author: Mr. JUSTICE KUNCE Mr. PRESIDING JUSTICE TRAPP

text:
    Insurance Company of North America, Plaintiff-Appellee, v. J. L. Hubbard Company, Defendant-Appellant.
    (No. 12150;
    Fourth District
    October 24, 1974.
    TRAPP, P. J., dissenting in part.
    Ryan and Cini, Ltd., of Mattoon (Willis P. Ryan, of counsel), for appellant.
    Armstrong, Winters, Prince, Tenney & Featherstun, of Decatur (Roswell C. Prince, of counsel), for appellee.
   Mr. JUSTICE KUNCE

delivered the opinion of the court:

Plaintiff, Insurance Company of North America, issued a homeowners policy, effective March 15, 1967, to Frank and Margaret Hubbard (hereinafter the insured) through its Decatur agent, the defendant, J. L. Hubbard Company, who has no relationship to the insured. In addition to other coverage, the policy included a valuable personal articles endorsement on fine arts owned by the insured. The policy was to expire by its own terms on March 15, 1970. The insured suffered a loss by burglary in March, 1971.

Prior to expiration, communication concerning renewal between plaintiff and the defendant indicated that plaintiff desired two policies, one covering the dwelling and the other the valuable personal articles then covered by endorsements; and plaintiff also requested updating and a revised schedule of articles to be insured. The defendant discussed this with the insured in January, 1970, and after March 15,1970; however, the information was not obtained.

On March 12, 1970, the defendant’s manager, Mr. Hughes, notified the insured that coverage was bound and that a new policy would be issued as soon as Karl Peterson, an employee and officer of the defendant, had completed the review of the schedule and had updated it in accordance with the insured’s wishes. On the same date, the manager wrote to plaintiff noting coverage of the old policy would expire March 15, 1970, and that the defendant wanted to be sure there was binder coverage on the policy pending the submission by the defendant of the updated renewal information.

On April 10, 1970, the defendant again wrote the insured that the coverage was bound under the policy and that a new policy would be issued as soon as a review of the schedule had been made and updated. A copy of this letter was forwarded to plaintiff requesting that the homeowners’ policy be issued without the valuable personal articles endorsement stating that the defendant had been unable to meet with the insured to audit all of the valuable items to be covered, and noting that a separate policy was to be issued. The postscript asked whether or not the homeowners’ policy could be released without the valuable personal articles endorsement. A copy of this letter and that postscript was sent back to the defendant by plaintiff stating: “Since it has been 2 years since coverage was increased, please advise if it is acceptable to increase the renewal to $90,000.” The $90,000 referred to insurance on the dwelling wh'ch had been $65,000 in the original policy and was to cover increased construction costs in event of necessary replacement. The evidence of plaintiff indicated that settling claims for less than replacement costs caused real problems in balancing out claim.

The defendant then responded to plaintiff by letter dated May 1, 1970, stating:

“I think that $90,000 is a little rich. Go ahead and renew it at $80,000, and I’ll discuss the increase with the insured.”

Plaintiff replied by memo dated May 7, 1970, as follows:

“We have your note requesting that we renew this policy for $80,000. We had a riplacement (sic) cost inspection made of this dwelling by our company engineers in 1968. At that time the replacement cost was computed at $93,700 and we .agreed to increase the coverage to $80,000.
“However, since that time construction costs have increased a. bare minimum of 10%, which would put replacement cost at about $103,000.
“Normally, we require 100% of replacement cost on all of these high valued homes. We are making an exception in this instance-but do not feel toe can write the coverage for less than $90,000. Your cooperation in giving us the go ahead at this figure will be appreciated.” (Emphasis supplied).

This memo was signed by Jim Daily. The Peoria office of plaintiff received no reply concerning this memo. Therefore, on June 22, 1970, Daily sent a memo to the defendant, attention Karl Peterson, which stated:

“As per previous correspondence, please advise if we are to proceed with renewal for $90,000. If we do not hear from you by 7/2/70 we will assume coverage is being placed elsewhere and the binder will terminate.”

Daily selected July 2, 1970, as the termination date because this was in accordance with standard company practice to allow 10 days notice of termination of a binder on a policy. Daily testified he meant the memo of June 22, 1970, to apply to all coverage under the old policy.

The defendant’s manager, Hughes, testified that the words “Karl” and “Linda” written at the top of the memo from Daily dated June 22, 1970, were in Hughes’ own handwriting. Hughes was routing that memo to his secretary and the account executive for the insured. Hughes testified that he could not say what happened to that memo after he initialed it and passed it on. He first found the memo in the defendant’s, commercial file after the loss in March, 1971. While testifying as witness for plaintiff,' Hughes stated: “I did not follow the underwriter’s instructions to terminate this policy or binder. To my knowledge no' one in the agency followed the underwriter’s instructions to terminate this binder.”

Nothing more was done concerning this policy after the filing of the memo in the commercial folder. No schedules were completed by either the defendant or the insured as had been contemplated and no request of plaintiff for renewal at any amount made.

On or about March 19 or 20, 1971, the insured returned to his home to find it had been burglarized. Some of the items supposedly covered by the policy in question were among the missing articles. The value of the stolen property was set at $86,060. The insured notified the defendant immediately of his loss.

On the first working day following the loss, Hughes contacted a Mr. Humphrey and a Mr. Davis of plaintiff’s Peoria office. Hughes had been unable to locate the agent’s copy of the renewal policy. Humphrey then checked the Peoria office’s files and found their file copy of the June 22, 1970, memo. Wanting to have insurance in effect for future contingencies, a new binder was written providing for $90,000 coverage on the dwelling and for $150,000 coverage on fine arts. This policy was typed about May 12, 1971, but back-dated to be effective March 22, 1971. It included updated information that had been requested but not received during the first half of 1970.

Plaintiff refused to pay the loss sustained by the insured in the burglary. As a result of this refusal, the insured filed suit against plaintiff in the circuit court of Macon County, alleging that an insurance contract was in force and effect between the insured and plaintiff on the date of the loss, and that the policy covered this valuable personal property. Plaintiff made a demand on the defendant to defend the suit brought by insured and to pay any judgment that might arise from that suit. The defendant refused to comply with this demand.

After receiving the defendant’s refusal, plaintiff brought this action under section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 57.1), for a declaratory judgment that would require the defendant to defend the action brought by the insured against plaintiff, and to indemnify plaintiff for any liability and expenses plaintiff might incur in the insured’s suit. Plaintiff alleges that the defendant violated the agency agreement between the defendant and plaintiff in not following the instructions of plaintiff to provide information necessary to renew the insured’s policy, and also failed to notify the insured that the insurance binder issued by the defendant was terminated July 2, 1970.

The trial court made oral findings that the original policy with its endorsements terminated on July 2, 1970, and that the policy did not •cover the loss sustained by the insured in March, 1971. A written judgment of October 11, 1972, in the declaratory judgment action found that as between plaintiff and defendant, the liability for any payment for the loss was with the defendant. The trial court then ordered defendant to indemnify plaintiff for any judgments, interest, costs, claims and expenses, including attorney’s fees, that might arise out of, or be incurred in defending the pending action by the insured.

Each party cited Continental Insurance Co. v. Clark (1904), 126, 100 N.W. 524; Altrocchi v. Hammond, 17 Ill.App.2d 192, 149 N.E.2d 646, Annot, 35 A.L.R.3d 792 (1971), and agrees upon the statement of the law that if an insurance company would have accepted a risk had it been requested by its agent to do so, and the only inadvertence of the agent is failure to advise the company of the issuance of a policy or binder, the agent is generally liable only for nominal damages, but where the company is offered the risk, refuses to accept it, and directs the agent to cancel and the agent fails to do so, the agent, not the company, is liable for the loss under the policy or binder. They disagree, however, as to its application to these facts.

The defendant appeals this order contending that misplacement of the June 22, 1970, memo was not the proximate cause of the loss that plaintiff must pay, and therefore it is not entitled to indemnity. Additionally, defendant contends that the Illinois law on the subject provides no right of indemnity for any costs, claims and expenses, including attorney’s fees, in defense of the insured’s suit against plaintiff.

Plaintiff’s position is that this is a case where a principal has been exposed to a loss and litigation expenses because its agent failed to exercise reasonable diligence in the transaction of the principal’s business entrusted to the agent. Additionally, it contends that the agency failed to follow the reasonable and lawful instructions given it by the principal to terminate an insurance binder on a risk the principal had refused to accept, and that as the result of the failure of defendant to promptly perform its duties and follow instructions, the existence of possible liability on behalf of the principal was not discovered until a material loss occurred.

Defendant argues that plaintiff was not prejudiced by the defendant’s failure to notify the insured of termination of the binder, since the loss plaintiff will have to pay is the same now as it would have been had the binder been completed at $90,000 in accordance with plaintiff’s wishes. Therefore, defendant reasons its acts in failing to terminate or update the policy and increase the coverage to $90,000 were not the proximate cause of the loss to the company, and that the proximate cause of the loss was the burglarizing of the home of the insured. Plaintiff, to the contrary, contends that the loss is not one which it would have had to sustain if the defendant had followed its instructions by cancelling the binder, i.e., that the defendant’s omissions were the proximate cause of the loss.

The defendant’s argument is grounded on the doctrine expressed in the line of cases holding that a failure to inform the insurer of an outstanding binder results in only nominal damages against the agent if the binder covers insurance of the type the insurer wiU cover and no prejudice wiH result to the insurer. Annot., 35 A.L.R.3d 821 (1971).

Defendant first argues that plaintiff was not prejudiced by the delay of the knowledge that plaintiff was on the risk, contending that the risk was acceptable to plaintiff as evidenced by the issuance of a new policy covering Kke risks. The defendant further contends that the fact it mislaid the memo of June 22, 1970, was not the proximate cause of the loss. However, it is to be noted that the policy was written by plaintiff after the loss with coverage to start on March 22, 1971, and was written in accordance with and consistent to its repeated demands for coverage in the amount of $90,000 made before the loss. At no time after the policy expired on March 15, 1970, did plaintiff indicate it would accept the risk in the first instance for a lesser amount. Plaintiff accepted the risk on March 22, 1971, only after the terms as modified and proscribed by plaintiff twice before July 2, 1970, were agreed to and accepted by the defendant and the insured.

The authorities relied upon by the defendant denying indemnity, Julien v. Spring Lake Park Agency, Inc. (1969), 283 Minn. 101, 166 N.W.2d 355, Annot., 35 A.L.R.3d 815; Lumbermens Mutual Insurance Co. v. Bowman (l0 Cir. 1963), 313 F.2d 381, and Virginia Surety Co. v. Lee (1964), 55 Tenn. App. 501, 402 S.W.2d 714, were cases where the insurance companies involved were not advised that policies or binders had been issued; however, the evidence in each case indicated had the companies been advised, they would have authorized the policies. In the instant case, plaintiff knew of the binder, asked for renewal at the higher amount, and fixed a definite date for the binder to terminate prior to the loss in question. Other cases cited by the defendant denying indemnity, as where the wrong type of policy was issued, failure to include all property involved, or that the premises were unoccupied, stressed and emphasized that the company was not drawn into a risk that it refused to insure. Plaintiff had refused the risk offered, explained its reason of increased replacement costs, and to now compel it to pay the loss under this binder would, in effect, draw it into a contract to insure a risk that it had refused to accept. Plaintiff’s issuing the new policy at $90,000 after the loss was not evidence that the company would have accepted and assumed the risk on a policy with’ a lesser amount — as the defendant contends — it was the issuance of a policy that plaintiff had consistently proscribed and one the defendant had failed to write previously pursuant to plaintiffs instructions. The evidence clearly shows that plaintiff could not, and did not, deal directly with the insured under its past practice and custom with the defendant. Plaintiff was dependent upon the de* fendant to deal with the insured in either getting the dwelling coverage at $90,000, or in cancelling the binder. The defendant did neither, but failed to follow and then misplaced the directions received from plaintiff. The defendant did not comply with the instructions in writing a policy for $90,000 until after the loss occurred.

The defendant contends that there was no act or omission on its part that increased plaintiff’s risk by the defendant’s failure to follow up on the memo of June 22; yet, the defendant’s failure to cancel the binder in fact resulted in an action against plaintiff by the insured on a policy that plaintiff had refused — an action to which both parties agree plaintiff had no defense, aside from a contest as to the amount of the loss.

Plaintiff did show, by its subsequent action, that it would accept the type of risk involved, but indeed, it put a condition on its acceptance of the same and that was a minimum dollar amount. Insurance companies should have as much leeway in fixing minimum value coverage of policies written as they do to decide what coverage, type, or risk they will assume, with reasonable expectation that their agents will follow the instructions communicated to them, or be responsible for any losses occasioned by failure to do so.

The defendant strenuously contends that the reasoning of the Minnesota court in Julien should be followed; however, even though the facts may have been similar, there remained the distinct difference that the company in that case had never been notified that a binder was outstanding, nor had the company been given any opportunity to communicate any limitation or instructions to the defendant on the type or amount of the risk. Under such facts, the defendant could reasonably assume that upon notice to the company of the binder, it would be honored even though there was considerable delay in notifying the company that the binder had been issued. These are not the facts of the instant case. The defendant knew, as it had been twice advised by the company, that the company would not accept this risk in the amount for which the binder had been issued by the defendant. The defendant, under these facts, could not reasonably have been led to believe that the binder it issued would be honored by the company after the cutoff date of July 2, 1970. As between the two parties, the one who made it possible to occasion the loss must sustain that loss. The party that occasioned the loss in this case was the defendant. If an insurance agent negligently or wilfully fails to carry out the peremptory instructions of his principal, the insurer, he may be found hable to the insurer for the amount which it is required to pay under the policy in settlement of a loss. Germania Fire Ins. Co. v. Harraden, 90 Ill.App. 250; Annot., 35 A.L.R.3d 792, 797 (1971); 22 I.L.P. Insurance, § 75 (1956).

The appellate court recently discussed the liabilities of an insurance agent to its principal-insurer in Security Insurance Co. v. Mato, 13 Ill.App.3d 11, 298 N.E.2d 725. The facts of the case are very similar to the one at bar. The insurer had filed a declaratory judgment suit to determine whether it was obligated to provide coverage to two injured persons. It filed a third-party complaint against its agent, based on breaches of the agent’s duties to its principal and on negligence for indemnity in the event that the insurer would be found liable to the injured persons. In remanding the third-party complaint for trial, the court stated as follows at page 18:

“It is well established that a principal has a right of action against its agent for loss or damage resulting from the agent’s breach of duty or wrongful act. (Thorp v. Gosselin Hotel Co. (1965), 65 Ill.App.2d 107, 111), and that if an agent disobeys the reasonable and lawful instructions of the principal, causing loss or injury to the principal, the agent is liable for such damages. (Spalding v. Heideman (1901), 96 Ill.App. 405, 408; Johnson v. Illini Mut. Ins. Co. (1958), 18 Ill.App.2d 211, 216. See also Manufacturers Cas. Ins. Co. v. Martin-Lebreton Ins. (5th Cir. 1957), 242 F.2d 951, 953, cert. denied, 355 U.S. 870, 2 L.Ed.2d 76, 78 S.Ct. 121; Annotation, 35 A.L.R.3d 907.)”

Certainly, plaintiff’s instructions to the defendant were reasonable under all the circumstances and although they were not wilfully disobeyed by the defendant, the instructions were not carried out by the defendant by reason of its omissions and fault with an ultimate resulting loss to plaintiff. Accordingly, we conclude that the trial court correctly entered its order of indemnity for the plaintiff for any losses by reason of judgments rendered against it on the policies.

The next issue presented on this appeal is whether the court erred in ordering the defendant to indemnify plaintiff for any costs, claims and expenses, including attorney fees (litigation expenses), in addition to any judgments and interest arising out of plaintiff’s defense of the action pending in the trial court brought by the insured against plaintiff for loss suffered under the binders. These litigation expenses do not include those involved in this declaratory judgment suit. To support its contention that such expenses are recoverable, plaintiff relies on the language of the supreme court in Ritter v. Ritter, 381 Ill. 549, 46 N.E.2d 41, where the court in recognizing the well established rule that such litigation expenses are not allowable to the successful party in the absence of a statute, or in the absence of some agreement or stipulation specially authorizing them, pointed out an exception to this general rule where the wrongful acts of a defendant involve the plaintiff in litigation with third parties, or place him in such relation with others as to make it necessary to incur expenses to protect his interest. Plaintiff argues that the case before us comes within this statement and exception to the general rule. It further takes issue with the soundness of the holding of the appellate court in Reese v. Chicago, Burlington & Quincy R.R. Co., 5 Ill.App.3d 450, 283 N.E.2d 517, denying attorney fees in third-party litigation which case was cited and relied upon by the defendant to support its contention that such expenses are not allowable.

Since oral argument by the parties, the Illinois Supreme Court, at 55 Ill.2d 356, 303 N.E.2d 382, affirmed Reese, but did not comment on the litigation expense issue. Whether or not we now conclude that since the supreme court affirmed Reese in its entirety it is dispositive of the question of the right to Htigation expenses in the case before us and not allowable as an exception to the stated general rule, there are other sound reasons for so holding — first, the cases relied upon by plaintiff (including those cited in Ritter as the basis for the court’s statement of the exception to the general rule disallowing litigation expenses) were limited to factual situations where a party was forced to preserve property rights in real estate due to the wrongful acts of another which caused litigation expenses against third parties; secondly, the wrongful conduct of the defendants in these cases was characterized as either wilful, wanton, malicious, oppressive, or at least as being of an active tortious nature. This is the root of aH the cases where such expenses have been allowed under the exception beginning in 1853 with the case of Himes v. Keighblingher, 14 Ill. 469, where the court stressed the fact that the complaint did not rely on a mere non-feasance or neglect on the part of the defendant but was an action for a malfeasance — an affirmative wrongful act. The defendant’s conduct cannot be so characterized. The defendant’s conduct was that of an omission — a misfeasance at the most — and it could not be classed as either wilful, malicious, or actively tortious. Further, the action grows out of a contractual insurance agency relationship and not one involving the protection of real property rights. We agree with our colleagues of the appellate court when they pointed out in denying attorney fees in alienation of affection suits in Kniznik v. Quick, 130 Ill.App.2d 273, 264 N.E.2d 707, that the exceptions to the general rule that attorney fees and ordinary expenses of litigation are not allowable to the successful party should be narrowly construed and limited to the facts of these earlier cases and not extended.

For the reasons stated herein, the judgment of the trial court ordering indemnity to plaintiff by the defendant for any judgments and interest arising out of the action pending in the trial court brought by the insured as plaintiffs against defendant is affirmed; and that part of said judgment ordering indemnity to plaintiff by the defendant for costs, claims and expenses including attorney fees is reversed, and the cause is remanded to the circuit court of Macon County with directions to enter judgment consistent with this opinion.

Affirmed in part; reversed in part and remanded with directions.

SIMKINS, J., concurs.

Mr. PRESIDING JUSTICE TRAPP

dissenting in part:

I dissent from that portion of the opinion which reverses the award of costs of litigation and attorney’s fees by the trial court.

It is to be carefully noted that the attorney’s fees and expenses here concerned are only those arising from the litigation between the principal» as an insurer, and the insured. It is thus of a different category than that found in the rule of Ritter v. Ritter, 381 Ill. 549, 46 N.E.2d 41, and House of Vision, Inc. v. Hiyane, 42 Ill.2d 45, 245 N.E.2d 468, which concerned the effort of the successful party to litigation to recover attorney’s fees from the unsuccessful party to that litigation.

The principle opinion relies upon Reese v. Chicago, Burlington & Quincy R.R. Co., 5 Ill.App.3d 450. 283 N.E.2d 517, affirmed, 55 Ill.2d 356, 303 N.E.2d 382, wlr'ch held that litigation expenses are recoverable only when provided by the spec'fic terms of a written contract of indemnity.

While the operative language in the complaint and in the order of the trial court is that defendant shall “indemnify” the plaintiff, it seems clear that the liability is to pay damages suffered by the principal for breach of contract rather than for indemnity. As stated in Black’s Law Dictionary, indemnity arises through a collateral contract by which one person engages to secure another against an anticipated loss or to prevent him from being damnified by the legal consequences of an act or forebearance on the part of one of the parties, or of some third person.

Apart from specific contract, an obligation to indemnify arises only in the category of cases where the courts find “implied indemnity” as an exception to the rule, that there is no contribution among joint tortfeasors. The opinion in Gulf, Mobile ir Ohio R.R. Co. v. Arthur Dixon Transfer Co., 343 Ill.App.2d 148, 98 N.E.2d 783, discusses “implied indemnity” in the context that the indemnitee has been negligent to a degree sufficient to create legal liability. By reason of such liability the indemnitee is already subject to a suit by the injured party and no new burden of litigation costs is created by the acts of the indemnitor. In Chicago & Illinois Midland Ry. Co. v. Evans Construction Co., 32 Ill.2d 600, 208 N.E.2d 573, the court stated that it was necessary to draw a qualitative distinction between the indemnitee, whose negligence is passive, and an indemnitor, whose negligence is active.

The cited Reese explicitly concerns indemnity between joint tort-feasors. Here, the plaintiff seeks to recover fees and costs of litigation which arise from a breach of contract duty by the agent, and he is not seeking an “implied indemnity” as one liable for negligence as a joint tort-feasor.

Restatement (Second) of Agency, § 399 (1958), sets forth the remedies of the principal where the agent has violated his duties. The Comment directed to clause (h) says:

“If an action is brought against the principal by third persons because of conduct by an agent or a subagent for which, as between the principal and the agent, the agent is responsible, the principal can, under the provisions of many modern statutes, cause the agent to be made a party to the action. Apart from statute, in such cases, if the principal notifies the agent to defend and the agent fails to defend, the principal is entitled to expenses thereafter incurred by him in a reasonable defense or compromise of the action.”

Such statement receives some recognition in Ritter v. Ritter, 381 Ill. 549, 554-55, 46 N.E.2d 41, 44, wherein the court said:

“While it is recognized that where the natural and proximate consequences of a wrongful act have been to involve the plaintiff in litigation with others, there may be a recovery in damages against the author of such act, measured by the reasonable expenses incurred in such litigation (Choukas v. Severyns, [3 Wash.2d 71, 99 P.2d 942, (1940)], yet the rule is equally well established that where an action based on the same wrongful act has been prosecuted by the plaintiff against the defendant to a successful issue, he can not in a subsequent action recover, as damages, his costs and expenses in the former action.” * # #

That opinion cited Philpot v. Taylor, 75 Ill. 309; McEwen v. Kerfoot, 37 Ill. 530, and Himes v. Keighblingher, 14 Ill. 469, and distinguished them from those cases wherein the successful litigant sought to recover attorney’s fees from his unsuccessful adversaries. In such cited cases, persons acting as agents wrongfully delivered instruments concerning real estate which the owner was required to defend against. Since such defenses prevailed, the damages sustained were substantially the costs of litigation. While not presently an issue here, it is apparent that in those cases where a principal successfully defends a claim made by a third party because of the acts of the agent, the principal would not be able to recover from such agent the only substantial damages sustained, i.e., attorneys fees and costs of litigation.

No significant reason is stated for distinguishing between actions upon rights under a contract and those actions necessaiy to protect rights in real estate. Such action may be equally necessary and equally substantial. That distinction is found as dicta in Kniznik v. Quick, 130 Ill.App.2d 273, 264 N.E.2d 707. That suit was for alienation of affections and the plaintiff sought attorney’s fees incurred in his actions for divorce and child custody. The opinion speaks of a public policy found in “An Act relating to the damages recoverable in actions for alienation of affections” (Ill. Rev. Stat. 1971, ch. 68, pars. 34 — 37), expressly limiting damages recoverable in such actions. That Act excludes many elements of damages and forbids exemplary damages. Such opinion had no occasion to consider elements of damage for the violation of contract duties as an agent here at issue. Similarly, no substantial reason is stated for limiting the recovery of such legal expense to wilful or malicious acts of the agent.

The judgment of the trial court should be affirmed.


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD

license: Public Domain

text:
    Hugh Watson, d/b/a Empire Steel, et al., Plaintiffs-Appellees, v. Auburn Iron Works, Incorporated, et al., Defendants-Appellants.
    (No. 73-110;
    Second District
    October 16, 1974.

      Edmund M. Tobin and Rudnick, Wolfe, Snyderman & Foreman, both of Chicago, for appellants.
    Mirabella, Facktor, Mirabella & Kincaid, of Wheaton, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiff Hugh Watson, d/b/a Empire Steel, sued defendant Auburn Iron Works (here referred to as Auburn) claiming a mechanic’s lien on property known as “Walnut Creek” in Count I, and seeking a money judgment from numerous other open jobs between the parties in Count II. During the trial, the court allowed the plaintiff to file a third amended complaint adding the general contractor, K. M. Knight Construction Co., as a party defendant. Following the trial, the court entered judgment on Count I against Auburn, the general contractor and other parties interested in the property in the amount of $4,027.29 and disallowed a counterclaim which had been filed by Auburn. The court entered judgment on Count II in favor of Watson against Auburn in the amount of $9,187.15. The defendants appeal.

Watson and Auburn had a long-standing working relationship prior to this dispute. Auburn would bid the jobs and orally sublet the steel erecting to Watson. In this case, Auburn submitted a bid for nine buildings in the “Walnut Creek” project. The bid contemplated that Auburn would fabricate the steel and Watson would erect the steel and bar joists. Watson’s price quoted to Auburn was on the basis of the original bid for nine buildings.

However, the contract actually entered into by Auburn and K. M. Knight Construction Company, the general contractor, was for steel work for only three buildings at a price of $58,890. Nonetheless Auburn and Watson orally agreed that Watson should do the steel erecting, receiving payment by monthly installments for floors completed. Watson testified that he believed the contract price to be $33,000, plus extras. Anthony Petro, the owner of Auburn, however, set the contract price at approximately $25,000.

Watson began performance on April 7, 1970. He testified to his belief that well after the start of the performance the three buildings were to be only the first phase of the nine-building project but that he was thereafter informed that the three buildings were all that were contemplated. Watson continued to do substantial work until June 8,1971, when further work was suspended pending receipt of payment for work completed. He had received no monthly installments to that date.

Anthony Petro, president of Auburn, testified by contrast that nonpayment was not the main reason why plaintiff walked off the job. He testified that Watson told him that he was tired of the job and wanted out and had complained that the job conditions were not right, and, also, that Watson told him that he had been unsuccessful in obtaining the approval of the general contractor and the architect for the performance of extras. At the time of the suspension of work, Watson had completed only 20% of the work with expenditures of $9,898.50.

While Watson was off the job, Auburn hired another erector who worked until plaintiff resumed work on July 22, after receiving a partial payment of $2,500. Watson’s only other receipts of payment were $1,500 on August 18 and $3,000 on September 2.

On September 10, Auburn was notified by telegram that the erection was not acceptable, and on October 6, notice was given that the erector’s portion of the contract was terminated. Nonetheless, Watson worked until October 7, when the general contractor dismissed him from work. There was disputed testimony as to the quality of plaintiff’s work.

After October 7, another company was called in to complete the steel erection. The total paid to steel erectors for the job, other than that paid to the plaintiff, amounted to $25,376.

The trial commenced in January of 1972. The general contractor was subpoenaed to testify as a witness and during this portion of the case, defendants moved to dismiss for failure to join the contractor as a party defendant. The motion was denied and at this time plaintiff was allowed to file a third amended complaint and issue summons against the general contractor as a defendant. All defendants were allowed 28 days to plead concerning the amended complaint and the trial was reconvened on April 19, 1972.

As to Count I, defendants contend that plaintiffs had no damages, that the court erred in failing to dismiss the complaint upon defendants’ motion for failure to join the general contractor as a party defendant before substantial progress in the trial, and in then proceeding with the trial, and that the court erred in denying Auburn’s counterclaim based upon its charge that Watson had wrongfully walked off the job and in allowing the mechanic’s lien. The sole issue raised as to Count II is the refusal of the court to detail its verdict which defendants claim cannot be explained on the evidence, and this issue is also raised as to Count I.

Defendants argue that under any legal theory used to measure damages plaintiff may not recover under Count I.

Defendants argue that the proper measure of damages for breach of a construction contract is the difference between the cost of construction and the fair market cost of the agreed construction. (Citing Ross v. Danter Associates, Inc. (1963), 102 Ill.App.2d 354, 370; Bertram v. Bergquist (1910), 153 Ill.App. 43, 45; County of Schuyler v. Missouri Bridge and Iron Co. (1912), 256 Ill. 348, 352-353.) However, in each of cited cases the contractor breached his contract by refusing to perform and the owner was suing. Here, the roles are reversed. The contract was breached by Auburn’s nonpayment of monthly installments for work performed as per the contract. Consequently this particular measure of damages relied upon by the defendant is inapplicable.

Defendants claim that the court erred in finding that plaintiff had an excuse to walk off the job and in finding that plaintiff’s rights were established as of June 8 rather than at the time of the termination on October 7 when the general contractor forced plaintiff off the job. Additionally, defendants argue that even if plaintiff had an excuse by virtue of Auburn’s nonpayment of monthly installments, his resumption of work on July 22 either operated as a waiver or established the nonpayment as nothing more than an excuse to get out of a bad business deal.

Defendants’ contentions are without merit. Auburn’s failure to make monthly installments was properly viewed as a material breach establishing plaintiff’s rights and entitling him to suspend work until payment was received. (J. J. Brown Co. v. J. L. Simmons Co. (1954), 2 Ill.App 2d 132, 143.) The facts reveal that plaintiff received $2,500 prior to resuming work on July 22. Subsequent payments were late, with $1,500 being received on August 18 and $3,000 received on September 2. Further, there was conflicting evidence regarding the character of plaintiff’s performance notwithstanding the general contractor’s termination of the erection contract on October 6. Under such circumstances, the resolution of tire question of fault, which also disposed of defendant’s counterclaim, was a matter properly made by the trier of fact. (Edward Electric Co. v. Metropolitan Sanitary Dist. (1973), 16 Ill.App.3d 521, 526.) The court’s finding on this issue is affirmed on the record before us.

Defendants next argue that the measure of damages, even assuming plaintiff was wrongfully prevented from completing the contract, is one which puts the injured party in as good a position as he would have been put by full performance of the contract. (Citing Ryan v. Miller (1893), 52 Ill.App. 191, 194; Restatement of Contracts §329, comment (a) (1932).) We find neither citation helpful to defendants under the particular circumstances of this case. Sirmlarly, section 333 of the Restatement of Contracts, also cited by defendants, cannot provide the answer standing alone. Section 333 provides in substance that damages for part performance be limited to the contract price less partial payments received; but that the loss to plaintiff must be deducted where performance would have resulted in a loss, with the burden of proof being on defendant to prove that the contract is a losing one. This section must be read in conjunction with section 346 of the Restatement of Contracts which appears specifically designed to govern damages for breach of a construction contract.

Section 346 of the Restatement of Contracts provides in pertinent part:

“(2) For a breach by one who has promised to pay for construction, if it is a partial breach the builder can get judgment for the installment due * * *; and if it is a total breach he can get judgment * * * for either
(a) the entire contract price and compensation for unavoidable special harm that the defendant had reason to foresee when the contract was made, less installments already paid and the cost of completion that the builder can reasonably save by not completing the work; or
(b) the amount of his expenditure in part performance of the contract, subject to the limitations stated in § 333.”

Here Auburn’s failure to make the monthly installments was, in fact, treated by plaintiff as a total breach when plaintiff’s men walked off the job on June 8. Plaintiff’s action was proper since it has been held that the failure to make monthly progress payments when due is a material breach of a contract entitling plaintiff to suspend work until the overdue payments were made. J. J. Brown Co. v. J. L. Simmons Co., (1954), 2 Ill.App.2d 132, 143.

With respect to the limitations on recovery, Comments g and h to Restatement of Contracts, section 346(2), offer guidance. Comment g provides:

“In order to put the builder in as good a position as he would have been in had the contract been fully performed, it is necessary to give him the full contract price less the amount that he saves by reason of the other party’s repudiation. The amount so saved is the cost of completion of the work; but this is less simple than it appeal's. It is the cost of completion by a reasonably prudent person in the builder’s own position that is to be deducted from the contract price, and not the amount that it would cost the defendant or third parties. He may have made advantageous subcontracts that will reduce his cost of completion; and they must be taken into consideration. If the builder has materials on hand as a result of his expenditure under the. contract, the reasonable value of those materials is a part of the builder’s cost of completion, so far as they would be used up in the process.”

Comment h provides in pertinent part:

“* * * Damages, measured by the builder’s actual expenditure to date of breach less the value of materials on hand, plus the profit that he can prove with reasonable certainty would have been realized from full performance. This is a correct rule and is in fact the equivalent of the rule stated in Clause (a) of this Subsection, provided that all the elements that justly enter into the determination of cost of completion are considered in determining expected profits. The builder has a right to his expenditures as well as his profits, because payment of the full price would have reimbursed those expenditures in full and given him his profit in addition (see §333). A verdict for his profit alone would leave him a very heavy loser in those cases where his performance is far advanced toward completion. If the builder cannot or does not prove the cost of completion or the profit that he would have made from full performance, he can get judgment for his expenditures in part performance, subject to the limitations stated in § 333.”

Applying these rules, the trial court may well have found that defendant failed to meet its burden of proving that plaintiff had a losing contract, despite the finding that plaint'ff had underbid the job. The evidence showed that plaintiffs original bid was on the basis of erecting steel for nine buildings rather than three; and it was only after work had begun that Auburn informed plaintiff that the contract was only for completion of three buildings. Further, no testimony appears in the record as to plaintiffs profit had the job progressed without breaches by defendant. Only plaintiffs projected expenses were estimated on the basis of his initial performance which was concededly plagued with delays and problems which inhibited progress. On our review of the whole record we conclude that the award of damages is supported by the evidence.

Defendants next contend that it was error to allow the general contractor to be joined after substantial proceedings had taken place and after the general contractor had already testified as a subpoenaed witness. They urge that this caused the general contractor substantial damage and prejudice by denying him the right to hear material testimony since witnesses were sequestered, and to cross-examine key witnesses during their initial testimony. They also argue that the contractor was thereby denied his right to pre-trial discovery and his right to counsel was inhibited since his choice was limited to somebody with experience or knowledge of the case.

It is undisputed that the general contractor was a necessary party (see Ill. Rev. Stat. 1971, ch. 82, par. 28), and there is no dispute that the right to amend is not absolute and unlimited but is a matter left to the proper exercise of discretion by the court. See O’Neill v. Chicago Transit Authority (1972), 5 Ill.App.3d 69, 72.

We conclude that the amendment and joinder were properly permitted within the trial court’s discretion. The final order of the trial court declaring a lien for $4,027.29 against all defendants, to be taken from funds held by the Chicago Title & Trust Company, as escrowee,' resulted in no prejudice to the general contractor. The contractor was not denied the opportunity to call and examine witnesses and, in fact, did examine both Watson and Bernard Gossen (the president of one of the plaintiff corporations) as adverse witnesses. Nor do we find any real restriction on the right to counsel since the attorney for Auburn also filed an appearance on behalf of the general contractor and an additional attorney was called in as counsel after several witnesses had testified following the amendment. It seems clear that significant measures were taken by the court to afford the general contractor a fair opportunity for its defense. Consequently we will not interfere with his exercise of discretion in allowing the amendment and the joinder. See Ill. Rev. Stat. 1971, ch. 110, par. 26; Pearce v. Desper (1957), 11 Ill.2d 569, 578.

Defendants next argue that the trial court erred in not dismissing plaintiff’s mechanic’s hen claim for failure to serve the sub-contractor’s 90-day notice by certified mail “delivery limited to addressee only,” as required by section 24 of the Mechanic’s Lien Act. Ill. Rev. Stat. 1971, ch. 82, par. 24.

There was testimony that two separate notices were directed to be sent by certified mail to Trust Nos. 3413 and 3399 at the National Boulevard Bank of Chicago. An employee of the bank acknowledged receipt of one notice and indicated that the beneficiaries of Trust No. 3413 and Trust No. 3399 were identical in December of 1970 when these notices were sent. Return receipts indicate that the National Boulevard Bank received copies of each. An agent of the bank testified that Trust No. 3413 had a copy in its files but that there was no record that Trust No. 3399 ever received the notice. The notice was not addressed “delivery limited to addressee only” as set forth in the statute, however, and defendants argue that this non-compliance with the language of the statute prevents the attachment of a mechanic’s lien since notice is the basis. (Citing Shaffer v. Cullerton Corp. (1957), 13 Ill.App.2d 72, 75; Hill Behan Lumber Co. v. Marchese (1971), 1 Ill.App.3d 789, 791.) The cited cases are distinguishable on their facts. In Shaffer v. Cullerton no contract had been established; and in Hill Behan Lumber v. Marchese there was an entire failure to serve notice.

Upon the record before us it seems apparent that the omission of the limited delivery language did not result in a lack of notification and should not be the basis for invalidating plaintiffs claim. This rule of strict construction is meant to apply only to requirements upon which the right to a lien depends. (Charles A. Hohmeier Lumber Co. v. Knight (1932), 350 Ill. 248, 252-253; Fitzgerald v. Van Buskirk (1968), 96 Ill.App 2d 432, 437; Malkov Lumber Co. v. Serafine Builders, Inc. (1971), 1 Ill.App.3d 543, 548.) Notice is clearly required as a basis for a mechanic’s lien under the authorities, but under the circumstances here the omission to limit delivery to the addressee only is not a deprivation of notice and does not invalidate the claim of lien.

Defendants also allege the lien claim was improperly brought against a non-party bank as escrowee. However, as the plaintiff points out, defendants’ contention is without merit since the hen was only against the funds due Auburn and frozen at the Chicago Title & Trust Company at the beginning of the action. The parties with rights to the alleged funds owing Watson were before the court and it was not necessary for the disinterested escrowee to be a party to the action in order for the decree to be valid as to funds which the Chicago Title & Trust Company held pending resolution of the dispute. Even if the judgment as to the Chicago Title & Trust was invalid only that portion of an otherwise valid decree would be void. This would not affect the validity of the remainder of the decree. See, e.g., People ex rel. Barrett v. Sbarbaro (1944), 388 Ill. 581, 590-591.

Defendants finally argue that the trial court should have detailed its verdict on their motion so that they might test the reasonableness of the lump sum findings against the evidence.

Findings of fact are not necessary to support a decree in a bench trial at law. (Ill. Rev. Stat. 1971, ch. 110, par. 64(4).) As we have previously noted, defendants had the burden of estabhshing errors of law or to show that the verdicts were against the manifest weight of the evidence. (See Smith v. Realcoa Construction Co. (1973), 13 Ill. App.3d 254, 260.) This they have not done.

For the reasons stated we therefore affirm the judgment of the trial court.

Affirmed.

T. MORAN, P. J., and RECHENMACHER, J., concur.


text:
    Jose Rey, Plaintiff-Appellant, v. Rosario Germendia Rey, Defendant-Appellee.
    (No. 73-192;
    Second District
    November 7, 1974.
    Elman & Ehardt, of Harvard, for appellant.
    No appearance for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff filed a complaint against his wife seeking a divorce on the grounds of mental cruelty (Ill. Rev. Stat. 1973, ch. 40, par. 1). The defendant submitted her answer denying the material allegations in the complaint. At the close of the plaintiffs testimony at the hearing before the court, the defendant’s motion for a directed finding in her favor was granted. The plaintiff appeals.

The defendant has not filed an appearance nor an answering brief in this court. We exercise our discretion to rule on the merits, however. Loucks v. Loucks (1971), 130 Ill.App.2d 961, 964.

The plaintiff testified that after having been married for 20 years the parties were separated in 1972 because his wife was constantly argumentative and unpleasant. He said she humiliated him by finding fault with him in front of his friends and she threatened to leave home on many occasions. In addition, the plaintiff testified to the defendant’s bad temper, and at times that she threw things, although not at him. He stated that on several occasions she threatened to commit suicide by drinking toilet cleaner. He also testified on direct examination that his wife would lock herself into the bedroom or the bathroom, refusing to talk to him or to the children and that this happened 5 days a week. On cross-examination, however, he said that his wife would close the door to her bedroom 5 days a week, but he admitted she did not lock it. He said that he did not provoke any of his wife’s objectionable conduct.

Plaintiff also testified that because of his wife’s actions he was “nervous, scared too,” he made many mistakes at work because of nervousness, and that he would kill himself before he came back to live with her. On cross-examination the plaintiff said that he did not see a doctor for his nervousness, but he did take aspirin.

In granting the defendant’s motion for a directed finding, the court noted that, taking the testimony of plaintiff as uncontradicted, it was unable to find that the plaintiffs life, person or health were in danger, nor was it able to conclude that the plaintiffs life was unendurable.

The plaintiff contends that his testimony established a prima facie case of mental cruelty and that the court’s ruling was contrary to the manifest weight of the evidence.

To prove a case entitling a spouse to a divorce on the grounds of mental cruelty, the evidence must show that the conduct of the offending spouse is unprovoked and constitutes a course of abusive and humiliating treatment calculated or obviously of a nature to torture, discommode, or render miserable the life of the complaining spouse or to endanger his or her life, person or health. Whether the acts in question constitute mental cruelty depends upon the total factual background and is determined primarily by the effect of the alleged misconduct upon the complaining party. Sharpe v. Sharpe (1973), 9 Ill.App.3d 667, 669-70; Howison v. Howison (1970), 128 Ill.App.2d 377, 381-382; Stanard v. Stanard (1969), 108 Ill.App.2d 240, 249.

In the cases cited the trial court had the duty to weigh the evidence and to make its determination applying the mental cruelty standards, and the reviewing court was required to test the judge’s finding to determine whether it was against the manifest weight of the evidence as disclosed by the entire record. This case requires application of a different test to review the granting of the defendant’s motion at the close of the plaintiff’s case. Section 64(5) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 64(5), as amended, Ill. Rev. Stat. 1973, ch. 110, par. 64(3)) requires the judge to weigh the evidence in ruling on a motion for a directed finding at the close of the plaintiff’s case in equity cases and cases at law tried without a jury.

The extent of the court’s discretion in fulfilling its duty to weigh the evidence in ruling on the motion at the close of the plaintiff’s evidence has not been uniformly interpreted. There are expressions in several cases that the plaintiff’s evidence, together with all reasonable intendments, should be construed in a light most favorable to the plaintiff, and should there be any evidence (J. L. Simmons Co. v. Lumbermens Mutual Insurance Co. (1967), 84 Ill.App.2d 98, 103) or arty substantial evidence (Collinet v. Collinet (1961), 31 Ill.App.2d 72, 77) which standing alone supports the claim, the motion should be denied. In Bochenek v. Bochenek (1972), 5 Ill.App.3d 65, 68, the Pedrick rule (Pedrick v. Peoria & Eastern R. R. Co. (1967), 37 Ill.2d 494) is suggested as an analogous standard.

A somewhat different standard is given expression in the cases which conclude that the trial judge in ruling on the motion considers the credibility of witnesses and assesses the quality of the testimony to determine whether the plaintiff’s evidence taken alone establishes a prima facie case. On appeal the reviewing court must conclude that the trial court’s finding is against the manifest weight of the evidence in order to reverse. Gray v. Schottmiller (1974), 18 Ill.App.3d 812, 815; Chappell v. Juergens (1973), 11 Ill.App.3d 469, 472-3; De Bello v. Checker Taxi Co. (1972), 8 Ill.App.3d 401, 414.

It is our view that in ruling on a motion at the close of the plaintiff’s evidence, the trial court sitting without a' jury should not consider the evidence in the:light most favorable to the plaintiff but must weigh the evidence including any that may be favorable to defendant. It should draw reasonable inferences and determine the credibility of the witnesses, and if the- plaintiff has not met his burden of proof by the preponderance of the evidence, it should make a final determination of the case on the merits in favor of the defendant. Hawthorn Mellody Farms Dairy, Inc. v. Rosenberg (1973), 11 Ill.App.3d 739, 744; Cf. Emerson Electric Co. v. Farmer (5th Cir. 1970), 427 F.2d 1082, 1086; Ellis v. Carter (9th Cir. 1984), 328 F.2d 573, 577.

Applying these standards to this record, we conclude that the trial judge’s finding in favor of the defendant at the close of the plaintiff’s evidence was not against the manifest weight of tire evidence. The conduct of defendant of which the plaintiff complained was of a nature to fall within accepted definitions of mental cruelty. The judge, however, with the witness before him could well have considered that the uncorroborated testimony was lacking in detail, partially impeached on cross-examination, and he could properly have concluded that the effect of the conduct on the plaintiff, which by his own testimony he had been tolerating for 20 years, was minimal. We, therefore, affirm the judgment below which dismissed the complaint.

Affirmed.

T. MORAN, P. J., and RECHENMACHER, J., concur.


author: Mr. JUSTICE SPANTON

text:
    Earl Block, Plaintiff-Appellant, v. Verna Block, Defendant-Appellee.
    (No. 74-19;
    Second District
    November 8, 1974.

      Earl W. Block, pro se.

    No appearance for appellee.
   Mr. JUSTICE SPANTON

delivered the opinion of the court:

Appellant Earl Block prosecutes this appeal, pro se, from an order requiring him to furnish copies of certain records within 30 days and to show cause why he should not be held in contempt for failing to comply with a decree of divorce entered in January of 1971. The record does not disclose date of entry of the decree but the report of proceedings indicates hearing on January 6, 1971. A post-decree petition recites the entry of the decree on January 29, 1971. Jurisdiction of the appellate court is limited to appeals from final judgments except in those cases where appeals from interlocutory orders are permitted by Supreme Court rules (Supreme Court Rule 308, Ill. Rev. Stat. 1971, ch. 110A, par. 308). (Felton v. Shead (1972), 6 Ill.App.3d 123.) The order appealed from is not a final judgment which is entitled to review on appeal. Only where the decision appealed from disposes of the entire controversy on the merits, so that, if affirmed, the trial court need only proceed with execution of judgment, does an appeal lie. (Roddy v. Armitage-Hamlin Corporation (1948), 401 Ill. 605, 83 N.E.2d 308.) The order in question obviously does not meet that test. Neither does it qualify for those special circumstances permitting appeals from interlocutory orders.

Defendant’s brief and argument consist principally of noxious and scandalous assertions of misconduct by the trial court, opposing counsel and his own lawyer, in support of unknown and non-existent legal theory, evolved by the use of words such as “estoppel” and phrases such as “vested right of law,” along with novel conclusions such as “Block is not in contempt because * * * [opposing counsel] is stupid and a crook.”

While this appeal need only be considered in connection with our comments in paragraph 2 of this opinion, the nature of the brief and argument of appellant compels us to state that the record does not support the charges made therein.

Appeal dismissed.

EBERSPACHER and CREBS, JJ., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. O. Z. Harston, Defendant-Appellant.
    (No. 72-329;
    Second District
    November 8, 1974.

      Ralph Ruebner and Adam Lutynski, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gerry L. Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Jury verdicts found defendant guüty of attempt armed robbery and aggravated battery. While many issues are raised on appeal, we find it necessary to consider only whether denial of defendant’s motion for a substitution of judge amounted to reversible error.

On February 9, 1972, defendant was arraigned without counsel. The court, on behalf of defendant, entered pleas of not guilty to the charges, appointed the public defender and stated, “Your case will be set for March 13th for disposition. Do you understand that?” Defendant responded, “Yes, sir, Judge.” On March 7,1972, defense attorney filed a discovery motion with the clerk of the court.

On March 13, 1972, defendant appeared before the same judge with counsel who orally moved for a substitution of judge and a continuance of the case to permit further investigation. Counsel related that he realized the motion for substitution was untimely for not being made within 10 days of arraignment and, consequently, would not be granted as a matter of right. Thereafter, the following colloquy occurred:

“The Court: I had denied one this morning.
Mr. MoreHi: Yes, sir. I don’t know if the circumstances on that one were the same as this.
But Mr. Harston—
The Court: Well, they waited until Friday to file the motion.
Mr. MoreHi: And I, quite frankly, haven’t filed one because I didn’t intend to until I spoke with Mr. Harston this morning.
But he feels, having been sentenced by your Honor on a previous occasion and that your Honor gave him a rather strong admonition at that time—
The Court: Put him on probation.
Mr. Morelli: No, sir. You weren’t put on—
The Defendant: No, sir.
Mr. Morelli: No. And as result of that, he is reluctant to have your Honor hear this case — hear these pending cases.
The Court: Well, I wiU deny your motion for a substitution of judges and set the case for the 20th then.
The defendant is remanded to the custody of the Sheriff.”

For the record; counsel had defendant sworn and elicited that on a previous occasion at the conclusion of a probation hearing the present judge remarked, “probation would be denied because a person like me had no business in the street”; that he first became aware his case would be tried before the same judge only a few minutes previously when told by his counsel; and that in the past a judge other than the one who conducted the arraignment would try the case.

Contrary to trial counsel’s statement of untimeliness, appellate counsel argues that the motion should have been granted under either subsection (a) or (c) of section 114 — 5 of the Criminal Code. (Ill. Rev. Stat. 1971, ch. 38, § 114 — 5(a), (c).) Subsection (a) gives defendant an absolute right to a substitution of judge if his motion is filed within 10 days from the date his case is placed on the trial call. Subsection (c) allows defendant, upon filing of a written motion supported by affidavit, to move at any time for a substitution of a judge. Under the latter section, substitution is allowed only upon showing of cause. People ex rel. Walker v. Pate, 53 Ill.2d 485, 506 (1973).

The controlling issue under subsection (a) is whether the motion was filed within 10 days after the case had been placed on the judge’s trial call. If not, then defendant does not have an absolute right to a substitution (Peter v. Peter, 55 Ill.2d 443, 457-58 (1973)), as the right to a change of judge may be waived when not asserted in apt time. People v. Lawrence, 29 Ill.2d 426, 427 (1963).

The State maintains that the case was placed on the judge’s trial call at arraignment on February 9, 1972. In support of. this position, it has attached to its brief the administrative order of the chief judge of the 16th Judicial Circuit, dated August 3, 1971, which assigned all criminal trials to the instant judge. The State explains that, except for this order, there is no trial call procedure. Defendant’s position is that the record is silent as to the date the case was placed on the trial call and, therefore, under People v. Evans, 1 Ill.App.3d 158, 159 (1971), “the motion for substitution of judge was timely filed for the simple reason that it was filed at the earliest practicable moment when the identity of the trial judge was ascertainable from the record.” The defendant also relies on People v. Ehrler, 114 Ill.App.2d 171, 177 (1969), wherein this court held the motion for substitution of trial judge timely under subsection (a) since it was filed 7 days after the defendant could be charged with knowledge of his trial judge.

Unlike Evans and Ehrler, the record before us is not silent. On February 9, the case was set for disposition on March 13. In force at the time was an administrative order of which we take judicial notice (People v. Wolfe, 124 Ill.App.2d 349, 352 (1970)) that all criminal trials were to be heard by the instant judge. Knowledge of this fact is attributable to the defendant and his counsel. Since the motion here occurred more than 10 days from such knowledge, it came too late to be considered as an absolute right under subsection (a).

Concerning subsection (c), a defendant may move at any time for a substitution of trial judge upon showing of cause. The motion must be supported by affidavit and the court must conduct a hearing on the merits. (People v. Lagardo, 82 Ill.App.2d 119, 126 (1967).) The State maintains that the motion was properly denied because the defendant failed to file a written motion supported by affidavit and therefore failed to bring himself within the scope of subsection (c). Defendant’s right cannot be frustrated by so tenuous an argument. Where a court is confronted at the earliest practical moment with a motion for substitution of a trial judge because of aUeged prejudice, it is both arbitrary and erroneous to deny the motion without granting the defendant an opportunity to comply with the formal requirement of the statute. The trial court, by failing to afford the defendant an opportunity to comply with the formal requirements, in effect waived the necessity to meet these requirements and the defendant therefore came within the scope of subsection (c). (People v. Moore, 26 Ill.2d 236, 238 (1962), and People v. Shiffman, 350 Ill. 243, 246-47 (1932).) Even so, since the trial court did not aUow the defendant an opportunity to comply with the formal requirements of subsection (c) we believe defendant’s testimony under oath should have supplanted such formal requirements under the circumstances presented.

In answer to the defendant’s claim that the trial court committed reversible error by not conducting a hearing as required by subsection (c), the State argues that the trial court, by allowing the defendant to testify, did conduct a hearing. We disagree. (See People v. Lagardo, supra, at 129, 130.) The State overlooks the fact that the defendant’s testimony was given after the trial court had summarily denied his motion. While the premature ruling alone is not necessarily error, still the failure of the court to consider defendant’s testimony or rule upon its merits did deprive defendant of a hearing as contemplated by the statute. (People v. Morrow, 100 Ill.App.2d 1 (1968), and People v. Ethridge, 78 Ill.App.2d 299 (1966).) The statute is to be afforded a liberal interpretation in order to permit, rather than deny, a substitution. Without a hearing, defendant’s unrebutted testimony with regard to prejudice and the time he first learned of the judge assignment to his case must be taken as true. People v. Arnold, 76 Ill.App.2d 269, 277 (1966).

The court’s failure to conduct a hearing, as contemplated by the statute, on defendant’s motion for a substitution of judge was reversible error. The judgment is, therefore, reversed and the cause remanded for a new trial.

Reversed and remanded.

SEIDENFELD and RECHENMACHER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. O. Z. Harston, Defendant-Appellant.
    (No. 72-328;
    Second District
    November 8, 1974.
    Ralph Ruebner and Adam Lutynski, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gerry L. Dondanville, State’s Attorney, of Geneva (Clarence Witten-strom, Assistant State’s Attorney, of .counsel), for,the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The defendant was tried by a jury and convicted of armed robbery, a Class 1 felony. Following a hearing in aggravation and mitigation, he was sentenced to 12 to 15 years in the penitentiary. On appeal, three issues are raised, one by counsel and two pro se.

Defendant, by counsel, contends that the sentence is not indeterminate and that it therefore violates provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, § 1005 — 8—1(a)) and, further, that it ignores the Illinois Constitution which mandates that penalties be determined with the objective of restoring the offender to useful citizenship. The defendant relies upon the one-third rule established by the ABA Standards and incorporated in the Unified Code of Corrections for Class 2 and Class 3 felonies. This rule requires that the minimum sentence shall not exceed one-third of the maximum sentence actually imposed. This court has held, and defendant concedes, that the ABA Standards are suggestions and not the law for Class 1 felonies. People v. Johnson, 6 Ill.App.3d 1083, 1085 (1972).

Without setting forth criterion or authority, defendant argues that any “radical variance” from the one-third rule renders the sentence determinate, instead of indeterminate, as a matter of law. Illinois courts have upheld sentences as indeterminate with only 1 year between the minimum and maximum. (People v. Bell, 7 Ill.App.3d 625, 627-28 (1972); People v. Weaver, 5 Ill.App.3d 754, 757-58 (1972).) The constitution clearly sets forth not only that penalties be imposed with the objective of restoring the offender to useful citizenship but that sentence be determined by the seriousness of the offense. Here, the trial court took cognizance of the seriousness of the offense, defendant’s proclivity toward violence and his prior convictions for theft and burglary. The 3-year variance between the minimum and maximum sentence reflects the trial court’s assessment of defendant’s potential for rehabilitation. That assessment is reasonable and we hold the sentence to be indeterminate.

The next issue, which defendant raises pro se, is whether the trial court erred in denying defendant’s motion for discharge pursuant to section 103 — 5 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, § 103— 5(a)), which states in part:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * *

Subparagraph (d) provides for discharge from custody for failure to comply with this provision.

While he was incarcerated on other offenses, a warrant was issued on February 10, 1972, charging defendant with the instant offense. He was tried on the other charges and convicted on May 9, 1972. He was tried on the present charge on June 19, 1972, more than 120 days after issuance of the warrant. Nevertheless, defendant is not entitled to discharge. Section 103 — 5(e) provides:

“If a person is simultaneously in custody upon more than one charge pending against him in the same county, or simultaneously demands trial upon more than one charge pending against him in the same county, he shall be tiled # * * upon at least one such charge before expiration relative to any of such pending charges of the period prescribed by subparagraphs (a) and (b) of this Section. Such person shall be tried upon all of the remaining charges thus pending within 160 days from the date on which judgment relative to the first charge thus prosecuted is rendered ft ft ft »

We assume, since the record is silent on the point, that defendant was tried on the other charges within 120 days of incarceration. Inasmuch as he went to trial on the present charge well within the 160-day limit allowed by subparagraph (e), the State complied with the statutory mandate and the defendant is not entitled to discharge. People v. Olbrot, 49 Ill.2d 216 (1971).

In Olbrot, defendant was incarcerated under various and separate offenses. Trial on one of the charges began within 120 days but ended in a mistrial. Thereafter, on the 123rd day of his incarceration, defendant was tried on one of the other charges. The court held this was not a violation of the 120-day rule, and stated, at page 219, “It is clear that if the first trial 000 had resulted in a guilty verdict rather than a mistrial, section 103 — 5(e) would have provided an additional 120 days [present statute reads 160 days] from the date of defendant’s incarceration for that offense in which to try the four other pending indictments.”

Finally, defendant contends that the trial court committed reversible error by perjuring “himself to favor the court by use of technical evasion.” This argument appears to be based on defendant’s belief that the trial judge did not read certain files which the judge said he had read. This issue is without merit.

The judgment of the circuit court is affirmed.

Judgment affirmed.

SEIDENFELD and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Lane, Defendant-Appellant.
    (No. 72-166;
    Second District
    November 8, 1974.

      Ralph Ruebner and Richard Wilson, both of State Appellate Defender’s Office, of Elgin, for appellant.

      John H. Maville, State’s Attorney, of Belvidere (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

Defendant was found guilty of the murder of his wife in a jury trial and on March 24, 1966, was sentenced to serve 60-75 years in the Illinois penitentiary.

Defendant’s notice of appeal from this order was not filed until over lVz years later, on November 11, 1967. For this reason, his appeal was dismissed. Thereafter on April 2, 1970, defendant filed a post-conviction petition which was dismissed because the same issues were once again before this court as a result of defendant’s motion to reinstate his direct appeal.

Defendant’s petition before the Illinois Supreme Court for leave to appeal from the dismissal of his post-conviction petition was denied. He then instituted that appeal before this court. On July 11, 1972, we finally allowed defendant’s motion to reinstate his direct appeal and consolidated it with his appeal from the dismissal of his post-conviction petition because of the similarity of issues in each appeal. All of the issues presented in defendant’s appeals will now be considered.

Defendant has presented seven issues for our determination in his attempt to persuade us to reverse his conviction: First, whether defendant’s written inculpatory statement was the product of violations of the principles announced in Escobedo v. Illinois (1964), 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758; and accordingly, if the Escobedo principles were followed, was the statement given by defendant voluntary; second, whether the trial judge’s examination of defendant’s expert psychiatric witness and his rulings with respect to the appropriate tests for the defense of insanity precluded defendant from presenting his defense of insanity; third, whether the State proved defendant’s sanity at the time of the murder beyond a reasonable doubt; fourth, whether the alleged prejudicial inflamatory nature of certain photographs introduced into evidence outweighed their probative value; fifth, whether certain closing remarks of the prosecution were improper or prejudicial; sixth, whether it was incumbent upon the trial judge to instruct the jury as to the definition and elements of the offense of murder on his own motion. Finally, whether the instructions which were given to the jury were proper.

There is no dispute as to the basic facts which precipitated defendant’s indictment for murder. Defendant and his wife had been having marital problems; a divorce proceeding between them was pending in the spring of 1965. Having consumed a substantial amount of alcohol throughout the day and evening of May 26, 1965, the defendant became determined to find his wife, Karen, to attempt a reconciliation. When he located her, at approximately 10 P.M. in a rural section of Belvidere, Illinois, she was accompanied by her friend, Vicky Carlson.

While Karen Lane and Vicky Carlson were stopped at a stop sign, defendant approached their vehicle and asked his wife if he could talk to her. She agreed to talk to defendant and he then entered the rear seat of the car which Karen was driving. Karen then drove down a Belvidere rural road. Upon being told by his wife that she was no longer interested in saving their marriage and that she had “found someone else,” defendant begin beating her in the head. Consequently the car swerved off the road and hit a utility pole. Vicky Carlson was knocked unconscious; and defendant knocked his wife unconscious with either his fist or a whiskey bottle.

Defendant then walked or ran approximately 1 mile back to his automobile and secured a half-gallon can of gasoline and returned to the car wherein the two young women still lay unconscious. After soaking the car with gasoline, defendant ignited it with a match. As a result, the bodies of the two women were burned beyond recognition.

Thereafter, defendant returned to his car and drove home to Rockford where he resided with his sister. He told his sister what he had done and then directed her to burn his clothing, which she did. The next morning Rockford police officers Prentice and Carr arrested defendant and brought him to the Rockford police station at approximately 9:30 A.M. Upon completion of routine custodial procedure, defendant was interrogated between approximately 12:30 and 1:55 P.M., at which time he signed a written confession relating the facts just mentioned. Defendant was tiled and convicted for the murder of his wife only.

Defendant now contends, as he did in his pretrial motion, that the admission into evidence of his written inculpatory statement deprived him of his constitutional rights to counsel. Defendant relies upon Esco-bedo v. Illinois (1964), 378 U.S. 478, 12 L.E.2d 977, 84 S.Ct. 1758, in support of this ground for reversing his conviction. Apart from Escobedo, defendant further argues that his confession was involuntarily rendered and that its admission into evidence deprived him of due process of law.

Since defendant’s trial occurred in January, 1966, the constitutional principles announced in Escobedo, as interpreted by our Supreme Court in People v. Hartgraves (1964), 31 Ill.2d 375, 202 N.E.2d 33, are dispositive of this issue. In Hartgraves, our supreme court interpreted Escobedo as holding that if a defendant is not advised of his constitutional right to remain silent, and requests and is denied the assistance of counsel, his subsequent admission is inadmissible as evidence against him. See also People v. Heise (1966), 35 Ill.2d 214, 220 N.E.2d 438; People v. Mallett (1970), 45 Ill.2d 388, 259 N.E.2d 241.

At the hearing on defendant’s motion to suppress his confession, all of the law officers who were with him from the time of his arrest until he signed the statement testified that defendant never requested to consult with an attorney. Rather, these witnesses consistently stated that upon being advised of his right to consult with an attorney, defendant replied that an attorney would be of no use to him. Furthermore, although the record is unclear as to whether defendant was advised of his right to remain silent prior to his initial interrogation, the record clearly reflects that defendant was so advised prior to making and signing his written statement.

The only evidence in the record that defendant ever requested counsel before signing the confession came from defendant himself. The discrepancy between the testimony of the law officers and defendant presented a factual question which the trial judge could, and did, resolve unfavorably to defendant. Therefore, the Escobedo standards are not applicable and do not render the confession inadmissable. People v. Mallett (1970), 45 Ill.2d 388, 259 N.E.2d 241; People v. Ackerson (1967), 37 Ill.2d 117, 224 N.E.2d 849.

Having determined that the principles recited in Escobedo are inapplicable, we next direct our attention to the question of the voluntariness of defendant’s confession. (People v. McGuire (1966), 35 Ill.2d 219, 220 N.E.2d 447.) Since defendant’s trial occurred prior to the decision in Miranda v. Arizona (1967), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, the appropriate standard for determining the voluntariness of defendant’s confession is the “totality of circumstances” test. (Haynes v. Washington (1963), 373 U.S. 503, 10 L.Ed.2d 513, 83 S.Ct. 1336.) Accordingly, an independent examination of the circumstances under which defendant made his confession becomes necessary. People v. Hester (1968), 39 Ill.2d 489, 237 N.E.2d 466.

In his attempt to reveal the involuntary nature of his confession, defendant asserts that the law officers who interrogated him utilized psychological coercion. Specifically, defendant contends that he was told that if he did not give and sign a written statement that he would have to view the charred remains of his wife at the Belvidere Hospital. Defendant argues that this “interrogational ploy” precipitated his confession and served only to take advantage of his unstable emotional makeup.

The record in this case includes the report and testimony of the two psychiatrists who thoroughly examined defendant. Essentially, their findings reveal defendant as a frightened and deeply insecure person with serious characterological impairment and that he was suffering from an incipient schizophrenic process that had not reached psychotic, or severely harmful proportions.

The record, however, also illustrates that defendant was chiefly interrogated during the relatively short period between approximately 12:30 P.M. and 1:55 P.M. at which time defendant signed the written statement. Furthermore, the interrogating Illinois State Police officers, Robert Bales and Robert Wise, testified without impeachment that they never told defendant he would have to view his wife’s charred remains if he did hot make a confession. It is also noteworthy that the statement which defendant read and signed recited that it was made of his “own free will and accord.” (Cf. People v. Worley (1967), 37 Ill.2d 439, 227 N.E.2d 746.) In light of the foregoing, the trial judge elected not to believe defendant’s version of the circumstances surrounding his interrogation.

Having carefully examined the record, we conclude that defendant’s confession was voluntarily given and that the trial judge’s finding in this regard is not manifestly contrary to the weight of the evidence. The facts in the record do not reveal any indication of psychological coercion which would warrant a finding that defendant’s statement was involuntary. See, e.g., People v. McGuire (1966), 35 Ill.2d 219, 220 N.E.2d 447.

Defendant’s appellate counsel focused at length on the next issue presented; that the trial judge precluded defendant from effectively presenting his defense of insanity. In this regard defendant argues that the trial judge shed his robe of impartiality and pursued the role of the prosecutor when he briefly questioned defendant’s expert witness.

The initial portion of tire trial judge’s question was made to clarify the period of time during which defendant’s expert stated defendant was temporarily insane. Such a course of questioning was permissible in that it clarified a material issue. People v. Marino (1953), 414 Ill. 445, 111 N.E.2d 534.

The trial judge continued, however, and questioned defendant’s expert as follows:

“The Court: Do you feel that everyone who commits an act of murder is temporarily insane?
The Witness: Although there is considerable debate about that, I personally don’t think so.
The Court: You have testified in other cases of murder?
The Witness: I have.
The Court: And on each of those cases, have you testified that the defendant was temporarily insane?
The Witness: No, sir.
The Court: You have, in a number of cases?
The Witness: I can recall one other.”

Although it would have been judicially more appropriate for the trial judge to have refrained from this line of questioning, we do not believe that his conduct necessitates reversal of defendant’s conviction. The trial judge’s line of questioning was not extensive. He accepted each answer given by defendant’s psychiatric expert. Defendant does not contend that the Mai judge in any way indicated that he did not believe the witness’s response to the questions. The trial judge acted fairly and impartially throughout the course of his questioning. We therefore believe that the Mai judge did not abuse his discretion by examining defendant’s expert. Accordingly, we hold that the Mai judge did not depart from his judicial role and did not assume the conduct of the prosecutor. People v. Green (1959), 17 Ill.2d 35, 160 N.E.2d 814; People v. Trefonas (1956), 9 Ill.2d 92, 136 N.E.2d 817.

The cases cited by defendant (People v. Finn (1959), 17 Ill.2d 614, 162 N.E.2d 354; People v. Santucci (1962), 24 Ill.2d 93, 180 N.E.2d 491; People v. Sprinkle (1963), 27 Ill.2d 398, 189 N.E.2d 295; People v. Tyner (1964), 30 Ill.2d 101, 195 N.E.2d 675; People v. Moriarity (1966), 33 Ill.2d 606, 213 N.E.2d 516; Kennedy v. Indiana (1972), — Ind. —, 280 N.E.2d 611; Plambeck v. Chicago Railways Co. (1920), 294 Ill. 302, 128 N.E. 513; and Chicago & E.I.R.R. Co. v. Schmitz (1904), 211 Ill. 446, 71 N.E. 1050) in support of this contention are so sMkingly inapposite to the present situation that we deem it unnecessary to distinguish them.

The second part of defendant’s contention that he was precluded from effectively presenting an insanity defense is that the Mai judge erroneously ruled on the appropriate test of insanity. The Mai judge would not allow defendant’s expert psychiatric witness to respond to the question of whether or not defendant had substantial capacity to appreciate the criminality of his conduct. Over defense counsel’s objection, however, the trial judge allowed the State to cross-examine defendant’s expert as to whether or not defendant was capable of choosing between right and wrong. However this question was never answered by the witness.

Illinois has long since departed from the right-wrong test. (People v. Lowhone (1920), 292 Ill. 32, 126 N.E. 620; S.H.A., ch. 38, § 6 — 2, Committee Comments (1972).) Any confusion in the minds of the jury, however, that might have resulted from this ruling was clarified in defense counsel’s closing argument as well as the instructions to the jury wherein the appropriate test for insanity was properly enunciated.

As his third argument for reversal, defendant contends that the State failed to sustain its burden of proving him sane beyond a reasonable doubt. (People v. Le May (1966), 35 Ill.2d 208, 220 N.E.2d 184.) The basis for this contention lies in the fact that the testimony of the two psychiatrists who testified for the defendant and the State respectively, was conflicting.

Defendant’s expert psychiatrist, Dr. J. G. Graybill, testified that defendant was temporarily insane just prior to and during the period of time in which he murdered his wife. Dr. Carl Hamann, the psychiatrist who testified for the State, however, stated that defendant was sane at the time of the murder.

On cross-examination Hamann further stated that at the time of his examinations of defendant,, defendant was suffering from an “insipient [sic] schizophrenic process.” Hamann also responded that this manifestation could be considered to be a “mental iUness.”

On the basis of this response by Hamann, together with all of the testimony given by both experts, defendant vigorously argues that his sanity at the time of the murder was not proven beyond a reasonable doubt. After examining the record in this regard with great circumspection, we are not persuaded by defendant’s contention.

It has long been settled in Illinois that “[w]hether there was a temporary insanity [on behalf of the defendant], produced immediately by intoxication, or a fixed insanity, are questions peculiarly for the jury to determine * # *.” (People v. Brislane (1920), 295 Ill. 241, 129 N.E. 185; see also People v. Wax (1966), 75 Ill.App.2d 163, 220 N.E.2d 600.) The jury in this case found that the State did sustain its burden in light of all the testimony presented.

Defendant has had no history of prior psychiatric problems. After the argument with his wife he beat her into unconsciousness then walked to his car, obtained the gasoline and returned and burned the two bodies. This was a distance of about 2 miles. It is also to be observed that immediately after the killing, defendant recalled that he intended to stop for a drink, but seeing his bloody condition he stopped at a drive-in restaurant for a cheeseburger and a cup of coffee. He further recalled that this cost him 47 cents. Upon his return home, he washed out his bloody shirt and asked his sister to burn the rest of his bloody clothing. Under the facts of this case, we find that the jury were justified in finding that defendant was not temporarily insane.

Accordingly, we repeat what we stated in People v. Anderson (1968), 104 Ill.App.2d 47, 54, 242 N.E.2d 798, 801:

“The evidence in the sanity issue in the case at bar was in conflict: that with reference to the commission of the offense by the defendant was without conflict. The conflict on the sanity issue gave rise to a factual question which the jury was peculiarly suited to determine, and its findings will not be disturbed unless they are so manifestly against the weight of the evidence as to indicate that the verdict was based on passion or prejudice. People v. Ford, 39 Ill.2d 318, 321, 235 N.E.2d 576 (1968); People v. Thomas, 409 Ill. 473, 478, 100 N.E.2d 588 (1951).

Our reading of the record in this case does not cause us to believe that the jury’s verdict was the product of passion or prejudice.

Defendant next contends that the trial judge committed reversible error by admitting certain photographs and a color slide into evidence, thus enabling their view by the jury. The pictures and slide were introduced by the State and depict the skull and charred torso of defendant’s wife. Defendant argues that these items of evidence had no probative value. Defendant asserts that in light of the fact that the State introduced testimony from five witnesses as to the position and description of his wife’s body, the photographs and slide were merely cumulative and prejudicially harmed him.

This contention, however, is disposed of by the established evidentiary principle that where photographs are relevant to establish any fact in issue, they are admissible even though they may be of a gruesome nature. (People v. Speck (1968), 41 Ill.2d 177, 242 N.E.2d 208.) During the trial of this case, the photographs and slide illustrated the condition and position of Karen Lane’s body as it was found at the scene. As such, these items of evidence served to corroborate the testimony concerning the probable cause of her death. For this reason, it was not erroneous for the trial judge to allow them into evidence. (People v. Newbury (1972), 53 Ill.2d 228, 290 N.E.2d 592.) Furthermore, the photos and slide did not become unnecessarily cumulative merely because there was testimony concerning the condition and position of the body as it was found at the scene. People v. Henenberg (1973), 55 Ill.2d 5, 302 N.E.2d 27.

Defendant further contends that he was deprived of a fair trial in that he was prejudiced by improper comments of the prosecutor in his closing argument. Defense counsel, however, failed to object at trial to these remarks now complained of; and this omission constitutes a waiver of the right to object on appeal. (People v. Nuccio (1973), 54 Ill.2d 39, 294 N.E.2d 276.) The remarks now complained of were in substance the statement of the prosecutor that if the jury believed that the defendant were temporarily insane that it would be- equivalent to giving a party a license to kill on that ground. The prosecutor “* * ” has a right in his arguments before a jury to dwell upon the evil results of a crime, to urge a fearless administration of the criminal law, and to comment on the conduct of the accused.” (People v. Brown (1959), 16 Ill.2d 482, 487, 158 N.E.2d 579, 582.) We would further add that the character of these comments was not such as to require us to consider any effect they might have had on the jury in absence of objection. People v. Pearson (1972), 52 Ill.2d 260, 269, 287 N.E.2d 715; People v. Nuccio (1973), 54 Ill.2d 39, 49, 294 N.E.2d 276.

Another claim which defendant contends requires reversal of his conviction is that the trial judge failed to, sua sponte, instruct the jury on the definition and elements of the offense of murder. In support of this" contention defendant relies upon the oft-cited case of People v. Davis (1966), 74 Ill.App.2d 450, 221 N.E.2d 63. Due to the seriousness of the offense here involved we have considered this issue even though the trial judge generaUy has no duty to give instructions on his own motion where a defendant does not request them (People v. Carvin (1960), 20 Ill.2d 32, 169 N.E.2d 260; People v. Browry (1972), 8 Ill.App.3d 599, 290 N.E.2d 650), and by faffing to request certain instructions, a defendant generally waives review of such omitted instructions on appeal.

It would have been the better approach for the trial judge to furnish the instructions now complained of as being omitted. In light of the record in this case we do not believe that the failure to instruct the jury on the definition and elements of murder was so fundamentaffy erroneous as to deny defendant a fair trial.

This is so because neither at trial nor at oral argument did defendant’s counsel contend that defendant did not, in fact, set fire to the automobile in which his wife lay unconscious. In a case such as this, where the evidence was so overwhelmingly against defendant, had the additional instructions been given to the jury, they would still, necessarily, have found defendant guilty. (Hoge v. People (1886), 117 Ill. 35, 6 N.E. 796; People v. Ward (1965), 32 Ill.2d 253, 204 N.E.2d 741; People v. Truelock (1966), 35 Ill.2d 189, 220 N.E.2d 187.) Any error in this regard, therefore, was harmless beyond a reasonable doubt.

Again, because of the severity of defendant’s sentence, we have considered defendant’s last ground for reversal even though it has not been properly preserved for review. Defendant argues that the instructions that were given to the jury contained numerous defects. Consequently, defendant asserts that he was “effectively deprived of an opportunity to properly present his theory of the case and was thus deprived of a fair trial.”

Our examination of the complained of instructions, togethér with the rest of the instructions which were given, causes us to find that the jury was fairly informed in this case. The instructions considered as a whole fully and fairly recite the law applicable to the theories of the State and the defendant. For this reason we do not agree with defendant’s contention in this regard. People v. Kolep (1963), 29 Ill.2d 116, 193 N.E.2d 753.

Defendant alternatively contends that his sentence of 60 to 75 years violates the principles of indeterminancy and that his sentence should be reduced. We do not agree. After beating his wife until she was unconscious, he walked a mile to his car, obtained the gasoline, returned, poured the gasoline over her and the other woman with her and then proceeded to bum them alive. The experienced trial judge observed that “* * * it was one of the most vicious murders I have ever tried.” The Supreme Court of Illinois has not considered indeterminancy of sentence in vicious murder cases as controlling. In People v. Sprinkle (1974), 56 Ill.2d 257, 264, 307 N.E.2d 161, the supreme court approved sentences of 75 to 90 years imposed upon 14- and 15-year-old defendants, stating, “The trial court is normally in a better position during the trial and hearing in aggravation' and mitigation to make a sound determination as to the punishment to be imposed than are courts of review. [Citations.]” Likewise, in People v. Allen (1974), 56 Ill.2d 536, 309 N.E.2d 544, the court approved a sentence of 100 to 200 years for murder; in People v. Nicholls (1970), 44 Ill.2d 533, 256 N.E.2d 818, a sentence for murder of 100 to 150 years was approved and in People v. Walcher (1969), 42 Ill.2d 159, 246 N.E.2d 256, the supreme court modified the death sentence imposed and reduced the sentence to 40 to 65 years.

Defendant also contends that this cause should be remanded for an evidentiary hearing upon his post-conviction petition. As indicated at the outset of this opinion, tire instant appeal is both a direct appeal of his conviction and an appeal of the denial of hearing on the post-conviction petition. Inasmuch as we have considered all of the issues raised, both constitutional and otherwise, we find that the trial court did not err in denying an evidentiary hearing on defendant’s post-conviction petition.

For the foregoing reasons the conviction of the defendant is affirmed.

Affirmed.

T. MORAN, P. J., and SEIDENFELD, J., concur.