text:
    (No. 52913.

      In re ESTATE OF NANCY McPHERSON GRANT, Deceased (The First National Bank of Lake Forest, Ex’r, Appellee, v. J. Victor Grant, Ex’r, Appellant).

      Opinion filed December 19, 1980.
    Rehearing denied January 29, 1981.

      Behanna & Pasquesi, P.C., of Highland Park (Theodore A. Pasquesi, of counsel), for appellant.
    Ralph J. Boches, of Deerfield, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The issue raised by this appeal is whether the share of a surviving spouse who renounces a will is determined before or after the payment of the Federal estate tax. The Lake County circuit court entered an order requiring the executor of the estate of Nancy M. Grant to calculate the renouncing husband’s share of the estate prior to the payment of the Federal estate tax. The appellate court reversed, requiring the surviving spouse’s share to be calculated after the Federal estate tax was paid. (77 Ill. App. 3d 866.) We granted leave to appeal under our Rule 315 (73 Ill. 2d R. 315).

Nancy M. Grant died on December 24, 1976. She was survived by her husband, W. Raymond Grant. The husband died after filing a petition for leave to appeal from the judgment of the appellate court, and the executor of his estate has been substituted as the appellant in this court. For sake of brevity, we will continue to refer to the husband as a party to this appeal. The decedent’s will was admitted to probate on March 1, 1977. Although the will made certain provisions for the surviving husband, he filed a petition renouncing his share of the will and elected to take the share of the estate provided by statute in cases of renunciation (Ill. Rev. Stat. 1977, ch. 11014, par. 2 — 8). Subsequent to the renunciation, the husband sought an order of apportionment of the Federal estate tax to the balance of the decedent’s estate remaining after the deduction of his statutory share and sought to have his share of the estate calculated prior to payment of that tax.

The husband, relying on the principle of equitable apportionment announced in Roe v. Estate of Farrell (1978), 69 Ill. 2d 525, argues that it would be inequitable not to do so. The marital deduction, he argues, subtracts from the gross estate of the decedent subject to the Federal tax the value of those assets qualifying as the marital deduction under the Federal tax law. (26 U.S.C. sec. 2056 (1954).) It therefore generates no Federal tax and the Federal estate tax should then be calculated on the remaining estate. The husband argues that by calculating the renouncing spouse’s share after payment of this tax the spouse is in fact being forced to bear a portion of the tax. He argues that the theory of equitable apportionment should be employed to rectify the situation.

The Federal estate tax is a tax which is levied against the decedent’s estate as a whole. (See People v. Northern Trust Co. (1919), 289 Ill. 475; First National Bank v. Hart (1943), 383 Ill. 489; see generally Annot., 68 A.L.R.3d 714, 785 (1976).) It is thus distinguishable from the inheritance tax, which is levied individually upon each beneficiary in an estate. (See People v. Northern Trust Co. (1919), 289 Ill. 475; First National Bank v. Hart (1943), 383 Ill. 489.) Although the estate tax is paid by the executor, the law of the individual States determines which parties bear the ultimate tax burden. Riggs v. Del Drago (1942), 317 U.S. 95, 87 L. Ed. 106, 63 S. Ct. 109.

As this court noted in Roe v. Estate of Farrell (1978), 69 Ill. 2d 525, after the holding in Riggs v. Del Drago, statutes were enacted in many States which provided upon whom the burden of the Federal estate tax would rest. In other States the question of apportionment was resolved by the courts. In Roe v. Estate of Farrell, we acknowledged that a manifestation of legislative intent would be determinative of where the ultimate impact of the Federal estate tax burden would fall, but found no such manifestation in sections 18 — 10 or 18 — 14 of the Probate Act of 1975 (Ill. Rev. Stat. 1975, ch. 3, pars. 18-10, 18-14, now Ill. Rev. Stat. 1979, ch. 110%, pars. 18 — 10, 18 — 14). Finding nothing in these sections that precluded requiring contribution from surviving joint tenants for their proportionate share of the estate tax, this court apportioned the burden of the tax to nonprobate assets. In Roe v. Estate of Farrell, this court also approved the holding of the appellate court in In re Estate of Van Duser (1974), 19 Ill. App. 3d 1022, where it was recognized that a decedent, by a provision in the will, could, by the manifestation of a contrary intention, preclude the application of equitable contribution in the distribution of the Federal estate tax burden. (69 Ill. 2d 525, 532.) Thus Roe v. Estate of Farrell recognized two obstacles to the application of equitable apportionment: a manifestation of a contrary intent by the legislature and a manifestation of a contrary intent expressed by a testator in his will.

It is argued by the executor of Nancy M. Grant that section 2 — 8(a) of the Probate Act of 1975 relating to the renunciation of wills (Ill. Rev. Stat. 1977, ch. 110%, par. 2 — 8(a)) manifests a clear legislative intent that the share of a surviving spouse who renounces the will be calculated after the deduction of the Federal estate tax, that is, on the value of the net estate. In view of this express legislative intent, the executor argues, the principle of equitable apportionment will not shift the burden of the tax from the renouncing spouse to the recipients of the balance of the estate. Section 2 — 8(a) provides:

“If a will is renounced by the testator’s surviving spouse, whether or not the will contains any provision for the benefit of the surviving spouse, the surviving spouse is entitled to the following share of the testator’s estate after payment of all just claims: 1/3 of the entire estate if the testator leaves a descendant or 1/2 of the entire estate if the testator leaves no descendant.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 110%, par. 208(a).

In In re Estate of Comstock (1979), 78 Ill. App. 3d 933, the appellate court did not construe the language of section 2 — 8(a) as requiring that the just claims against the estate be paid before calculating the surviving spouse’s share. Rather, the court held that the spouse was entitled to the one-third or one-half of the “entire estate,” but that the distribution of the surviving spouse’s share would not be made until “after payment of all just claims.” We do not find this construction to be in accord with what we perceive to be the intent of the legislature. Similar language to that found in section 2 — 8 (a) is used in section 2 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 110%, par. 2 — 1) with regard to the rules of descent and distribution. It is there provided that the intestate real and personal estate of a decedent, after all just claims against his estate are fully paid, descends and shall be distributed as follows: “(a) If there is a surviving spouse and also a descendant of the decedent: 1/3 of the entire estate to the surviving spouse and 2/3 to the decedent’s descendants per stirpes.” (Ill. Rev. Stat. 1977, ch. 110%, par. 2 — 1(a).) If the one-third and the two-thirds interests in the entire estate were to be determined before the payment of all just claims against an estate and only the distribution postponed until after the payment of the claims, there would be no estate out of which to make the payments of the claims. We think plainly under section 2 — 1 of the Act the legislature intended that the claims be paid and the respective interests be calculated from the net estate.

The use of the term “entire estate” in both sections 2 — 1 and 2 — 8(a) refers to the entire estate, both real and personal. “Entire estate” is not used to distinguish the quantum of “entire estate” from net estate. Former statutes had different provisions for personalty and real estate and also provided for the assignment of dower. (See Ill. Rev. Stat. 1967, ch. 3, pars. 11, 19.) Instead of now referring to personal estate and real estate, the statute simply refers to “entire estate.” However, under the former statutes which provided for dower, the fee interest taken by the heirs was subject to the debts of the decedent. (Anderson v. Shepard (1918), 285 Ill. 544, 548.) The fee interest taken by a surviving spouse under the laws of descent were likewise subject to the claims against the estate, whereas, if the spouse elected to take dower as provided in the Act (Ill. Rev. Stat. 1967, ch. 3, par. 19), her dower interest which was only a life estate was taken free of the claims of the decedent’s creditors. (1 James, Illinois Probate Law and Practice sec. 18, at 274 (1951).) In 1971 the legislature abolished the estate of dower. (Ill. Rev. Stat. 1973, ch. 3, par. 18, now Ill. Rev. Stat. 1979, ch. 110%, par. 2 — 9.) The surviving spouse, upon renunciation, now takes a fee interest which is subject to the claims against the estate.

The language of some of the earlier statutes which specified the interest taken in lieu of dower upon renunciation by a surviving spouse more clearly stated that that interest was to be calculated after payment of debts and claims against the estate.

“If a husband or wife die testate, the surviving husband or wife may, if he or she elect, have, in lieu of dower in the estate of which the deceased husband or wife died seized (whether the right to such dower has accrued by renunciation as hereinbefore provided, or otherwise), and of other rights given by Section 1 hereof, absolutely, and in his or her own right, one-half of all the real and personal estate which shall remain after the payment of all just debts and claims against the estate of the deceased husband or wife, if the deceased shall leave no child or descendant of a child, and one-third of all the real and personal estate which shall remain after the payment of all just debts and claims, if the deceased shall leave a child or descendant of a child.” (Emphasis added.) (Ill. Rev. Stat. 1933, ch. 41, par. 12.)

Professor James, in his treatise, states:

“From earliest times, the statutes providing for spousal renunciation, have indicated that the portion to be taken by the renouncing spouse is to be based, not on the gross, but on the net or distributable estate in the hands of the personal representative.” (1 James, Illinois Probate Law and Practice sec. 16.23, at 146 (1975 Supp.).)

We cannot read into our present section 2 — 8 (a) of the Probate Act of 1975 a different meaning than that clearly expressed in the earlier statute quoted, or Professor James’ interpretation of the earlier statutes. Likewise, the use of similar language in section 2 — 8(a) to that used in section 2 — 1 indicates that it is the net estate upon which the spouse’s share is to be calculated upon renunciation of the will.

Having reached the conclusion stated, we must consider whether the Federal estate tax, which is questioned in this case, constitutes a claim against the estate. In People v. Pasfield (1918), 284 Ill. 450, 454, this court said, in speaking of the Federal estate tax: “[T] he duty is an expense or a charge against the estate of the decedent.” In People v. Northern Trust Co. (1919), 289 Ill. 475, 477, the court again said: “The federal estate tax is a charge or an expense against the estate of the decedent ***, and as part of the expense of administration this tax should be deducted before computing the State inheritance tax.” In People v. McCormick (1927), 327 Ill. 547, 561, this court, relying on Pas field and Northern Trust Co., stated: “A Federal estate tax has been declared by this court in cases referred to, to be a charge of administration.” In First National Bank v. Hart (1943), 383 Ill. 489, after noting that this State had no statute relating to the incidence of the burden of the Federal estate tax, stated: “[I] t must therefore fall upon the corpus of the estate and be considered an item of expense, such as debts, funeral expenses, and the like.” (383 Ill. 489, 497.) In Northern Trust Co. v. Wilson (1951), 344 Ill. App. 508, the appellate court, citing the above decisions of this court to the effect that a Federal estate tax is a claim against the estate, decided the issue that is before us now and held that a surviving spouse’s share upon renunciation of a will must be calculated after the payment of the Federal estate tax.

Section 18 — 10 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 11014, par. 18 — 10) classifies claims against a decedent’s estate into seven classes. Debts due the United States are designated as third-class claims. Thus under the above decisions, the Federal estate tax, being a claim against the decedent’s estate and part of the expenses of administration, would constitute a third-class claim.

The surviving spouse in our case argues that the equitable-apportionment doctrine adopted by this court in Roe v. Estate of Farrell renders obsolete the appellate court holding in Northern Trust Co. v. Wilson. We do not agree. As noted above, this court in Roe v. Estate of Farrell acknowledged two obstacles to the application of the doctrine of equitable apportionment: (1) manifestation of legislative intent to the contrary and (2) a contrary intention expressed by the decedent in a will. Although this court in Roe v. Estate of Farrell found no expression of a contrary legislative intent in sections 18 — 10 and 18 — 14 of the Probate Act of 1975, it was not necessary in that case to consider the effect of section 2 — 8(a). The cases discussed above have established that the Federal estate tax is a claim or a charge against the decedent’s estate, and section 2 — 8(a) provides that the renouncing spouse is entitled to the one-third or one-half share provided by statute “after payment of all just claims.” In line with the consistent holding by this court that the estate tax is a claim against the estate, we must view the provisions of section 2 — 8(a) as an expression by the legislature that the surviving spouse’s share upon renunciation is not to be relieved of the burden of the tax.

Congress enacted the marital deduction provisions relating to Federal estate taxes in 1948 (26 U.S.C. sec. 2056(d)(3) (1954)), intending thereby to give to the residents of States with property laws such as ours the same relief from Federal estate taxes available earlier in community property States. The provision “after payment of all just claims” now found in section 2 — 8(a) of the Probate Act of 1975, and other similar language in prior acts, had been a part of our statute providing for spousal renunciation from “earliest times.” (1 James, Illinois Probate Law and Practice sec. 16.23, at 146 (1975 Supp.).) However, since these provisions were inserted in our act long before the adoption of the marital-deduction provision, it cannot be said that by the inclusion of this language the legislature intended to affect the tax advantage of the marital-deduction provision. Northern Trust Co. v. Wilson, however, was decided after 1948 and specifically related to the question we now have under consideration. Since the appellate court’s construction of this section of the statute in 1951, section 16 of the Probate Act relating to renunciation (Ill. Rev. Stat. 1951, ch. 3, par. 16), now section 2 — 8(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. IIOV2, par. 2-8(a)), has been amended. Prior to January 1, 1972, section 16 provided separately for the share the renouncing spouse would take in the personal estate and the real estate of the decedent. (Ill. Rev. Stat. 1971, ch. 3, par. 16.) Effective on that date an amendment to that section deleted these separate provisions and simply provided that the renouncing spouse would take one-third or one-half of the “entire estate.” However, this section continued to provide that the renouncing spouse was entitled to that share only “after payment of all just claims.” (Ill. Rev. Stat. 1973, ch. 3, par. 16.) Although the construction contended for has appeal, in light of the previous judicial construction of this section of the Act, the subsequent amendment thereto, and the failure of the legislature to alter the judicial construction previously given to this section, we must assume that the holding of Northern Trust Co. v. Wilson reflects the intention of the General Assembly. Union Electric Co. v. Illinois Commerce Com. (1979), 77 Ill. 2d 364, 380.

For the reasons above stated, the judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author:
MR. JUSTICE MORAN
      MR. JUSTICE RYAN,

license: Public Domain

text:
    (No. 52713.
    EDWARD KOLAKOWSKI et al., Appellees, v. DAVID C. VORIS et al. (Mercy Hospital and Medical Center, Appellant).

      Opinion filed December 19, 1980.
    Rehearing denied January 29, 1981.

      WARD, J., took no part.
    RYAN and UNDERWOOD, JJ., specially concurring.
    Baker 8c McKenzie, of Chicago (Francis D. Morrissey, Harry J. O’Kane, Daniel J. Cheely and Daniel J. O’Connor, of counsel), for appellants.
    Walter T. Ketchum, of Chicago (William J. Harte, of counsel), for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Edward and Clara Kolakowski brought suit in the circuit court of Cook County, claiming damages for injuries suffered by Edward (plaintiff) resulting from the alleged negligence of defendants, Drs. David C. Voris, K. S. Parameswar and Leonard R. Smith. Mercy Hospital (hereafter referred to as defendant) was sued in separate counts based on the doctrine of res ipsa loquitur. After the submission of affidavits, interrogatories and depositions, defendant’s motion for summary judgment was granted. The appellate court reversed the judgment, finding that there were genuine issues of material fact present. (76 Ill. App. 3d 453.) We granted defendant’s petition for leave to appeal.

The plaintiff has had an extensive history of back problems commencing in 1951 when he fell 26 feet into a pit injuring his lower back and legs. He was hospitalized twice in 1956 and placed in traction. Plaintiff underwent a laminectomy and fusion operation in 1956 and was diagnosed as suffering from a severe degenerative disease of the lumbar disc. He reinjured his back in an automobile accident in 1972. In July of 1973, plaintiff visited his family physician, Dr. John Caserta, complaining of pain in his left shoulder. Dr. Caserta prescribed heat treatments which failed to improve defendant’s condition. Consequently, on July 17, 1973, plaintiff was admitted to defendant’s hospital. Dr. David Voris, a neurologist, was engaged as a consultant by Dr. Caserta. Dr. Voris examined plaintiff, diagnosed his condition as arthritis or rheumatism, advised that he avoid further surgery and ordered traction and heat treatments. After these treatments, plaintiff was released and continued receiving treatments as an outpatient. However, his discomfort became unbearable, and he was readmitted by defendant on August 11, 1973. Plaintiff was placed in traction, which only aggravated his pain. Dr. Voris then decided to perform a myelogram, an X ray of the spinal cord after the injection of a contrast medium. This test was scheduled for August 16, 1973, with Dr. K. S. Parameswar assisting. A few days later, Dr. Voris informed plaintiff that the myelogram showed possible spinal cord impairment and recommended an anterior interbody discectomy and fusion. Dr. Voris informed plaintiff that possible complications from this surgery include infection, quadriplegia and quadriparesis.

The surgery was performed on August 24, 1973, with Drs. Voris and Parameswar making the anterior incision and removing the disc from the patient’s spine. Dr. Smith, an orthopedic surgeon, implanted a “plug” of bone into the space left by the removed disc. Various employees of the hospital, i.e., nurses and the anesthesiologist, were also present. After surgery, plaintiff was lifted off the operating table and onto a cart. He was returned to his room at approximately 2 p.m.

At 6 p.m. he was visited by a nurse who noted on his chart that plaintiff complained of an inability to bend his left leg as well as weakness and numbness on his right side. It was noted at both 7:45 p.m. and 8:45 p.m. that plaintiff experienced stiffness and an inability to move his legs. At 10:15 p.m. a notation on his chart showed that plaintiff could not move his left leg, could only bend the right leg slightly and had a fever of 102°. Because these complaints were not anticipated post-operative symptoms, defendant’s personnel called Dr. Voris but failed to reach him. It appears that no attempt was made to reach Dr. Parameswar or any other neurosurgeon. On the following day, August 25, 1973, Dr. Voris examined plaintiff and found his finger and leg movement poor. He had little grip strength and poor flexion and extension of the wrist. Dr. Voris diagnosed plaintiff’s condition as spastic quadriparesis, i.e., hyperactive muscle tone restricting movement. This condition could have been attributable to one of two causes: (1) spinal cord edema (tissue swelling due to an abnormal accumulation of fluid in the area), which can be corrected without surgery, or (2) spinal cord compression which requires immediate surgical intervention for decompression. Dr. Voris felt that the cause was spinal cord edema because plaintiff still had some functioning in his limbs. He concluded that the proper course was to treat the edema with drugs to reduce swelling and then to observe plaintiff’s progress. When plaintiff’s condition failed to improve after several days, Dr. Voris and Dr. Parameswax ordered a myelogram. At that time, according to plaintiff’s son, plaintiff asked Dr. Voris the reason for the myelogram. Dr. Voris allegedly responded, “Your right foot slipped off the operating table.” Dr. Voris denies making such a statement.

The myelogram indicated a blockage at the seventh cervical level. A laminectomy was immediately performed by Dr. Voris and Dr. Parameswar, and fragments of extruded disc were removed from the fifth and sixth cervical level. The post-operative report recorded that no evidence of spinal cord compression or edema was found. The report also stated:

“It is not felt that an adequate explanation for this patient’s difficulty with leg movement has been found

Plaintiff’s condition was diagnosed as an impaired function of the cervical spinal cord. Plaintiff has lost the use of his limbs and is virtually a quadriplegic.

Introduced into the record was the discovery deposition of Dr. J. DeWitt Fox, plaintiff’s only expert witness. Dr. Fox stated that, in his opinion, the injury occurred when the bone plug was implanted by Dr. Smith during the fusion portion of the operation. Dr. Fox stated that, in the course of impacting this plug, extruded disc material had been forced against the spinal cord and nerves, causing the plaintiff’s paralysis. Dr. Fox also stated that the hospital chart did not indicate negligence of any hospital personnel.

On appeal, the defendant presents two theories to support the contention that the doctrine of res ipsa loquitur is inapplicable in the present case: (1) the defendant did not have exclusive control, a requirement for the application of the doctrine, and (2) plaintiff’s introduction of proof of specific negligence defeated his right to rely on the doctrine of res ipsa loquitur. Defendant also challenges the appellate court’s ruling on the issue of summary judgment. Defendant argues that the trial court appropriately granted its motion for summary judgment because (1) the affidavit of plaintiff’s attorney is defective since it violates Supreme Court Rule 191 (73 Ill. 2d R. 191), and (2) there are no genuine issues of material fact to be resolved.

The purpose of the doctrine of res ipsa loquitur “is to allow proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449.) For plaintiff to take advantage of this inference, he must show that he was injured (1) in an occurrence which would not have occurred in the absence of negligence, (2) by an instrumentality or agency under the management or control of the defendant, and (3) under circumstances which were not due to any voluntary act or negligence on the part of the plaintiff. (Spidle v. Steward (1980), 79 Ill. 2d 1, 5; Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 448-49; Prosser, Torts sec. 39, at 214 (4th ed. 1971).) This court has held that the doctrine of res ipsa loquitur is available to a plaintiff in a medical malpractice case. Walker v. Rumer (1978), 72 Ill. 2d 495, 500; Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 305.

It is the duty of the trial court, in the first instance, to determine as a matter of law whether plaintiff’s case is one in which the doctrine may be applied. (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449.) The defendant argues that the plaintiff is not entitled to rely on the res ipsa loquitur doctrine because the plaintiff was never in the exclusive control of the defendant. Defendant points out that, at the time of the operation, plaintiff was also under the control of the operating surgeons who were not agents of the defendant.

In Ybarra v. Spangard (1944), 25 Cal. 2d 486, 154 P.2d 687, the Supreme Court of California addressed the difficulty a plaintiff may experience in attempting to take advantage of res ipsa loquitur when suing a hospital. There, the patient’s shoulder was injured while he was under a general anesthetic for an appendectomy. The plaintiff named as defendants the general practitioner, the operating surgeon, the physician who owned the hospital, the anesthesiologist who was an employee of the hospital, and two nurses, also employees of the hospital. The defendants argued that since the plaintiff was under the care of a number of persons, some of whom were independent contractors and others employees of the hospital, the element of control necessary for the application of the doctrine of res ipsa loquitur was absent, thereby defeating plaintiff’s claim.

The court, in finding the res ipsa loquitur doctrine appropriate, stated:

“The present case is of a type which comes within the reason and spirit of the doctrine more fully perhaps than any other. *** [I] t is difficult to see how the doctrine can, with any justification, be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used in his treatment. Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone’s negligence, would be entirely unable to recover unless the doctors and nurses in attendanee voluntarily chose to disclose the identity of the negligent person and the facts establishing liability.
* * *
*** The control, at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant or of his employees or temporary servants. This, we think, places upon them the burden of initial explanation.” Ybarra v. Spangard (1944), 25 Cal. 2d 486, 490-92, 154 P.2d 687, 689-90.

See Annot., 9 A.L.R.3d 1315, 1321 (1966); City of Somerset v. Hart (Ky. 1977), 549 S.W.2d 814, 817; Fogal v. Genesee Hospital (1973), 41 App. Div. 2d 468, 477, 344 N.Y.S.2d 552, 563.

In the present case, the plaintiff, at the time of the alleged injury, was placed in the care and custody of the named defendants. Since plaintiff was under a general anesthetic during surgery, he was unable to determine the cause of his injuries; the cause was within the exclusive knowledge of the defendants. It is under these circumstances that a plaintiff’s only recourse is to rely on the doctrine of res ipsa loquitur. Under the theory advanced by defendant, whenever a doctor acting in the capacity of an independent contractor participates in surgery in defendant’s hospital, the element of exclusive control by the hospital ceases. We believe this approach is manifestly unfair because the physicians and hospital, at the time of surgery, each owed an independent duty to the patient and exercised concurrent control over the operation and equipment.

We therefore hold that when a patient submits himself to the care of a hospital and its staff and is rendered unconscious for the purpose of surgery performed by independent contracting surgeons, the control necessary under res ipsa loquitur will have been met. The burden will then shift to the hospital to dispel the inference that it exercised the control necessary to the application of res ipsa loquitur.

The defendant next argues that plaintiff’s introduction of evidence of specific negligence extinguishes plaintiff’s right to rely on the doctrine of res ipsa loquitur. The premise for this argument is that if a plaintiff knows in what respects the defendant was guilty of negligence and presents any specific evidence of the negligent act, the doctrine of res ipsa loquitur is inapplicable because direct evidence is no, longer within the exclusive control of the defendant. Defendant’s theory would be accurate if the evidence introduced by plaintiff conclusively established the exact cause of his injuries. Here, the deposition of plaintiff’s expert witness, Dr. Fox, reveals that, in his opinion, plaintiff’s injuries were the result of the forcing of a bone “plug” against the spinal cord after the disc was removed. This statement “was merely the opinion of the [expert] witness, given, as such, upon a state of facts assumed to be true. It still remained for the jury to determine the facts, and the opinion was nevertheless an opinion only, whether it states what did cause the condition or what might cause it.” (Clifford-Jacobs Forging Co. v. Industrial Com. (1960), 19 Ill. 2d 236, 243.) The inference of negligence raised by the doctrine of res ipsa loquitur does not disappear when such specific evidence is admitted. Rather, both the opinion of the expert witness as well as the inference of general negligence arising from the doctrine of res ipsa loquitur remain to be considered by the jury with all other evidence in the case. (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449.) Our appellate court has consistently permitted a plaintiff to introduce evidence of specific negligence without depriving him of his right to rely on the doctrine of res ipsa loquitur where such specific evidence does not conclusively establish the cause of the injury. (Collgood, Inc. v. Sands Drug Co. (1972), 5 Ill. App. 3d 910, 916; Erckman v. Northern Illinois Gas Co. (1965), 61 Ill. App. 2d 137, 147-48. See Prosser, Torts sec. 40, at 232 (4th ed. 1971); 3 J. Dooley, Modern Tort Law sec. 48.17 (1977); Annot., 33 A.L.R.2d 791, 795 (1954).) Under the circumstances, we find defendant’s contention on this issue to be without merit.

The defendant also argues that' the appellate court erred in reversing the trial court’s granting of summary judgment in favor of the defendant. Summary judgment is appropriate only when the pleadings, depositions, admissions on file, and affidavits present no genuine issue of material fact. (Ill. Rev. Stat. 1977, ch. 110, par. 57.) In determining whether the moving party is entitled to summary judgment, the court will construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent.

The defendant claims that the affidavit of plaintiff’s attorney is defective in that it violates Supreme Court Rule 191. The general rule in Illinois is that “the sufficiency of an affidavit cannot be tested for the first time on appeal where no objection was made either by a motion to strike, or otherwise, in the trial court.” (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.) Since the defendant failed to attack the sufficiency of the affidavit at the trial court, all issues in respect thereto are waived.

For the reasons stated, we conclude that the plaintiff has met the requirements for invoking the doctrine of res ipsa loquitur and is entitled to proceed to trial against defendant.

Therefore, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE WARD took no part in the consideration or decision of this case.

MR. JUSTICE RYAN,

specially concurring:

While I agree that summary judgment was not proper in this case, I fear some of the language of the opinion may be too broadly interpreted to conform to what I perceive as the permissible use of evidence of specific acts of negligence in conjunction with the doctrine of res ipsa loquitur. I therefore write this concurring opinion.

The opinion of the court states that our appellate court has consistently permitted a plaintiff to introduce evidence of specific acts of negligence without depriving him of his right to rely on the doctrine of res ipsa loquitur where such evidence does not conclusively establish the cause of injury. The opinion cites Collgood, Inc. v. Sands Drug Co. (1972), 5 Ill. App. 3d 910, 916. The Collgood opinion, however, does not use the word “conclusively” but instead requires the plaintiff to “unequivocally” prove the instrumentality which caused the injury before he would be precluded from relying on res ipsa loquitur. I am bothered by the use of the words “conclusively” and “unequivocally.” They do not convey an understanding of any accepted standard of proof and are of little help in guiding a trial judge in determining when the jury should be given a res ipsa loquitur instruction. In Turner v. Wallace (1966), 71 Ill. App. 2d 160, the court held that it is not the function of res ipsa loquitur, where the evidence discloses a physical cause of the injury, to permit an inference of some other unknown source or fault as constituting negligence. The court stated that a res ipsa loquitur instruction is to be used only where the evidence failed to reveal the actual specific sources which produced the injury. Freer v. Rowden (1969), 108 Ill. App. 2d 335, reached the same conclusion.

We do not know at this time what evidence will be introduced in the trial court. If when the case is tried the plaintiff calls his expert witness, Dr. Fox, who testifies that in his opinion plaintiff’s injuries were the result of the forcing of the bone “plug” against the spinal cord after the disc was removed, I would hold that the plaintiff would be bound by this testimony of his witness and any inference of negligence on the part of the defendant hospital would have to be consistent with this evidence as to the specific cause of the injury. The jury should not be permitted to speculate that the plaintiff’s injuries did not result from this cause but possibly were caused by the plaintiff falling off the hospital cart or by some other negligent act by the hospital. However, inferences that the hospital failed to properly monitor the plaintiff’s condition following surgery, or failed to take proper corrective measures or to notify the surgeon once it became apparent that plaintiff was not properly responding, could be drawn as being consistent with the testimony of Dr. Fox, provided the proper bases for applying res ipsa loquitur under these conditions are established. If, however, the plaintiff does not call Dr. Fox as a witness, but relies on the general inference of negligence and the defendant produces the testimony of Dr. Fox, then the general inference of negligence must be weighed by the jury against the testimony of Dr. Fox and the other evidence offered by the defendant. Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449.

Professor Prosser summarizes my position, which I view as more restrictive than the position stated in the opinion of the court:

“Plaintiff is of course bound by his own evidence-, but proof of some specific facts does not necessarily exclude inferences of others. When the plaintiff shows that the railway car in which he was a passenger was derailed, there is an inference that the defendant has somehow been negligent. When he goes further and shows that the derailment was caused by an open switch, he destroys any inference of other causes; but the inference that the defendant has not used proper care, in looking after its switches is not destroyed, but considerably strengthened. If he goes further still and shows that the switch was left open by a drunken switchman on duty there is nothing left to infer; and if he shows that the switch was thrown by an escaped convict with a grudge against the railroad, he has proved himself out of court. It is only in this sense that when the facts are known there is no inference, and res ipsa loquitur simply vanishes from the case. On the basis of such reasoning as this, it is quite generally agreed that the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but which does not purport to furnish a full and complete explanation of the occurrence does not destroy the inferences which are consistent with the evidence, and so does not deprive the plaintiff of the benefit of res ipsa loquitur.” (Footnotes omitted.) (Emphasis added.) Prosser, Torts sec. 40, at 232 (4th ed. 1971).

The italicized material, in my opinion, requires a court to hold that the plaintiff is bound by the evidence of specific acts which he produces. However, if the evidence does not purport to furnish a complete explanation of the occurrence, inferences of negligence consistent with the evidence of specific facts established by the evidence are permissible. I feel that this limitation must be placed upon the use of the res ipsa loquitur principle in order to have any meaningful factual determination and in order to prevent pure speculation and conjecture.

MR. JUSTICE UNDERWOOD joins in this special concurrence.


author: MR. JUSTICE CLARK

text:
    (No. 53247.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CHARLES KUESIS, Appellee.

      Opinion filed November 18, 1980.
    Rehearing denied January 29, 1981.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Melbourne A. Noel, Jr., Mark L. Rotert, and Donald B. Mackay, Assistant Attorneys General, of Chicago, and Marcia B. Orr, Joel A. Stein and Christine A. Campbell, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Timothy P. O’Neill, Assistant Public Defender, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, Charles Kuesis, was charged with burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1). He was found guilty after a bench trial in the circuit court of Cook County. At the conclusion of a sentencing hearing, the court imposed a sentence of to 7M> years in the penitentiary. The defendant appealed. The appellate court, pursuant to Supreme Court Rule 23 (73 Ill. 2d R. 23), vacated the circuit court’s sentence and remanded the cause for anew sentencing hearing. (81 Ill. App. 3d 1199.) We allowed the State’s petition for leave to appeal. 73 Ill. 2d R. 315.

No issue is raised relative to the defendant’s conviction. Instead, the issue is whether the trial court erred in imposing sentence since it did not consider defendant’s eligibility for treatment under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1977, ch. 9lVz, par. 120.10). Section 10 of that act provides in pertinent part:

“If a court has reason to believe that an individual convicted of a crime is an addict or the individual states that he is an addict and the court finds that he is eligible to make the election provided for under Section 8, the court may advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by the Department.” (Ill. Rev. Stat. 1977, ch. 91%, par. 120.10.)

Section 8 of the Dangerous Drug Abuse Act reads in pertinent part:

“An addict charged with or convicted of a crime is eligible to elect treatment under the supervision of the Department instead of prosecution or probation, as the case may be, unless *** (e) the addict is on probation or parole and the appropriate parole or probation authority does not consent to that election, ***.” (Ill. Rev. Stat. 1977, ch. 91%, par. 120.8.)

At the time of the instant offense, the defendant was on probation. Also the record is clear that the defendant did not affirmatively elect to be treated, nor did the appropriate probation authority consent to any election. It is argued by the defendant, and concurred in by the appellate court, that an obligation is placed on the trial court, if the court has reason to believe that a convicted defendant is an addict (Ill. Rev. Stat. 1977, ch. 911/í>, par. 120.3 — 3), to exercise its discretion and consider whether the defendant should be placed in a treatment program.

The State argues that the defendant was not eligible to elect for treatment because he was on probation as of September 15, 1978, the day of sentencing, and no consent was obtained from the appropriate probation authority. Consequently, the court was not required to consider the alternative of placing the defendant on probation under the Dangerous Drug Abuse Act.

The presentence report contained in the record indicates that “the defendant admitted he had trouble with alcohol and narcotics. The defendant stated he consumed beer and whiskey daily. From a previous probation the defendant had been sent to see Joseph Vidi at the Basta Drug Abuse Program. The defendant stated he had used heroin since 1971 and saw this as part of the reason for his criminal background.” Furthermore, in the sentencing hearing, defense counsel alluded to the defendant’s drug use. The report also indicated that, based on the defendant’s five prior probation sentences, “there seems little that the Adult Probation Department can offer the defendant in ways of resources.”

First of all, the defendant herein never filed a petition to elect to receive treatment under the Act. (See People v. Teschner (1980), 81 Ill. 2d 187, People v. Warren (1977), 69 Ill. 2d 620, 623, and People v. Phillips (1977), 66 Ill. 2d 412, 413, where petitions were filed in the circuit court by defendants seeking to elect treatment under the Dangerous Drug Abuse Act.) In People v. Warren it was stated that a trial court does not have “unlimited discretion in denying a petition seeking treatment under the Act. That denial will remain subject to judicial review, and the record must reflect that the trial judge exercised his discretion and did not abuse it or act in a purely arbitrary manner.” (69 Ill. 2d 620, 629.) Thus the court heed not exercise its discretion in the first instance unless the defendant applied for probation under the Act by filing a petition. Consistent with this result is our recent decision in People v. Meeks (1980), 81 Ill. 2d 524, wherein a presentence report was defective because it failed to comment upon resources within the community which may have been available to assist the defendant’s rehabilitation. The trial court considered the presentencing report, as required by the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 4—1). The defendant never raised any objection to that defect, although he raised other objections to the réport. In holding that the defendant’s failure to bring that particular deficiency to the court’s attention waived any error, this court stated:

“It is the duty of the probation officer to prepare a presentence report consistent with the directives of the statute. It is the duty of the parties, however, to bring to the attention of the sentencing authority any alleged deficiency or inaccuracy in the presentence report. The requirement that the trial judge consider the presentence report was complied with in the present case; any objections to the sufficiency of the report must first be presented to the trial court.” People v. Meeks (1980), 81 Ill. 2d 524, 533.

To the same effect is People v. Pierce (1976), 62 Ill. 2d 223, 224, wherein it was held that, although a statute provides that where a person is charged with a sexual crime against a child under 13 years the court “shall, before trial, require a psychiatric examination of the person charged,” if a defendant does not request an examination, the right to one will be waived. Accordingly, the trial court was not required to initiate an inquiry into whether the defendant was eligible to elect to receive treatment.

Even if, however, the defendant had petitioned to elect to receive treatment and had affirmatively shown the consent of his probation officer (People v. Phillips (1977), 66 Ill. 2d 412, 416), we would not disturb the sentence of the court, because section 10 of the Dangerous Drug Abuse Act specifies that after eligibility is established the court “may” advise the defendant that he “may be placed on probation if he elects to submit to treatment and is accepted for treatment by the Department [of Mental Health and Developmental Disabilities] ” (Ill. Rev. Stat. 1977, ch. 9114, par. 120.10). Thus, even if the defendant files a petition, the court is not under any obligation to comply with the defendant’s request. People v. Warren (1977), 69 Ill. 2d 620, 629.

Our next inquiry is whether the defendant should have been sentenced to probation under the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 6—1). Preliminarily, it should be noted that the trial court could have sentenced the defendant to probation conditioned upon the defendant’s participation in a drug-treatment program under the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 6—3(b)(4)). Thus, the absence of a probation officer’s consent did not restrict the court’s sentencing alternatives, as argued by the defendant, but merely the defendant’s eligibility under the Dangerous Drug Abuse Act. Ill. Rev. Stat. 1977, ch. 9114, par. 120.8(e); People v. Phillips (1977), 66 Ill. 2d 412, 416.

The standard of review of allegedly excessive sentences is whether a trial court exercised its discretion and whether that discretion was abused. (People v. Perruquet (1977), 68 Ill. 2d 149, 153.) The standard, however, as to whether the trial court should impose probation or conditional discharge as opposed to imprisonment or periodic imprisonment is contained in section 5 — 6—1 of the Unified Code of Corrections:

“Sec. 5 — 6—1. Sentences of Probation and of Conditional Discharge and Disposition of Supervision.
(a) Except where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that:
(1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or
(2) probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.”
(Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1, effective February 1, 1978.) ,

We stated in our recent opinion in People v. Cox (1980), 82 Ill. 2d 268, 281:

“In view of this statutory provision, whenever a sentence of imprisonment or periodic imprisonment is imposed, the record must indicate that the judge is of the opinion that imprisonment is necessary for the protection of the public or that probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice. Substantial compliance with section 5 — 6—1 may exist even if the judge does not specifically say that ‘imprisonment is necessary for the protection of the public’ or that ‘probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.’ If the record demonstrates substantial compliance with this requirement, then a reviewing court may alter the sentencing judge’s disposition only upon a finding of an abuse of discretion [in that a sentence is excessive]. People v. Perruquet (1977), 68 Ill. 2d 149, 153.”

In this case the trial court was of the opinion either that imprisonment was necessary to protect the public or that probation would deprecate the seriousness of the offender’s conduct. The record supports the court’s opinion. The defendant had received several sentences of probation prior to this offense 'and was on probation at the time he committed the instant offense.

During the sentencing hearing the court noted:

“The pre-sentence investigation report reveals that you have had four prior probation sentences. You are presently on probation. You also walked out so says the report, of the work release periodic imprisonment program.
Prior to this, you have had three prior felony convictions, not counting this one.
* * *
It is a bad record and you have been given many chances. I see your family in court supporting you. I intended to give you close to the maximum, in no way do you deserve anywhere near the minimum. You still obviously have hope because you are not that old a man as yet.
The sentence will be, not less than two and a half years, nor more than seven and one-half years in the Illinois Department of Corrections.
There will be judgment on the finding and sentence.”

While it is, of course, preferable for a court to state expressly which basis it is relying upon for refusing to sentence a defendant to probation or conditional discharge, we believe that the trial court herein substantially complied with section 5 — 6—1 (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1, effective February 1, 1978). The sentence will stand.

Finally, we are aware of the recent amendment to section 10 of the Dangerous Drug Abuse Act (Pub. Act 81 — 851, approved and effective September 20, 1979) which provides:

“Sec. 10. If a court has reason to believe that an individual convicted of a crime is an addict or the individual states that he is an addict and the court finds that he is eligible to make the election provided for under Section 8, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by the Department. *** (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 91M>, par. 120.10.)

We decline to decide how this amendment would affect this case, since the defendant was sentenced fully a year before the amendment became effective. Accordingly, for the reasons stated, the judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 53219.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RICHARD LEONARD, Appellee.

      Opinion filed December 1, 1980.
    Rehearing denied January 29, 1981.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, and Marcia B. Orr, Richard Burke, and William Gamboney, Assistant State’s Attorneys, of counsel), for the People.
    Ralph Ruebner, Deputy Defender, and Patricia Unsinn, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant, Richard Leonard, was convicted in a jury trial in the circuit court of Cook County of the offense of murder (Ill. Rev. Stat. 1975, ch. 38, par. 9 — 1) and sentenced to a term of imprisonment of 30 to 60 years. The appellate court reversed defendant’s conviction and remanded the cause for a new trial (80 Ill. App. 3d 741), holding that testimony relating to certain statements of the victim, Wayne Tews, was hearsay and had been erroneously admitted. In addition, the appellate court determined that the jury should have been instructed on the lesser included offense of voluntary manslaughter (Ill. Rev. Stat. 1975, ch. 38, par. 9 — 2). We granted the State leave to appeal. The evidence introduced at trial has been thoroughly developed in the appellate court opinion and will be briefly restated here only as relevant to the issues presented.

The State called as its first witness Patricia Ann Gorski, the sister of the victim. She testified that on April 26, 1976, the date of the homicide, decedent was 42 years old, approximately 5 feet 11 inches tall, and weighed approximately 200 pounds, and that he had walked with a limp since childhood. She stated further that decedent was a security guard employed at the Satyr, a building located at 1221 North Dearborn Street in Chicago. In addition, she stated that on Easter Sunday, the Sunday preceding the homicide, she had seen the victim, and he was in good health. She next saw decedent at a funeral home on April 27, 1976, and he was dead.

Frieda Goldberg, resident manager of the Satyr, a 208-unit apartment complex located at 1221 North Dearborn, was the next witness to testify. As resident manager, Miss Goldberg was responsible for leasing the apartments, maintenance of the building, and responding to the tenants’ complaints. Miss Goldberg testified that she came to know defendant through her employment. She first met defendant during negotiations of a lease. The property leased was subsequently used in the operation of a discotheque known as the Rhinoceros Club. This club was located on the first floor of the building, adjacent to the lobby. She later saw defendant participating in the operation of this club and had further contact with defendant while showing him an apartment in the building. Miss Goldberg also testified that she knew the victim, Wayne Tews. She stated that she knew Tews for approximately one year, that he was employed by Around the Clock Security Service and assigned to the building as a security guard and doorman, and that she had never received any complaints concerning him. She also testified that the operators of the Rhinoceros Club were evicted for nonpayment of rent in April 1976, and that she was present when the sheriff removed all of the items of personal property located on the premises.

On April 26, 1976, at approximately 1 a.m., Miss Goldberg received a telephone call. She testified that the caller identified himself as Wayne Tews and that he stated that the manager of the Rhinoceros Club wanted to get into the club. In addition, Tews then stated, “He’s got a gun.” Miss Goldberg testified that she had previously talked with Tews on the telephone, but on this occasion his voice was “very strange, didn’t sound like himself. It was very slow and nervous.” Miss Goldberg also testified that she heard another voice saying, “Tell the mother f-— manager to come down now, now, now. ” Miss Goldberg stated that she recognized the voice as that of defendant. At the time of the phone call, however, she did not remember his name. Miss Goldberg told Tews to stall and not to worry, hung up the phone, and called the police. On cross-examination, Miss Goldberg reiterated that she received the phone call at approximately 1 a.m.

Robert Reinschreiber, called as a witness by the State, testified that at approximately 1 a.m. on April 26, 1976, he was returning to his car accompanied by several friends, whom he identified as Richard Frenzel, Teri Moss, and Ron Majcek. The group was walking northbound on Dear-born and had spent the preceding two hours socializing at a lounge and discotheque known as Mother’s, located around the corner from 1221 North Dearborn. While crossing the street, Reinschreiber noticed two men engaged in a struggle over a handgun emerge from the lobby of a building. One of the men held the gun by the handle while the other, a security guard, held the gun by the barrel. Reinschreiber identified defendant as the man engaged in the struggle who was holding the handle of the gun. Reinschreiber next heard a shot, saw the guard fall back and cough up a stream of blood, and he then saw the guard resume the struggle for control of the gun. When the guard lost his ability to continue fighting, defendant pushed him over a banister, causing him to fall to the ground. Reinschreiber estimated that Tews fell a distance of approximately six feet. Reinschreiber then stated that he saw defendant lean over the banister and heard defendant yell, “Die mother f — , die.” Defendant repeated this epithet approximately five or six times. Reinschreiber then noticed defendant descending the stairs of the building looking somewhat “spaced out.” Reinschreiber noticed that defendant no longer had a gun, and Reinschreiber immediately stopped a cab and asked an occupant to call the police. He stated that within minutes the police arrived and that he identified defendant as the man who shot Tews. In addition, he stated that throughout this struggle he saw only one gun, that he did not see an exchange of blows between the two men, and that at all times during the struggle they had their hands placed on the gun. On cross-examination, he stated that defendant did not attempt to flee.

Richard Frenzel, followed by Teri Moss, were also called as witnesses by the State. Both witnesses substantially corroborated the testimony related by Reinschreiber. Frenzel added that the struggle at the entrance to the building lasted approximately 30 to 45 seconds. Moss noticed that the security guard was taller and larger than the defendant, but she could not remember if there was an exchange of blows.

In addition to the above, the evidence introduced at trial established that decedent had suffered two lacerations to the back of his head, a laceration on his right hand, and that the cause of death was a close-range gunshot wound to the chest. It was further established that, at the time of his death, decedent had in his possession a .22-caliber gun capable of firing blanks or tear gas. This gun was recovered by police officers from decedent’s pocket. It was stipulated by the parties that defendant suffered a laceration of the lower lip which required sutures, and it was further established that there was a trail of blood located on the stairs of the building which defendant descended. The defense, in opening argument, admitted that the weapon involved in the struggle was owned by defendant.

We initially address the State’s argument related to Frieda Goldberg’s testimony concerning her telephone conversation with decedent. The appellate court, finding no direct or circumstantial evidence of an occurrence sufficiently startling to produce a spontaneous and unreflecting statement other than decedent’s statement itself, reasoned that the statement, “He’s got a gun,” was inadmissible hearsay. In the absence of Illinois authority on this point, the appellate court relied extensively on the reasoning of the Texas Supreme Court in Truck Insurance Exchange v. Michling (Tex. 1963), 364 S.W.2d 172, 175. In Michling, a statement by a deceased employee relating to the circumstances of an alleged injury at work was offered in a workmen’s compensation action brought by the employee’s widow. The statement was found not to be admissible as an excited utterance because there was absolutely no evidence to corroborate the existence of a sufficiently startling event.

The State contends that, in the present case, the existence of a sufficiently startling underlying event was proved circumstantially. In support of this position, the State argues that the telephone conversation, which occurred at approximately 1 a.m., was immediately followed by a struggle with defendant over a gun, and that the struggle and its proximity in time to the telephone conversation were established by the undisputed testimony of three witnesses. In addition, directing our attention to what is characterized as a “modern trend,” the State argues that the statement itself is sufficient proof of the existence of a startling underlying event. (See McCormick, Evidence sec. 297 (2d ed. 1972).) In the alternative, the State suggests that the statement is admissible as a present-sense impression. See Fed. R. Evid. 803(1).

In seeking to sustain the decision of the appellate court, defendant argues that his right of confrontation and cross-examination is violated where evidence of statements made by the deceased are admitted absent independent evidence of a sufficiently startling event. Defendant refers us to the decisions of other jurisdictions which have refused to admit the declaration under circumstances where it would appear unreliable and untrustworthy. See generally State v. Ellis (Maine 1972), 297 A.2d 91, 94 (refusing to admit decedent’s statement, the only evidence of defendant’s malice, where decedent refused an offer of help from the listener); State v. Gunthorpe (1970), 81 N.M. 515, 520, 469 P.2d 160, 165 (refusing to admit decedent’s identification of defendant, her former husband, where no evidence of a startling event was presented); Chrysler Motors Corp. v. Davis (1970), 226 Ga. 221, 224, 173 S.E.2d 691, 694 (refusing to admit decedent’s statement on the issue of proximate cause due to its self-serving nature).

We initially note our agreement with defendant and the appellate court that, absent some evidence of the existence of an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, the testimony relating the out-of-court statement should be excluded. (People v. Poland (1961), 22 Ill. 2d 175, 181.) We believe, however, that the appellate court’s reliance upon Truck Insurance Exchange v. Michling (Tex. 1963), 364 S.W.2d 172, 175, is misplaced and that the testimony was properly admitted.

In Michling, the only evidence offered to prove that the deceased employee suffered an injury arising out of his employment was that given by his widow. Mrs. Michling testified that on the date in question her husband returned home from work and stated that he “had hit his head on the bulldozer, the iron bar across the seat.” This was the only evidence introduced which tended to prove that decedent had been working. Other evidence introduced in the proceeding tended to establish that decedent did not work on the date in question; that none of the employer’s bulldozers were operated on that date; that there was no bar across the seat of the bulldozer; and that decedent had died from a congenital disorder with no evidence of external injury. (364 S.W.2d 172, 174.) Not only was the statement the only evidence introduced which supported the claim, there was strong evidence to suggest its unreliability and absolutely no evidence to corroborate the existence of a sufficiently startling event, which was the injury sought to be proved.

In the present case, decedent’s statement, “He’s got a gun,” was corroborated by the testimony of Robert Reinschreiber, Richard Frenzel, and Teri Moss, who witnessed the nearly contemporaneous struggle over this weapon. Given the nearly contemporaneous corroboration of the underlying event by these witnesses, and the statement made by defendant during the call, we find sufficient circumstantial evidence to corroborate the existence of an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, and we therefore hold that the trial court did not abuse its discretion in admitting this testimony. See generally People v. Poland (1961), 22 Ill. 2d 175, 182 (sufficient circumstantial evidence to corroborate the declarant’s presence at the startling event); Commonwealth v. Coleman (1974), 458 Pa. 112, 121, 326 A.2d 387, 391 (Pomeroy, J., concurring) (telephone conversation of a homicide victim immediately preceding the homicide is admissible where sufficiently corroborated); Annot., 74 A.L.R.3d 963 (1976); E. Cleary and M. Graham, Illinois Evidence sec. 803.3 (3d ed. 1979) (recognizing circumstantial proof of the underlying event as sufficient for admissibility).

The State next contends that the appellate court also erred in ruling that there was sufficient evidence of mutual combat to allow an instruction on the lesser included offense of voluntary manslaughter (Ill. Rev. Stat. 1975, ch. 38, par. 9 — 2). The State argues, relying upon People v. Handley (1972), 51 Ill. 2d 229, that the evidence presented establishes that defendant was clearly the aggressor and that decedent’s conduct, responding to an unprovoked lethal attack, cannot be considered sufficient provocation. Defendant contends that there was adequate evidence of mutual combat and therefore the question should have been presented for resolution by the jury.

We agree with the appellate court that the trial court should have tendered an instruction on the lesser included offense of voluntary manslaughter. Our Criminal Code of 1961 provides in pertinent part:

“(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed, ***
***
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” (Ill. Rev. Stat. 1975, ch. 38, par. 9 — 2.)

Defendant correctly argues that the offense of voluntary manslaughter is an acknowledgement by the law of the mitigating effect of human weakness and intense passion in an otherwise unjustified homicide. The offense of voluntary manslaughter has commonly been described as “[a] n intentional homicide committed in a sudden rage of passion engendered by adequate provocation, and not the result of malice conceived before the provocation ***.” (Perkins, The Law of Homicide, 36 J. Crim. L. & Criminology 391, 412 (1946).) Defendant correctly contends that mutual combat has been recognized in Illinois as adequate provocation, sufficient to reduce the offense to voluntary manslaughter. (People v. Crews (1967), 38 Ill. 2d 331.) As we stated in People v. Handley (1972), 51 Ill. 2d 229, 235, “It is well settled that if there is evidence in the record which, if believed by a jury, would reduce the crime to manslaughter, a manslaughter instruction tendered by defendant must be given. ”

In the present case there is evidence that defendant entered the premises and in a threatening manner demanded entry to the Rhinoceros Club, his place of previous employment. There is also evidence that defendant suffered a lacerated lip and that decedent suffered lacerations to the head and right hand. The circumstances under which these injuries arose are not disclosed by the evidence at trial. Subsequent to the circumstances which produced these injuries, defendant and decedent were engaged in a struggle over a weapon. Defendant’s statements immediately following the shooting are evidence that defendant was operating under an intense passion. While it is true that defendant’s intent to kill could have been formulated prior to these events, it is equally true that this intent could have arisen in the heat of this struggle.

Also relevant to the issue of whether a voluntary manslaughter instruction should have been tendered is evidence, excluded by the trial court, of defendant’s physical condition two days after the occurrence. Barbara Leonard, former wife of defendant, testified in an offer of proof that on April 28, 1976, she visited defendant in Cook County jail and that on this occasion she observed stitches and swelling in defendant’s lower lip, scratches about his face, and bluish discoloration around the eyes. The appellate court held that, absent a showing that these injuries resulted from the altercation with Tews, the trial court properly excluded the testimony. We disagree with this ruling.

The test of the relevance of evidence is whether it fairly tends to prove or disprove the particular offense charged or tends to make the proposition at issue more or less probable. (People v. Monroe (1977), 66 Ill. 2d 317, 321-22.) In the present case, we do not find that defendant’s condition two days after this struggle is so remote in time as to render this testimony irrelevant. We are also persuaded by the fact that during this subsequent two-day period defendant was at all times in custody. While it is true that these injuries could have been sustained under circumstances other than the struggle with Tews, we believe that this factor goes to the weight that should be accorded this testimony rather than to its admissibility. (Cf. People v. Panus (1979), 76 Ill. 2d 263, 271.) We therefore hold that this testimony, relevant to the issue of provocation, should have been admitted.

The State’s reliance upon People v. Handley (1972), 51 Ill. 2d 229, is misplaced. In Handley, the victim was beaten by a number of persons and in the course of this beating had succeeded in knocking down two of his assailants and choking one of them. We noted in Handley that, in view of all of the surrounding circumstances, including the fact that this was not a “one on one” situation, the victim’s actions could not be considered serious provocation for the beating received. (People v. Handley (1972) , 51 Ill. 2d 229, 235.) The circumstances of the present case more closely resemble People v. Craven (1973), 54 Ill. 2d 419. In Craven, there was evidence presented by the State that defendant, clearly an aggressor, assaulted decedent and a struggle followed. In the course of this struggle, and preceding the homicide, defendant suffered a laceration on the arm. On the basis of these facts we stated, “Testimony by the State’s own witnesses, if credited by the jury, could have led to a conclusion of mutual combat between defendant and the deceased.” (People v. Craven (1973), 54 Ill. 2d 419, 425.) We believe that the evidence in the present case presents some evidence of mutual combat and that the State’s argument concerning the adequacy of provocation under these circumstances should be addressed by the jury. We hold that the trial court should have tendered an instruction on the lesser included offense of voluntary manslaughter and that the cause must therefore be remanded for a new trial.

Defendant next contends that he was denied his constitutional right to present a defense. Defendant claims that he was prevented from testifying by the trial judge’s refusal to bar the impeachment use of his prior convictions of forgery and delivery of a controlled substance, and that this claim is buttressed by the fact that he informed the court that he would not testify if this impeachment were allowed. Defendant correctly contends that in our decision in People v. Montgomery (1971), 47 Ill. 2d 510, we sought to strike an appropriate balance between the use of prior convictions in the jury’s assessment of the credibility of a witness, particularly the defendant, and the need for the jury to base its decision upon a full and complete hearing of the evidence. (People v. Montgomery (1971), 47 Ill. 2d 510, 518.) We also stated in Montgomery that in determining whether the danger of unfair prejudice from evidence of a prior conviction far outweighs its probative relevance to credibility, such factors as the nature of the crime, its nearness or remoteness in time, the subsequent career of the person, and whether the crime was similar to the one charged are relevant to this determination. In addition, we stated that the burden is on defendant to demonstrate this prejudice. (People v. Montgomery (1971), 47 Ill. 2d 510, 518.) Defendant’s refusal to testify, standing alone, will not serve as a basis for concluding that he is prejudiced. We agree with the appellate court that this decision was a matter of trial strategy. Defendant did not suggest to the trial judge, or explain in his brief on appeal, any other prejudice which would stem from impeachment by his prior convictions or how any such prejudice would substantially outweigh the probative value of the convictions on the question of credibility. We agree with the appellate court that defendant’s decision not to testify was a matter of trial strategy.

For the foregoing reasons, the judgment of the appellate court reversing the circuit court’s judgment is affirmed, and the cause is remanded for a new trial not inconsistent with the views expressed herein.

Affirmed and remanded.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 52745.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RONNIE LEE ROBINSON, Appellee.

      Opinion filed December 1, 1980.
    Rehearing denied January 29, 1981.

      William J. Scott, Attorney General, of Springfield, and Charles Romani, Jr., State’s Attorney, of Green-ville (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Thomas R. Lamont, Keith P. Vanden Dooren, Martin N. Ashley, and William S. Zale, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    John H. Reid, Deputy Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Ronnie Lee Robinson, appearing pro se, entered pleas of guilty in the circuit court of Bond County to charges of theft of property exceeding $150 and violation of a bail bond. He was sentenced to concurrent terms of imprisonment of five and three years, respectively, with credit for “time heretofore served.” An attorney was appointed to represent him in subsequent proceedings, motions were filed to vacate defendant’s pleas of guilty (73 Ill. 2d R. 604(d)), a hearing was held, and the motions were denied. In a Rule 23 order (73 Ill. 2d R. 23), the appellate court affirmed the judgments and modified and reduced the concurrent sentences to two years for each offense. (76 Ill. App. 3d 1115.) We allowed the People’s petition for leave to appeal. 73 Ill. 2d R. 315(a).

The record shows that an information was filed charging defendant with the theft of a color television set and stand from a motel situated in Bond County. Following his arrest, represented by retained counsel, defendant obtained a reduction in bail. He posted bail and thereafter entered a plea of not guilty to the charge. A trial date was set. Defendant’s retained counsel filed a motion to withdraw as attorney and, with defendant’s acquiescence, the motion was allowed. When defendant failed to appear, personally or through counsel, either at a hearing on discovery motions or on the designated trial date, his bond was forfeited. When defendant failed to surrender himself to Bond County authorities within 30 days of the forfeiture, an information was filed charging defendant with violating the bail bond. Ill. Rev. Stat. 1975, ch. 38, par. 32 — 10.

Approximately one year after the bond forfeiture, apparently following his arrest in another county on an unrelated charge, defendant appeared pro se in the circuit court of Bond County and counsel was appointed for him. Although the record does not clearly reflect the nature of the dispute, differences developed between defendant and his appointed counsel. Defendant expressed a desire to plead guilty to both pending charges. After granting appointed counsel’s motion to withdraw, the court admonished the defendant pursuant to Supreme Court Rules 401(a) and 402(a) (73 Ill. 2d Rules 401(a), 402(a)). Upon ascertaining that defendant desired to proceed pro se, the circuit court accepted defendant’s change of plea to guilty to the charge of theft and his plea of guilty to violating the bail bond. A factual basis for both charges was established. Defendant thereafter elected to be sentenced according to the law effective February 1, 1978, and although he attempted to waive both, the court ordered that a presentencing investigation report be prepared and that a sentencing hearing be held.

At the sentencing hearing the People argued and presented evidence in aggravation. In mitigation, defendant introduced his wife and mother to the court, indicated his repentance, stated he had obtained employment provided probation were granted, and concluded: “I’m just begging the Court for mercy, Your Honor, that is all.” The court, following the People’s recommendations, thereafter entered the maximum nonextended concurrent sentences possible (see Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1), noting that “the State could have asked for consecutive sentences and they are not.” After sentencing defendant, the court admonished him pursuant to Supreme Court Rule 605 (73 Ill. 2d R. 605), and advised him of the requirement that motions to vacate the guilty pleas be filed in order to prosecute appeals in the cases. The court stated: “Failure to file the motions will waive any claim of error in these proceedings, Mr. Robinson; and further, it will affect your right to appeal so far as this proceeding is concerned.”

Thereafter, at defendant’s request, counsel was appointed and motions to withdraw the pleas of guilty and vacate the judgments were filed. Defendant’s motions alleged, inter alia, that “at the Hearing on the Felony Arraignment and Plea, I was confused and did not understand the nature and term of the sentence”; that “I did not understand my rights and the admonitions of the Court”; that “I did not understand *** the nature and term of the sentence, prior to entering my plea of guilty”; and that “my plea of guilty was made without understanding and was not voluntary.” After a hearing at which the court heard testimony from defendant, and from the State’s Attorney and defendant’s appointed counsel who had been present when the pleas were entered, the court denied the motions and defendant appealed.

In its Rule 23 order the appellate court noted:

“Appellant raises numerous points on appeal, but we speak to only one, that regarding the sentences received. We have reviewed the record and believe that under all the circumstances of this case, the sentences imposed were excessive. Therefore, pursuant to our authority under Ill. Rev. Stat. 1977, Supp., ch. 38, par. 1005 — 5.1, we hereby modify and reduce the concurrent sentences to two years for each offense.”

The People contend that defendant waived consideration of the propriety of his sentences by failing to include the issue in his motions to withdraw the guilty pleas. (See 73 Ill. 2d R. 604(d).) Assuming, arguendo, that the appellate court properly considered the question of excessive sentencing, the People further argue that it was error to reduce defendant’s sentences without stating any reasons therefor. The People also contend that the decision modifying the sentences is erroneous as a matter of law since nothing in the record rebuts the presumption that the sentences were proper. Finally, it is argued that section 5 — 5—4.1 of the Unified Code of Corrections, as amended (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—4.1), did not change the scope of review of sentences by appellate courts, and even assuming that it did so, that the change constitutes an invalid infringement of this court’s rule-making powers.

Defendant argues that since the appellate court failed to state its reasons for reducing defendant’s sentences, without which it is impossible to review the accuracy of its decision, this court must remand the cause for further clarification. He contends that the record may well support an exception to the requirement that appellate review of his sentences be preserved in the motions to withdraw his guilty pleas. Specifically, it is contended that the circuit court failed to admonish defendant in substantial compliance with Supreme Court Rule 605(b), that the appellate court viewed counsel’s failure to raise the issue as amounting to ineffective assistance of counsel, and that plain error occurred.

Supreme Court Rule 604(d) (73 Ill. 2d R. 604(d)) provides, inter alia, “Upon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.” In his brief in this court defendant concedes that no sentencing issues had been included in the motions to withdraw the guilty pleas. Citing People v. Porter (1978), 61 Ill. App. 3d 941, defendant argues that failure to include the claim of the excessiveness of the sentence constituted ineffective assistance of counsel. People v. Porter does not so hold. The holding in that case was that the failure to include an obvious Rule 402 violation denied defendant effective assistance of counsel, and on this record the excessiveness of the sentence is far from obvious.

We note parenthetically that in People v. Cox (1980), 82 Ill. 2d 268, the court adhered to its holding in People v. Perruquet (1977), 68 Ill. 2d 149, that a reviewing court may alter the sentencing judge’s disposition only upon a finding of an abuse of discretion. The record here reflects three prior felony convictions, and even if the issue were not waived, the record does not support defendant’s contention.

In his brief, defendant asks that in the event of reversal we remand the cause to the appellate court for consideration of the issues presented to, but not decided by, that court. The brief contains a statement of those issues and we have reviewed them. An examination of the record shows that the contentions are without merit and that remandment for further consideration is unwarranted.

For the reasons herein set forth, the judgment of the appellate court is vacated and the judgment of the circuit court is affirmed.

Appellate court vacated; circuit court affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 52637.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LOUIS SMITHERS, Appellee.

      Opinion filed December 1, 1980.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield and Michael M. Mihm, State’s Attorney, of Peoria (Donald B. Mackay, Melbourne A. Noel, Jr., and Maureen Cain, Assistant Attorneys General, of Chicago, and John X. Breslin and Rita F. Kennedy, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Ronald L. Hamm, of Hamm & Hanna, Ltd., of Peoria, for appellee.

      Fred E. Inbau, of Chicago, Wayne W. Schmidt, of San Francisco, and James P. Manak, of Glen Ellyn (Richard J. Brzeczek, and Joseph C. Haughey, of the Chicago Police Department, and James A. Murphy, of the Peoria Police Department, of counsel), for amici curiae Americans For Effective Law Enforcement, Inc., et al.

   MR. JUSTICE RYAN

delivered the opinion of the court:

This appeal concerns the admissibility of evidence obtained during a police “stop and frisk.” The defendant was found in possession of a pistol and charged with unlawful use of weapons. Prior to trial, the defendant filed a motion to suppress the pistol taken from him following a pat-down search. The Peoria County circuit court allowed the motion. The appellate court affirmed, with one justice dissenting. (75 Ill. App. 3d 883.) We granted the State leave to appeal under our Rule 315 (73 Ill. 2d R. 315). We find the search to have been reasonable and reverse the judgment of the appellate court.

At approximately 4 a.m. on February 10, 1978, Officers Robert Nelson and Alan Meisener of the Peoria city police department were radio dispatched to the Spanish Lady Tavern. A telephone call to the police station several minutes earlier indicated there was a “man with a gun” at the tavern. Officer Meisener stated that when he arrived at the tavern he heard yelling from inside. There were approximately 20 patrons in the tavern at that time. He entered the front door and noticed the defendant, Louis Smithers, walking toward him. The defendant was wearing a large goose-down coat, which was buttoned and zipped. The defendant, then 10 to 15 feet from Officer Meisener, reversed direction and walked toward the tavern’s rear exit. Officer Meisener testified that he asked the bartender, Robert Foraker, if the defendant had been involved in the fracas. The bartender responded, “Yes.” Officer Meisener then instructed the second officer, Robert Nelson, to stop the defendant. Officer Nelson ran around the building and stopped the defendant as he was leaving the passageway connected to the tavern’s rear exit. Without his consent, the defendant was then given a pat-down search. The search produced a gun. Louis Smithers was then charged with two counts of unlawful use of weapons. Ill. Rev. Stat. 1977, ch. 38, pars. 24 — 1(a)(4), 24 — l(a)(10).

It should be noted that there were certain discrepancies in the evidence. The bartender testified that it was not he who associated the defendant with the trouble. Rather, he stated, it was one of the patrons. He did, however, acknowledge hearing someone say, “there he goes out the back door,” referring to the defendant.

A second discrepancy involves the presence of the defendant in the tavern. While the officers and the bartender state that they saw the defendant in the tavern, the defendant contends that he never actually entered the tavern. He approached the tavern, but after seeing the commotion inside, turned around and walked back down the gangway.

After hearing the testimony, the circuit court found that there were not sufficient articulable facts to support the stop and frisk of the defendant. The officer’s action was based on a “mere hunch,” the court stated, and the motion to suppress the gun was granted. The appellate court affirmed. We find that there were sufficient articu7 lable facts to authorize the stop and frisk, and that the circuit court’s suppression order was contrary to the manifest weight of the evidence.

The Constitution of the United States provides: The provision applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. (See Davis v. Mississippi (1969), 394 U.S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394; Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) The fourth amendment requires that any seizure be “reasonable.” As with other categories of police action subject to fourth amendment constraints, the reasonableness of such seizures depends upon a balancing of the public’s interest and the individual’s right to personal security free from arbitrary interference by law officers. (See United States v. Brignoni-Ponce (1975), 442 U.S. 873, 45 L. Ed. 2d 607, 95 S. Ct. 2574; Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; W. Schaefer, The Suspect and Society, Criminal Procedure and Converging Constitutional Doctrines (1967); Caracappa, Criminal Law and Criminal Procedure: Some Current Issues, 16 Duq. L. Rev. 499, 504 (1977-78).) Although the officer need not have probable cause to arrest or search in order to stop and frisk (see Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889), he must have knowledge of sufficient articulable facts at the time of the encounter to create a reasonable suspicion that the person in question has committed, or is about to commit, a crime. Brown v. Texas (1979), 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637; Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880; Beck v. Ohio (1964), 379 U.S. 89, 96, 13 L. Ed. 2d 142, 148, 85 S. Ct. 223, 228.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ***.” (U.S. Const., amend. IV.)

The fact that an officer has reason to stop a citizen does not necessarily justify the further intrusion of a search for weapons. The officer may conduct a pat-down search only if he has reason to believe that he is dealing with an armed and dangerous individual. (See Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; Adams v. Williams (1972), 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921.) Here again the officer’s belief is not judged by the probable-cause test. He need only have the reasonable belief that either his safety, or that of others, is in danger. See Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889.

These same concerns are found in our Code of Criminal Procedure of 1963. Section 107 — 14 of the Code provides:

“A peace officer *** may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense ***.” (Ill. Rev. Stat. 1977, ch. 38, par. 107 — 14.)

Similarly, section 108 — 1.01 provides:

“When a peace officer has stopped a person for temporary questioning pursuant to Section 107 — 14 of this Code and reasonably suspects that he or another is in danger of attack, he may search the person for weapons.” (Ill. Rev. Stat. 1977, ch. 38, par. 108 — 1.01.)

These sections of the Code were considered in People v. McGowan (1977), 69 Ill. 2d 73. In McGowan two officers observed the defendant and another man emerging from an industrial area about 1 a.m. Both were wearing black clothing. The men were stopped by the officers. The defendant received a pat-down search, which produced a gun. The defendant was charged with unlawful use of weapons. At the hearing to suppress the gun, the officer testified that he stopped the men because of their clothes, the time of night, and his knowledge of the area. The motion was denied and the defendant was convicted.

As with other cases involving a search or seizure, the reasonableness in McGowan depended on the facts and circumstances of the case. (Cady v. Dombrowski (1973), 413 U.S. 433, 440, 37 L. Ed. 2d 706, 714, 93 S. Ct. 2523, 2527.) To be reasonable, the officer’s inferences must be based on more substantial facts than would support a mere hunch. In order for the police to justify a temporary detention and frisk for weapons, they must point to specific articulable facts which, when taken together with natural inferences, make the intrusion reasonable. (People v. McGowan (1977), 69 Ill. 2d 73, 78.) We acknowledged that McGowan was a close case. There had been no report of criminal activity in the area, the defendant had not acted suspiciously, and no one had associated the defendant with any crime.

Comparing McGowan to the case at bar, we must conclude that the facts here are not reaHy close. There are sufficient articulable facts to create a reasonable belief in the minds of the police officers that an offense had been, or was about to be, committéd, that the officers, or some other person in or near the tavern, were in danger of being harmed, and that the defendant was involved.

It has been suggested that there are six primary variables which, alone or in combination, are increasingly relied upon in determining the validity of a Terry-type stop: appearance, conduct, criminal record, environment, police purpose and source of information. (Comment, Terry Revisited: Critical Update On Recent Stop-And-Frisk Developments, 1977 Wis. L. Rev. 877, 886.) The facts of a case do not always lend themselves to such precise categorization. However, our case, as shown below, contains a substantial number of the elements the author of the comment, after analyzing current case law, deems essential.

Although the record does not disclose the source of the call for police assistance, the officers, when they went to the tavern, had been dispatched as a result of information received by the police that there was “a man with a gun” at the tavern. An unidentified call of this nature may be insufficient to establish probable cause to justify an arrest; however, it certainly was sufficient to authorize and, indeed, require, a police officer to investigate the activities in the tavern. This call, coupled with the other facts present, was sufficient to authorize an investigatory stop both under Terry (see Adams v. Williams (1972), 407 U. S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921) and under the provisions of section 107 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 107 — 14), and to authorize a search for weapons under section 108 — 1.01 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 108-1.01).

Having been alerted to the possible presence of a man with a gun and the possibility of criminal activity, the officers, in evaluating the potential danger at the tavern, could properly consider that, by 3 or 4 o’clock in the morning, the patrons in the tavern had probably consumed a considerable amount of liquor, and that the loud noises emanating from the tavern were not just robust discussions, but instead could reasonably be inferred to involve some sort of a disagreement bordering on violence. The entire environment would reasonably alert a trained police officer to the possibility of danger. Such an officer would be aware, at least in a general way, of statistics which show the high potential for violence and danger to themselves and others under these circumstances. (In 1979 over 50% of the assaults on officers occurred between 12 midnight and 6 a.m., and one-third of the assaults on officers occurred while responding to disturbance calls. This is a far greater percentage than in any other type of activity officers are engaged in when an assault occurs. Department of Law Enforcement, Division of Support Services, Bureau of Identification, Crime in Illinois 1979, sec. V, at 169, table 47.)

In appraising the reasonableness of the stop and frisk, one must also consider the purpose or motive of the officers. Since reasonableness involves a balancing of the need to search against the invasion which the search entails, the quantum of evidence necessary to justify a “reasonable suspicion” to support a stop and frisk should decrease as the need for the search increases. (See Comment, Terry Revisited: Critical Update On Recent Stop-And-Frisk Developments, 1977 Wis. L. Rev. 877, 891.) In other words, the articulable facts necessary to justify a stop-and-frisk requirement should decrease as the seriousness of the offense or the danger involved increases.

The fact that the officers had information that the complaint they were investigating involved a man with a gun casts a heavy weight in favor of the reasonableness of the search. The late hour, the fact that there was a disturbance in. the tavern, and the boisterous conduct all buttress the reasonableness of the belief that a stop and a frisk were authorized. We thus have the general requirements necessary, under Terry and the sections of our code cited, to authorize an officer to conduct the search in question. We must, however, evaluate the reasonableness of the officer’s conduct as it relates to this particular defendant.

As stated earlier in this opinion, when Officer Meisener entered the tavern, he noticed the defendant walking toward him. When the defendant was 10 to 15 feet away from the officer, the defendant turned and began walking toward the rear exit. This attempt to evade the officer, coupled with the other circumstances, was sufficient to center suspicion on the defendant. (See United States v. Hall (D.C. Cir. 1976), 525 F.2d 857; 3 W. LaFave, Search And Seizure sec. 9.3, at 93 (1978).) Also, Officer Meisener stated that he then asked the bartender if the defendant was involved in the disturbance and the bartender answered, “Yes.” The bartender, however, stated that not he, but one of the other patrons, identified the defendant as being involved in the disturbance by saying “there he goes out the back door.” Regardless of these inconsistencies, the fact remains that the officer’s attention was brought to focus on the defendant by someone in the tavern as the person involved in the disturbance which prompted the call for police help. When all the articulable facts are considered together, they clearly indicate that Officer Meisener had reasonable grounds to believe the defendant to be the person about whom the “man with a gun” call was made, and then to detain him and search him for weapons.

We should evaluate the officers’ actions in light of one’s reaction had they failed to act. When an officer could be disciplined for failure to act, his action can hardly be characterized as unreasonable. (People v. Moore (1966), 35 Ill. 2d 399, 403.) Although we need not determine whether such a failure in this case would warrant discipline, the facts are such that it would have been poor police work, indeed, for the officers not to have searched the defendant for weapons. (See In re H.B. (1977), 75 N.J. 243, 381 A.2d 759.) A “man with a gun” call should be sufficient to alert an officer to a potentially dangerous situation. The circumstances existing at the tavern when the officers arrived confirmed, partially at least, the validity of the call, and the officer’s attention was focused upon the defendant as being involved in the disturbance. Had the officer not conducted the stop and frisk, someone could well have been killed or seriously injured. In determining the reasonableness of the officers’ conduct, the facts must be considered not from the perspective of analytical hindsight, but rather as they would have been viewed by a reasonable officer confronting them in the performance of his duties. See People v. Clay (1973), 55 Ill. 2d 501, 505.

For the reasons stated herein, we find that the order of the circuit court of Peoria County suppressing the evidence is against the manifest weight of the evidence (see People v. Williams (1974), 57 Ill. 2d 239, 246; People v. Brooks (1972), 51 Ill. 2d 156, 165); and that order, as well as the judgment of the appellate court, is reversed.

Reversed and remanded.