author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL S. QUEEN, Defendant-Appellant.
    Fifth District
    No. 80 — 571
    Opinion filed July 13, 1982.

      Randy E. Blue and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Martin N. Ashley and Frank J. Bieszczat, both of State’s Attorneys Appellate Service Commission, of Mt. Vernon, for the People.
   JUSTICE WELCH

delivered the opinion of the court:

On January 4, 1979, Lida Belle King was found dead in her Du-Quoin, Illinois, apartment. The results of an autopsy indicated that she had been strangled. In March of that year, the defendant, Paul S. Queen, was charged by a Perry County indictment with the murder of Mrs. King. Following a bench trial in July of 1979, he was convicted of murder and sentenced to 30 years’ imprisonment. He appeals to this court, and argues that the trial court abused its discretion in failing to order an examination into his fitness to stand trial, and that the State’s evidence was insufficient to prove him guilty of murder beyond a reasonable doubt. We agree with the first of his contentions.

The defendant first appeared before Judge Robert Bastien on March 29, 1979, for purposes of his arraignment. As a preliminary matter, the court inquired about the defendant’s educational background, to which he replied that he had gone to eighth grade, had some additional training in high school and then “took college and law school.” When asked where he went to college, the defendant answered that he “took it in law school.” Judge Bastien then asked him where he studied law, and the defendant responded, “Perry County and with the Army.” The defendant also told Judge Bastien that he had a bachelor’s degree and that, in fact, he had “two or three of them some place,” but he didn’t know where they were.

In order to determine the defendant’s eligibility for the services of the public defender, the court asked if the defendant owned any real estate. The defendant said that he was “supposed to,” but “the real estate company has changed around” on him. He further stated,

“I don’t know what they did since they started changing the highways and the electric around because I called and they were getting me into public housing and all.”

During the course of the arraignment, the defendant informed the court that he “just came back from spending 2V2 years in Quincy, but I had the Advocate General up there.”

The defendant’s next appearance before Judge Hastien came on May 15, 1979, when the defendant sought to waive his right to a jury trial. In this hearing, the State’s Attorney suggested to Judge Hastien that, upon his investigation, it appeared that there was a bona fide doubt of the defendant’s fitness to stand trial. The State’s Attorney read the appropriate statutory provision (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—1) to require that, once the issue of the defendant’s fitness has been raised, the court must hold a preliminary hearing to determine whether there is a bona fide doubt of the defendant’s fitness, and, if so, then a full fitness hearing would be needed. The court stated that once a bona fide doubt of the defendant’s fitness is raised, the full fitness hearing must be held, without the necessity for any sort of preliminary hearing. Judge Hastien then terminated the jury waiver proceedings and ordered the State to file a motion raising the question of the defendant’s fitness to stand trial.

On May 16, the State’s Attorney orally requested the court to reconsider the order directing him to file a motion concerning the defendant’s fitness. This motion was denied, and, on May 17, the State filed a petition to hold a fitness hearing. This was accompanied, on the following day, by a motion to withdraw that petition.

Attached to the State’s petition were several written statements from law enforcement personnel which had given rise to the State’s Attorney’s doubts of the defendant’s fitness to stand trial. DuQuoin Police Chief Walter Minton had gone to the defendant’s residence to arrest him. According to Chief Minton, the defendant told him, “You can’t arrest me.” He further stated that “the court can’t arrest me, the county can’t arrest me and the State can’t arrest me. The only guy that I take orders from and the only guy that can arrest me is General MacArthur.” The defendant indicated to Minton that he was aware of what murder was, but that no one in this world could put him in jail.

The defendant professed to Minton to have once been a lawyer, doctor, and the owner of a large construction company. He said that he “didn’t think the world was all together” and warned that it “wasn’t safe to keep driving.” The defendant told Minton that he thought the world was flat and that “there was a red light up there to stop you and keep you from driving off.”

In his report, Chief Jerry Minton opined that the defendant could not “keep on the same track” when he was questioned. He would answer him in “an unrelated way.” Minton offered examples of the defendant’s responses to his inquiries.

“QUESTION: Do you drink?
ANSWER: I didn’t do anything.
QUESTION: Have you ever spent time in prison?
ANSWER: I was in Quincy and I was a lawyer.
QUESTION: Do you know what strangling is?
ANSWER: I was a doctor once too.”

In his report, Sheriff Jerry Woolsey noted that he had observed and spoken to the defendant on several occasions in the Perry County Jail. He said that the defendant “repeatedly demonstrated inappropriate responses to questions asked of him.” Woolsey commented that the defendant’s behavior was “of concern” to himself and the staff members as well as fellow prisoners. His behavior included what Woolsey termed “bizarre and inappropriate responses to daily activity at the jail.”

Woolsey further related in his report:

“On several occasions he has seemed disoriented as to time and place and has expressed great concern over the fact that he does not understand why he is being held in custody. He has repeatedly stated that he has no idea why he can’t go home.”

It was Woolsey’s conclusion that the defendant was exhibiting the same type of behavior that he did when he was in the custody of the Illinois Department of Mental Health’s Chester facility from 1966 to 1968. Woolsey was employed at that facility during that time.

The report of Sheriff Timothy Russell provided additional support for the observations of Woolsey and Minton. Russell also remarked on the defendant’s tendencies to answer questions by “rambling about totally unrelated subjects.” He stated that twice, during an interview on March 28, 1979, the defendant “flared up and began raging for no apparent reason.” The following day, the defendant was to be taken to the Perry County Courthouse for arraignment. Russell related that

“Queen seemed to be calm at the time. I asked Queen to turn around and put his hands behind his back so I could handcuff him. Queen did exactly as I asked but before I could put the handcuffs on, Queen turned and started raging. Queen doubled up his fists and shook them and was shouting. I started talking to Queen in a calm voice for several minutes asking Queen to calm down. After several minutes, Queen calmed down and then did exactly what I asked him to do.”

Officer Carl Melton also prepared a report of the defendant’s activities at the Perry County Jail. This report is handwritten and is not in final form as are the other three evaluations, and consequently is more difficult to interpret. However, it is obvious that the defendant kept telling Melton about “they,” who were those people “in the towers” or “on radar.”

On May 18, 1979, a hearing was. held on the State’s motion to withdraw its petition for a fitness hearing. The State’s Attorney argued that he was vested with the discretion to withdraw the petition, in much the same way that he could decide whether or not to proceed with any particular prosecution. Judge Bastien then remarked that defense counsel would have had a better opportunity to gauge the defendant’s capacity to cooperate in the presentation of his own defense than would either the court or the State’s Attorney. To this observation defense counsel replied that he did not want to make a statement at that time.

The court continued,

“As I read the statute, the Code of Corrections, the court is not empowered to order expert examination of the defendant regarding his fitness to stand trial or to be sentenced. Is either side at this time requesting under the statute that a doctor or expert be appointed to make such an examination?”

Both counsel replied in the negative. The court then granted the State’s motion to withdraw its petition, and directed that the defendant be brought into court, to complete the jury waiver proceedings. The court admonished the defendant:

“In case you do not have the complete information in your mind, I will explain to you one more time that you do have the. right to a trial by jury on this murder charge. And Mr. Sims [defense counsel] have you discussed with Mr. Queen his right to a trial by jury?
MR. SIMS: Yes Sir.
THE COURT: Is that correct, Mr. Queen?
MR. QUEEN: If that is what they really want. I was willing to waive the other day.
THE COURT: As I said, those proceedings were ended through no fault of your own.
MR. QUEEN: I can understand part of it, but so far I have no definite proof or anything like that as to time or place which I know would be brought out in court. But right now I have no idea of.”

The court accepted the defendant’s waiver of a jury trial.

The defendant’s case proceeded to a bench trial in July 1979 before Judge William Starnes. The State introduced testimony which showed that the defendant had been seen speaking with Mrs. King several days before she was found dead in her apartment. Polygraph examiner Dennis Smith testified that, after he conducted a polygraph examination of the defendant on January 11, 1979, he asked the defendant about the death of Mrs. King. At first, he claimed not to remember the incident, then later he told Smith that he did not kill Mrs. King.

Much of the State’s case was based upon scientific testimony presented by pathologist Steven Nuernberger and forensic odontologist Roger Adams. Dr. Nuernberger, who performed an autopsy on the body of Mrs. King, recalled that, during the autopsy, he discovered what appeared to be a bite mark on her right arm. Due to the reaction of the surrounding tissue to the trauma caused by the bite, Dr. Nuernberger was able to conclude that the bite must have been inflicted between two hours prior to Mrs. King’s death and one hour after her death.

A skin sample containing the bite mark was removed from Mrs. King’s body by Dr. Nuernberger and was delivered to Dr. Adams in St. Louis, along with stone cast molds which had been made of the defendant’s dentures. Dr. Adams made a comparison of the bite mark and the molds and concluded that it was quite likely that the mark had been made by the defendant’s dentures. In formulating his opinion, Dr. Adams noted that the indentation left by a lateral incisor on Mrs. King’s arm corresponded to a protruding incisor in the dentures. Dr. Adams stated that the uniqueness of this protrusion, combined with the lack of any feature in the dentures which would exclude them, assisted him in arriving at his conclusions.

At trial, the defendant did not testify, nor did he produce any witness in his own defense. At the conclusion of the trial, Judge Starnes found the defendant guilty of murder. A hearing was held on defendant’s post-trial motion on February 1, 1980, at which time Judge Starnes ordered sentencing to be continued until the defendant had been examined to ascertain his fitness to be sentenced. Reports were submitted to the court, and, on April 24, 1980, the defendant was adjudged unfit to be sentenced. On October 30, 1980, Judge Starnes found the defendant fit to be sentenced, and, after hearing argument on sentencing alternatives, sentenced the defendant to 30 years’ imprisonment.

As section 5 — 2—1(c) of the Unified Code of Corrections provided during the pretrial proceedings and during trial, “[w]hen a bona fide doubt of the defendant’s fitness to stand trial or be sentenced is raised, the court shall order that a determination of that question be made before further proceedings.” (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—1(c).) In other words, once facts are brought to the attention of the trial court, either from observation of the defendant or by suggestion of counsel which raise a bona fide doubt of defendant’s fitness to stand trial, the court has a duty to hold a fitness hearing. People v. Murphy (1978), 72 Ill. 2d 421, 430, 381 N.E.2d 677, 682.

In order to be considered fit to stand trial, a defendant must be able to understand the nature and purpose of the proceedings against him and to assist in his own defense. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—1(a).) This issue “is often a difficult one in which a wide range of manifestations and subtle nuances are implicated” (Drope v. Missouri (1975), 420 U.S. 162, 180, 43 L. Ed. 2d 103, 118, 95 S. Ct. 896, 908), and thus whether there is a bona fide doubt of a defendant’s fitness for trial depends upon the facts of that particular case. (People v. Murphy (1978), 72 Ill. 2d 421, 435, 381 N.E.2d 677, 684.) The trial court’s decision on this question will not be reversed absent an abuse of discretion. People v. Skorusa (1973), 55 Ill. 2d 577, 304 N.E.2d 630.

The People argue that the trial court acted properly in not holding a fitness hearing. Although recognizing the contents of the reports attached to the petition for a fitness hearing, the People stress that the defendant seemed to know the difference between a bench trial and a jury trial when he relinquished his right to the latter and he also indicated to the court that the main issue at trial would be his whereabouts when Mrs. King was killed. They contend that neither the police reports nor the fact that the defendant had been hospitalized over 10 years earlier cast doubts on the defendant’s fitness to stand trial (People v. White (1977), 51 Ill. App. 3d 155, 366 N.E.2d 491; People v. Richardson (1978), 61 Ill. App. 3d 718, 377 N.E.2d 1235), and they further urge that the post-trial psychiatric evaluations, which, of course, were not then before the court, contain nothing to alter that conclusion.

While the People may be correct that the defendant was fit to stand trial, that is not the precise issue before this court. Whether or not the defendant would have been found fit, we must determine whether the trial court erred in concluding, by not holding a hearing, that there was no bona fide doubt of the defendant’s fitness. Under this standard, we believe that the trial court abused its discretion in not inquiring into the defendant’s fitness to stand trial.

At the time of the pretrial hearings, the court was presented with several reports which detailed the defendant’s conduct. These observations came not from experts retained by the defense, nor from the defendant or his attorney, but from local law enforcement personnel entrusted with the care of the defendant. Each of these observers noted the defendant’s inability to provide a responsive answer to questioning, and this trait also manifested itself at pretrial hearings. Wild and unsubstantiated claims made by the defendant as to his past employment and other matters, combined with Sheriff Woolsey’s opinion that the defendant seemed “disoriented” and did not know why he was in jail convince us that a bona fide doubt of the defendant’s fitness to stand trial was raised. The contents of the police reports and the defendant’s demeanor at the pretrial hearings should have caused the trial court to direct that a fitness hearing be held. The court thus abused its discretion in failing to do so.

Because the trial of the defendant without a hearing on the issue of his fitness to stand trial resulted in the denial of a fair trial (Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836), we must reverse the defendant’s conviction and remand this cause to the circuit court of Perry County for a fitness hearing and whatever further proceedings may be appropriate.

Reversed and remanded.

JONES and KASSERMAN, JJ., concur.


source: Caselaw Access Project

author:
JUSTICE JONES
      JUSTICE HARRISON,

license: Public Domain

text:
    BAY STATE INSURANCE COMPANY, Plaintiff and Counterdefendant-Ap-pellant, v. GERALD WILSON et al., Defendants and Counterplaintiffs-Appellees.
    Fifth District
    No. 81 — 147
    Opinion filed July 16, 1982.
    Rehearing denied August 20, 1982.
    HARRISON, J., dissenting.
    Michael J. Nester, of Donovan, Hatch & Constance, P.C., of Belleville, for appellant.
    Jeanne Sathre and Mark Glass, both of Cohn, Carr, Korein, Kunin, Sch-lichter and Brennan, of East St. Louis, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

This is an appeal by the Bay State Insurance Company (Bay State) from two judgments of the circuit court of Madison County. The cases originated from an incident wherein James B. Johnson (Johnson) shot Gerald Wilson (Wilson) in the back with a .12-gauge shotgun fired at point-blank range. The appeal turns upon an interpretation of an exclusionary clause contained in a personal liability section of a homeowners insurance policy issued by Bay State to Johnson.

The shooting incident occurred in August of 1972. The facts attending the shooting may be briefly stated. Joyce Vaughn, Wilson’s girlfriend, lived in a basement apartment in Johnson’s home in Alton. She decided to move to another apartment, and Wilson and two of his friends went with her during daylight hours to help with the move. Ms. Vaughn stayed in the car while Wilson and the others went to her apartment. Wilson did not have a key and was endeavoring to gain entrance without one, apparently through a window. The noise attracted Johnson who stuck his head out an upstairs window and asked Wilson what he was doing. Johnson knew Wilson through Wilson’s prior visits to the apartment to see Ms. Vaughn. Wilson, aged 22 at the time, told Johnson, aged 72 at the time, that he was going to get the furniture. Johnson then said something to the effect, “Oh no you ain’t, get off my property.” Johnson then disappeared from the window, got his .12-gauge shotgun and went outside to confront Wilson and the others. The two accounts of what happened next differ but little. Johnson testified that as he went outside Wilson separated himself from the others, his right hand was in his right pocket and his back was partially toward the others. The other two men left quickly. Wilson stayed, “made a flash” out of his pocket with his right hand, and Johnson shot him. Wilson testified that when Johnson came out with the shotgun, he, Wilson, said, “O.K., I’m leaving.” He took one step backward and turned to the right, whereupon Johnson shot him. Wilson’s version of the incident was corroborated by Ms. Vaughn. Wilson, in fact, had no weapon, and he received serious and permanent injuries from the shooting.

The shooting gave rise to four lawsuits. The first was a criminal prosecution of Johnson. He was initially charged with attempted murder. Subsequently, the charge was reduced to aggravated battery, and on October 16, 1973, in a trial before the court sitting without a jury, defendant was found guilty of aggravated battery.

The second case to arise from the shooting incident sounded in tort for damages for personal injury. A one-count complaint was filed December 18, 1972, alleging that Johnson had maliciously, intentionally and feloniously assaulted Wilson with a loaded shotgun. Johnson’s personal attorneys filed a responsive pleading and tendered defense of the action to Bay State pursuant to the provisions of a homeowners insurance policy. Bay State denied coverage since the complaint alleged an intentional act by the insured for which there was no coverage under the policy. Johnson’s personal attorneys then filed a third-party complaint against Bay State to require them to defend Johnson in the pending action. The third-party complaint was dismissed upon motion.

Plaintiff filed an amended complaint, adding count II which charged Johnson with “negligence in use and possession” of the shotgun. Again the defense of the action was tendered to Bay State, and it again refused as to count I. However, it agreed to provide a defense to count II, which sounded in negligence, under a reservation of rights. The firm of Reed, Armstrong, Gorman and Coffey was retained by Bay State for this defense, and it entered an appearance for defendant on May 16,1973.

Subsequently, Wilson amended count II of his complaint to allege that Johnson had “failed to appreciate, evaluate and assess the circumstances of plaintiff’s presence on the premises” in determining that there was a need for self-defense. Wilson then also added a count III to his complaint, which alleged that defendant was “reckless and wanton” in his assessment of the need for self-defense.

Still later, count I of the complaint was amended so as to allege that defendant unreasonably “used excessive force with a loaded shotgun” in shooting plaintiff in the back. Count I, as amended, was dismissed by plaintiff immediately prior to trial. Reed, Armstrong, Gor-man and Coffey filed on behalf of defendant denials of all material allegations of counts II and III and pleaded as an affirmative defense self-defense by Johnson in that any action taken by him was reasonably believed necessary to defend himself and prevent death or great bodily harm.

Prior to trial, Johnson’s personal attorney demanded of Bay State that it tender the policy limits in settlement of the case. The demand was refused, and on March 25, 1975, the case went to trial before the court sitting without a jury. After hearing the evidence, the court entered judgment for Wilson upon count II, that which charged negligence, but found in favor of defendant on count III, that which charged reckless and wanton misconduct. Damages were assessed at $100,000. Reed, Armstrong, Gorman and Coffey filed a post-trial motion, which was denied. The case was appealed to the Appellate Court for the Fifth District. In a Rule 23 order issued on December 14, 1977, this court, with one judge dissenting, affirmed the judgment. (54 Ill. App. 3d 1114.) Petition for leave to appeal to the supreme court was denied.

On September 5, 1974, Reed, Armstrong, Gorman and Coffey had written Bay State advising it of a conflict of interest that existed because of the duty of the firm to afford defendant “the best defense possible.” The letter further advised Bay State that the Reed firm would be unable to participate in any way in the determination of the policy coverage question. Bay State thereupon retained the services of another firm of attorneys to file a declaratory judgment action in order to determine the policy coverage question. This declaratory judgment action was the third lawsuit to arise from the shooting incident. Wilson filed an answer and a counterclaim in the declaratory judgment action, alleging that Bay State had negligently or in bad faith refused to settle for their policy limits. The counterclaim prayed for the payment of the $100,000 judgment that had been rendered in his favor in the underlying lawsuit. This counterclaim for negligence or bad faith in refusing to settle the tort claim within policy limits was the fourth lawsuit to arise from the shooting incident. The counterclaim was dismissed upon motion by Bay State, apparently because Wilson had no personal cause of action against the insurer.

A second answer and counterclaim was filed by Wilson in the declaratory judgment action on July 20, 1978. Motions to dismiss were again filed by Bay State. The motions were denied on August 17, 1978.

The defendant in the underlying tort action, James B. Johnson, died on January 2, 1977, and a suggestion of death was filed. On September 5, 1979, the personal representative of the estate of James B. Johnson, deceased, assigned to Wilson the cause of action asserted against Bay State for its refusal to settle within its policy limits.

The declaratory judgment action was severed from the counterclaim for trial and was tried before the court sitting without a jury. During the trial it was stipulated by both parties that “James Berry Johnson recklessly and wantonly determined that he was justified in the use of lethal force against Gerald Wilson in the defense of his person and property, and that as a result of that evaluation by James Berry Johnson he fired his shotgun intentionally at Gerald Wilson, causing the injury which gave rise to this action.” Additionally, the record of the conviction of James B. Johnson of the crime of aggravated battery for the shooting of Wilson was introduced into evidence. Wilson’s attorney objected to any consideration of the criminal proceeding.

Following trial of the declaratory judgment action upon stipulated evidence, the court found (1) Johnson’s primary intent was that of self-defense rather than that of injury to Wilson, (2) neither wilful, wanton nor reckless misconduct amounts to a specific intent to cause injury, and (3) therefore, Johnson lacked the specific intent to harm Wilson required to bring his act within the scope of the exclusionary clause of the policy. No finding was made regarding that portion of the exclusionary clause which provided no coverage if the act by the insured was “expected” to cause injury or property damage. Judgment in the declaratory judgment action was accordingly rendered against Bay State. This meant that the court found that there was coverage under the policy terms for the shooting incident involved.

Subsequently, in the severed trial of the counterclaim, another judge of the court ruled that the assignment of the policy coverage claim of Johnson against Bay State was valid and that Bay State had been guilty of bad faith in its refusal to settle the underlying tort case within its policy limits. Accordingly, judgment was rendered against Bay State on the counterclaim in favor of Gerald Wilson in the amount of $100,000.

Bay State now appeals the adverse judgments rendered in the declaratory judgment action and in the action for negligence or bad faith in refusing to settle the underlying tort claim within the policy limits of $25,000.

The homeowners policy in question contains the following exclusion applicable to its liability section:

“This policy does not apply *** to bodily injury or property damage which is either expected or intended from the standpoint of the insured.”

In its judgment of January 2, 1979, the declaratory judgment case, the court made the following findings and decision:

“The court finds that James Johnson had an honest belief that he faced a situation which called for self-defense, even though a reasonable man would not have believed so. The court finds that coverage under this contract of insurance does not extend to any act the insured intended and expected to cause injury. The court finds that the construction generally placed upon such exclusionary language is that the injury is intended or expected if the insured has acted with the specific intent to cause harm to a third party. Under this construction neither wilful, wanton, or reckless misconduct amounts to a specific intent to cause injury. Thus the fact that Johnson intended to shoot is not conclusive of the issue. His primary interest was not that of injury to Wilson but rather defense of himself. Thus the court finds that the exemption clause does not exclude Johnson from insurance coverage under his policy with respect to the injury to Gerald Wilson.”

In rendering its judgment the trial court placed principal emphasis upon the case of Cowan v. Insurance Company of North America (1974), 22 Ill. App. 3d 883, 318 N.E.2d 315. Like emphasis is continued by Wilson in his brief in this appeal. The plaintiff in the Cowan case was the insured in a policy issued by defendant insurance company which insured against liability for injuries caused to others. The policy contained an exclusionary clause which provided that coverage would not extend to “any act committed by or at the direction of the insured with intent to cause injury or damage to person or property.” The plaintiff had been involved in a traffic dispute with one Graw. In an ensuing argument plaintiff assaulted Graw with his fists, knocked him down and caused the fracture of a leg. Graw sued plaintiff for assault in a complaint which alleged that the plaintiff had violently assaulted him, wrongfully struck him with his fists and knocked him down and fractured his leg. The complaint further alleged that the assault was wilful and malicious. In accord with a jury verdict, Graw received a judgment against plaintiff for $8,000. Plaintiff then brought a declaratory judgment action against his liability insurer to compel payment of the Graw judgment. The complaint in the declaratory judgment alleged that while the policy of insurance was in effect, plaintiff had been involved in a traffic dispute with Graw, that in the ensuing argument plaintiff inadvertently had come into contact with Graw, causing him to lose his balance and fall to the ground, and that the act causing the fall and injury to Graw was unintended and accidental. The insurer defended on the ground that by reason of the previous litigation between the plaintiff and Graw the plaintiff was collaterally estopped to deny that the injuries to Graw were intentional. The trial court granted summary judgment for the plaintiff. On appeal the defendant insurance company argued that the doctrine of collateral estoppel would operate to prevent plaintiff from relitigating the intentional injury issue in the declaratory judgment action and that since in the prior tort litigation plaintiff had been found guilty of assault and battery, further consideration of his intent in administering the beating to Graw was foreclosed. The plaintiff argued that the issue was not whether he had committed an intentional tort against Graw but whether he had intended to injure him. Although he had committed an intentional act, plaintiff said, the exclusionary clause of the policy is applicable only when it can be demonstrated that the injury was intentionally inflicted.

The appellate court held in Cowan that before the defendant insurance company can be absolved from liability under the policy exclusion, it must be demonstrated that the plaintiff specifically intended to injure Graw. Turning to the pleadings and instructions used in the tort action, the court noted that the jury was told that the plaintiff had been charged by Graw with a wilful and malicious assault and that a wilful and malicious assault had occurred if the plaintiff in his action had intended to harm or displayed an utter indifference to or conscious disregard for the safety of others. Since the instruction was phrased in the disjunctive, the court said, it could not be presumed that the jury had decided the issue of an intentional harm to Graw. The court reversed the summary judgment for the plaintiff and remanded the case for a trial on the question of whether plaintiff had intended to injure Graw when he committed the assault.

We cannot agree that Cowan v. Insurance Company of North America requires that we affirm. We think this case is factually more closely aligned with, and is governed by, the supreme court case of Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335. In that case the insured, Paul, had struck plaintiff on the head with a club. The plaintiff sued the defendant and the bar where the assault had occurred. The defendant’s liability insurer refused to defend because of a policy exclusion clause which provided, in part:

“ ‘[T]he insurance does not apply to Bodily Injury or Property Damage arising out of assault and battery or out of any action or omission in connection with the prevention or suppression of such assault and battery.’ ” (74 Ill. 2d 132, 140, 384 N.E.2d 335, 337.)

The plaintiff obtained a default judgment for $30,000. Prior to the default judgment, the defendants had paid the plaintiff $100 for an agreement not to execute against them on any judgment but left him free to pursue the insurer for collection of the judgment. The plaintiff garnisheed the insurer and obtained judgment in the circuit court for $30,000. The insurer filed a section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72) in defendants’ names to vacate the default judgment, and it was denied. The insurer appealed the garnishment order, and the defendants appealed the denial of the petition to vacate the default judgment. The appeals were consolidated and the appellate court affirmed. The supreme court noted that the insurer’s investigation showed that the occurrence in question was in fact a battery and that defendant Paul, the insured, had been found guilty of the crime of battery in a bench trial upon stipulated facts. The plaintiff initially had filed a complaint charging the defendants with wilful and wanton misconduct. After depositions had been taken, plaintiff filed an amended complaint alleging that defendants’ “negligently struck plaintiff on the head.” After the amended complaint was filed, the defendants’ personal attorney demanded that the insurer defend defendants on the amended complaint. The demand was refused on the grounds that investigation had shown that the occurrence was outside the coverage of the policy. The supreme court said:

“With the exception of the amended complaint, all the facts, depositions and pleadings in the present case clearly indicate that the claim was based on an intentional battery by Ben Paul, not on negligence. It is equally clear that the plaintiff’s attorney was well aware that the defendant’s act was a battery and that he filed the amended complaint charging negligence solely for the purpose of bringing the action within potential insurance coverage ***. There is no explanation for the procedures followed other than the desire of plaintiff’s counsel to maneuver the insurer into a position where it would be obligated to pay the judgment and estopped from raising the defense of noncoverage.” 74 Ill. 2d 132,145, 384 N.E.2d 335, 340.

Continuing with its opinion in Thornton, the supreme court noted that it was the plaintiff’s position that since the insurer failed to defend a suit brought against the insured, it is estopped from asserting lack of coverage. The supreme court stated that although this may be the general rule it had no application under the facts of the case. The court then discussed the proper consideration to be given in the civil case against the insurer to the conviction of plaintiff Paul of the crime of battery. The court reviewed cases from other jurisdictions. Some had adopted a rule that held such convictions were to be considered as conclusive evidence in the derivative civil proceeding, and some had adopted a rule that such convictions were to be considered prima facie evidence only in the derivative civil proceeding. Following Smith v. Andrevjs (1964), 54 Ill. App. 2d 51, 203 N.E.2d 160, the court adopted as the preferred rule that which holds that proof of a conviction of a crime is admissible in a civil case as prima facie evidence. “This approach,” the court said:

“preserves the opportunity to rebut the factual basis of the conviction insofar as those facts are applicable to the civil proceeding. Also, it does not conclusively establish that there was no duty to defend as the Oregon court held in Casey. In orn-ease, the evidence of the defendant Paul’s conviction of battery should have been admitted in the garnishment proceeding as prima facie evidence that his striking of the plaintiff constituted a battery.” (Thornton v. Paul (1978), 74 Ill. 2d 132, 151, 384 N.E.2d 335, 343.)

The Thornton court noted that the defendant had been represented at all times by an attorney, had been convicted of a serious misdemeanor, could have been incarcerated for one year and was, in fact, fined $500. Those factors rendered the criminal proceeding of sufficiently serious import to lend an air of credibility to the conviction and made it unlikely that there would have been an unjust conviction. It was concluded, therefore, that Paul’s conviction was reliable evidence of the fact that he did, in fact, commit a battery. The court reversed the judgment in the policy garnishment and remanded the case for further proceedings.

The Cowan case differs from Thornton v. Paul to some extent. The latter permits the use of a criminal conviction as prima facie evidence in a derivative civil case. The underlying case in Cowan was one in tort for assault. Of course, the case under consideration, like Thornton v. Paul, involves a criminal prosecution. Thornton v. Paul does not consider the use of an adjudication in a prior civil case where presumably the rule of collateral estoppel would apply to prohibit re-litigation of the issue of “intent to injure.” In the Cowan case, along with others which need not be cited, there was an obvious attempt to phrase the issue in the suit upon the liability policy in such manner as to preclude the application of the collateral estoppel rule. Other cases, which need not be cited, apply the same technique. Such practice was noted in Thornton v. Paul, as we have quoted above. In Cowan, it was found possible to avoid a collateral estoppel because in the underlying case the “intent to injure” issue had not in fact been litigated in such a manner as to exclude the possibility that the assured acted with an intent other than an intent to injure. Cowan held that if such other intent could be established, the insurer is liable under its policy and the exclusionary clause would be inapplicable.

The approach in Thornton v. Paul differs markedly from that of the Cowan case in that the underlying case in which the issue of “intent to injure” was litigated, or, at least, possibly was litigated, was a criminal prosecution. The specific crime involved there was battery. As noted above, the supreme court decided that criminal convictions could be used in civil cases as prima facie evidence of the facts litigated in the criminal case.

In this case we are considering criminal conduct of greater magnitude than that involved in Thornton v. Paul, and this fact imparts more force to the prima facie evidence rule there adopted. The insured here, Johnson, was originally charged with attempted murder. Prior to trial that charge was reduced to aggravated battery, a Class 3 felony, unarguably a serious crime. Johnson was represented by an attorney at all times during the criminal proceeding. He was convicted and sentenced for the crime of aggravated battery. The very crime of which Johnson was convicted speaks to the intent with which he acted and, necessarily, to any assertions that his intent in shooting Wilson was that of self-defense and not a specific intent to injure. Section 12 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 4(a)) provides: “A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.” Conviction of that crime can be had only upon a showing of a specific intent to cause great bodily harm, disability or disfigurement. Under the authority of Thornton v. Paul, such determination must be regarded as foreclosing further litigation in this civil case upon the issue of intent to injure.

As in Thornton v. Paul, the complaint in the underlying tort case against Johnson was amended — four times after the original filing — in an attempt to evade the consequences of the criminal conviction and to define the shooting incident in such manner as to state a cause of action that would not be subject to the exclusionary clause of the policy. Because of the nature of the criminal conviction of Johnson, such cannot be done.

We hold, therefore, that the trial court committed error in finding that Johnson shot Wilson in the back at point-blank range with a .12-gauge shotgun but did not intend to injure him. The factual circumstances of the incident and the nature and elements of the criminal conviction of Johnson compel the determination as a matter of law that he did intend to shoot and did intend and expect to injure Wilson. We do not consider this result to be in derogation of the “prima facie” yule of Thornton v. Paul because we do not take the criminal conviction of Johnson as conclusive evidence of his intent to cause bodily harm. Rather, the attendant facts, taken with the criminal conviction, permit but one conclusion, and it is arrived at as a matter of law. As to this, we perceive no room for reasonable minds to differ.

Although unneccessary to our decision, we note that the policy exclusion in this case is more broad than those considered in Thornton and Cowan in that it excludes coverage for bodily injury that is either expected or intended. Thus, whatever the intent that caused Johnson to shoot, if he expected that bodily injury to Wilson would be the consequence, there was no coverage afforded by the policy. See Farmers Automobile Insurance Association v. Medina (1975), 29 Ill. App. 3d 224, 329 N.E.2d 430.

The result we have reached means that the policy exclusion is applicable and the policy of Bay State affords no coverage for Johnson. Accordingly, the declaratory judgment against Bay State is reversed. Since the declaratory judgment against Bay State is reversed, the judgment against Bay State for bad faith in failing to settle Wilson’s claim within the policy limits is also reversed.

Judgments reversed.

KASSERMAN, J., concurs.

JUSTICE HARRISON,

dissenting:

I respectfully dissent from the majority and would affirm the decision of the trial court for the following reasons.

Bay State maintains, and the majority has concluded, that Johnson’s shooting Wilson was intentional and that, therefore, the bodily injury which was inflicted on Wilson was “either expected or intended.” The majority relies primarily on the supreme court opinion in Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335. The focal point in Thornton, as here, was the construction of an exclusionary clause in an insurance policy. However, the language of the two clauses which the courts have been called upon to construe is markedly different. In Thornton, the insurance policy specifically excluded coverage for “assault and battery.” Thus the court was absolutely correct to hold that a criminal conviction for battery was prima facie evidence that the insured’s conduct was excluded under that particular clause.

Here, however, the clause in question does not contain a reference to battery or to any other specific act. It refers only to injuries “intended or expected.” Because this broad language presents a different problem of construction, the issue here is closer to that decided in Cowan v. Insurance Company of North America (1974), 22 Ill. App. 3d 883. The trial court in this declaratory judgment action, also, was persuaded by the Cowan rationale.

In Cowan the policyholder had a civil judgment entered against him. However, in the complaint for declaratory judgment to determine policy coverage, the insured alleged that the injury was accidental and a result of his defending himself. The Cowan court concluded that, for purposes of determining insurance coverage, the conduct of the insured could not be deemed intentional merely because tortious or criminal liability had been imposed in prior litigation between the victim and the insured. The underlying rationale was that, even though the defendant might be civilly or criminally liable, the liability would have been imposed because he unreasonably evaluated the need for defensive action, not because he intended to injure the victim. The court relied on cases from other jurisdictions which found that an insured’s honest belief that he was confronted with a self-defense situation was a sufficient basis upon which to hold that the insured may not have specifically intended to harm the victim, in spite of evidence that the insured intended to engage in the conduct which caused the harm. The court held that an issue of fact remained, i.e., whether Cowan intended the specific harm, and that, therefore, summary judgment had been improperly granted.

Employing the same rationale in the recent case Grinnell Mutual Reinsurance Co. v. Frierdich (1979), 79 Ill. App. 3d 1146, 1148-49, the court drew a careful distinction between “an intentional act and an intentionally caused injury,” stating that coverage may still exist under a clause excluding intentional injuries even if an act was intended, so long as it can be shown that the specific resulting injury was not intended. Citing Cowan favorably, it found that coverage under the exclusionary clause was afforded “where the injury was the unintended result of an intentional act.”

Applying this construction to the exclusionary clause in Johnson’s homeowner’s insurance policy, I cannot say that the trial court erred in finding that, even though Johnson did intend to shoot the gun, he acted in an honest belief that he was protecting himself and his property. In declaring that coverage did exist, the trial court found that Johnson sought only to defend himself, giving no real thought to the consequences of his defensive measures. These findings were not against the manifest weight of the evidence. Thus, although Johnson’s belief may have been unreasonable and his behavior reckless, it cannot be said that he intended or expected the specific bodily injury which resulted. Because his conduct did not fall within the language of exclusion, it should be covered by the policy. Accordingly, I would affirm the trial judge on that point.

Likewise, I agree with the decision in favor of Gerald Wilson on his counterclaim against Bay State. Bay State exhibited bad faith in refusing to settle within the policy limits. It is undisputed that the insurance company recognized the likelihood of a judgment being entered against its insured. It is also undisputed that the company knew the judgment would be substantial. The injuries sustained by Wilson were severe and permanent. The record also shows that Bay State received a copy of Cowan, along with advice from local counsel as to its ramifications. In view of these facts, I agree with the trial judge who found, “at the very least, Bay State was negligent in its refusal to settle within the policy limits.”

Bay State argues that it had no obligation to settle a suit in which it consistently denied coverage. It insists that it fulfilled its contractual obligation of good faith simply by defending Johnson in the civil suit.

I note that in Thornton the supreme court specifically outlawed the insurer’s participation in litigation where the potential for ethical and moral conflicts arises:

“[W]hen there is a conflict of interests, as in the present case, the insurer should not be obligated or permitted to participate in the defense of the case.” (Emphasis added.) (Thornton v. Paul (1978), 74 Ill. 2d 132,152.)

Because, as this case amply demonstrates, a conflict of interest often results in prejudice to the insured, the best course of action is for insurance company counsel to control the declaratory judgment action only, not the actual civil litigation against its insured. If it controls the civil litigation by furnishing its own counsel, an insurer increases the likelihood of prejudice to the insured. It should arrange for the policyholder to retain private counsel to manage the civil suit, with the understanding that, if the declaratory judgment action determines that coverage exists, all costs incurred in defending the prior civil suit will be reimbursed. (See Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 198-99.) As the Thornton court said: “[I]ts [the insurance company’s] obligation to provide a defense should be satisfied by reimbursing the insured for the costs of the defense.” Thornton v. Paul (1978), 74 Ill. 2d 132, 152.

Bay State’s decision to participate in the defense of its insured was made in direct contravention to the principles set out in Thornton. Further, Bay State’s refusal to settle the case for the policy limits served to prolong the litigation and increase the risk to the insured. As the court said in Brown v. State Farm Mutual Automobile Insurance Association (1971), 1 Ill. App. 3d 47, 51: “When the suit is in excess of the policy the insurer may, by deciding to continue litigation, expose the insured to a far greater risk than it takes.” Here, Bay State exposed Johnson to far greater risk than that to which it exposed itself. Thus, it is my opinion that Bay State exhibited bad faith by refusing to settle within the policy limits, and thus it should be liable for the entire $100,000 civil judgment entered against Johnson. Scroggins v. Allstate Insurance Co. (1979), 74 Ill. App. 3d 1027, 1030.

Consequently, I would affirm the judgment of the circuit court of Madison County.


author: PRESIDING JUSTICE EARNS

text:
      In re D. W., a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellant, v. D. W., Respondent-Appellee.)
    Fifth District
    No. 81 — 668
    Opinion filed August 3, 1982.
    Gloria Thurston, State’s Attorney, of Mound City (Martin N. Ashley and Raymond F. Buckley, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Randy E. Blue and Jack W. McGuire, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   PRESIDING JUSTICE EARNS

delivered the opinion of the court:

D. W., a minor, 16 years of age, was charged in a delinquency petition with burglary and theft. The circuit court of Pulaski County suppressed his confession. The State appeals the suppression order.

On October 17, 1981, Murphy’s Service Station in Mound City was burglarized. Shotguns and change from a candy machine, apparently opened by the use of the key, were taken.

At the suppression hearing, Mound City chief of police Raymond Minor testified that he arrested the minor on October 25, 1981, after receiving a tip from an unnamed confidential source who had previously furnished information leading to an arrest. Minor further testified that the key to the candy machine was one of 15 hanging on a rack and that D. W. “hung around” the station. The owner of the station testified that he had opened the candy machine in D. W.’s presence and that he knew where the guns were hidden in the back room of the station.

D. W. was brought in for questioning sometime on October 25, 1981. He was taken to the sheriffs department and was questioned by Chief Minor and the juvenile officer in the presence of his stepfather. He was not advised of his Miranda rights. He did not give any statement. He was locked up overnight in the county jail in juvenile detention.

On the morning of October 26, 1981, Chief Minor requested Deputy Sheriff Polley to interview the minor. Prior to questioning the minor, Polley brought D. W.’s mother and stepfather to the sheriff’s department. No Miranda warnings were given to the minor prior to the time he stated his involvement in the burglary in response to his mother’s inquiry.

D. W.’s mother testified that her son was in the office when she got there; that he did not want to talk; that she asked him if he took the guns and he didn’t say anything until “I really got to questioning down on him because he didn’t really want to open up and I had to get on him. ***.” She testified further that her son wouldn’t talk to anyone until she got to the sheriff’s office and “told him he had to talk to somebody, and I asked him about it and he finally said he did it.” She testified that she addressed her son in a loud, scolding voice and that she was upset. Polley then took his written statement and he signed it.

The motion to suppress was based on two grounds: that the arrest was illegal, there being no probable cause, and the confession was involuntary, being the product of improper interrogation.

The court suppressed the confession and in explanation noted:

“Court finds that in view of the circumstances of the minor’s arrest, the fact that he did refuse to make a statement when first questioned by the police, and did not make any statement until his mother was brought in and told him he had to make a statement in the presence of Officer Polley, the statement was not voluntarily made and I’m going to grant the Motion to Suppress.”

The trial court’s determination of voluntariness of a confession will not be reversed on appeal unless contrary to the manifest weight of the evidence. (People v. Hawkins (1972), 53 Ill. 2d 181, 290 N.E.2d 831.) Considering the totality of the circumstances surrounding the minor’s arrest, his overnight incarceration, and the insistence by the minor’s mother that he tell Deputy Polley what occurred, we cannot say that the court’s finding of involuntariness was against the manifest weight of the evidence.

The trial court might well conclude that the presence of D. W.’s mother and stepfather at the second interrogation on October 26 was more than mere compliance with the notification requirements of section 3.2 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 703 — 2) on the part of the authorities. The minor’s parents had been notified or in any event knew of his detention at the county jail the day before, as his stepfather was present when he was questioned by Chief Minor on October 25. The questioning and exhortation by the mother quite clearly took place during and as part of the questioning by Deputy Polley as well as the minor’s mother and stepfather, unlike the circumstances in Hawkins where the father asked the minor what he had done before any conversation between the parents and the officer and before the officer had begun the interrogation of the minor. The trial court might well conclude that Deputy Polley had the mother present for the purpose of persuading her son to tell his involvement in the burglary and that she was used as an agent of the police. (People v. Hoffman (1980), 81 111 App. 3d 304, 401 N.E.2d 323, vacated on other grounds (1981), 84 Ill. 2d 480, 419 N.E.2d 1145.) Polley was aware that Chief Minor had questioned D. W. the night before and that the minor had refused to give a statement. Furthermore, no Miranda warnings were given by Polley before the confrontation between the minor, his mother and stepfather and Polley. Polley never informed the minor that he need not talk notwithstanding his mother’s insistent demands that he tell what happened. The minor had been interrogated the day before, had been locked up overnight and then again interrogated by a different officer, with the assistance of the minor’s parents, without the benefit of Miranda warnings, according to the view of the record taken by defendant and the State.

The correctness of the trial court’s ruling depends largely on a factual determination which it was in a superior position to judge. Polley’s testimony was brief and unclear in several aspects. We cannot say its determination was contrary to the manifest weight of the evidence.

Affirmed.

JONES and WELCH, JJ., concur.


author: JUSTICE KASSERMAN

text:
    ZELLA F. BAYS et al., Plaintiffs-Appellants, v. MARJORIE COX MATTHEWS et al., Defendants-Appellees.
    Fifth District
    No. 81 — 389
    Opinion filed August 4, 1982.
    Caldwell, Troutt, Alexander & Quindry, of Benton, for appellants.
    Robert W. Lewis, of Benton, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

On January 19, 1979, plaintiffs filed a complaint to quiet title to the mineral estate in certain described real estate located in Franklin County, Illinois. Subsequently, on March 4, 1980, plaintiffs were allowed to amend their complaint to include a second count which sought an order to reconvey the mineral rights to the plaintiffs pursuant to section 255 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 736). On July 2, 1980, the trial court entered an order finding that plaintiffs’ action was barred by the equitable doctrine of laches and that title to the mineral estate in question was vested in the defendants. From this order plaintiffs appeal.

The evidence adduced at trial indicates that on February 22, 1909, Robert A. Prowell acquired title to the minerals underlying the real estate legally described as “[t]he South half of the Southwest Quarter (SWV4) of the Northeast Quarter (NEW) of Section One (1), Township Five (5) South, Range Three (3) East of the Third Principal Meridian, IN FRANKLIN COUNTY, ILLINOIS.” On May 5, 1959, Robert A. Prowell died intestate, leaving as his sole heirs his children, the plaintiffs, Zella F. Bays, Stella M. Dixon, and Harold Prowell.

The mineral estate was sold on October 23, 1944, for delinquent taxes for the years 1933 to 1943. Included in the abstract of title which was admitted into evidence in the trial court was an affidavit for tax deed. The affiant, Walter W. Williams, stated, inter alia, that he was the assignee of Roy Dye who, as agent and trustee for Franklin County, purchased the property at the tax sale. The affidavit also stated that the land was vacant and unoccupied and that an inquiry was made as to the whereabouts of J. H. Prowell, in whose name the land was assessed, and that no one who claimed to own the property could be found. Therefore, according to the affidavit, a notice of the tax sale and purchase was published in the Benton Evening News three times prior to the expiration date for redemption of the property which was October 23, 1946. A copy of this notice was admitted into evidence at trial. The evidence discloses that a tax deed was issued to Walter W. Williams on July 17,1947.

Mr. Williams died in July 1953, and devised his estate to Mary Lou Williams. On October 26, 1955, Ms. Williams quit claimed her interest in the minerals in question to Aud B. Cox and Dollie M. Cox as joint tenants for the consideration of $500. Both Aud and Dollie Cox died prior to the filing of the instant suit and left as their heirs the defendants, Marjorie M. Cox Matthews, Courtney Cox, Kevin Cox, and Justin Cox.

At trial, held on March 4, 1980, plaintiffs argued that on the previous day they tendered a check for $683.71 which they claimed would fully compensate the defendants for the purchase of the tax deed and subsequent taxes paid by the defendants, including interest at 7% per annum. Plaintiffs urged that, in light of this tender, they were enti-tied to the mineral estate in the described real estate under section 255 of the Revenue Act of 1939. Plaintiffs further argued that defendants had failed to properly perfect their title in accordance with section 6 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 6) and, therefore, they cannot claim title on a theory of adverse possession.

Defendants replied that under the tax deed issued to Walter W. Williams and the chain of title thereunder, they, as bona fide purchasers, are the rightful owners of the mineral estate in dispute. Defendants maintained that the doctrine of laches should apply so as to preclude the plaintiffs’ claim since defendants have paid taxes on the mineral estate for a considerable period of time without notice of any adverse claim. Defendants also pointed out that they have changed their position in reliance upon their ownership of the mineral estate by executing binding contracts concerning this estate. Defendants further argued that they were entitled to the property under section 7 of the Limitations Act. Ill. Rev. Stat. 1979, ch. 83, par. 7.

The evidence established that the property taxes for the years 1955 through 1976 were paid by the Cox family. Taxes for the years 1977 and 1978 were first paid by the plaintiffs as the heirs of Robert A. Prowell; later, duplicate payments for these years were made by the Cox family.

Earl Tucker, the owner of the surface estate, and Falgar Pearce, a person who lived near the real estate involved, testified for the plaintiffs that no minerals had been removed from the property as yet.

Zella F. Bays, one of the plaintiffs, testified that she believed that plaintiffs, as heirs of Robert A. Prowell, owned the mineral estate. On cross-examination she stated that she saw a notice published in the Benton Evening News in 1961 indicating that the taxes on the property were delinquent but she made no attempt to pay them. This notice was admitted into evidence and made part of the record on appeal. Ms. Bays testified that after she became aware that the property was on the delinquent tax roll, she made no attempt to search the county records for over a decade to determine who was paying the taxes, although she was aware that the property was being taxed.

Harold Prowell also expressed a belief that he and the other heirs of Robert A. Prowell owned the mineral estate but testified that he did not search the county records prior to 1974 or 1975 to learn who was paying the property taxes.

Both Zella F. Bays and Harold Prowell testified that they lived in Benton, Illinois, and that Robert A. Prowell lived there between 1944 and 1947. They stated that when they learned that an option regarding the mineral rights had been granted to the Tennessee Valley Authority sometime in the mid 1970s, they searched the county records and discovered that the tax deed to Walter W. Williams had been issued and the subsequent deed to the Cox family executed. This, Ms. Bays and Mr. Prowell testified, was the first time they had actual notice that someone else was claiming the mineral estate.

According to the testimony of Marjorie M. Cox Matthews and Aud Courtney Cox, two of the defendants, the Cox family have executed various leases covering the oil and gas on the property since 1955 and one such lease was in force at the time of trial. They further stated that the Cox family, as members of the Ewing-Northern Coal Association, executed an option covering the coal on the property in favor of the Tennessee Valley Authority which has been exercised. They testified that prior to March 1977, none of the plaintiffs made any claim of ownership of the mineral estate adverse to the claim of the Cox family.

By stipulation, it was established that on March 3, 1980, plaintiffs’ attorneys delivered a check to defendants’ attorney in the amount of $683.71, made payable to the order of Marjorie Cox Matthews, Kevin Cox, Courtney Cox and Justin Cox. On March 4, 1980, the date of the trial, the check was returned. Aud Courtney Cox testified that defendants did not accept the check because there was a misnomer on the instrument, the payment was not in cash, and the payment came too late.

The trial court requested trial briefs on the matter and on June 2, 1980, issued the following communication to the attorneys of record:

“After reading [the] briefs and the cases cited, I find the controlling case to be Pyle v. Ferrell, 12 Ill. 2d 547; 147 N.E.2d 341.
In the case at bar, a chancery proceeding, the affirmative defense of Laches is raised by the defendants. The case at bar as in the Pyle case, involves only mineral interests, and certainly values of mineral interests have changed greatly in the years from 1947 to 1979 when this suit was begun. All matters, the sale for taxes, application for tax deed, recording such deed, and the payment of taxes for 30 years are matters of record and the plaintiffs and their predecessors in title did have constructive knowledge thereof.
I find present all necessary facts necessary to bar a suit for Laches as set forth in the Pyle case, citing from 19 Am. Jur., Equity, Sec. 498. The complaint of the plaintiffs is dismissed by reason of such Laches. It is not necessary for the court to pass on other points raised.”

On July 2, 1980, the final order was entered in conformance with the above finding.

The first issue raised by the instant appeal is whether the trial court properly applied the doctrine of laches to the plaintiffs’ claim, which is based upon section 255 of the Revenue Act of 1939.

Plaintiffs argue that the doctrine of laches is not available as a defense to a proceeding brought under section 255 of the Revenue Act of 1939 because this is an action at law and laches is a defense only to suits in equity. While there are Illinois cases holding that laches is a purely equitable defense which is not available as a bar to an action at law (Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 52, 390 N.E.2d 393, 406; In re Estate of O’Donnell (1956), 8 Ill. App. 2d 348, 353, 132 N.E.2d 74, 77), there is authority to the contrary (Schultheis v. City of Chicago (1909), 240 Ill. 167, 170, 88 N.E. 563, 563-64; People ex rel Kennedy v. Hurley (1952) , 348 Ill. App. 265, 276, 108 N.E.2d 808, 813, cert, denied (1953) , 346 U.S. 817, 98 L. Ed. 344, 74 S. Ct. 29; 1 Ill. L. & Prac. Actions sec. 133 (1953)). It would appear that as a general proposition it is true that laches is primarily an equitable defense; however, numerous exceptions have been forged by Illinois courts. For example, laches has been held to be a valid defense to actions of ejectment (see Miller v. Siwicki (1956), 8 Ill. 2d 362, 134 N.E.2d 321; Brown v. Zimmerman (1959), 18 Ill. 2d 94, 163 N.E.2d 518), mandamus, certiorari, and quo warranto (People ex rel. Casey v. Health & Hospitals Governing Com. (1977), 69 Ill. 2d 108, 370 N.E.2d 499; Schultheis v. City of Chicago-, People ex rel. Kennedy v. Hurley), as well as declaratory judgment proceedings (Villiger v. City of Henry (1977), 47 Ill. App. 3d 565, 362 N.E.2d 120). We conclude that the doctrine of laches is not strictly and unequivocally limited to suits in equity, and we hold that it is available to defendants in the case at bar. Therefore, we must determine whether laches is applicable to the instant case. We find that it is.

A very similar factual situation was considered by the Illinois Supreme Court in Pyle v. Ferrell (1958), 12 Ill. 2d 547, 147 N.E.2d 341, relied upon by the trial court. In that case, the plaintiff sought to quiet title to a mineral estate and remove as clouds upon his title a tax deed and certain leases made by the holder thereof. The plaintiff acquired title to the mineral estate by devise from his father in 1932 but made no effort to visit the property or pay the taxes or determine the tax status of the property until 1954 when he was contacted by a geologist who approached him in order to acquire a lease. In the interim, however, the mineral estate had been sold to the defendant in 1936 for delinquent taxes. The defendant received a tax deed, made all subsequent tax payments and subsequently leased the property to third parties. The plaintiff attacked the validity of the tax deed on technical grounds, but the trial court dismissed his complaint under the doctrine of laches. The Illinois Supreme Court affirmed the trial court and held that the defense of laches was available to the holder of the tax title and that the elements of laches were present.

Although the plaintiff’s claim in Pyle was couched in terms of an equitable suit to quiet title, we believe its reasoning is dispositive of the case at bar. This conclusion is further supported by the fact that the purpose of section 255 of the Revenue Act of 1939 is not to protect the delinquent taxpayer but merely to return real estate to the stream of commerce. (Shuck v. Guarantee Bank & Trust Co. (1962), 26 Ill. 2d 123, 129-30, 186 N.E.2d 41, 45.) The application of the doctrine of laches to section 255 would not adversely affect the statute’s purpose. Additionally, we observe that generally a party who challenges the title to real estate must be diligent in discovering facts which would invalidate the title and in applying for relief. Miller v. Siwicki (1956), 8 Ill. 2d 362, 365,134 N.E.2d 321, 323.

We cannot accept plaintiffs’ contention that to allow the doctrine of laches to apply to proceedings brought under section 255 of the Revenue Act of 1939 would result in a total bar to recovery of real estate thereunder since this section applies only to tax deeds issued on or prior to September 1, 1951, and, therefore, the time element would dictate that laches would apply in every case. This assertion ignores the fact that time alone is not the controlling factor in determining whether the doctrine of laches is applicable. People ex rel. Casey v. Health & Hospitals Governing Com. (1977), 69 Ill. 2d 108, 114-15, 370 N.E.2d 499, 502.

Having concluded that the defense of laches is available to the defendants in this case, we must now consider whether the plaintiffs are guilty of laches. Plaintiffs apparently contend that the defense of laches is not available to defendants under the evidence because section 6 of the Limitations Act requires that defendants must actually possess the mineral estate by undertaking the removal of the minerals from the real etate. Plaintiffs argue that since the evidence establishes that no attempt was made to remove the minerals, defendants cannot claim title. See Pickens v. Adams (1955), 7 Ill. 2d 283, 131 N.E.2d 38.

We note at the outset that defendants asserted in the trial court that their claim was based upon section 7 of the Limitations Act, not section 6. However, regardless of which of these sections of the Limitations Act is involved, the possession rule relied upon by the plaintiff is applicable. (Failoni v. Chicago & North Western Ry. Co. (1964), 30 Ill. 2d 258, 195 N.E.2d 619; Payne v. Williams (1980), 91 Ill. App. 3d 336, 414 N.E.2d 836.) However, we reject plaintiffs’ assertion that the failure of defendants to actually possess the minerals in question controls the instant case. Again, our supreme court’s decision in Pyle is on point. There, as here, the question arose as to whether the tax purchaser took the requisite possession of the mineral estate so as to perfect title under the Limitations Act. The supreme court noted that the trial court did not pass upon this issue but rendered its decision solely upon the doctrine of laches; the court then held that the application of this doctrine does not depend upon compliance with the provisions of the Limitations Act but rather depends upon the equities as presented by the circumstances. (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 551-52, 147 N.E.2d 341, 343-44.) The court there stated:

“What facts will combine to constitute laches is to be determined in the light of the circumstances of each case; however, it is pointed out in 19 Am. Jur., Equity, sec. 498, that a suit is held to be barred on the ground of laches or stale demand ‘where and only where’ the following facts are disclosed: (1) Conduct on the part of the defendant giving rise to the situation of which complaint is made and for which the complainant seeks a remedy; (2) delay in asserting the complainant’s rights, the complainant having had notice of knowledge of defendant’s conduct and the opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit, and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant or the suit is held not to be barred.” (12 Ill. 2d 547, 553, 147 N.E.2d 341, 344.)

The court in Pyle then stated that it has long been recognized that “more than ordinary promptness is required of a claimant if the property involved is of a speculative or fluctuating character [citations] and, because oil and mining property is of such a specially precarious nature and is exposed to the utmost fluctuations in value, [the courts] have held there is no class of property in which laches is more relentlessly enforced. [Citations.]” Pyle v. Ferrell (1958), 12 Ill. 2d 547, 553-54, 147 N.E.2d 341, 343-44.

In weighing the equities in the instant case, we first note that Walter W. Williams’ affidavit for tax deed establishes that as the assignee of the tax sale certificate of purchase, he sought to notify the owners of the property and that he published notice of the expiration of the time of redemption. We note, further, that the trial testimony establishes that at the time the notice was published, Robert A. Pro-well, the owner of the mineral rights, lived in Benton. In addition, the tax deed under which defendants claim title was a matter of public record since 1947, yet plaintiffs brought no legal action until 1979, about 30 years later. We find that plaintiffs, like the appellants in Pyle, are chargeable with constructive notice of the public records since there is no indication in the record that defendants herein were guilty of any act of deception to prevent suspicion or inquiry. “The test is not what the appellant knows, but what he might have known by the use of the means of information within his reach with the vigilance the law requires of him. [Citations.]” (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 554, 147 N.E.2d 341, 345.) Here, the evidence shows that plaintiffs, although aware that the property was being taxed, totally failed to make any inquiry regarding the property’s tax status. One of the plaintiffs, Zella E Bays, testified that in 1961 she saw a notice published in the newspaper that the property was on the delinquent tax rolls but still made no attempt to search the records. Furthermore, the record indicates that both plaintiffs who testified, Zella F. Bays and Harold Prowell, live in Benton, Illinois, where the county seat is located. Such proximity to the public records is a further indication that plaintiffs failed to exercise ordinary prudence. Pyle v. Ferrell (1958), 12 Ill. 2d 547, 554,147 N.E.2d 341, 345.

We further note that both plaintiffs who testified at trial said that they knew of defendants’ adverse claim since the mid-1970’s but waited a number of years before filing their lawsuit in 1979. Even more significant is the fact that plaintiffs did not tender the payment required under section 255 of the Revenue Act of 1939 until the day before their suit to quiet title was set for hearing. We conclude that there is evidence that the plaintiffs are chargeable with want of due diligence as required by Pyle v. Ferrell.

Finally, in applying the doctrine of laches, we may consider the fact that defendants have incurred risks and obligations which would make it inequitable to allow plaintiffs to redeem their land. (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 555, 147 N.E.2d 341, 345.) In'this case, as in Pyle, the parties claiming under the tax title have entered into an oil and gas lease and have incurred other contractual obligations which would work a hardship upon them if the doctrine of laches were not applied.

For the foregoing reasons, we affirm the judgment of the circuit court of Franklin County and stress, as the court did in Pyle, that “[o]ur conclusion *** must be considered as being the result of the circumstances peculiar to this case, and not to represent a view that laches of an owner will in all instances serve as a defense to those claiming under tax deeds.” Pyle v. Ferrell (1958), 12 Ill. 2d 547, 556, 147 N.E.2d 341, 346.

Affirmed.

JONES and HARRISON, JJ., concur.


text:
    MIDLAND SUPPLY COMPANY, INC., Plaintiff and Counterdefendant-Ap-pellee, v. EHRET PLUMBING & HEATING COMPANY, Defendant and Counterplaintiff-Appellant.
    Fifth District
    No. 81 — 446
    Opinion filed August 5, 1982.

      Pessin, Baird & Wells, of Belleville (Stuart I. Pessin, of counsel), for appellant.
    Bruce S. Vick, of Belleville, for appellee.
   PRESIDING JUSTICE EARNS

delivered the opinion of the court:

Plaintiff, Midland Supply Company, Inc., brought an action in the circuit court of St. Clair County against defendant, Ehret Plumbing & Heating Co., Inc., seeking to recover the balance due on a contract for the sale of a boiler. Defendant denied liability and filed an amended counterclaim for damages sustained as a result of plaintiff’s breach of warranties arising from the sale of two other boilers. After a bench trial, the court entered judgment in favor of plaintiff on the complaint in the amount of $3,304.95 and in favor of plaintiff on defendant’s counterclaim. Defendant appeals.

The following issues are raised on appeal: (1) whether there were implied warranties of merchantability and fitness for a particular purpose arising from the sale of the boilers; (2) whether the evidence established that such warranties were breached because of the initial defects in the boilers; (3) whether defendant’s labor costs were an element of damages if the warranties were breached; and (4) whether defendant proved that the subsequent failure of one of the boilers was caused by some defect of that boiler.

Plaintiff is a wholesale distributor of heating and plumbing supplies. Among the products that plaintiff sells are boilers manufactured by Weil-McLain, Inc. Defendant is a heating and plumbing contractor. In September 1975, defendant orally ordered from plaintiff a large boiler and a small boiler manufactured by Weil-McLain, Inc. The boilers were to be installed in the church and rectory, respectively, at St. Peter & Paul Church located in Waterloo, Illinois. On October 1, 1975, the boilers were delivered to the jobsite and, thereafter, paid for by defendant.

No disclaimers or limitations of warranties were discussed by the parties at the time defendant ordered the boilers. Witnesses for plaintiff testified that a manufacturer’s warranty card along with an instructions manual were delivered to defendant in the crates that contained the boilers. Plaintiff was not aware of these warranty terms. The manufacturer’s warranty card contained an express warranty that guaranteed for a period of one year after installation any parts found to be defective in manufacture. It also contained a limitation of remedies provision which excluded claims for labor in replacing defective parts and other claims for consequential damages. Finally, the disclaimer of warranties provision provided the following:

“THIS WARRANTY IS IN LIEU AND INSTEAD OF ANY OTHER WARRANTY, EXPRESSED OR IMPLIED, AND EXCEPT AS ABOVE PROVIDED, THERE ARE NO WARRANTIES OF FITNESS OR MERCHANTABILITY.”

In November 1975, defendant installed the small boiler in the rectory and then tested it to determine whether it was in working order. Defendant discovered that the boiler would not hold water because of a hole in one section. Defendant then contacted plaintiff who supplied replacement sections for the boiler without charge. In January 1976, plaintiff again supplied replacement sections for-the small boiler. Grant Ehret, defendant’s president, testified that John Jay McKinney, president of plaintiff corporation, told him that it would reimburse defendant for the labor costs incurred in replacing the sections. McKinney denied that he made such a statement. The total labor cost in repairing the small boiler was $792; this sum was not paid by plaintiff.

In the fall of 1976, defendant installed the large boiler in the church and tested it to determine whether it functioned properly. Defendant found that two or three sections were leaking and contacted plaintiff to obtain replacements. Ehret testified that the replacement parts were sent by plaintiff without charge and that McKinney again stated that his company would pay for labor. Ehret testified that the labor cost was $1,302.72; this amount was not paid by plaintiff.

In November 1977, the large boiler failed and defendant immediately notified plaintiff. That day, plaintiff delivered an identical boiler to defendant. Thereafter, plaintiff billed defendant for $3,340.95, the purchase price of the replacement boiler, which defendant refused to pay. The labor cost incurred by defendant in replacing the boiler was $3,505.86.

At trial, conflicting evidence was presented as to the cause of the boiler’s failure. Ehret testified that it had modified the boiler in that it changed the terminal connections on the low-water cutoff by installing a relay on the side of the boiler. Ehret further testified that the gas valve was defective in that it was stuck in an open position and that the low-water cutoff failed to supply water to the boiler. According to Ehret, the constant supply of heat coupled with the lack of water caused the boiler to overheat and crack. He further stated that the modification was unrelated to the failure and that the same modification was performed on the replacement boiler currently in operation. In his opinion, the defective gas valve was the main cause of the failure.

Thomas Behrmann, owner of R. A. Behrmann & Associates, a manufacturer representative for Weil-McLain, Inc., testified that he examined the large boiler on November 14, 1977. Behrmann testified that although the gas valve stuck, the boiler should not have overheated because other parts of the system should have continued to supply water to the boiler. In Behrmann’s opinion, the boiler failed because the relay between the low-water cutoff on the boiler and the pump on the boiler feed unit failed to operate. He further stated that this control was not in accordance with the instructions manual supplied by the manufacturer. Behrmann testified that his company charged plaintiff for the replacement boiler because the failure occurred beyond the warranted time period and was not caused by a manufacture defect.

On appeal, defendant argues that the sale of the two boilers gave rise to implied warranties of merchantability and fitness for a particular purpose under the Uniform Commercial Code. Further, defendant contends that these warranties were not disclaimed by the manufacturer’s warranty provisions because the provisions were not submitted to defendant until the delivery of the boilers, and, therefore, were not a part of the sales contract.

At the outset, we note that, there is a distinction between an implied warranty of merchantability and an implied warranty of fitness for a particular purpose and conclude that defendant failed to prove that the latter arose from the parties’ conduct.

Section 2 — 315 of the Uniform Commercial Code provides that where a seller knows of the particular purpose for which goods are required and the buyer relies on the seller’s skill or judgment in selecting the goods, an implied warranty that the goods are fit for such a purpose arises. (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 315; Siemen v. Alden (1975), 34 Ill. App. 3d 961, 341 N.E.2d 713.) In this case, plaintiff knew at the time of contracting that defendant purchased the boilers to be installed as the heating systems for the church and rectory. Defendant did not prove, however, that it relied on the skill and judgment of plaintiff in purchasing the boilers. Defendant told plaintiff that it wanted two gas-fired boilers, one for water and one for steam. It also gave plaintiff the technical specifications which included the radiation of the buildings and the size of the boilers then in operation. Plaintiff related to defendant the various sizes and prices of the boilers that it sold. The record supports the inference that defendant, an experienced heating and plumbing contractor, knew the type of boiler it planned to purchase and merely inquired as to the various sizes and prices. Therefore, we conclude that defendant failed to prove that the parties’ dealings gave rise to an implied warranty of fitness for a particular purpose.

Section 2 — 314 of the Uniform Commercial Code creates an implied warranty of merchantability in every contract for the sale of goods where the seller is a merchant engaged in selling such goods, unless the warranty is excluded or modified. (Ill. Rev. Stat. 1979, ch. 26, pars. 2 — 314, 2 — 316; Burrus v. Itek Corp. (1977), 46 Ill. App. 3d 350, 360 N.E.2d 1168.) The parties do not dispute that a contract for the sale of goods was entered into and that plaintiff was a merchant engaged in the sale of boilers, the subject matter of the contract. The issue, then, becomes whether the warranty was disclaimed by the manufacturer’s warranty provisions. We find that Gideon Service Division v. Dunham-Bush, Inc. (1980), 80 Ill. App. 3d 633, 400 N.E.2d 89, is controlling, and, therefore, conclude that the implied warranty of merchantability was not disclaimed by the manufacturer’s warranty provisions.

In Gideon Service Division, the plaintiff, a heating systems repair company, filed an action to recover damages resulting from a breach of an implied warranty for merchantability of a furnace component purchased from defendant, a manufacturer and seller of furnaces. The complaint alleged that plaintiff orally ordered a furnace unit from defendant and later installed the unit at a customer’s business. It further alleged that despite several repairs, the unit failed to function properly. The trial court granted defendant’s motion to dismiss the complaint based on its express disclaimer of the warranty. The warranty disclaimer was written on the reverse side of a sales order allegedly sent to plaintiff about one month after the order was placed. On appeal, the court reversed the trial court’s judgment and held that defendant’s motion to dismiss was not sufficient to establish that defendant timely disclaimed the warranty. The court noted that there was no assertion that any disclaimer was made at the time plaintiff ordered the furnaces, the written disclaimer materially altered plaintiff’s understanding of the contract and there was no indication that plaintiff knew of or assented to the terms of the disclaimer. The court concluded that defendant’s attempt to disclaim the implied warranty by means of the sales order submitted at the time the goods were delivered was insufficient.

As in Gideon Service Division, the manufacturer’s warranty provision here was submitted to defendant at the time the boilers were delivered. In addition, no similar disclaimers were made by plaintiff at the time defendant ordered the boiler. The plaintiff is relying on the manufacturer’s disclaimer of warranty, not its own, which may only be effective between itself, as a buyer, and the manufacturer as seller. (Nagle v. General Merchandising Corp. (1978), 58 Ill. App. 3d 344, 374 N.E.2d 1137.) Defendant was unaware of the terms of the disclaimer at that time. Clearly, defendant cannot be said to have assented to the warranty terms which materially altered the sales contract. We conclude that the implied warranty of merchantability was not waived by the manufacturer’s disclaimer.

The next issue is whether defendant proved that the implied warranty was breached because of the initial defects in the boilers.

Section 2 — 314(2)(c) of the Uniform Commercial Code provides, in pertinent part, the following:

“(2) Goods to be merchantable must be at least such as
* * *
(c) are fit for the ordinary purposes for which such goods are used; ***.” (Ill. Rev. Stat. 1979, ch. 26, par. 2-314.)

Defendant purchased the boilers for the purpose of operating as the heating systems in the church and rectory. It was undisputed that both the small and large boilers were defective and failed to function properly in that several sections of the boilers leaked and had to be replaced. Therefore, we conclude that defendant proved that the warranty was breached as regards the initial defects in the boilers.

Section 2 — 714(2) of the Uniform Commercial Code provides that the first element of damages recoverable by the buyer is the difference between the value of the goods accepted and the value they would have had as warranted. (Ill. Rev. Stat. 1979, ch. 26, par. 2— 714(2).) It has been recognized that the practical measure of damages in determining the difference between actual value and warranted value is the cost to repair the goods to the quality warranted. (Griese v. Cory Pools, Ltd. (1978), 58 Ill. App. 3d 256, 373 N.E.2d 1383.) In addition, section 1 — 106 of the Uniform Commercial Code states that the remedies provided to the aggrieved party shall be liberally administered in order to restore that party to as good a position as if the other party had fully performed. (Ill. Rev. Stat. 1979, ch. 26, par. 1— 106.) Therefore, we find that the labor costs incurred by defendant in installing the replacement parts because of the defective boiler sections are properly included as an element of damages.

The final issue raised on appeal is whether defendant proved that the subsequent failure of the large boiler was caused by a defect in manufacture. It is established that whether an implied warranty has been breached is a question of fact, and such determination will not be set aside on review unless it is against the manifest weight of the evidence. It was undisputed that the gas valve was stuck in an open position and that the boiler failed in that it overheated and cracked. The parties did dispute what caused the boiler to overheat. Defendant stated that the boiler overheated because of the defective gas valve. Plaintiff presented testimony that regardless of the condition of the gas valve the boiler would not have overheated if it had been supplied continuously with water. The reason that water was not supplied, according to plaintiff, was because of the faulty relay that connected the low-water cutoff to the boiler feed unit. This relay was a modification of the boiler and contrary to the recommendations of the manufacturer. Viewing the evidence as a whole, and considering that under the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 607(4)) the burden is on the buyer to establish any breach of warranty with respect to the goods, we cannot conclude that the finding that the failure of the large boiler was not a breach of warranty, implicit in the judgment of the trial court, was against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed in part, reversed in part and remanded.

Affirmed in part; reversed in part; remanded.

KASSERMAN and HARRISON, JJ., concur.