to Owner that it has an interest in the Contract and is given rights hereunder to protect its interests.”

Paragraph 9 states:

“Any orders for extra work, or changes by way of altering or adding to the Work may be effected by the Contractor only by giving the Architect, Owner and Authority prior written notice thereof and securing prior written authorization by way of a change order from the Owner and Authority.”

In paragraph 10, the contractor, Sjostrom, warranted to the owner and the Authority that its statement of financial resources was correct. Sjostrom also agreed to use a method of accounting approved by the Authority and to keep its books and records available to the Authority for inspection.

Paragraph 11 gave the Authority the right to object to a subcontractor, to approve or disapprove subcontracting agreements, and to examine the books and records of subcontractors.

Paragraph 14 gave the Authority control over, and rights in, both the contractor’s and subcontractors’ insurance or bonds:

“The insurance and Bonds, as approved by Authority, shall remain in effect until the Authority issues its Completion Certificate.”

Paragraph 15 entitled the Authority to a copy of the contractor’s work schedule to be used as basis for payment authorizations.

Paragraph 16 gave the IHDA a certain amount of control over payment applications and authorizations.

Paragraph 27 states:

“The Contractor shall pay to the Owner or Authority as the case may be, any and all costs, expenses and attorneys’ fees which the Owner or Authority may suffer, incur or become liable for by reason of the Owner or Authority enforcing, or attempting to enforce the terms and provisions of the Contract, whether or not such costs, expenses and fees are related to direct action against the Contractor.”

Under paragraph 30, the contractor agreed to provide the Authority with a field office on the site of the construction. The contract was signed by the parties and by a representative of the IHDA.

2. The supervising architect’s agreement between Knowland and the owner.

In this contract the owner and Knowland entered into an agreement to provide architectural supervision of the construction development. This contract also gave the IHDA the right to have most phases of the work submitted to it for approval. Knowland was also required to make

regular reports to the IHDA and the owner, and to attend meetings upon request of the IHDA. The work product became the property of the IHDA and the owner.

Paragraph 13 specifically provides:

“Architect shall maintain a professional liability insurance policy insuring Owner and Authority for Architect’s errors, omissions or negligence in connection with the Work with a company and limits, and in a form acceptable to Authority.”

Finally, under paragraphs 4 and 5, the IHDA had the right, under certain circumstances, to terminate the contract. Once again the agreement was signed by the owner, Knowland and a representative of the IHDA.

3. The preconstruction architect’s contract between Orput and the owner.

Through this contract, the owner and Orput entered into an agreement to provide architectural and engineering services for the preconstruction period. The preamble to the contract recognized that the IHDA was to be the mortgagee. Several of the provisions gave the IHDA the right to examine and approve the work prepared by Orput. The IHDA could also request Orput’s attendance at a conference.

Under paragraph 6 of this agreement, the architect’s services and plans were to become the property of the owner and the IHDA. Under paragraph 13, Knowland agreed to the following obligation:

“Architect shall maintain a professional liability insurance policy insuring Authority for Architect’s errors, omissions or negligence in connection with the Work with a company and limits, and in a form acceptable to Authority.
The obtaining of the foregoing insurance shall not relieve Architect of any obligations or liabilities he might otherwise have to Owner and Authority.”

This contract was also signed by the parties and by a representative of the IHDA.

The IHDA contends that these provisions of the three contracts are sufficiently similar to the contract provisions in People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381, and, therefore, the IHDA is also a direct, third-party beneficiary to the contracts.

In discussing the State’s status as a third-party beneficiary, the Resnik court initially noted that the preamble to the IBA’s contract with Curtis & Davis stated that the owner, the IBA, “ ‘for the use of the Department of Public Safety, State of Illinois, hereinafter “user”, intends to construct buildings and facilities for the completion of the Illinois State Penitentiary, located at Vienna. * * *’ ” (78 Ill. 2d 381, 385-86.) Among other references to the “user,” the term of the contract provided that (1) Curtis & Davis must ascertain the requirements of the project from both the IBA and the State, (2) that Curtis & Davis must revise drawings, specifications and estimates in a manner satisfactory to the IBA and the State, (3) that Curtis & Davis warranted that it was free to and had the authority to perform the agreement and to grant rights to IBA and the State, (4) that Curtis & Davis was to indemnify IBA and the State. The court further noted that the IBA, Curtis & Davis and a representative of the user (the State) signed the contract in question.

The court used these illustrations of contract language to support its conclusion that the disputed contract, specifically and in its entirety, convincingly displayed the intent of the parties, certainly the intent of the IBA, to make the State more than an incidental beneficiary, or a mere tenant. The court then went on to note that the surrounding circumstances show that the State was intended to be a direct beneficiary of the contract: Construction of the prison would directly benefit the State, not the parties, and the State, not the IBA, had the expertise necessary for the construction of the prison.

Although many provisions in the Resnik contract and the contracts at bar are similar, there is a significant difference in the role of the State in the Resnik contract and the role of the IHDA in the instant contracts. Under the Resnik contract, the party asserting third-party beneficiary status was to be the ultimate user of the structure. Here no such status exists. The IHDA is no more than a regulatory authority and a mortgagee.

A reading of the contracts in question indicates that as a mortgagee the IHDA was granted certain rights to supervise and to control specific aspects of the planning and construction of the development. The contract provisions which gave the IHDA these rights were apparently designed to insure that the development would be well built at the lowest possible cost, and that the opportunity for fraudulent business dealings and for the exercise of poor business judgment would be kept to a minimum. However, most, if not all, of these rights granted to the IHDA were to be exercised before and/or during the performance of the contract. Moreover, these rights are unrelated to the provisions which the IHDA presently asserts as breached.

The IHDA, nonetheless, concludes that because of its unique statutory role, the thin capitalization of the project and these other rights granted under the contract, they should be deemed a direct, third-party beneficiary to all of the provisions. However, under Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 258, the liability affirmatively arising from the contract language cannot be extended or enlarged on the sole ground that the situation and the circumstances demand further or other liability.

Here, unlike Resnik, the development is not being constructed to directly benefit the IHDA. The beneficial owner, Valley View, is the user; the IHDA is merely a mortgagee. In its entirety the contract directly benefits only the parties, and the contract provisions which the IHDA seeks to enforce only incidently and collaterally benefit the IHDA, as a mortgagee. (See Redarowicz v. Ohlendorf (1981), 95 Ill. App. 3d 444, 447, appeal allowed (1981), 85 Ill. 2d 575.) The trial court properly dismissed counts I, V, and VIII of the complaint.

With reference to counts II, VI and IX of the complaint, the IHDA contends that its “great involvement” in the three contracts entitles it to be subrogated to the contract rights of the owner. Under the doctrine of subrogation, a person who, pursuant to a legal liability, has paid for a loss or injury resulting from the negligence or wrongful acts of another will be given the rights of the injured person against a wrongdoer. (Dworak v. Tempel (1959), 17 Ill. 2d 181, 190. See also Village of Crainville v. Argonaut Insurance Co. (1980), 81 Ill. 2d 399.) The alleged “great involvement” in the three contracts, without a payment of the claimed injury, is insufficient to allow the IHDA to be subrogated to the rights of the owner. In none of these counts does the IHDA allege that under a legal obligation it has paid for the loss or injury incurred by the owner as a result of the defendants’ negligence or wrongful acts, nor does the IHDA allege that it has paid the claim of Valley View. The IHDA has not stated a cause of action against any defendant on the theory of subrogation. Even in the case cited by the IHDA, National Cash Register Co. v. Unarco Industries, Inc. (7th Cir. 1974), 490 F.2d 285, the court noted that the plaintiff had satisfied the outstanding debt prior to instituting the subrogation suit. The trial court did not err in dismissing counts II, VI and IX of the complaint.

Counts III, VII, X, XI, XII and XIII of the complaint allege that the defendants, Sjostrom, Orput, Knowland, Mid-States, Finestone and Lafferty respectively were negligent in designing and/or constructing the apartment building and/or the stucco panels.

For a defendant to be liable for the tort of negligence, he must have had a duty towards plaintiff, defendant must have breached that duty, the breach must have been the proximate cause of the plaintiff’s injury and there must be a resulting compensable injury. Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 669.

The defendants contend that the plaintiff has failed to allege sufficient facts to indicate that plaintiff has been injured by the defendant’s alleged negligence and that the failure to allege such injury and resultant damage deprives the plaintiff of standing to sue. (Lynch v. Devine (1977), 45 Ill. App. 3d 743.) In Lynch, the court stated:

“The doctrine of standing, simply stated, requires that a party seeking relief from the courts must allege some injury in fact to some substantive, legally-protected interest of his, which is a right or interest either recognized by common law or created by statute. [Citation.] The doctrine is used to insure that the courts are available to decide actual, specific controversies between the parties and are not overwhelmed in the mire of abstract questions, moot issues, or cases brought on behalf of other parties who do not desire judicial aid. [Citation.]” 45 Ill. App. 3d 743, 747-48.

To enable one to maintain an action to enforce private rights, he must show that he has sustained some injury to his personal or property rights, and he must show that he will be benefited by the relief granted. (59 Am. Jur.2d Parties §26 (1971).) Here, the plaintiff alleges that due to the defendants’ negligence the IHDA has been injured in that the “IHDA will incur cost for repairs, the development has experienced general and severe deterioration causing a substantial impairment of IHDA’s security interest and a frustration of IHDA’s statutory purpose as mandated by the Illinois General Assembly.”

Initially, it should be noted that the IHDA has failed to plead facts which would indicate that they will, in fact, incur the cost of the repairs. The facts as pleaded tend to indicate tht the Valley View partnership, as beneficial owner of the development, has the obligation to repair and will actually incur the cost of repairing the damage and deterioration. Plaintiff’s conclusory allegations that it will incur the costs of repairs is not supported by the facts as pleaded and, therefore, may be disregarded. Kuch & Watson, Inc. v. Woodman (1975), 29 Ill. App. 3d 638, 641.

As a second injury, the IHDA asserts that due to defendants’ negligence the building has experienced severe deterioration which has caused a substantial impairment of its security interest. The defendants contend that impairment of a security interest is not an actual present injury, and that, at best, it is an allegation of possible future injury. Defendants contend that “possible future damages are not compensable unless they are reasonably certain to occur.” (Harp v. Illinois Central Gulf R.R. Co. (1977), 55 Ill. App. 3d 822, 827.) In Citizens National Bank v. Joseph Kesl & Sons Co. (1941), 378 Ill. 428, however, the court upheld an award of damages to a mortgagee for an impairment of its security interest. In that case, however, the bank had already foreclosed and was in possession of the secured property. Here, the plaintiff has not foreclosed, and is not in possession of the premises.

Furthermore, here the owner of the property has filed suit against most of the defendants named by the plaintiff. Those not joined by the owner are named as defendants in counterclaims filed by other counter-defendants. If the owner is successful in its suit, the owner will have sufficient funds to make the needed repairs. Under the statutory authority and contractual rights given to the IHDA, the IHDA can compel the owner to repair the deterioration. If the deterioration is repaired, the IHDA’s security interest has not been impaired. Under the facts in this case, the alleged impairment of the plaintiff’s security interest is only a possible future injury which is not reasonably certain to occur. As such, it is not a compensable injury. Harp v. Illinois Central Gulf R.R. Co. (1977), 55 Ill. App. 3d 822, 827.

The defendants also assert that plaintiff has failed to allege facts which would indicate that the defendants owed a duty to the IHDA. In Illinois, it is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 208; Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 97.

In a recent case, the fourth district appellate court held that a contractor owes no duty under a negligence theory to a subsequent purchaser of a home. (Redarowicz v. Ohlendorf (1981), 95 Ill. App. 3d 444, appeal allowed (1981), 85 Ill. 2d 575.) In Redarowicz, the contractor completed the home in late 1975 or early 1976. Plaintiffs purchased the premises from the original owners in April of 1977. Shortly thereafter, the plaintiffs noticed defects in the construction. Plaintiffs repaired the defects and then brought suit against the contractor. In upholding the trial court’s dismissal of the plaintiff’s negligence counts the court stated that “[plaintiff’s effort in [the negligence counts] is to counteract the traditional contract limitations on damages by converting the action into one of tort.” (95 Ill. App. 3d 444, 447.) The dissent, citing Rozny v. Marnul (1969), 43 Ill. 2d 54, emphasized that the lack of direct contractual relationship between the parties is not a defense in a tort action.

In Rozny the court held that a lack of a contractual relationship between the parties is not a defense in a tort action; tort liability is to be measured by the scope of duty owed rather than the artificial concepts of privity. (Rozny v. Marnul (1969), 43 Ill. 2d 54, 62.) The question under Rozny is whether the relationship between the IHDA as a mortgagee and the defendants was such that a duty should be imposed. This question is one of law for the determination of the court. Cunis v. Brennan (1974), 56 Ill. 2d 372, 374.

The character of a defendant’s duty was described in Prosser, Torts §53, at 324 (4th ed. 1971): “In other words, ‘duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff # 0 The creation of a duty of care is based on many factors, one of which is reasonable foreseeability of the injury. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 375.) Public policy and the social requirements are also factors to be considered. (Mieher v. Brown (1973), 54 Ill. 2d 539, 545.) Furthermore, the likelihood of injury, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden upon the defendant must be taken into account. Ortiz v. City of Chicago (1979), 79 Ill. App. 3d 902, 907.

Here, as to those defendants who were aware of the non-recourse, thin-capitalization mortgage on the development, it is reasonably foreseeable that negligent construction could injure the security interest of the mortgagee; however, foreseeability is not the only factor to be considered. Public policy, social considerations and the burden to be placed on the defendant should also be considered. (Ortiz v. City of Chicago (1979), 79 Ill. App. 3d 902, 907.) In the present case, the injury allegedly suffered by the mortgagee was simultaneously suffered by the mortgagor. To allow both the IHDA and Valley View to sue on the same injury, subjects the defendant to the possibility of being doubly liable for only one injury. Moreover, allowing a direct action in this case would give every holder of a security interest a right to bring a suit against one who negligently injures the secured property and would thus unduly multiply and complicate litigation.

We also note that the mortgagee has several other rights and remedies (i.e., foreclosure, seeking possession, appointing a new manager answerable to the IHDA) that could be pursued to protect its security interest. These remedies would not subject the defendants to the possibility of double liability. The trial court’s dismissal of the negligence counts was proper.

Finally, the IHDA contends that the trial court erred in dismissing count IV of the complaint. In count IV, the IHDA alleges that in connection with the execution of the building loan agreement between the IHDA and the land trustee of the development, Orput and Valley View executed a surety agreement. This agreement states as follows:

“We the undersigned as sureties in consideration of IHDA making a commitment for a mortgage loan to Central National Bank & Trust Company of Rockford, as Trustee under Trust No. 720 and not individually, for Three Million Two Hundred Forty-Eight Thousand ($3,248,000.00) Dollars hereby agree jointly and severally to complete all the obligations of the Borrower under the foregoing Building Loan Agreement with the exception of repayment of the note secured by the first mortgage granted by the Illinois Housing Development Authority.”

The IHDA alleges that one of the borrower’s obligations under the building loan agreement was to “construct the Development, in accordance with the Construction Contract “ ” 6 between Borrower and Contractor, Sjostrom & Sons, Inc. 0 e The plaintiff further alleges that Sjostrom breached the construction contract with the borrower (1) by not complying with specifications that had been agreed upon by the parties, (2) by not constructing the building in a “workman-like manner,” and (3) by not properly supervising subcontractors. The plaintiff asserts that because Sjostrom breached its construction contract, the building was not constructed in accordance with that contract and, therefore, the surety contracts of Orput and Valley View with the IHDA were breached.

The IHDA contends that the provisions in the building loan agreement in which the borrower agrees to construct the development in accordance with the construction contract amount to a guarantee of the work to be performed by Sjostrom. The plain meaning of the words in the contract, however, does not go that far, and it is the plain meaning of the words used in the contract that govern the interpretation of the contract. (Donaldson v. Gordon (1947), 397 Ill. 488.) The plain meaning of these provisions is that Valley View and Orput, as sureties, promised to construct the building in accordance with the construction contract in that they would sign the construction contract, would not enter into any conflicting agreement regarding the development, and would not alter or amend the construction contract without the IHDA’s approval. Only a constrained interpretation of these contract provisions could turn them into a guarantee of the work to be performed by a third party. Here, the contract was drafted by the plaintiff, the IHDA, and, therefore, is to be strictly construed against the IHDA. Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 324, 333.

The building loan agreement does not contain a provision by which the borrower guarantees all work done under the construction contract. Since no such guarantee exists in the building loan agreement, neither Valley View nor Orput have assumed such an obligation under the surety agreements.

The IHDA further asserts that paragraphs V and XII (i) of the building loan agreement expressly warranted that the development would be constructed in a good, workmanlike manner. Paragraph V states as follows:

“No advance shall be due unless in the judgment of the lender all work usually done at the stage of construction attained when the advance is requested has been done in a good and workmanlike manner .

Paragraph XII(i) provides:

“The Borrower agrees not to do any act or thing prohibited by the terms of this agreement, and whenever and as often as any of the following events occur, any obligation on the Lender’s part to make this Mortgage Loan or any advances hereunder shall cease if the Lender so elects, and the Note and Mortgage shall at the option of the Lender become immediately due and payable, but the Lender may make advances without becoming obligated to make any other or further advances:
[i]f the Borrower does not erect and equip the Development in a good and workmanlike manner in accordance with the plans and specifications approved by all governmental authorities having jurisdiction and by the Lender; * *

From this language it is apparent that if, during construction, the development was not being constructed in a good workmanlike manner, the plaintiff had the right to rescind the contract. It did not constitute a warranty running to the IHDA. The trial court did not err in dismissing count IV of the complaint.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE STAMOS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVIE MOORE, a/k/a Christopher Moore, a/k/a James Smith, Defendant-Appellant.
    First District (2nd Division)
    No. 80-2429
    Opinion filed December 15, 1981.
    Rehearing denied May 3, 1982.

      Ralph Ruebner, Steven Clark, and Patricia Unsinn, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean C. Morask, and Gregory G. Thiess, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

Defendant Stevie Moore was convicted of robbery and sentenced to 3 years in the Illinois Department of Corrections. Defendant appeals, contending that (1) his arrest without a warrant was illegal in that police, who would have been required to have a warrant to arrest him inside his home, used a subterfuge to lure him from his home and effect the arrest in a public place; (2) he was denied the effective assistance of counsel; and (3) the trial court improperly excluded evidence tending to prove that defendant had not been identified as the robber prior to his arrest.

At about 11:30 p.m. on February 28, 1979, Gail Anderson was returning to her apartment on North Wolcott Street in Chicago. The apartment building had an unlocked outer door and an illuminated narrow hallway about 15 feet long leading to a locked security door. As Miss Anderson was unlocking the security door she heard footsteps in the hall and saw two men running toward her. She tried to push the security door shut but the men caught the door before it latched and forced the door open. One of the men pushed her against the wall, put his hand over her mouth and told her not to scream. The man pushing her against the wall demanded money, and Miss Anderson surrendered her purse. The man passed the purse to the second robber who was standing an arm’s length away to Miss Anderson’s right. While the first robber went through Miss Anderson’s pockets, the second robber rifled her purse. Before the men left, the second robber took Miss Anderson’s keys. She watched the two men leave by the front door and saw the second robber drop the keys in a snow bank outside. Miss Anderson followed the men outside and saw them enter a car that was standing in the street with its engine running. She described the car as a late model blue Chevrolet Vega with license plate number SAL 547.

Charles Ford, an investigator with the Chicago Police Department, interviewed Gail Anderson on March 1,1979. At trial, Ford testified that a computer terminal in the police station provides access to the Secretary of State’s automobile registration records. Ford entered the plate number “SAL 547” and learned that the license number belonged to a Cadillac registered to a person living outside of Chicago. Ford then entered the partial plate number “SAL” and learned that plate number SAL 567 was registered to a blue 1977 Chevrolet that had been reported stolen. The car was registered to Dorothy Holiday.

On March 1, Investigator Ford phoned Mrs. Holiday. At trial, Holiday testified that her car, a blue Chevrolet Vega, had been stolen on February 22, 19*79, while it was in the custody of a friend, James Ollie. Ford also called Mr. Ollie on March 1. At trial, Ollie testified that Dorothy Holiday, a friend and co-worker, regularly gave him the use of her car. On February 22,1979, after driving Holiday home from work, Ollie drove the Vega to a tavern. While at the tavern, Ollie encountered defendant, whom he knew. Defendant introduced Ollie to a woman named Cheryl, whom defendant described as a cousin. At about 9:30 p.m., Ollie and Cheryl left the tavern in the Vega and drove to a motel, where they had intercourse. Ollie awoke about 2 a.m. to find Cheryl and the Vega missing, along with $20 from Ollie’s pocket and the Vega’s keys. Ollie then reported that the car had been stolen.

On March 5, Ford interviewed Gail Anderson for the second time and showed her five police “mug shots.” One of the photographs was of defendant; another was of defendant’s brother. At trial, Anderson and Ford testified that she positively identified defendant as the man who went through her purse and dropped her keys in the snow (the “second robber”). Anderson testified that she also selected the photograph of defendant’s brother, believing at the time that the two pictures were of the same person. On April 4, 1979, Anderson viewed a lineup and positively identified defendant as one of the robbers. Anderson also, identified defendant at trial.

Investigator Ford testified that during March 1979 he made several unsuccessful attempts to arrest defendant. On the evening of April 3, Ford and his partner made two trips to defendant’s apartment. There is conflicting testimony as to precisely what occurred during these visits. Ford testified that, on the first visit, defendant was not home. Ford left instructions with defendant’s wife for defendant to call Ford. Ford stated that he told defendant’s wife that defendant was wanted for robbery. A short time later, defendant phoned Ford and Ford advised defendant that he would come by to pick him up. When Ford arrived at defendant’s home, defendant came out and surrendered. He was then placed under arrest.

At a hearing on a motion to suppress evidence, defendant and his wife testified concerning the circumstances of defendant’s arrest. Their testimony conflicts with that of Ford only with respect to what Ford allegedly said during his two visits. Defendant’s wife testified that when Ford came to the apartment he said, with reference to the robbery, “We know that he didn’t do it but we think that he may know someone who did it.” Defendant testified that, during his phone conversation with Ford, he (defendant) denied involvement in any robbery and Ford stated that he only wanted defendant to come to the station to look at some pictures and answer some questions. Defendant’s wife testified that, when defendant went out to meet the policemen on their second visit, she called down from the apartment and asked if she could go along. One of the policemen reportedly answered, “No need for you going. We are going to ask him some questions. We will bring him right back.”

Defendant moved to quash his arrest and suppress evidence concerning the April 4 lineup, contending that his arrest was illegal and the subsequent lineup was a product of the illegal arrest. Citing Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, defendant argued that the police, who did not have an arrest warrant, could not have entered his home to effect the arrest. Defendant asserted that Ford’s alleged statement (e.g., “We know that he didn’t do it”) were calculated to draw defendant from his home so that the police could arrest him in a public place, thus circumventing the warrant requirement. Defendant acknowledges that a warrantless arrest in a public place, upon probable cause, is legal. The trial court found that the police had probable cause to effect the arrest and defendant does not appeal that finding. In denying defendant’s motions, the trial court did not state which version of the arrest he found more credible. He simply stated that the arrest was properly made upon probable cause.

The trial court’s order does not comply with section 114 — 12 of the Code of Criminal Procedure of 1963, which, referring to motions to suppress, states:

“(e) The order or judgment granting or denying the motion shall state the findings of facts and conclusions of law upon which the order or judgment is based.” (Ill. Rev. Stat. 1979, eh. 38, par. 114 — 12(e).)

Defendant contends on appeal that since the trial court’s order lacked a finding of fact with respect to the credibility issue, the conviction must be reversed and the cause remanded for such a ruling. In response, the State cites People v. Holloman (1970), 46 Ill. 2d 311, 317, 263 N.E.2d 7, and argues that the ruling below implies that the trial court discredited defendant’s and his wife’s testimony.

Before addressing the questions presented by the form of the trial court’s ruling, we must answer a more basic question: did defendant offer evidence sufficient to support an order quashing the arrest and suppressing the lineup evidence? Put another way, does defendant’s and his wife’s testimony, taken as true, compel the conclusion that the arrest was illegal? We think not. Defendant assumes that since the Payton case requires police to have an arrest warrant before entering a suspect’s home, any act of the police that induces a suspect to leave his home must be an unconstitutional circumvention of the Payton rule. None of the cases cited by defendant suggests that such a per se rule is either necessary or desirable. In Payton, the Supreme Court stressed the inviolability of the home and stated that warrantless intrusions into the home are presumptively unreasonable. (445 U.S. 573, 586, 63 L. Ed. 2d 639, 651, 100 S. Ct. 1371, 1380.) In the case at bar, there was no nonconsensual entry into defendant’s home. Defendant left his home and was arrested on the street. Defendant argues that his act of leaving the home was induced by deception so that his presence on the street was not truly voluntary. The United States Supreme Court has indicated that “voluntariness” in such situations is not susceptible of fixed definition. Rather, the concept of voluntariness must accommodate a complex of values ranging from society’s need for effective police investigations to fundamental notions of fairness. (See Schneckloth v. Bustamonte (1973), 412 U.S. 218, 224-25, 36 L. Ed. 2d 854, 861, 93 S. Ct. 2041, 2046.) Viewing the circumstances of defendant’s arrest in that perspective, we do not believe that defendant’s act of leaving his apartment was involuntary. In other contexts, courts have considered the police tactic of misinformation and have found no constitutional violation. (See, e.g., People v. Boerckel (1979), 68 Ill. App. 3d 103, 111-12, 385 N.E.2d 815, cert. denied (1980), 447 U.S. 911, 64 L. Ed. 2d 861, 100 S. Ct. 2998 (fact that police misrepresented the evidence against defendant did not render his confession involuntary or violate fundamental fairness); People v. Houston (1976), 36 Ill. App. 3d 695, 699, 344 N.E.2d 641, cert. denied (1977), 429 U.S. 1109, 51 L. Ed. 2d 562, 97 S. Ct. 1143 (police officer investigating an armed robbery stated that he was investigating an accident; “suble subterfuge” held constitutionally permissible); see also Lewis v. United States (1966), 385 U.S. 206, 210, 17 L. Ed. 2d 312, 315-16, 87 S. Ct. 424, 427 (no violation of defendant’s privacy when policeman misrepresented his identity in order to gain admittance to defendant’s home and purchase illegal drugs).) The alleged deception in the instant case consisted of Ford’s statements suggesting that defendant was not the target of the investigation. The police did not conceal their identities or the fact that they were investigating a robbery. We find that the subterfuge allegedly used does not violate fundamental fairness and does not illegally circumvent the rule announced in Payton. Defendant’s arrest, based on probable cause, was therefore legal (see United States v. Watson (1976), 423 U.S. 411, 423-24, 46 L. Ed. 2d 598, 609, 96 S. Ct. 820, 828 (warrantless arrest in a public place, upon probable cause, does not violate the fourth amendment)), and the motion to quash the arrest and suppress evidence was properly denied.

The trial court’s failure to make the findings specified in section 114 — 12(e) is not dispositive. We do not believe that paragraph (e) of the statute was intended to create substantive rights for defendants moving to suppress evidence. On the contrary, the provision was intended to ensure a careful weighing of the evidence by trial courts ruling on such motions. When an order of the trial court cannot be properly reviewed, as, for instance, when the stated basis of the ruling is inapposite and otherwise dispositive factual questions have not been ruled on, then remand is necessary in order to resolve issues that may not be decided de novo in the reviewing court. (Cf. People v. Tate (1967), 38 Ill. 2d 184, 188, 230 N.E.2d 697 (trial court based ruling on erroneous ground; pivotal fact question remained unresolved; cause reversed and remanded with directions to enter findings of fact); People v. Mendoza (1978), 62 Ill. App. 3d 609, 621-23, 378 N.E.2d 1318 (trial court ruled on validity of arrest but not on legality of unrelated search; reversed and remanded for finding on whether search was consensual).) When, as in the case at bar, the record reveals that the decision below was not erroneous, the trial court’s failure to articulate its findings pursuant to section 114 — 12(e) will not be considered reversible error. See People v. Dickerson (1979), 69 Ill. App. 3d 825, 829, 387 N.E.2d 806.

Defendant’s second contention on appeal is that he was denied the effective assistance of retained counsel. In People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084, we held that the effectiveness of counsel, retained or appointed, is to be measured by one standard: whether the attorney is actually incompetent, as reflected in the performance of his duties as a trial attorney, and whether that incompetence produced substantial prejudice to the defendant such that the outcome of the trial was probably changed. (97 Ill. App. 3d 439, 442-43.) Defendant has identified two instances of his retained counsel’s alleged incompetence. Investigator Ford, in his testimony, related that a computer terminal provided information regarding license plate numbers SAL 547 and SAL 567. The State argued in closing that the license plate information corroborated Gail Anderson’s identification of defendant since the license number that Anderson recalled was, after correcting one digit, the same as that on a car that had been independently linked to defendant. Defendant correctly points out that evidence of computer-generated records is inadmissible hearsay unless a proper foundation is laid for admission as a business record. (See Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 202, 367 N.E.2d 1238; Department of Mental Health v. Beil (1976), 44 Ill. App. 3d 402, 409, 357 N.E.2d 875; see also Ill. Rev. Stat. 1979, ch. 110A, par. 236.) Defendant argues that his counsel’s failure to object to evidence of the computer records demon-, strates incompetence and that his defense was thereby prejudiced.

The “altered outcome” portion of the test set forth in Talley disposes of this aUegation of incompetence. According to defendant’s argument, an effective attorney would have objected to Ford’s reference to the license plate information. Had such an objection been made and sustained, the State could easily have laid the foundation for the computer records, following the guidelines set out in the Biel case. (44 Ill. App. 3d 402, 409.) It follows that the failure to object did not prejudice defendant and cannot be grounds for reversal.

Defendant’s second instance of alleged incompetence centers on his trial attorney’s failure to impeach James Ollie with evidence of prior inconsistent statements made to Investigator Ford. Defendant argues that if Ollie’s credibility had been undercut, the only evidence linking defendant to the robbery would be Gail Anderson’s identification. Defendant contends that his trial counsel demonstrated incompetence by failing to lay a foundation for the impeachment of Ollie. This misstates the record. Defendant’s trial counsel attempted to impeach Ollie on two points: whether he originally told police that he and Cheryl went to the Roberts Motel (at trial he testified it was the L & M Motel) and whether he said he had “many” drinks (he testified to two drinks). In both instances Ollie adhered to his trial testimony and denied he told police otherwise. (At one point an objection as to foundation was interposed, but this objection related to the foundation for Ollie’s conversation with police. Ollie’s denial of the statements was already before the jury so the objection was inconsequential.) What defense counsel failed to do was complete the impeachment by eliciting from Ford testimony that Ollie’s pretrial statements conflicted with his testimony.

There are two reasons why we cannot find that this omission amounted to ineffective assistance of counsel. First, nothing in the evidence suggests that Ollie’s prior statements to police were inconsistent with his trial testimony. In order to find that defense counsel should have completed the impeachment, we are required to assume that there was a prior inconsistent statement for Ford to acknowledge. A finding of incompetence of counsel may not be based on mere conjecture. (See People v. Hills (1980), 78 Ill. 2d 500, 505-06, 401 N.E.2d 523.) Furthermore, neither alleged inconsistency is so material as to demand perfection of the impeachment. The omission may have been tactical, and matters of discretion or tactics cannot be the basis for a finding of ineffective assistance of counsel. See People v. Smith (1980), 81 Ill. App. 3d 764,773, 401 N.E.2d 1017.

Defendant’s third contention on appeal is that the trial court erroneously excluded certain testimony of Beverly Moore, defendant’s wife. Mrs. Moore testified that when Ford first came to the apartment on April 3, “He said something about a robbery. He said yes, we know [Stevie Moore] didn’t do it, but we think he might know the fellow who did it.” The State’s objection to this testimony was sustained and the jury was instructed to disregard it. Defendant’s ostensible basis for admitting the testimony is the case of People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223. In Rogers, our supreme court held that if a party testifies to his out-of-court identification of the defendant, and if that party is subject to cross-examination, then a third party’s testimony that he witnessed the first party’s out-of-court identification is admissible to corroborate the first party’s in-court identification of the defendant. (81 Ill. 2d 571, 579.) According to defendant’s imaginative interpretation of Rogers, Beverly Moore is the third party who heard Ford, the first party, fail to make an out-of-court identification of defendant. The crucial portion of Ford’s alleged out-of-court statement is “we know he didn’t do it,” and this statement, in defendant’s view, tends to prove that Gail Anderson had not identified defendant prior to the arrest and lineup.

Defendant altogether misuses Rogers. This court in Rogers held that evidence regarding the out-of-court identification is admissible only in corroboration of the in-court identification and not as substantive evidence. (81 Ill. 2d 571, 579.) Here, defendant intends not corroboration but impeachment: he attempts to diminish the reliability of Gail Anderson’s identification of him as the robber. There is no need to contort the limited hearsay exception announced in Rogers to fit defendant’s purpose since a procedure already exists — impeachment by prior inconsistent statement. The person who identified defendant as the robber was Gail Anderson, not Charles Ford, and Anderson made no statement or identification inconsistent with her in-court identification and testimony.

If defendant was attempting to impeach Ford with Beverly Moore’s testimony, the attempt was properly checked. Assuming, arguendo, that the statement related by Mrs. Moore was inconsistent with Ford’s testimony that Anderson had identified defendant from a photograph, Ford was not confronted on cross-examination with the alleged statement and given an opportunity to explain it. (See People v. Sanders (1974), 56 Ill. 2d 241, 251, 306 N.E.2d 865, cert. denied (1974), 417 U.S. 972, 41 L. Ed. 2d 1143, 94 S. Ct. 3178.) Furthermore, even if defense counsel had followed the correct procedure in impeaching Ford, Mrs. Moore’s testimony would still be inadmissible because Ford’s answer on cross-examination would be conclusive. A witness may not be impeached on a collateral matter (People v. Byer (1979), 75 Ill. App. 3d 658, 669, 394 N.E.2d 632), and the question of whether Ford ever said that no one had identified the robber is surely collateral to the issue of whom the victim may have identified. The test of “collateralness” is whether the evidence in question could be introduced for any purpose other than contradiction of the witness. (75 Ill. App. 3d 658, 669.) In the instant case, the hearsay testimony of Beverly Moore regarding Ford’s alleged statement had no independent evidentiary value. The trial court therefore correctly excluded the testimony.

Defendant’s reliance on People v. Thompson (1981), 93 Ill. App. 3d 45, 416 N.E.2d 1105, a decision of this court that followed Rogers, is misplaced. In Thompson, we held that the trial court should have permitted the defendant to cross-examine a police officer regarding the victim’s description of the robber. Here, defendant’s cross-examination of Ford was not so limited. The case therefore has no application to these facts.

The judgment of the trial court is affirmed.

Affirmed.

HARTMAN, P. J., and DOWNING, J., concur.


author: PRESIDING JUSTICE JOHNSON

text:
    MARY PAYNE et al., Plaintiffs-Appellees, v. COATES-MILLER, INC., et al., Defendants.—(WILLIAM HENNING RUBIN, Defendant-Appellant.)
    First District (4th Division)
    No. 80-2751
    Opinion filed March 18, 1982.
    Rehearing denied May 3, 1982.
    William Henning Rubin, of Chicago, for appellant, pro se.

    William P. Wilen and Dveera Segal, both of Legal Assistance Foundation, of Chicago, for appellees.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

On September 24, 1980, following a hearing in the circuit court of Cook County, a judgment was entered against William Henning Rubin, attorney for defendant, Coates-Miller, Inc., in the amount of $8,786.10 for costs and attorney fees incurred by the Legal Assistance Foundation of Chicago (L.A.F.) in the prosecution of a contempt proceeding against Rubin.

On appeal, Rubin contends that (1) a consent decree specifically waived all attorney fees and costs, and (2) the trial court exceeded its jurisdiction in the entry of judgment for attorney fees and costs.

We reverse.

William Henning Rubin was found in contempt with regard to his failure to comply with discovery during the litigation of Payne v. Coates-Miller, Inc. (1977), 52 Ill. App. 3d 288, 367 N.E.2d 406. That case involved a class action suit against Coates-Miller, Inc., for illegal practices with regard to its collection of late rental payments. Rubin appealed the contempt judgment and we affirmed. See Payne v. Coates-Miller, Inc. (1979), 68 Ill. App. 3d 601, 386 N.E.2d 398.

In order to determine the issues raised by Rubin, it is necessary to briefly summarize the pertinent facts relating to the disposition of the underlying complaint. On November 9, 1978, in a class action suit (see Payne v. Coates-Miller, Inc. (1977), 52 Ill. App. 3d 288, 367 N.E.2d 406), the parties agreed to settle the case on the merits. Plaintiffs relinquished all claims for costs and attorney fees entered by the trial court on August 4, 1976, and August 11, 1977, against defendants for their failure to comply with discovery. Plaintiffs also agreed to dismiss their third amended complaint with prejudice and without the award of attorney fees and costs for bringing the action. The trial court specifically retained jurisdiction of all matters relating to its April 25, 1977, order finding Rubin in contempt of court.

On October 18,1979, plaintiffs filed a petition for costs and attorney fees incurred in the preparation of the rule to show cause against Rubin, the prosecution of the contempt, and the defense of Rubin’s appeal of the contempt order. A hearing was held on the petition for costs and attorney fees. On September 24,1980, the trial judge awarded the L.A.F. $8,786.10 for attorney fees and costs. This award was based on testimony by plaintiffs’ attorneys concerning the amount of time expended on the contempt prosecution of Rubin.

The trial judge found that the L.A.F. incurred $446.10 in costs; Robert Masur, a supervisor at the L.A.F., had expended 43 3/4 hours on this matter and that the value of his services was $60 per hour; Nancy Collins, a staff attorney for the L.A.F., had expended 73/2 hours on this matter and that the value of her services was $50 per hour; and William Wilen, a supervisory attorney in the Uptown office of the L.A.F., had expended 24 hours on this matter and the value of his services was $60 per hour. The court further stated that nothing in the final decree and judgment entered on November 9,1978, precluded the award of costs and attorney fees for Rubin’s contempt.

Rubin filed a motion to vacate this judgment which was denied. Subsequently, Rubin filed his notice of appeal.

Defendant Rubin contends that attorney fees should not have been awarded with regard to the contempt proceeding because the consent decree entered on the underlying complaint waived all attorney fees and costs. Plaintiffs claim that the consent decree which provided that they relinquish attorney fees and costs related to sanctions against CoatesMiller, Inc., only and was not directed against Rubin, its attorney.

A consent decree is merely a recitation of the settlement agreement between the parties. (Clark v. Standard Life & Accident Insurance Co. (1979), 68 Ill. App. 3d 977, 983, 386 N.E.2d 890, 896.) The determination of the intention of parties to a settlement agreement is governed by principles of contract law. (Pierce v. MacNeal Memorial Hospital Association (1977), 46 Ill. App. 3d 42, 49, 360 N.E.2d 551, 557.) As such, the law of contracts controls the interpretation of a consent decree and its meaning should be determined by the language chosen by the parties. (Pierce v. MacNeal Memorial Hospital Association (1977), 46 Ill. App. 3d 42, 50; Clark v. Standard Life & Accident Insurance Co. (1979), 68 Ill. App. 3d 977, 983.) Where there is no ambiguity, the intention is determined from the language alone. Carvallo v. Carvallo (1978), 62 Ill. App. 3d 394, 398, 378 N.E.2d 1288, 1291.

At issue, in the instant case, is the interpretation of the following language which appears in the consent decree:

“6. Plaintiffs and their counsel relinquish any and all claims for costs and fees entered by this Court on August 4,1976 and August 11,1977 for failure of defendants to comply with discovery.”

Under contract law, an agreement, when reduced to writing, must be presumed to speak the intentions of the parties who signed it. (Gardiakos v. Vanguard Communications, Inc. (1976), 38 Ill. App. 3d 937, 940, 350 N.E.2d 210, 212.) It speaks for itself, and the intention with which it was executed must be determined from the language used to express its intention. Gardiakos v. Vanguard Communications, Inc. (1976), 38 Ill. App. 3d 937, 940.

In the present case, the language of the agreement was clear and unequivocal as to plaintiffs’ counsel relinquishing any and all claims for costs and fees for defendants’ failure to comply with discovery. Further, plaintiffs’ counsel knew at the time of signing the consent decree that Rubin was found in contempt. Consequently, the language of the agreement controls. Therefore, the trial court erred in awarding attorney fees and costs for plaintiffs’ counsel in this case.

Defendant Rubin’s final contention has been foreclosed by the above holding that an award of attorney fees and costs was improper.

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

Reversed.

ROMITI and JIGANTI, JJ., concur.


author:
PRESIDING JUSTICE JOHNSON
      JUSTICE ROMITI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN CHATMAN, Defendant-Appellant.
    First District (4th Division)
    No. 79-2268
    Opinion filed March 25, 1982.
    ROMITI, J., dissenting.
    Ralph Ruebner, Steven Clark, and Susan Bandes, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Rhoda W. Davis, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Melvin Chatman, was charged by information with armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 2). After a jury trial, he was found guilty and sentenced to 18 years imprisonment. The sole issue presented for review is whether the trial court’s exclusion of a defense witness constituted an abuse of discretion where defense counsel failed to include the name of that witness in its answer to discovery.

We affirm.

At trial, Hattie Sherry testified that on December 23,1976, she was a salesperson at Sam’s Variety Store. She was working alone behind the counter at 10:30 a.m. A cash register was behind the counter. She was waiting on the only customer in the store when the delivery man and another man, whom she identified as the defendant, entered. The defendant went to the telephone. Sherry gave the delivery man an order for cakes and when he returned with the cakes, she paid him with cash from a little brown bag kept in back of stock on the shelf behind the counter. Defendant was still at the telephone. Sherry continued talking with a customer when the delivery man left. Then the defendant and the customer left.

A short time later, defendant returned to the store; he asked for and was given change for a quarter. During this conversation, defendant was only 1 foot from Sherry, who looked at his face as she talked with him. Defendant then walked over to the telephone and Sherry went to the soft drink machine and began filling it with quart-size bottles. Defendant walked over to her, stuck a black gun, which was 5 or 6 inches in length, into her side and said that it was a “stickup.” He asked Sherry where she kept her gun and she pointed to it near the register. Then defendant asked Sherry where was the “bag of money.” She replied there was no bag of money since she had paid the delivery man with the contents from the bag. The witness said defendant then put the gun to her temple and told her he “wasn’t playing and would shoot her brains out.”

Sherry handed defendant the bag, and upon his demand she opened the cash register. He took money from the register, the gun, her wallet, and another gun. Before he left, defendant again threatened to “blow her brains out” if she stuck her head out of the door.

When police arrived, Sherry described defendant as having a goatee and straggly hair on his cheeks. He was between 5 feet 6 inches and 5 feet 8 inches in height and wore a ski cap, a brown corduroy coat, dark pants, and brown shoes which were run down and unlaced.

Later, Sherry identified defendant from photographs shown to her by police. The man in the photo had a beard, hair on his cheeks, and a mustache. Two days after the photographic identification, Sherry identified defendant in a lineup.

The parties stipulated as to the testimony of the court reporter at defendant’s preliminary hearing. Mr. Goirgi, the reporter, would testify, if called, that Sherry stated the defendant had no sideburns but he did have a full beard and mustache “like the public defender,” Tod Smith, who was present at the hearing. The court refused the defense request to call Tod Smith because the defense had not listed his name in defendant’s answer to discovery.

By stipulation, a dermatologist, A. R. Koransky, would testify, if called, that he had examined Chatman and found the latter incapable of growing more hair than was apparent in the photographs introduced in evidence by the State.

The defense made an offer of proof that Tod Smith was present and available to testify and would state that he was in court when Sherry testified at the preliminary hearing and that he is the same public defender, Tod Smith, referred to at that hearing. Smith would also testify that his beard is the same now as it was then, reaching from ear to ear, from the lower line of his neck to the top of his cheeks and around the mouth, blending into the sideburns.

At the end of the trial, Chatman was convicted of armed robbery and sentenced to 18 years imprisonment, from which he appeals.

In Illinois, the general rule is that it is within the discretion of the trial court to permit a witness to testify even if the witness was not named as a potential witness in answer to discovery. (People v. Warren (1975), 32 Ill. App. 3d 218, 220, 336 N.E.2d 557, 559.) But, that discretion is not reviewable in the absence of a showing of prejudice or surprise (32 Ill. App. 3d 218, 220-21) were the unlisted witness allowed to testify.

Defendant contends he did not realize the testimony of Tod Smith would be important until Sherry, the complaining witness, testified at trial inconsistent with her testimony at the preliminary hearing. At trial, Sherry stated that the offender had a goatee and straggly hair on his cheeks. At the preliminary hearing, she testified that her assailant had a full beard and mustache “like the public defender” at the hearing, Tod Smith. Defendant further contends the trial court’s exclusion of Smith’s testimony seriously weakened his defense because the jury was deprived of the opportunity of seeing Smith’s full beard.

We hold that the trial court’s exclusion of Smith’s testimony did not constitute an abuse of discretion. Furthermore, no prejudice resulted to defendant because.the jury was aware of the inconsistent testimony. The defense attorney cross-examined the complaining witness on her testimony at the preliminary hearing as follows:

“MRS. HUBBARD [defense attorney]: Were you asked this question, and did you give this answer? ‘QUESTION: Did the individual have sideburns?’ ‘ANSWER: No, he had a mustache and beard.’
Were you asked that question and did you give that answer?
MS. SHERRY [complaining witness]: I am thinking about, — I really don’t remember that.
MRS. HUBBARD: ‘QUESTION: A full beard?’ ‘ANSWER: Yes.’
Were you asked that question and did you give that answer?
MS. SHERRY: I am thinking back. I really don’t remember that.
MRS. HUBBARD: ‘QUESTION: A full beard?’ ‘ANSWER: Yes.’
Were you asked that question and did you give that answer?
MS. SHERRY: Yes, I remember giving that answer.
MRS. HUBBARD: ‘QUESTION: And full mustache?’ ‘ANSWER: Yes.’
Were you asked that question and did you give that answer?
MS. SHERRY: Yes.
MRS. HUBBARD: ‘QUESTION: When you say a full beard like the Public Defender here?’ ‘ANSWER: Yes.’
Were you asked that question and did you give that answer?
MS. SHERRY: I don’t remember.
MRS. HUBBARD: Do you recall seeing in that courtroom a bearded person who was pointed out to you?
MS. SHERRY: Yes.
MRS. HUBBARD: Page two, ‘QUESTION: He had hair up to
the cheek bone?’ ‘ANSWER: Yes.’
By MRS. HUBBARD: Were you asked that question as directed and did you give that answer?
MS. SHERRY: Yes.
MRS. HUBBARD: The person with the bushy beard was pointed out in the courtroom, do you recall whether that person was called Tod Smith?
MS. SHERRY: I don’t remember the name.”

The complaining witness observed the defendant before and during the robbery. She identified him from photographs, at a lineup, and at trial. Her testimony was sufficient to convict defendant. The credible testimony of one identification witness is sufficient to support a conviction if the witness viewed the accused under such circumstances as would permit a positive identification. (People v. Jones (1975), 60 Ill. 2d 300, 307-08, 325 N.E.2d 601, 605.) Slight discrepancies in description affect only the weight to be given testimony and do not destroy eyewitness credibility. People v. Gregory (1976), 43 Ill. App. 3d 1052, 1055, 357 N.E.2d 1251, 1253.

Finally, we note that although the trial court’s exclusion of Smith’s testimony did not constitute reversible error, the better practice would have been to allow the witness to testify. The court should have granted a recess for the express purpose of allowing the prosecution to interview the witness. (People v. Mitchell (1979), 78 Ill. App. 3d 458, 462, 397 N.E.2d 156, 160.) Such an interview would have further reduced the possibility of error. People v. Mitchell (1979), 78 Ill. App. 3d 458, 462.

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

Affirmed.

LINN, J., concurs.

JUSTICE ROMITI,

dissenting:

I respectfully dissent.

The sole basis for defendant’s conviction was the identification testimony of a single State witness, the victim of the crime. Yet the trial court’s action precluded defendant from demonstrating to the jury precisely what that witness had meant when in prior sworn testimony she described the man who robbed her as having a “full beard.” That term is not a precise one; it is subject to widely varying interpretations. Yet, as the defendant’s offer of proof demonstrated, the precluded testimony might have established that the type of beard recalled by the State’s witness had dimensions far exceeding any that defendant’s expert, a dermatologist, considered possible for defendant to grow. Thus, under these circumstances, it does not suffice to say that slight discrepancies in a description can be discounted on review because they affect only the weight to be given to the testimony by the jury; here the jury was effectively precluded from performing that very weighing function.

Given these facts, I would find that the trial court’s exclusion sanction was unduly harsh and so prejudiced the defendant as to require a new trial. In re Lane (1979), 71 Ill. App. 3d 576, 390 N.E.2d 82.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD KELLY, Defendant-Appellant.
    First District (4th Division)
    No. 80-892
    Opinion filed March 25, 1982.
    Julius L. Sherwin, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joel A. Stein, and Frank Castiglione, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Richard Kelly, was charged with involuntary manslaughter (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 3(a)) and aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4(a)). After a jury trial, he was found guilty of involuntary manslaughter and not guilty of aggravated battery; he was sentenced to a term of 3 years in the Department of Corrections. Defendant appeals. The following issues are raised for review: (1) whether the People established a causal relationship between the condition found in the body of the decedent after an autopsy and the occurrence alleged in the information; (2) whether defendant was proved guilty beyond a reasonable doubt of manslaughter; (3) whether the trial court erred in sustaining the People’s objection when defendant sought to obtain an opinion as to the cause of death from one of the treating physicians; and (4) whether the trial court erred in giving a jury instruction defining circumstantial evidence, when all of the evidence adduced at trial was direct evidence.

We reverse.

Testimony at trial established the following.

Henry Price, the son of the victim, John Price, testified for the People. On March 1, 1979, John Price, who was 78 years old, resided at the Northwestern Nursing Center in Evanston, Illinois. He was placed in the nursing center because he would wander away from home. In the son’s opinion, his father’s mental faculties may have been impaired but his father was in good physical condition.

Dorita Moss, a rehabilitation assistant at the nursing center, testified that around 11 a.m. on March 1, 1979, she was on the third floor of the nursing center when she heard loud noises coming from a utility room. She walked to the room and saw Price on the floor and defendant Kelly on top of him. Moss stood 5 feet away from defendant, facing his back. Price’s hands were above his head and defendant was holding Price’s hands. Defendant’s left knee was on the floor and his right knee was up. Defendant said, “Are you ready for me to shave you now, Mr. Price?” Then defendant pushed his right knee into Price’s abdomen. Defendant repeated the question but Price did not respond. When defendant again pushed his knee into the same area, Price said, “Yes, yes, I’m ready.” Then defendant picked up Price, pushed him into a nearby chair and pulled the chair toward the utility room. Moss went downstairs. Later she told Christine Dodson, another nursing center employee, what she had observed. Prior to March 1,1979, Price was ambulatory and would talk with Moss. After the incident, Moss visited Price in his room and asked how he was feeling. Price did not respond.

On cross-examination, Moss stated that at a grand jury proceeding, she testified that the victim was in a prone position with both hands backward and that “prone” means “face downward.” At the proceeding she later stated that Price was on his back. In the opinion of Moss, Price was a quiet but stubborn man.

Christine Dodson worked in social rehabilitation at the nursing center. On March 1,1979, she was assigned to the third floor. At around 11 a.m., she was in the dining room when defendant came in to take Price to shave him. Price did not want to be shaved but defendant insisted he was going to shave Price. Defendant picked up Price and took him forcibly from the dining room. When Dodson left the dining room, she heard a commotion coming from the utility room. Defendant was attempting to put Price in a chair; Price was fighting. They both fell to the floor with defendant on top of Price. Defendant asked Price a number of times, “Are you going to shave?” Price said, “No.” Then defendant kicked Price in the stomach twice. Dodson reported the incident to her supervisor. At a meeting shortly thereafter, defendant said, “With a bunch of crazy people like this around, you have to use force.”

After the incident, Dodson saw Price. As she passed by, he asked, “Lady, will you tell me where the washroom is?” Dodson said, “Mr. Price, you know [where] the washroom is, one in your room and one down the hall.” Price attempted to get up but fell back in the chair. Dodson took him to the nurse. On cross-examination, Dodson said that defendant kicked Price in the right abdomen with his knee.

The parties stipulated to the testimony of Philip L. Gillette, the funeral director who conducted services for Price. Gillette would have testified that Price was buried on March 9, 1979, and that his body was exhumed on April 10, 1979.

Dr. Michel Jurayj, a cardiovascular surgeon, was on duty at St. Joseph Hospital in Chicago on March 2, 1979. At about 9 or 9:30 p.m., he examined Price. One of Price’s legs was colder than the other. Price was comatose and his abdomen was slightly distended. When the doctor touched the lower abdomen, he noticed that Price winced and he concluded that Price had some pain there. Price did not wince when Jurayj touched his upper abdomen. Dr. Jurayj testified that although the abdomen is outside his field of expertise, he had suspected an acute abdomen which would indicate either inflammation or that a blocked artery was gangrenous. Jurayj’s first diagnosis was dehydration. There was no indication of external trauma in the abdomen.

The parties then stipulated that John Price on whom Dr. Robert Stein performed an autopsy on April 12,1979, was the same John Price identified in the information.

Dr. Akshay Mahadavia, a physician affiliated with St. Joseph Hospital, examined Price on March 4,1979, and pronounced him dead. In his report, there was no reference to any contusions on the body of Price.

Michael Foley, an Evanston police officer, investigated the March 1 incident at the nursing center and requested an exhumation of the body of John Price. On April 10,1979, Price’s body was exhumed.

Robert J. Stein, chief medical examiner of Cook County, performed an autopsy upon the body of John Price on April 12, 1979. Dr. Stein testified that his examination revealed a dark blue area of subcutaneous hemorrhage over the right pectoralis muscle which is the area on the right side of the chest above the nipple. There was also a contusion on the left elbow. An internal examination of the body revealed an area of blunt trauma characterized by the presence of hemorrhage at the bottom of the right pleural cavity which contains the right lung. There was also hemorrhage below the pleural cavity in the upper abdominal region approximately 6 inches from the pelvic area. Stein explained that blunt trauma is an injury produced by an object which is not sharp. In Stein’s opinion, the trauma could not have been caused by the embalming process. The absence of external injuries in the abdominal area indicated, according to Dr. Stein, either that the injured person may have been wearing clothes, that the trauma was of the pressure type, or that the trauma-causing instrument was covered by soft materials.

Dr. Stein found evidence of arteriosclerosis, a generalized degeneration of blood vessels in the heart and aorta and evidence of thrombosis or bloodclotting in the abdominal portion of the aorta, but he found no abnormality in the mesentery vessels and no septicemia which is bacterial infection of the blood stream. In Stein’s opinion, Price’s death was caused by blunt trauma of the chest and abdomen in association with generalized arteriosclerosis. On cross-examination, Dr. Stein stated that arteriosclerosis was a pre-existing condition with no relationship to trauma.

Saloman Dayan, a staff physician at the nursing center, testified for the defense. He signed the death certificate for John Price. On the certificate, he listed the cause of death as cardiorespiratory arrest which is cessation of heart and lung functions. Septicemia was listed as a secondary cause of death, and mesentery thrombosis or clotting of the mesentery vessels was the third cause. Dayan did not know that defendant was alleged to have pushed his knee into the victim’s abdomen.

Defendant Kelly testified in his own defense. At the time of trial, he was 39 years old. In March 1979, defendant was employed at Northwestern Nursing Center as an orderly assigned to the third floor where the psychiatric patients resided. On March 1, 1979, he was assigned the duty of bathing, shaving and dressing John Price. After bathing and dressing Price, defendant escorted him to the dining room for lunch. At 11 or 11:30 that morning, defendant talked with Price about shaving, but Price did not want to be shaved. Defendant took Price to the utility room, sat him down in a chair and shaved him. As he began to put aftershave lotion on Price’s face, Price jerked back and kicked the chair. Price said that defendant was trying to hurt him. Price kicked defendant in the stomach and kicked the chair. Defendant attempted to grab Price’s legs, to stop the kicking, and also grabbed the chair which turned over. As a result, defendant fell on top of Price. Defendant admitted that he pinned the victim’s arms over his shoulders. He stated that he was trying to pull Price up because it was the only way he could lift him. He denied pushing his knee into Price. After the incident, defendant helped Price to his feet. The entire incident, from the time defendant began shaving Price until he helped Price to his feet, lasted about 10 minutes.

Defendant had bathed Price on four previous occasions. He and another orderly would hold Price, pick him up and put him in the tub. After the incident, defendant took Price to his room and asked whether he was all right; Price said, “Yes.” Defendant then reported the incident to Mrs. Ramiris, the head nurse on the third floor. Defendant was fired that day by the director of the nursing home.

The defense rested after defendant’s testimony. A jury found defendant guilty of involuntary manslaughter and not guilty of aggravated battery. Defendant was sentenced to 3 years in the Department of Corrections.

Defendant contends the State did not establish that the March 1 incident in which defendant is alleged to have pushed his knee into the victim’s abdomen caused the death of the victim. We agree. It is essential that the prosecution establish the corpus delicti. In a criminal homicide, the elements to be proved are proof of death and proof of a criminal agency causing death. (People v. Gendron (1968), 41 Ill. 2d 351, 360, 243 N.E.2d 208, 214.) Each element must be proved by competent evidence beyond a reasonable doubt. People v. Jones (1961), 22 Ill. 2d 592, 596, 177 N.E.2d 112, 114.

The medical examiner testified for the prosecution and stated that blunt trauma of the chest and abdomen in association with generalized arteriosclerosis caused the death of John Price. The victim’s arteriosclerosis was a pre-existing condition unrelated to trauma. Although there was evidence presented which would support an inference that defendant may have caused the abdominal trauma, no evidence was introduced as to the cause of the trauma in the chest. Testimony by three other physician witnesses did not establish that the criminal agency of the defendant caused the victim’s death. Dr. Jurayj’s first diagnosis was dehydration. Dr. Mahadavia found no contusions on the victim’s body. Dr. Dayan, the physician who signed the death certificate, gave as the causes of death: cardiorespiratory arrest, septicemia, and mesentery thrombosis.

We hold, therefore, that the prosecution did not prove beyond a reasonable doubt that defendant’s alleged criminal agency caused the victim’s death. Because of our decision, it is unnecessary to address the other issues raised by defendant.

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

Reversed.

JIGANTI and LINN, JJ., concur.