text:
      In re ESTATE OF GARY REDEKER, Deceased (Melissa Sue Redeker, by and through her Mother and Next Friend, Patricia Eubanks, Petitioner-Appellant, v. Janis Redeker, Respondent-Appellee).
    Fourth District
    No. 4 — 90—0651
    Opinion filed March 21, 1991.

      Johnson, Frank, Frederick & Walsh, of Urbana, for appellant.
    D. Cameron Dobbins and Laura D. Clower, both of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

This appeal involves conflicting. petitions. The circuit court of Champaign County denied the amended petition of Melissa Sue Redeker, by and through her mother and next friend, Patricia Eubanks, hereinafter referred to as petitioner, to serve as special administrator of the estate of Gary Redeker, deceased, for the purpose of prosecuting a wrongful death action. It is alleged that Melissa Sue Redeker, bom January 9, 1982, is the only surviving child of decedent. Eubanks is the child’s natural mother and decedent’s ex-wife.

A counterpetition was filed by Marlin Redeker, decedent’s father, Juanita Redeker, decedent’s mother, Janis Redeker, decedent’s sister, and Michael Redeker, decedent’s brother. This counterpetition, which the trial court granted, sought the issuance of letters of administration and the appointment of Janis Redeker as administrator of the estate of Gary Redeker, deceased.

The only question presented for review is whether those persons who would be entitled to recover, in the event a wrongful death action was successfully prosecuted, must be allowed to select the representative who would prosecute the action on behalf of the estate when the only asset of the estate is the cause of action for wrongful death. The first paragraph of section 3 of the Wrongful Death Act (Ill. Rev. Stat. 1989, ch. 70, par. 1 et seq.) provides:

“In the event that the only asset of the deceasedfs] estate is a cause of action arising under this Act, and no petition for letters of office for his or her estate has been filed, the court, upon motion of any person who would be entitled to a recovery under this Act, and after such notice to the party’s heirs or legatees as the court directs, and without opening of an estate, may appoint a special administrator for the deceased party for the purpose of prosecuting or defending the action.” (Ill. Rev. Stat. 1989, ch. 70, par. 2.1.)

Looking to the plain meaning of the language of this statute, it is clear that once a petition for issuance of letters of administration of decedent’s estate was filed, the trial court no longer had authority to appoint a special administrator for the purpose of prosecuting the wrongful death action. Nor does petitioner contend the statute is ambiguous. Instead, petitioner argues the document filed by her opponents was really a counterpetition for the appointment of a special prosecutor and not a petition for issuance of letters of administration.

While we agree the document was entitled “Counter-Petition for Appointment of Special Administration,” that title does not accurately reflect the relief sought in the counterpetition. Instead, the introductory paragraph indicates it is a counterpetition for the issuance of letters of administration of the decedent’s estate. Throughout, the counterpetition refers to “the Illinois Probate Act of 1975” (see Ill. Rev. Stat. 1989, ch. 1101/2, par. 1 — 1 et seq.).

Nevertheless, petitioner complains that the form of the counter-petition is inadequate for a petition for issuance of letters of administration because (1) the prayer for relief requests appointment of the administrator but does not request issuance of letters of administration, and (2) the counterpetition does not state the approximate value of decedent’s real and personal estate in Illinois.

Both the amended petition and the counterpetition acknowledge the only asset of the estate is the wrongful death action. Section 9 — 4(c) of the Probate Act of 1975 requires the approximate value of the real and personal estate be listed “if known.” (Ill. Rev. Stat. 1989, ch. 1101/2, par. 9 — 4(c).) Therefore, even petitioner acknowledges there is no value to decedent’s personal and real estate in Illinois, with the exception of the wrongful death action. Petitioner cites no authority which would require a petition for letters of administration to approximate the value of the cause of action. In fact, to do so in a petition for letters would not only be premature, since no discovery has been conducted, but might also be prejudicial in future settlement negotiations. Therefore, the logical conclusion is that any value of the cause of action is unknown.

The Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 101 et seq.) applies to probate proceedings. (Ill. Rev. Stat. 1989, ch. 110%, par. 1 — 6.) Under the Civil Practice Law, pleadings are to be liberally construed with an objective of doing substantial justice between the parties (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 603) and, except for cases involving defaults, the prayer for relief does not limit the relief obtainable as long as the adverse party is protected from prejudice by reason of surprise. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 604.) Therefore, based on the counterpetition in its entirety, the trial court could reasonably construe the pleading to be a counterpetition for issuance of letters of administration, and petitioner should not have been surprised by the granting of relief to that effect. The trial court did expressly direct the issuance of letters. Implicit in the trial court’s ruling is the finding that the counterpetition is a petition for letters of office.

The final argument of petitioner is that she should have been appointed special administrator because Melissa Sue Redeker is the only “next of kin” entitled to recovery under the Wrongful Death Act. However, petitioner does not argue she has a preference to nominate the administrator of the estate and has not requested the appointment of the administrator of the estate and issuance of letters of administration. (See Ill. Rev. Stat. 1989, ch. 1101/2, par. 9— 3.) And, since Melissa has not yet reached the age of 18, no such preference would exist. (Ill. Rev. Stat. 1989, ch. 1101/2, pars. 9 — 1, 9 — 3.) Nor does the fact Melissa may be the only person arguably entitled to recovery under the Wrongful Death Act require a different result.

The legislature undoubtedly considered this possibility and, nevertheless, provided that, where a petition for letters of office has been filed, no special administrator for the prosecution of a wrongful death action may be appointed. In any event, the probate court will be required to approve any settlement which becomes an asset of the estate; therefore, we are convinced that Melissa’s interests in the cause of action will be fully protected.

For the foregoing reasons, the orders of the circuit court of Champaign County are affirmed.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAY PERRY, Defendant (Charles H. Delano, Contemnor-Appellant).
    Fourth District
    No. 4 — 90—0645
    Opinion filed March 21, 1991.
    Russell K. Benton, of Delano Law Offices, P.C., of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Contemnor-appellant, attorney Charles H. Delano, appeals the order of the trial court finding him in contempt for failing to comply with the trial court’s order that he provide a list of witnesses that he might call on behalf of his client. The trial court entered this order shortly before jury selection in a misdemeanor case. Appellant argues that the trial court may not order a defendant in a misdemeanor case to provide a list of his potential witnesses. We affirm.

On July 6, 1990, appellant’s client, Ray Perry, was charged with speeding and driving under the influence of alcohol. On August 22, 1990, appellant appeared as Perry’s counsel when the case was called for trial. Prior to jury selection, a conference was conducted in chambers involving the trial judge, appellant, and the prosecutor. The judge asked the prosecutor for a list of his witnesses, and the prosecutor gave the trial court a list containing one name, a local police officer. The following discussion then took place:

“[THE COURT]: *** I have made a request for Mr. Delano to give me a list of witnesses so an inquiry can be made of the jurors as to any knowledge that they may have of any of the potential witnesses in this case.

Mr. Delano, you want to make a response?

MR. DELANO: Yes, your Honor. I respectfully object. The Court also advised me if I fail to do so—

THE COURT: Yeah, I’m going to get to that in a second, but go ahead.

MR. DELANO: That any of the jurors that were acquainted with any of the witnesses that we might call, that you were going to assess costs. I assume implicit in that was to discharge the jury?

THE COURT: I would declare a mistrial because Mr. Delano, we’re talking about two separate things.

I understand that in a misdemeanor case, the Defendant does not have to supply a list of witnesses for discovery purposes. This is not for discovery purposes. This list of witnesses is for an inquiry to be made into the jury as to whether or not they have any knowledge of any of the individuals that may come on and testify and to make a further inquiry as to what that knowledge may or may not be to see whether or not they’re going to be able to be fair and impartial.

If I do not have that list of witnesses for the purposes of making the inquiry into the jury and if we would in fact select a jury in this case and I would later find out that one or more of those jurors has some kind of connection with the individual which may affect their ability to be fair and impartial, I’m going to declare a mistrial, I’m going to discharge the jury, and I’m going to assess costs against either you or your client, because you’re talking about two separate things.

MR. DELANO: Your Honor, with all due respect to the Court, however the Court wants to — whatever name you want to call it by, it serves the discovery purpose to the State, and it serves the discovery purpose of the State when the case was called for trial at 9 o’clock this morning. It is now ten minutes ’til 11. We’ve been waiting to go to trial. We are now advised that there won’t even be jury ‘til 1:30, and it serves that purpose for the State, and the Schmidt case points out we’re under no obligation for discovery purposes.

THE COURT: I understand, but I want to be very clear on

this, Mr. Delano. I understand what you’re saying. ***

* * *

MR. DELANO: Your Honor, fault is somewhat immaterial, and I would appreciate the accommodation of the Court until the starting time. However, I would anticipate that this case will go well into tomorrow, which also gives them full opportunity of discovery during that period.

In addition to that, it also does something else that should only be done with statutory authority, and that is, it limits the defense to the evidence that they may present in the course of the trial.

* * *

So, I would respectfully object to the Court’s rulings.

THE COURT: Okay. Your objection is on the record. You may have an opportunity to take it up on appeal because the Court’s ruling is going to remain in effect.” (Emphasis added.)

The court then discussed other matters with counsel not relevant to this appeal and recessed until the afternoon. At 1:30 p.m. on the same day, the conference in chambers was reconvened. The same parties were present and the following was stated:

“THE COURT: *** Let me indicate for the record that I have pulled, and I had previously read the Williams case, which is 87 Illinois 2d 161[,] which came out of the Fourth District and actually involved a case out of Sangamon County, and in my reading of the Supreme Court decision, and I don’t think that either of the parties disagree with the reading, it would appear that at least the way the Court interpreted this matter coming up was by virtue of a discovery order that was entered against the Defendant in a misdemeanor case, it was basically two traffic citations.

The — I do not — I did not think that applies, nor do I think it applies to this particular situation when we are talking about discovery several minutes before we commence the selection of a jury where we’re trying to ascertain what knowledge the jurors may have of any of the potential witnesses that may be brought in to testify either on behalf of the State or on the Defendant, and to ascertain if they are going to be affected in any manner by the testimony of any of those individuals so that both sides can, in fact, obtain 12 fair and impartial jurors in a case.

* * *

THE COURT: Okay. All right. Now, Mr. Delano, for the record, let me ask you: Are you willing to furnish the Court a list of potential witnesses so the Court can make an inquiry of the jury for voir dire selection?

MR. DELANO: I most respectfully decline, your Honor, for the reasons I have set forth this morning.

THE COURT: Okay. The Court will find you in contempt of Court and assess a penalty of $10.”

Before this court, appellant continues to argue that the trial court does not have the authority to order him to reveal the list of witnesses he may call because that order is equivalent to a discovery order. Appellant correctly points out that the scope of the supreme court rules on discovery is limited to felony cases (134 Ill. 2d Rules 411 through 415; see also People v. Schmidt (1974), 56 Ill. 2d 572, 309 N.E.2d 557; People v. Williams (1981), 87 Ill. 2d 161, 429 N.E.2d 487).

Appellant further argues that because a trial court order directing a litigant to disclose his potential witnesses has the same legal effect as a discovery order, the court does not have the discretionary authority to enter such an order because discovery matters should not be left to the discretion of the individual trial courts.

In the context of this case, we find both of appellant’s arguments to be totally groundless.

In Mau v. North American Asbestos Corp. (1987), 156 Ill. App. 3d 926, 509 N.E.2d 1112, this court was confronted with the identical question presented by this case but in a civil law context. In Mau, just prior to the commencement of voir dire, the court ordered the attorneys to submit lists of witnesses, and plaintiff’s counsel refused to do so. (Mau, 156 Ill. App. 3d at 927, 509 N.E.2d at 1113.) Citing section 2 — 1003(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1003(c)), which deals with discovery and provides that “[a] party shall not be required to furnish the names or addresses of his or her witnesses,” plaintiff’s counsel contended that the court had no authority to require plaintiff to furnish such a list. (Mau, 156 Ill. App. 3d at 927, 509 N.E.2d at 1113.) The trial court rejected that argument and found plaintiff’s counsel to be in contempt. (Mau, 156 Ill. App. 3d at 927, 509 N.E.2d at 1113.) This court affirmed and stated the following:

“We have reviewed the parties’ contentions together with the record and the authority cited and conclude that section 2— 1003(c) does not apply to this situation. Contrary to [appellant’s] assertions, section 2 — 1003 pertains only to discovery and deposition. Further, the decisions cited by [appellant] in support of his position involved cases in the discovery stage. Here, however, the case was no longer in the discovery stage; rather, it had been called for trial. Thus, section 2 — 1003(c) does not govern the situation here. * * *

We cannot say that the court abused its discretion by requesting a list of witnesses to aid in the selection of an impartial jury and for the effective management of the litigation.” Mau, 156 Ill. App. 3d at 929, 509 N.E.2d at 1114.

We find support for our conclusion in this case in People v. Porter (1986), 111 Ill. 2d 386, 489 N.E.2d 1329, wherein the supreme court wrote the following:

“Our Rule 234 (87 Ill. 2d R. 234), made applicable to criminal cases by Rule 431 (87 Ill. 2d R. 431), provides in pertinent part:

‘The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper.’

Thus, the manner and scope of the voir dire examination is left to the discretion of the trial court.” (Porter, 111 Ill. 2d at 401, 489 N.E.2d at 1335.)

Clearly, the trial court in the present case did not abuse its discretion when it required the parties to furnish it with lists of witnesses they intended to call so that the court could inquire on voir dire examination whether a prospective juror was acquainted with any such prospective witness.

Further support for this view is found in People v. Chamness (1984), 129 Ill. App. 3d 871, 473 N.E.2d 476, where the court wrote the following:

“The purpose of voir dire is to assure the selection of an impartial jury. [Citations.] Under Supreme Court Rule 234 (87 Ill. 2d R. 234), circuit courts are granted broad discretion in conducting and managing voir dire [citations], and the decision whether to ask certain questions of prospective jurors is within this discretion [citation].” Chamness, 129 Ill. App. 3d at 873, 473 N.E.2d at 478.

For the reasons stated, the judgment of the circuit court is affirmed.

Affirmed.

LUND, P.J., and GREEN, J., concur.


author: PRESIDING JUSTICE LUND

text:
      In re MARRIAGE OF GLORIA J. CLAY, Petitioner-Appellant, and ERNEST H. CLAY, Respondent-Appellee.
    Fourth District
    No 4 — 90—0647
    Opinion filed March 21, 1991.

      Michael A. Fleming, of Cusack & Fleming, of Peoria, for appellant.
    Holly W. Jordan, of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, P.C., of Champaign, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Petitioner Gloria J. Clay sought $6,056.94 for costs and attorney fees incurred collecting unpaid child support payments. Her petition sought payment of these costs and fees under the provisions of section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 508(b)). She was awarded $1,076 from respondent Ernest H. Clay by the circuit court of Champaign County. Petitioner now appeals, contending the trial court committed error in not awarding all costs and reasonable attorney fees.

The genesis of this appeal was a dispute over child support, which resulted in an earlier appeal to this court in In re Marriage of Clay (4th Dist.1989), No. 4 — 89—0466 (unpublished order under Supreme Court Rule 23). Because decisions under Supreme Court Rule 23 (134 Ill. 2d R. 23) are not published, a short summary of this case is necessary.

Custody of the three children of the marriage was originally awarded to the petitioner. Computation of court-ordered support from the respondent was based upon the provisions of section 505 of the Act, which includes the percentage guidelines. A monthly lump sum was fixed, based upon the guideline provision of 32%. This percentage is provided when there are three children of the parties. When the oldest child moved in with respondent and reached 18 years of age, the respondent unilaterally reduced child support to an amount which he computed as 25% of his net income. The guidelines under section 505 of the Act provide for 25% for two children. Petitioner sought the difference between the court-ordered support and the reduced amount which was paid by the respondent. Prior to petitioner’s court proceedings, respondent, subsequent to reducing the child support payment, filed a petition asking the court to reduce the payments. The trial court denied petitioner’s request for relief, and that decision was appealed to our court, resulting in the aforementioned Rule 23 decision. The trial court was reversed, with a holding that the support payment originally approved by the trial court provided for a lump-sum amount and did not allow for a unilateral partial reduction without court approval. The cause was returned to the trial court for calculation and award for the deficiency.

The petition for costs and attorney fees, based upon the provisions of section 508(b) of the Act, eventually was filed. Section 508(b) provides:

“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause, or justification, the court shall order the party against whom the proceeding is brought to pay the costs and reasonable attorney’s fees of the prevailing party.” Ill. Rev. Stat. 1989, ch. 40, par. 508(b).

As further clarification of what originally happened in the trial court, we refer to the petition filed by respondent subsequent to the unilateral reduction in which respondent asked for retroactive approval of the reduction. The trial court’s order denying petitioner relief also originally allowed the retroactive reduction. All these matters were before our court in the Clay case.

On remand in the Clay case, the trial court determined the unpaid support amount, took evidence, and heard arguments on the petition for costs and fees. In the trial court’s oral decision, it stated that the “without cause or justification” requirement of section 508(b) existed from the time of the unilateral reduction until the petition for reduction was filed. It reasoned that the court should encourage the “correct conduct” of seeking court reduction and, in so doing, should not find “without cause or justification” after the petition for reduction was filed. The reliance on the trial court’s order, which precipitated the appeal in Clay, was emphasized as a reason for finding cause or justification for the nonpayment from the time of the trial court’s order approving the reduction. The suggestion is made that a contrary ruling would result in no motivation to ultimately correct original improper conduct of unilaterally decreasing child support. The trial court went further, though, and specifically found the hours listed by counsel in the petition requesting $6,056.94 were reasonable.

Our court’s decision in Clay relied on Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12, for the proposition that, absent an express or implied court-ordered provision, a parent who pays collective or lump-sum child support payments for the support of two or more children may not unilaterally reduce the amount of that payment pro rata as each child becomes emancipated. We recognize that guidelines did not exist in section 505 of the Act until September 12, 1984. (See Ill. Ann. Stat., ch. 40, par. 505, Historical and Practice Notes, at 145 (Smith-Hurd Supp. 1990).) While we conclude that the Finley opinion continues its viability, we do recognize that support orders based upon percentage guidelines could lead one to believe there would be a correlation between continuing support payments and the change in the number of dependent children. We further conclude, for the purposes of section 508(b) of the Act, that the unilateral reduction in support payments without court order, by itself, is adequate to establish the “without cause or justification.” (See In re Marriage of Donahoe (1983), 114 Ill. App. 3d 470, 478, 448 N.E.2d 1030, 1035.) In our present case there was no evidence of inability to pay, the reduction being based upon a mistaken belief that the respondent could reduce the child support payments on his own. The policy underlying section 508(b) is based on the necessity to eliminate or lessen the financial burden on a custodial parent that is the consequence of an action to enforce child support. (See In re Marriage of Wassom (1988), 165 Ill. App. 3d 1076, 1081, 519 N.E.2d 1147, 1150.) The existence of the policy calls for a finding of “without cause or justification,” regardless of respondent’s mistaken belief of his rights as to unilateral reduction.

As indicated in our court’s decision in Clay, the trial court committed error in refusing to order the deficiency payment. In correcting that error, substantial attorney fees were incurred in the appellate and post-appellate process by both parties. We now turn to the determination of whether these fees should have been awarded under the dictates of section 508(b) of the Act. Authorities cited by both petitioner and respondent do not specifically relate to the provisions of section 508(b). We give solace to counsel because it appears that we are dealing with an issue of first impression. Under section 508(b), we are not concerned with the financial resources of the parties as we would be if the relief was sought under section 508(a) of the Act. (Ill. Rev. Stat. 1989, ch. 40, par. 508(a).) Nor have the parties preserved the issue of reasonableness of the fees sought in the present proceedings. The trial judge’s discretion as to what fees and in what amounts should be awarded to whom is not involved. (See In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229.) Provisions of section 508(b) are mandatory and, while allowing a determination of reasonableness, do not allow for discretion as to payment if the defaulting party’s conduct was without cause or justification.

As we have stated, the policy underlying section 508(b) relates to the financial protection of the custodial parent and upon the intent to enforce child support. (See Ill. Ann. Stat., ch. 40, par. 508(b), Historical and Practice Notes, at 170 (Smith-Hurd Supp. 1990).) This policy dictates that section 508(b) applies to appellate proceedings as well as to the trial court proceedings. The policy easily applies where the custodial parent has been awarded the unpaid support by the trial court and the noncustodial parent forces the parties to the appellate level. The facts in this case present a different scenario. In our opinion, however, the same results must apply. It can be argued that respondent, by not providing the trial court with correct authority at the time of the decision which resulted in the appeal in Clay, aided in creating the error made at the trial level.

We conclude that policy requires a holding that once a noncustodial parent withholds child support without cause or justification, that party -will be ordered to pay costs and reasonable fees to the prevailing party for the services rendered both in the trial and the appellate court proceedings, regardless of who initiates the appeal.

We therefore determine this cause must be reversed and remanded, with the directions to enter judgment for the petitioner in the amount of $6,056.94 instead of $1,076.

Reversed and remanded with instructions.

GREEN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EMMA G. STRAWN, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0667
    Opinion filed March 21, 1991.

      Evan A. Strawn, of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On August 28, 1990, defendant Emma Strawn was found guilty by the circuit court of McLean County of committing the offense of operating a vehicle with tinted front side windows in violation of section 12 — 503(a) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 503(a)). She was subsequently placed on court supervision for six months and ordered to pay court costs. Defendant now appeals. We affirm.

On October 12, 1989, defendant was ticketed for driving an Illinois-registered 1988 Honda Prelude with tinted front windows. Prior to trial, defendant filed various motions attacking the constitutionality of the statute and arrest, and supported these motions with affidavits and attachments. These documents establish that the vehicle had been purchased in 1988 in Texas with the tinted windows, and the tinted windows are in compliance with the law in Texas. They also showed that the arresting officer stopped the vehicle and issued the instant ticket solely on the basis of the tinted windows. The court denied the motions. The parties stipulated to the officer’s testimony, and the court found defendant guilty. Defendant now appeals, alleging several constitutional violations.

We begin our analysis by observing there are several well-recognized general principles applicable to any attack on the constitutionality of a statute. All statutes are presumed to be constitutional. (People v. Bales (1985), 108 Ill. 2d 182, 188, 483 N.E.2d 517, 519; Sayles v. Thompson (1983), 99 Ill. 2d 122, 124-25, 457 N.E.2d 440, 441-42.) The party challenging a statute has the burden of clearly establishing a constitutional violation. (People v. O’Donnell (1987), 116 Ill. 2d 517, 521, 508 N.E.2d 1066, 1068.) The supreme court has repeatedly emphasized that it is the court’s duty to construe acts of the legislature so as to affirm their constitutionality and validity if it can reasonably be done, and, further, if their construction is doubtful, the doubt will be resolved in favor of the validity of the law challenged. O’Donnell, 116 Ill. 2d at 521-22, 508 N.E.2d at 1068; Bales, 108 Ill. 2d at 188, 483 N.E.2d at 520; Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Comm’n (1969), 42 Ill. 2d 385, 389, 251 N.E.2d 253, 257.

The section in question, section 12 — 503(a), provides “No person shall drive a motor vehicle with any sign, poster, window application, reflective material, nonreflective material or tinted film upon the front windshield, sidewings or side windows immediately adjacent to each side of the driver.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 12— 503(a).) Exceptions are provided for vehicles manufactured prior to 1982 and for vehicles registered in another jurisdiction. (Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 503(f).) There is a final medical exemption, but the need for tinted windows must be supported by a physician’s certificate, which must be carried at all times in the vehicle. Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 503(g).

Defendant’s first position is that the statute is unconstitutional because, by allowing a primary stop in these circumstances, it violates the constitutional proscription against unreasonable seizures. By “primary stop,” she seems to mean a stop for the actual violation. This is opposed to a “secondary arrest,” which she would define as an arrest for conduct once a car is stopped for another reason. Thus, it is her position the statute is unconstitutional because it allows the stop for tinted windows alone. She believes violations of this section should only be addressed with a secondary arrest once a car is lawfully stopped for another legitimate reason.

Defendant observes that even a brief stop of a car to check its safety devices falls within the ambit of the fourth amendment's protection against unreasonable seizures. (See People v. Estrada (1979), 68 Ill. App. 3d 272, 275, 386 N.E.2d 128, 130.) Further, she observes the reasonableness of search and seizure depends upon a balance between the public’s interest and the individual’s right to freedom from arbitrary interference by law officers. (Estrada, 68 Ill. App. 3d at 275, 386 N.E.2d at 131.) She acknowledges that Illinois courts have repeatedly held stops for safety violations such as defective mufflers, brake lights, or headlights constitutional. (See People v. Houlihan (1988), 167 Ill. App. 3d 638, 643, 521 N.E.2d 277, 281.) However, she argues these stops are valid only because the interest of public safety outweighs the intrusion.

She maintains this balance is not present in this situation. She observes that “[t]he purpose of the prohibition against tinted windows is to protect the safety of law enforcement personnel who stop and approach a vehicle.” (People v. Hagen (1989), 191 Ill. App. 3d 265, 267, 547 N.E.2d 577, 579.) Thus, the concern for public safety is not involved, and she maintains the balancing then weighs against the stop of an individual. Accordingly, she maintains it is unconstitutional for this statute to allow a primary stop for this violation. Rather, she insists enforcement of the statute should be limited to secondary arrests which would occur after lawful stop for another reason.

Defendant’s argument is based on a faulty premise and therefore must fail. It is predicated on the perceived constitutional distinction between a “primary stop” and a “secondary arrest.” However, in Illinois, there is no such distinction. In Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1968, the Supreme Court found a limited investigatory stop by law enforcement officers is constitutional. The Terry rule has now been codified in Illinois in section 107 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 14), and provides that a police officer may stop a person for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing or has committed a criminal offense. Therefore, a stop is always justified when the officer has a reasonable suspicion that any criminal conduct has occurred or is occurring. There is no limitation on this authority based on the type of violation involved. Accordingly, traffic violations involving the condition of a vehicle have provided a sufficient basis for a Terry stop. See Houlihan, 167 Ill. App. 3d at 643, 521 N.E.2d at 281.

In the present case, the legislature has determined that vehicles with tinted front windows should be illegal. The legislature could have provided that this provision only be enforced as a “secondary” matter (see, e.g., Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 603.1(e)), but it chose not to do so. This is a legislative decision and is not of a constitutional dimension. As long as the officer has reasonable grounds to believe a violation is occurring, which this officer did, a stop is constitutionally permissible. Accordingly, we find no such asserted constitutional violation.

A second and related argument by defendant is that the statute and a stop for tinted windows alone violates her constitutional right to privacy. She observes that in People v. Bartley (1985), 109 Ill. 2d 273, 280, 486 N.E.2d 880, 883, the court stated that “[t]he degree of intrusion on the individual’s privacy must be balanced against the strength of the public need for the intrusion.” She then relies on analysis in Bartley discussing the objective and subjective aspects of an intrusion, and concludes a stop pursuant to section 12 — 503 is impermissible. However, Bartley is inapplicable to the present situation because it involved the question of roadblock stops, where cars were stopped without regard to any perceptible criminal conduct. However, the present case involves a clearly apparent violation of the Code. Thus, it is a proper Terry stop, and any analysis under Bartley is misplaced.

Defendant’s real complaint is that the public’s interest in tinted windows is limited because they do not pose a public-safety hazard and they have, in fact, been recognized as beneficial by one court. (See People v. Niebauer (1989), 214 Cal. App. 3d 1278, 1285-86, 263 Cal. Rptr. 287, 291.) Thus, she maintains that she did not reasonably expect she would be stopped and arrested for having tinted windows, and that any intrusion therefore -violates her privacy rights. Defendant wishes to attack the propriety of the policy behind the proscription, asserting that it is not a good law and that the common citizen would not realize this conduct is improper. However, the determination of what conduct is permissible and what is to be proscribed is in the hands of the legislature, which was institutionally more aware than the courts of the evils confronting our society. (See People v. Steppan (1985), 105 Ill. 2d 310, 319, 473 N.E.2d 1300, 1305.) It is to the legislature that defendant should make this argument. Our consideration is whether a stop for violation of this section is constitutionally permissible. We conclude it is.

Defendant next contends the statute is unconstitutional as an impermissible burden on interstate commerce. She observes she purchased the car in Texas, where it is legal, and now travels extensively between Texas and Illinois. The statute results in her not being able to freely return to Illinois on these trips without risking arrest.

It is well settled that not every exercise of State power with some impact on interstate commerce is invalid. (Edgar v. MITE Corp. (1982), 457 U.S. 624, 640, 73 L. Ed. 2d 269, 282, 102 S. Ct. 2629, 2639.) A State statute must be upheld if it even-handedly regulates to effectuate a legitimate local public interest, and its effect on interstate commerce is only incidental unless the burden on interstate commerce is clearly excessive in relation to the local benefits. (Edgar, 457 U.S. at 640, 73 L. Ed. 2d at 282, 102 S. Ct. at 2639.) An application of this three-step analysis to the present case establishes no constitutional violation.

First, this court has already had an opportunity to comment on the legitimate State interest this legislation serves. In Hagen, we observed the purpose is to protect police officers as they approach stopped vehicles. (Hagen, 191 Ill. App. 3d at 267, 547 N.E.2d at 579.) It also serves the salutary purposes of allowing police officers to more easily identify drivers of vehicles, and allowing drivers to observe others to ascertain whether they are driving attentively. Thus, it is clear the statute is designed to serve a legitimate public interest.

It is also apparent that any impact on interstate commerce is incidental. The statute contains an exception for vehicles registered in other jurisdictions. (Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 503(f)(2).) Therefore, people from other States can travel into or through Illinois without any impediment due to the presence of tinted windows being placed in their way. The people most likely to be impacted are those buying vehicles in other jurisdictions and registering them in Illinois, and those moving to the State from another jurisdiction. In either case, the impact upon them is only incidental to the legitimate purpose.

Finally, it is equally apparent that any incidental impact does not place a clearly excessive burden on interstate commerce. As noted, out-of-State registrants are not impacted at all. The impact of the present statute will basically be upon people such as defendant, who purchased a vehicle in another jurisdiction with different standards. While this may have a very marginal impact on interstate commerce, we conclude it is not a “clearly excessive burden” which outweighs the legitimate State interest.

Defendant also argues that this statute violates the privileges and immunities provision of the Constitution. However, “[t]he privileges and immunities clause is intended to prevent unreasonable discrimination by a State against citizens of other States.” (Rios v. Jones (1976), 63 Ill. 2d 488, 498, 348 N.E.2d 825, 830.) Since the record establishes that defendant, while she has ties to Texas, is a resident of Illinois, the privileges and immunities clause is inapplicable to the present case. See Rios, 63 Ill. 2d at 498, 348 N.E.2d at 830.

Defendant next contends the statute violates her due-process rights. The demands of due process are met by balancing the interest being protected against the countervailing interests of society. (Rios, 63 Ill. 2d at 497, 348 N.E.2d at 829.) If, after this balancing, the State’s exercise of its police power is deemed to be reasonable, the legislation must be upheld. (Rios, 63 Ill. 2d at 497, 348 N.E.2d at 829.) The standard of a proper exercise of police power is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety, and general welfare. Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159, 128 N.E.2d 691, 695.

Defendant maintains again that, though there is legitimate State purpose, there is no rational basis for allowing a primary stop to be made for this violation alone. As discussed above, there are several legitimate State interests involved with the statute. This means of enforcement is reasonably designed to effectuate these interests. There is no due-process violation.

Defendant further argues that an equal-protection violation exists. She primarily argues that this statute draws an impermissible distinction between Illinois-registered vehicles with tinted windows, which are in violation, and out-of-State vehicles with tinted windows, which are not.

The equal-protection clause does not deny States the power to treat different classes of persons in different ways. (People v. Bradley (1980), 79 Ill. 2d 410, 416, 403 N.E.2d 1029, 1031.) Nor does it proscribe legislative classifications that are reasonably calculated to promote the public health, safety, welfare, or morals. Rios, 63 Ill. 2d at 498-99, 348 N.E.2d at 830.

“Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective.” McGowan v. Maryland (1961), 366 U.S. 420, 425, 6 L. Ed. 2d 393, 399, 81 S. Ct. 1101, 1105.

Here, the State’s legitimate objective, to protect the police and the public, is well established. It is apparent that any law which would prohibit vehicles registered in other jurisdictions from having tinted windows may run afoul of the interstate-commerce provisions of the Constitution. Accordingly, the legislature has chosen to avoid that possibility by limiting the law’s application to Illinois vehicles. This decision is a reasonable one. The equal-protection provision invalidates only those enactments that are arbitrary, unreasonable, and unrelated to the public purpose sought to be attained. (Rios, 63 Ill. 2d at 498, 348 N.E.2d at 830.) We find no such difficulties with the current provision.

Defendant also wishes to raise arguments concerning the officer’s conduct at the time of the stop, asserting that he embarrassed her in front of her family. However, any such complaint is properly directed to his superior and has no bearing on the current analysis of this court.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY P. CRADDOCK, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0318
    Opinion filed March 21, 1991.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Defendant Gregory Craddock was charged by indictment with unlawful possession and delivery of cocaine in violation of section 404 of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1987, ch. 561/2, pars. 1404(b),(c)). After a jury trial, defendant was convicted on both charges. Judgment was entered only on the delivery conviction. Defendant was sentenced to a term of four years’ imprisonment.

Defendant appeals, contending (1) the admission of a hearsay conversation between an informer and a police officer was reversible error; (2) the admission of police officer testimony as to manner of identification of drug dealers was error; (3) the prosecutor improperly argued the contents of a police report not admitted into evidence and that the jury was getting “snowed” by the defense; and (4) this court should reconsider the rule that defendant must first admit to commission of the offense before raising an entrapment defense. For the reasons below, we affirm.

At trial, Sharon Sweeney, an undercover narcotics agent, testified as follows. On May 9, 1989, she entered Ron’s Tap in Pontiac, Illinois, accompanied by informants Fred and Sarah Haas. Seated at the bar was defendant Gregory Craddock, whom Sweeney recognized from previous occasions at the same tavern. Fred Haas approached the defendant and had a conversation. Sweeney then approached the defendant, and he asked if she wanted to purchase a gram of cocaine for $100. The defendant then delivered a clear plastic bag containing white powder to Sweeney in exchange for $100. A field test and subsequent laboratory analysis established that the white powder contained cocaine.

The State called Lieutenant Ryan, who testified that an undercover drug investigation called “Operation Alert” was conducted during 1988 and 1989 in Livingston County, Illinois. He described general procedures employed by law enforcement officials in targeting an area for a narcotics investigation and stated that Fred and Sarah Haas were used as confidential sources in the Operation Alert investigation.

Over defense objection, Sweeney testified that following his conversation with defendant at the bar, Haas told her “Kook has some cocaine and, you know, how much did I want.” She also testified that following a drug investigation she generally prepares reports containing times, dates, places, and names.

Defendant denied participation in any drug transaction with Sweeney, but stated that he recalled seeing Sweeney with the Haases on the date in question, based on police reports he had read.

During rebuttal argument, the prosecutor argued that Sweeney had prepared a police report containing names, dates, and times, and if her testimony had differed, from anything in the report the defense would have objected. The prosecutor then argued that if the jury believed the testimony of defendant and disbelieved Sweeney, it was getting “snowed.”

Defendant argues that Sweeney’s testimony as to what Fred Haas told her was improperly admitted hearsay and this error mandates reversal because it bolstered Sweeney’s credibility and prejudiced the jury. The State contends that Sweeney’s statement that Haas told her defendant had cocaine was not hearsay because it was offered, not for its truth, but to explain investigatory procedure, i.e., why Sweeney approached defendant. We disagree.

Courts have recognized that police may testify to the fact that a conversation was held with a nontestifying witness for the purpose of explaining police procedure or why the police acted as they did, but that testimony as to the content or substance of that conversation is improper hearsay. (People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146, cert. denied (1988), 488 U.S. 910, 102 L. Ed. 2d 252, 109 S. Ct. 264; People v. Johnson (1990), 202 Ill. App. 3d 417, 559 N.E.2d 1041; People v. Mitran (1990), 194 Ill. App. 3d 344, 550 N.E.2d 1258.) Sweeney’s recitation of the words informant Haas said to her regarding defendant’s possession of cocaine clearly was hearsay offered for its truth and its admission error. The question remains whether this error mandates reversal.

The test for reversible error is whether there are reasonable grounds for believing the hearsay statement prejudiced the jury and constituted a material factor in defendant’s conviction. (People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629.) In this instance, due to the proximity in time and location between the informant’s statements to Sweeney and her response in approaching defendant with the resultant immediate cocaine transaction, as well as Sweeney’s unequivocal identification of defendant, there is no reasonable likelihood the jury’s verdict would have been different had the hearsay statement been excluded. Additionally, the court gave the jury an instruction limiting use of the testimony to show that Sweeney was told such a conversation took place and not to show the statement made was true or that the conversation actually did take place. The prosecutor made no further reference to the statement during closing argument.

Defendant next argues that Lieutenant Ryan’s testimony as to how drug users and drug dealers are identified was irrelevant because the identification profile was never tied to defendant but instead allowed the jury to speculate that some source had named defendant as engaged in drug activity. Evidence is relevant when it tends to prove or disprove a disputed fact or render the matter in issue more or less probable. (People v. Bradley (1988), 172 Ill. App. 3d 545, 551, 526 N.E.2d 916, 921.) A determination as to whether evidence is relevant is a matter for the sound discretion of the trial court (People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011), and its decision will not be reversed absent an abuse of discretion resulting in prejudice to the defendant. People v. Miller (1981), 98 Ill. App. 3d 453, 424 N.E.2d 624.

The trial court found Lieutenant Ryan’s testimony relevant in explanation of why an undercover narcotics agent would be present in Ron’s Tap and why drug sales were anticipated from that location. Defendant’s allegation that the State submitted a drug-dealer profile is inapt. No itemization of physical or behavioral characteristics was presented. Ryan stated that drug dealers are identified: “Through intelligence derived from confidential sources, police officers, other dealers, possessors you come in contact with through the course of an investigation.” Testimony that agents are gathering intelligence through sources in an ongoing drug investigation does not engender speculation that defendant is the focus of that investigation or has engaged in drug activities. There was no evidence that “Operation Alert” focused on defendant prior to the transaction with Sweeney on May 9. This was made explicit by Sweeney’s testimony that her presence in Ron’s Tap on May 9, 1989, was not instigated by an investigatory focus on any specific individual. For these reasons, we conclude Ryan’s testimony created neither a drug-dealer profile nor jury speculation that the investigation focused on defendant. Further, we cannot say the court abused its discretion in determining the testimony was relevant to explaining Sweeney’s presence in Ron’s Tap.

We note further the State argues that Lieutenant Ryan’s testimony has additional independent relevance to an anticipated entrapment defense disclosed by defendant during pretrial discovery. Defendant argues this was an improper attempt at establishing defendant’s predisposition to engage in drug-related activity when no entrapment defense had been put forth at trial. A review of the evidence makes clear that Lieutenant Ryan’s testimony was properly limited to the general procedures of “Operation Alert” and lacked specific focus or application to defendant. On these facts, we find no predisposition evidence was presented.

Defendant next argues that the prosecutor’s reference to the times, dates, and names in Sweeney’s report was an argument as to the content of the police report not admitted into evidence, and his comments that if the jury disbelieved Sweeney it was getting “snowed,” were improper and prejudiced the jury by bolstering Sweeney’s credibility.

Clearly, Sweeney’s testimony was confined to general procedures in compiling reports. She did not testify that she prepared a report for the date in question. Defendant himself first referred to the existence of a police report by his testimony that he remembered the date and time he saw Sweeney in Ron’s Tap from reading the report. Additionally, defense counsel argued the content of the report as to time and date during closing argument.

We find that the prosecutor’s rebuttal argument noting the consistency of Sweeney’s report with her trial testimony was invited by defendant’s testimony that he had read the police report, as well as defense counsel’s closing argument referring to the times and dates in Sweeney’s report. (See People v. Bragg (1984), 126 Ill. App. 3d 826, 467 N.E.2d 1004.) Defendant argues that prosecutorial comment that the jury was getting “snowed” if it disbelieved Sweeney’s testimony served to mislead and inflame the jury. However, this court has previously noted that such colloquial comments are a permissible response when, as here, defendant importunes jury disbelief of a witness’ motive and testimony. (People v. Lindgren (1982), 111 Ill. App. 3d 112, 121, 443 N.E.2d 1129, 1136.) The prosecutor’s comments were a permissible response to defense insinuations that law enforcement officials can lie to support an institutional need to convict and that no one is safe if guilt is based exclusively on official accusation. See People v. Moore (1979), 71 Ill. App. 3d 451, 389 N.E.2d 944.

The State presented a motion in limine requesting that defendant be precluded from raising the defense of entrapment through questioning of the State’s witnesses during its case in chief. The court indicated it could not pass on the motion at that time but would rule when and if any questions improperly raising an entrapment defense were presented. No evidence of entrapment was put forth, no objections to the questioning of witnesses regarding issues of entrapment were made and defendant neither claimed entrapment at trial nor requested jury instructions on the defense. Under these facts and circumstances, we find no issues have been raised which require an application of the well-established rule denying a jury instruction on entrapment to a defendant denying commission of the offense, recently reaffirmed by the supreme court in People v. Gillespie (1990), 136 Ill. 2d 496, 557 N.E.2d 894. We, therefore, decline defendant’s request to reexamine that holding for alleged conflicts with the supreme court’s subsequent holding in People v. Everette (1990), 141 Ill. 2d 147, which held that a defendant in a homicide case is entitled to a jury instruction on self-defense if it is supported by the evidence, even though the defendant claimed accidental homicide.

For the foregoing reasons, we affirm the decision of the Livingston County circuit court.

Affirmed.

SPITZ and KNECHT, JJ., concur.


author: JUSTICE SPITZ

text:
    CHAMPAIGN POLICE BENEVOLENT AND PROTECTIVE ASSOCIATION UNIT NO. 7 et al., Plaintiffs-Appellees, v. THE CITY OF CHAMPAIGN, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0556
    Opinion filed March 21, 1991.

      David E. Krchak, of Thomas, Mamer & Haughey, of Champaign, for appellant.
    Edward H. Rawles, of Reno, O’Byrne & Kepley, P.C., of Champaign, for appellees.
   JUSTICE SPITZ

delivered the opinion of the court:

The Champaign Police Benevolent and Protective Association Unit No. 7 (Association) brought this action to compel arbitration under section 2 of the Uniform Arbitration Act (Ill. Rev. Stat. 1987, ch. 10, par. 102). The City of Champaign (City) and the Association were parties to a contract providing for arbitration of certain disputes. The circuit court entered summary judgment in favor of the Association, requiring the City to arbitrate the issue in question.

The Association is comprised of City police officers. Plaintiff Brian Hockings (Hockings) is a City police officer. On August 6, 1986, defendant City and the Association entered into a contractual labor agreement (agreement).

On December 15, 1986, Hockings received notice from the City that he would receive a one-day suspension without pay. On December 16, 1986, Hockings filed a grievance alleging the discipline was too severe and communication between the chief of police and the city manager tainted the grievance procedure. He alleged the city manager, prior to the chief imposing discipline, conferred with the chief about the appropriate discipline in his case and had an “instrumental” role in determining the discipline the chief imposed. Hockings argues this intervention by the city manager deprived him of an impartial hearing before the city manager, thus violating the parties’ collective-bargaining agreement.

The 1986 agreement between the Association and the City established a multitiered grievance procedure. An officer wishing to challenge a disciplinary action could first appeal to his immediate supervisor in step one. If dissatisfied with that result, step two provided an appeal to the division commander. Step three provided further appeal to the chief of police. If still dissatisfied, the chief’s decisión could be appealed to the city manager in step four. Step four provided a discretionary appeal, and the city manager could review the grievance “[provided that he or she elects to accept and hear such grievance.” Finally, the city manager’s decision — whether on the merits, or his or her decision declining to hear the appeal— could be appealed by the Association to an arbitrator if the issue involved is included among those listed in Article 37.2C of the agreement.

Article 37.2C of the agreement states:

“C. GRIEVANCES APPEALABLE ONLY TO AN ARBITRATOR
Grievances involving the following grievable issues may be appealed by the ASSOCIATION to an arbitrator if the officer or group of officers is not satisfied with the decision of the City Manager at the conclusion of the Grievance Procedure. In accordance with the Appeal Procedure set forth in Section 37.7B below, the decision of the arbitrator shall be final and binding upon all parties. Such grievances may not be appealed to the Board of Fire and Police Commissioners.
1. Provisions of this Agreement
An issue which involves the meaning, interpretation or application of the express provisions of this Agreement.
2. Rules and Regulations of the CITY
An issue which involves the application of any rule or regulation established and enforced by the CITY.”
(Emphasis in original.)

Hockings pursued his grievance to step four, the city manager’s level. Unsatisfied with the the city manager’s decision, Hockings sought arbitration of both the appropriate level of discipline, and the alleged communication between the city manager and the chief of police. The City agreed to arbitrate the issue of the fact and extent of the discipline, but refused to arbitrate the appropriateness of the city manager’s communication with the police chief.

Plaintiffs filed a complaint in the circuit court, requesting the City be ordered to arbitrate both the cause and severity of Hockings’ suspension, and the propriety of the city manager’s communication. The court entered summary judgment in favor of plaintiffs and ordered the City to arbitrate both issues. The City moved for reconsideration of its motion for summary judgment, arguing the court incorrectly believed the conversation between the chief and the city manager occurred during the grievance process and while an appeal was pending before the city manager. However, the alleged conversation occurred before the chief imposed discipline on Hockings. Because the communication occurred before the chief imposed discipline and, therefore, before the grievance procedure had begun, the City claimed this dispute could not involve the express provisions of the grievance procedure.

The court denied the City’s motion and filed an amended memorandum opinion and order. The court acknowledged it had been of the view that the alleged communication occurred after an appeal had been taken by Hockings to the city manager in step four of the grievance procedure. There was no dispute that the alleged communication occurred before the chief imposed discipline on Hockings. The court held its reasoning in the original memorandum opinion and order was “correct notwithstanding its misconception as to the time that this conversation allegedly occurred.” Although the grievance procedure had not yet begun, the disciplinary process leading to the grievance had. The court reasoned that communication, whether it occurred prior to imposing discipline, or after the grievance procedure had begun, still implicated the entire grievance procedure.

The Supreme Court, in a series of cases known as the “Steelworkers Trilogy," laid down general principles governing the arbitrability of disputes in the special context of collective-bargaining agreements. (United Steelworkers v. American Manufacturing Co. (1960), 363 U.S. 564, 4 L. Ed. 2d 1403, 80 S. Ct. 1343; United Steelworkers v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347; United Steelworkers v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358.) The Supreme Court reaffirmed these fundamental principles in AT&T Technologies, Inc. v. Communications Workers (1986), 475 U.S. 643, 89 L. Ed. 2d 648, 106 S. Ct. 1415.

First, an agreement to arbitrate a dispute is a matter of contract. (Warrior & Gulf, 363 U.S. at 582, 4 L. Ed. 2d at 1417, 80 S. Ct. at 1353.) Thus, if the parties in their contract did not agree to submit this dispute to arbitration, a court cannot require them to arbitrate. (Board of Governors of State Colleges & Universities v. Illinois Educational Labor Relations Board (1988), 170 Ill. App. 3d 463, 471, 524 N.E.2d 758, 762.) The finding of a contractual duty must precede the requirement to arbitrate.

Second, the issue of whether the agreement provides for arbitration must be kept separate from an analysis of the merits of the underlying claim. A court should not rule on or be influenced by the merits of the dispute. This holds true even if one party’s underlying claim is frivolous. (American Manufacturing Co., 363 U.S. at 568, 4 L. Ed. 2d at 1407, 80 S. Ct. at 1346.) The question for this court is not whether the alleged communication violates the grievance procedure in the collective-bargaining agreement, but whether the parties agreed to submit this issue to arbitration.

Finally, there is a presumption in favor of arbitration in collective-bargaining agreements containing an arbitration clause and, in cases of doubt, courts should decide in favor of arbitration. (Warrior & Gulf, 363 U.S. at 583, 4 L. Ed. 2d at 1418, 80 S. Ct. at 1353; Board of Governors, 170 Ill. App. 3d at 471, 524 N.E.2d at 762.) The arbitration clause in the instant case is not a broad one as plaintiffs claim, but is narrowed by its terms to apply only to disputes involving the “meaning, interpretation or application” of an express provision. Even so narrowed, the presumption in favor of arbitrability still applies.

The City argues the propriety of communication between the city manager and the chief is not subject to arbitration because (1) the agreement does not prohibit the communication at issue because the grievance procedure was never meant to provide impartial appellate hearings and, thus, the alleged ex parte communication could not have tainted the grievance procedure; (2) the agreement contains no express provision discussing intramanagement communications and, therefore, this dispute does not involve the meaning, interpretation, or application of an express provision; and (3) if the court orders arbitration on this issue, it will require arbitration on every issue that could possibly be addressed through the grievance procedure.

With respect to its argument that the agreement does not prohibit the communication at issue because the grievance procedure was never meant to provide impartial appellate hearings, the City maintains the grievance procedure is instead an extension of the collective-bargaining process; indeed, the City argues the grievance process is bargaining. Because of this, it is inappropriate to think of either side as “impartial” and incorrect to conclude the grievance procedure would prohibit intramanagement communications between the chief and the city manager.

However, whether the agreement prohibits the city manager from discussing Hockings’ discipline with the chief is an argument on the merits of the underlying dispute and is irrelevant to our consideration of its arbitrability. We “have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim.” (American Manufacturing Co., 363 U.S. at 568, 4 L. Ed. 2d at 1407, 80 S. Ct. at 1346.) The parties in the instant case agreed to submit to arbitration all grievances involving the meaning, interpretation, or application of express provisions of the agreement, not only those which a court deems “meritorious.” (American Manufacturing Co., 363 U.S. at 468, 4 L. Ed. 2d at 1407, 80 S. Ct. at 1346.) The City’s argument that the agreement does not prohibit the communication at issue is properly made to the party resolving the underlying dispute, and not to the court deciding the dispute’s arbitrability. Thus, the circuit court correctly noted this 'argument on the merits should not be a factor in the court’s determination of arbitrability.

The City next argues the agreement must explicitly discuss intramanagement communication for this dispute to be arbitrable. In the absence of such explicit mention, this dispute cannot be said to involve the meaning, interpretation, or application of an express provision of the agreement.

There are two flaws in the City’s argument. First, the City frames the dispute too broadly, discussing it in terms of “intramanagement” communication. It ignores the fact that plaintiffs do not seek to arbitrate the propriety of intramanagement communication in general. They do not argue, for example, the city manager cannot consult with the chief on the general subject of officers’ discipline. Nor do they argue the city manager cannot discuss a specific case with the chief after the city manager has either declined to hear the appeal of a grievance thereon, or elected to hear it and has rendered his decision on the grievance. The narrow dispute plaintiffs wish to arbitrate is the propriety of the city manager’s communication in a specific case in the disciplinary process, which may later become a grievance and appeal in the grievance process.

Second, the agreement need not explicitly discuss intramanagement, predecisional communication in a specific case for a dispute over its propriety to involve the meaning, interpretation, or application of other express provisions of the agreement. Here, plaintiffs argue this dispute involves the express sections of the agreement providing for a grievance procedure, including the four-step appeal process discussed above. We agree.

Providing for arbitration of disputes involving the “application” and “interpretation” of the express terms of the agreement implies that disputes may arise which, while not specifically enumerated, do involve express terms of the agreement. Our analysis thus focuses on the connection between the express provision establishing the grievance procedure, and the dispute, to determine whether the dispute involves the meaning, interpretation, or application of the grievance procedure.

Here, the dispute over the propriety of communication between the chief, who is deciding an officer’s discipline, and the city manager, who may ultimately pass on the officer’s appeal of a grievance filed as a result of the discipline, particularly involves the meaning, interpretation, and application of the entire grievance procedure. For example, if the city manager communicates his opinion that the chief should impose a one-day suspension on Hockings, and later hears or declines to hear the final appeal short of arbitration of a grievance on this suspension, the meaning and application of the grievance procedure become less impartial. We strongly emphasize we are expressing no opinion on the merits of the dispute— whether the communication violated the grievance procedure because it guarantees impartial hearings. We offer the above discussion only to illustrate how this dispute involves the meaning, interpretation, and application of the four-step appeal process within the grievance procedure. It may be, as the City argues, that the grievance procedure was never meant to provide an impartial review of disciplinary decisions short of arbitration. However, even by this argument the City admits that the meaning, interpretation, and application of the grievance procedure are at issue.

The City’s reliance on Croom v. City of De Kalb (1979), 71 Ill. App. 3d 370, 389 N.E.2d 647, appeal denied (1979), 79 Ill. 2d 610, is misplaced. In Croom, a city firefighter sought to arbitrate the issue of additional pay for firefighters temporarily assigned to the duties of acting officers. The collective-bargaining agreement contained extensive provisions on wages, but was silent on the issue of additional pay in this situation. As here, the agreement provided a grievance procedure and limited arbitration to those issues “ ‘involving] the interpretation or application of the express provisions of this Agreement.’ ” (Croom, 71 Ill. App. 3d at 371, 389 N.E.2d at 648.) Plaintiffs in Croom argued since wages were discussed in an express provision of the agreement, a dispute over them involved this express provision and, thus, was arbitrable. The Croom court disagreed, holding the dispute did not involve an express provision because there was no provision regarding additional pay for firefighters in this case.

Croom may be distinguished because there the manner in which the dispute was resolved did not implicate the meaning or interpretation of the express wage provisions but would have added to them. In contrast, this dispute directly bears on the meaning and application of the express provision delineating the grievance procedure itself, i.e., the level of impartiality required short of arbitration. In addition, the court in Croom seemed to base its decision in part on its view of the merits of the underlying claim.

The City also argues that to require arbitration here would require arbitration of every management decision involving discussion between the chief and the city manager. Since most management decisions can be grieved, predecisional, intramanagement discussions would always involve the application of the express provisions of the grievance procedure. Thus, any management decision where the city manager communicated his thoughts to a lower level of management would implicate the express provisions of the grievance procedure, since the city manager would also hear the appeal of any grievance on that issue. The City argues this is an implausible interpretation of the agreement.

The City states its objection too broadly. Our holding is restricted to the facts of this case in that it would not be any intramanagement discussion which would be arbitrable, but only those discussions between an administrator and the city manager on a specific case which may later be appealed via the four-step appeal process in the grievance procedure. Furthermore, the city manager would be free to comment on the specific case once he or she had rendered a decision in the grievant’s appeal.

So narrowed and limited, the dispute at issue is arbitrable as it involves the meaning, interpretation, and application of the express terms of the agreement providing for the grievance procedure.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


author: JUSTICE HOWERTON JUSTICE GOLDENHERSH,

text:
    FLORENCE T. HUELSMANN et al., Plaintiffs-Appellees, v. WALLACE P. BERKOWITZ et al., Defendants-Appellants (St. Elizabeth Hospital, Defendant).
    Fifth District
    No. 5 — 88—0768
    Opinion filed March 13, 1991.

      GOLDENHERSH, J., concurring in part and dissenting in part.
    Appeal from the Circuit Court of St. Clair County; the Hon. Roger M. Scrivner, Judge, presiding.
    Theodore J. MacDonald, Jr., and J. Todd Hayes, both of Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

We affirm the judgment entered on the verdict of a St. Clair County jury that found defendant liable for medical malpractice, awarding plaintiff $79,975.80 in actual damages, but we reverse the judgment for $15,000 in punitive damages.

We hold that the circuit court properly imposed as a sanction for violating Supreme Court Rule 220 (134 Ill. 2d R. 220) an order that barred defendant’s expert from testifying, and we hold also that comments made during voir dire were not sufficient to cause the entire panel of veniremen to be discharged. However, we further hold that the evidence did not support the submission of the issue of punitive damages to the jury.

Defendant, Dr. Wallace Berkowitz, performed a tonsillectomy on plaintiff, Florence Huelsmann.

After plaintiff returned home, she had several profuse bleeding spells.

During one middle-of-the-night spell, her husband called defendant.

According to plaintiff’s husband, defendant advised plaintiff to gargle with hydrogen peroxide, but did not advise her to go directly to the hospital.

Defendant contradicted this, however, and testified that he told plaintiff’s husband to take plaintiff to the hospital, and that defendant waited up two hours for the emergency room personnel to call him, but when no call came, he went back to sleep.

Defendant left on vacation the next day.

Several days later, plaintiff was taken to a hospital by her husband. A blood clot was removed from her throat and her throat was treated to prevent bleeding. She was given a shot to prevent shock and was transfused with two units of blood.

She returned home.

Again, she awoke, bleeding. This time, she went to a different hospital. She was admitted and a large ulcer was found where her tonsils once had been.

Treated, the ulcer healed and the bleeding stopped.

Post-bleeding, she was diagnosed as having a dysthymic disorder, a depression due to her profuse bleeding.

I. RULE 220

Plaintiff produced an expert witness who testified that a patient who starts bleeding after a tonsillectomy should be taken to a hospital emergency room and examined immediately.

On the other hand, Dr. Ingram, defendant’s expert, was barred from testifying pursuant to Supreme Court Rule 220(c) (134 Ill. 2d R. 220(c)) because defense counsel failed to answer sufficiently plaintiff’s Rule 220 interrogatories.

This is the interrogatory and the answer.

“Question: State the conclusions and opinions and bases therefor of each testifying expert you expect to call at trial.

Answer: Based upon Dr. Ingram’s education and training and medical authorities, it will be his opinion that the care and treatment rendered by Dr. Berkowitz and his follow-up care thereafter was appropriate and did not deviate from accepted medical standards.”

Did this answer comply with Rule 220(c)?

We hold that it did not.

The question of whether a party has properly answered interrogatories is within the discretion of the trial court and will not be disturbed unless that discretion is improperly exercised. Clay v. McCarthy (1979), 73 Ill. App. 3d 462, 392 N.E.2d 693; Bradfield v. Illinois Central Gulf R.R. Co. (1985), 137 Ill. App. 3d 19, 484 N.E.2d 365.

Supreme Court Rule 220(c)(1) requires that a party retaining or employing an expert witness shall be required to state the subject matter on which the expert is expected to testify and his conclusions, opinions and bases therefore, as well as his qualifications. 134 Ill. 2d R. 220(c)(1).

Defendant argues that the committee comments to Rule 220 (134 Ill. 2d R. 220, Committee Comments, par. (c)) state that the answer is meant to be basic and that further modes of discovery, such as depositions, were contemplated by Rule 220.

We acknowledge that a Rule 220 answer is meant to be basic; nevertheless, defendant’s answer was too basic.

No case has been found that deals with the degree of specificity required of an answer to a Rule 220(c) interrogatory.

We look, therefore, to other cases that deal with the specificity of answers to other types of interrogatories in order to determine the general spirit of the disclosure rules.

Singer v. Treat (1986), 145 Ill. App. 3d 585, 495 N.E.2d 1264, dealt with answers to interrogatories that had asked: (a) the names and addresses of treating physicians; (b) the names of those who took X rays; (c) if plaintiff had been a patient of a hospital; (d) if plaintiff was the owner of any vehicle involved in the collision; and (e) the expenses'and losses claimed as a result of the collision. The answers were “[a]ll information will be sent under a separate cover upon receipt from client,” and “[investigation continues.” The answers were condemned, the court saying that the rules required answers to be fully given in good faith.

Singer shows the spirit of the rules — full and meaningful discovery.

One of the practical purposes of an answer to a Rule 220 interrogatory is to provide a basis to determine the necessity of deposing an expert. If answers that in completeness conform to those contemplated by the rule, further discovery of that expert may not be necessary, thereby saving time and expense. But, in addition, if further discovery is to be pursued, the responses allow preparation for the expert’s deposition. Without knowledge of the general factual opinion held by the expert, opposing counsel is precluded from adequately preparing for his examination of the expert. With adequate preparation, the questions can be brief and to the point, again saving time and money. We note that in this case defendant’s expert lived in the Virgin Islands, meaning plaintiff would have to spend a lot of money and time to “fly blind” to the Virgin Islands and take the expert’s deposition without knowing the basis for the opinion.

In this case, although the answer disclosed the identity of the expert, it effectively excluded the expert’s opinions and the basis for his opinion.

We believe that the answer was no more than a blanket statement that defendant’s expert would testify favorably for the defendant. It is impossible to determine what opinions were to be expressed by the expert. This response does not disclose the factual basis of the expert’s opinion. There is no substance to this purported “answer.”

Was barring the expert an appropriate sanction?

We believe under these circumstances it was.

The rule says that failure to make disclosures will result in disqualification of the expert as a witness. 134 Ill. 2d R. 220(b)(1).

The decision to allow or exclude expert testimony is a matter committed to the sound discretion of the circuit court. The discretion given to the circuit court is broad and will not be interfered with unless it appears to have been abused. Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 507 N.E.2d 1213.

In determining whether to allow or exclude the expert testimony, the circuit court may consider the following factors: surprise to the adverse party, the prejudicial effect of the testimony, the nature of the testimony, the diligence of the adverse party, the timely objection to the testimony, and the good faith of the party calling the witness. Renfro, 155 Ill. App. 3d at 162, 507 N.E.2d at 1231.

Rule 220 contemplates good faith on the part of all litigants. 134 Ill. 2d R. 220, Committee Comments, par. (b).

Here, the sanction was required because of defendant’s own conduct.

Plaintiffs attempted but could not get defendant’s compliance through supplemental interrogatories and motions to compel before trial. During trial, the circuit court itself inquired and found that defendant knew the basis of the expert’s opinion 18 months before trial, but never revealed the basis to plaintiff, in fact, answered interrogatories one year after they were propounded, and had told the expert that he preferred to correspond by telephone, not in writing.

This reflects negatively on the question of good faith.

. There was no error, under these circumstances, in barring the testimony of defendant’s expert.

II. VOIR DIRE

Defendant claims that he was denied a fair trial because of comments made by two veniremen, and because the circuit court failed to discharge the entire venire present when the comments were made.

There were two episodes of comments, and both criticized the caliber of medical care defendant had provided on other occasions.

Episode No. 1

“THE COURT: You know him as a patient of his?

JUROR: I was a patient of his.

THE COURT: You are or were?

JUROR: Sir?

THE COURT: You were?

JUROR: I was years ago.

THE COURT: What did he do for you?

JUROR: I had hemorrhaging of the nose, and I had changed doctors and had the problem corrected.

THE COURT: You say you changed doctors. You were not satisfied with his treatment?

JUROR: Right.

THE COURT: Okay. What did you feel the problem was, sir?

JUROR: I had — for no reason at all I’d start hemorrhaging and I had to go to the emergency room and they couldn’t stop it, I finally had to have surgery.

THE COURT: All right. Well, let me ask you this, are you going to have a problem in this case?

JUROR: Well, I didn’t have a happy experience on the first occasion, I finally had to have it taken care of with another doctor.

THE COURT: Well, the question is from personal experience with this doctor is it going to be so overwhelming that you just say ‘Doc, I just don’t think you did good?’

JUROR: I’d probably have trouble with that.

THE COURT: Okay. We’ll excuse you. You can go back to the jury room, sir.”

Episode No. 2

The second episode stands as proof that every now and again something can happen in trial that can make anyone bolt upright.

After the first episode everyone went back to their own business, the excused juror to the jury room, the court and counsel to the business of asking voir dire questions.

A panel member was being questioned. Down the box sat the others.

Suddenly, from down the box, a panel member who was not being questioned and never had been questioned, who simply had been sitting silently, announced:

“JUROR: I’ve been thinking, Dr. Berkowitz killed my brother.”

The next words were spoken by the court:

“THE COURT: What is your name, sir?

JUROR: He was talking about Dr. Berkowitz, he let my brother die. I didn’t know who it was—

THE COURT: You’re Mr. who?

JUROR: Mr. (name deleted.)

THE COURT: We’ll excuse you sir. You’re juror number what?

JUROR: 22

THE COURT: We’ll excuse you sir.

JUROR: Sorry.

THE COURT: That’s fine. Thank you.”

Defendant concedes that the first episode alone would be insufficient to deprive him of a fair trial, but claims that the two incidents operating together were so prejudicial that they deprived him of a fair trial. He argues it was not enough to excuse these veniremen, and that no cautionary instruction ever could overcome the prejudice of these incidents to him, and therefore, the only remedy was to recuse the entire venire.

The circuit court has the discretion to determine whether jurors can weigh the evidence impartially, and that determination will not be set aside unless it is against the manifest weight of the evidence. Parson v. City of Chicago (1983), 117 Ill. App. 3d 383, 453 N.E.2d 770.

In People v. Del Vecchio (1985), 105 Ill. 2d 414, 429, 475 N.E.2d 840, 847, veniremen heard another’s personal opinion of the accused. Del Vecchio held that the jury had not been tainted. Taint would have resulted only if she who had expressed her preconceived opinion was allowed to remain on the jury.

The record does not establish that the panel members were prejudiced against the defendant, much less that prejudice was pandemic.

In this case, both the juror in episode number one and the juror in episode number two were discharged. The remaining veniremen each said they could be fair.

Trial judges, no less than trial lawyers, rely on instinct in assessing veniremen, their answers and whether they should serve as jurors. In this case, the trial judge had the opportunity to see and hear the veniremen. He concluded that the statements had not prejudiced them and was convinced that they could be fair and impartial. There is nothing in the record from which we can draw any inference that he was wrong. There is nothing in the record to show that he abused his discretion.

III. PUNITIVE DAMAGES

In the alternative, defendant argues that the evidence did not support the submission of the issue of punitive damages to the jury. We agree.

Whether punitive damages may be awarded is a question of law for the court. (J.I. Case Co. v. McMartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 516 N.E.2d 260.) A circuit court’s determination will not be disturbed absent an abuse of discretion. Obermaier v. Obermaier (1984), 128 Ill. App. 3d 602, 470 N.E.2d 1047.

However, punitive damages may only be recovered when the wrongful act complained of is characterized by fraud, malice, oppression, willfulness, or wantonness. A conscious disregard for the safety of others constitutes willful and wanton conduct and gives rise to the imposition of punitive damages. A court may not allow the jury to award punitive damages unless it finds defendant acted with fraud, actual malice, deliberate violence or oppression, or acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others. Kenner v. Northern Illinois Medical Center (1987), 164 Ill. App. 3d 366, 517 N.E.2d 1137; Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.

The evidence in this case does not demonstrate a conscious disregard for plaintiff’s safety or knowledge that defendant’s medical treatment imposed an increased risk of serious harm. A defendant is guilty of willful and wanton conduct when he demonstrates knowledge that his conduct poses an increased risk of serious physical harm to another. Albers v. Community Consolidated No. 204 School (1987), 155 Ill. App. 3d 1083, 508 N.E.2d 1252.

The evidence, therefore, did not support the submission of the issue of punitive damages to the jury. The punitive damages awarded, therefore, are reversed.

Defendant lastly claims that all these errors cumulatively denied him a fair trial and relies on Bargman v. Economics Laboratory, Inc. (1989), 181 Ill. App. 3d 1023, 537 N.E.2d 938. We reject this claim.

The judgment on the verdict for the plaintiff and against defendant, Wallace Berkowitz, M.D., assessing plaintiff’s damages as being $79,975.80 is affirmed.

The judgment and verdict' for punitive damages is reversed.

Affirmed in part; reversed in part and vacated in part.

HARRISON, J., concurs.

JUSTICE GOLDENHERSH,

concurring in part and dissenting in part:

I respectfully dissent in part. While concurring in the court’s treatment of the compensatory damage award and the discretionary exclusion of defendant’s expert under Rule 220, I disagree with the majority on the question of punitive damages. As noted by the majority, whether punitive damages should be submitted to the trier of fact is a question of law to be considered by the court, and the circuit court’s determination on that involves an exercise of its discretion that will not be overturned absent abuse. (J.I. Case Co. v. McMartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 516 N.E.2d 260; Obermaier v. Obermaier (1984), 128 Ill. App. 3d 602, 470 N.E.2d 1047.) On the basis of the evidence presented and the applicable standards, as set forth in the majority’s opinion, the trial court apparently decided that a trier of fact could reasonably find that defendant’s acts could be construed as involving fraud, actual malice, deliberate violence or oppression, wilfulness or such gross negligence as to indicate a wanton disregard of the rights of others. The decision whether to award punitive damages is then a question left to the trier of fact and that decision should not be disturbed absent an abuse of discretion. (See Beaton & Associates, Ltd. v. Joslyn Manufacturing & Supply Co. (1987), 159 Ill. App. 3d 834, 512 N.E.2d 1286.) In the instant case, the trier of fact had adequate evidence before it to award punitive damages, just as the trial court had an adequate basis to allow the question of punitive damages to be submitted to the trier of fact.

There was in the record sufficient evidence for a determination that punitive damages were appropriately submitted to the jury and adequate evidence for that jury to award punitive damages. Plaintiffs’ evidence indicated that Mr. Huelsmann phoned the defendant at his home, told defendant that his wife was throwing up large amounts of blood clots, and was bleeding, and although defendant requested to speak to Mrs. Huelsmann, she was unable to talk. Defendant’s advice was to gargle with hydrogen peroxide. Defendant Berkowitz indicates that this was part of the discussion, but that he also suggested going to the emergency room of St. Elizabeth’s Hospital. Defendant Dr. Berkowitz testified that he waited for two hours for a return call as to Mrs. Huelsmann’s condition and never received one, but did not check either at the hospital or at the Huelsmann home to determine his patient’s condition. Defendant then left town on a previously scheduled trip; there is evidence in the record that Dr. Berkowitz’s absence was not communicated to plaintiff, nor that plaintiff was given the name and phone number of a physician covering Dr. Berkowitz’s calls.

Expert testimony was presented concerning the standard of care that should have been provided to Mrs. Huelsmann. Dr. Dobbs indicated that bleeding to the extent of death can result from a tonsillectomy and, specifically in this case, indicated that when a patient is spitting up blood and choking, she should be directed to a doctor immediately for care. He also testified that Dr. Berkowitz should have told this patient to go to the nearest emergency room immediately. As to Dr. Berkowitz’s trip, there was evidence that the proper standard would have been to inform his patient that he would be out of town and indicate the doctor who would be on call to service that patient as well as indicating how to reach that doctor.

Evidence submitted to the jury on activities after the contact with Dr. Berkowitz gave a further basis for a submission of a punitive case to the jury. The evening after contacting Dr. Berkowitz, Mrs. Huelsmann again suffered coughing up blood and choking. At this time, they were unable to reach the doctor, as he had left town. They discovered this fact the next morning when phoning Dr. Berkowitz’s office. Mr. Huelsmann took her to the emergency room at St. Joseph’s Hospital in Breese on Tuesday night, where treatment included removing a blood clot from her throat, treatment to prevent further bleeding, a shot to prevent her from going into shock, and transfusion with two units of blood. She was then admitted to the hospital for an overnight stay and released the next afternoon. A subsequent bleeding episode a few days later resulted in a return visit to St. Joseph’s Hospital, from which she was sent to St. Elizabeth’s Hospital and further treated to stop the bleeding. The hospital stay ran from Saturday until Wednesday, during which time she was treated with pain medication and mild tranquilizers for her nerves.

Plaintiff was unable to return to her employment for approximately a week, and upon her return performed only half-day service for the first couple of weeks. She testified of inability to sleep due to nightmares about bleeding and fear of death and received medication for nerves and sleep inducement. She was subsequently treated for anxiety and depression by Dr. Fazle Yasin, to whom she complained of hyperactivity, irritability, panic feeling, inability to cope with stress, excess crying, insomnia, weight loss, inability to work, a feeling of a loss of trust, and a decreased energy level. The diagnosis was depression. Plaintiffs’ evidence further indicated improvement of plaintiff’s condition but an extended prognosis of another year to reach her presurgical condition.

Given the standards cited above for submission of a punitive damage question to the trier of fact and the evidence submitted to the jury, the trial court’s determination that the punitive damage question should be submitted was appropriate. The trial court's determination had a factual basis, and the trier of fact’s decision to award punitive damages did not constitute an abuse of discretion.

For the above-stated reasons, I dissent from the reversal of the judgment for punitive damages.