author: JUSTICE O’CONNOR

text:
    MICHAEL FEERER, Plaintiff-Appellee, v. NORTH RIVER INSURANCE CO., Defendant-Appellant.
    First District (1st Division)
    No. 80-1928
    Opinion filed November 23, 1981.
    Modified on denial of rehearing January 18, 1982.

      Sandra Young, of Purcell & War drope, Chartered, of Chicago, for appellant.
    Block, Levy & Becker, Chartered, of Chicago (Alvin R. Becker, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

In 1975 defendant, North River Insurance Company (insurer), issued an automobile liability insurance policy to plaintiff, Michael Feerer (insured). The policy contained an uninsured motorist provision and a provision for medical payment and personal injury protection. On February 26, 1976, insured was involved in a collision with an uninsured motorist. The insurer paid insured for damage to his vehicle under the collision coverage of the policy. The insured and insurer were unable to reach an agreement with regard to the uninsured motorist claim. In January 1978 the insured filed a demand for arbitration under the provisions of the policy. On February 6 and again on February 13, 1978, the insurer’s attorney wrote letters to the insured’s attorney requesting the insured to file a suit against the uninsured motorist to protect the insurer’s subrogation rights against the running of the statute of limitations. The insured filed suit, and the insurer reimbursed him for the costs incurred. Insured and insurer prepared for arbitration of their dispute. On July 25, 1979, insured’s attorney advised insurer’s attorney that a default had been obtained against the uninsured motorist and that a prove-up was scheduled for September 12,1979. On September 19,1979, a $25,000 judgment was entered for insured against the uninsured motorist. The prove-up was uncontested. The insurer refused to pay this judgment and, on February 8,1980, the insured filed this two-count declaratory judgment suit against the insurer for a declaration of his rights under the policy as to the uninsured motorist provision and the medical payment and personal injury protection provision. Count I sought to bind the insurer conclusively on the issues of liability and damages by reason of the default judgment and asked for a finding that arbitration was no longer necessary. Count II sought payment under the basic personal injury protection and medical payment coverages.

As to count I, the insured filed a motion for judgment on the pleadings and insurer filed a cross motion for summary judgment. On June 4, 1980, insured’s motion was granted and judgment entered in his favor for $10,000 and costs; the insurer’s motion for summary judgment was denied. Insured filed a motion for summary judgment on count II. On September 24, 1980, this motion was granted and judgment entered for the insured for $5967 and costs. The insurer appeals.

As to count I-, the.insurer contends that it was not bound by the default judgment against the uninsured motorist. We agree.

The letter of February 6, 1978, from the insurer’s attorney to the insured’s attorney stated:

“As you are aware, the statute of limitations on this particular matter will run on February 26, 1978. The insurance contract obligates the insured to protect the subrogation rights of the insurance company. Would you kindly advise me if a lawsuit has been filed against the uninsured motorist and if so, would you further advise me as to the court number of that suit. If, on the other hand, a lawsuit has not been filed, we would ask you at this time to prepare and timely file a lawsuit so as to protect the subrogation rights, if any, of the insurance company. Your costs in doing so will be reimbursed by the insurance company or, in the alternative, we will be happy to advance the costs to you prior to your filing the suit.
If you have any questions in this regard, please feel free to contact the undersigned.
Thank you very much for your anticipated cooperation.”.

This was followed by the letter of February 13,1978, which stated:

“Pursuant to our phone conversation of February 7, 1978, you were to file a lawsuit in order to protect the subrogation rights of the insurance company. As I mentioned to you, the insurance company will reimburse you for the filing costs.
As the statute of limitations runs as of February 26,1978, we ask that you do this immediately. As soon as the lawsuit has been filed we would appreciate a copy of the complaint which bears the court number.
Thank you for your cooperation in this matter.”

In granting judgment on the pleadings as to count I, the trial court found that the above letters requesting the insured to file suit against the uninsured motorist to toll the statute of limitations to protect the insurer’s subrogation rights constituted, under the following provision of the uninsured motorist coverage, consent to be bound by the default judgment: '

“No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.”

In order for a judgment to be conclusive against the insurer under this provision, it must have been entered in an action which was prosecuted with its written consent. “Prosecute” means more than filing; it means carrying to a conclusion. Black’s Law Dictionary 1099 (5th ed. 1979) contains the following:

“Prosecute. To follow up; to carry on an action or other judicial proceeding; to proceed against a person criminally. To ‘prosecute’ an action is not merely to commence it, but includes following it to an ultimate conclusion.”

In Service Lumber Co. v. Sumpter Valley Ry. Co. (1915), 81 Ore. 32, 43, 152 P. 262, 264-65, it is said:

“While the word ‘prosecute’ may comprehend the commencement of an action, it includes more. To prosecute an action means not only to file a complaint and serve a summons, but it necessarily includes the carrying on of the action to some conclusion. The following cases, in addition to those cited in the original opinion, bear out the conclusion herein reached: Marryott v. Young, 33 N.J. Law, 336; Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L. Ed. 257; Inhabitants of Knowlton Township v. Read, 11 N.J. Law, 320, State v. McDonald, 2 N.J. Law, 355, 360; Territory v. Nelson, 2 Wyo. 346; Inhabitants of Great Barrington v. Gibbons, 199 Mass. 527, 85 N.E. 737.”

In State v. Cardwell (Mont. 1980), 609 P. 2d 1230, 1232, the court said:

“The terms ‘prosecute’ and ‘prosecution’ have long been defined in the judicial setting. As long ago as 1821, Chief Justice Marshall said, ‘To commence a suit, is to demand something by the institution of process in a court of justice; and to prosecute the suit, is, according to the common acceptation of language, to continue the demand.’ Cohens v. Virginia (1821), 6 Wheat. 264, 408, 19 U.S. 264, 408, 5 L. Ed. 257, 292.”

In our opinion, it is clear from the language of these letters of February 6 and 13,1978, that the only consent given to the insured was to file a suit to prevent the bar of the statute of limitations as to the insurer’s subrogation rights. It was not a consent to “prosecute” the suit, i.e., to obtain any judgment, let alone a default judgment.

In addition, the reference in the policy provision to a “judgment” in an action “prosecuted” with the consent of the insurer makes it clear that prosecution means more than merely filing a suit. The purpose of the “consent to be bound” clause is not to provide an alternative method to arbitration of a dispute between the insurer and the insured; but, as stated in Allstate Insurance Co. v. Pietrosh (1969), 85 Nev. 310, 454 P.2d 106, to preclude the binding effect on an insurer of a judgment entered against the uninsured tortfeasor, particularly when there has been no adversary determination of the uninsured motorist liability or the amount of damages suffered by the insured.

An insurer will “not be required to pay damages in cases in which, because of default, the questions of liability and damages were never really litigated.” MFA Mutual Ins. Co. v. Bradshaw (1968), 245 Ark. 95, 101, 431 S.W. 2d 252, 255.

In Gulf American Fire & Casualty Co. v. Gowan (1969), 283 Ala. 480, 218 So. 2d 688, it was held that the word “conclusive” in a clause identical with the clause before us was meant to mean that such judgment was “admissible” on the issue of whether the insured motorist was in fact liable for damages, but that such judgment was not final on the issue and could be refuted or contradicted by the insurer’s proof. The insurer was free to offer other evidence as to liability of the uninsured motorist and damages incurred.

No Illinois case has been cited concerning this question.

Our research has discovered only one cáse which discussed what would be the likely result, under a clause identical with the clause before us, in a suit filed against the uninsured motorist at the request of the insurance company. In Phoenix Insurance Co. v. Stuart (1972), 289 Ala. 657, 665, 270 So. 2d 792, 799, the court said:

“When Phoenix gave its written consent for Mrs. Stuart to file suit against the uninsured motorist, Holliman, it knew that in all likelihood such a suit would be disposed of either by a default judgment, judgment by agreement of the parties, judgment by the court without a jury, or judgment by the court after a jury verdict was rendered.
There is nothing in this record which even remotely tends to show fraud, collusion or any other improper action on the part of Mrs. Stuart, her counsel, or on the part of Holliman or his counsel. Nor is there anything in the record to indicate that Phoenix sought to intervene in or oppose Mrs. Stuart in her efforts to obtain a judgment against Holliman, the uninsured motorist.
Under the circumstances of this case, we are constrained to the conclusion that the trial court erred in not considering the judgment obtained by Mrs. Stuart in her suit at law against the uninsured motorist, Holliman, as being conclusive of the amount of damages which Mrs. Stuart was entitled to recover from Phoenix under the uninsured motorist provisions of its policy issued to Mrs. Stuart.”

In that case, the consent given in the letter to the insured was broader than that here. It said:

“If you would, please instruct Mr. Turner [counsel for Mrs. Stuart] to go ahead and prepare your case against Mr. Holliman in whatever respects he sees fit because by filing suit against Mr. Holliman you will not waive any of the rights you have under your uninsured motorist coverage of your policy with the Phoenix of Hartford Insurance Company.” (289 Ala. 657, 665, 270 So. 2d 792, 799.)

In the instant case, the only consent was to file the suit, not to carry it to completion. Consequently, the court’s holding in Phoenix was undoubtedly proper. Under the facts in this case we decline to follow its conclusion as to the likelihood of a default judgment being entered with a conclusive effect.

The insurer correctly states that if the request here is construed to be a consent to be bound by a default judgment, then the insurer is faced with a Hobson’s choice: (a) it could request that a suit be filed — and thereby imperil an adversary determination of damages should the insured prevail by default judgment; or (b) it could choose not to request a suit to be filed — and thereby impair its subrogation rights if the applicable statute of limitations ran. Such an impairment of the right to arbitration is against the public policy of mandatory arbitration of disputes involving uninsured motorist claims, as expressed by section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1975, ch. 73, par. 755a).

Until he filed his declaratory judgment suit claiming that the default judgment was conclusive, there is nothing in the record to indicate that the insured did not intend to proceed with the arbitration he had requested.

Accordingly, as to count I, the order of the trial court granting the insured’s motion for judgment on the pleadings and denying the insurer’s motion for summary judgment is reversed and the cause is remanded to the trial court with directions that the parties proceed with arbitration, which is limited by the terms of the policy to the issues of liability of the uninsured motorist and the amount of damages.

Insurer argues that the summary judgment for medical payments and personal injury protection entered on count II in favor of the insured should be reversed. We disagree.

The purpose of the uninsured motor vehicle statute (Ill. Rev. Stat. 1975, ch. 73, par. 755a) is:

“ < o o o to place the policyholder in substantially the same position he would occupy, so far as his being injured or killed is concerned, if the wrongful driver had the minimum liability insurance required by the Financial Responsibility Act.’ ” (Cole v. Shanior (1979), 69 Ill. App. 3d 505, 506-07, 387 N.E.2d 860.)

See also Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 425, 401 N.E.2d 539; Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 176, 370 N.E.2d 1044; Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, 4, 269 N.E.2d 295.

At the time of the accident here, the minimum liability insurance required by the Financial Responsibility Act was $10,000 for each person injured, up to $20,000 for each accident. Ill. Rev. Stat. 1975, ch. 95?2, par. 7 — 203.

Where the damages proved against the uninsured motorist are less than $10,000, to allow recoveries under the medical payments and personal injury protections of the policy which would duplicate damages proved upon arbitration of the damages caused by the uninsured motorist would permit a double recovery in violation of the purpose of the uninsured motorist statute. Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247 (payments under the medical coverage); Hoel v. Crum & Forster Insurance Co. (1977), 51 Ill. App. 3d 624, 366 N.E.2d 901 (payments under the personal injury protection coverage).

We, therefore, do not reverse the summary judgment on count II. On arbitration, if plaintiff’s damages suffered because of the uninsured motorist are less than the $10,000 minimum liability insurance required by the Financial Responsibility Act and if the insurer so requests (see Cole v. Inland National Insurance Co. (1971), 133 Ill. App. 2d 745, 273 N.E.2d 65, leave to appeal denied (1971), 48 Ill. 2d 593), any of those damages which duplicate in kind the recoveries in the summary judgment must be reduced to the extent of those recoveries. In.this manner, plaintiff will receive the protection provided by the uninsured motorist vehicle statute, i.e., the amount actually proved against the uninsured motorist within the $10,000 limit.

The order of the circuit court of Cook County of June 4, 1980, as to count I granting the motion of the insured, Michael Feerer, for judgment on the pleadings and denying the motion of the insurer, North River Insurance Company, for summary judgment is reversed. The summary judgment of September 24, 1980, for the insured, Michael Feerer, on count II is affirmed. The cause is remanded with directions that the insured and insurer proceed with arbitration in accordance with the views herein expressed.

Affirmed in part and reversed in part and remanded with directions.

GOLDBERG and McGLOON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
      In re MARRIAGE OF MARGUERITE E. PETRAMALE, Petitioner-Appellant and Cross-Appellee, and DONALD L. PETRAMALE, Respondent-Appellee and Cross-Appellant.
    Second District
    Nos. 80-292, 81-108 cons.
    Opinion filed December 15, 1981.

      Lee A. Marinaccio, John N. Pieper, and Marcia N. Johnson, all of Botti, Marinaccio and Wilkinson, of Wheaton, for appellant.
    Keith E. Roberts, Rodney W. Equi, and Kristine K. Karlin, all of Donovan and Roberts, of Wheaton, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

This is an appeal by the petitioner, Marguerite Petramale Steindl, from those portions of the judgment of dissolution entered by the Circuit Court of Du Page County which related to the distribution of marital property. Respondent, Donald L. Petramale, cross-appeals that portion of the judgment ordering child support. Mr. Petramale moved to dismiss petitioner’s appeal, and we ordered the motion taken with the case. Subsequent to the filing of the notices of appeal, respondent petitioned the trial court to modify the award of child support due to changed circumstances. The court dismissed his petition, and respondent appeals that order. The cases have been consolidated in this court.

Respondent and petitioner were married in 1955, and four children were born of the marriage. Respondent left the marital home in October 1977, and petitioner filed for a petition of dissolution on March 3, 1978.

At the December 1979 hearing, respondent testified that he was self-employed as an insurance salesman and broker and that he also served as a director of a savings and loan institution for which he received a $300-per-month attendance fee. Respondent had, previous to the time of trial, also, engaged in a photocopy service and supply venture known as PEP Supplies, but he testified that the business suffered a financial reverse in 1978 and that .it had generated very little income in 1979. Petitioner attempted to show that the respondent was involved in a competing photocopy supply enterprise, D & D Copiers, by introducing the testimony of former customers of the first venture to the effect that their accounts were now serviced by D & D Copiers and that Mr. Petramale gave out a D & D Copiers business card and had responded to a phone call to D & D Copiers. Respondent denied ownership in any copy supply business and denied receiving any money from such a business in 1979 except that which was owed him from the 1978 activities of PEP Supplies.

Petitioner had been a homemaker for much of the 24-year marriage. She testified that, although she had had full-time employment in the past, at the time of the hearing she was a part-time waitress earning approximately $65 to $80 per week. Her ability to work full-time was impeded by the needs of the one unemancipated child of the marriage, a 10-year-old boy.

Respondent and petitioner owned various pieces of real estate during the marriage: the marital residence in Bloomingdale, Illinois, which had a mortgage balance of approximately $78,000 at the date of the hearing; a condominium in Longboat Key, Florida which had been sold in February 1979, generating net proceeds of $15,000; and an apartment building in Glendale Heights, Illinois which had also been sold in 1979, producing $42,000 after payment of the outstanding mortgage.

The parties maintained numerous accounts in several financial institutions. Petitioner introduced evidence which showed that respondent had prior to the hearing, withdrawn a total of almost $100,000 from those accounts. But respondent testified that he had paid petitioner over $70,000 since her petition for dissolution was filed. This sum included money paid for the mortgage and utilities on the marital home.

The trial court entered its judgment for dissolution on March 7,1980. It found, inter alia, that respondent had demonstrated a capacity to earn from $30,000 to $50,000 per year and ordered $150 per week child support to be paid to the petitioner, in whom custody of the minor child was placed. Maintenance and attorney’s fees were denied both parties. All money held during the marriage in accounts at four named savings and loan associations was found marital property and ordered to be divided equally. The court ordered that the marital home in Bloomingdale be sold and the proceeds shared equally, finding that its fair cash value was between $140,000 and $190,000 with an outstanding mortgage balance of $45,000. The proceeds from the sales of the real estate in Florida and of the Glendale Heights apartment building were to be divided in equal shares.

Prior to entry of the judgment order, petitioner moved the trial court to clarify its finding that the marital property included “all money held during the marriage by the parties” in accounts at four named institutions. She alleged that she was uncertain of the court’s valuation of the accounts, i.e., whether the court intended that the parties share the balances remaining at the date of the hearing (she alleged there was “little, if any” sums) or the balances prior to the husband’s withdrawals between 1977-1979. The trial court ordered that the finding was based “upon the evidence at trial and clarification is not required.”

Petitioner’s post-trial motion for reconsideration, or in the alternative for a new trial, was denied on March 17, 1980. On April 3, 1980, she moved for a rule to show cause why respondent should not be held in contempt for his failure to comply with certain portions of the judgment order, including the provision that the savings accounts of the parties be divided equally. The trial court ordered that respondent turn over certain items of marital property on pain of a contempt citation but made no mention of the division of the savings accounts.

On April 16,1980, petitioner filed her notice of appeal in this matter. On April 23,1980, respondent’s attorneys were personally served with the notice of appeal. On May 2, 1980, respondent filed his notice of cross-appeal. Five days later, he filed a motion to dismiss petitioner’s appeal on the basis of estoppel. We ordered the motion taken with the case.

On August 8, 1980, respondent filed a petition in the trial court seeking a modification of the decree of child support. In the petition, he alleged that he was required to pay $150 per week child support pursuant to the judgment; that his weekly income was $395 at the time judgment was entered; that subsequent to the entry of judgment his income was reduced to $251 per week; and that the reduction in income constitutes a substantial change in circumstances warranting a modification in the amount of child support. Petitioner filed a motion to dismiss the petition, alleging that the trial court lacked jurisdiction in the matter because an appeal and cross-appeal had been filed and the amount of child support was at issue in the cross-appeal. The trial court granted the motion to dismiss on January 12,1981. Respondent filed a timely notice of appeal.

I

We turn first to the appeal by the respondent of the trial court’s dismissal of his petition to modify the judgment granting child support. Although the respondent had alleged a substantial change in circumstances, the trial court granted the petitioner’s motion to strike, stating that the issue was on appeal.

The general rule is that once a notice of appeal is filed, the trial court is divested of jurisdiction to enter any order involving a matter of substance, and the jurisdiction of the appellate court attaches instanter. (Horzely v. Horzely (1979), 71 Ill. App. 3d 542, 545, 390 N.E.2d 28, 31 (the trial court had no authority to enforce child support decree after notice of appeal and supersedeas bond was filed).) The trial court is thereby restrained from entering any order which would change or modify the judgment or its scope, and from entering any order which would have the effect of interfering with the review of the judgment. Dunn v. Dunn (1979), 71 Ill. App. 3d 649, 653, 390 N.E.2d 136, 139 (the trial court may not bolster its decision by adding further grounds to the order from which appeal had been taken); Shapiro v. Shapiro (1969), 113 Ill. App. 2d 374, 252 N.E.2d 93 (trial court had jurisdiction to enforce decree of separate maintenance where it had expressly retained it).

The trial court retains jurisdiction, however, to determine matters arising independent of, and collateral to, the judgment. (Horzely; Shapiro.) Inasmuch as some aspects of a case may be independent of, and collateral to, the matters raised on appeal, the trial court has power to hear and determine such questions. Thus, for example, the trial court retains jurisdiction to award temporary alimony pending appeal (Horzely) and appellate attorney’s fees (In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 408 N.E.2d 1021). In examining the authority of the trial court to award appellate attorney’s fees, the court in In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 1061, 419 N.E.2d 598, 600, stated:

“[I]t is readily apparent that an award of attorney’s fees to defend a pending appeal necessarily involves an issue that arises after a notice of appeal is filed, and which therefore could not be embraced in the pending appeal. Thus, the award of attorney’s fees to defend a pending appeal is not affected in any way by the appeal, and it is not dependent in any respect on the outcome of the appeal. Nor does the award of attorney’s fees have the effect of interfering with the pending appeal.”

Applying the Giammerino rationale to the case before us, it is irrefutable that the trial court’s modification of the support decree would substantially affect the action of this court. If the trial court found facts which constituted changed circumstances justifying a reduction in payments, it would be unnecessary to decide the issue of whether that court erred in entering its prior order. But, unlike other final orders, a decree of child support is always modifiable. (Ill. Rev. Stat. 1979, ch. 40, par. 510.) Moreover, a trial court has inherent jurisdiction to consider future child support in a dissolution proceeding and need not expressly retain jurisdiction. (Guest v. Guest (1953), 351 Ill. App. 148, 114 N.E.2d 326.) Furthermore, the duration of the appellate process requires that petitioners have a forum available at all times in which support matters may be determined.

We therefore hold that the trial court erred in striking respondent’s petition and remand for consideration the modification petition. In so holding, we find it unnecessary to decide the merits of respondent’s cross-appeal of the original support decree.

II

We now consider respondent’s motion to dismiss petitioner’s appeal. He argues that the petitioner is estopped from appealing the judgment of dissolution because she accepted the benefits of that judgment. We noted above that petitioner brought a rule to show cause against respondent. She alleged that he had not complied with the decree of dissolution in that he failed to turn over to her possession one of their automobiles, monies in the savings accounts, half of an income tax refund, and the proceeds from the sale of the Florida condominium. The trial court entered the rule and respondent complied with the terms of the decree.

The issue is whether petitioner’s actions constitute a release of errors in the judgment of the trial court. A litigant cannot attack a decree if, by reason of enjoying the benefits of the decree, the opposing party would be placed at a distinct disadvantage upon reversal. (Lemon v. Lemon (1958), 14 Ill. 2d 15, 150 N.E.2d 608 (no release where appellant accepted child support payments, and continued to live in marital home); Gregory v. Gregory (1974), 24 Ill. App. 3d 436, 321 N.E.2d 122 (no release where appellant accepted alimony under protest, placing funds into a separate bank account); Kissin v. Kissin (1961), 29 Ill. App. 2d 126, 172 N.E.2d 635 (appellant’s conduct in accepting quitclaim deed, cash, and attorney’s fees while refusing to make restitution for benefits received was a release of errors).) Distinct disadvantage to the opposing party is the key factor. See Katz v. Katz (1973), 10 Ill. App. 3d 39, 293 N.E.2d 904.

The courts have found such a disadvantage where the homestead rights of a party have been prejudiced by a sale of the marital home. (Adams v. Adams (1976), 44 Ill. App. 3d 656, 358 N.E.2d 734.) The acceptance of alimony and attorney’s fees has also been found to constitute a waiver where the appellant would have had no way of refunding the payments should the judgment be reversed. (Boylan v. Boylan (1932), 349 Ill. 471, 182 N.E. 614.) But where the trial court can accommodate the interests of the appellee in distributing marital property, it has been held that the appellant’s action in cashing a bond did not disadvantage the opposing party so as to justify invoking the release of errors doctrine. Sullivan v. Sullivan (1979), 68 Ill. App. 3d 242, 385 N.E.2d 860.

Sullivan resolves the issue before us. In our view, the trial court here could adjust the disposition of marital property such that the respondent is protected from dissipation of his assets should this court reverse. As petitioner points out, funds which were acquired from the sale of the marital home remain in a savings account. We find no distinct disadvantage to the respondent and deny his motion to dismiss the appeal.

III

Turning to the merits of petitioner’s appeal, we begin by noting that the trial court found that the outstanding balance on the mortgage of the marital home was $45,000. But the evidence is clear, and both sides agree, that the actual balance due was $78,000. The trial court’s findings of fact will not be disturbed on review unless manifestly against the weight of the evidence. (In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 393 N.E.2d 1065.) Although it may appear that the error was equally shared, where a marital asset has been improperly valued, the wiser course is to remand all interrelated property and support issues. (In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 636, 397 N.E.2d 488, 495.) We therefore reverse the property disposition and remand for new proceedings.

Because the issue will necessarily arise on remand, we must consider petitioner’s assertion that the trial court erred in failing to find the value of the joint bank accounts of the parties. See City of Chicago v. Callender (1947), 396 Ill. 371, 71 N.E.2d 643.

The Illinois Marriage and Dissolution of Marriage Act requires that the trial court consider the value of the property set apart to each spouse. (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(2).) While it need not make specific findings of fact as to the value of each item in dispute, there must be before the court proper evidence of the value of the marital property. (See In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 399 N.E.2d 1006.) In the case at bar there was testimonial and documentary evidence of the fact that the parties had kept various accounts in four banks but that these accounts had been closed by the husband. The husband also testified that he used these funds to pay marriage debts and that he distributed some of the money to the wife. In view of this evidence and in view of the equal distribution of the funds there was no error in the trial court’s failure to find the amount of the value of the accounts. In re Marriage of Donley (1980), 83 Ill. App. 3d 367, 403 N.E.2d 1337; In re Marriage of Smith (1980), 90 Ill. App. 3d 168, 179, 412 N.E.2d 985, 994-95, rev’d on other grounds (1981), 86 Ill. 2d 518 (no specific findings necessary where the record is adequate to review the property decision).

In view of our disposition of the case, we need not treat petitioner’s further arguments that the trial court failed to adequately consider the alleged dissipation of marital assets; the duration of the marriage; the age, health, and economic potential of each of the parties; and her contention that the trial court erroneously ruled on certain questions of evidence.

Accordingly, the property distribution order of the circuit court of Du Page County is reversed and the cause remanded for a new hearing.

Reversed and remanded.

NASH and VAN DEUSEN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD JOHNSON, Defendant-Appellant.
    Second District
    No. 80-517
    Opinion filed December 15, 1981.

      Mary Robinson and David Morris, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant was indicted on February 14, 1978, in Kane County, for armed robbery, attempt murder, and aggravated battery. (Ill. Rev. Stat. 1977, ch. 38, pars. 18 — 2, 8 — 4(a) and 12 — 4.) On April 10, 1978, just prior to jury selection, the prosecutor informed the court: “I failed to mention we are proceeding only on Count I [armed robbery].” There was no express consent given by the trial court, nor was there any written order nolle pressing or dismissing the remaining two counts. The defendant was convicted by a jury of armed robbery, and his motion for a new trial was denied. He elected to be sentenced under the old Code, and the trial court sentenced him to a term of 21 years to life. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1(b)(2).) Defendant immediately filed his notice of appeal in open court. A subsequent order entered 12 days later reduced defendant’s sentence to not less than 21 years nor more than 63 years, and a second notice of appeal from the amended judgment was filed.

The defendant had been indicted on the charges following his and an accomplice’s alleged armed robbery of a tavern. During the robbery, defendant allegedly told one of the persons in the bar, a 15-year-old boy, to sit on one of the bar stools which was directly in line with the front door of the tavern. Upon completing the robbery and exiting the tavern, the defendant allegedly turned, faced the closed glass door and fired a shot. The shot struck the 15-year-old boy, resulting in permanent paralysis.

On appeal, this court reversed and remanded the cause for a new trial. (People v. Johnson (1979), 76 Ill. App. 3d 147.) The basis for the reversal was that improper evidence of the nature and extent of the boy’s injuries was presented to the jury in view of the fact the defendant was being tried only for the armed robbery offense. Subsequent to this court’s mandate, the defendant was reindicted on January 23, -1980, for attempt murder and aggravated battery. The defendant unsuccessfully moved to quash the indictment. Prior to retrial on May 19, 1980, the prosecutor moved to nolle pros the attempt murder count and the trial court acceded. The jury found the defendant guilty of aggravated battery and armed robbery. Defendant’s motion for a new trial was denied, and he elected to be sentenced under the new Code. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(3).) The court sentenced the defendant to a determinate term of 23 years for armed robbery, and a concurrent five-year term for aggravated battery. The defendant’s notice of appeal was timely filed.

Three issues are raised on appeal: (1) Whether the reindictment for attempt murder and aggravated battery was vindictive and, therefore, violative of due process; (2) Whether the defendant was denied the effective assistance of counsel; and (3) Whether the sentence imposed after retrial was illegal because it exceeded the sentence originally imposed. It is unnecessary for us to discuss the latter two issues; we reverse and remand on the basis of the first issue.

We begin with the premise that the prosecutor’s election to proceed only on the armed robbery charge at the defendant’s first trial effectively nolle prossed the counts for attempt murder and armed robbery. (Sloncen v. People (1895), 58 Ill. App. 315.) Although it is now usual procedure for the State to seek the trial court’s approval before entering a nolle pros (People v. Mooar (1981), 92 Ill. App. 3d 852; People v. Maher (1979), 77 Ill. App. 3d 488), we see no reason why the trial court would not have given its approval if it had been sought, nor did the defendant object to the entry of the nolle prosequis.

Defendant argues the prosecutor acted vindictively in reindicting him for aggravated battery and attempt murder. This court’s opinion reversing the defendant’s conviction for armed robbery explicitly stated reversal would not have been warranted if proof of the armed robbery had halted with the fact of the shooting through the door. Additionally, the court rejected the State’s harmless error argument in view of the fact the defendant’s identity and purported use of the shotgun was established solely by his accomplice’s testimony and statements to others. The court found the evidence of the shooting victim’s injuries and current condition of paralysis even more prejudicial in view of the fact the defendant was not on trial for attempt murder or aggravated battery.

The defendant relies on North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, and Blackledge v. Perry (1974), 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098, for the proposition that he was entitled to pursue his right to appeal free from the potentiality of increased sanction severity upon reversal and/or retrial. Defendant states that the standard on review in such cases is whether there exists a “realistic likelihood of vindictiveness” as the basis for the augmented charges. (People v. Walker (1981), 84 Ill. 2d 512, 524.) Although Walker involved a prosecutor’s decision to seek a greatly enhanced penalty after the defendant successfully had his guilty plea withdrawn, the court there held that the reasoning of those cases has correctly been applied whenever a defendant has chosen to exercise any procedural right. 84 Ill. 2d 512, 520.

Inter alia, the plea bargain in Walker provided the defendant would receive a 60-year sentence. Upon accepting the defendant’s negotiated plea in that case, however, the court inaccurately admonished the defendant that “ ‘[t]he range of sentencing could be 40 to 80 years,’ whereas the indictment’s terms, alleging murder and armed robbery, justified a death sentence hearing.” (84 Ill. 2d 512,514-15.) Since the State’s Attorney took a leading role in those proceedings, and did not challenge the court’s admonitions on the murder count, the Walker court found the State’s Attorney had unmistakably adopted the position that 80 years was the maximum penalty and had, in effect, “notified defendant that death was not a possible penalty for his crimes.” (84 Ill. 2d 512, 523.) Defendant subsequently successfully withdrew the negotiated guilty plea and later entered an unnegotiated guilty plea which resulted in the State seeking, and obtaining, a sentence of death.

The Walker court recognized that the prosecutor has a constitutionally legitimate interest in “persuading” a defendant to forego his right to plead guilty, and that a defendant who chooses to risk an increased sanction rather than plead guilty shall be held to that choice. However, the court also acknowledged that the legitimacy of the latter principle “depends upon a defendant’s knowing, voluntary, and intelligent evaluation of the risks involved.” (84 Ill. 2d 512, 522.) The court found that the prosecutor’s escalation of the possible sanction severity without notice and for no valid reason after the defendant chose to exercise his procedural right to challenge a guilty plea which was not entered knowingly, voluntarily and intelligently, triggered the vindictiveness principles enunciated in Pearce and Blackledge. For its purposes, the court treated the possibility of a death sentence, if not revealed to a defendant, as an “ ‘additional and more serious charge,’ ” given the qualitative difference between death and other penalties. 84 Ill. 2d 512, 522.

The court found the prosecutor’s change of mind in the absence of any alteration of the facts — save the defendant’s invocation of a right the law plainly allows — created the appearance of vindictiveness. Further, given the prosecutor’s stake in discouraging defendants from challenging their guilty pleas and the availability of the means to discourage such challenges (i.e., discretion to seek the death penalty in this instance), the court found that a realistic likelihood of vindictiveness existed as well. Thus, the court concluded the prosecutor was required to point out objective facts which justified his change of mind, as well as being required to put the defendant on notice prior to withdrawal of his plea as to what he will face. The court ultimately found there were no objective facts which would have allowed a change of mind or which had put the defendant on notice as to what he would face.

For purposes of our analysis, we view the defendant’s reindictment for attempt murder and aggravated battery following his assertion of a procedural right the law plainly allows as having subjected him to “increase sanction severity.” Certainly there was the possibility of consecutive sentences (Ill. Rev. Stat. 1979, eh. 38, par. 1005 — 8—4(a)), and, in fact, the State did request that consecutive maximum sentences be imposed. Additionally, the collateral consequences flowing from conviction of two felonies rather than one should not be disregarded. (See generally Blackledge v. Perry (1974), 417 U.S. 21, 28 n.6, 40 L. Ed. 2d 628, 635 n.6, 94 S. Ct. 2098, 2103 n.6.) Paralleling the court’s reasoning in Walker, we note that the only apparent alteration of the facts between the time the State elected at the first trial “to proceed only on Count I” and its reindictment for attempt murder and aggravated battery, was the intervening factor of the defendant’s successful assertion of a procedural right, his direct appeal. This suggests the appearance of vindictiveness. The State argues it was coincidental that the reindictments occurred after defendant secured a new trial. However, no reason was advanced for the almost two-year delay in not proceeding on these charges. Nor is any reason evident why the charges were nolle prossed just before trial. Although the State’s évidence may not have established the intent required to sustain an attempt murder conviction, we have been apprised of no evidence subsequently discovered which would have made conviction for aggravated battery more probable at the second trial than at the first.

Again paralleling the reasoning in Walker, we find the circumstances of this case present a realistic likelihood of vindictiveness, as well. The State has a stake in the swift and sure conviction and punishment of those who violate the law. Analogous to the Blackledge prosecutor’s “considerable stake” in deterring a defendant from appealing to a trial de novo, the State here also had an interest in not having to present its case a second time. (Blackledge v. Perry (1974), 417 U.S. 21, 27, 40 L. Ed. 2d 628, 634, 94 S. Ct. 2098, 2102.) Its discretionary prosecutorial power, when aimed with a bead on those who seek redress, is a formidible retaliatory weapon. Unjustified reindictment of a successful appellant for greater or additional offenses arising out of the same factual situation as the challenged conviction creates an enormous potential for discouraging those who legitimately are entitled to seek review.

We do not disagree with the State that it is well settled that nolle prossed charges ordinarily may be reinstated after successful withdrawal of a guilty plea. (People v. McCutcheon (1977), 68 Ill. 2d 101; People v. Curvin (1980), 81 Ill. App. 3d 481), or that the effect of a nolle prosequi is to put the matter in the same condition as before the prosecution. (People v. Watson (1946), 394 Ill. 177, 179.) However, as indicated, McCutcheon and Curvin both involved charges nolle prossed in consideration for the defendant’s guilty plea. Further, under Supreme Court Rule 605, defendants must be notified that upon withdrawal of a guilty plea, charges dismissed as part of a plea agreement will be reinstated if the State so requests. (Ill. Rev. Stat. 1979, ch. 110A, par. 605(b)(4).) There is no parallel admonition for defendants who have not bargained, and who have borne the burden of re-securing for themselves that which was theirs in the first place: the right to have a fair trial. Although not dispositive of our consideration of the vindictiveness issue, Watson and several recent cases suggest that reindictment on charges unilaterally nolle prossed by the State must be reinstated within term time or be subject to discharge on speedy trial grounds. See generally People v. Watson (1946), 394 Ill. 177, 182; People v. Newell (1980), 83 Ill. App. 3d 133; People v. Sanders (1980), 86 Ill. App. 3d 457; People v. Leannah (1981), 94 Ill. App. 3d 628.

That aside, when there is a realistic likelihood of vindictiveness, the State bears the burden of pointing to objective on-the-record facts which justify a change of mind. (People v. Walker (1981), 84 Ill. 2d 512, 524; United States v. Andrews (6th Cir. 1980), 633 F.2d 449, 456.) The following excerpts from the record reveal the essence of the prosecutor’s two-point argument against the defendant’s motion to quash the reindictment for attempt murder and aggravated battery:

“Now, the purpose of jeopardy is to keep the prosecutor or the State from constantly trying a man on different — on the same fact situation but on different crimes that might arise out of it. In this situation essentially what happened is we tried him on Armed Robbery. We did so improperly. The case went up to the Appellate Court and the Appellate Court reversed.
It went up on the Defendant’s motion for a new trial. That Motion was granted due to the prejudicial error committed by the prosecutor, so it was sent back.
Now, it’s my opinion, Judge, when a Court does that based on the Defendant’s own motion, that essentially you’re starting back down in the trial level at step one. You’re not starting down right before the case goes into the jury or the instructions are read, but rather before the jury is ever impaneled. You’re starting out anew. The defendant is starting out from step one.
# e
The key point here, Judge, is the Court recognizes when a case is reversed and ordered retried, you’re starting out from step one again before anything happened. Necessarily then the Defendant is bound by his own actions by taking the case up and asking for a retrial. There has been no decision. Essentially, the Court is saying nothing happened down here. You’re starting out afresh and anew. And I think the State, therefore, is properly allowed to re-indict this man.
# # O
# * #So that for the two reasons I don’t think jeopardy attached because a juror was not impaneled. And two, even if it did attach, I think because of the motion for a new trial was granted we’re starting fresh again.
Therefore, it’s proper to reindict him on these two charges and certainly proper to present evidence. I disagree with Counsel’s arguments that we’re taking undue advantage of him in denying his due process. Certainly the case went up to the Appellate Court on his own motion and obviously rightfully so. They sent it back because they did so and in effect gave him what he wanted, a new trial.
Certainly the State is not taking any undue advantage of him by putting him on trial and taking advantage of all the crimes that he could have committed and the proofs are permissible on. Therefore, I’d ask that you deny his motion.”

We find these arguments insufficient to justify the defendant’s reindictment. Reindictment after nolle pros is, of course, permissible as the State argued. However, reindictment after nolle pros after assertion of a procedural right is limited by virtue of the vindictiveness analysis. Here, the State was cognizant of all of the facts of the offenses from the beginning. It elected to proceed only on the armed robbery Class 1 felony and unconditionally effected a nolle pros of the other two charges. In the absence of any other justification, the prosecutor’s statement that “the defendant is barred by his own actions by taking the case up and asking for a retrial” exhibits a realistic likelihood of vindictiveness. We conclude the defendant’s conviction and sentence for aggravated battery must be vacated.

Although the State argues the armed robbery conviction should be affirmed even if the aggravated battery conviction is not, we find little difference in the prejudicial effect of the improper evidence presented at the first trial when the aggravated battery charge was not before the jury and its presentation at the second trial when the aggravated battery charge should not have been before the jury. The second jury was similarly improperly advised of the victim’s current paralysis by his testimony and by virtue of the blatant positioning of the victim’s wheelchair during his testimony. (People v. Johnson (1979), 76 Ill. App. 3d 147, 152; People v. Nickolopoulos (1962), 25 Ill. 2d 451.) Accordingly, the judgment of the circuit court of Kane County is reversed and remanded for a new trial on the armed robbery offense.

Aggravated battery conviction and sentence vacated; armed robbery conviction reversed and remanded for a new trial.

SEIDENFELD, P. J., and REINHARD, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY DESPAIN, Defendant-Appellant.
    Second District
    No. 80-235
    Opinion filed December 17, 1981.

      Mary Robinson and David S. Morris, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dallas C. Ingemunson, State’s Attorney, of Yorkville (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Leroy Despain was convicted of murder, following a jury trial, and sentenced to 20 years imprisonment. He appeals, contending only that he was not proved guilty beyond a reasonable doubt.

Defendant argues that the State’s evidence is entirely circumstantial, both as to the criminal agency and as to defendant’s involvement in the death of Margaret Lawton; and that the evidence does not clearly and convincingly show his guilt, but is consistent with a hypothesis of innocence.

On October 4, 1978, Dale Henricksen, a farmer in Kendall County, while “combining” his cornfield near Route 47, observed an object between corn rows, “raised the combine and went over it:” He thought it was an animal of some kind whose legs were sticking out from a decaying blanket. He directed Tom Pedersen, an employee, to “disk” the cornfield, and, specifically to “disk” the object he had seen and “check it out.” Pedersen testified that he did not see anything unusual while he was disking and asked Henricksen to describe the location; he then got off the tractor, found some papers and then the body, later identified as Margaret Lawton.

Pedersen also testified that at about 2:15 p.m. approximately two to four weeks before the body was found he had a conversation with the person whom he identified as defendant; that defendant, in a car, stopped in front of Pedersen’s house, asked and received directions to Indianapolis. This was 300-400 yards west of the place where the body was found. The witness recalled this some two days before the trial. He said the person he described to the state’s attorney and police was driving a “blue” car.

An officer testified that, on October 4, 1978, Pedersen showed him the body, located 326 yards from Route 47 which ran past the cornfield. It had been there for “quite some time.” It was “badly decomposed,” and parts of the skeleton were “scattered about.” A spring-loaded silver clip held together some personal papers which showed the victim’s name and address. Included was Margaret Lawton’s receipt for her driver’s license application. Another officer testified that he removed two beads which were imbedded in the flesh of the body.

Later, in Margaret Lawton’s apartment, officers found the title to a 1970 Pontiac, registered to the victim, and various other papers and objects.

Dr. Morgan, a dentist and forensic odontologist, examined the bones and skull of the victim as well as previous X rays of the head and spine of Margaret Lawton. In his opinion, the X rays and the jawbone and skull all belonged to the same individual. It was also stipulated that a serologist would testify that hair strands on combs and brushes found in Lawton’s apartment were similar to hairs found on the victim’s body. A rib bone fragment found in the victim’s clothes was examined and a forensic scientist gave the opinion that the victim had type “A” blood.

The defendant, claiming to be “Jerry Keller,” was arrested after a traffic violation in Campbellsville, Kentucky, on September 10, 1978, driving a white-over-blue 1970 Pontiac. Police officers. testified that defendant had no identification papers for himself or the car; the car was later established to have belonged to Margaret Lawton; that defendant said he was in Kentucky to visit his parents and claimed to have purchased the car from a man in an Aurora bar, named “Olson,” who was to have mailed him the bill of sale or registration. An officer recognized defendant as a previous neighbor in Campbellsville he knew as Leroy Despain, but defendant said his name was “Keller.” At the Campbellsville police station defendant asked an officer to obtain his shirt and cigarettes seen by the officers in the back seat of the car. The defendant’s sister testified that defendant had long used the name “Jerry Keller.”

After the car was returned to Kendall County, investigating officers found a number of personal items including photographs, books, records, pots and pans in the trunk of the automobile which had belonged to Margaret Lawton.

Various blood stains were found on the upholstery, door posts and interior of the car, including papers which, on examination, were found to contain type “A” human blood. A stain on the cuff of a black shirt found in the car was also determined to contain type “A” human blood.

The coroner testified that the investigation had been unable to determine the cause of death; that while numerous fractures were found, it was assumed that these could have been caused when the disk ran over the body.

The State produced a number of witnesses to show the familiarity of the victim and the defendant. Carolyn Salewski, a bartender at the Fife and Drum Tavern, testified to the victim’s habit of coming into the tavern after work and spending most of the evening at the tavern. There was other testimony that Margaret Lawton regularly came into the tavern, which was across the street from her residence, that she would leave to eat dinner and then come back, usually staying until around 9:30 or 10 p.m. There was testimony that the victim was not a heavy drinker and would sometimes not drink at all while in the bar. Salewski testified that she saw the victim and the defendant approximately three times. She testified that she last saw the victim about two or three weeks before the police came to interview her about the victim’s death. Another witness testified that he saw the victim and the defendant together in the bar once in September, that they left together and that this was approximately three or four weeks before the police came to interview the witness about the death. Another witness testified that the last time she saw the victim, the defendant was in the bar and he came over to have a drink with the victim. She testified that it was approximately IJ2 to two months between the disappearance of the victim and the time when police interviewed her about the victim’s death.

The manager of the apartment house in Aurora where Margaret Lawton was a resident from 1974 to 1978 testified that some time after her disappearance a black male possessing a front door key to Leland Towers came into the lobby, went directly to the mailboxes located on one side of the lobby and used a key to open the box for Room 904, Margaret Lawton’s mailbox, and removed her mail. He then asked the manager if he would let him through the door allowing access to the elevators so that he could deliver Margaret Lawton’s mail to her apartment as he said he had been requested. The manager refused. The manager testified to having seen a picture, but the context of the testimony did not clearly show that he was referring to a photograph of the black man rather than the defendant. When he answered the person’s request as to what he should do with the victim’s mail, by stating that he should put it back in the mailbox, the person did put it back in the mailbox and walked out of the lobby saying something about being hired to answer Margaret Lawton’s phone and answer her mail. There is testimony that the individual waved to or greeted another tenant in the building, a “Reverend” Wesby who, when asked by the manager, said he did not know the man. There was no evidence that the victim had ever been seen with a black man. There were papers found in the victim’s apartment alluding to a business run by the victim, “Margo’s Manpower.” None of the. witnesses were familiar with details of the business.

The defense sought to establish a theory by cross-examination, particularly of Harold O’Banion, an employee of the towing firm which first stored the victim’s car when it was returned to Illinois, that defendant bought the car in which he was found from a person named “Olson.” O’Banion testified that defendant’s brother-in-law, Raymond Brewer, asked to look into the vehicle; that after checking with the police he took Brewer to the car; that he did not know the matter involved a murder; that he understood Brewer was looking for a “bill of sales.” O’Banion said he saw the “bill of sale” and put it back in the glove box; but he did not know whether it was made out to “Jerry Keller” or who signed it. He said he did not look at the paper closely. On cross-examination of police officers, there was testimony that in the course of their investigation they took papers out of the glove compartment to look at them. Officer Loy testified that “we found a title, if [sic] I believe.” No “bill of sale” was presented at trial. The officers denied removing any papers from the car.

No witnesses were called by nor testified for the defense.

Proof of death and proof of a criminal agency causing death are essential elements of criminal homicide which may, however, be furnished by circumstantial evidence. (People v. Gendron (1968), 41 Ill. 2d 351, 360.) The manner of death and the means by which it was inflicted, including the implied intent, may be based on reasonable inferences from the proved and the established circumstances. (People v. Kinzell (1969), 106 Ill. App. 2d 349, 358.) “Circumstantial evidence is generally sufficient to support a conviction if it is inconsistent with any reasonable hypothesis of innocence, but the trier of fact need not search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt. [Citation.]” (People v. Rhodes (1981), 85 Ill. 2d 241, 249. See also People v. Erickson (1980), 89 Ill. App. 3d 56, 59.) The “proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. [Citation.]” (People v. Williams (1977), 66 Ill. 2d 478, 484-85.) Where the circumstantial evidence relied upon to support the defense that another committed the crime is unsatisfactory, based on mere surmise or possibility without evidence to support it, a hypothesis consistent with innocence may be rejected by the trier of the facts. People v. Erickson (1980), 89 Ill. App. 3d 56, 59; People v. Weaver (1980), 90 Ill. App. 3d 299, 310.

We conclude that the circumstances are sufficient to prove beyond a reasonable doubt that defendant was guilty of the murder of Margaret Lawton. We agree with the argument of the State that the fact the victim’s body was hidden in a cornfield and blood of her type was found distributed in the front seat area of her car is sufficient evidence to show that she met her end by criminal means. The circumstances are also sufficient to prove beyond a reasonable doubt that defendant was responsible for the victim’s death. The defendant and the victim were shown to have been acquainted over a period of time; the victim and the defendant left a bar together at a time which was consistent with the disappearance of the victim; the defendant was placed near the scene where the body was found in the same time span; the defendant was later arrested in another State driving the victim’s car with no identification for himself or the car; the car contained a large number of the victim’s personal items; there were numerous blood stains in the car which, on analysis, were shown to be the same blood type as that of the victim; and a black shirt belonging to the defendant was found in the car with the same type blood stains.

The circumstances relied upon by the defendant are insufficient to establish a hypothesis reasonably consistent with innocence.

Defendant’s primary theory is that there is evidence that an unidentified black man could have been the killer and that this raises a reasonable doubt of defendant’s guilt. We cannot agree. The evidence amounts to mere surmise. That the unidentified man had the key to the victim’s mailbox, sought permission to bring her mail to her apartment (which required a magnetic card for the elevator) and who, when refused admittance to the apartment, put the mail back into the box, is insufficient to raise a reasonable doubt of guilt.

Defendant’s reliance on People v. Holsapple (1975), 30 Ill. App. 3d 976, is misplaced. In Holsapple, there were facts which raised a reasonable doubt, such as the time factor, the existence of human hair belonging to a third party found on the victim’s dress, and other evidence which raised a substantial possibility that someone other than the defendant was the assailant. Compare People v. Gaskins (1980), 82 Ill. App. 3d 37, and People v. Erickson (1980), 89 Ill. App. 3d 56.

Nor can we agree that the defendant has produced a credible theory of innocence in explaining away the damaging evidence of being found in the victim’s blood stained car. The fact that he told officers that he had bought the car from a man named Olson in Aurora was not substantiated by the record. There was no evidence to establish the identity of the purported seller. The theory is further made incredible by the fact that when defendant was stopped by the Kentucky police and told them about the supposed sale, he did not produce any bill of sale or proof of ownership. It is also incredible that one would buy a blood splattered car and retain in it numerous belongings of Margaret Lawton, based on an innocent hypothesis. The evidence that there was some kind of a “bill of sale” in the glove compartment which has not been produced is a somewhat curious part of the record which the jury could assess but is not sufficient to support defendant’s theory, particularly in view of the fact that the car title, unsigned, was found in the victim’s apartment.

The proof supports the finding of defendant’s guilt beyond a reasonable doubt, and excludes every reasonable hypothesis of inno-. cence. The judgment is therefore affirmed.

Affirmed.

UNVERZAGT and HOPE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TED W. ROSSI, Defendant-Appellee.
    Second District
    No. 80-290
    Opinion filed December 17, 1981.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Robert L. Thompson and Barbara A. Preiner, Assistant State’s Attorneys, of counsel), for the People.
    Edwin T. Simpson, of Wheaton, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

On September 8, 1979, defendant, Ted Rossi, was arrested and charged with unlawful possession of a controlled substance in violation of section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 561Í, par. 1402(b)). The defendant filed a motion to suppress evidence seized as a result of that arrest, and the trial court granted the motion, suppressing a quantity of phencyclidine, PCP, recovered from defendant’s wallet. The State appeals.

In the early morning hours of September 8,1979, Lisle police officer John Hughes stopped a vehicle which was traveling westbound on Ogden Avenue as he noticed its rear taillight was out. He asked the driver, Mr. Tomas, for his driver’s license. Tomas did not have one in his possession, and further advised Officer Hughes that he was not the owner of the vehicle, but that the passenger, defendant Rossi, was the owner.

Officer Hughes then walked around to the passenger side of the vehicle, asked the passenger to roll down the window and proceeded to talk to him. Hughes asked the passenger if he knew that his right rear taillight was out, but he testified at the suppression hearing that the passenger “just kind of looked at me.” Officer Hughes observed a beer bottle in the rear passenger side of the motor vehicle, and at that time he asked the driver and passenger to exit the vehicle. Hughes noted that the defendant “had a hard time walking” and was “swaying” on his feet. Officer Hughes then asked the defendant if he had his driver’s license, but the defendant mumbled incoherently.

Shortly thereafter, another Lisle policeman, Officer Arp, arrived at the scene. Hughes asked Arp to stand with the driver and passenger while he searched the vehicle for other beer. During the search, Hughes discovered a small “roach,” and Old Style beer can underneath the driver’s seat and a hunting knife with an open sheath. After he found the hunting knife, Officer Hughes advised Arp to search the subjects while he continued searching the vehicle.

Arp conducted a pat down of the driver and passenger after Hughes had removed the bottle of beer and the knife from the interior of the vehicle. Arp did not find a weapon. He then asked the defendant for his name and identity. Arp also received an incoherent response.

The defendant appeared to Arp possibly to be under the influence of narcotics. He advised the defendant that he was going to remove his wallet to which the defendant did not reply. Arp testified that his purpose in removing the wallet from defendant’s person was to obtain identification because when they have someone in custody they like to know who they are dealing with and for possibly writing a citation for open liquor. Officer Hughes testified he was considering making an arrest for possession of cannabis and transportation of open liquor.

Arp removed defendant’s wallet, opened it and immediately observed a small piece of paper. From previous experience he recognized the paper as a “snow seal,” i.e., a specially folded paper used to transport narcotics. Upon opening the snow seal, Arp found light brown powder which he believed to be PCP. He placed the defendant under arrest for possession of a controlled substance. (Ill. Rev. Stat. 1979, ch. 56%, par. 1402(b).) The trial court granted the defendant’s amended motion to suppress the physical evidence seized, and this appeal followed.

The State contends that police had authority to search the defendant for identification upon his refusal or inability to provide identification. The State theorizes it was not unreasonable to suspect the vehicle may have been stolen where its driver had no driver’s license and where the driver said that the defendant and not he owned the vehicle. Additionally, the State contends the search for identification was authorized by section 107.14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 107.14):

“A peace officer after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the stop that the person is committing, is about to commit, or has committed an offense as defined in section 102 — 15 of this Code and may demand the name and address of the person and an explanation of his actions.” (Ill. Rev. Stat. 1979, ch. 38, par. 107 — 14.)

The State also relies upon cases which have. authorized searches of incoherent persons for identification where there was no probable cause to arrest but the defendant’s physical condition suggested a potentially serious illness requiring attention. See People v. Smith (1970), 47 Ill. 2d 161; People v. Smith (1969), 44 Ill. 2d 82; People v. Gonzales (1960), 182 Cal. App. 2d 276, 5 Cal. Rptr. 920; United States v. Hickey (E.D. Pa. 1965), 247 F. Supp. 621.

The defendant’s arguments in support of the trial court’s suppression of the evidence are that (a) the search for the wallet for identification was not incident to a lawful arrest and therefore unsupported by probable cause, (b) authority to search the defendant was limited to the Terry pat-down for weapons based upon the discovery of the knife in the vehicle (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868), (c) there were no exigent circumstances such as life-saving actions authorizing a search as an exception to the general rule against warrantless searches, and, (d) the defendant, being in a custodial setting, was entitled to Miranda warnings prior to the wallet identification search (Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612).

At the outset we agree with defendant that there was no evidence introduced to suggest the defendant was in extremis or otherwise in need of police assistance for medical reasons. (See People v. Smith (1970), 47 Ill. 2d 161.) Neither officer suggested at any time that they had concern for defendant’s well-being except that he might fall on the rutted shoulder of the road upon emerging from the vehicle. This concern hardly would be sufficient to warrant the intrusion to the person required by a search for a wallet nor did the officers attribute the search to that reason. Smith is inapposite and furnishes no basis for the search in the case at bar.

Defendant argues that the fruits of the search were properly suppressed for the further reason that since the defendant was in custody he was entitled to be made aware of his Miranda rights. (People v. Kennedy (1978), 66 Ill. App. 3d 267.) We disagree. The PCP discovered in the defendant’s wallet was the result of a search and not the result of a statement made by the defendant. The prohibition of Miranda relates to statements made by the defendant stemming from custodial interrogation. (Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612.) Defendant Rossi made no statements to the officers whatsoever. In fact it was his incoherence and inability to communicate that precipitated the search for his wallet. Under these circumstances we conclude there is no violation of defendant’s rights as set forth in Miranda.

Finally, defendant maintains that the search could not be condoned as one incident to arrest as no probable cause existed for an arrest. We disagree. We view this incident as being one where the police had probable cause to arrest the defendant for illegal possession of cannabis (Ill. Rev. Stat. 1979, ch. 56%, par. 701 et seq.) and transportation of open liquor (Ill. Rev. Stat. 1979, ch. 95M, par. 11 — 502). See People v. Zeller (1977), 51 Ill. App. 3d 935.

The original stop for a defective taillight was a legal stop (Ill Rev. Stat. 1979, ch. 95½, par. 12—208; People v. Kelly (1979), 76 Ill. App. 3d 80) and was determined as such in the findings of the trial court. Defendant does not contest the validity of the stop, the search of the vehicle which led to the discovery of the alleged cannabis “roach” and beverage in open beer containers, or the Terry pat-down search of the defendant pursuant to the discovery of the hunting knife during the vehicle search. See Terry v. Ohio.

The testimony of Officer Hughes was that upon discovering the knife and the beer in open containers he considered arresting the defendant for unlawful use of weapons and illegal transportation of open liquor. Officer Arp indicated that his search for identification was for a possible citation for possession of cannabis and to learn the identity of the person they had in custody. It is reasonable to conclude from these circumstances, the full development of which appears to have been foreshortened by the discovery of the PCP, that the defendant was in custody as testified to by Officer Arp and would have been advised of his arrest but for the discovery of the PCP.

One of the recognized exceptions to the general rule that warrantless searches are per se unreasonable (Katz v. United States (1967), 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514) is a search incident to a lawful arrest (Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034). A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the fourth amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search. United States v. Robinson (1973), 414 U.S. 218, 236, 38 L. Ed. 2d 427, 441, 94 S. Ct. 467, 477.

Furthermore, such a search may be made immediately prior to the arrest and need not take place subsequent to it. (Rawlings v. Kentucky (1980), 448 U.S. 98, 111, 65 L. Ed. 2d 633, 645-46, 100 S. Ct. 2556, 2564; People v. De La Fuente (1981), 92 Ill. App. 3d 525.) In a companion to the heralded case of Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889, Mr. Justice Harlan observed in his concurrence in Peters v. New York (1968), 392 U.S. 40, 77, 20 L. Ed. 2d 917, 943, 88 S. Ct. 1889, 1909:

“Of course, the fruits of a search may not be used to justify an arrest to which it is incident, but this means only that probable cause to arrest must precede the search. If the prosecution shows probable cause to arrest prior to a search of a man’s person, it has met its total burden. There is no case in which a defendant may validly say, ‘Although the officer had a right to arrest me at the moment when he seized me and searched my person, the search is invalid because he did not in fact arrest me until afterwards.’ ”

See 2 W. LaFave, Search and Seizure §5.4(a) (1978 and Supp. 1981).

Therefore we conclude that the search of the defendant for his wallet for identification was validly made pursuant to the existence of probable cause for an arrest. Prior to the search the police observed defendant in possession of what appeared to be cannabis and open containers containing alcoholic beverage in violation of State statutes which provided probable cause for arrest and a search incident to arrest. The police testified that they and the assistant State’s Attorney chose not to charge the defendant with those lesser offenses in light of the discovery of the more serious offense of possession of PCP. Finally, the fact that the arrest of defendant did not take place before the search and was not for the original offenses does not vitiate the existence of probable cause for the search incident to arrest.

The order of the circuit court of Du Page County suppressing the PCP discovered by police while searching the wallet of the defendant is reversed and the cause remanded for further proceedings.

Reversed and remanded.

UNVERZAGT and REINHARD, JJ., concur.


author: JUSTICE REINHARD

text:
    MELODY WIRTH, Plaintiff, v. THE CITY OF HIGHLAND PARK, Defendant and Third-Party Plaintiff-Appellee.—(DANIEL WIRTH, Third-Party Defendant-Appellant.)
    Second District
    No. 81-367
    Opinion filed December 17, 1981.
    Donald Ridge, of Waukegan, for appellant.
    David R. Quade, of Diver, Bollman, Grach and Quade, of Waukegan, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

We have allowed this appeal from an interlocutory order which was certified to this court by the trial court pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308). The question raised is whether interspousal tort immunity (Ill. Rev. Stat. 1979, ch. 40, par. 1001) precludes a third-party action for statutory contribution (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)) where the third-party defendant sought to be joined was married to the plaintiff at the time the cause of action arose and the plaintiff’s original action is based on a common law tort. The trial court denied the third-party defendant-spouse’s motion to dismiss the third-party complaint based upon interspousal tort immunity and further found that the order involved a question of law as to which there is a substantial ground for a difference of opinion and an immediate appeal may materially advance the ultimate termination of the litigation.

The complaint alleged that on March 21,1980, Melody Wirth, plaintiff, was a tenant in a building “owned, operated, managed, maintained and controlled” by the defendant, City of Highland Park (city); that on that date plaintiff slipped and fell down a stairway in said building; that the city was guilty of one or more acts of negligence; and that as a proximate result of that negligence, she sustained serious injury. The city filed an answer admitting ownérship of the building and generally denying the other material allegations of the complaint. It then filed a third-party complaint against Daniel Wirth, third-party defendant, which alleged that on March 21, 1980, he “operated, managed, maintained and controlled the premises”; that if plaintiff was injured by someone other than herself, it was a result of the negligence of Daniel Wirth; and that it has a right of contribution from Daniel Wirth pursuant to section 1(a) of “An Act in relation to contributions among joint tort-feasors” (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)). Daniel Wirth moved to dismiss the third-party complaint against him based upon the statutory defense of inter-spousal tort immunity (Ill. Rev. Stat. 1979, ch. 40, par. 1001), and attached to the motion an affidavit stating that Melody Wirth was the spouse of Daniel Wirth on March 21, 1980, and they remained husband and wife. The trial court denied the motion to dismiss and this interlocutory appeal ensued.

At issue is an interpretation of the interplay between two statutes, namely, that providing for interspousal tort immunity (Ill. Rev. Stat. 1979, ch. 40, par. 1001) and that allowing a third-party action for contribution (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)), which respectively provide as follows:

“A married woman may, in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried; provided, that neither husband nor wife may sue the other for a tort to the person committed during coverture. An attachment or judgment in such action may be enforced by or against her as if she were a single woman.” Ill. Rev. Stat. 1979, ch. 40, par. 1001.
“Right of Contribution, (a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.” (Ill. Rev. Stat. 1979, ch. 70, par. 302(a).)

A brief historical review is necessary.

At common law, husband and wife were merged into one legal entity — that of the husband. Blackstone wrote that “[b]y marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during marriage, or at least is incorporated and consolidated into that of the husband.” (Note, Domestic Relations — Abrogation of Interspousal Immunity — An Analytical Approach, 19 DePaul L. Rev. 590, 591 n.4 (1970), quoting 1 Blackstone, Commentaries 442 (1768).) The Illinois legislature provided for the legal emancipation of women by enacting the Married Women’s Act of 1874 (now codified at Ill. Rev. Stat. 1979, ch. 40, pars. 1001-1021). (See Brandt v. Keller (1952), 413 Ill. 503, 507, 109 N.E.2d 729.) This act provided, in substance:

“* e ° a married woman may, in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried; that if husband and wife are sued together, the wife may defend in her own right; that a wife may make contracts and incur liabilities to the same extent and in the same manner as if she were unmarried; that the husband is not liable for his wife’s torts, except in cases where he would be jointly responsible with her if the marriage did not exist; that a wife has the right to retain her earnings, but she is not entitled to compensation for labor performed for her minor children or her husband; that a wife may own, control and convey property, and the rents and profits therefrom, and that if either husband or wife unlawfully obtains or retains possession or control of property belonging to the other, either before or after marriage, the owner may maintain an action therefor, to the same extent as if he or she were unmarried.” Brandt v. Keller (1952), 413 Ill. 503, 507, 109 N.E.2d 729.

In Brandt v. Keller (1952), 413 Ill. 503, 109 N.E.2d 729, the Illinois Supreme Court construed the phrase “in all cases” in the Married Women’s Act of 1874 (Ill. Rev. Stat. 1951, ch. 68, par. 1, now at Ill. Rev. Stat. 1979, ch. 40, par. 1001). The phrase referred to a married woman maintaining an action in tort. The court determined that the phrase must be interpreted to include any actions by or against a married woman. (413 Ill. 503, 512, 109 N.E.2d 729.) This included tort actions against her husband. (413 Ill. 503, 513, 109 N.E.2d 729.) The court rejected the public policy argument that domestic tranquility demanded a continuation of the inter-spousal tort immunity, stating that “when one spouse assails another or brings suit, there is not much domestic tranquility left to disrupt.” (413 Ill. 503, 511, 109 N.E.2d 729.) In 1953, the Illinois legislature amended the Married Women’s Act of 1874 to provide that “neither husband nor wife may sue the other for a tort to the person committed during coverture.” (Now codified at Ill. Rev. Stat. 1979, ch. 40, par. 1001.) The effect of the amendment was to re-establish what had been the common law rule of interspousal tort immunity. A succession of Illinois opinions thereafter construed the amendment as a substantive bar to personal injury litigation between spouses. (See Wartell v. Formusa (1966), 34 Ill. 2d 57, 60, 213 N.E.2d 544; Heckendorn v. First National Bank (1960), 19 Ill. 2d 190, 193, 166 N.E.2d 571.) In Heckendorn, the court found that the intent of the amendment was to “prevent a cause of action” for torts committed during coverture “from coming into being.” 19 Ill. 2d 190, 193, 166 N.E.2d 571.

Recently, the Illinois Supreme Court held that a third-party insurance company cannot raise the interspousal tort immunity as a defense to an action brought by one spouse seeking to recover for injuries under an uninsured motorist provision. (Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 396 N.E.2d 528.) The court stated that 9 9 the effect of the 1953 amendment was not to destroy the cause of action of the injured spouse, but to confer immunity on the tortfeasor spouse, which like a defense based upon the statute of limitations can be waived by the defendant spouse.” (77 Ill. 2d 384, 390, 396 N.E.2d 528.) The immunity is thus seen now as a procedural, not a substantive, bar to actions between spouses.

With respect to the doctrine of contribution among joint tortfeasors, the rule at common law was that contribution was not permitted. While traditionally joint tortfeasors have been jointly and severally liable to a plaintiff, contribution, which only affects the rights of defendants between themselves, has been denied. The rule denying contribution historically evolved from an unwillingness to grant relief to intentional wrongdoers for the consequences of their wrongful acts. (See Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 7-9, 374 N.E.2d 437, modified (1978), 70 Ill. 2d 16.) Until the Skinner decision, Illinois courts attempted to expand the implied indemnity concept, based upon active-passive negligence in order to ameliorate the harsh effects of the bar to contribution. (See, e.g., Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill. 2d 445, 322 N.E.2d 58; Miller v. DeWitt (1967), 37 Ill. 2d 273, 226 N.E.2d 630; Chicago & Illinois Midland Ry. Co. v. Evans Construction Co. (1965), 32 Ill. 2d 600, 208 N.E.2d 573.) Finally, our supreme court concluded in Skinner that they would judicially abolish this unsound and unjust doctrine which was judicially created, and held:

“We are of the opinion that there is no valid reason for the continued existence of the no-contribution rule and many compelling arguments against it. We agree with Dean Prosser that ‘[t]here is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the existence of liability insurance, the plaintiff’s whim or spite, or his collusion with the other wrongdoer, while the latter goes scot free.’ Prosser, Torts sec. 50, at 307 (4th ed. 1971).” (70 Ill. 2d 1, 13, 374 N.E.2d 437.)

Soon thereafter, the Illinois General Assembly enacted legislation approved on September 14, 1979, and applicable to all causes of action arising on or after March 1,1978, establishing legislatively a right of contribution. Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.

Turning to the case at bar, Daniel Wirth, the third-party defendant, argues that in order to bring an action for contribution pursuant to the statute on contribution among joint tortfeasors, it is essential that the injured party has a legally recognized remedy against both the party seeking contribution and the party from whom contribution is sought. He states that contribution may not lie under the statute unless the third party is “subject to liability in tort” to the plaintiff. (Ill. Rev. Stat. 1979, ch. 70, par. 302(a).) Since one spouse cannot maintain an action in tort against the other (Ill. Rev. Stat. 1979, ch. 40; par. 1001), a spouse, he argues, is not subject to liability in tort to the other spouse and therefore a third-party action for contribution may not lie. He further contends that the doctrine of interspousal immunity as interpreted in Illinois and in other jurisdictions precludes an action for contribution when the injured party and the person sought to be joined were married at the time of the occurrence.

The city asks this court to read the interspousal tort immunity statute (Ill. Rev. Stat. 1979, ch. 40, par. 1001) in pari materia with the statute concerning contribution among joint tortfeasors (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)). The city argues that: (1) the public policy reasons behind interspousal immunity do not apply to actions for contribution among joint tortfeasors; (2) the doctrine of contribution involves only the substantive rights between the tortfeasors; (3) to allow spousal immunity to bar the right of contribution would allow the spouse tortfeasor to profit at the expense of the nonspouse tortfeasor; (4) the trend in Illinois is to do away with bars to contribution; and (5) the majority of States have limited or totally abrogated the interspousal tort immunity.

There being no other Illinois court to have considered this question, we first turn to other jurisdictions which have considered the question. Among the States, there has been a wide difference of opinion concerning the interaction of interspousal tort immunity and contribution among joint tortfeasors. (See Note, Contribution Among Joint Tortfeasors When One Tortfeasor Enjoys a Special Defense Against Action by the Injured Party, 52 Cornell L.Q. 407, 408-12 (1967).) In the past, courts deciding this particular issue have denied contribution to the third-party against the spouse on the basis that no element of common liability of both tortfeasors to the injured spouse existed. (Annot., 19 A.L.R.2d 1003 (1951).) However, a trend began with the Pennsylvania case of Fisher v. Diehl (1945), 156 Pa. Super. 476, 40 A.2d 912, to abrogate the doctrine of interspousal immunity and allow contribution to the third party against the tortfeasor-spouse. Currently, 25 States have totally abolished the doctrine of interspousal tort immunity; five States have abrogated the doctrine with regard to automobile accidents; three States have abrogated the doctrine as applied to intentional torts; six States still adhere to the doctrine in general, but allow contribution. (See Renfrow v. Gojohn (Mo. App. 1980), 600 S.W. 2d 77, 80-82 (nation-wide compilation of cases concerning interspousal immunity).) Both commentators on this subject and the trend of the more recent cases appear to reject the common law rule of interspousal tort immunity. (See Lusby v. Lusby (1978), 283 Md. 334, 390 A.2d 77.) The Restatement (Second) of Torts also rejects the doctrine of interspousal tort immunity. Restatement (Second) of Torts §895F, comment a (1979).

In Fisher v. Diehl (1945), 156 Pa. Super. 476, 40 A.2d 912, an accident occurred between two cars, one driven by Richard Diehl and the other by Maurice Fisher in which his wife, Louise Fisher, was a passenger. Mrs. Fisher was injured as a result of the accident and brought suit against Diehl for those injuries. Diehl filed a petition alleging that Fisher was jointly negligent and should therefore be joined as a party defendant to Mrs. Fisher’s suit. The Pennsylvania court allowed Diehl’s petition, stating that this was not equivalent to permitting an action by the wife against her husband. (156 Pa. Super. 476, 484, 40 A.2d 912, 917.) The court determined that allowing the contribution “was in the interest of right and justice, and that to have refused to have done so would have been an injustice to the original defendant.” (156 Pa. Super. 476, 487, 40 A.2d 912, 918.) The Pennsylvania court did limit the action in that the injured wife could not enforce any judgment obtained against the tortfeasor husband. (156 Pa. Super. 476, 483, 40 A.2d 912, 916.) Other courts have abrogated interspousal tort immunity with respect to actions for contribution on the grounds that the action for contribution is really an action separate from the original suit for damages and that equity and judicial fairness demand that contribution be allowed. Paoli v. Shor (Fla. App. 1977), 345 So. 2d 789, aff'd sub nom. Shor v. Paoli (Fla. 1977), 353 So. 2d 825; Bedell v. Reagan (1963), 159 Me. 292, 192 A.2d 24; Hayon v. Coca Cola Bottling Co. (1978), 375 Mass. 644, 378 N.E.2d 442; Zarrella v. Miller (1966), 100 R.I. 545, 217 A.2d 673, contra, Shell v. Watts (1972), 125 Ga. App. 542, 188 S.E.2d 269, rev'd in part on other grounds (1972), 229 Ga. 474, 192 S.E.2d 265; Ennis v. Donovan (1960), 222 Md. 536, 161 A.2d 698; Martinez v. Lankster (Mo. App. 1980), 595 S.W.2d 316.

The Louisiana Supreme Court has limited its interspousal tort immunity act (La. Rev. Stat. Ann. §9:291 (West 1965)) to apply only to suits between spouses. (Smith v. Southern Farm Bureau Casualty Insurance Co. (1965), 247 La. 695, 706-07, 174 So. 2d 122, 126.) The Louisiana court also determined that “at the time when the tortious conduct occurred, a legal liability or obligation was created in the husband, in solido with the other joint tortfeasor, to repair the wife’s damage caused through their concurring fault.” (247 La. 695, 706, 174 So. 2d 122, 126.) Louisiana, therefore, looks to whether a cause of action exists, not whether it may be enforced.

Cases in other jurisdictions cited by the third-party defendant in his brief, Shonka v. Campbell (1967), 260 Iowa 1178, 152 N.W.2d 242, and Ackerson v. Kibler (1931), 138 Misc. 695, 246 N.Y.S. 580, and others discovered in our research which have disallowed an action for contribution from a spouse or someone else immune from direct suit, are generally founded upon the principle that the right to contribution is dependent upon the injured party having a cause of action against the person from whom contribution is sought. As such, the right of contribution is a derivative right and not a new cause of action. (Ennis v. Donovan (1960), 222 Md. 536, 161 A.2d 698.) Since Illinois now has by statute established interspousal tort immunity and contribution among joint tortfeasors, our resolution of the issue before us must be determined by an interpretation of these statutes and the recent rulings of our supreme court in Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 396 N.E.2d 528, Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, and Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, modified (1978), 70 Ill. 2d 16.

The recent trend in Illinois has been to curtail common law tort doctrines to allow contribution among joint tortfeasors (Ill. Rev. Stat. 1979, ch. 70, par. 302(a); Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, modified (1978), 70 Ill. 2d 16) and comparative negligence (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886). One commentator has noted that perhaps the Illinois contribution statute (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)) abolishes the traditional notion of common law tort immunities. (Comment, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. L. Rev. 173, 194 (1980).) In a parallel situation the Skinner decision balanced policy considerations which immunize an employer from direct suit by an employee with policy considerations which make people who cause an injury responsible for their degree of culpability and allowed contribution from an employer. (70 Ill. 2d 1, 15-16, 374 N.E.2d 437.) In Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, the Illinois Supreme Court abolished the long used rule of contributory negligence in favor of “pure” comparative negligence on the basis that the “pure” form of comparative negligence “is the only system which truly apportions damages according to the relative fault of the parties and, thus, achieves total justice.” (85 Ill. 2d 1,27,421 N.E.2d 886.) Both the Illinois Supreme Court in deciding the Skinner and Alois cases and the legislature in enacting a statute on contribution (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)) have found a pressing need to act against the harsh results inherent in both contributory negligence and in a no-contribution rule. For us to allow a loophole to contribution would mar our promising new contribution and comparative negligence schemes as well as detract from an equitable development of these doctrines.

The Illinois statute in relation to contribution among joint tortfeasors (Ill. Rev. Stat. 1979, ch. 70, pars. 301-305) is generally patterned after the Uniform Contribution Among Tortfeasors Act (12 Uniform Laws Annotated (1975)). The Uniform Act is broadly worded so that each jurisdiction may determine whether to apply common law immunities. (See Uniform Contribution Among Tortfeasors Act (12 Uniform Laws Annotated §1, Commissioner’s Comment, at 64 and 77 n.18 (1975)).) It provides * 6 where two or more persons become jointly or severally liable 6 e whereas, in comparison, the Illinois Act provides * ° where two or more persons are subject to liability * ” We can perceive no clear legislative intent in the words of the Illinois act to indicate that interspousal tort immunity was meant to bar contribution from a negligent spouse. Had this been intended, specific language could have been inserted, such as has been done by the legislature in Tennessee, which added the words:

e 9 but no right of contribution shall exist where, by virtue of intra family immunity, immunity under the workers’ compensation laws of the State of Tennessee, or like immunity, a claimant is barred from maintaining a tort action for injury or wrongful death against the party from whom contribution is sought * * e.” (Tenn. Code Ann. §29 — 11—102 (1980).)

Comment on the history for the Illinois act indicates that any common law or statutory immunity should not apply:

“ ‘It is the further intent of the committee that the right of contribution thus created be recognized as founded upon the doctrine of unjust enrichment. The right is a separate right of restitution. It is not a derivative right and thus is not barred by any common law or statutory immunity which would preclude the prime claimant from pursuing an action directly against the party from whom contribution is sought.’ ” (Emphasis added.) (Comment, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. L. Rev. 173, 193 (1980) quoting legislative history behind Senate Bill 308, published by the Chicago Bar Association’s Civil Practice Committee, at 2.)

Thus, the conclusion which can be drawn is that an immunity which one tortfeasor may use as a defense in an action by the plaintiff is not a bar to an action by a joint tortfeasor for contribution. (See Comment, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. L. Rev. 173, 194 (1980).) In our view the import of our interspousal tort immunity statute is to provide a procedural bar only to direct suits between spouses, rather than to preclude the substantive cause of action between spouses. (See Zarrella v. Miller (1966), 100 R.I. 545, 217 A.2d 673.) Thus, the cause of action exists, but it cannot be enforced. Accordingly, where the bar is removed, i.e., where the suit is not a direct action between spouses, then contribution may be sought from a tortfeasor spouse, who may otherwise be liable to the plaintiff spouse, but is immune from direct suit. This interpretation is consistent with the decisions in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, modified (1978), 70 Ill. 2d 16, and Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, which sought to apportion damages for tort injuries as equally as possible among those who were liable.

In view of the trend in other jurisdictions and the views set out by the Illinois Supreme Court in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, modified (1978), 70 Ill. 2d 16, and Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, for an equitable distribution of fault in negligence suits, we believe equity requires that contribution be allowed even where our statute provides for interspousal tort immunity which would bar a direct suit by the plaintiff. Such a rule is consistent with the desirable policy of the equitable distribution of loss among those parties responsible. The order of the trial court denying the third-party defendant’s motion to dismiss and allowing the contribution action is hereby affirmed.

Affirmed.

NASH and LINDBERG, JJ., concur.