text:
    ROGELIO SALINAS et al., Adm’rs of the Estate of Evelia Salinas, Deceased, Plaintiffs-Appellants, v. CHICAGO PARK DISTRICT, Defendant-Appellee.
    First District (2nd Division)
    No. 1—88—1059
    Opinion filed September 19, 1989.

      Alan C. Mendelson, of Chicago, for appellants.
    Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Philip W. Domagalski, Nancy Jo Arnold, and James F. Donovan, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiffs, Rogelio and Socorro Salinas, as administrators of the estate of their daughter, Evelia Salinas, sought recovery from defendant, the Chicago Park District, for the injuries and wrongful death of Evelia caused by her fall from a slide located on property owned and maintained by defendant. Following the circuit court’s grant of summary judgment in favor of defendant, plaintiffs appealed, raising two issues: (1) whether the circuit court erred in ruling that no triable issue of fact existed, and (2) whether the circuit court erred in determining that defendant owed no duty of care to their daughter, who, plaintiffs contend, should have been treated as a child of tender years.

According to the deposition of her mother, Evelia, eight years old at the time of her fall, was a “mongoloid” child, which she understood to mean that Evelia would develop very slowly. Between the ages of four and five, Evelia attended Morris Inter-American Magnet School, described by her mother as a “special” school; she then attended three years of kindergarten at Louis J. Agassiz School. Evelia suffered from poor speech, which only her mother could understand. Evelia did not receive any special education schooling or services during the summer.

On July 28, 1982, her mother took Evelia to a Chicago Park District park located at Racine and Draper, where the two of them were in the habit of going at least once or twice a week. In the park there was a slide, approximately five feet high with eight steps leading to a large circular platform on the top which was one step above the eighth, or top step.

Evelia walked over to the slide and began climbing the stairs. Her mother was watching as Evelia started to climb and last saw her when she was on the fourth step climbing to the fifth. Her mother turned to speak to a friend and then turned back when she heard Evelia strike the ground. Evelia was taken to Children’s Memorial Hospital, where she died on August 12, 1982, as a result of head injuries sustained in the fall.

Defendant moved for summary judgment on the grounds that it owed no duty to protect Evelia from the fall and that plaintiff had offered no evidence that any defect in the slide proximately caused the accident. On March 1, 1988, following submission of memoranda by both parties and a hearing, the circuit court granted the motion for summary judgment. For the following reasons, we affirm.

I

Plaintiffs first contend that whether the unsafe and defective condition of the slide proximately caused Evelia to fall is a triable issue of fact. In support of this contention, plaintiffs presented the testimony of Theodora Briggs Sweeney, a consultant in the area of playground safety. Sweeney offered her opinion that the platform of the slide was defectively installed because there was a bar across the very top of the stairs which made it difficult for children to gain access to the platform. She also stated that the asphalt surface beneath the slide was an unsuitable surface and created a dangerous condition which children could not appreciate.

Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2— 1005(c); Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 484, 507 N.E.2d 19, citing Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) In order to withstand a motion for summary judgment, the nonmoving party must come forward with evidentiary material that establishes a genuine issue of fact. (Murphy v. Urso (1980), 83 Ill. App. 3d 779, 404 N.E.2d 287, aff’d in part, rev’d in part on other grounds (1981), 88 Ill. 2d 444, 430 N.E.2d 1079.) Absent an abuse of discretion by the trial court, summary judgment will not be reversed. Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 475 N.E.2d 549.

If a slide is defective and the defect causes a fall, a landowner may be liable for injuries incurred. (Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 520 N.E.2d 62; Kirby v. Macon Public School District No. 5 (1988), 169 Ill. App. 3d 416, 523 N.E.2d 643.) However, proximate cause can be established only where there is reasonable certainty that defendant’s acts caused the injury. (Salinas v. Werton (1987), 161 Ill. App. 3d 510, 515 N.E.2d 142; Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328.) Where, from the proven facts, the nonexistence of the fact to be inferred appears to be just as probable as its existence, then the conclusion that it exists is a matter of speculation, surmise, and conjecture, and a trier of fact cannot be allowed to draw it. Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 468 N.E.2d 422; see also Lewis v. Mount Greenwood Bank (1980), 91 Ill. App. 3d 481, 414 N.E.2d 1079.

In this case, as the circuit court noted, it cannot be determined from the evidence presented whether Evelia fell from the stairs, while trying to enter the platform, or from the platform itself. There is no evidence as to where Evelia was at the time of her fall or as to what caused her fall. Because there was no evidence that Evelia climbed all of the stairs and attempted to climb from the last stair to the platform, a finding that she fell as a result of any defect in the platform would be based upon conjecture and speculation. Consolino v. Thompson, 127 Ill. App. 3d 31, 468 N.E.2d 422.

McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 515 N.E.2d 157, relied upon by plaintiffs, is inapposite. There, a coworker witnessed McKanna’s actions immediately prior to the crucial instant; he saw McKanna place his hand on the hatchway cover and saw him turn around to descend the ladder; he then peripherally saw McKanna fall. (McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 527, 515 N.E.2d 157.) Those actions permitted a reasonable inference that McKanna intended to descend the ladder. Additionally, there was evidence of dangerous defects throughout the ladder, especially near the top, where McKanna was last seen. (McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 527, 515 N.E.2d 157.) Here, the testimony of her mother was that Evelia was last seen on the fourth step, not near the allegedly defective platform. In contrast to the evidence that McKanna had reached the defective ladder, no evidence was presented here that Evelia had reached the allegedly defective platform.

Furthermore, our courts have held that an asphalt surface beneath a slide is, in itself, an inadequate basis for liability. (Alop v. Edgewood Valley Community Association, 154 Ill. App. 3d 482, 507 N.E.2d 19; Chimerofsky v. School District No. 63 (1970), 121 Ill. App. 2d 371, 257 N.E.2d 480.) Therefore, the presence of the asphalt surface here was an insufficient reason to deny summary judgment.

Finally, plaintiffs contend that summary judgment was improperly granted because there was evidence that the stairs to the slide were defective because they were too steep. We note that in her deposition, Sweeney stated that, from her view of photographs, the stairs “may have been too steep for the recommended angles” but that it may merely “be at the upper edge of the limit.” Aside from the conjectural nature of that evidence, we conclude that the circuit court properly granted summary judgment because there is no evidence that any defect in the stairs caused Evelia’s fall.

II

Plaintiffs next assert that, because of her alleged physical and mental handicaps, Evelia must be treated as a child of tender years in determining whether any liability should be imposed on defendant. Plaintiffs maintain that because the risk of suffering a fatal head injury was an unreasonable risk of harm which could not be appreciated by Evelia, the circuit court erred in determining that, as a matter of law, defendant owed no duty to this particular child.

The determination of whether a duty exists is an issue of law to be determined by the court. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387; Cunis v. Brennan (1974), 56 Ill. 2d 372, 373-74, 308 N.E.2d 617.) When, as a matter of law there is no duty owed to the plaintiff by the defendant, the defendant is entitled to judgment. Hootman v. Dixon (1984), 129 Ill. App. 3d 645, 472 N.E.2d 1224.

A landowner has a duty to protect children on its premises from harm only if the landowner has reason to know that children are likely to come upon the land where a dangerous condition exists and that the dangerous condition is likely to harm children who, because of their immaturity, might be incapable of appreciating the risk involved. (Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 325-26, 383 N.E.2d 177; Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625, 126 N.E.2d 836.) Generally, a landowner owes no duty to a child for the obvious risk of falling off a slide. Alop v. Edgewood Valley Community Association, 154 Ill. App. 3d 482, 507 N.E.2d 19.

Plaintiffs argue, however, that because Evelia was mentally handicapped, she should be exempt from the general rule. Although it has been held that when determining a mentally impaired adult’s appreciation of danger, he should be treated as a child (Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535), the issue of how a mentally and physically handicapped child should be treated has not previously been addressed. However, when ascertaining a child’s appreciation of danger, our courts do not consider the subjective understandings and limitations of the child when a risk is deemed obvious to children generally. (See Christon v. Kankakee Valley Boat Club (1987), 152 Ill. App. 3d 202, 504 N.E.2d 263; Young v. Chicago Housing Authority (1987), 162 Ill. App. 3d 53, 515 N.E.2d 779; Knapp v. City of Decatur (1987), 160 Ill. App. 3d 498, 513 N.E.2d 534; Bazos v. Chouinard (1981), 96 Ill. App. 3d 526, 421 N.E.2d 566; Chimerofsky v. School District No. 63, 121 Ill. App. 2d 371, 257 N.E.2d 480.) An undue burden would be placed on landowners in requiring them to focus on a minor’s subjective inability to appreciate a risk. Swearingen v. Korfist (1989), 181 Ill. App. 3d 357, 362, 537 N.E.2d 365.

A landowner owes no duty to a child if children of similar age and experience would be able to appreciate the dangers on the premises. (Newby v. Lake Zurich Community Unit, District 95 (1985), 136 Ill. App. 3d 92, 482 N.E.2d 1061; Warchol v. City of Chicago (1979), 75 Ill. App. 3d 289, 393 N.E.2d 725.) There is no duty on the part of a landowner to remedy obvious risks which children know or should know are present, because they are expected to avoid dangers which are obvious and therefore no reasonably foreseeable risk of harm exists. Cope v. Doe, 102 Ill. 2d 278, 464 N.E.2d 1023; Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 383 N.E.2d 177; Alop v. Edgewood Valley Community Association, 154 Ill. App. 3d 482, 507 N.E.2d 19.

Evelia was eight years old at the time of her injury. She had attended school for several years, was in kindergarten, visited the park regularly with her mother, and had played on the very slide from which she fell. Under these circumstances, Evelia should have been able to appreciate the dangers involved in falling from the slide. Alop v. Edgewood Valley Community Association, 154 Ill. App. 3d 482, 507 N.E.2d 19; Chimerofsky v. School District No. 63, 121 Ill. App. 2d 371, 257 N.E.2d 480. See also Cope v. Doe, 102 Ill. 2d 278, 464 N.E.2d 1023; Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 383 N.E.2d 177; Young v. Chicago Housing Authority, 162 Ill. App. 3d 53, 515 N.E.2d 779; Knapp v. City of Decatur, 160 Ill. App. 3d 498, 513 N.E.2d 534.

Moreover, if a child is too young chronologically or mentally to be “at large,” the duty to supervise that child as to obvious risks lies primarily with the accompanying parent. (Driscoll v. C. Rasmussen Corp. (1966), 35 Ill. 2d 74, 219 N.E.2d 494; Kay v. Ludwick (1967), 87 Ill. App. 2d 114, 230 N.E.2d 494.) Here, Evelia was accompanied by her mother, who allowed her to climb the slide without any physical help or visual observation. Application of a subjective standard in cases such as this would expose landowners to new risks, relieve an accompanying parent of a duty to supervise, and be contrary to the standards stated in other decisions. See, e.g., Alop v. Edgewood Valley Community Association, 154 Ill. App. 3d 482, 507 N.E.2d 19; Driscoll v. C. Rasmussen Corp., 35 Ill. 2d 74, 219 N.E.2d 494.

For the reasons stated, we conclude that the circuit court properly granted defendant’s motion for summary judgment.

The judgment of the circuit court is affirmed.

Affirmed.

BILANDIC, P.J., and SCARIANO, J., concur.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    NEIL EPSTEIN, Petitioner-Appellant, v. MICHAEL LANE, Director, Department of Corrections, Respondent-Appellee.
    Third District
    No. 3-88-0744
    Opinion filed September 22, 1989.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield, and Edward Burmila, State’s Attorney, of Joliet (Kimary Lee, Assistant Attorney General, of Chicago, and John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The petitioner, Neil Epstein, appeals from an order of the trial court dismissing his petition for a writ of habeas corpus. The petition alleged that on April 4, 1986, the petitioner escaped from the custody of the Illinois Department of Corrections (Department), was subsequently apprehended, and was thereafter convicted on a criminal charge of escape. The petition further alleged that in a separate proceeding the petitioner was also found guilty of several departmental violations, including escape. As a result of those violations, the Department revoked 360 days of his accumulated good-time credit.

The petitioner contended in his petition that his due process rights had been violated in the second proceeding. He alleged that his prison counselor had initiated the criminal escape charge against him, had testified against him before the grand jury which indicted him on that charge, then had served as the chairman of the hearing committee which revoked his good-time credit. The petitioner contended that he had therefore been denied an impartial hearing.

The respondent, Michael Lane, Director of the Department of Corrections, filed a motion to dismiss the petition, contending that it failed to state a cause of action. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 615.) The trial court granted the respondent’s motion. The petitioner appeals, arguing that the court erred.

Initially, we note that the respondent has raised the argument that a writ of habeas corpus is not the proper remedy here, since the petitioner would not be entitled to release even if his good-time credit were reinstated. We find the resolution of this argument inconsequential, since in any event section 10 — 121 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 10 — 121) provides for liberal amendment of pleadings in these cases.

Turning to the merits of this appeal, we note that in determining the legal sufficiency of a complaint on a motion to dismiss, all well-pleaded facts, together with all reasonable inferences that can be drawn from those facts, must be taken as true. (Denkewalter v. Wolberg (1980), 82 Ill. App. 3d 569, 402 N.E.2d 885.) The reviewing court must determine whether the allegations in the complaint, when viewed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. (Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 407 N.E.2d 156.) Therefore, we must determine whether the instant petitioner’s allegations, when taken as true, were sufficient to state a cause of action for a due process violation.

An inmate facing the possible revocation of his good-time credit is entitled to a hearing conforming with due process. (Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963.) An impartial decision maker is an important due process requirement. (Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963.) Due process in the context of a prison disciplinary proceeding prohibits those officials who have a direct personal or otherwise substantial involvement, such as major participation in a judgmental or decision-making role in the circumstances underlying the charge, from sitting on the disciplinary body. (Redding v. Fairman (7th Cir. 1983), 717 F.2d 1105.) Moreover, Illinois Department of Corrections regulation 504.80(d) specifically provides:

“A person(s) who initiated the allegations which serve as the basis for the Disciplinary Report, or who conducted a formal investigation into those allegations, or who witnessed the incident, shall not serve on the Adjustment Committee hearing that Disciplinary Report.” 20 Ill. Adm. Code 504.80(d) (1985).

The respondent concedes that the petitioner’s counselor played a role in initiating the charges against him and served on the adjustment committee responsible for revoking his accumulated good time. However, it argues that this dual role did not by itself amount to a due process violation, because State administrators are presumed to be men of conscience and intellectual discipline and thus capable of judging a particular controversy fairly on the basis of its own circumstances. (Grissom v. Board of Education (1979), 75 Ill. 2d 314, 388 N.E.2d 398.) The respondent contends that under the Grissom holding the petitioner must show more than the mere possibility of bias.

We do not find Grissom controlling in the instant case. Grissom involved a tenured teacher who was fired from his position, rather than a prisoner facing the revocation of his good-time credit. The United States Supreme Court has held that in determining what constitutes due process, procedural rules designed for free citizens in an open society cannot automatically be applied to the very different situation presented by a disciplinary proceeding in a State prison. (Hewitt v. Helms (1983), 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864.) Additionally, we note that in Grissom the teacher received a full hearing on the merits of his case. For these reasons, we find Grissom distinguishable and the respondent’s reliance on it unpersuasive.

The petitioner here has alleged that his counselor initiated a criminal escape charge and testified against him before the grand jury which indicted him on that charge. Allegedly, the counselor subsequently sat as the chairman of the adjustment committee which revoked almost one year of his accumulated good-time credit. Accepting these allegations as true for purposes of the motion to dismiss, it appears that the counselor played a substantial part in the circumstances underlying the escape charge that was before the committee. We therefore find that these allegations were sufficient to constitute a cause of action for the deprivation of the petitioner’s due process rights and that the petitioner should have been given the opportunity to prove his allegations. Accordingly, we find that the trial court erred in granting the respondent’s motion to dismiss.

The judgment of the circuit court of Will County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

BARRY and SCOTT, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL LEE ROBERTS, Defendant-Appellant.
    Fourth District
    No. 4—89—0002
    Opinion filed October 12, 1989.
    Rehearing denied October 31, 1989.

      Daniel D. Yuhas and Timothy M. Gabrielsen, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle and Robert J. Biderman, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

In People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, a defendant was charged with and convicted of attempt (burglary). The alleged substantial step toward the commission of burglary was that he had pulled a screen from a window and then broke that window of a building with the intent to enter the building and commit a theft. The supreme court held that defendant was entitled to an instruction on the offense of criminal damage to property (Ill. Rev. Stat. 1983, ch. 38, par. 21 — 1(a)), the commission of which offense was supported by the evidence. Here, an accused was charged with (1) burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1); and (2) attempt (burglary) (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4), the substantial step toward the commission of which was the breaking of a window of a certain building with the intent to commit theft. The evidence was sufficient to support a conviction of criminal damage to property, but the circuit court refused the instruction. The State was then given leave, over defense objection, to dismiss the attempt (burglary) charge. We conclude the dismissal of the attempt (burglary) charge distinguishes this case from Bryant and cured any . error in the refusal of the criminal damage to property instruction.

The defendant here is Russell Lee Roberts, who was charged with the described offenses by an information filed in the circuit court of Macon County on August 16, 1988. After a jury trial, the defendant was convicted of burglary on November 21, 1988. On December 2, 1988, the court sentenced defendant to 22 years’ imprisonment. He has appealed, contending the evidence did not support the verdict and the court erred by refusing instructions he tendered as to the offenses of both attempt (burglary) and criminal damage to property. We affirm.

The evidence was neither extensive nor complicated. It showed that Richard McDonald was in the business of selling insurance, and his Decatur office had been intact when closed on Friday, August 12, 1988. Mary Covey testified that, the next day, Saturday, August 13, 1988, at approximately 9:45 p.m. she saw two men outside that building. She said one man threw rocks at the building and then walked to the back of the building while the other man ran away. Two police officers testified that, upon receiving a report from Covey, they drove to the building, arriving at 9:49 p.m., and saw defendant standing outside the building at ground level and near two broken windows. The officers’ testimony further indicated that, upon entering the building, they found: (1) two rocks, papers, and broken glass on the floor beneath the broken windows; (2) circular scratches on an interior door of the office; (3) a telephone jack which had been pulled from a wall; and (4) an ashtray and chair had been moved from what other testimony described as their usual positions. Evidence also showed that five sheets of the paper on the floor contained red stains made by blood of the same type as that of the defendant. Testimony also indicated a wire basket which had been on a bookcase approximately four feet off the floor was found on the floor. Fingerprints identified as those of the defendant were found on glass fragments outside the building. Those prints appeared on fragments of both dark exterior window glass and light interior glass. No showing was made that anything of substance had been taken from the building. The evidence was undisputed defendant had no authority to enter the building.

Defendant’s evidence consisted entirely of his own testimony. He gave the following explanation of his presence and conduct on the evening of Saturday, August 13, 1988, at the building where McDonald had his office. The previous day he had telephoned the office of the building’s owner and talked to a person whom he could not identify. He asked that person about obtaining employment and had been treated rudely. Then, the next night, after he had consumed four or five beers, he walked by the building, and, on impulse, he decided to get revenge. He picked up a large rock and tried to throw it at a window, but the rock did not reach the window, so he pushed it against the window, breaking the window but also cutting his hand on the broken glass. He then picked up a smaller but heavier rock and threw it through the window. He then took a brick from a nearby pile and was about to attempt to break the front door when the police arrived. Defendant stated he did not enter the building and had no intent to do anything other than to damage the building. He stated he was alone at the time.

The question of whether the evidence supported the verdict finding defendant guilty of burglary depends upon the sufficiency of the circumstantial evidence (1) to show defendant entered the building; and (2) to create a sufficiently strong inference that, in doing so, he intended to commit a theft as alleged in the information. The testimony of the defendant was disputed by the testimony of Covey that two men were together at the building and was greatly weakened by his inability to identify who he talked to in seeking work. Even though proof of defendant’s guilt depended upon circumstantial evidence, the prerogative of the jury to determine the credibility of witnesses entitled it to reject the testimony of the defendant here. (People v. Locascio (1985), 106 Ill. 2d 529, 537, 478 N.E.2d 1358, 1361.) For reasons we will explain, we hold the circumstantial evidence was sufficient for a reasonable jury to find, beyond a reasonable doubt, that every element of the burglary had been proved. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.

The evidence of entry here is shown by the blood on the paper below the broken window, and the damage done to the property inside the building. Defendant maintains the existence of the blood can be reasonably explained upon a theory that defendant cut himself while breaking the window. However, the blood would not have been likely to have fallen inside the window if defendant merely threw a rock through the window or even if he had pushed a rock against the window. Nor would his fingerprints likely have been on glass fragments from both an interior and exterior window. The existence of this blood and these fingerprints can only be explained on a basis that defendant stuck his hand well inside the window. In People v. Palmer (1980), 83 Ill. App. 3d 732, 404 N.E.2d 853, this court held a sufficient entry to support a burglary conviction occurred when an accused punched a hole in a roof of a building and entered parts of his body into that building. See also People v. Songer (1963), 28 Ill. 2d 433, 192 N.E.2d 861; People v. Roldan (1968), 100 Ill. App. 2d 81, 241 N.E.2d 591.

The existence of the blood on the paper was, of itself, enough to prove entry by defendant. The existence of the damage to the property inside the building and fingerprints on the interior glass was further proof of defendant’s entry. The time frame between the breaking of the windows and the finding of the damage inside the building by police was such as to negate any theory that defendant broke the window, but one or more other persons, for whom defendant was not accountable, then entered the building and damaged the property. One or more other people could have entered the building after it was closed the previous Friday evening and before defendant broke the window and created the described damage. However, the likelihood of this happening was extremely remote, particularly in light of the fact no other indication of an entry to the building was shown. The jury could properly have disregarded such an hypothesis.

Citing People v. King (1985), 135 Ill. App. 3d 152, 481 N.E.2d 1074, defendant maintains the fact his fingerprints were found outside the building but not inside the building is of great significance. There, an accused was convicted of burglary of both a house and an unattached garage. The appellate court deemed the circumstantial evidence sufficient to support the burglary of the garage, where defendant’s prints were found, but not the house, where no prints of the accused were found. In pointing out the lack of proof of the entry of the accused into the house, the King court did mention that a person who left prints in a garage while committing a burglary would also likely leave prints in a house if he committed a burglary of that house. Without passing upon whether we agree with that conclusion, we note the King court did not deem the lack of prints in the house to be the determinative factor in the case. Rather, the determinative factor there was that no evidence existed of an entry into the house by the accused.

Defendant concedes the general rule that, where, as here, unauthorized entry into a building containing valuable property is shown, the trier of fact may infer the entry was made with intent to commit a theft. However, defendant points out that, in People v. Johnson (1963), 28 Ill. 2d 441, 443, 192 N.E.2d 864, 866, the court stated this rule was applicable only “in the absence of inconsistent circumstances.” We do not consider the facts alleged in defendant’s testimony to constitute “inconsistent circumstances” within the Johnson concept because the jury could properly disbelieve the explanation given by defendant. Other evidence showed defendant entered a building which contained personal property of value and which could be stolen. This gave rise to an inference that defendant entered with the intent to steal. People v. Bryant (1979), 79 Ill. App. 3d 501, 398 N.E.2d 941.

In contending defendant’s intent to commit a theft cannot be inferred from the evidence here, defendant points out that the office had been ransacked but nothing of significance taken. In People v. Rhodes (1981), 85 Ill. 2d 241, 422 N.E.2d 605, the principal question was whether proof of the fingerprints of that accused near a door to a house which had been broken into was sufficient to enable the jury to properly determine the accused was the person who had broken into the house. The court concluded that evidence was sufficient, and the circumstantial evidence supported the conviction. There, as here, the evidence showed a ransacking of the house but no taking of the property. This case differs from People v. Ehrich (1988), 165 Ill. App. 3d 1060, 519 N.E.2d 1137, and People v. Perry (1971), 133 Ill. App. 2d 230, 272 N.E.2d 766, cited by defendant, where substantial evidence, much of it undisputed, indicated that intruders charged with burglary with intent to commit theft had other intentions when breaking into houses.

The evidence supported the burglary conviction.

Finally, we come to the questions involved in the court’s denial of defendant’s requested instructions on attempt (burglary) and criminal damage to property. Ironically, at the time the court sustained the State’s objection to the attempt instruction, a count of the information filed by the State which charged attempt (burglary) was still pending. It was pending throughout the conference on instructions and at the time of the court’s rulings thereon. Then, when the existence of the count became apparent, the State, over defense objection, was permitted to dismiss that count. We will again refer to the question of the existence of that count at that time, but we do not find any prejudice to have occurred to defendant because that count was dismissed after, rather than before, the conference and ruling on instructions.

The parties agree a defendant is entitled, under certain circumstances, to have the jury instructed as to an offense less serious than that with which the defendant is charged. The most definitive opinion in this regard is that in the fairly recent decision in the previously mentioned case of People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, which we shall hereafter refer to as Bryant in distinction to People v. Bryant (1979), 79 Ill. App. 3d 501, 398 N.E.2d 941, also mentioned earlier. Bryant explained that the purpose of such a rule is to permit a jury, deeming the defendant not guilty of the charged offense but reluctant to completely acquit, an opportunity to find the defendant guilty of a lesser offense if the jury finds the proof of the lesser offense strong enough to convict. The opinion cited Keeble v. United States (1973), 412 U.S. 205, 212-13, 36 L. Ed. 2d 844, 850, 93 S. Ct. 1993, 1997-98.

As indicated in Bryant, the less serious offense upon which an instruction is required must be, in the larger sense, an included offense of the charged offense. Section 2 — 9 of the Criminal Code of 1961 (Code) defines the phrase “included offense” in these words:

“ ‘Included offense’ means an offense which
(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or
(b) Consists of an attempt to commit the offense charged or an offense included therein.” (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 9.)

The Bryant opinion explained that the foregoing definition does not decide the question of whether one offense is determined to be an included offense of another on the basis of (1) the abstract definition of the more serious crime, (2) the allegation of that crime in the charge, or (3) the elements of the more serious crime as proved at trial.

Clearly, the offense of attempt (burglary) was an included offense of burglary as section 2 — 9(b) of the Code expressly provides that an attempt to commit an offense is an included offense of the offense attempted. However, as we have previously indicated and as this court has stated, for a defendant to be entitled to an instruction on an included offense, “the evidence must permit a jury to rationally find [that] defendant guilty of the lesser offense and acquit him of the greater.” (People v. Reynolds (1987), 152 Ill. App. 3d 216, 218, 504 N.E.2d 163, 165, citing Bryant, 113 Ill. 2d 497, 499 N.E.2d 413; People v. Perez (1985), 108 Ill. 2d 70, 81, 483 N.E.2d 250, 255, cert, denied (1986), 474 U.S. 1110, 88 L. Ed. 2d 931, 106 S. Ct. 898.) Thus, the question of whether this defendant was entitled to an instruction on attempt (burglary) depends entirely upon whether the evidence called for the giving of the instruction.

The evidence in Reynolds was remarkably similar to that here. A house trailer was entered and various objects moved, but no evidence indicated any property was taken. The defendant was found near the trailer, admitted he had walked around the building, but denied any entry into the building or intent to enter or to commit a theft. The Reynolds court concluded the trailer was either burgled by that defendant or someone else. No evidence indicated he attempted to do so and then stopped before making an entry. The offense of burglary is committed by an entry with the required intent. Subsequent conduct is of significance only to the extent it bears upon the prior intent.

Here, as in Reynolds, the undisputed evidence showed an entry into the structure involved. No evidence showed defendant attempted to enter to commit a theft and was unable to do so. His explanation, which the jury could believe, but was not required to do so, was that he never intended to commit a theft. He maintains he merely intended to damage the building owner’s property. As in Reynolds, defendant was not entitled to an attempt (burglary) instruction.

The most serious and complicated problem concerns the court’s refusal to instruct on the offense of criminal damage to property. That offense is defined by section 21 — 1 of the Code, which describes, as one of the types of conduct which constitute the offense, “[k]nowingly [damaging] any property of another without his consent.” (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 1(a).) Here, as in Bryant, the defendant relies upon the foregoing statutory language in contending the offense of criminal damage to property was an included offense for which an instruction on criminal damage to property was required under the facts shown. Under the abstract statutory definition, this type of criminal damage to property is not an included offense of burglary or attempt (burglary) because it is not proved by “the same or less than all the facts” of burglary or attempt (burglary). Criminal damage to property has the element of damage to property, which is not an element of burglary which merely requires an unauthorized entry with the requisite intent (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1(a)); nor of attempt, which does not require any particular act or a substantial step towards the commission of the intended offense (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4(a)).

In regard to tests for determining whether one offense is an included offense of another beyond the abstract definition test, the supreme court explained in Bryant that in People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633, it had rejected a broad test which would require giving, if supported by the evidence, an instruction upon a less serious offense if that offense was inherently related to the charged offense. However, as the court noted, in People v. Dace (1984), 104 Ill. 2d 96, 470 N.E.2d 993, the court held the giving of an instruction on theft was necessary in the circumstances there where a defendant had been tried on a charge of burglary based upon an entry with intent to commit theft. The basis of that decision was that the information had charged an intent to commit theft, and the evidence tended to prove the commission of theft. See People v. Schmidt (1988), 126 Ill. 2d 179, 533 N.E.2d 898.

The Bryant decision concerns the requirement to give the included offense instruction when the elements of the included offense are, in a broad sense, included in the offense charged and the evidence that develops at trial proves the included offense. That decision was based on the fact that the charge there had “set out the main outline of the lesser offense” for which an instruction was sought. (Bryant, 113 Ill. 2d at 505, 499 N.E.2d at 416.) There, as under the dismissed attempt count here, the alleged substantial step toward the commission of the offense was the breaking of a window. Thus, although damage to property entered is not a necessary element of burglary or attempt (burglary), the charge of the attempt count in both cases alleged damage by alleging breaking of a window. There, because the attempt (burglary) charge had alleged that defendant acted with intent to knowingly enter the building where the property was damaged, that allegation was deemed to outline the mental state of knowledge which is the mental state for the offense of criminal damage to property.

In Bryant, the court also explained that, there, the jury could infer defendant’s responsibility for the damage to the property without also inferring his intent to commit theft. Here, the attempt (burglary) charge contained the similar “main outline” for the criminal damage to property charge, and the jury could have inferred the necessary mental state to find this defendant guilty of criminal damage to property without inferring he had an intent to commit theft. This would be so regardless of whether the jury believed defendant entered the office building.

Accordingly, here, if the count charging attempt (burglary) had not been dismissed, the court would have erred in refusing the criminal damage to property instruction. The defense apparently recognizes that, absent the attempt (burglary) count, it would not have been entitled to such an instruction. The defense phrases its claim of error in terms that the court erred in allowing the dismissal of the count. However, there are almost no constraints upon a prosecutor’s decision to dismiss a charge, and the few that do exist have no application to this case. Thus, we hold the question for us to decide is whether the existence of the attempt (burglary) charge until just before the case was submitted to the jury was sufficient to require the giving of the criminal damage to property instruction.

The Bryant opinion indicates a continued rejection of the inherent relationship test and expressly shows a continuing policy of maintaining limits upon the theory by which an instruction upon a less serious offense is required. (Bryant, 113 Ill. 2d at 507, 499 N.E.2d at 417.) The purpose of requiring the giving of these instructions is to enable the jury to acquit on the graver charge while convicting on an included charge. When the graver charge is not submitted to the jury, regardless of when that charge is dismissed, the purpose of the included offense instruction no longer exists. The supreme court has rejected the theory that an instruction should be given to enable the jury to acquit of a graver charge while convicting of a less serious charge which does not come within the expanded included offense concepts described in Bryant.

The burglary charge did not require the giving of the criminal damage to property instruction because the burglary charge said nothing about the breaking of a window and thus gave no “broad outline” of the criminal damage to property offense. This is so even though criminal damage to property in this case is an included offense of attempt (burglary), which in turn is an included offense of burglary. We recognize the effect of our holding here is to rule that an included offense (criminal damage to property) of an included offense (attempt (burglary)) of a principal offense (burglary) is not an included offense (criminal damage to property) of the principal offense (burglary). While the Bryant and Dace decisions have broadened the definition of “included offense” for purposes of giving juries an alternative guilty verdict to consider, the supreme court in Bryant stated it had explicitly rejected the “inherently related” test to determine whether an included offense instruction should be given. Only under the rejected “inherently related” test could criminal damage to property be considered an included offense to burglary as charged here.

As we have indicated, we affirm the judgment of conviction and sentence.

Affirmed.

McCULLOUGH, P.J., and STEIGMANN, J., concur.


author: PRESIDING JUSTICE BARRY

text:
    JUDITH A. EALY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Kerasotes Theatre, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—88—0584WC
    Opinion filed September 28, 1989.

      Scheele, Cornelius & Associates, Ltd., of LaGrange, for appellant.
    Heyl, Royster, Voelker & Allen, of Urbana (Edward M. Wagner and John D. Flodstrom, of counsel), for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

An arbitrator found that an injury sustained by the petitioner, Judith A. Ealy, had not arisen out of and in the course of her employment. The Industrial Commission (Commission) affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision. The petitioner appeals.

At the hearing before the arbitrator, the petitioner testified that on January 2, 1984, she was working as a relief manager for the respondent, Kerasotes Theatre. Her duties included supervising concession and box office personnel. The respondent owned two theaters in Mattoon, the Time and the Cinemas, which were located across the street from each other. On that night she was working at the Time, although her duties sometimes required her to work at the Cinemas. Her shift began at 3:30 p.m. and was to end at 10 p.m.

The petitioner further testified that the respondent had a rule requiring that an employee working more than six hours must take a break. The time of the break was at the employee’s discretion, and the employee was not paid for time spent while on break. The respondent did not allow employees to eat in the theater’s foyer, nor did the respondent provide a break room.

The petitioner testified that she decided to take her break around 7:30 p.m. After she signed out, her husband, who was also an employee of Kerasotes Theatre, and petitioner’s supervisor accompanied her to a Burger King restaurant one block west of the theater. While at the restaurant they discussed business matters. Around 8:30 p.m., they decided to go back to the theater. The petitioner intended to go to the Cinemas to pick up some box office reports and then return to the Time. The route she took from the Burger King was the same whether she intended to go to either theater.

She stated that as they walked down the alley leading from the Burger King she slipped and fell on some ice. Although her left arm and hip were hurt, she continued on to the Cinemas, where she picked up the box office reports. She then returned to the Time. Later in the evening, she went to the hospital and was told that she had broken her arm.

Robert Cope, the petitioner’s supervisor, testified that employees were allowed to eat on the premises during breaks, but not in front of the customers. He also stated that the route the petitioner took from the Burger King to the location of her accident would be the same whether she intended to go to the Time or the Cinemas.

The petitioner argues on appeal that the Commission erred in finding that her accident had not arisen out of and in the course of her employment. She contends that since her trip back from the restaurant served a business purpose, the Commission should have found that she was entitled to compensation.

Although petitioner has framed the issue otherwise, the question before this court is whether the Commission’s finding of noncompensability is contrary to the manifest weight of the evidence. Under the Workers’ Compensation Act, workers shall only be compensated for injuries arising out of and in the course of their employment. (Ill. Rev. Stat. 1987, ch. 48, par. 138.2; Lynch Special Services v. Industrial Comm’n (1979), 76 Ill. 2d 81, 389 N.E.2d 1146.) Generally, off-premises injuries incurred while going to and coming from an unpaid dinner break are not compensable. (International Art Studios v. Industrial Comm’n (1980), 83 Ill. 2d 457, 415 N.E.2d 1031.) An exception to this rule is when the trip is occasioned by the demands of the employment. (Torbeck v. Industrial Comm’n (1971), 49 Ill. 2d 515, 276 N.E.2d 344.) It is clear to us that the “dual-purpose trip” analysis (see 1 A. Larson, Workmen’s Compensation Law §18.12 (1985)) as suggested by petitioner in this case does not apply. Rather, the guiding principle in determining whether petitioner’s dinner break injury is compensable is “whether ‘the employer, in all the circumstances, including duration, shortness of the off-premises distance, and limitations on off-premises activity during the intervals can be deemed to have retained authority over the employee ***.’ ” Lynch, 76 Ill. 2d at 90, 389 N.E.2d at 1149, quoting 1 A. Larson, Workmen’s Compensation §15.54 (1978).

In Lynch, a case factually similar to this, our supreme court denied compensation. There the claimant slipped and fell on an icy sidewalk, as here, and broke his arm returning from a restaurant where he had purchased his breakfast. The court analyzed the issue by considering both the general “going and coming” rule of noncompensability and Professor Larson’s discussion of the personal comfort doctrine and the “coffee break” cases. The court observed that the cause of injury — i.e., falling on the icy sidewalk — was not a risk peculiar to claimant’s employment, thereby defeating the “arising out of” requirement of the Workers’ Compensation Act. The court concluded, “In our judgment claimant’s injury cannot be said to have arisen out of and in the course of his employment to any greater extent than can that of the ordinary fall on the ice suffered by an employee who voluntarily elects to go outside his place of employment to purchase or eat his food.” (Lynch, 76 Ill. 2d at 92, 389 N.E.2d at 1150.) Accordingly, the court reversed the circuit court’s award of compensation.

Applying the principles enunciated in Lynch to this case, we find that the injury did not arise out of and in the course of the petitioner’s employment. The petitioner went to the restaurant of her own volition, and the trip was not occasioned by the demands of her employment. Moreover, it appears that she would have undertaken her trip regardless of whether she planned to go to the Cinemas Theatre. Despite the fact that petitioner was joined by other employees and discussed “shop” during her break, the evidence does not demonstrate that petitioner’s trip either benefited or accommodated her employer. Consequently, it cannot be said that respondent retained authority over her during the break; and the Commission did not err in finding that petitioner’s injury from a fall on the ice was not occasioned by a risk peculiar to or incidental to her employment. We therefore affirm the Commission’s finding that the petitioner was not entitled to compensation.

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

Affirmed.

McNAMARA, WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARSLEY M. SMITH, Defendant-Appellant.
    Fourth District
    No. 4—88—0881
    Opinion filed September 28, 1989.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Robert S. O’Shea, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On September 23, 1988, defendant Earsley Smith, following a trial in absentia, was found guilty by a jury sitting in the circuit court of Champaign County of the offenses of aggravated battery and resisting a peace officer, in violation of sections 12 — 4(b)(6) and 31 — 1, respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 4(b)(6), 31 — 1). He was subsequently placed on probation for each offense. He now appeals.

On July 11, 1988, defendant was charged by information with two counts of aggravated battery and one count of resisting a police officer. The information alleged that upon his arrest for an unrelated matter, defendant struggled, attempted to pull away, and spit in the face of one officer. On that day, he was advised of the possibility of trial in absentia, pursuant to section 113 — 4 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 4). The trial was set for September 12, 1988, and defendant was released on bond.

On September 12, defendant appeared with his counsel, and the matter was reset for September 19. On September 19, the case was set for September 21. Defendant did not appear at this hearing. On September 21, the case was called for trial, and defendant failed to appear. The State moved for trial in absentia, and the court continued the matter to September 23 for a hearing on the motion.

At that hearing, defense counsel testified he spoke with defendant, who was residing in Chicago, by telephone on September 18, advising him there would be no trial on September 19, and he need not appear. Defendant was instructed to call counsel at noon on the 19th to learn about the new trial date. He did not do so. Counsel attempted to contact defendant many times after that, but was unsuccessful. The court granted the State’s motion, and defendant was convicted.

Defendant’s first contention of error is that the State did not comply with all the proper procedures to try him in absentia. Section 115 — 4.1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4.1) provides that when a date for a trial in absentia is set, the clerk shall send defendant, by certified mail, notice of the trial date to his address indicated on his bond slip. We have held this provision to be mandatory. People v. Williams (1987), 151 Ill. App. 3d 1010, 1013, 503 N.E.2d 1090, 1092.

The State acknowledges this holding, but asks us to carve an exception where the defendant was present when the original trial date was set, and the defendant, by his conduct in failing to keep the court or his counsel informed of his whereabouts, would not have received the certified mail. We must decline the proffered opportunity.

In reaching our decision in Williams, we stated:

“In concluding that the certified mailing procedure is mandatory, we are not unaware of the probable futility of the procedure in this case. All trial judges with a substantial criminal calendar have reason to be frustrated by the technical nature of this decision. The legislation establishing trials in absentia changed the rights of all those who fail to appear for trial. The specific provisions of the legislation were intended to protect the constitutional right to trial yet remedy a problem facing the criminal courts. We find it necessary to give strict construction to the provisions of the act.” (Williams, 151 Ill. App. 3d at 1013, 503 N.E.2d at 1092.)

Recently, in a case involving the oral admonitions of section 113 — 4, we reaffirmed our position that the provisions involved in the trial in absentia sections must receive a strict construction. (See People v. Lester (1988), 165 Ill. App. 3d 1056, 1059-60, 519 N.E.2d 1127, 1130.) Accordingly, since notice of the September 23 trial date was not sent in accordance with section 115 — 4.1, we must reverse and remand defendant’s conviction for aggravated battery.

However, there is no such deficiency with defendant’s conviction for the misdemeanor of resisting a peace officer. Section 115 — 4.1 applies to only noncapital felony offenses. In People v. Johnston (1987), 160 Ill. App. 3d 536, 513 N.E.2d 528, we determined, after an analysis of case law, that this provision did not preclude trials in absentia for misdemeanor violations, as long as the defendant was previously admonished pursuant to section 113 — 4. We also concluded, since section 115 — 4.1 applied only to noncapital felony cases, that “there was no need for the trial court herein to abide by the strict notice requirement of section 115 — 4.1.” Johnston, 160 Ill. App. 3d at 542, 513 N.E.2d at 532.

To establish a prima facie case of wilful avoidance of trial, the State must show that a defendant is advised of the fact that his failure to appear may result in a trial in absentia, is advised of his trial date, and does not appear. (People v. Broyld (1986), 146 Ill. App. 3d 693, 699, 497 N.E.2d 147, 151; People v. Stanley (1983), 116 Ill. App. 3d 532, 534-35, 452 N.E.2d 105, 107.) A defendant who has been released on bail pending trial has a duty to present himself when his case is called for trial. (Johnston, 160 Ill. App. 3d at 541, 513 N.E.2d at 532; People v. Burns (1983), 117 Ill. App. 3d 123, 128, 453 N.E.2d 21, 25.) Concurrent with the defendant’s duty to appear is the obligation to keep the court informed of his whereabouts, so as to not preclude the court from contacting him. (Burns, 117 Ill. App. 3d at 128, 453 N.E.2d at 25.) Heroic efforts to ascertain a defendant’s whereabouts are not required of the State prior to conducting a trial in absentia. Johnston, 160 Ill. App. 3d at 541, 513 N.E.2d at 532; People v. Joyner (1982), 109 Ill. App. 3d 1083, 1088, 441 N.E.2d 1214, 1217.

In determining the trial in absentia was proper in Johnston, we stated:

“Evidence indicated that the defendant was properly admonished regarding the court’s right to conduct trial in his absence. The defendant appeared for pretrial, during which a new trial date was set. The defendant failed to appear thereafter. The defense attorney offered no excuse or explanation for the defendant’s silence. The defendant was sent notice of forfeiture of bond, but notice was returned. Obviously, the defendant failed to keep the court apprised of his whereabouts. It is clear that after the court rescheduled the trial, the defendant was no longer aware of his trial date. It is no defense that the trial was not actually heard on the date that it was set when the defendant failed to appear at the pretrial hearing in order for the case to be heard at the date originally set. The defendant completely disregarded his duty and made no attempts whatsoever to contact the court or his attorney. It is this very type of wilful avoidance that trial in absentia was adopted to prevent. Trial in absentia was properly ordered where the defendant had notice of the initial trial date.” Johnston, 160 Ill. App. 3d at 542, 513 N.E.2d at 532.

Similarly, in the case now before us, the evidence establishes that defendant was admonished concerning a trial in absentia and was advised of the September 19 trial date, at which he did not appear. While counsel’s testimony explained defendant’s absence at that hearing, it also established defendant was to call back and find out the new date, which he did not. Counsel also made, at least, 15 unsuccessful efforts to call defendant at different times during the days, and the telephone rang without being answered. We also note the clerk mailed defendant a notice of the hearing on the post-trial motion to the address listed on the bond form, and it was returned as undeliverable. It is apparent, as in Johnston, defendant did totally disregard his duty and made no effort to contact court or counsel, or to keep them informed of his whereabouts. The trial in absentia was proper.

Finally, defendant argues the court erred in refusing his jury instruction, which read:

“The fact that the defendant did not appear at the trial should not be considered by you in any way in arriving at your verdict.”

He believes the refusal to give this instruction is analogous to a refusal to instruct the jury that it must not consider a defendant’s failure to testify.

Defendant cites no authority for this position other than the alleged similarity between a failure of a defendant to testify and a failure of a defendant to appear. However, the first is contained in a defendant’s right to remain silent protected by the fifth amendment of the constitution. There is no constitutionally protected right to not appear at trial. Defendant’s analogy must, therefore, fail.

Defendant insists that the failure to give the instruction violates, not the fifth amendment, but the fourteenth amendment due process clause because defendant will be convicted on his failure to appear and not on the evidence presented at trial. However, the jury was instructed that they should consider only the testimony of witnesses and exhibits in reaching their verdict. They were also instructed not to consider the fact defendant did not testify. These instructions sufficiently protected defendant against the possibility that the jury would convict him solely on his failure to appear.

Lastly, even if it were error to refuse the instruction, and we do not believe it was, this error was harmless. There was no reference made to defendant’s absence at any time during closing arguments. Also, the evidence is overwhelming. Refusal to give a tendered instruction is harmless error where it can be said that the result of the trial would not be different if the instruction had been given. People v. Moore (1983), 95 Ill. 2d 404, 410, 447 N.E.2d 1327, 1330.

Affirmed in part; reversed in part and remanded.

KNECHT and SPITZ, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT A. COBB, Defendant-Appellant.
    Fourth District
    No. 4—89—0111
    Opinion filed September 28, 1989.
    Daniel D. Yuhas and Judith L. Libby, both of the State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

After a jury trial in Macon County, the defendant was convicted of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1) and sentenced to 30 years’ imprisonment. The only issues raised on appeal pertain to jury selection: (1) whether the court erred during voir dire by not dismissing for cause a prospective juror who was the father of the prosecutor in charge of felony cases in Macon County who signed the information charging the defendant, and (2) whether the court erred in denying defense counsel’s motion for additional peremptory challenges.

During voir dire, prospective juror Jacob Ahola (Jacob) disclosed that he was the father of Macon County Assistant State’s Attorney Jack Ahola (Jack). When questioned by the court, Jacob stated that his son’s position as an assistant State’s Attorney would not affect his ability to be a fair and impartial juror. Jacob further stated that he would not owe his son any explanation for voting the way he did on the verdict and that he and Jack never discussed Jack’s cases. Lastly, Jacob stated that he had no objection to placing the burden of proof on the State and would not hesitate to return a not guilty verdict if the State did not meet that burden.

Upon examination by defense counsel, Jacob acknowledged that his son was the assistant in charge of felony prosecutions. Jacob also stated that he was not acquainted with Macon County State’s Attorney Larry Fichter or the two assistant State’s Attorneys who were prosecuting this case. Further, Jacob stated that his son’s employment in the State’s Attorney’s office would not make it difficult to be a fair juror.

While Jack signed the information charging the defendant with first degree murder, he took no part in the trial and never made any appearance in court. Nothing in the record shows Jacob knew that Jack signed the information or that Jack participated in this case.

After examination, defense counsel challenged Jacob for cause. The challenge was denied. Defense counsel then exercised a peremptory challenge and Jacob was excused. After defendant’s peremptory challenges were exhausted, defense counsel requested additional peremptory challenges. This request was also denied.

At issue in this appeal is an application of the factors to be used to determine whether a prospective juror can be a fair and impartial juror. Illinois’ leading case discussing these factors is People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705. The court in Cole stated the following:

“This issue [of the trial court’s refusal to allow the defendant’s challenge of the juror for cause] cannot be disposed of by the harmless-error rule ***. The right to a trial by an impartial tribunal is so basic that a violation of the right requires a reversal. (Chapman v. California, 386 U.S. 18; Tumey v. Ohio, 273 U.S. 510, 71 L. Ed 749, 47 S. Ct. 437.) The right to a jury trial guarantees to one accused of a crime a fair trial by a panel of impartial jurors. *** * * *
The burden of showing that the juror possesses a disqualifying state of mind is on the party challenging the juror. ‘Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside. ***’ [Citation.]
The determination of whether or not the prospective juror possesses the state of mind which will enable him to give to an accused a fair and impartial trial rests in the sound discretion of the trial judge. His determination should not be set aside unless it is against the manifest weight of the evidence. [Citations.]
The determination of impartiality is not purely an objective determination, as the opinion of the appellate court indicates. The statement of the juror is proper for the court to consider as evidence of his state of mind to be given the weight to which it is entitled under the circumstances.” Cole, 54 Ill. 2d at 411-14, 298 N.E.2d at 711-12.

In support of his claim that Jacob should have been excused for cause, defendant cites Marcin v. Kipfer (1983), 117 Ill. App. 3d 1065, 454 N.E.2d 370. In Marcin, this court found reversible error in a trial court’s refusal to excuse for cause in a medical malpractice action two prospective jurors who had employed the defendant as their personal physician. Considering the nature of that case, we held that the relationship of a prospective juror to a party can be so close that fairness requires the juror be discharged. We explained the basis for that holding as follows: “Here, for the two jurors to have found for plaintiff, they would have had to find their personal physician to have been incompetent in his treatment of decedent.” Marcin, 117 Ill. App. 3d at 1067, 454 N.E.2d at 372.

We agree with the State that the Marcin case is inapposite. Jack was not a participant in this trial, and he had no personal stake in its outcome. By finding the defendant not guilty, Jacob would not thereby be finding his son to be an incompetent lawyer. We believe that a prospective juror’s acquaintance with or relationship to a party is a far greater cause for concern than if that same prospective juror were acquainted with or related to a lawyer for one of the parties.

Extensive research on this issue failed to disclose any case in Illinois in which a person related to a prosecutor as a parent, spouse, sibling, or child was challenged for cause as a prospective juror in a criminal case and the challenge was denied. Frankly, we suspect that the absence of any authority on point is an indication that most such challenges are granted and the issue avoided. However, it was not avoided in this case, and accordingly, we have to confront it.

A case from North Carolina is the closest we have found to the facts of this case. In North Carolina v. Watson (1972), 281 N.C. 221, 188 S.E.2d 289, defendant, convicted of murder, argued on appeal that the trial judge abused his discretion in not allowing defendant’s challenge for cause of a prospective juror who was the father-in-law of the local county prosecutor. Because of the careful examination which the trial judge conducted of the prospective juror and the juror’s appropriate responses, no error was found in denying defendant’s challenge for cause. Also in Watson, as here, the prosecutor to whom the prospective juror was related took no part in the trial court proceedings.

In the present case, both the trial court and defense counsel examined Jacob carefully. All of Jacob’s responses were consistent with the trial court’s implicit determination that he could be a fair and impartial juror.

With commendable candor, defendant’s counsel on appeal concedes that there is nothing in the record before us to show or even suggest that Jacob would not have been a fair and impartial juror. Instead, counsel argues that the close relationship between Jacob and Jack in this case must always lead to serious doubts about whether a defendant could receive a fair trial with a juror such as Jacob deciding his fate. Accordingly, defendant has invited this court to hold as a matter of law that the trial court erred in not excusing Jacob for cause due solely to his relationship to Jack, notwithstanding the appropriate responses Jacob gave on voir dire. We have given serious consideration to defendant’s invitation, but we must decline it. Aside from logistical difficulties such a rigid rule might cause in some of the smaller counties of this State, we believe we would run afoul of the following admonition by the Illinois Supreme Court in Cole:

“The opinion of the appellate court indicates that a juror must be free from even the suspicion of bias or partiality. [Citation.] We wish to dispel this misconception. The determination of the qualification of . the juror is a judicial determination. This determination by the court, like the determination of any other issue of fact, must be made from the evidence. [Citations.] Mere suspicion of bias is not evidence.” Cole, 54 Ill. 2d at 415, 298 N.E.2d at 713.

For the reasons stated, we find that the trial court did not abuse its discretion in denying the defendant’s challenge of Jacob for cause. Because we find no error in the trial court’s denial of the defendant’s challenge for cause, we similarly find no error in the trial court’s denial of the defendant’s request for additional peremptory challenges.

The judgment is affirmed.

Affirmed.

McCULLOUGH, P.J, and KNECHT, J., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    DAN L. WHITTEN et al., Plaintiffs-Appellees and Cross-Appellants, v. CINCINNATI INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee.
    Fourth District
    No. 4—89—0123
    Opinion filed September 28, 1989.

      Heyl, Royster, Voelker & Allen, of Springfield (Michael C. Upperman, Jr., of counsel), for appellant.
    Law Office of Timothy D. Sturm, of Springfield (Timothy D. Sturm, of counsel), for appellees.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Topline Systems, Inc. (Topline), contracted to purchase three acres of land, a house, and a barn from Federal Land Bank (Bank). Closing was conditioned on plaintiffs Dan and Leona Whitten, officers and common shareholders of Topline, procuring an insurance policy for $70,000 on the property and the Bank obtaining clear title. The Whit-tens purchased homeowner’s insurance from defendant effective September 15, 1986. Defendant knew plaintiffs did not own the property at that time. Topline was listed on the policy as an additional insured. Due to problems in obtaining clear title, the Bank postponed closing on numerous occasions. On January 19, 1987, prior to closing, fire destroyed the house. The Bank recovered from its insurer but defendant refused to pay plaintiffs, claiming they had no insurable interest. The Whittens sued for declaratory judgment. They later moved for summary judgment, which the Sangamon County circuit court granted. The court awarded plaintiffs $26,000. Defendant appeals the finding that plaintiffs had an insurable interest and the award of $26,000. Defendant also claims the lower court erred in allowing the Whittens to amend their complaint to add Topline as a plaintiff. Plaintiffs cross-appeal, claiming they are entitled to $70,000, the policy amount.

The plaintiffs, Dan and Leona Whitten, began leasing the property in question from Kenneth Taft in July of 1984. They paid $450 per month rent and had renters’ insurance on the property through defendant. Plaintiffs intended to use the property for residential and business purposes and purchased Topline Systems, Inc., an energy management firm, in January of 1985.

The plaintiffs moved the firm’s physical assets to the leased property and stored equipment and parts in the barn. The company had an office in the home and stored computer equipment and sales information in the basement. The insurance policy issued by defendant covering Topline applied only to assets stored in the barn, not to equipment located in the house. That policy is not in issue here.

Taft, lessor of the property, went bankrupt in November of 1984 and the Bank foreclosed on the property. Plaintiffs continued renting the property for $450 per month under a lease with the Bank.

In November of 1985 plaintiffs began negotiating with the Bank to purchase the property. Topline entered a written contract with the Bank on November 28, 1985, to purchase the property for $67,500. Plaintiffs made a $1,500 down payment on that date. Plaintiffs had renewed their lease agreement with the Bank on November 1, 1985, for a six-month period (through April 30, 1986), the time believed necessary for closing. They also began making monthly payments toward the purchase price, in addition to monthly rent payments.

The Bank could not produce clear title by April 30, 1986. Plaintiffs and the Bank did not renew the lease and plaintiffs stopped paying rent on April 30. Plaintiffs and the Bank orally agreed the lease would continue in effect. The Bank did not require plaintiffs to pay rent but did require them to maintain the property.

The Bank continued to assure plaintiffs they would get clear title and set closing for September 21, 1986. In August or September of 1986, the Bank sent plaintiffs a letter requiring them to present a certificate of insurance on the property for a minimum of $70,000 as a condition of closing the transaction.

Plaintiffs contacted defendant through its agent, Robert Brown, to obtain homeowner’s insurance. Plaintiffs explained they were in the process of buying the property and expected to close on September 21, 1986. Brown issued a homeowner’s policy effective September 15, 1986, through September 15, 1989. Plaintiffs cancelled their renter’s insurance on the date the homeowner’s policy became effective.

The policy showed Dan and Leona Whitten as the insureds and Topline as an additional insured. The policy valued the covered property as follows: dwelling $70,000, other structures $7,000, and personal property $35,000.

Once again the Bank failed to obtain clear title and the September 21 closing date passed. The Bank indicated closing would occur within a few days, and Dan Whitten testified Brown told him they would just leave things as they were with the homeowner’s policy. The transaction did not close in late September and Whitten again called Brown. He told Brown he would keep him apprised of progress in closing the transaction and Brown consented to such an arrangement. Two subsequent closing dates were set, one in December of 1986 and one in January of 1987. The Bank failed to meet both deadlines.

On January 19, 1987, the home was hit by lightning and burned to the ground. Plaintiffs were en route to Chicago at the time, and due to the severity of the storm, they were unable to return home until January 21, 1987. They immediately notified Robert Brown and the Bank of the loss. Brown informed plaintiffs they would have to deal with defendant’s agent Pat Fitzgerald.

During subsequent conversations with the Bank, plaintiffs learned the Bank had $56,000 of insurance on the property. The Bank recovered $51,000, the value of the policy less a $5,000 deductible. Plaintiffs were not covered on the Bank’s policy.

Plaintiffs and the Bank entered a new lease agreement after the fire under which plaintiffs paid $50-per-month rent. The parties terminated the real estate sales contract and the Bank returned plaintiffs’ earnest money and additional monies plaintiffs had paid toward the purchase price. Plaintiffs expressed continuing interest in purchasing the property, and on May 12, 1987, the parties entered a new purchase agreement and closed shortly thereafter. The Bank reduced the purchase price by the $51,000 it received from its insurer and sold the property to Airtroll, a company owned by plaintiffs, for $16,500.

According to Dan Whitten, defendant originally agreed to honor the insurance contract and pay plaintiffs $70,000. Once the Bank’s insurer stepped in, however, defendant refused to pay and Fitzgerald told plaintiffs defendant did not owe them any money under the policy. All payments from defendant stopped. Plaintiffs had accepted partial payment, pursuant to the policy, for temporary living expenses and total reimbursement for personal property lost in the fire. Plaintiffs now reside in a trailer on the premises.

On July 20, 1987, plaintiffs filed a motion for declaratory judgment against defendant in Sangamon County circuit court. During the next six months, Dan and Leona Whitten responded to interrogatories propounded by defendant, defendant moved to dismiss plaintiffs’ complaint for declaratory judgment, and plaintiffs responded. Defendant finally answered plaintiffs’ complaint on January 20,1988.

The answer admitted issuing the homeowner’s policy effective September 15, 1986, and the amount of coverage. Defendant also admitted plaintiffs complied with policy requirements for notifying defendant of the loss. Defendant claimed it had insufficient information to admit or deny plaintiffs’ claim that they entered a purchase agreement with the Bank on October 28, 1986, and the claim that lightning started the fire which destroyed the house. Defendant admitted it refused to pay plaintiffs $70,000 but denied it owed plaintiffs the money. Finally, defendant denied plaintiffs’ claim they were entitled to declaratory judgment.

On February 1, 1988, defendant filed a motion for leave to amend its answer to add affirmative defenses. Defendant claimed plaintiffs never had an insurable interest in the property and did not suffer an actual loss of $70,000. The docket entry and record on appeal indicate the trial court never ruled on defendant’s motion to amend.

Plaintiffs filed a motion for summary judgment on October 24, 1988. The written order granting summary judgment was entered January 25, 1989. The court awarded plaintiffs $26,000 on December 20, 1988. Defendant filed its notice of appeal on February 6, 1989, and plaintiffs subsequently timely filed a cross-appeal.

The first issue raised by respondent challenges the trial court’s grant of summary judgment for plaintiff, a ruling which had the effect of finding plaintiffs had an insurable interest in the property. This court, in Bellmer v. Charter Security Life Insurance Co. (1986), 140 Ill. App. 3d 752, 754-55, 488 N.E.2d 1338, 1340, set forth the standard of review for summary judgments:

“In reviewing an order for summary judgment, this court must consider all of the facts revealed in the record and all of the grounds alleged by the parties in order to determine whether a genuine issue as to a material fact does still exist. On appeal, all of the facts must be viewed in a light most favorable to the nonmoving party. The reviewing court will reverse the order granting summary judgment if it determines that a genuine issue of material fact does exist. (Casteel v. Smith (1982), 109 Ill. App. 3d 1094, 1098-99, 441 N.E.2d 860, 863, and cases cited therein.) Thus, on examination of the record, if it can be fairly said that a triable issue of fact exists, the motion for summary judgment should be denied ***. The use of summary judgment is proper when it is clear that all material facts are before the court, the issues are defined, and the parties are agreed that only a question of law is involved. (Allen v. Meyer (1958), 14 Ill. 2d 284, 292, 152 N.E.2d 576, 580).”

See also Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 506 N.E.2d 1052.

Plaintiffs argue this issue is not properly before this court because the trial court never ruled on defendant’s motion for leave to amend its answer to add affirmative defenses, including the defense that plaintiffs had no insurable interest. Defendant appeals the trial court’s summary judgment decision for plaintiffs, a decision which found plaintiffs had an insurable interest. Thus, the issue is properly before.this court and plaintiffs’ procedural argument merits no further discussion.

Defendant argues plaintiffs did not have an insurable interest at the time they purchased the insurance policy. First, because Topline contracted with the Bank to purchase the property, Topline should have purchased the insurance. (The contract lists as purchaser, Top-line Systems, Inc., by Danny L. Whitten, president, Leona M. Whit-ten, secretary-treasurer. Both Whittens signed the contract.) Defendant argues plaintiffs, as Topline stockholders, could not buy insurance for the corporation. Defendant cites no authority for this proposition. The argument is irrelevant, however, because the policy names Top-line as an additional insured.

Second, defendant argues plaintiffs did not own the property the policy insured on the date the policy was purchased and thus plaintiffs did not have an insurable interest. We reject this argument. Careful review of the policy has failed to locate a clause making the policy’s validity contingent on ownership. The contract simply does not require the insured to own the insured property. “[A] policy may by its terms cover property generally without regard to whether the insured was the owner and without regard to the capacity in which the insured held the property.” (8 G. Couch, Insurance §37A:1 (rev. 2d ed. 1985).) The policy defines “insured location” as including the “residence premises,” defined as “the dwelling, other structures, grounds or that part of any other building where you reside and which is shown as the ‘residence premises’ in the Declarations.” Ownership is not required under either definition; use and residence suffice for coverage.

Finally, defendant argues plaintiffs had no insurable interest in the property at the time of the loss because they suffered no pecuniary loss. After the fire, the Bank returned plaintiffs’ earnest money and other monies paid toward the purchase price and terminated the contract. Plaintiffs later bought the property for $16,500 (purchase price of $67,000 less the $51,000 the Bank received from its insurer). Plaintiffs still have to “buy” a house, but now instead of purchasing a house from the Bank, as provided in the original contract, they will have to build a new one.

Plaintiffs rely on the insurance contract which states on its face it became effective on September 15, 1986. The defendant’s agent, Robert Brown, knew the sale did not close on September 21 or thereafter. He agreed to let the policy remain in effect, with the understanding Dan Whitten would contact him when closing occurred. The policy was clearly in effect on the date of the loss.

The Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 613 et seq.) does not define “insurable interest.” Case law does define the phrase and makes clear that an insurable interest is essential to the validity of an insurance contract.

“An insurable interest at the time of the loss is essential to the validity of an insurance policy. (Patterson v. Durand Farmers Mutual Fire Insurance Co. (1940), 303 Ill. App. 128, 24 N.E.2d 740.) An insurable interest, however, is not necessarily equated with clear title. (Reznick v. Home Insurance Co. (1977), 45 Ill. App. 3d 1058, 360 N.E.2d 461.) As was set forth in Beddow v. Hicks (1940), 303 Ill. App. 247, 258, 25 N.E.2d 93, 98,
‘It has long been the settled law in this State that a party has an insurable interest in property from the existence of which he receives a benefit or from the destruction of which he will suffer a pecuniary loss, although he has no title to or possession of the premises.’
*** Thus, generally speaking, a person has an insurable interest in property whenever he would profit by or gain some advantage by its continued existence or suffer loss or disadvantage by its destruction. (Reznick v. Home Insurance Co. (1977), 45 Ill. App. 3d 1058, 360 N.E.2d 461; Lieberman v. Hartford Fire Insurance Co. (1972), 6 Ill. App. 3d 948, 287 N.E.2d 38; see 44 C.J.S. Insurance secs. 180, 181 (1945).) It is enough if one claiming an insurable interest holds such a relation to the property that its destruction by the peril insured against involves pecuniary loss to him. (Home Insurance Co. v. Mendenhall (1897), 164 Ill. 458, 45 N.E. 1078; Welch v. Northern Assurance Co., Ltd. (1921), 223 Ill. App. 77.) As the court observed in Prince v. Royal Indemnity Co. (7th Cir. 1976), 541 F.2d 646, 649, cert, denied (1977), 429 U.S. 1094, 51 L. Ed. 2d 540, 97 S. Ct. 1108, the reason for the requirement of an insurable interest is “ ‘to prevent the use of insurance for illegitimate purposes. It should not be extended beyond the reasons for it by excessively technical construction’ ” (quoting Womble v. Dubuque Fire & Marine Insurance Co. (1941), 310 Mass. 142, 147, 37 N.E.2d 263, 266).” Hawkeye-Security Insurance Co. v. Reeg (1984), 128 Ill. App. 3d 352, 354-55, 470 N.E.2d 1103, 1105-06.

This has long been the rule in Illinois. In 1881 the second district wrote:

“The courts, in earlier times, showed a disposition to restrict [the definition of insurable interest] to a ‘clear, substantial, vested pecuniary interest,’ and to deny its applicability to mere expectancy without any vested right, yet the tendency of modern decisions is to relax the stringency of the earlier cases, and to admit to the protection of the contract, whatever act, event or property bears such a relation to the person seeking insurance that it can be said with a reasonable degree of probability to have a bearing upon his prospective pecuniary condition: May on Insurance, page 76, §76.” Agricultural Insurance Co. v. Clancey (1881), 9 Ill. App. 137,139-40.

See also Downs v. Michigan Commercial Insurance Co. (1910), 157 Ill. App. 32, 37.

We affirm the trial court’s award of summary judgment for plaintiffs as we agree they had an insurable interest in the property at the time of the loss. Plaintiffs suffered a pecuniary loss when the house burned.

We note the policy states it is void if the insured intentionally conceals or misrepresents any material fact or circumstance, makes false statements, or engages in fraudulent conduct relating to the insurance. The record is clear and the parties agree that there was no such violation by the insured. There is absolutely no evidence of fraud by the plaintiffs. They requested and received a homeowner’s policy from defendant after full disclosure of the status of the title and payment of the premiums. The agent made the policy effective as of September 15, seven days before closing was scheduled. Subsequently, he agreed to leave the policy in effect though he knew plaintiffs did not own the property. Defendant cannot now claim plaintiffs had no insurable interest.

The next issue concerns damages. The trial court awarded plaintiffs $26,000, the difference between the appraised value of the property ($77,000) and the amount the Bank received from its insurer ($51,000). Defendant makes two arguments on this issue. First, defendant argues that pursuant to the terms of the policy, it must pay only the actual cash value of the property. Because plaintiffs produced no evidence as to the property’s cash value, defendant argues, they are not entitled to recover. The policy does not define cash value, but case law defines it as replacement cost less depreciation. Smith v. Allemannia Fire Insurance Co. (1920), 219 Ill. App. 506, 513.

Defendant’s second argument is based on the “Insurable Interest and Limit of Liability” clause found on page seven of the policy. The clause states, “Even if more than one person has an insurable interest in the property covered, we will not be liable in any one loss: a. to the insured for more than the amount of the insured’s interest at the time of the loss ***.” Defendant argues that if plaintiffs have an interest, it is limited to the amount of the earnest money paid plus other payments made toward the contract price. To allow plaintiffs to recover additional sums would provide plaintiffs with an economic windfall.

Plaintiffs respond by arguing defendant should pay them $70,000, the amount of the policy. Plaintiffs argue that if actual cash value is used as the measure of compensation, they are entitled to $63,109, which is replacement cost ($72,124) minus 12% depreciation. (The appraiser depreciated the total replacement value for all the property at 12%. The parties stipulated to admission of the appraiser’s report.) Plaintiffs also cross-appealed, arguing the trial court should have awarded them $70,000, the amount of the policy.

The loss settlement clause of the policy states in pertinent part:

“3. Loss Settlement. Covered property losses are settled as follows:
* * *
b. Buildings under Coverage A or B at replacement cost without deduction for depreciation, subject to the following:
(1) If, at the time of loss, the amount of insurance in this policy on the damaged building is 80% or more of the full replacement cost of the building immediately before the loss, we will pay the cost to repair or replace, after application of deductible and without deduction for depreciation, but not more than the least of the following amounts:
(a) the limit of liability under this policy that applies to the building;
(b) the replacement cost of that part of the building damaged for like construction and use on the same premises; or
(c) the necessary. amount actually spent to repair or replace the damaged building.
* * *
(4) We will pay no more than the actual cash value of the damage unless:
(a) actual repair or replacement is complete; or
(b) the cost to repair or replace the damage is both:
(i) less than 5% of the amount of insurance in this policy on the building; and
(ii) less than $1000.
(5) You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss or damage to buildings on an actual cash value basis. You may then make claim within 180 days after loss for any additional liability on a replacement cost basis.”

Thus the policy sets forth three methods for determining the loss settlement: replacement cost ($72,124), policy amount ($70,000), and actual cash value ($63,469).

Public policy considerations preclude an award to plaintiff of the amount of the policy. We cannot encourage future fraud on insurance companies. Such a decision might well provide an incentive for an unscrupulous home buyer to insure the property to be purchased, burn it, pay a reduced price for it, and then recover fully under the insurance policy. Further, allowing the full policy amount in this case would unjustly enrich the plaintiffs, another result public policy will not allow.

The trial court awarded plaintiffs $26,000, the appraised value of the property ($77,000) less the amount received by the Bank from its insurer and deducted from the purchase price ($51,000). The trial court erred in using the appraised value to determine the plaintiffs’ recovery. None of the policy’s formulas for calculating loss settlement use appraised value. The court should have looked to the policy and used the policy amount ($70,000) as the figure from which it subtracted the $51,000. We find the trial court erred in awarding plaintiffs $26,000, as they are entitled to recover only $19,000.

Finally, defendant argues the trial court erred when it allowed plaintiffs to amend their complaint to add Topline as an additional insured. The policy provides, “No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.” The fire occurred on January 19, 1987. Dan and Leona Whitten filed their complaint for declaratory judgment on July 20, 1987. Plaintiffs made a motion to amend the complaint to add Topline as a plaintiff on November 30, 1988. The motion to amend was made one month after the court granted plaintiffs’ motion for summary judgment but two months prior to the entry of summary judgment. The court allowed the motion to amend at the hearing on damages. In its answer, defendant admitted plaintiffs complied with policy provisions.

Defendant now argues the motion to amend was barred by the one-year limitation period in the contract and cannot relate back to the original complaint under the provisions of section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616). Defendant argues that because the Whittens had no insurable interest, their complaint failed to state a cause of action and thus the complaint cannot be amended.

Section 2 — 616(b) provides:

“The cause of action, cross claim or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross claim interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(b).

Case law holds:

“An amended complaint is deemed to relate back to the original pleading when the original pleading provides the defendant with all the information necessary to prepare his defense to the subsequently asserted claim. (Weidner v. Carle Foundation Hospital (1987), 159 Ill. App. 3d 710, 712, 512 N.E.2d 824, 825.) The rationale for this rule is that a defendant will not be prejudiced so long as his attention has been directed to the facts which form the basis of the claim lodged against him within the prescribed time. Perkins v. Pepsi-Cola General Bottlers, Inc. (1987), 158 Ill. App. 3d 893, 900, 511 N.E.2d 901, 906.” Bailey v. Petroff (1988), 170 Ill. App. 3d 791, 797, 525 N.E.2d 278, 282.

The amended complaint arose out of the same events as the original complaint and provided defendant with all the information necessary to prepare a defense. Defendant was not prejudiced by the court’s approval of the motion to amend. For these reasons, and because we have held plaintiffs had an insurable interest, we reject defendant’s argument and find plaintiffs’ amended complaint related back to the original complaint. There was no error.

Pursuant to Supreme Court Rule 366 (107 Ill. 2d R. 366), the judgment of the circuit court is modified and judgment is entered for the plaintiff in the amount of $19,000.

Affirmed as modified.

SPITZ and GREEN, JJ., concur.