author: JUSTICE O’CONNOR

text:
    ILLINOIS CENTRAL GULF RAILROAD, Plaintiff-Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 84—0275
    Opinion filed March 25, 1985.
    Rehearing denied April 23, 1985.
    Winston & Strawn, of Chicago (R. Lawrence Storms and Edward J. Wendow, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Thomas M. Hamilton, and Fritz K. Huszagh, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

The present action concerns an insurance contract purchased from defendant, Continental Casualty Company (Continental) by plaintiff, Illinois Central Gulf Railroad (ICG) in which Continental promised to indemnify ICG employees who suffered accidental death or serious injury in specified situations. When an employee of ICG was accidently killed and ICG was subsequently forced to pay death benefits to the heirs of the employee under the terms of a pre-existing collective bargaining agreement, Continental denied liability on the ground that the employee’s death was not covered by the policy. ICG then brought a declaratory judgment action against Continental, alleging breach of contract. Continental moved to dismiss the action on the ground it was barred by a contractual limitation clause which provided that “[n]o action *** shall be brought to recover on this policy *** unless brought within three years from the expiration of the time within which proof of loss was required by the policy.” The trial court sustained Continental’s motion and dismissed ICG’s action. ICG now appeals.

ICG contends: (1) that the contractual limitation of actions clause is ambiguous with respect to its action; (2) that even if the clause is unambiguous, its action was filed within the requisite time period and (3) that Continental waived its limitation of actions and cannot revive it.

The record reveals that on February 10, 1971, plaintiff ICG entered into a bargaining agreement with labor organizations representing some of its employees, including members of the Brotherhood of Maintenance of Way (BMW). Under the terms of the bargaining agreement, ICG agreed to pay accident benefits when these employees were killed or injured while “riding in, boarding, or alighting from off-track vehicles authorized by [ICG] and are (1) deadheading under orders or (2) being transported at [ICG’s] expense.” Nothing in the agreement required ICG to provide the benefits through an insurance policy; the benefits were strictly a potential liability of the employer.

ICG subsequently purchased a group accident insurance policy from Continental in which Continental agreed with ICG, the policyholder, to insure “insured persons” (members of various labor organizations who were employees of ICG) and promised to pay for loss resulting from injury to the extent therein limited and provided. The policy defined “injury” as bodily injury. The policy provided for $100,000 in accidental death benefits to be paid to the insured employees of ICG where death occurred as a result of an “injury sustained in consequence of riding as a passenger or operator in or on, boarding or alighting from any off-track land conveyance for the purpose of deadheading under orders or being transported at the [policyholder’s] expense other than as an operator or member of the crew in any conveyance operated for the carriage of passengers for hire.” The contract also included a “limitation on actions” clause which stated:

“No action at law or in equity shall be brought to recover on this policy *** unless brought within three years from the expiration of the time within which proof of loss is required by the policy.”

Regarding proof of loss, the policy provided that “[i]n the case of claim for any [loss other than loss of time from disability], written proof of such loss must be furnished to the Company within 90 days after the date of such loss.”

On October 30, 1978, the collective bargaining agreement was amended to increase the death benefits from $100,000 to $150,000. The benefits under ICG’s policy with Continental were amended so that they conformed with the labor agreement.

On March 25, 1980, Gary Martin, an employee of ICG and a member of BMW, was killed when a truck struck the backhoe he was operating while going from one work site to another. ICG presented a claim under the policy on behalf of Martin’s heirs. On June 2, 1980, Continental rejected the claim, asserting that Martin was not deadheading when he was killed. Rather than proceeding against the insurance company under the policy, the heirs of Gary Martin opted for an alternative remedy available under the collective bargaining agreement and Federal labor laws. The BMW, on behalf of Martin’s heirs, instituted a grievance procedure pursuant to the Railway Labor Act (45 U.S.C. sec. 153 et seq. (1976)) which established the “Railroad Adjustment Board” for settling “minor disputes” between a railroad and its employees. On February 26, 1982, the board ordered ICG to pay $150,000 (less appropriate setoffs) to Martin’s heirs, holding that Martin’s death came within the terms of the bargaining agreement because he died while he was riding in an off-track vehicle and was being transported at ICG’s expense. Following the award, ICG again sought payment under the policy, but Continental denied the claim again on March 31,1982.

On August 19, 1983, ICG brought this declaratory judgment action. Continental moved to dismiss the action on the ground that ICG’s action was barred by the “limitation on actions” clause since its loss was sustained on the date Martin was killed, which was more than three years (plus the 90-day “proof of loss” period) prior to the initiation of suit. The trial court sustained Continental’s motion and dismissed ICG’s action.

The only issue we need determine on appeal is whether the trial court erred in dismissing ICG’s action. ICG maintains that the clause stating the contractual limitation period is ambiguous or, in the alternative, it does not apply to ICG’s action, but only to actions brought on the policy by employees and personal representatives.

In reviewing a trial court’s order granting a defendant’s motion to dismiss a complaint, we must regard ICG’s well-pleaded facts and their reasonable inferences as true. Clear-Vu Packaging, Inc. v. Na tional Union Fire Insurance Co. (1982), 105 Ill. App. 3d 671, 674, 434 N.E.2d 365, appeal denied (1982), 91 Ill. 2d 567.

In interpreting an insurance policy, the court’s primary concern is to effectuate the intent of the parties as expressed by the contract. (State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 419 N.E.2d 601.) “Insurance policies should be construed as a whole, giving effect to every part, as far as it is possible.” (Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill. App. 3d 115, 121, 294 N.E.2d 7, appeal denied (1973), 53 Ill. 2d 608.) Any ambiguity in an insurance policy is construed against the insurer, as the insurer drafted the policy. Kirk v. Financial Security Life Insurance Co. (1978), 75 Ill. 2d 367, 389 N.E.2d 144.

The Illinois Supreme Court has pointed out: “An insurance policy is not to be interpreted in a factual vacuum; it is issued under given factual circumstances. What at first blush might appear unambiguous in the insurance contract might not be such in the particular factual setting in which the contract was issued.” (Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 336, 312 N.E.2d 247.) In determining if an ambiguity exists, the court should consider the subject matter of the contract, the facts surrounding its execution, the situation of the parties and the predominate purpose of the contract which is to indemnify the insured. Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 400 N.E.2d 921; State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 430 N.E.2d 641, appeal denied (1982), 91 Ill. 2d 565.

In the case at bar, Continental characterized the insurance policy in question as a “group accident indemnity policy” under which ICG was the policyholder who paid the premiums. Employees of ICG who were members of named labor organizations were the insured persons under the policy. Continental agreed to pay benefits for losses resulting from bodily injuries suffered by these employees. All indemnities were payable to the employees or their beneficiaries upon proof of the occurrence for which the claim is made. There is no provision which indicated that ICG was an insured person under the policy or that it was entitled to collect benefits. There was nothing in the policy to indicate that benefits would be paid to ICG if it was found liable to an injured employee by reason of the collective bargaining agreement or for any other reason.

Courts have recognized that:

“Unlike the ordinary policy situation where the policyholder is also the insured, the group insurance policyholder is the employer who merely derives certain incidental good will benefits in his relationship with his employees by virtue of the policy, but he is neither the insured nor the beneficiary of the coverage which the contract of insurance undertakes to provide. It is, instead, the employees who are the insureds and who directly benefit under the terms of the policy. *** Since the employer-policyholder acquires only peripheral benefits, it is to be expected that he will be most concerned with obtaining the insurance at the lowest possible cost. The employee insureds, on the other hand, will be more concerned with the protective aspects of the policy.” (Fidelity & Casualty Co. v. Metropolitan Life Insurance Co. (Sup. Ct. 1963), 42 Misc. 2d 616, 628-29, 248 N.Y.S. 2d 559, 570-71.)

In the case at bar, it is the employer who is concerned with the protective aspects of the policy. Neither our research nor that of the parties has uncovered any case which deals with rights of the employer to enforce the protective provisions of this type of group insurance.

Group insurance contracts in which the employee is the insured have been construed as creating a contract between the employer and the insurer for the benefit of the insured employees and not for the benefit of the one procuring the group policy. (44 Am. Jur. 2d Insurance sec. 1842 (1982).) Courts in other jurisdictions have held that an employer may not be the real party in interest in suits for the disbursement of benefits under such a policy. (See Norby v. Bankers Life Co. (1975), 304 Minn. 464, 231 N.W.2d 665; Key Life Insurance Co. v. Taylor (Tex. Civ. App. 1970), 456 S.W.2d 707, 709; Mutual Benefit Health & Accident Association v. Bullard (1960), 270 Ala. 558, 565-66, 120 So. 2d 714, 721-22; see also 44 Am. Jur. 2d Insurance sec. 1850 (1982).) Illinois law is unclear on this point. (See Mayfair Construction Co. v. Security Insurance Co. (1977), 51 Ill. App. 3d 588, 366 N.E.2d 1020.) Therefore, the parties could not have incorporated industry custom or a common understanding regarding the rights of a policyholder under this type of group insurance as a means to clarify ICG’s rights under the limitation clause. (See Nabor v. Occidental Life Insurance Co. (1979), 78 Ill. App. 3d 288, 396 N.E.2d 1267; Caster v. Motors Insurance Corp. (1961), 28 Ill. App. 2d 363, 171 N.E.2d 425.) But, regardless of the exact perimeters of a policyholder’s rights under a group policy, ICG is clearly a primary contracting party to this group insurance contract and, as such, retains rights under its contract with Continental by virtue of its payment of premiums in consideration for Continental’s promise to provide insurance for its employees. (See 4 A. Corbin, Contracts sec. 812 (1951).) The fact remains that the right of ICG to enforce the protective provisions of the policy is not clearly spelled out in the insurance contract. Given the legal uncertainty surrounding the position of a policyholder of this type of group insurance and the lack of clarity regarding ICG’s rights under the policy, we believe that an honest ambiguity exists concerning the impact of the contractual limitation clause on ICG’s right to enforce the protective provisions of the policy.

Continental maintains that the limitation clause is clear and must be enforced according to its plain language. However, an analysis of the plain language of the clause demonstrates its ambiguity. The clause limiting the time in which actions may be brought refers to actions “brought to recover on this policy.” However, ICG’s action is not an action to recover on the policy. An action on a promise to provide insurance may be distinct from an action on an insurance policy. (Irvin v. Metropolitan-Hibernia Fire Insurance Co. (1928), 247 Ill. App. 562, 566; see also De Luxe Motor Stages v. Hartford Accident & Indemnity Co. (1967), 88 Ill. App. 2d 188, 193, 232 N.E.2d 141; Lawrence v. Massachusetts Bonding & Insurance Co. (Sup. Ct. 1916), 160 N.Y.S. 883, 895.) Moreover, contractual limitation periods generally do not apply to “different or collateral actions involving, in some measure, the policy proceeds or growing out of the insurer’s duties to the insured.” (Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 309, 393 N.E.2d 1223, appeal denied (1979), 79 Ill. 2d 620; see also 20A Appleman, Insurance Law & Practice sec. 11603 (1980).) Inasmuch as ICG is not seeking policy proceeds and is not an insured, its action is collateral to an action for the policy proceeds or growing out of the insurer’s duties to the insured.

In the case at bar, ICG is not attempting to recover on the policy because the death benefits are payable under the policy to ICG’s employees, who are the insured persons and the only parties entitled to collect these benefits. The limitation in the policy is by its plain terms intended to cover an action for the policy proceeds. But Continental is not faced with a claim made on behalf of the deceased employee for the indemnification due under the policy. ICG paid the claim of the deceased employee under the terms of its collective bargaining agreement. ICG is suing in its own right for damages caused by Continental’s alleged breach of its promise to provide insurance coverage to ICG’s employees and not for the benefits enumerated in the policy. Inasmuch as the limitation clause applies only to actions brought to recover indemnification due to insured employees under the policy, while, on the contrary, this action is brought to recover damages for breach of the underlying promise to provide insurance coverage, the present action is not clearly subject to any limitation provided in the policy.

In addition, Continental obviously felt some confusion regarding ICG’s right of action under the policy. At one time prior to the present action, Continental “indicated that the suit might have to be filed by the individual to be valid.” Continental has since changed its position, but this merely highlights the uncertainty surrounding ICG’s rights with respect to the policy.

Continental also argues that ICG may not recover because the “loss” which ICG now claims is not a loss covered by the policy. Even if true, it is irrelevant since ICG is suing as a party to the insurance contract and not as an insured under this policy. Authorities have recognized that the liability of the insurer on its contract of insurance is distinct from the liability which may arise by virtue of its breach of that contract. (18 Couch on Insurance sec. 74.98 (2d ed. 1983); see also Bartkowski v. Commercial Casualty Insurance Co. (1934), 275 Ill. App. 497.) Moreover, Continental’s argument that the loss which ICG now claims is not a loss covered by the policy bolsters our conclusion that ICG’s action is not an “action to recover on this policy.”

For the above-stated reasons, we find the clause limiting the time within which actions may be brought to recover on the policy to be ambiguous. Consequently, it must be construed against Continental, the insurer and drafter of the policy. (Kirk v. Financial Security Life Insurance Co. (1978), 75 Ill. 2d 367, 389 N.E.2d 144.) We hold that ICG’s action is not barred by the “limitation on actions” clause in the policy.

In its complaint for declaratory judgment, ICG asked the court to declare that Continental had breached its contract with ICG. While it is within the power of the court to make a binding declaration of the parties’ rights (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 701(a)), we cannot make such a determination based on the record now before us. We believe that a hearing should be held in order to determine the parties’ intentions as to the coverage of the policy and whether Continental breached its contract with ICG. Therefore, the judgment of the trial court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

McGLOON, P.J., and BUCKLEY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WHITE

license: Public Domain

text:
    ARTHUR BRADFORD, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (3rd Division)
    No. 83—2136
    Opinion filed March 20, 1985.
    Ray & Rizowy and Larry L. Fleischer & Associates, both of Chicago (Allen L. Ray and Kenneth J. Fleischer, of counsel), for appellant.
    James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan and Julie Elena Brown, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Arthur Bradford, brought an action against defendant, city of Chicago, to recover damages for personal injuries sustained when the right front wheel of the Chicago Transit Authority (CTA) bus he was driving allegedly went into a pothole, causing him to bounce off the seat and eventually fall to the floor, thereby suffering serious back injury. The circuit court of Cook County entered judgment on the verdict of the jury finding for defendant and denied plaintiff’s post-trial motion for judgment notwithstanding verdict or in the alternative for a new trial. Plaintiff appeals.

On appeal plaintiff contends in the alternative that: (1) he met the Pedrick standard (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504), and his motion for judgment notwithstanding verdict should have been granted; (2) the jury’s verdict is against the manifest weight of the evidence; (3) defendant engaged in improper and prejudicial trial tactics which deprived plaintiff of a fair trial; (4) the trial court committed errors regarding jury instructions; and (5) the combination of errors at trial demonstrates the need for a new trial.

The evidence adduced at trial follows. William Smith, a retired employee of Illinois Bell Telephone Company (Illinois Bell), testified that in the spring of 1976 he was a conduit patrolman for Illinois Bell. His duties consisted of advising utility companies or contractors engaged in construction work of the location of Illinois Bell telephone lines and patrolling the lines. Mr. Smith was assigned to the Stewart District, which included the area of 87th Street at about Holland Road. Additionally, Mr. Smith travelled 87th Street in commuting to work daily. Eighty-seventh Street is spanned by three viaducts in the vicinity of Holland Avenue. Viaduct No. 2 is wide and low. During the winter of 1975-76, and the late spring and early summer of 1976, 87th Street, from the first viaduct to the third, was full of holes. In the eastbound lanes underneath viaduct No. 2, the holes were six to eight inches deep. The asphalt was gone in spots, and rails of the old streetcar tracks could be seen. On cross-examination, Mr. Smith testified that he never measured the Illinois Bell manholes or the potholes. Estimating the depth of depressions was a matter of experience, quickly learned.

Fred Arnold, an assistant manager in charge of conduit at Illinois Bell, testified that he was assigned to the south side of Chicago, which included 87th Street at approximately Holland Road. He traveled 87th Street near Holland Road at least once a day, sometimes five or six times a day. In the early spring and summer of 1976, the pavement along 87th Street from the first viaduct to the third was rough and rather bumpy. Viaduct No. 2 was low and pretty dark. Around April 7, 1976, Mr. Arnold received a work order to inspect two manholes on 87th Street near Holland Road and estimate the need for repair. He inspected the manholes on April 8, 1976. During the inspection Mr. Arnold had occasion to walk through viaduct No. 2. He noticed broken pieces of asphalt and potholes under the viaduct. He estimated the depth of the potholes at eight to 12 inches. The sewer covers in the area had dropped three to four inches. The asphalt was missing in places, exposing the brick work underneath. Between April and July 1976, Mr. Arnold did not notice any changes in the condition of the street.

Plaintiff testified that in the spring of 1976 he was employed by the CTA as an extra-board bus driver. The extra-board drivers are daily assigned the routes of absentee bus drivers. On the morning of May 10, 1976, plaintiff was assigned the 87th Street bus route and left the bus station at approximately 6:30 a.m. In the vicinity of Holland Street, the 87th Street route travels underneath three viaducts. The first viaduct is high, the second is low and dark and the third is higher and smaller than the second. Plaintiff had previously been assigned to the 87th Street route about four or five times, with the last assignment possibly being in the winter of 1975. He expected a bumpy ride and therefore reduced his speed to 20 miles per hour. As he went through the second viaduct, the right front wheel of the bus went into a deep hole. He was thrown out of the driver’s seat, landed first on the seat, which collapsed, and then on the floor of the bus. The bus rolled down 87th Street, went under the third viaduct, hit another bump and came to rest on the dirt curb. Plaintiff felt pain in his lower back and lay on the floor approximately 15 minutes because he could not move. Plaintiff then got up, inspected the bus, saw no damage, decided not to report the accident and continued with the route. Plaintiff returned to the bus station at approximately 7:45 a.m.

During a regularly scheduled break of about five hours, plaintiff went to Chicago State University, where he was a student in physical education, to use the steam and swimming facilities to ease his back pain. In the school locker room plaintiff found that he was unable to untie his shoes to disrobe. Plaintiff left the school and returned to work, where he took two aspirins and lay on a couch. Later that day plaintiff drove a second route, at the completion of which he was unable to get out of his seat and turn the bus in. Plaintiff then informed his supervisor of the accident and was taken to the emergency room of St. Bernard Hospital. That same night plaintiff was transferred to Englewood Hospital, where he remained until May 25,1976.

Dr. Richard O’Young, an orthopedic surgeon, testified that he saw plaintiff on May 10, 1976, at St. Bernard Hospital. Plaintiff was then transferred to Englewood Hospital, where he examined him. Plaintiff complained of acute lower back pain and gave a history of having been injured when the bus he was driving fell into a hole. X rays taken of plaintiff’s lower back were negative for bone involvement. Dr. 0’Young started plaintiff on a conservative regimen of treatment consisting of pain medication, muscle relaxants, anti-inflammatory medication, a bed board and traction. Plaintiff obtained some relief from the treatment but was not cured. Residual symptoms persisted. Plaintiff had difficulty walking and crutches were prescribed for him. Plaintiff was released after 15 days at the hospital. Thereafter, plaintiff received physical therapy treatment as an outpatient. Dr. O’Young diagnosed plaintiff’s condition as low back pain syndrome with possibility of a herniated disc.

On July 6, 1976, plaintiff was admitted at St. Bernard’s Hospital complaining of a tingling sensation in the back and in the foot, pain and spasm of the paravertebral muscles. An examination by Dr. O’Young revealed tenderness and spasm along the dorsal and lumbar vertebrae and restriction of spinal movements. Plaintiff was discharged from the hospital on July 13, 1976. Plaintiff continued consultation with Dr. 0’Young until October 1976.

Dr. Allen Hirschtick, an orthopedic surgeon, testified that he examined plaintiff on April 27, 1978. Plaintiff complained of pain and stiffness of the lower back and wore a back support. During the course of examination Dr. Hirschtick noted localized tenderness over the lumbosacral junction (the area where the spine joins the pelvis), restriction of forward flexion, loss in the range of extension of the spine (bending backward) and obtained positive straight leg raising test results indicative of trouble in the lumbosacral junction area. Dr. Hirschtick diagnosed plaintiff’s condition as lumbar disc syndrome, meaning that plaintiff had the symptoms and findings of injury to one or more vertebral discs in the lumbar spine. The doctor’s diagnosis was confirmed by an X ray taken of plaintiff’s lumbosacral spine two days before trial which showed a narrowing of the disc space between the fifth lumbar vertebra and the sacrum and new bone growth in the area. These changes are the result of degeneration of the vertebral disc. Dr. Hirschtick further testified that plaintiff suffered a permanent disability amounting to 65% of the left leg and 50% of the right leg. Moreover, plaintiff would not be able to return to work as a bus driver because of pressure on the spine from prolonged sittings.

In response to a hypothetical question posed by plaintiff’s counsel, Dr. Hirschtick opined that there might be a causal connection between the injury and the way in which plaintiff described he was injured. The hypothetical question was expanded by defense counsel to include a “car accident in 1979 involving the same area of the person’s back, the same type symptoms as to the back pain — tingling in the legs.” Defense counsel then asked Dr. Hirschtick if the car accident in 1979 could have created the disc degeneration that showed up in the latest X rays of plaintiff’s spine. That question was never answered. On redirect examination, Dr. Hirschtick testified that a significant injury in 1979 could aggravate the problems found in 1978. However, when he saw plaintiff in 1978, the changes were permanent.

Gerald Kukowski, a CTA paymaster, testified that plaintiff was paid at a lower rate after the accident because plaintiff could only work as a CTA collector and not as a CTA bus driver.

We deal first with plaintiff’s contention that the trial court should have granted his post-trial motion for judgment notwithstanding verdict. We disagree. “[V]erdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) In the present case plaintiff testified that: he left the bus station at approximately 6:30 a.m.; the accident occurred at approximately 6:45 a.m.; he lay on the floor of the bus for approximately 15 minutes; he resumed the bus run and picked up more than the usual number of passengers due to the delay; the bus had a layover of seven minutes at the Chicago Vocational school; and he completed the run at approximately 7:45 a.m. Plaintiff further testified that on a normal day the 87th Street route lasts 30 minutes each way, with a seven-minute layover at the Chicago Vocational school. On cross-examination, plaintiff was impeached as to the length of time he lay on the floor of the bus after the accident. At trial plaintiff testified that he stayed immobile on the floor approximately 15 minutes. At his deposition in January 1979, plaintiff testified that he stayed on the floor approximately 20 to 25 minutes. Plaintiff was also impeached in these regards: the weather conditions on the day of the accident (at trial, cloudy; at deposition, as he came out from under the first viaduct, the sun came into his eyes and he saw a depression in the road); his familiarity with the bus route and street conditions (at trial, he was assigned the 87th Street run four or five times; at deposition, he had driven the route more than ten times before the accident); whether he exited the bus to check damages to the right front wheel (at trial, he held on the bus rail and looked out of the bus to the front wheel; at deposition, he got out of the bus to see if any damage was done to the bus); and his observations upon returning to the site of the accident (at trial, he saw a hole in the street with a metal grate at the bottom. The hole was approximately V-k feet deep and contained lots of debris; at deposition, he determined that he had hit a manhole, there were not potholes in the right hand lane). Further, plaintiff waited approximately 11 hours before reporting the accident. Lastly, we note that plaintiff was the sole witness of the accident. Upon the facts of the case, we cannot say that the evidence, when viewed in its aspect most favorable to defendant, so overwhelmingly favors plaintiff that no contrary verdict based on that evidence could ever stand.

We conclude that the trial court properly denied plaintiff’s motion for judgment notwithstanding verdict. We next determine whether certain trial tactics utilized by defense counsel were so prejudicial to plaintiff as to require a new trial.

During cross-examination, defense counsel asked plaintiff to examine a document which purported to be the trip sheet prepared by plaintiff on the day of the accident. A trip sheet is a schedule indicating the times a CTA bus driver arrives at certain locations along the bus route. The trip sheet shown plaintiff contained his name and badge number but was unsigned. Defense counsel then had plaintiff read the times indicated on the trip sheet, which showed that plaintiff arrived at each location along the route on schedule. Toward the end of the examination, plaintiff was asked whether the trip sheet shown him was a true copy of the original, and he replied no. Plaintiff pointed to contradictions in the trip sheet, denied that the handwriting was his, and informed counsel that another bus driver by the name of Bradford worked in the same CTA bus station. The trip sheet was not offered into evidence.

Plaintiff maintains that defense counsel’s use of the trip sheet during cross-examination constituted an attempt to impeach plaintiff’s testimony on direct examination that he lay on the floor of the bus for approximately 15 minutes after the accident, and defense counsel’s subsequent failure to call witnesses to complete said impeachment prejudiced plaintiff and necessitates a new trial. Defendant maintains that plaintiff has waived any error in the use of the trip sheet during cross-examination by failing to make a timely objection or motion to strike. Alternatively, defendant maintains that counsel’s use of the trip sheet was done in good faith and did not prejudice plaintiff.

We are of the opinion that defense counsel’s use of the trip sheet deprived plaintiff of a fair trial. We therefore consider the assignment of error despite plaintiff’s failure to object to the use of the trip sheet. Ryan v. Blakely (1979), 71 Ill. App. 3d 339, 389 N.E.2d 604; Blake v. Delhotel (1976), 39 Ill. App. 3d 725, 350 N.E.2d 880.

In Rigor v. Howard Liquors, Inc. (1973), 10 Ill. App. 3d 1004, 295 N.E.2d 491, defense counsel attempted to lay a foundation for impeachment of a witness by reading questions and answers from a deposition taken of the witness. The witness admitted coming in for the deposition, but his signature was not on the transcript. After the witness’ testimony, defendants advised the court that they were unable to call the court reporter who had attended the deposition, but could produce another reporter to verify the accuracy of the deposition transcript. The trial court, however, ruled that defendants were not required to make an offer of proof because of plaintiff’s failure to object to the use or authenticity of the deposition.

In reversing the lower court, the appellate court stated that “[t]he rule in Illinois regarding impeachment by a prior inconsistent statement is that, once counsel has laid a foundation for impeachment, he is under an obligation in law to offer proof of the allegedly impeaching statement.” (10 Ill. App. 3d 1004, 1008, 295 N.E.2d 491.) The court observed that “[t]he only exception to this rule occurs when the witness admits that he made the prior statement.” (10 Ill. App. 3d 1004, 1008, 295 N.E.2d 491.) The court further observed that “innuendoes involved in allegedly impeaching questions on a material issue are highly prejudicial.” 10 Ill. App. 3d 1004, 1009, 295 N.E.2d 491.

In the instant case, the trip sheet shown to plaintiff during cross-examination was unsigned. Further, plaintiff informed defense counsel that the trip sheet was not a true copy of the original. Plaintiff noted several contradictions in the trip sheet, stated that the handwriting was not like his own, and informed counsel that another driver by the name of Bradford worked in the same CTA station. In face of plaintiff’s denial, defense counsel failed to call witnesses to authenticate the document and complete the impeachment. Counsel was under an obligation in law to do so. Walker v. Maxwell City, Inc. (1983), 117 Ill. App. 3d 571, 581, 453 N.E.2d 917; Bailey v. City of Chicago (1983), 116 Ill. App. 3d 862, 864, 452 N.E.2d 680; Rigor v. Howard Liquors, Inc. (1973), 10 Ill. App. 3d 1004, 1008, 295 N.E.2d 491.

We note that in some cases the failure of defense counsel to offer evidence of the prior inconsistent statements may not be sufficiently prejudicial to require reversal. (Walker v. Maxwell City, Inc. (1983), 117 Ill. App. 3d 571, 581, 453 N.E.2d 917; Oak Lawn Trust & Savings Bank v. City of Palos Heights (1983), 115 Ill. App. 3d 887, 898, 450 N.E.2d 788.) Such is not the case here. Plaintiff’s credibility was of great import since he was the only occurrence witness. The trip sheet indicated that plaintiff was on schedule at every location along the bus route on the morning of the accident. It thus contradicted plaintiff’s testimony that he was in great pain after the accident and lay on the floor of the bus for approximately 15 minutes. Further, the trip sheet raised serious doubt that plaintiff was injured at the time and in the manner testified thereto.

We also note that in closing argument defense counsel returned to the subject of the trip sheet and made the following remarks:

“What about the trip sheet? The trip sheet has the times that he was scheduled to be at a certain place at a certain time. I went through that trip sheet with Mr. Bradford and the scheduled returns that were scheduled with the times were exactly the same times as the one of the actually [sic] operation of that bus—
[PLAINTIFF’S COUNSEL]: I am going to object. That’s not in evidence.
THE COURT: Objection overruled. This is argument.
[DEFENSE COUNSEL]: — at the time of the accident. In the morning, May 10, 1983, [sic] it wasn’t off one minute, not one. Where did the 15 minutes he laid on the floor of the bus or 20, 25 go? Where did that go? Did it evaporate?
As I stated, ladies and gentlemen, you will judge the credibility of the witnesses and all we have here is Mr. Bradford’s credibility to prove that he hit the pothole on the day in question.”

The proper foundation was never laid for introduction of the trip sheet into evidence, nor did defense counsel ever offer the trip sheet into evidence. Yet, defense counsel’s argument suggests that plaintiff’s direct testimony was impeached by a prior inconsistent statement, i.e., the trip sheet, and that plaintiff's credibility was in question. We further note that during deliberations the jury requested to view “defense — Evidence Nos. 1, 2 and 3.” Defense exhibit No. 3 was the trip sheet. The jury’s request clearly indicates that the jury believed the trip sheet to be in evidence.

We conclude that plaintiff was denied a fair trial by defense counsel’s use of the trip sheet. We therefore remand the case for a new trial. In light of this holding, we do not address plaintiff’s contention that the verdict of the jury was against the manifest weight of the evidence, nor do we address the other assignments of error brought by plaintiff.

For the aforementioned reasons, that portion of the order of the circuit court of Cook County entering judgment for defendant on the verdict is reversed, and that portion denying plaintiff’s post-trial motion for judgment notwithstanding verdict is affirmed.

Affirmed in part and reversed in part.

McNAMARA and McGILLICUDDY, JJ., concur.

       Plaintiff testified that the speed limit was 30 miles per hour.

       Dr. O’Young explained that a normal X ray of the lumbosacral spine means that the bone is not broken. It does not mean that the vertebral discs are not involved. It does not mean ligaments are not involved. It does not mean the patient is free of pain.

       X rays taken of plaintiff’s back in 1978 were normal. However, Dr. Hirschtick testified that in many cases of disc problems changes in the space occupied by the disc and in the bone do not appear on the X rays for several years.

       The changes in the hypothetical question were allowed subject to counsel ultimately tying up some information on the car accident. Counsel never brought in evidence to substantiate the 1979 accident.


author: JUSTICE JOHNSON LINN, J., PRESIDING JUSTICE JIGANTI,

text:
    A. A. CONTE, INC., Plaintiff-Appellant, v. CAMPBELL-LOWRIE-LAUTERMILCH CORPORATION, Defendant-Appellee.
    First District (4th Division)
    No. 83—2765
    Opinion filed March 28, 1985.

      JIGANTI, P.J., dissenting.
    John M. Kaveny, of Chicago, for appellant.
    Ruff, Weidenaar & Reidy and Hlustik, Huizenga & Williams, both of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

This appeal arose from a dispute between A. A. Conte, Inc. (Conte), the plaintiff, and Campbell-Lowrie-Lautermilch Corporation (Campbell-Lowrie), the defendant, wherein Conte sought to recover $83,596 which it claimed was owed by Campbell-Lowrie. The trial court granted Campbell-Lowrie’s motion for summary judgment, and Conte brought this appeal.

We are asked to consider whether the trial court erred in granting summary judgment to defendant.

We affirm.

The facts are not in dispute. Campbell-Lowrie was the contractor for a construction project in Northlake. In July 1974, Conte and Campbell-Lowrie entered into a contractual agreement whereby Conte would perform certain work as a subcontractor for Campbell-Lowrie at the construction site. Conte performed excavating work at the construction site between July and December 1974. Campbell-Lowrie had other subcontractors besides Conte, and payments were made to the subcontractors on a monthly basis upon the contractors’ submission of bills to Campbell-Lowrie.

The construction project was owned by La Salle National Bank, as trustee, and three individuals who were beneficial interest owners. In November 1974, the owners defaulted on payments and the project was terminated. Campbell-Lowrie informed its subcontractors, including Conte, that the owners had defaulted and advised the subcontractors to cease work immediately. Conte was owed a sum of $83,956 for work already performed when the project was terminated.

The owners were later determined to be insolvent. Campbell-Lowrie submitted a bill for $149,714.68 to the owners for work done. That bill included the $83,956 owed to Conte. Campbell-Lowrie was not paid by the owners and in turn made no payment to Conte. Subsequently, Conte instituted a claim for a mechanic’s lien against the project for the amount due on its contract with Campbell-Lowrie.

Foreclosure proceedings were instituted against the owners of the project, and Conte sought to execute the mechanic’s lien in those proceedings. The judge in the foreclosure proceedings found that Conte was owed $83,956 for work performed under its subcontract with Campbell-Lowrie. The judge recognized Conte’s mechanic’s lien against the project, but found that the lien was inferior and subordinate to the lien for $610,000 held against the project by Associates Capital Company, Inc. The liens held by Conte and other subcontractors for the project could not be satisfied ahead of that held by Associates Capital. The project was foreclosed and sold early in 1979. Conte unsuccessfully attempted to collect the $83,956 directly from Campbell-Lowrie.

In July 1979, Conte filed suit against Campbell-Lowrie in the circuit court of Cook County seeking to recover the amount in question. Campbell-Lowrie denied indebtedness to Conte and raised an affirmative defense to Conte’s claim. The gist of Campbell-Lowrie’s affirmative defense was that article 18 of its contract with Conte set forth a condition precedent to payment. The condition was that Campbell-Lowrie must first receive payment from the owners of the project under the general contract before it was obligated to pay its subcontractors. The owners had not paid Campbell-Lowrie; therefore, Conte was not entitled to payment from Campbell-Lowrie.

Both parties moved for summary judgment. Conte sought to have the trial court declare that Campbell-Lowrie was obligated to Conte for $83,956. Campbell-Lowrie cited articles 5 and 18 of its contract with Conte, which state:

“ARTICLE 5: Material invoices submitted before the 25th of the current month will be paid by the 28th of the following month, provided the material so delivered is acceptable, and if payment for invoiced material has been received by CampbellLowrie-Lautermilch Corporation under its general contract. Discountable bills will be paid as stipulated in the order.
* * *
ARTICLE 18: *** [I]f the work has been satisfactorily performed and invoice as rendered is approved and if payment for such labor and material so invoiced has been received by Campbell-Lowrie-Lcmtermilch Corporation under its general contract, the subcontractor will be paid 85% of invoice as approved, less any payments previously made on account for previous periods. No payments made shall be considered as evidence of acceptance of the work either in whole or in part until the work is completed and accepted, whereupon final payment will be made within thirty (30) days of such acceptance upon receipt of all or any bonds, guarantees, etc. required.” (Emphasis added.)

Campbell-Lowrie asserted that its payment to Conte was contingent upon its receiving payment from the owners of the project. Based on the contractual language (articles 5 and 18), Campbell-Lowrie had no obligation to pay Conte since it had not been paid by the owners. The parties filed several memoranda of law in support of their respective positions.

On October 17, 1983, the trial court denied Conte’s motion for summary judgment and granted that of Campbell-Lowrie.

On appeal, Conte argues that the contractual provisions cited by Campbell-Lowrie in its affirmative defense was a limitation only as to the time of payment. The provisions gave Campbell-Lowrie a reasonable time in which to pay Conte without respect to whether Campbell-Lowrie had been paid by the owners. Conte urges this court to look at other factors outside the contract to determine the understanding and intent of the parties. Conte points out that the trial court’s denial of its (Conte’s) motion for summary judgment leads to the conclusion that the language of the contract was ambiguous; therefore, interpretation of the contractual provisions was a question of fact to be determined by the trier of fact. Accordingly, Conte concludes that it was error for the trial court to have granted CampbellLowrie’s motion for summary judgment.

Campbell-Lowrie points out that the plain meaning of the language in articles 5 and 18 of the contract creates a condition precedent to payment and that there is no ambiguity in the language. Campbell-Lowrie correctly states that whether a contract is ambiguous is a question of law and ambiguity can be found only if the language is reasonably or fairly susceptible of more than one construction. Additionally, failure of the parties to agree on proper construction does not render a contract ambiguous.

In determining the meaning of the contract, especially with regard to paragraphs 5 and 18, every effort must be made to effectuate the intentions of the parties. (National Aircraft Leasing, Ltd. v. American Airlines, Inc. (1979), 74 Ill. App. 3d 1014, 1020, 394 N.E.2d 470, 475.) A court must arrive at meaning from language used in the contract (Vigilante v. National Bank (1982), 106 Ill. App. 3d 820, 823, 436 N.E.2d 652, 655), and if the language in the contract is clear and unambiguous then no evidence outside the contract itself may be considered in determining the contract’s meaning. National Aircraft Leasing, Ltd. v. American Airlines, Inc. (1979), 74 Ill. App. 3d 1014,1020, 394 N.E.2d 470.

A court may not rewrite a contract to suit one of the parties but must enforce the terms as written. (Schroud v. Van C. Argiris & Co. (1979), 78 Ill. App. 3d 1092, 1096, 398 N.E.2d 103, 106.) Thus, the rights of the parties are limited by the terms expressed in the contract. (Touhy v. Twentieth Century-Fox Film Corp. (1979), 69 Ill. App. 3d 508, 512, 387 N.E.2d 862, 865.) Since construction of the contractual terms is a pure question of law (Vigilante v. National Bank (1982), 106 Ill. App. 3d 820, 823, 436 N.E.2d 652), we have only to look to the principles and to the contract itself in resolving this dispute.

We do not believe that the record supports Conte’s claim that its right to payment by Campbell-Lowrie was absolute and not in anyway contingent upon Campbell-Lowrie’s receiving payment from the owners under the general contract. Our analysis of paragraphs 5 and 18 of the contract in question convinces us that the language is clear and unambiguous and, thus, there is no need to resort to rules of construction (Touhy v. Twentieth Century-Fox Film Corp. (1979), 69 Ill. App. 3d 508, 513, 387 N.E.2d 862) nor extrinsic evidence (National Aircraft Leasing, Ltd. v. American Airlines, Inc. (1979), 74 Ill. App. 3d 1014, 1020, 394 N.E.2d 470, 476). It is true, as pointed out by Conte, that conditions precedent are not generally favored, and courts will not construe stipulations to be a condition precedent when such a construction would result in forfeiture. It is also true, as acknowledged by Conte, that plain, unambiguous language contained in the contract binds the parties to a condition precedent.

Since we have already determined that the language of the contract is plain and unambiguous, we must also conclude that the parties are bound by it. We note that the contract in question was between two entities engaged in business in the construction industry and presumably often entered into other contractual agreements of a similar nature in the course of their business. While it is clear that with the benefit of hindsight Conte may have chosen to exclude or draft differently the language of paragraphs 5 and 18, which gave rise to this dispute, this court cannot redraft the contract, and we must enforce the contract as written and agreed upon by the parties.

The record, as well as established principles of contract law, supports the trial court’s ruling.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

LINN, J.,

concurs.

PRESIDING JUSTICE JIGANTI,

dissenting:

The parties agree that the issue is whether the two provisions of the contract cited in the majority opinion created conditions precedent. The majority concludes that in fact these provisions did create conditions precedent. Case law and the Restatement (Second) of Contracts lead me to a contrary conclusion.

It is a well-documented common law rule that conditions precedent are not favored by the courts and contracts will not be construed as having conditions precedent unless required to do so by plain, unambiguous language. (Christofferson v. Halliburton Co. (5th Cir. 1980), 617 F.2d 403; United States v. Schaeffer (9th Cir. 1963), 319 F.2d 907, cert, denied (1964), 376 U.S. 943, 11 L. Ed. 2d 767, 84 S. Ct. 798; Shackleton v. Food Machinery & Chemical Corp. (E.D. Ill. 1958), 166 F. Supp. 636, ajfd in part, rev’d in part (7th Cir. 1960), 279 F.2d 919; Department of Public Works & Buildings v. Porter (1927), 327 Ill. 28, 158 N.E.2d 366; McAtee v. Wes-Lee Corp. (Okla. 1977), 566 P.2d 442; Cheyenne Dodge, Inc. v. Reynolds & Reynolds Co. (Wyo. 1980), 613 P.2d 1234; 17A C.J.S. Contracts sec. 338 (1963); 12A Ill. L. & Prac. Contracts sec. 231 (1983).

The Restatement (Second) of Contracts sec. 227 (1981), “Standards of Preference with Regard to Conditions,” states:

“(1) In resolving doubts as to whether an event is made a condition of an obligor’s duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee’s risk of forfeiture, unless the event is within the obligee’s control or the circumstances indicate that he has assumed the risk.” (Emphasis added.) (Restatement (Second) of Contracts sec. 227 (1981).)

The comments to the above section state that the word “forfeiture” is used to refer to the denial of compensation that results in such a case. (Restatement (Second) of Contracts sec. 227, comment b, at 175 (1981).) The very first illustration for this section of the Restatement is a virtual reiteration of the facts in the instant case. The illustration states the following facts: A general contractor contracted with a subcontractor for work on a construction project. The contract contained the provision that the subcontractor would receive the contract price, “no part of which shall be due until five days after Owner shall have paid Contractor therefor.” The illustration further states that after the work was done by the subcontractor the owner became insolvent and failed to pay the general contractor. The Restatement’s position is that this is not an example of a condition precedent and that it was therefore the duty of the general contractor to pay the subcontractor after a reasonable time. Restatement (Second) of Contracts sec. 227, comment b, at 176 (1981).

The illustration in the Restatement was taken from the case of Thos. J. Dyer Co. v. Bishop International Engineering Co. (6th Cir. 1962), 303 F.2d 655. A number of other States have addressed this issue and have come to the same conclusion as did the court in Dyer. (See Trinity Universal Insurance Co. v. Smithwick (8th Cir. 1955), 222 F.2d 16, cert, denied (1955), 350 U.S. 837, 100 L. Ed. 747, 76 S. Ct. 74; Moore v. Continental Casualty Co. (W.D. Okla 1973), 366 F. Supp. 954; Darrell T. Stuart Contractor v. Bridges (1965), 2 Ariz. App. 63, 406 R2d 413; Peacock Construction Co. v. Modern Air Conditioning, Inc. (Fla. App. 1976), 339 So. 2d 294, aff’d (Fla. 1977), 353 So. 2d 840; A. J. Wolfe Co. v. Baltimore Contractors, Inc. (1969), 355 Mass. 361, 244 N.E.2d 717; Eastern Heavy Constructors, Inc. v. Fox (1963) , 231 Md. 15, 188 A.2d 286; Howard-Green Electrical Co. v. Chaney & James Construction Co. (1971), 12 N.C. App. 63, 182 S.E.2d 601; Sturdy Concrete Corp. v. NAB Construction Corp. (1978), 65 App. Div. 2d 262, 411 N.Y.S.2d 637, appeal dismissed (1979), 46 N.Y.2d 938, 415 N.Y.S.2d 212, 388 N.E.2d 349; Mignot v. Parkhill (1964) , 237 Ore. 450, 391 P.2d 755; Elk & Jacobs Drywall v. Town Contractors, Inc. (1976), 267 S.C. 412, 229 S.E.2d 260.

This series of cases, as well as the Restatement (Second) of Contracts, mandates a finding consistent with their conclusions. The rationale as provided by the above sources highlights the need to critically construe contracts against the finding of conditions precedent. Moreover, the facts in the illustration in the Restatement and those in the above cases closely track the facts in the case at bar and as such provide a convincing basis with which to find that there is no condition precedent in the instant contract. Accordingly, for the foregoing reasons I dissent.


author: PRESIDING JUSTICE GREEN

text:
      In re MICHAEL HERSHBERGER, a Minor (The People of the State of Illinois, Petitioner-Appellant, v. Michael Hershberger, Respondent-Appellee).
    Fourth District
    No. 4—84—0642
    Opinion filed April 15, 1985.
    Hugh Finson, State’s Attorney, of Montieello, for the People.
    Daniel D. Yuhas and Deborah L. Rose, both of State Appellate Defender’s Office, of Springfield, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Notice of appeal in this case is from an order entered pursuant to section 2 — 7(5) of the Juvenile Court Act (Act) (Ill. Rev. Stat. 1983, ch. 37, par. 702 — 7(5)), which permits a minor, 13 years of age or older who is charged in a “petition” with the commission of a crime, to elect, with the consent of counsel, to be prosecuted as a criminal rather than under the Act. Here, the “petition” was not an original petition but one seeking supplemental relief. The trial court, deeming our decision in People v. Freeman (1982), 105 Ill. App. 3d 1078, 435 N.E.2d 503, to cover an analogous situation and to be binding precedent, determined that it was required to permit the minor to elect criminal prosecution and so ordered. The question of whether section 2 — 7(5) applies to a supplemental petition is important, but we are now persuaded that we do not have jurisdiction and must dismiss the appeal.

Respondent, Michael Hershberger, was declared to be a delinquent and placed on probation by the circuit court of Piatt County in 1980. One condition of his probation was that he not commit another crime. On June 26, 1984, when respondent was 16 years old, the State filed the instant supplementary petition seeking revocation of the probation. The petition alleged that respondent had violated the terms of his probation by committing the offenses of disorderly conduct (Ill. Rev. Stat. 1983, ch. 38, par. 26 — 1(a)(1)) and aggravated assault (Ill. Rev. Stat. 1983, ch. 38, par. 12-2(a)(l)). On June 28, 1984, respondent filed a motion under section 2 — 7(5) of the Juvenile Court Act electing to be prosecuted as a criminal and seeking dismissal of the supplementary petition. On that date and after a hearing, the circuit court entered an order allowing the motion. The order included a finding sufficient to initiate a request for appeal of an interlocutory order under Supreme Court Rule 308 (87 Ill. 2d R. 308). With a split vote, we granted leave to appeal.

After further reflection, we conclude that Rule 308 is not applicable to interlocutory appeals from orders entered in delinquency proceedings under the Juvenile Court Act. The rule is part of article III of the supreme court rules which are designated “Civil Appeals Rules” (87 Ill. 2d R. 301 et seq.). Subsection (a) of the Rule states:

“When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court’s own motion or on motion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order.” 87 Ill. 2d R. 308(a).

In reaching a decision as to our jurisdiction in this case, Rule 308 must be considered in the context of other supreme court rules and committee comments which may have application here. The most important is the following:

“Rule 660. Appeals in Cases Arising Under the Juvenile Court Act
(a) Delinquent Minors. Appeals from final judgments in delinquent minor proceedings, except as otherwise specifically provided, shall be governed by the rules applicable to criminal cases.
(b) Other Proceedings. In all other proceedings under the Juvenile Court Act, including proceedings involving a minor in need of supervision, a neglected minor, or a dependent minor, appeals from final judgments shall be governed by the rules applicable to civil cases.
Adopted September 8, 1975, effective October 1,1975.
Committee Comments
(October 1,1975)
Rule 660 was added in 1975 to clarify the procedure in appeals from determinations under the Juvenile Court Act. It provides simply that appeals from determinations in delinquency proceedings are governed by the rules applicable to appeals in criminal cases, and all other appeals under the Act are governed by the rules governing appeals in civil cases.” 87 Ill. 2d R. 660.

An order dismissing a petition filed under the Juvenile Court Act and ordering the institution of criminal proceedings is clearly interlocutory. (See People v. Taylor (1979), 76 Ill. 2d 289, 307, 391 N.E.2d 366, 374.) Rule 660, though, refers only to final orders. Accordingly, the State concludes that an interlocutory order in a case under the Juvenile Court Act may be appealable under rules for appeal from interlocutory orders in civil cases. However, the Committee Comments in stating that “appeals from determinations in delinquency proceedings are governed by rules applicable in criminal cases” when taken with the provisions of the Rule providing for appeals from final orders, indicate an intention that there be no interlocutory appeals in delinquency cases except when specific provision is made. The only such specific provision is Supreme Court Rule 662 (87 Ill. 2d R. 662), which grants a right of appeal from orders of wardship and revocations of probation or conditional discharge when an order of disposition is not entered within 90 days thereafter.

We also note that Supreme Court Rule 612 (87 Ill. 2d R. 612), providing that certain rules for civil appeals are also applicable to appeals in criminal cases, does not list Rule 308 as such a rale.

Were it not for the Committee Comments to Rule 660, there would be substantial force to the State’s contention that the failure of Rule 660 to address interlocutory appeals in delinquency proceedings indicates that such appeals can be taken under rules for civil appeals. Delinquency proceedings are not fully criminal in nature and rules of procedure designed for criminal cases are not necessarily applicable. (In re Beasley (1977), 66 Ill. 2d 385, 362 N.E.2d 1024.) As Rule 308 requires the concurrence of the trial and appellate court, abuse of the Rule is unlikely. Nevertheless, we cannot disregard the language of the Committee Comments. Our conclusion that an interlocutory appeal in delinquency cases is limited to that for which there is express provision in the Supreme Court Rules is supported by dictum in the case of In re A.M. (1981), 94 Ill. App. 3d 86, 88, 418 N.E.2d 484, 485.

For the reasons stated, we conclude that we improperly granted leave to appeal. The appeal is dismissed.

Dismissed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE WOMBACHER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH THOMPSON, Defendant-Appellant.
    Third District
    No. 3—84—0505
    Opinion filed April 19, 1985.

      Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, both for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WOMBACHER

delivered the opinion of the court:

The defendant, Joseph Thompson, appeals from the order of the circuit court, finding him guilty on three counts of armed robbery and one count of armed violence. The defendant entered guilty pleas, pursuant to plea agreement, and the court sentenced him to four concurrent 18-year prison terms.

On appeal, the defendant raises two issues:

(1) Whether he was denied his right to effective assistance of counsel, because of a conflict between his two public defenders; and

(2) Whether the court erred in considering a factor implicit in the offenses of armed robbery and armed violence in imposing its sentence.

The pertinent facts on appeal indicate that defendant Thompson appeared and entered a partially negotiated plea of guilty on January 30, 1984. His trial counsel at that time was assistant public defender Ira Goldstein. In exchange for Thompson’s plea of guilty on three armed robbery charges, as well as the armed violence charge, the State dismissed an attempted murder count as well as an armed robbery charge in another case. The trial judge questioned the defendant concerning his guilty plea, and concluded that the plea was voluntarily and understandingly made.

On March 27, 1984, assistant public defender Goldstein filed a motion to withdraw defendant’s guilty pleas, alleging simply that the defendant’s constitutional rights were violated at the time of his arrest. This motion was thereafter withdrawn, before a hearing was held.

Prior to sentencing, on March 27, 1984, another assistant public defender, Ray Sabuco, appeared in court on behalf of defendant Thompson, explaining to the trial court that he “was recently reassigned to this case by Mr. Goldstein, since he’s going to be involved in other matters.” A sentencing hearing was held on June 14, 1984, and the defendant was thereafter sentenced to four concurrent terms of 18 years each.

On June 21, 1984, through assistant public defender Sabuco, the defendant requested that earlier motions to withdraw his guilty pleas be reinstated, and that they be amended so as to allege the involuntariness of defendant’s guilty pleas. A July 24, 1984, hearing was held on the motions to withdraw, wherein defendant testified that his guilty pleas were not freely and voluntarily made. It was defendant’s testimony that his prior defense counsel, Ira Goldstein, discouraged an alibi defense. Thompson also asserted that Goldstein indicated it didn’t matter whatever he did, since he couldn’t get a fair trial in Will County. The defendant also indicated that Goldstein signaled him during the questioning on voluntariness, so as to indicate the necessary responses to the judge’s inquiries.

Ira Goldstein, testifying for the State, denied any conversations about an alibi defense, and also indicated that he did not make the other statements the defendant had attributed to him. At the conclusion of testimony and arguments, the trial court denied the defense motion to withdraw the guilty pleas.

The dispositive issue on appeal is whether defendant was denied his right to effective assistance of counsel, where assistant public defender Sabuco had to argue the incompetency of assistant public defender Goldstein. It is evident from the record that the basis of the defendant’s arguments on the motion to withdraw his guilty pleas was the alleged improper pressure put upon him by his former defense attorney, assistant public defender Goldstein. Under the circumstances, it was necessary for assistant public defender Sabuco to argue that Goldstein, in counseling defendant Thompson in the manner he did, had rendered ineffective assistance of counsel. Under similar circumstances, courts have concluded that an improper conflict of interest exists. (People v. Smith (1967), 37 Ill. 2d 622, 230 N.E.2d 169; People v. Adams (1979), 74 Ill. App. 3d 727, 393 N.E.2d 758; People v. Freeman (1977), 55 Ill. App. 3d 1000, 371 N.E.2d 863.) These and other cases have indicated the impropriety of permitting one public defender to represent a defendant, wherein counsel is required to allege the incompetency of another public defender.

The State argues that it is not established in the record that both Sabuco and Goldstein were from the same office, and, therefore, no per se conflict of interest has been shown. The record indicates, however, that when Sabuco appeared initially on behalf of defendant Thompson, he indicated that he had been assigned to the case by Mr. Goldstein. Under the circumstances, the record indicates a connection between Sabuco and Goldstein sufficient to find a conflict of interest, where Sabuco later had to argue Goldstein’s incompetency. We would note, however, that public defender Sabuco appears to have competently and vigorously asserted defendant Thompson’s position at the hearing on the motion to withdraw a guilty plea. The per se rule that is applicable in this instance, however, addresses itself both to the appearances of impropriety, as well as to the subtle effects that a close connection between two defense attorneys, under these circumstances, might have on the manner of representation received by a defendant.

We reject the State’s argument that defendant has waived his argument by failing to advance it in the trial court. Given his involvement, it would be unreasonable to expect assistant public defender Sabuco to have asserted his own conflict of interest in the post-trial motion. Nor can defendant be put under the burden of making the objection himself, in these circumstances, where he is represented by counsel and counsel fails to make any objection. (See, e.g., People v. Williams (1984), 127 Ill. App. 3d 231, 468 N.E.2d 807; People v. Smith (1967), 37 Ill. 2d 622, 230 N.E.2d 169.) We find no waiver.

The defendant Thompson should be allowed a hearing on his motion to withdraw his guilty pleas, free from any suggestion of impropriety because of the connection between his counsel and prior counsel whom he believes rendered him ineffective assistance.

For the reasons stated, the judgment of the circuit court is reversed and the matter remanded for a new hearing on the motion to withdraw guilty pleas. At such hearing, defense counsel unconnected with Goldstein and Sabuco should be appointed. Because of our disposition of this issue, we do not reach the issue raised respecting sentencing.

Reversed and remanded for a new hearing.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE SCOTT STOUDER, J., PRESIDING JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERTA M. McCUMBER, Defendant-Appellant.
    Third District
    No. 3—84—0076
    Opinion filed April 12, 1985.

      HEIPLE, P.J., concurring in part and dissenting in part.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Colleen K. Connell, of The Roger Baldwin Foundation of ACLU, Inc., and Lucy J. Karl, of Sachnoff, Weaver & Rubinstein, both of Chicago, and Marsha Levick, of NOW Legal Defense & Education Fund, of New York, New York, for amici curiae.

   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Roberta M. McCumber, was charged in a multicount indictment with murder, concealment of a homicidal death and obstructing justice. The indictment essentially alleged that the defendant shot and killed Jeffrey Williams and concealed his body. Following a change of venue from Peoria County to Du Page County, the cause proceeded to trial before a jury, which returned a verdict finding the defendant guilty but mentally ill, of voluntary manslaughter, concealment of a homicidal death and obstructing justice. A sentencing hearing was held, following which the defendant was sentenced to imprisonment for a term of 10 years for manslaughter and a consecutive three-year term for concealment. On appeal of the conviction and sentencing, the defendant urges that numerous errors occurred in circuit court proceedings.

The defendant met the decedent, Jeffrey Williams, in May 1976. For 2V2 years prior to May 19, 1983, they had lived together, and during that time, according to evidence adduced at trial, Williams had physically abused the defendant on hundreds of occasions. According to the defendant, May 19, 1983, was another of those occasions. On that date, Williams drove to St. Francis Hospital, where the defendant was just getting off work. As the defendant entered Williams’ car for a ride home, she noticed that Williams had been drinking and was angry. Upon arriving at the Peoria apartment they shared, Williams showed the defendant a gun he was carrying and began demanding that the defendant make certain changes in her life. The argument escalated as Williams choked the defendant and struck her on the head and legs. The defendant picked up the gun, and as Williams pushed her toward the bed in the apartment, the gun fired, striking Williams.

The defendant, trained as a nurse’s aide, felt for Williams’ pulse, and after three fast beats, there was nothing. Yet, loud gurgling noises continued to come from the body. The defendant, wanting the noise to stop, fired a second shot in Williams’ head. The defendant’s attempts to move the body were unsuccessful, it being too heavy, so she removed the legs from the torso, using a hatchet, a saw and surgical scissors. She then deposited the torso in a field of tall grass in nearby Woodford County, while she placed the legs in a plastic bag, and the bag in a dumpster at the Glenbrook Apartments.

On May 23, 1983, Williams’ body was discovered, and a police investigation followed which led to the arrest of the defendant. At the trial which followed, the defendant presented the testimony of two experts, Dr. Ziporyn, a psychiatrist, and Dr. Legan, a clinical psychologist, both of whom believed that the defendant was suffering from a mental disease and at the time of Williams’ shooting, she was unable to conform her conduct to the requirements of the law. The jury, apparently rejecting this testimony in part, found the defendant guilty, but mentally ill, of voluntary manslaughter, concealment and obstructing justice.

The defendant alleges that numerous errors occurred in the trial in the circuit court which require a reversal of the verdicts reached by the jury. First, she asserts that the State failed to prove beyond a reasonable doubt that she was sane at the time of the alleged offenses. The jury heard the testimony of Dr. Ziporyn and Dr. Legan to the effect that the defendant was suffering from a mental disease and was unable to conform her conduct to the requirements of the law. It also heard testimony from Dr. Chapman, a psychiatrist, and Dr. Colen, a psychiatrist, which disputed the conclusion that the defendant was unable to conform her conduct to the requirements of the law. Finally, the jury heard the testimony of Jan Seroka, a unit clerk of St. Francis Hospital, who observed that the defendant seemed completely normal at work at the time of the offense and thereafter. The determination of the defendant’s sanity will not be disturbed unless it is so palpably erroneous as to indicate that it was based on prejudice or passion. (People v. Martin (1980), 87 Ill. App. 3d 77, 409 N.E.2d 114; People v. Kuhn (1979), 68 Ill. App. 3d 59, 385 N.E.2d 388.) In weighing the question of the defendant’s sanity, the trier of fact must consider the totality of the evidence, lay and expert, and is not required by law to accept the opinions of psychiatrists concerning the defendant’s sanity. (People v. Moore (1980), 89 Ill. App. 3d 202, 411 N.E.2d 579.) We do not agree with the defendant that, given the lay and expert testimony presented at trial, the jury’s determination of sanity was palpably erroneous.

The defendánt also asserts that error occurred when she was cross-examined at trial by the prosecutor concerning statements she made about the homicide during a court-ordered psychiatric examination. According to the defendant, this questioning violated her constitutional right against self-incrimination, as well as her statutory rights under section 115 — 6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 115 — 6). We note, however, that the cross-examination was objected to by defendant’s attorney, the objection was sustained, and the jury was ordered to disregard the questions and responses. Under such circumstances, even where the defendant’s constitutional rights are involved, it is generally held that the judge’s instruction to the jury to disregard is sufficient to dispel any error which occurred. (People v. Richardson (1978), 61 Ill. App. 3d 718, 377 N.E.2d 1235; People v. Jackson (1974), 23 Ill. App. 3d 945, 320 N.E.2d 591.) While the parties have cited considerable authority on the issue of whether the cross-examination was in fact error, we find it unnecessary to reach this issue, because if error occurred, it was cured.

One of the themes of the prosecution’s theory of the case concerned the defendant’s alleged fabrication of her insanity defense based upon a character in a television soap opera. In pursuing that theme, the prosecution was allowed, over defendant’s objection, to ask a defense psychiatrist his opinion about the sanity of the hypothetical television character. At the time the questioning took place, certain facts recited in the hypothetical question were not yet in evidence. The defendant relies on

“[t]he general rule [which] seems to be that a hypothetical question asked of an expert witness may not include facts which are not in evidence before the trier of fact.” (People v. Muniz (1964), 31 Ill. 2d 130,137,198 N.E.2d 855, 859.)

This general rule is not absolute. The trial court may, at its discretion, allow facts to be included in hypothetical questions even if the facts are not yet in evidence if there is an assurance by counsel that such facts will later be established. (Coriell v. Industrial Com. (1980), 83 Ill. 2d 105, 413 N.E.2d 1279.) We do not find an abuse of the trial court’s discretion in the instant case, and having reviewed the record, we find the facts presented by the prosecutor in rebuttal to be sufficiently identical to the facts recited in the hypothetical question such that the hypothetical question was supported by the evidence. In asking the hypothetical question of the defendant’s witness, Dr. Ziporyn, the prosecutor was attempting to establish that the doctor was too quick to give his expert medical opinion as to an individual’s sanity. We agree with the circuit court that for such a limited purpose, the question was proper. The question did riot exceed the broad scope of inquiry which is allowed in cross-examination of an expert witness. People v. Martinez (1980), 86 Ill. App. 3d 486, 408 N.E.2d 358; People v. Crawford Distributing Co. (1978), 65 Ill. App. 3d 790, 382 N.E.2d 1223.

In his closing remarks, the prosecutor made improper remarks in attacking the integrity of the defendant’s expert witnesses and misleading remarks concerning the qualification of a psychologist to render an opinion of the issue of sanity, concerning the burden of proof and concerning the required findings for a verdict of guilty but mentally ill. None of these improper and misleading remarks were objected to by the defendant. Nevertheless, the defendant now suggests that the prosecutor’s conduct constituted reversible error. Where the prosecutor’s improper conduct occurs without objection, it will only become the basis for reversal if it rises to the level of plain error. That standard is not met unless the conduct constitutes a material factor in the conviction. (People v. Brown (1981), 100 Ill. App. 3d 57, 426 N.E.2d 575.) In determining the materiality of the prosecutor’s conduct, we must consider it in the context of the entire case. (People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59.) Such conduct can be improper, inexcusable and unprofessional, yet not plain error. (People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59.) We find this to be the case under the instant facts. The improper remarks, while inflammatory, found some basis in the evidence, and the misleading remarks were corrected when the trial judge properly charged the jury before it began its deliberations. Improper, inexcusable and unprofessional conduct on the part of the prosecutor must not be cavalierly approved, but where, as here, it was not objected to, and did not constitute a material factor in the conviction, it is not plain error.

The defendant objected to the special verdict form proffered by the prosecution and delivered by the trial court. The form purported to provide a differentiation between the verdict of not guilty by reason of insanity and the verdict of guilty but mentally ill. The instruction on the form read as follows:

“You will also receive ten (10) special forms of verdict. As to each charge you will be provided with both a ‘not guilty, by reason of insanity’ and ‘guilty, but mentally ill’ form of verdict.
A special verdict of not guilty by reason of insanity may be returned instead of a general verdict but such special verdict requires a finding by the jury that the defendant committed the acts charged but at the time of the commission of those acts the defendant was insane.
A special verdict of guilty but mentally ill may be returned instead of a general verdict but such special verdict requires a finding by the jury beyond a reasonable doubt that the defendant committed the acts charged and that the defendant was not legally insane at the time of the commission of those acts but that she was mentally ill at such time.”

Defendant’s objection to this instruction, in contrast to the alternate instruction which she offered but which was rejected by the circuit court, is that the instruction “requires a finding *** that defendant was insane.” The defendant contends that this language places the burden of proving insanity on the defendant. In other instructions to the jury, the circuit court made it unmistakably clear that the burden of proof on the issue of the defendant’s sanity rested with the prosecution. This instruction, taken with the fact that the instruction objected to was merely intended to provide a differentiation between the insanity verdict and the guilty but mentally ill verdict, were sufficient to advise the jury as to the prosecution’s burden. (People v. Gold (1967), 38 Ill. 2d 510, 232 N.E.2d 702; People v. Eckles (1980), 83 Ill. App. 3d 292, 404 N.E.2d 358.) There was no real possibility that the jury could have been confused by this instruction.

Having carefully reviewed the record, the oral and written briefs of counsel and the authorities cited therein, we find no error occurred at the trial of this cause in the circuit court. Accordingly, the verdicts of the jury, and the convictions entered on those verdicts, are affirmed. Following the defendant’s conviction, a hearing was held to determine the defendant’s sentence. We cannot say that no error occurred in that proceeding.

At the sentencing hearing, the trial judge stated:

“In considering the presentence investigation report, it is very very important in this particular case, maybe not to the criminal conduct or criminal activities of the defendant, but as to her moral conduct, character previous to the time of the incident and up to now at the present time. As to what value she places on a human life, the presentence investigation report indicates that this is a criminal activity. It indicates three abortions in three years. Taking this in conjunction with the particular evidence at the trial and taking of the life of Jeffrey Williams under the circumstances which occurred in this case, what value may I ask does she place on human life? Are those things likely to occur? [Sic.]”

In Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, the United States Supreme Court held the fundamental right to privacy guaranteed by the constitution encompasses a woman’s decision to have an abortion. The lawful exercise of one’s constitutional rights is not, and must not be, a factor in aggravation or mitigation in determining a criminal sentence. (People v. Moriarty (1962), 25 Ill. 2d 565, 185 N.E.2d 688.) Where it is clear, as in the instant case, that the sentencing judge has imposed a harsher sentence because the defendant lawfully exercised her constitutional rights, we are compelled to reverse the sentence and remand the cause for a new sentencing hearing. People v. Moriarty (1962), 25 Ill. 2d 565,185 N.E.2d 688.

In accordance with the views previously set forth, and in reliance on the authorities cited, we affirm the verdict reached by the jury, but we reverse the sentence imposed, and we remand the matter to the circuit court of Peoria County for a new sentencing hearing, conducted by a judge other than the one who imposed the sentence in the instant case. It is difficult to escape the conclusion that the severity of the sentence imposed upon the defendant resulted from the views of the sentencing judge on abortion. We direct that the judge at the new sentencing hearing shall be assisted in his determination with a sentencing report which omits any reference to the defendant’s lawful exercise of her constitutional rights and which complies in all other respects with statutory requirements for such reports.

Affirmed in part; reversed in part; remanded.

STOUDER, J.,

concurs.

PRESIDING JUSTICE HEIPLE,

concurring in part and dissenting in part:

Roberta McCumber, a nurse’s aide at St. Francis Hospital, left work on May 19, 1983, and was picked up by her live-in boyfriend, Jeffrey Williams, for a ride home to the apartment they shared. There, as a result of an altercation, she shot him. Not once but twice. After the first shot, she felt for his pulse and, after three fast beats, felt nothing. There were, however, loud gurgling noises coming from Williams’ body that bothered her. Wanting the noises to stop, she fired a second shot in Williams’ head. The noises stopped. She then tried to move the body but found it too heavy. To make the corpse more manageable, she cut off both legs, using a hatchet, a saw and surgical scissors. She then placed the legs in a plastic trash bag, which she deposited in a dumpster at the Glenbrook Apartments, and discarded the torso in a field of tall grass in an adjacent county.

After apprehension and jury trial, Ms. McCumber was found guilty but mentally ill of three criminal offenses, to wit, voluntary manslaughter, concealment of a homicidal death and obstructing justice. Upon conviction, a presentence investigation was conducted, a sentencing hearing was held and a sentence of 10 years’ imprisonment was imposed for manslaughter together with a consecutive three-year term for concealment. Sentencing options to the trial judge, Peter J. Paolucci, included probation or prison. If prison, the statutory range for this Class 1 felony is not less than four years and not more than 15 years. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8— 1(4).) The sentence imposed of 10 years was well within the permissible range.

Notwithstanding the propriety of the sentence, a majority of this court has chosen to reverse the sentence and to remand the case for resentencing by a judge other than Judge Paolucci. Why so? Because they say that Judge Paolucci considered and commented at the sentencing hearing that Ms. McCumber had three abortions in three years. Judge Paolucci is not accused of making an error of fact. She had the abortions, all right. No, Judge Paolucci is accused of considering a matter of fact that he should have disregarded. Abortions are a constitutional right, says the majority. Thus, since Ms. McCumber was only exercising her constitutional rights in that regard, the trial court had no right to consider such matters. Like Ms. McCumber, the majority is wrong. Dead wrong.

First off, abortion is not mentioned in the constitution. Neither the word itself nor any discussion of it appears there. Many rights are enumerated in that ancient document, including life, liberty, property, jury trial, due process of law and so forth. But not abortion. A strong case can be made, in fact, that abortion violates the constitution by depriving people of life without due process of law. Notwithstanding this rationale, however, our United States Supreme Court, which “interprets” the constitution, has held that a woman may not be denied the right to an abortion. Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705.

Now, all this ruling says is that a woman cannot be denied an abortion. It does not say that abortion is an enumerated constitutional right. It does not say that abortion is a commendable act. It does not say that the perpetrator is entitled to be named Mother of the Year, receive the Good Homemaking Award or any other thing. It simply says she can do it. That is all.

In a similar vein, it should be noted that there are many things which the law does not prohibit but which are not badges of honor. People can be cruel, mean, nasty, drunken, dishonest, abusive of friend, family, and stranger alike and still avoid the clutches of the law. So far as I know, there is no constitutional prohibition nor legal impediment to cutting the legs off of a corpse. Fortunately for Judge Paolucci, he did not mention that aggravating factor in passing sentence. After all, since the law does not prohibit that act, it could be argued that Ms. McCumber was only exercising another of her constitutional rights.

The plain truth of the matter is that Judge Paolucci committed no error. The law mandates that a sentencing hearing be held. Further, it is a fundamental sentencing principle that a judge may appropriately conduct an inquiry broad in scope into the general moral character of a defendant, his mentality, his habits, his social environment, his abnormal or subnormal tendencies, his age, and the life, family, occupation and record of the defendant. (.People v. La Pointe (1981), 88 Ill. 2d 482.) A judge, within reasonable bounds, may seek facts which aggravate or mitigate an offense subject only to the prerequisite that such information be accurate and reliable. People v. Meeks (1980), 81 Ill. 2d 524.

Certainly, the fact that the defendant became pregnant and had three abortions in the three years preceding her sentencing was relevant to the defendant’s moral character, social environment, habits and family life. In 1981, the defendant aborted an unwanted child who was the product of an unmarried union with a man other than the victim in this case. In 1982, the defendant married yet another man in Florida, left him, moved in with the victim in this case and left him to begin dating yet another man who paid for her to have a second abortion. Then, while incarcerated in the Peoria County jail on these charges, she had yet a third abortion. What is the critical language of Judge Paolucci that causes the majority to reverse the sentencing in this case? It is his mentioning of her three abortions and the asking of the rhetorical question, “what value may I ask does [the defendant] place on human life?” What value, indeed? A proper question, Judge Paolucci.

An abortion constitutes the taking of a human life. That is a fact. That it may not be a crime, that the State is powerless to prevent it, does not alter the fact. The defendant’s conduct in this case, her use of three abortions in three years preceding the sentencing and coupled with her killing of the defendant, indicates a conscious disregard for human life. That is a fact. To say that the consideration of such facts by a sentencing judge is error is to fly in the face of reality. Justice is supposed to be blind but not ignorant or callous.

For the reasons given, the 10-year sentence should be affirmed in this case. The sentence imposed by Judge Paolucci is well within the permissible range and is reasonable under the circumstances. Resentencing accomplishes nothing other than to give the defendant another roll of the dice and the possibility of obtaining a lenient judge who could impose a lesser sentence or even probation. Whether such will in fact happen is mere speculation. It is, however, a possibility. And if the new judge imposes the same sentence, what then? Will this court then affirm it or reduce the sentence on its own motion? Only time will tell.

The procedure in this case is, however, yet another example of the legalistic manipulation, oft repeated, that has brought our system of justice into disrepute. Accordingly, while I concur with that portion of the majority opinion which affirms the conviction, I dissent from the reversal of the sentence and the remand for resentencing.


author: PRESIDING JUSTICE HEIPLE

text:
      In re MARRIAGE OF DONNA J. TYRRELL, Petitioner-Appellee, and GERALD L. TYRRELL, Respondent-Appellant.
    Third District
    No. 3-84-0502
    Opinion filed April 10, 1985.

      Bernard C. Gillman, of Rock Island, for appellant.
    Christopher J. Klockau, of Rock Island, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The respondent, Gerald Tyrrell, appeals from the trial court’s division of marital property in a dissolution action. The petitioner, Donna Tyrrell, was awarded marital assets valued at $92,685.60 and $55,404.49 in marital debts. The respondent received marital assets valued at $2,185.88 plus a van and business assets which the court was unable to value. The marital debts allocated to respondent totaled $44,360.38.

The business assets at issue are 27,000 shares of stock in Midland Cablevision Systems, Inc., and the assets of a company known as Tyrrell and Associates. On appeal, the respondent argues that the property division is inequitable because he received property which the trial court erroneously refused to value while the petitioner was awarded all marital property having an ascertained value.

The record reveals that the trial court refused to assign a value to the stock because the respondent failed to provide sufficient evidence of the corporation’s value. The petitioner sought discovery of corporate tax returns and other evidence of the corporation’s value. The respondent refused to comply, claiming that he was merely a minority stockholder and that the board of directors would not provide the information requested. Although respondent furnished unaudited financial and net worth statements of the corporation, they were of no use to petitioner’s accountant, who testified that he could not assign a value to the assets unless additional information was provided. The respondent’s accountant was also unable to provide a value for the corporation but testified that he could have produced a tax return for the corporation if the respondent had so requested.

The respondent testified that he did not concern himself with the business operations of the corporation and had no copies of financial and net worth statements other than the unaudited copies already provided.

The respondent’s testimony is not persuasive. The record reveals that respondent was a founder of the corporation and one of only three initial shareholders. The respondent’s profession of ignorance as to corporate affairs and his alleged inability to obtain corporate records was impeached by respondent’s own witness. The respondent was clearly in a position to provide the evidence needed to value the corporation but simply refused to do so.

Where a party does not offer evidence of an asset’s value, the party cannot complain as to the disposition of that asset by the court. Parties should not be allowed to benefit on review from their failure to introduce evidence at trial. In re Marriage of Smith (1983), 114 Ill. App. 3d 47.

Here, the respondent not only failed to furnish valuation evidence on his own behalf, but he also obstructed the petitioner’s attempts to place a value on the assets. Had the court divided the unvalued assets between the parties and awarded a greater share of the remaining marital property to the respondent, the petitioner would have been penalized for the respondent’s lack of cooperation. Instead, the court awarded all of the unvalued assets to the respondent and the remaining marital property to the petitioner. The respondent will not be permitted to challenge this result on appeal after he thwarted efforts to value the assets in the trial court. The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.