author:
JUSTICE CLARK
      JUSTICE GOLDENHERSH,

text:
    (No. 56753.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DANIEL WINTERS et al., Appellees.

      Opinion filed June 17, 1983.

    Rehearing denied September 30, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Michael B. Weinstein and Ellen M. Flaum, Assistant Attorneys General, of Chicago, and Phyllis J. Perko and William L. Browers, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
    G. Joseph Weller, Deputy Defender, of the Office of the State Appellate Defender, of Elgin (Mary Robinson, of counsel), for appellees.
   JUSTICE CLARK

delivered the opinion of the court:

On January 18, 1979, indictments were filed in the circuit court of Du Page County charging Kenneth H. Killian, Daniel B. Winters and Mark A. Van Roekel with multiple counts of robbery.

Each defendant moved to quash his arrest, to suppress all evidence seized from both the apartment in which the defendants were arrested and the car that the police had observed being used in one of the alleged robberies, and to suppress the defendants’ oral and written confessions.

Following suppression hearings on the defendants’ motions, the circuit court of DuPage County, on December 23, 1980, entered orders suppressing all of the evidence, including the defendants’ confessions, and quashed all of the arrests that occurred immediately after the entry into the defendants’ apartment by the police officers.

The State appealed, and on April 20, 1982, the appellate court, in a Rule 23 order (87 Ill. 2d R. 23), affirmed the circuit court’s rulings quashing the defendants’ arrests, suppressing evidence seized from the defendants’ apartment, and suppressing the defendants’ oral and written confessions, finding that the arrests were the result of an illegal entry and that the items seized, as well as the defendants’ confessions, were the fruits of the illegal entry. However, the appellate court reversed the order of the circuit court suppressing evidence seized from the car, in finding that none of the defendants had standing to contest the search of the car or seizure of those items. 105 Ill. App. 3d 1206.

We granted the State’s petition for leave to appeal (87 Ill. 2d R. 315). The defendants are not contesting on appeal to this court the appellate court’s finding as to that part of the order reversing the trial court’s suppression of the evidence seized from the automobile.

In January of 1979, Officer Thomas Vitek of the Bensenville police department received information from a telephone informant that Kenneth Killian and two other individuals were responsible for robberies of Fotomat stores in the area of several DuPage County communities. Vitek knew the informant and knew that information previously given from this person had led to arrests in four or five instances. The informant indicated to Vitek that he was getting his information from an unidentified third party, whose reliability could not be attested to. According to the information that the informant had, the individuals responsible for the Fotomat robberies lived in Lisle, Illinois, and drove a 1975 maroon-over-white Pontiac. Officer Vitek testified that, through the use of State records, he was able to ascertain that the vehicle was registered to a “Killian.” As Vitek recalled, it could have been Ralph W. Killian. Kenneth Killian testified that the car belonged to his father.

A surveillance of the car was set up by the police departments of Lisle, Elmhurst and Bensenville early in the evening on January 4, 1979, on Beau Monde Lane in Lisle, Illinois, in the vicinity of the apartment complex in which the defendants lived. At about 6:30 p.m. officers observed two individuals drive the vehicle away from the Lisle apartment complex. The officers followed the car to a Fotomat store in the Lisle area. The officers then observed one of the passengers get out of the car and pull a knit hat over his face as he walked over to the Fotomat store. The subject under surveillance then knocked on the window (which was apparently used for normal business transactions) and went back to the car when the window was not opened.

After the car had left the vicinity of the Fotomat store, Officers Vitek and Millner went up to the window and asked if there had just been a robbery and learned that the employee had refused to talk with the masked man because the employee feared that he was going to be robbed. Other officers then followed the car as it proceeded back toward the apartment complex at which the surveillance had begun. The officers following the car next observed one of the passengers leave the car, enter and exit a White Hen Pantry store and then enter the Little Italian Restaurant. Shortly thereafter, the subject was seen running from the Little Italian Restaurant and getting into the car.

At this juncture, Officers Vitek and Millner were parked on a side street near the Little Italian Restaurant. After seeing one of the subjects running toward the Pontiac under surveillance Officers Vitek and Millner proceeded to the apartment complex at which the surveillance began. Officer Vitek testified that en route he received a radio communication that the Little Italian Restaurant had just been robbed.

Officer Damico and his partner, Detective Busiedlek, had observed from their unmarked squad car one of the passengers emerge from the Pontiac, enter the White Hen Pantry and soon thereafter flee running from the Little Italian Restaurant. The radio dispatcher had then confirmed, upon Officer Damico’s inquiry, that there had, as of that moment, been an armed robbery at the Little Italian Restaurant. The officers then observed the car pull away and followed it back to the apartment complex. While following the car into the complex, the officers lost sight of the vehicle for 10 to 15 seconds. When the officers regained the view of the car, it was parked and unoccupied.

The surveillance teams, six to 10 officers, gathered in the parking area and then entered the apartment building closest to where the car was parked and, in two elevator trips, went to the door of apartment 301. One of the officers testified that, while waiting for the second group to arrive, he heard voices through the door discussing splitting up money and saving enough money for bond.

In order to gain entry to the apartment, Officer Vitek knocked, and when defendant Winters asked who was there, the officer responded, “Mark, why weren’t you at work today?” whereupon defendant Winters partially opened the door. How far the door was opened, whether there was a chain lock, and whether the chain lock was broken by the police depends upon what witnesses are believed. However, the trial court determined that the door was secured by a chain and was broken by the police.

The police entered the apartment with their guns drawn and quickly subdued defendants Killian and Winters, directing the defendants to the floor and handcuffing them. Officer Millner then Mcked in a bathroom door in the back of the apartment, apprehended defendant Van Roekel, and discovered some money in the bathroom.

While it is not clear exactly what happened in what sequence, at this point it appears that Van Roekel was handcuffed and brought into the living room with the other defendants.

It is clear that Killian signed a consent form approving the officers’ search of the apartment and car. The defendants testified that a metal box in the bedroom was pried open and a money bag taken from the box. Killian testified that while he had a key, no one had asked him for it.

The defendants were interrogated at the apartment, where Killian and Winters confessed, and were subsequently questioned at the Lisle police station, where each defendant gave a written statement.

No weapons were found in the apartment. The police did not have arrest or search warrants.

The trial court, in suppressing the evidence and quashing the arrests, said:

“One of the difficult things about this job is that-sometimes you have to let guilty people get off free because the police departments engage in tactics such as are displayed here.
With regard to Killian, the police had no more probable cause during their entire surveillance that day than they had when they formed the intent to take him in the apartment.
They had plenty of time prior to that, if they had probable cause, to get the necessary warrant, and they didn’t do it.
During the testimony in this case I got the impression that the various villages and the officers from different villages were having a contest to see who could be more macho, breaking the chain off the door, searching without consent, prying open metal boxes.”

Upon the State’s motion for more definite findings, the trial court observed that it was shocked by the conduct of the police and commented, in denying the motion:

“If this conduct is to be condoned by a Court of law, I think we are returning to the status of 1939 Germany.”

The State argues that the trial court failed to make sufficiently specific findings of fact in support of its suppression order and thereby frustrated the State in its appeal from that judgment.

Section 114 — 12 of the Code of Criminal Procedure of 1963 provides that “the [trial court] shall state the findings of facts and conclusions of law upon which the order or judgment is based.” (Ill. Rev. Stat. 1979, ch. 38, par. 114—12.) In People v. Riencke (1980), 84 Ill. App. 3d 222, the appellate court correctly underlined the importance of such findings in facilitating review of the evidence relied upon and the reasoning of the trial court. 84 Ill. App. 3d 222, 224.

However, the absence of such findings does not require a remand. While we feel that a more specific statement of the factual basis upon which the trial court relied in reaching its conclusion should have been made, we must presume that in the absence of such express findings of fact the trial court credited only the testimony that supports its ruling. People v. Holloman (1970), 46 Ill. 2d 311; People v. Haskell (1968), 41 Ill. 2d 25.

As we begin our analysis, it is important to be mindful of the well-established rule in this State that a trial court’s determination on a motion to suppress will not be overturned unless it is manifestly erroneous. People v. Holloway (1981), 86 Ill. 2d 78; People v. Conner (1979), 78 Ill. 2d 525; People v. Williams (1974), 57 Ill. 2d 239, cert. denied (1974), 419 U.S. 1026, 42 L. Ed. 2d 302, 95 S. Ct. 506.

The trial judge did determine that despite police officers’ testimony to the contrary the officers forced their way into the apartment, broke a chain lock from the door, searched the apartment without consent, and in the course of that search pried open a locked metal box.

Those findings certainly provide a basis for us to presume that the court credited the defendants’ testimony, at least as to the way the officers entered the apartment and conducted the search. While we would hope that in future cases that come before us for review the trial court’s findings will be more specific, as to both findings of fact and conclusions of law, we are not compelled to remand here.

In reviewing the substance of the defendants’ fourth amendment claims, we first address the issue of whether probable cause existed to make the arrests. The defendants agree that the police had probable cause to arrest the occupants of the car that they were watching once they had received confirmation that a robbery had occurred at the Little Italian Restaurant at approximately 7 p.m. on January 4, 1979.

The State asserts that having followed the car connected with the robbery of the Little Italian Restaurant back to the apartment complex, the police had probable cause to believe that both suspects were in the apartment at issue. We agree.

Testimony of several police officers indicates that they knew in what apartment Killian lived. The State asserts that it can be inferred that the information came from Officer Vitek’s informant or from independent checking done by the police officers subsequent to the informant’s tip.

We feel that such an inference is the only reasonable one to be drawn. When asked what led the officers to the specific apartment, Officer Damico responded that “[t]he information we received was that they lived at that apartment number.” Other officers also testified that they had previous information as to what apartment Killian, Winters and Van Roekel were staying at in the building. While not directly adduced at the suppression hearing, we agree with the State that the reasonable inference is that the information was supplied by the informant or discovered by one of the police officers in the subsequent investigation after Officer Vitek’s conversation with the informant.

We next have to ask whether probable cause existed in the officers’ going to apartment 301 based upon an informant’s tip or on information gained as a result of that tip. For that determination we must look to Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509. There are two parts to the probable-cause tests articulated in Aguilar: The first is the “basis of knowledge” part, which is concerned with the facts and circumstances showing that the informant knew that the person named has been or will be involved in criminal activity; the second is the “veracity prong,” which is concerned with the facts and circumstances from which it was concluded that the informant was credible or his information reliable. 378 U.S. 108, 114-15, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514; People v. Gates (1981), 85 Ill. 2d 376, cert. granted (1982), 454 U.S. 1140, 71 L. Ed. 2d 291, 102 S. Ct. 997.

We must keep in mind that although Officer Vitek’s informant had been shown to be reliable in the past, the informant did not have first-hand knowledge of the Fotomat robberies. There had been no showing that the unidentified third party who provided the informant with the information about the Fotomat robberies was at all reliable.

The actions of the two subjects driving the maroon-over-white Pontiac to the Fotomat, one masked subject approaching the window at the Fotomat and, finally, the running exit from the Little Italian Restaurant and confirmation that the restaurant had been robbed corroborated the informant’s tip. The specificity of detail as to the activities that the occupants of the maroon-over-white Pontiac did engage in on the evening of January 4, 1979, satisfied the “basis of knowledge prong” (Spinelli v. United States (1969), 393 U.S. 410, 417, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 589-90; People v. Gates (1981), 85 Ill. 2d 376, 388, cert. granted (1982), 454 U.S. 1140, 71 L. Ed. 2d 291, 102 S. Ct. 997), while the course of events on January 4, 1979, showing that the informant’s tip was reliable satisfied the “veracity prong” of the Aguilar test (United States v. Harris (1971), 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075; Rutledge v. United States (D.C. App. 1978), 392 A.2d 1062). Because the substantial corroboration of the informant’s tip satisfied both prongs of the Aguilar test, we feel that the information as to the apartment number could be acted upon, since probable cause to proceed to apartment 301 had then been established. Furthermore, one of the officers overheard two voices from within apartment 301 talking about splitting up money and putting some away for bond purposes. Given the now corroborated tip, this was another indication that the parties had partaken in the robbery of the restaurant minutes earlier.

Just prior to the filing of this opinion the United States Supreme Court handed down its decision in Illinois v. Gates (1983), 462 U.S. ___, 76 L. Ed. 2d 527, 103 S. Ct. 2317. In view of this very recent decision, strict adherence to the Aguilar-Spinelli test has been abandoned by the United States Supreme Court and the totality-of-circumstances approach has been substituted in its place. We believe that, whichever approach is undertaken here, probable cause did exist.

Without reviewing the facts again, it is clear that, in view of the totality of circumstances in the instant case, probable cause did exist to proceed to apartment 301.

Despite the finding by the trial court that the police officers broke the chain, we find that the officers’ entry was reasonable given the circumstances of this case.

The exigent-circumstances exception to the warrant requirement applies where police officers enter an apartment in pursuit of an armed subject whom they have probable cause to believe committed a known offense. (See People v. Abney (1980), 81 Ill. 2d 159.) This is just such a case where police officers are acting to apprehend suspects in a genuine emergency.

In People v. Abney this court held that a warrantless entry of the defendant’s apartment to arrest the defendant was justified by exigent circumstances where police went to the apartment immediately after taking a statement from the victim of a beating who told them that about IV2 hours earlier the defendant had beaten him with an iron bar and pistol and had walked toward his home after the beating, and where the police knew the defendant lived at a particular address.

In Abney police officers were presented with an opportunity to quickly apprehend an armed suspect, and this court concluded that because there was need for prompt action, there was no deliberate or unjustified delay, and it was believed that the suspect had shown violent tendencies, exigent circumstances existed. People v. Abney (1980), 81 Ill. 2d 159, 169-71.

So, too, in the instant case, where the officers moved quickly to apprehend suspects they had reason to believe were armed and had just committed a robbery they had witnessed moments earlier, exigent circumstances existed to justify the entry into the defendants' apartment.

We have also said that the failure of the police to knock and announce their authority and purpose where exigent circumstances exist is not improper (see People v. Ouellette (1979), 78 Ill. 2d 511), and we find that the failure of the police to knock and announce their purpose was not improper here. The entry into the defendants’ apartment was valid, and the subsequent arrests were legitimate and should not have been quashed.

We further find that the trial court’s determination that the search of the apartment was conducted without consent was clearly in error.

It is firmly established that a search of the accused and the area within their immediate control, conducted incident to a lawful arrest, is valid. Chimel v. California (1969), 384 U.S. 752. 23 L. Ed. 2d 685. 89 S. Ct. 2034.

As to the search in the bedroom area, not within reach of the defendants, it is undisputed that defendant Killian signed a consent form to search the apartment, and there was no testimony that Killian was forced to sign such a consent form.

Finally, the defendants contend that the confessions must be suppressed as products of fifth amendment violations. It is apparent that Miranda warnings were given upon the police officers’ entry into the apartment and waiver forms were signed when the written statements were taken at the Lisle police station. While defendant Van Roekel also claims he had told Officer Millner he wanted to see an attorney, there is no support for the contention in the record. We cannot agree with the defendants’ suggestion that the oral and written confessions were not voluntarily given.

While the trial court’s lack of specific findings has made appellate review more difficult than it should be, we, just the same, do find that the factfinder’s order quashing the arrests and suppressing the evidence was manifestly erroneous. People v. Holloway (1981), 86 Ill. 2d 78.

The judgment of the appellate court affirming the quashing of the arrests of the defendants, suppression of the evidence seized in the apartment, and suppression of the oral and written confessions of the defendants is reversed. Because the appellate court reversal of the circuit court order suppressing the evidence seized from the car was not at issue here, that part of the appellate court judgment remains in effect. The judgment of the circuit court is reversed. The cause is remanded to the circuit court of DuPage County with directions to proceed in a manner consistent with this opinion.

Appellate court affirmed in part and reversed in part; circuit court reversed; canse remanded.

JUSTICE GOLDENHERSH,

dissenting:

I dissent and would affirm the judgment of the appellate court. In Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, the Supreme Court made it clear that warrantless arrests in a home are presumptively unreasonable and that in the absence of exigent circumstances the presence of probable cause is not sufficient to justify a warrantless arrest. Here the record contains no evidence to support a finding of probable cause that the occupants of the apartment were in any manner involved in the offenses mentioned in the informer’s tip or in any subsequent occurrence, and there was no evidence of exigent circumstances.

Officer Vitek, who received the telephone tip, candidly admitted that the informant obtained his information from an unidentified third party to whose reliability he could not attest. The tip provided only the information that the suspect lived in Lisle and drove a 1975 maroon-over-white Pontiac. As it turned out, the automobile was not even owned by the defendant. It was, in fact, owned by his father.

The informant’s tip referred to “Fotomat” robberies, with no information concerning locations or dates. There was nothing to connect these defendants to those robberies, and there was no robbery of a Fotomat on the night in question. One of the occupants of the Pontiac was in a restaurant for a very brief period, and it was then reported that the restaurant had been robbed. The police, in attempting to follow the vehicle, lost it in traffic, and when it was again seen it was unoccupied and parked in the lot of a large apartment complex.

There was no testimony concerning the source of the police information that Killian or any of the other defendants occupied the apartment where the search took place. There was no testimony which connected the individuals who occupied the automobile during the surveillance with the apartment which the police entered. The efforts of the majority to bootstrap a “reasonable inference” fails because there is no evidence, and Officer Damico’s comment concerning “the information received” does not serve as a substitute for evidence.

The record contains no evidence of exigent circumstances. There were at least 10 or 12 police officers in the surveillance teams, and there was no testimony to explain why officers could not have been stationed at the automobile and near the apartment to prevent an escape while search and arrest warrants were obtained. There is no testimony to indicate that an escape, if indeed one was possible or contemplated, could have been effected in any manner other than by use of the automobile, and obviously an escape would have been very easily prevented.

The majority states that the exigent-circumstances exception to the warrant requirement applies when police officers enter the apartment in pursuit of an armed subject whom they have probable cause to believe committed a known offense. As an abstract proposition this is probably true, but those are not the facts in this case. When the police went to the apartment they could hardly have been in “hot pursuit” because they could not possibly have known whether the individuals who they saw in the automobile outside the restaurant, and who were not identified, had entered the apartment.

The majority states, too, that the police moved quickly to apprehend suspects they had reason to believe were armed. Again, I do not quarrel with the abstract proposition, but there is no evidence which connects the occupants of the apartment with the robbery which the police had allegedly witnessed and as was made obvious by the search, the occupants of the apartment were not armed.

The circuit and appellate courts correctly decided this matter and I would affirm the judgment.

JUSTICE SIMON joins in this dissent.


source: Caselaw Access Project

author: JUSTICE WARD JUSTICE GOLDENHERSH,

license: Public Domain

text:
    (No. 56860.
    JANET M. PETERS, Appellee, v. THE BOARD OF EDUCATION OF RANTOUL TOWNSHIP HIGH SCHOOL DISTRICT NO. 193 OF CHAMPAIGN COUNTY, Appellant.

      Opinion filed June 17, 1983.

    Rehearing denied September 30, 1983.

      Robert A. Mathis, of Rantoul, for appellant.
    Drach, Terrell & Deffenbaugh, P.C., of Springfield, for appellee.
    Gilbert Feldman, of Cornfield & Feldman, of Chicago, for amicus curiae Illinois Federation of Teachers.
    Miller & Tracy Law Offices, P.C., of Monticello, for amicus curiae Illinois Association of School Boards.
   JUSTICE WARD

delivered the opinion of the court:

In April 1981 the plaintiff, Janet M. Peters, a tenured high school English teacher, received notice from the defendant board of education of Rantoul Township High School District No. 193 of her honorable dismissal effective at the conclusion of the 1980-81 school year. The dismissal was stated to be, in the language of section 24 — 12 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 12), because of the discontinuance of the “particular type of teaching service” in which the plaintiff was engaged. On July 28, 1981, she filed a complaint in the circuit court of Champaign County for a writ of mandamus ordering her reinstatement as a full-time teacher at the school and the recovery of any damages she might suffer from the loss of employment. On August 18, 1981, the circuit court entered an order striking the complaint. The appellate court reversed the judgment and remanded the cause to the circuit court with directions to issue a writ of mandamus. (106 Ill. App. 3d 77.) We allowed the petition of the board of education for leave to appeal. 73 Ill. 2d R. 315.

Peters was initially hired by the board of education to teach during the 1976-77 school year. That year, and each year thereafter, she taught five English classes and occasionally supervised study halls. At the conclusion of the 1980-81 school year, another English teacher, who had been conducting three English classes and one journalism class and who had supervised the preparation of the school’s yearbook and newspaper, resigned from the staff. The plaintiff was not academically qualified under standards of the Superintendent of Public Instruction to teach journalism and was not offered the assignment. Another English teacher, Ms. Fejes, who was also qualified to teach journalism, was assigned a full load of English classes for the 1981-82 school year. She had taught five English classes each year since the 1976-77 school year. A nontenured teacher was hired by the board of education in the summer of 1981 to fill the resigning teacher’s position in the 1981-82 school year.

According to Peters’ complaint for a writ of mandamus, the board of education assigned Frank Bell, of its faculty, to conduct, in the 1981-82 school year, three classes of world history and two classes of United States history, and to give assistance in coaching the men’s wrestling team. Bell had less seniority on the faculty than the plaintiff.

Peters was legally qualified to teach English and world history, but not United States history. Relying on statutory tenure provisions, she demanded that the board of education recombine English classes from the resigning teacher’s position and world history classes from Mr. Bell’s assignment in order to create a teaching position for which she would be legally qualified. The board of education refused, stating that defining a teaching position or assignment is within a school board’s discretion and that a teacher dismissed because of a reduction in staff is entitled to reinstatement only if she can demonstrate that she is legally qualified, that is, that she satisfies the minimum requirements under the statute of a position or assignment as defined by the school board. Peters could not fill, the board of education observes, either the resigning teacher’s position or Mr. Bell’s position since she was not qualified to conduct classes in either journalism or United States history. The petitioner does not dispute her want of these qualifications.

A tenured teacher is said to be “in contractual continued service.” Article 24 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 1 et seq.), commonly referred to as the Teacher Tenure Law, sets out tenure rights which Peters relies on to support her complaint:

“Removal or dismissal of teachers in contractual continued service. If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given the teacher by registered mail at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor, and in all such cases the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has entered upon contractual continued service and who is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service. *** If the board has any vacancies for the following school term or within one calendar year from the beginning of the following school term, the positions thereby becoming available shall be tendered to the teachers so removed or dismissed so far as they are legally qualified to hold such positions. ***” (Ill. Rev. Stat. 1981, ch. 122, par. 24-12.)

The Teacher Tenure Law is designed to provide continuity and stability for students, to provide teachers with some degree of job stability free from arbitrary hiring and firing, to attract teachers of high capabilities, and to provide for the retention of experienced teachers. Johnson v. Board of Education (1981), 85 Ill. 2d 338, 344.

We must decide whether the above-cited section, i.e., section 24 — 12 of the School Code, required the board of education to redefine the qualifications for a teaching position or assignment in order to create a new position for the plaintiff and thus permit her reassignment.

It is the responsibility of a school board to appoint teachers and fix salaries (Ill. Rev. Stat. 1981, ch. 122, par. 10 — 20.7), to direct what branches of study shall be taught (Ill. Rev. Stat. 1981, ch. 122, par. 10—20.8), and to examine and employ teachers (Ill. Rev. Stat. 1981, ch. 122, par. 10—21.1). Additionally, a school board has the power to dismiss a teacher, subject, however, to the provisions of sections 24—11 to 24—15 of the Teacher Tenure Law. Ill. Rev. Stat. 1981, ch. 122, par. 10—22.4.

Though the discretion exercised by a school board in making teacher assignments “must be exercised with extreme caution and circumspection in order *** [to protect] *** teachers from political, partisan, capricious, fickle, and irregular decision making” (Newman v. Board of Education (1981), 98 Ill. App. 3d 976, 984), it is clear that “[w]here the legislature has empowered a school board to perform certain acts, courts will not interfere with the exercise of those powers, or substitute their discretion for that of the school board, unless the board’s action is palpably arbitrary, unreasonable, or capricious.” McLain v. Board of Education (1978), 66 Ill. App. 3d 1024, 1026-27.

The trial court, in striking the complaint for mandamus, was correct in noting that the scheduling of classes and the assignment of teachers will not be considered simply a ministerial function of the board of education. It involves the exercising of discretion and judgment which are not matters to be controlled by a writ of mandamus. International Harvester Co. v. Goldenhersh (1981), 86 Ill. 2d 366, 369; Chicago Association of Commerce & Industry v. Regional Transportation Authority (1981), 86 Ill. 2d 179.

Further, a tenured teacher who has been dismissed because of a discontinuance of teaching positions has no right to reassignment to a position held by nontenured teachers for which the tenured teacher is not qualified. A tenured teacher must satisfy all of the minimal academic qualifications prescribed by statute for a given teaching position before the tenured teacher can invoke the statutory right to “bump” or displace a nontenured teacher. Ill. Rev. Stat. 1981, ch. 122, par. 24—12; Herbach v. Board of Education (1981), 94 Ill. App. 3d 889, 892-94.

Though we disagree with the conclusion of the appellate court reached here, it was correct in noting that a dismissed tenured teacher cannot create a position that she is qualified to teach by taking and recombining courses from other teaching positions. (106 Ill. App. 3d 77, 80; see Higgins v. Board of Education (1981), 101 Ill. App. 3d 1003.) To permit this would usurp and, if extended, destroy the authority of the school board. The plaintiff here simply is not qualified to teach in the position in which United States history is presented, or in the position in which the course in journalism is being offered. The board of education did not “realign” courses here in order to “avoid” hiring Peters, as the appellate court concluded. The court erred in deciding that the board of education acted arbitrarily and capriciously by refusing to rehire Peters. The board made no attempt to reassign courses to create new positions so that it could deny her employment. Both the resigning teacher’s and Fejes’ teaching positions were established, and to require the board of education to interchange courses between them would be a usurpation of its discretionary authority. Quite clearly, the decision to combine the journalism course with certain English courses and the responsibility of supervising school publications, which was made long before the decision to dismiss Peters, was not motivated by a desire to eliminate her from the faculty. What was stated in Higgins applies here. There the court said that the board “did not reassign classes to create wholly new positions, nor was there a shifting of tenured and nontenured teachers so that the [dismissed teacher] was no longer legally qualified for the positions taught by [two nontenured teachers]. Rather, two established teaching positions *** were filled by nontenured teachers. The [dismissed teacher] was qualified to fill neither of these established positions.” (101 Ill. App. 3d 1003, 1007.) The court in Higgins went on to say that “to hold that a tenured teacher may draw a single class or two from teaching positions he is otherwise unqualified to teach and then assert rights of tenure as to that *** position of his own creation would exceed the protections offered by the statute.” 101 Ill. App. 3d 1003, 1008; accord Herbach v. Board of Education (1981), 94 Ill. App. 3d 889, 894.

For the reasons given, the judgment of the appellate court is reversed and the judgment of the circuit court of Champaign County is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE GOLDENHERSH,

dissenting:

I dissent and would affirm the judgment of the appellate court.

The decision here would require the exercise of very little ingenuity on the part of a school board or superintendent who desired to dispense with the services of a tenured teacher. In contrast, the appellate court has given the statute a construction which protects the rights of a tenured teacher without restricting the reasonable exercise of the boards authority to assign courses to teaching positions.

It is apparent that by reassigning one English course and one course in journalism, plaintiff could have continued to be employed. This would implement the tenure act and prevent the arbitrary and capricious action taken here.

JUSTICE CLARK joins in this dissent.


author: JUSTICE CLARK

text:
    (No. 56372, 56689 cons.
    ROBERT C. ROBINSON et al., Appellees and Appellants, v. FIRST STATE BANK OF MONTICELLO et al. (Dwight H. Doss, Appellant and Appellee).

      Opinion filed June 17, 1983.

    Rehearing denied September 30, 1983.

      Harlan Heller, of Harlan Heller, Ltd., of Mattoon, for appellants Robert C. Robinson et al.

    Vernon H. Houchen and Kenneth Kinser, of Decatur, for appellee First State Bank of Monticello.
    Hull, Campbell, Robinson & Gibson, of Decatur (Michael I. Campbell, of counsel), for appellee Dwight Doss.
   JUSTICE CLARK

delivered the opinion of the court:

On April 6, 1981, the plaintiffs, the heirs of Cordelia R. Davis, filed a three-count complaint in the circuit court of Macon County. The record does not disclose why all of the other documents not directly relating to the complaint were filed in Piatt County.

In counts I and II the plaintiffs sought damages from the defendant First State Bank of Monticello, and in count III from defendant Dwight H. Doss. The circuit court of Macon County dismissed all counts with prejudice. The appellate court reversed the circuit court’s order on count III of the complaint and affirmed the circuit court’s dismissal of counts I and II. (104 Ill. App. 3d 758.) The plaintiffs and defendant Doss filed petitions for leave to appeal with this court (73 Ill. 2d R. 315(a)) and both petitions were granted. The cases were consolidated for appeal in this court.

The will and codicil of Cordelia Davis were admitted to probate on October 10, 1978. On that date, the First State Bank of Monticello was appointed as executor. Under the will and codicil defendant Doss received substantially all of the testator’s estate. The will was executed on November 15,1974, and the codicil on August 20,1976.

Both the will and the codicil were drafted by an attorney named Kenneth Kinser. Mr. Kinser is the attorney for the decedent’s estate.

In Ms. Davis’ will she included a paragraph explaining that defendant Doss was her friend, confidant and legal adviser and that on numerous occasions she had requested him to prepare her will. She further explained that he had refused because of their professional association.

Prior to the will of November 1974, Ms. Davis had executed another will. This will was executed on March 10, 1973, and named five individuals unrelated to the testator as legatees and devisees. The appellate court chose to label this group of individuals as “Anderson.” We will also refer to this group of individuals as the Anderson group. There is nothing in the record to indicate whether the 1973 will was ever filed in the probate proceeding or who the executor was in that will:

On December 17, 1973, the testator executed a document prepared by defendant Doss entitled “Disclaimer, Cancellation, Nullification and Revocation.” This document was attested to by two witnesses and notarized. In the document Ms. Davis stated that she “disclaims, cancels, nullifies and revokes all documents, instruments, pleadings and other written data prepared by attorney Tom Yates of Chicago, Illinois, and executed by the undersigned, especially including a certain Last Will and Testament prepared by said Yates, dated the 10th day of March, 1973, and any codicil thereof.” Mr. Yates was hired by decedent at the suggestion of the Anderson group.

Subsequent to the date that Ms. Davis’ 1974 will and 1976 codicil were admitted to probate by the probate court of Piatt County, the plaintiffs and Doss, together with the Anderson group, acting through their respective attorneys, entered into a written settlement agreement. The agreement was dated April 6, 1979, and plaintiffs (the Robinson group), the Anderson group and defendant Doss were the three designated parties to the agreement. The record is unclear as to why the Anderson group was a party to the agreement and agreed to pay the Robinson group when they were not beneficiaries under the 1974 will or 1976 codicil. The agreement stated in pertinent part:

“WHEREAS, Robinson et al. [plaintiffs] have agreed to refrain from filing a suit to contest either will of Cordelia R. Davis above described, and Doss and Anderson, et al. have agreed to pay Robinson, et al. from the estate assets the sum of One Hundred Twenty-five Thousand Dollars ($125,000.00).
NOW, THEREFORE, in consideration of the promises and agreements herein set forth, the parties agree as follows:
3. Robinson, et al. agree that they will not file a lawsuit to contest the Wills and Codicil of Cordelia R. Davis above described.
4. Doss and Anderson, et al. agree that Robinson, et al. will be paid the sum of One Hundred Twenty-five Thousand Dollars ($125,000) out of the assets of the estate.
5. Except as herein set forth, each of the parties hereby releases the other parties from any and all claims, causes of action and the like which might or may arise from any Will or Codicil execute[d] by Cordelia R. Davis or any other undertaking by the parties.”

Each of the attorneys of the three designated parties signed the agreement. To the left of their signatures was a notation: “APPROVED AND ACCEPTED,” and Kenneth Kinser, attorney for the estate, signed his name under the notation.

Also included in the record in this case is a document entitled “RECEIPT ON DISTRIBUTION” which states that the plaintiffs received the $125,000 that they had agreed to in the settlement agreement. The document also states that the plaintiffs waived notice and consented to the approval of the final account of the First State Bank of Monticello in its capacity as executor of the decedent’s estate.

On March 4, 1981, the plaintiffs filed a “PETITION FOR CITATION TO DISCOVER INFORMATION” in the circuit court of Piatt County. The petition was directed to Kenneth Kinser, attorney for the estate, Frances A. Anderson, president of the First National Bank of Monticello (not to be confused with the Anderson group), and Dwight Doss and his secretary The plaintiffs asserted that the bank, and Kinser as attorney for the estate, owed the plaintiffs a fiduciary duty to disclose the existence of the document which purported to revoke the first will of the decedent. It also stated that as a result of all the defendants’ failure to disclose the existence of the document, the plaintiffs refrained from filing a will contest proceeding within the six months allowed and entered into a settlement agreement.

The plaintiffs also asserted, in reference to the 1974 will, “[t]hat substantial grounds existed for a Will Contest based upon undue influence because the principal beneficiary of said Will and Codicil was DWIGHT H. DOSS, her attorney, and said Will was executed at a time when said DWIGHT H. DOSS, represented her in a fiduciary capacity *** 77

In their petition the plaintiffs prayed for discovery of the original document of revocation (they had attached a copy of the document to their petition), any correspondence concerning the document, and any other wills. The defendants filed a motion to dismiss the petition asserting that section 16 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110½, par. 16 — 1), under which the petition was filed, referred to discovery of information needed to recover property for an estate and that the petition referred to no property that should have been included in the estate or was sought to be recovered for the estate. The defendants also asserted that the circuit court had no jurisdiction over the petition for citation to discover information because the petition amounted to a collateral attack on the validity of the order admitting the will and codicil to probate and the six months provided for a will contest in section 8 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110½, par. 8 — 1) had expired. The defendants also contended that the petition incorrectly referred to the document of revocation as a will and that although the Probate Act of 1975 requires the filing of the testator’s will under section 6 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110½, par. 6 — 1) it does not require the filing of the testator’s documents of revocation. Also, the defendants pointed out that the 1974 will that was probated on October 10, 1978, contained the usual revocation clause which they alleged had the same effect as the document of revocation so that the plaintiffs knew the decedent’s first will was revoked.

Lastly, the defendants contended that neither the bank, as executor, nor Kenneth Kinser, as attorney for the estate, was a party to the settlement agreement. The defendants argue that Kinser’s signature on the agreement did not make the bank or Efinser a party to the agreement, or indicate that either took part in the settlement negotiations. They argue that it only showed that the defendant bank as executor was “notified, made aware of it, and was therefore bound to honor it.” The bank pointed out that the only persons securing a benefit or suffering a detriment under the terms of the agreement were Doss, the Anderson group, and the Robinson group.

The circuit court of Piatt County entered an order stating that it did not have jurisdiction, and that even if it did have jurisdiction, “the facts presented do not justify a showing that the petitioning parties are interested in said estate at this time.” The order dismissing the complaint stated that it was a final order and that no just reason existed to delay an appeal therefrom.

An appeal was never brought regarding the order probating the 1974 will and the 1976 codicil or the order dismissing the petition for citation to discover information, but on April 6, 1981, the plaintiffs filed the complaint that is at issue in this appeal in the circuit court of Macon County.

In count I of the complaint the plaintiffs alleged that the bank, as executor, had a fiduciary duty to the plaintiffs as heirs of the decedent. The bank, they alleged, had actual knowledge of the existence of the “Disclaimer, Cancellation, Nullification and Revocation instrument executed by Cordelia R. Davis” and in its fiduciary capacity had a duty to disclose the existence of the document to them. The plaintiffs further alleged that the bank had concealed the existence of the document without alleging facts to support that allegation, and that the bank knew that the plaintiffs would not have entered into the settlement agreement if they had known the revocation document existed. The heirs asserted that the breach by the bank of its duty directly and proximately caused them to lose their inheritance and they sought damages against the bank in the amount of $3.5 million in counts I and II of the complaint. No damages were sought from the bank in its representative capacity, nor was any claim asserted against the Davis estate.

In count II of the complaint, the plaintiffs alleged that the bank, as executor, had a duty to “exercise reasonable care to disclose the existence” of the revocation document and that the plaintiffs relied to their detriment on the defendant bank to make disclosure of matters known to it. The plaintiffs again alleged that they would not have entered into the settlement agreement if they had known of the revocation document and that the bank knew that; therefore, as a direct and proximate result of the failure of the bank to disclose the existence of the document the plaintiffs were deprived of their inheritance.

Count III alleged that Doss induced the decedent to execute a will making him the beneficiary of a substantial amount of her estate and that the codicil increased the gift to Doss, as well as canceling a large debt he owed to the decedent. The plaintiffs also alleged that Doss, by trick, artifice and abuse of his fiduciary position, prevented them from receiving their inheritance through his intentional and tortious interference.

No issues are specifically raised with regard to the validity of the will or the codicil, and no damages are sought against the estate.

The bank filed a motion to dismiss counts I and II, and the circuit court granted its motion, dismissing counts I and II with prejudice but without a finding of fact, conclusion of law or any other reason for the dismissal.

The motion asserted numerous grounds for dismissal, some of which had been asserted in the bank’s motion to dismiss the petition for citation to discover information. The bank argued that (1) section 8 — 1 of the Probate Act of 1975 required a will contest suit to be filed within six months, that the six months had lapsed, and that because the six-month limit was a jurisdictional requirement, the court was without jurisdiction, (2) that no appeal was brought regarding the order admitting the will and codicil to probate and that the complaint therefore was a collateral attack on that order, (3) that the defendants lacked standing to bring the action because the order admitting the will and codicil had not been set aside, (4) that the bank was not a party to the settlement agreement but only acquiesced in the agreement of the parties, (5) that the bank did not owe a fiduciary duty to the plaintiffs because the plaintiffs were not beneficiaries under the will and that the plaintiffs had retained counsel for purposes of entering into the settlement agreement so that they had not reposed any special degree of trust and confidence in the bank and, finally, (6) the bank was under a duty under section 8 — 1(e) of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110½, par. 8 — 1(e)) to support the will and codicil and had no obligation to become an advocate of the plaintiffs, who actually occupied an adversary position concerning the will and codicil.

Defendant Doss filed a motion to dismiss count III of the complaint in the circuit court. An order was entered dismissing count III with prejudice but without a finding of fact or conclusion of law, and the order gave no reason for the dismissal. His primary assertion in his motion to dismiss was that the six-month time limit provided for a will contest was a jurisdictional requirement and since that period had expired, the plaintiffs’ action could not be brought.

The appellate court affirmed the circuit court’s dismissal of counts I and II against the bank, referring to it as a late will contest, but reversed and remanded the circuit court’s dismissal of count III as to the tortious interference with plaintiffs’ inheritance by Doss, holding that it stated a cause of action against him.

On appeal before this court the plaintiffs assert that their complaint is not a will contest and that none of the three counts should have been dismissed for lack of jurisdiction. We disagree. We believe that all three counts should have been dismissed, because underlying the plaintiffs’ whole complaint is the necessary determination that the decedent’s 1974 will and the 1976 codicil that were admitted to probate and became valid under the Probate Act of 1975 are invalid. The basis of the plaintiffs’ complaint rests on the assertion that as decedent’s heirs, if the 1974 will and the 1976 codicil fail, and the 1973 will was properly revoked, the decedent’s estate would pass to them through intestacy.

The admission of a will to probate is a prerequisite to the right to contest the will in a direct proceeding; however, if no direct proceeding is brought to contest the will within the statutorily prescribed time period, the validity of the will is established for all purposes. Sternberg v. St. Louis Union Trust Co. (1946), 394 Ill. 452, 459.

Section 8 — 1 of the Illinois Probate Act of 1975 which was in effect when the decedent’s will and codicil were admitted to probate provides that a will contest must be brought within six months after admission of the will to probate. (Ill. Rev. Stat. 1977, ch. 110½, par. 8 — 1.) In Ruffing v. Glissendorf (1968), 41 Ill. 2d 412, this court addressed the issue of whether the six-month statutorily prescribed time period for bringing a will contest was a statute of limitation or whether it was a jurisdictional requirement. This court held “that the time limitation in section 90 of the Probate Act [a predecessor of section 8 — 1] [was] jurisdictional and [was] not tolled by fraudulent concealment or by any other fact not expressly provided for by the statute.” (41 Ill. 2d 412, 419.) Therefore, since the decedent’s will in the instant case was not contested in a direct proceeding within the six-month statutorily prescribed time period, the validity of the decedent’s will has been established for all purposes.

The appellate court correctly affirmed the circuit court’s dismissal of counts I and II, and we agree with the reasoning the appellate court employed as to those two counts. However, our reasoning differs from that of the appellate court as to count III.

As the appellate court points out, count IH of the plaintiffs’ complaint alleges that defendant Doss, as the testator’s attorney, owed her a fiduciary duty and that he breached that duty by inducing her to execute a will and a codicil making him the primary beneficiary of her estate and canceling a large debt he owed her. Count III of the plaintiffs’ complaint is therefore based upon the allegation that defendant Doss, in abuse of his fiduciary position, and through his intentional and tortious interference, prevented plaintiffs from receiving their inheritance. In essence, the plaintiffs are alleging in count III that the 1974 will and 1976 codicil that were admitted to probate are the product of Doss’ fraud and undue influence and that therefore he tortiously interfered with their inheritance. Since we have already determined that the will in this case is valid, we believe that count III of the complaint was properly dismissed by the circuit court.

The appellate court based its decision regarding count III on two Illinois cases which it believed supported the plaintiffs’ contention that Illinois recognizes a cause of action for intentional interference with inheritance in a case with a factual situation like the instant one. However, in Nemeth v. Banhalmi (1981), 99 Ill. App. 3d 493, and Lowe Foundation v. Northern Trust Co. (1951), 342 Ill. App. 379, the two cases the appellate court discussed, the factual situations were substantially different from the facts in the instant case. In this case, where a will has been admitted to probate and where the plaintiffs have engaged an attorney to determine whether they should file a will contest, have decided not to contest the will, have entered into a settlement agreement for $125,000 (agreeing to release the other parties to the agreement including defendant Doss from any and all claims and causes of action arising from any will, codicil or other undertaking by the parties), and have allowed the statutorily prescribed period in which to contest the will to expire (thereby establishing the validity of the will), we will not recognize a tort action for intentional interference with inheritance.

In Lowe, “[pjlaintiff appealed] from an order striking its complaint and dismissing its suit to contest the probate of a codicil to the will” of the decedent and to redress the injury caused by the alleged wrongful interference with and prevention of the execution of another codicil by decedent (342 Ill. App. 379, 381). The court in Lowe stated that “[t]he remedy of a person aggrieved by denial of probate of an instrument offered is by appeal [from probate court] to the circuit court.” (342 Ill. App. 379, 385.) The opinion states that the plaintiff in Lowe did appeal to the circuit court of Cook County from the order denying probate of the alleged holographic codicil, but that plaintiff procured dismissal of the appeal without prejudice before a hearing in the matter. It seems that the plaintiff chose to appeal to the appellate court the order striking its complaint and dismissing its suit to contest the will. It is clear, in any event, that the plaintiff in Lowe did bring an appeal to contest the order admitting a codicil to the decedent’s will to probate, unlike the plaintiffs in the instant case, who did not contest the order admitting the decedent’s 1974 will and 1976 codicil to probate. Lowe is factually distinguishable from the instant case.

In Nemeth, no will was ever admitted to probate; therefore, there could not be a contest of the admission of the will to probate under section 8 — 1 of the Probate Act of 1975. Thus, that case is not authority for the plaintiffs’ assertion that we recognize a tort action for intentional interference with inheritance in a probated estate where a will contest remedy was available.

It seems obvious that the purpose of section 8 — 1 of the Probate Act of 1975 is to limit the time within which the validity of a will may be questioned and to create stability in the administration of estates. The appellate court cited Pedersen v. Dempsey (1950), 341 Ill. App. 141, wherein the court stated that the reasons for the time limit in filing a will contest was “the pressing importance of securing an orderly settlement of estates, to prevent embarrassment to creditors and others, and to avoid as much confusion as possible in the vast amount of properly rights and titles that pass through probate.” 341 Ill. App. 141, 143.

Given the facts in this case, if we were to allow the plaintiffs to maintain their tort action, we would be giving them a second bite of the apple and defeating the purpose of the exclusivity of a will contest under section 8 — 1. In all three counts the plaintiffs’ allegations were based on the defendants’ failure to inform them of a document of revocation. First, it should be noted that section 6 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110½, par. 6 — 1) requires that “[i]mmediately upon the death of the testator any person who has the testator’s will in his possession shall file it with the clerk of the court of the proper county ***.” (Emphasis added.) It is questionable whether the Probate Act of 1975 required the filing of the document of revocation in this case, since it is questionable that it could be classified as a will or codicil. Also, the will that was admitted to probate, which we have determined is valid, contained the customary revocation clause which effectively revoked all prior wills, which is what the independent document of revocation was also intended to do. So the plaintiffs knew that the testator revoked her prior wills when they entered into the settlement agreement.

We wish to make it clear that we believe that section 8 — 1 was enacted in an attempt to make the administration of an estate as orderly as possible because of the gravity of the interests at stake; we therefore refuse to have section 8 — 1 circumvented by allowing the plaintiffs in this case to maintain a tort action which in its practical effect would invalidate a will that has become valid under the Probate Act of 1975. The appellate court found that, “[i]f the will is valid, it cannot reasonably be said that plaintiffs have suffered as in tort” (104 Ill. App. 3d 758, 761) but did hold for the plaintiffs against Doss on count III. We believe that to allow the complaint to be filed here would permit the issue of undue influence, which would have been grounds for a will contest, to be litigated years after the will was admitted to probate and immune from contest on this issue.

We conclude that the trial court correctly dismissed all three counts of the plaintiffs’ complaint.

Accordingly, for all the reasons stated, the judgment of the appellate court is affirmed as to counts I and II and reversed as to count III. The judgment of the circuit court of Macon County is affirmed.

Appellate court affirmed in part and reversed in part; circuit court affirmed.


author: JUSTICE WARD

text:
    (Nos. 55956, 55966 cons.
    PROVIDENT FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee, v. REALTY CENTRE, LTD., et al., Appellants.

      Opinion filed May 27, 1983.

    Rehearing denied September 30, 1983.

      Rudolph J. Westphal, of Peoria, for appellant Realty Centre, Ltd.
    O’Hem, Wombacher & Moon, of Peoria (Randall W. Moon, of counsel), for appellants Alan J. Campbell, G. Rodger Moon and Roland D. Wilken.
    Sweat, Sweat & Hasselberg, of Peoria (Eric E. Hasselberg, of counsel), for appellee.
    James M. Winning, of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, P.C., of Springfield, for amims mriae Illinois Savings and Loan League.
   JUSTICE WARD

delivered the opinion of the court:

This appeal concerns the enforceability of due-on-sale provisions in mortgages held by federally chartered savings and loan associations. The circuit court of Peoria County dismissed a complaint for foreclosure of mortgage that had been filed by Provident Federal Savings and Loan Association (Provident), a federally chartered association. The dismissal was on two grounds. First, the court judged that the due-on-sale clause Provident was seeking to enforce was an unreasonable restraint upon alienation of real property. Second, the court judged that the claimed notice to subsequent purchasers through the incorporation clause in the mortgage was insufficient to permit the enforcement of the clause. The appellate court reversed and remanded. (101 Ill. App. 3d 277.) We granted petitions for leave to appeal filed by Realty Centre Ltd. (the mortgagor), and by individuals with whom Realty Centre had contracted for conveyance of the property secured by the mortgage. 73 Ill. 2d R. 315.

Realty Centre executed the promissory note for $375,000 in favor of Provident in December 1975. The note provided for interest at the rate of 10%, and under it Realty Centre promised to pay specified monthly installments. The note recited that it was secured by a mortgage “bearing even date herewith” on a certain commercial building in Peoria. The note also contained this provision:

“The terms and conditions under which this loan is made are predicated on the continued ownership by the undersigned [Realty Centre] of the real estate set forth in said mortgage and in the event the undersigned’s interest in said real estate is transferred without the consent of the Association [Provident], the Association may increase the interest rate to eight per centum (8%) [sic] per annum or declare the entire unpaid balance of this note due, or both, by giving the undersigned written notice. All of the terms and conditions of said mortgage are hereby incorporated in and made a part of this note.”

The mortgage bears a date in January 1976, rather than in December 1975, but it is not disputed that the mortgage is the one referred to in the note. The mortgage recited that it was to secure payment of the note, and it stated the amount of the indebtedness and the amount of the installments provided for in the note. The mortgage did not set out the language of the due-on-sale clause, but the mortgage did state that it was “[t]o secure performance of the other agreements in said note, which are hereby incorporated herein and made a part hereof ***.” The mortgage stated, too, “It is understood that this mortgage and the note it secures, shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the respective parties hereto.” The mortgage was recorded, but the note was not.

On January 1, 1980, without having requested the consent of Provident, Realty Centre entered into a contract with G. Rodger Moon, Ronald D. Wilken and Alan J. Campbell (purchasers) for the sale by warranty deed of the building involved here. The purchasers took possession of the building on January 10, 1980. The contract itself was not recorded, but a document described as a memorandum of agreement for warranty deed was recorded.

Provident subsequently notified Realty Centre that it was invoking the due-on-sale condition in the note and mortgage because of the transaction and that the balance of the loan was immediately due. Realty Centre denied that this was the effect of its agreement with the purchasers. It asked for Provident’s approval of the contract sale, claiming that the purchasers were financially secure people. Provident did not consent and filed the complaint for foreclosure.

As stated above, the appellate court reversed the circuit court’s dismissal of the complaint. The appellate court noted that there are jurisdictions in which it has been held that due-on-sale clauses are unenforceable as unreasonable restraints on alienation, when enforcement is sought solely for the purpose of obtaining a higher rate of interest. (.E.g., Patton v. First Federal Savings & Loan Association (1978), 118 Ariz. 473, 578 P.2d 152; Wellenkamp v. Bank of America (1978), 21 Cal. 3d 943, 582 P.2d 970, 148 Cal. Rptr. 379.) The court, however, held that the circuit court was in error for refusing to enforce the clause because of the holding in Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119. This court in Baker upheld a due-on-sale clause as a reasonable restraint on the ground of the lender’s need to protect its security.

Realty Centre and the purchasers urge us to reverse the appellate court and hold that Baker is inapplicable. They say that Provident’s real purpose in seeking to enforce the clause is not to protect its security but to enable it to secure a higher rate of interest on its loan than was originally agreed to by it and Realty Centre. Use of the clause for this purpose, they assert, does render it an unreasonable restraint.

We do not reach the question of the validity of this contention because in Fidelity Federal Savings & Loan Association v. de la Cuesta (1982), 458 U.S. 141, 73 L. Ed. 2d 664, 102 S. Ct. 3014, the Supreme Court held that Federal regulations authorizing due-on-sale clauses in loan contracts of Federal savings and loan associations preempt any contrary State limitations on such clauses. Under Fidelity, a State court cannot refuse to enforce a due-on-sale clause in an action brought by a federally chartered savings and loan association, such as Provident is, on the ground that it is an unreasonable restraint on alienation.

The contention of the purchasers and Realty Centre that Fidelity is inapplicable because the Federal banking regulations authorizing due-on-sale clauses, on which the Fidelity decision was grounded, became effective after the note and the mortgage here were executed must be rejected.

The Fidelity decision itself settled that question. Similarly, two of the deeds in trust involved in Fidelity were executed prior to the effective date of the regulations. Subsequent to the promulgation of the regulations, the State court limited the enforcement of due-on-sale clauses. (Wellenkamp v. Bank of America (1978), 21 Cal. 3d 943, 582 P.2d 970, 148 Cal. Rptr. 379.) Notwithstanding, the Supreme Court held that the State court’s restrictions could not obstruct the enforcement of the clauses. The Supreme Court said that, because there was no restriction upon such clauses under State law when the deeds in trust were executed, the Federal regulations simply reinforced the rights of the lender to enforce the clauses. The regulations operated to make the State court’s subsequent restrictions ineffective. (Fidelity Federal Savings & Loan Association v. de la Cuesta (1982), 458 U.S. 141, 170-71 n.24, 73 L.Ed. 2d 664, 686 n.24, 102 S. Ct. 3014, 3031 n.24.) The same reasoning would apply here, as such clauses were fully enforceable under the law of this State when the note and mortgage were executed. See Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119.

A further contention of the purchasers and Realty Centre is that the due-on-sale clause here nevertheless is unenforceable in a foreclosure action, because the clause appears in the note, but not on the face of the mortgage. The appellate court judged that the language in the mortgage we have quoted above, which generally incorporates all of the agreements in the note, was sufficient to give constructive notice of the clause to subsequent purchasers. The appellate court stated that “ ‘[i]t is generally conceded that an acceleration clause in a note or bond permits the acceleration of the mortgage although there is no acceleration provision in the mortgage.’ ” 101 Ill. App. 3d 277, 281, quoting 55 Am. Jur. 2d Mortgages sec. 379 (1971).

Realty Centre and the purchasers acknowledge that as a general proposition an instrument may incorporate all or part of another instrument by reference. And, referring to statutes for the recording of real property interests, they do not appear to dispute that when a purchaser has notice of facts sufficient to put a reasonable man on inquiry, the purchaser is charged with notice of all of the facts he could have discovered by a diligent inquiry. (Smith v. Grubb (1949), 402 Ill. 451, 464-65; German-American National Bank v. Martin (1917), 277 Ill. 629, 649; Burnex Oil Co. v. Floyd (1969), 106 Ill. App. 2d 16, 23-24.) They contend, nevertheless, that in this State there is a special exception to the foregoing which is applicable here, and that exception will not permit the incorporation of an agreement described in a note into the mortgage simply by a provision in the mortgage generally incorporating all of the terms of the note. Instead, they say, the due-on-sale clause must be set out in specific terms in the mortgage.

The argument that some special rule of incorporation should be applied here is not convincing. Cases are cited where notes and mortgages were treated as separate undertakings though they were executed simultaneously, and in them the courts narrowly construed provisions in notes, despite claims that terms in the mortgage had been incorporated by reference into the notes. (Conerty v. Richtsteig (1942), 379 Ill. 360; Oswianza v. Wengler & Mandell, Inc. (1934), 358 Ill. 302; 2140 Lincoln Park West v. American National Bank & Trust Co. (1980), 88 Ill. App. 3d 660; Mortgage Syndicate, Inc. v. Do & Go Equipment, Inc. (1972), 7 Ill. App. 3d 106.) In none of the cited decisions was it held that the terms of a note may not be incorporated into a mortgage as was done here. The reasoning in Oswianza, the principal case in the decisions cited by Realty Centre and the purchasers, was that the negotiability of notes has to be preserved and that their negotiability should not be limited by other and differing obligations expressed in collateral documents. No similar question appears here. In none of the decisions, moreover, was there a clause, such as the one here, clearly and affirmatively incorporating all of the agreements of the other instrument.

The purchasers and Realty Centre make several other contentions. They say that the agreements in the note were not properly incorporated into the mortgage because of the discrepancy between the dates in the mortgage and in the note. Too, they contend that the mortgage fails to specify the indebtedness and that this is a violation of section 11 of “An Act concerning conveyances” (Ill. Rev. Stat. 1979, ch. 30, par. 10). They also suggest that the clause may be unenforceable because of certain equitable defenses applicable in mortgage-forfeiture actions. They argue too that the contract for deed was not a conveyance or “sale” of Realty Centre’s “interest,” and thus the due-on-sale clause was never operative.

Only the last of these contentions was presented in the trial court, but neither it nor the other points was a ground relied on in the dismissal of the complaint. None of them were mentioned by the appellate court. Upon the remand to the trial court, there will be an opportunity to raise these issues.

For the reasons given, the judgment of the appellate court, which reversed the judgment of the circuit court and remanded the cause to the trial court for further proceedings, is affirmed.

Judgment affirmed.


author: JUSTICE MORAN

text:
    (Nos. 56972, 56990 cons.
    CHARLOTTE HAMMOND, Appellant and Appellee, v. NORTH AMERICAN ASBESTOS CORPORATION, Appellee and Appellant.

      Opinion filed May 18, 1983.

    Rehearing denied September 30, 1983.

      Heyl, Royster, Voelker & Allen, of Peoria (William J. Voelker, Jr., Frederick E Velde, and Judy A. Schieber, of counsel), for appellant.
    James Walker, Ltd., of Bloomington, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, Charlotte Hammond, the wife of an asbestos worker who contracted asbestosis, brought an action against defendant, North American Asbestos Corporation, for loss of consortium based on theories of strict liability in tort and wilful and wanton negligence. After a jury trial, the circuit court of McLean County entered judgment on the verdict awarding plaintiff $125,000 in compensatory and $375,000 in punitive damages. The appellate court affirmed the compensatory damages, but reversed the punitive damages, reasoning that such an award is not recoverable in a loss-of-consortium action. (105 Ill. App. 3d 1033.) Both parties petitioned for leave to appeal, and we granted both petitions.

While the parties raise numerous questions for review, only four need be addressed: (1) Did the appellate court err in holding plaintiff had proved a cause of action sounding in strict liability? (2) Was plaintiff’s action barred by the statute of limitations? (3) Did plaintiff waive the sufficiency of defendant’s post-trial motion by not objecting to this issue when raised in the appellate court? (4) Should punitive damages have been awarded in this case?

In 1953, defendant was organized as a wholly owned subsidiary of Cape Asbestos Company, Ltd. (Cape), a British corporation which mined, milled and packaged raw asbestos fiber in South Africa for sale worldwide. That same year, plaintiffs husband, Charles Hammond, was employed by Union Asbestos and Rubber Company (UNARCO) at its Bloomington, Illinois, plant. UNARCO purchased and processed raw asbestos fiber into various insulating products containing asbestos.

In April of 1971, a physician diagnosed Hammond as having asbestosis and recommended be stop working at the UNARCO plant. Plaintiff filed her loss-of-consortium action in March of 1975. She voluntarily dismissed the case on March 3, 1980, but refiled on March 14, 1980, pursuant to section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a). Count I was based on strict liability in tort, alleging defendant sold an unreasonably dangerous product without providing a warning of the dangers associated with its use. Count II alleged defendant wilfully and wantonly failed to provide such warning. The complaint averred that defendant sold raw asbestos fiber and certain asbestos products to UNARCO; that defendant knew the dangers associated with exposure to asbestos; that asbestos workers at UNARCO lacked knowledge of the potential dangers of asbestos; and that defendant failed to warn of such danger.

At trial, Charles Hammond and two of his co-workers testified that they handled, opened and processed bags of raw asbestos, thereby generating asbestos dust. They stated there were no printed warnings of the detrimental effects of asbestos dust either on the bags or in the plant and that they never knew of the danger. The testimony of a former UNARCO director of personnel confirmed the lack of warnings on the bags and in the plant.

Numerous documents were admitted into evidence. Minutes of the 1954-55 meetings of an asbestos manufacturer’s trade association showed that studies of asbestosis and related diseases had been conducted and knowledge of the dangers of asbestos dust existed as early as 1930. Representatives from both UNARCO and defendant had attended these meetings. Defendant’s annual reports to the Secretary of State of Illinois from 1955 to 1961 listed defendant’s business as the manufacture and sale of asbestos.

Many of the documents were submitted by plaintiff to prove that defendant sold large quantities of raw asbestos to Calabrian Industries (Calabrian), a barter corporation. Calabrian traded the asbestos to the United States government for other commodities through barter contracts. By the terms in a letter of agreement between defendant and Calabrian, defendant agreed to deliver to the Commodity Credit Corporation (CCC) of the United States government, for Calabrian’s account, all of the asbestos required under Calabrian’s barter contracts. Millions of pounds of defendant’s asbestos were delivered to the United States for its critical materials stockpile under these contracts. Several years later, the government decided to reduce its asbestos stockpile. General Service Administration (GSA) reports indicate large portions of raw asbestos from the stockpile which had originated from Cape’s mines were sold to UNARCO’s Bloomington plant for its use.

Plaintiff called a former UNARCO employee who testified she was familiar with UNARCO purchasing and receiving orders. She identified orders indicating purchase of asbestos from both defendant and the stockpile and receipt of the asbestos at the UNARCO Bloomington plant. On cross-examination, she was shown certain documents and from them could only identify 12,500 pounds of raw amosite asbestos delivered directly to the UNARCO Bloomington plant from defendant.

Joan Holtze, a former employee of defendant from 1953 until 1978, testified defendant was incorporated to be a contact point in North America for Cape customers. While admitting defendant made a few direct sales of asbestos, she said it primarily functioned as a message relay center between Cape and Cape’s North American asbestos customers. She acknowledged defendant received 2V2% commission on all of the Cape’s asbestos fiber contract sales in North America. She also stated that Robert Cryor was defendant’s president from 1953 until his death in 1970 and that Cryor had worked for UNARCO prior to 1953. Plaintiff then submitted several of UNARCO’s occupational disease files from approximately 1939 until 1953 which revealed that Cryor had been involved in the disposition of many of UNARCO’s asbestos-related claims.

Portions of the deposition testimony of Dr. Richard Gaze, Cape’s chief scientist, were read to the jury. He was employed by Cape in 1943, was later promoted to chief scientist, and became an executive director in 1961. He was also a member of defendant’s board of directors. On the day he was employed at Cape, he became aware that asbestos, in its various forms, was dangerous to human health. He stated there was nothing preventing placing a label on the asbestos bags, that he could have recommended it, but that it was just not done. He also testified defendant participated in the sale of asbestos from the South African mines. On cross-examination, he said the incidents of asbestosis from 1940 until about 1960 were thought to be related to the higher dust concentrations found in asbestos plants prior to 1940. He stated it was thought that reduced concentrations of dust would decrease the dangers of working with asbestos.

Plaintiff also read portions of the former testimony of Dr. Geritt Sheppers, who had testified at a previous trial in this case. Dr. Sheppers had studied and examined workers at the South African asbestos mines in 1949 and found nearly all had asbestosis. He indicated asbestosis was well known in the medical and scientific community throughout Europe and the United States as early as 1940. On cross-examination, he admitted a study in 1949 had concluded that lower levels of asbestos-dust exposure were thought to be safe and would not lead to asbestos disease.

Defendant’s expert testified there was knowledge in the asbestos industry since 1920 that high concentrations of asbestos dust caused asbestosis. However, he stated that threshold dust levels were established in the industry subsequent to that time which were thought to be safe. He indicated the industry thought these levels would diminish the incidence of asbestosis.

One of defendant’s former presidents testified that defendant neither accepted any orders or contracts for asbestos on behalf of Cape nor had authority to do so. He acknowledged, though, that he represented defendant as its attorney in the preparation and negotiation of the agreement with Calabrian to supply asbestos under the barter contracts. He indicated defendant never had physical possession of the asbestos fiber that was delivered pursuant to those contracts.

On cross-examination, when asked if the government specifications in the barter contracts prevented defendant from placing a warning label on the bags, he stated “it might have.” He admitted, though, that defendant never inquired of the government if it could place warnings on the asbestos bags, and never placed warnings on bags sold to nongovernment purchasers.

Defendant contends plaintiff failed to prove a cause of action in strict liability. In Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 621, this court adopted strict liability in tort as expressed in the Restatement (Second) of Torts, section 402A (1965):

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

Initially, defendant argues raw asbestos fiber is not a product within the meaning of section 402A. Further, since raw asbestos fiber is not sold to consumers without being further processed and combined with other materials, defendant maintains it should not be considered a “product” for the purpose of strict liability in tort.

While the Restatement does not define the term “product,” comment e of section 402A provides:

“Normally the rule stated in this Section will be applied to articles which already have undergone some processing before sale, since there is today little in the way of consumer products which will reach the consumer without such processing. The rule is not, however, so limited, and the supplier of poisonous mushrooms which are neither cooked, canned, packaged, nor otherwise treated is subject to the liability here stated.” (Restatement (Second) of Torts, sec. 402A, comment e, at 350 (1965).)

Citing comment e, this court concluded that human blood, while not a manufactured article of commerce, was to be considered a “product” within the meaning of section 402A. Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 447.

The appellate court has said that a particular item will be considered a product if to do so will effectuate the policy basis for imposing strict liability in tort. (Lowrie v. City of Evanston (1977), 50 Ill. App. 3d 376.) Both the appellate court and the Restatement have recognized that the term “product” includes items which have not been processed or manufactured before they aré sold. Otherwise, substances such as water, wood (Housman v. C. A. Dawson & Co. (1969), 106 Ill. App. 2d 225 (lumber is a product)), anything in the natural state, and all living things, including human blood (Cunningham), would be excluded. Thus, the fact that raw asbestos fiber is processed before being sold is not determinative of its status as a product.

The drafters of section 402A took no stand on whether raw materials should be considered products. Comment p indicates that the mere fact a product is to undergo processing, or other substantial change, will not in all cases relieve the seller of liability.

“If, for example, raw coffee beans are sold to a buyer who roasts and packs them for sale to the ultimate consumer, it cannot be supposed that the seller will be relieved of all liability when the raw beans are contaminated with arsenic, or some other poison. *** On the other hand, the manufacturer of pigiron, which is capable of a wide variety of uses, is not so likely to be held to strict liability when it turns out to be unsuitable for the child’s tricycle into which it is finally made by a remote buyer. The question is essentially one of whether the responsibility for discovery and prevention of the dangerous defect is shifted to the intermediate party who is to make the changes.” Restatement (Second) of Torts, sec. 402A, comment p, at 357 (1965).

We adopt the rationale of the appellate court in this case wherein it stated:

“[W]e conclude that raw asbestos is a product within the meaning of the Restatement. Although raw asbestos is processed before it is ultimately sold to consumers, raw asbestos and not some manufactured article caused the harm in this ease. There was no change in the condition of the asbestos from the time it was sold until it reached the ‘ultimate user,’ Charles Hammond. Moreover, the argument that but for the manufacturing process the asbestos would not have been altered begs the questions.
The evidence showed clearly that handling asbestos in any form produces dust. Liability may be imposed in a products case if the injury results from a condition of the product and the condition is unreasonably dangerous and existed when the product left the defendant’s control. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) The proclivity of raw asbestos to give off dust was certainly a condition that existed when the product left defendant’s control.” 105 Ill. App. 3d 1033, 1037.

Defendant next contends raw asbestos fiber is not unreasonably dangerous. At trial, Charles Hammond and two of his co-workers testified that they handled, opened and processed bags of raw asbestos, thereby generating asbestos dust. Further evidence established the hazards associated with handling asbestos were known in the industry at least by 1940. Hammond and his co-workers testified that asbestos workers were unaware of the danger of inhaling asbestos dust. Moreover, there was evidence which indicated defendant’s president knew the workers did not realize the danger.

The failure to warn of a product’s dangerous propensities may serve as the basis for holding the manufacturer or seller strictly liable in tort. (Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 29.) A product with inherent dangers may be found defective and unreasonably dangerous to the user or consumer if the manufacturer or seller fails to adequately warn of the potential risks or hazards associated with its use. (See Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 221; Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 30.) Under the circumstances presented in this case, the jury could well conclude that defendant’s asbestos was unreasonably dangerous.

Defendant next argues it was not a seller as contemplated by section 402A. Defendant maintains it acted only as a broker by merely facilitating and servicing its parent corporation’s contracts for the sale of asbestos. Defendant further contends it never had control over the asbestos.

In a products liability action, all persons in the distributive chain are liable for injuries resulting from a defective product, including suppliers, distributors, wholesalers and retailers. (Thomas v. Kaiser Agricultural Chemicals (1980), 81 Ill. 2d 206, 214.) Imposition of liability upon these parties is justified on the ground that their position in the marketing process enables them to exert pressure on the manufacturer to enhance the safety of the product. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 344.) Regardless of the nature of the commercial transaction and even though he does not create the defect, a seller who puts a defective product into the stream of commerce may still be held strictly liable to an injured user. Crowe v. Public Building Com. (1978), 74 Ill. 2d 10, 13.

There was ample evidence from which the jury could conclude defendant’s role in marketing the asbestos was sufficient to support liability under a strict liability theory. Indeed, in its letter to Calabrian, defendant agreed to sell to Calabrian and deliver to the CCC for Calabrian’s account, all of the asbestos required under the barter contracts. In addition, defendant’s president represented to CCC:

“No other firm or individual is authorized to offer any Amosite or Blue Crocidolite asbestos produced by our parent organization, The Cape Asbestos Co. Ltd., London, or by any of its affiliated companies.
*** For your guidance, we wish to mention that The Cape Asbestos Co. Ltd. and its affiliates, while producing approximately 90 per cent of the world’s supply of all grades of amosite asbestos, are virtually the sole producers of the longer fiber grades meeting the Stockpile specification.”

Nevertheless, defendant asserts plaintiff could trace only 12,500 pounds of asbestos directly from defendant to UNARCO, an amount representing only about 2xh days’ worth of production. Comparing the 21k days to the 18 years Hammond worked at UNARCO, defendant maintains its asbestos could not have contributed anything more than a de minimis role in causing Hammond’s disease.

The evidence does not sustain defendant’s position. Admitted documents show that millions of pounds of defendant’s asbestos were sold under the barter contracts to the stockpile. GSA records indicate that the lot numbers of well over a million pounds of asbestos shipped from the stockpile to the UNARCO Bloomington plant matched lot numbers for asbestos originating from the barter sales.

Defendant next maintains its compliance with government specifications for the marking of asbestos bags under the Calabrian barter contracts relieved it of a duty to warn. At trial, defendant argued the government specifications precluded placing a warning on the bags.

This position is without merit. The specification it relies on for this defense read in pertinent part: “The bags shall not carry a security classification or any marking, other than the contract number, indicating National Stockpile ownership.” In response to plaintiff’s motion in limine, the trial judge ruled the specification did not preclude defendant from placing a warning on the bags and therefore as a matter of law this was not a defense to plaintiff’s action. The court did allow defendant to present evidence that it complied with the government contract specifications. This ruling was proper. Defendant's own witness, when asked whether the specification precluded placing a warning on the bags, answered “it might have.” Furthermore, defendant never placed warnings on bags sold to nongovernment purchasers, including UNARCO. Under these circumstances, defendant cannot rely on this defense as a matter of law.

Defendant also contends it did not have a duty to warn in this case because it sold the asbestos to sophisticated purchasers who had as much or more knowledge of the dangers associated with the asbestos than it had. Defendant argues it was entitled to rely on an employer/purchaser such as UNARCO to give the necessary warnings to its employees and on the government to warn purchasers of asbestos from the stockpile.

We disagree. The evidence established that defendant knew of the dangerous propensities of asbestos but chose not to warn of the hazard. In strict liability, sellers are liable not just to those in privily to whom they sell their products, but also to the ultimate user or consumer. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 617.) Moreover, a manufacturer is under a nondelegable duty to produce a product which is reasonably safe. (Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 368.) Given the facts in this case, defendant could not expect or rely on others to intervene and make its product safe.

Defendant asserts that plaintiff's loss-of-consortium action is derivative of her husband’s personal injury claim. Since his claim was barred by the two-year statute of limitations (see Ill. Rev. Stat. 1973, ch. 83, par. 15) when her claim was filed, defendant argues plaintiff’s loss-of-consortium action is also barred. In 1975, when this action was first filed, loss-of-consortium suits were governed by the five-year statute of limitations. (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 163; see Mitchell v. United Asbestos Corp. (1981), 100 Ill. App. 3d 485, 503-04.) Since plaintiff’s action was filed within five years of the date the cause of action accrued, it was timely filed.

Defendant next argues the compensatory award was excessive. It maintains it was a result of the erroneous submission of a punitive damages verdict to the jury and should therefore be reversed. We disagree. Plaintiff presented evidence of medical expenses of $33,000. Her husband was'54 years old and in declining health at the time of the trial. His physician testified his health would continue to deteriorate, requiring further substantial medical expenses. Undoubtedly this would also negatively impact on their marital relationship. Under these circumstances, the jury’s compensatory award of $125,000 for plaintiff’s loss of consortium was fair and supported by the evidence.

Plaintiff, in her cross-appeal, contends the appellate court should not have reversed the punitive award, because defendant failed in its post-trial motion to specifically raise the issue of the availability of punitive damages in a loss-of-consortium action. Defendant maintains it did sufficiently raise the issue. Defendant argues plaintiff is es-topped from challenging in this court the sufficiency of defendant’s post-trial motion.

Where the appellant in the appellate court fails to raise an issue in that court, this court will not address it. ((Clore v. Fredman (1974), 59 Ill. 2d 20, 28.) An appellee in the appellate court (plaintiff here) may raise issues in this court which were not presented to the appellate court to sustain the judgment of the trial court. (Shaw v. Lorenz (1969), 42 Ill. 2d 246, 248.) However, he is “required to defend against the questions raised and the issues presented by the appellant in [the appellate] court.” (Mueller v. Elm Park Hotel Co. (1945), 391 Ill. 391, 399.) Here, defendant did raise the issue in the appellate court, but plaintiff failed to respond. As evidenced at oral argument, plaintiff admitted to this fact. The issue was therefore waived.

Alternatively, plaintiff argues the appellate court erred in concluding that punitive damages are not allowed in an action for loss of consortium. Citing Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, plaintiff maintains this court already has approved of an award for punitive damages in an action for injury to a spouse.

In Churchill, a wife brought an action individually under the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111⅔, par. 77) and as administrator of her deceased husband’s estate under the Wrongful Death Act (Ill. Rev. Stat. 1969, ch. 70, par. 1 et seq.) for damages she allegedly suffered as a result of her husband’s death at a train-crossing accident. Under the Public Utilities Act (Act), plaintiff sought compensatory damages in one count and punitive damages in another. The jury determined that plaintiff individually suffered $1,600 in pecuniary damages and awarded her that amount. It also awarded plaintiff $600,000 in punitive damages on the other count.

This court upheld both awards, saying the Act “expressly authorizes additional recovery by way of punitive damages to any person affected by defendant’s wilful and wrongful conduct.” (Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 140.) The court reiterated that plaintiff sought punitive damages directly under the Act on the basis of the financial loss she incurred and was therefore a person affected by defendant’s wilful misconduct.

This court clearly emphasized that its decision allowing punitive damages merely coincided with the legislative intent expressed in the Act and that it should not be interpreted as either condemning or advancing recovery of punitive damages in tort cases. Churchill, therefore, did not approve of an award of punitive damages in a common law action for loss of consortium as plaintiff suggests.

Plaintiff next argues the appellate court erred in focusing on the status of the plaintiff in reversing the punitive award. She maintains the purpose of punitive damages is not compensation of the plaintiff but punishment and deterrence of defendant and others from committing like offenses in the future. Plaintiff posits the focal point of our analysis should be whether the deterrent effect of punitive damages can be achieved in this particular case.

While the purpose of punitive damages is punishment and deterrence, the initial question to be answered is whether the facts and circumstances of the particular case justify their imposition; this is a question of law. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186; Knierim v. Izzo (1961), 22 Ill. 2d 73, 87.) “Because of their penal nature, punitive damages are not favored in the law, and the courts must take caution to see that punitive damages are not improperly or unwisely awarded.” Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 188.

Prior to the appellate decision in the instant case, no court in this State had decided whether punitive damages could be awarded in an action for loss of consortium. However, other jurisdictions have concluded that punitive damage awards are not recoverable in loss-of-consortium actions. Fireman’s Fund American Insurance Co. v. Coleman (Ala. 1980), 394 So. 2d 334; Moran v. Stephens (Fla. App. 1972), 265 So. 2d 379; Hughey v. Ausborn (1967), 249 S.C. 470, 154 S.E.2d 839. See generally Annot., 25 A.L.R.3d 1416 (1969); 22 Am. Jur. 2d Damages sec. 254 (1965); 41 Am. Jur. 2d Husband and Wife sec. 455 (1968).

In each of the above cases, the injured party had already been awarded compensatory and punitive damages. The spouse then sought both compensatory and punitive damages in the loss-of-consortium action. The courts refused to sanction a second punitive damage award against the defendant. Such an additional award would not serve to punish or deter the defendant who had already been punished in the first action. Rather, it would clearly result in a double windfall to the injured party and the spouse. Further, the underlying rationale for denying punitive damages in loss-of-consortium suits, and the one we adopt in this case, is that the injury is “indirect,” or derivative in nature, and recovery in such actions is intended only as compensation.

We have reviewed the record with regard to defendant’s other alleged trial errors and agree with the appellate court that no reversible error occurred.

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

Judgment affirmed.

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