author: PRESIDING JUSTICE WELCH

text:
    NUTRITION HEADQUARTERS, INC., Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE OF THE STATE OF ILLINOIS, Defendant-Appellee.
    Fifth District
    No. 5 — 83—0377
    Opinion filed May 4, 1984.
    James W. Morris, of Barrett, Twomey, Morris & Broom, of Carbondale, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Frederic D. Tannenbaum, Assistant Attorney General, of counsel), for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

The question presented here is whether the act of placing mailing labels on, sorting and mailing advertising circulars in Illinois is taxable under the Service Use Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 439.31 et seq.), when the circulars are printed outside Illinois and are mailed to locations outside Illinois. We hold that that act is not taxable under those circumstances.

The taxpayer in these proceedings is Nutrition Headquarters, Inc., a Delaware corporation authorized to do business in Illinois. Its trade is the mail-order sale of vitamins and health food products. Those orders are filled at the taxpayer’s Carbondale establishment. The taxpayer has customers in all 50 States, and the number of its customers in each State is roughly proportional to the population of that State.

At an administrative hearing before the Department of Revenue, the taxpayer’s president, Henry Rosenberger, explained that the taxpayer solicits orders by sending catalogs or advertising circulars through the mails. Those circulars are printed outside Illinois and are shipped to Carbondale with postal indicia printed on them, but without mailing labels. The circulars are unloaded and passed through an addressing machine which applies customer address labels. The taxpayer’s employees then remove the circulars from the machine, tie them in bundles and place them in mail sacks to which are affixed labels specifying a post office sectional center to which a particular sack will be sent. The sacks are then taken to the Carbondale Post Office.

Henry Rosenberger admitted that the circulars could be addressed where they are printed and mailed directly from those locations. However, that could jeopardize the confidentiality of what Rosenberger termed the principal asset of the taxpayer, namely its mailing list. Approximately 85% of the taxpayer’s business consists of orders from customers already on that list.

Prior to the institution of these proceedings, the Department of Revenue (the Department) only assessed service use taxes on the la-belling, sorting and mailing of circulars to locations within Illinois. The taxpayer does not question this policy. In October 1980, the Department sent notice of its intent to assess taxes on all circulars processed by the taxpayer, resulting in an assessment of approximately $77,000 for the period between January 1, 1977, and February 29, 1980. The taxpayer protested, and an evidentiary hearing was held before the Department, following which the referee upheld the assessment on the processing of all circulars. That decision was affirmed by the circuit court of Jackson County.

In this court, the taxpayer argues that (1) its act of processing the circulars is not a “use” within the meaning of the Service Use Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 439.32), (2) its act is within the “temporary storage” exception to the tax (Ill. Rev. Stat. 1983, ch. 120, par. 439.33(d)), and (3) application of the tax to its processing of all circulars would be an unconstitutional burden on interstate commerce. Because we agree that the temporary storage exception covers the taxpayer’s processing of circulars which are sent to locations outside Illinois, we need not address the constitutional argument.

The Service Use Tax Act (the Act) imposes a tax upon “the privilege of using in this State real or tangible personal property *** acquired as an incident to the purchase of a service from a serviceman.” (Ill. Rev. Stat. 1983, ch. 120, par. 439.33.) Printed materials are tangible personal property acquired as an incident to the purchase of a service from a serviceman within the meaning of the statute. (Deere & Co. v. Allphin (1977), 49 Ill. App. 3d 164, 166, 364 N.E.2d 117, 118.) Excepted from the operation of the Act is “the temporary storage, in this State, of property which is acquired outside this State and which, subsequent to being brought into this State and stored here temporarily, is used solely outside this State or physically attached to or incorporated into other property that is used solely outside this State.” (Ill. Rev. Stat. 1983, ch. 120, par. 439.33(d).) Although the stated purpose of this and similar exceptions is “to prevent actual or likely multistate taxation,” the taxpayer need not show such taxation to have occurred or to be imminent. (Time, Inc. v. Department of Revenue (1973), 11 Ill. App. 3d 282, 285, 295 N.E.2d 529, 531.) Nonetheless, statutes exempting property from taxation must be strictly construed. Follett’s Rlinois Book & Supply Store, Inc. v. Isaacs (1963), 27 Ill. 2d 600, 606,190 N.E.2d 324, 327.

The taxpayer correctly observes that there are three inquiries necessary in determining whether the temporary storage exception applies. First, was the property acquired outside the State? Certainly the circulars were acquired outside Illinois. Second, was the property temporarily stored in Illinois? The circulars were, at a minimum, stored for a period of time here, but the issue is whether that was all that occurred here. This is the point of the third, and most significant, inquiry, whether the property was used solely outside of Illinois. See United Air Lines, Inc. v. Mahin (1971), 49 Ill. 2d 45, 55, 273 N.E.2d 585, 590, vacated & remanded (1973), 410 U.S. 623, 35 L. Ed. 2d 545, 93 S. Ct. 1186, aff’d on remand (1973), 54 Ill. 2d 431, 298 N.E.2d 161.

There are very few cases which have considered the Act’s temporary storage exception, but the parties agree that the most pertinent authority is Time, Inc. v. Department of Revenue (1973), 11 Ill. App. 3d 282, 295 N.E.2d 529. In Time, the taxpayer ordered finished unprinted paper to be shipped from outside Illinois to its Chicago warehouses. The paper was then cut to letter size, cut or formed into envelopes and subscription order forms and printed to make complete letters, envelopes and subscription forms for the taxpayer’s periodicals. The completed letters, forms and return envelopes were stuffed into the mailing envelopes and sent to persons within and without Illinois. The taxpayer paid the service use tax on the paper used to make letters, envelopes and forms sent to Illinois destinations, but objected to the imposition of the tax on the remaining paper.

The taxpayer relied upon the temporary storage exception. The appellate court rejected its argument, and explained that the paper was “used” in Hlinois when it was transformed into letters, envelopes and forms because the taxpayer did more with the paper than merely incorporate it into other property used solely outside Illinois. The court also stated that a second use of the paper in Illinois occurred when the solicitation letters were mailed from Chicago and the return addressed envelopes and subscription cards were returned to Chicago and processed into subscriptions.

Time is correct on its facts, and we agree with the reasoning in that opinion that the paper was processed with, not incorporated into the ink, glue and other materials necessary to manufacture the subscription mailings. But, we cannot accept the court’s statement, in dieta, that a “second use” of the paper occurred with the mailing of the forms and processing of the subscriptions in Illinois. If, indeed, that conduct by the taxpayer in Time constitutes a taxable use in Illinois, then logically, were the subscription forms not significantly altered in Illinois, only the mailed forms which are returned to Chicago and result in subscriptions could be taxed. The enormous burden that this construction of the Act would place upon taxpayers is apparent. We decline to so read the Act, because it will be presumed that the legislature did not intend absurdity, inconvenience or injustice. Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill. 2d 556, 224 N.E.2d 236.

In the case at bar, the taxpayer did not process raw materials into catalogs, but instead only affixed address labels to them. The result reached in Time is therefore not controlling here. The Department responds that even if the acts of the taxpayer in this case are not taxable under the authority of Time, they should be taxable according to the reasoning of Deere & Co. v. Allphin (1977), 49 Ill. App. 3d 164, 364 N.E.2d 117. In Deere, the taxpayer ordered brochures from a printer in Illinois. Those brochures were sent to an agent of the taxpayer’s, in Moline, where they were placed in envelopes, addressed, sorted and mailed to locations within and without Illinois.

The appellate court held that the preparation of the brochures for mailing, performed for the taxpayer by its agent, constituted a taxable use of the brochures in Illinois. The Department reasons that if the preparation of the brochures for mailing in Deere was a “use” of them, then so was the preparation of the circulars by the taxpayer here. It must be conceded that the acts of the taxpayer’s agent in Deere are not distinguishable from the acts of this taxpayer. But, Deere did not address the question presented here, namely, the application of the temporary storage exception. The brochures in Deere were printed in Illinois, while the circulars at issue were not.

In our opinion, the taxpayer’s preparation of the circulars for mailing falls squarely within the wording of the temporary storage exception. Where a taxpayer accepts fully printed advertising material from outside Illinois and does no more than address it, sort it and mail it in Illinois, it is not subject to service use taxes on that material which is sent out of Illinois. For these reasons, we must reverse the judgment of the circuit court of Jackson County upholding the Department’s assessment of a deficiency for that conduct on the part of the taxpayer.

Reversed.

JONES and KASSERMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KASSERMAN

license: Public Domain

text:
    MIDWEST HOME SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellee, v. RIDGEWOOD, INC., Defendant-Appellant (R. J. Neubert and Associates et al., Defendants-Appellees) — MIDWEST HOME SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellee, v. RONALD WILSON SMITH et al., Defendants-Appellees (Ridgewood, Inc., Defendant-Appellant) — MIDWEST HOME SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellee, v. HOMER N. GOODSON et al., Defendants-Appellees (Ridgewood, Inc., Defendant-Appellant; Joe David Church et al., Defendants-Appellees).
    Fifth District
    No. 82 — 603
    Opinion filed May 2, 1984.

      Herbert J. Lantz, Jr., of Sparta, for appellant.
    Philip G. Feder, of Belleville, for appellee Midwest Home Savings and Loan Association.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, Ridgewood, Inc., a Delaware corporation, appeals pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) from three separate decrees of foreclosure and sale entered by the circuit court of St. Clair County. On appeal, defendant contends that the trial court abused its discretion by denying defendant a continuance to allow defendant to obtain substitute counsel. Plaintiff, Midwest Home Savings and Loan Association, an Illinois corporation, filed a motion to strike defendant’s notice of appeal and to dismiss the appeal on the grounds that defendant, a corporation, filed its notice of appeal in its own behalf without being represented by an attorney in violation of section 1 of “An Act to prohibit corporations from practicing law ***” (hereinafter the Practice of Law by Corporations Act) (Ill. Rev. Stat. 1981, ch. 32, par. 411). Defendant filed a timely objection thereto and in an order filed December 23, 1982, this court ordered that said motion be taken with the case.

The record indicates that plaintiff, Midwest Home Savings and Loan Association, commenced these foreclosure proceedings in the circuit court of St. Clair County on February 1, 1979. Over a year later, on February 6, 1980, the causes were assigned to Circuit Court Judge Thomas O’Donnell, and on February 20, 1980, by order of the trial court, the causes were set for hearing on March 31, 1980. On March 21, 1980, defendant, Ridgewood, Inc., moved to continue the hearings for 30 days in order to obtain substitute counsel. Prior to that time defendant had neither filed an answer nor otherwise entered its appearance in any of the proceedings. As best as can be determined from the record before us on appeal, up until the time of its motion for a continuance, defendant had engaged the services of attorney Edward Neville to conduct settlement negotiations. However, attorney Neville did not enter an appearance on behalf of the defendant. Defendant’s motion for continuance was granted and the causes were set for pretrial on April 18, 1980, and trial on April 23, 1980. Defendant filed its answer on April 15, 1980. Defendant’s answer indicates that it was represented by attorney Edward O’Malley. On the date of the scheduled pretrial date, the trial was postponed until April 30, 1980. On April 25, 1980, plaintiff filed a motion for a continuance on grounds of illness in the plaintiff’s attorney’s family. The record on appeal contains no indication of whether or not this motion was ruled upon; however, plaintiff, in its brief, represents that a continuance was allowed. During the nearly two years which followed, very little court action on these causes appears to have transpired. On April 20, 1982, by order of the trial court, the causes were assigned to Judge Alvin Maeys, Jr., and the causes were set for pretrial on May 4, 1982. On the day of the scheduled pretrial, defendant moved for a continuance due to the illness of attorney O’Malley. The motion was granted and the pretrial was re-set for May 20, 1982, with trial set for May 25, 1982. On May 17, 1982, defendant filed a motion to stay the proceedings to allow settlement negotiations to take place. On May 20, 1982, defendant’s attorney, Edward O’Malley, filed a motion to withdraw as counsel, alleging his continued illness. The motion to withdraw was granted that same day. The trial date of May 25, 1982, was not changed. On May 24, 1982, defendant, by “Donald J. Dougherty, Secretary of Ridgewood, Inc.,” filed a motion for continuance in order to obtain new counsel. The motion was argued on May 25, 1982, attorney John O’Connell appearing at the hearing on behalf of the defendant. After hearing arguments of counsel for all parties present, the trial judge denied the motion. Immediately thereafter trial was held. Defendant did not appear and no attorney represented defendant at the trial. Decrees of foreclosure were subsequently entered on June 4, 1982. On July 6, 1982, defendant filed a motion to vacate signed by Donald J. Dougherty as secretary of Ridgewood, Inc. The proof of service was signed by Charles McMullin and John McMullin as attorneys for defendant. A hearing on that motion was held September 3, 1982. Robert Tansey, president of Ridgewood, Inc., was the only person to appear on behalf of the defendant at such hearing. The transcript of the hearing indicates that attorneys Charles McMullin and John McMullin previously had informed the trial judge of their intentions to withdraw from the causes. The motion to vacate was denied by the trial court in an order filed September 3, 1982. On September 17, 1982, attorneys Charles McMullin and John McMullin filed their motion to withdraw as counsel for defendant. The record on appeal does not indicate whether or not that motion was ruled upon. On October 4, 1982, defendant filed its notice of appeal in the circuit court of St. Clair County. The notice of appeal, signed on behalf of the defendant by Donald J. Dougherty as secretary of Ridgewood, Inc., did not indicate that counsel represented defendant in the preparation and filing of the notice of appeal.

Plaintiff filed a motion to strike defendant’s notice of appeal for failure of the corporate defendant to appear through a licensed attorney in violation of section 1 of the Practice of Law by Corporations Act (Ill. Rev. Stat. 1981, ch. 32, par. 411). Section 1 of the Practice of Law by Corporations Act provides in part that it is unlawful for a corporation to practice law, to appear as an attorney at law for any reason in any court; or in any other manner to assume to be entitled to practice law. Section 5 of the Act (Ill. Rev. Stat. 1981, ch. 32, par. 415) qualifies the foregoing by providing that a corporation may employ an attorney in and about its own immediate affairs and in any litigation to which it is or may be a party. Plaintiff refers us to numerous cases in which our courts, applying this law, have held that a corporation may not appear in court through any agent other than a licensed attorney. (Aarrow Ambulance v. Davis (1974), 16 Ill. App. 3d 318, 306 N.E.2d 363; Tom Edwards Chevrolet, Inc. v. Air-Cel, Inc. (1973), 13 Ill. App. 3d 378, 300 N.E.2d 312; Greer v. Ludwick (1968), 100 Ill. App. 2d 27, 241 N.E.2d 4; Remole Soil Service, Inc. v. Benson (1966), 68 Ill. App. 2d 234, 215 N.E.2d 678.) Plaintiff urges that the appearance of an attorney on the notice of appeal is required in the case at bar. We agree.

It is our conclusion that defendant may not file a valid notice of appeal in its own behalf without the advice and services of an attorney. An opposite conclusion would condone the unauthorized practice of law by a corporate litigant through layman agents, which was condemned in cases interpreting section 1 of the Practice of Law by Corporations Act.

In Marken Real Estate & Management Corp. v. Adams (1977), 56 Ill. App. 3d 426, 371 N.E.2d 1192, the court determined that a judgment entered in an action of distress for rent was void by virtue of the fact that the complaint was signed by a layman on behalf of the corporate plaintiff in violation of the Practice of Law by Corporations Act.

Defendant urges that Supreme Court Rule 303(c)(3) (87 Ill. 2d R. 303(c)(3)) does not require that it be represented by an attorney when filing a notice of appeal. A similar argument was rejected by the court in Tom Edwards Chevrolet, Inc. v. Air-Cel, Inc. (1973), 13 Ill. App. 3d 378, 300 N.E.2d 312, where it was argued that a corporation may appear in court through its corporate officials by virtue of section 11 of “An Act to revise the law in relation to attorneys and counselors” (Ill. Rev. Stat. 1975, ch. 13, par. 11), which provides that plaintiffs can prosecute and defendants can defend in their proper person. The court, citing Remole Soil Service, Inc. v. Benson (1966), 68 Ill. App. 2d 234, 238, 215 N.E.2d 678, 681, held that a party to an action may appear in his own proper person or by an attorney, unless the party is a corporation, in which case it may appear only by a licensed attorney. (Tom Edwards Chevrolet, Inc. v. Air-Cel, Inc. (1973), 13 Ill. App. 3d 378, 379, 300 N.E.2d 312, 313.) We conclude that although Supreme Court Rule 303(c)(3) does not expressly require that a licensed attorney appear on behalf of a corporate party in the preparation and filing of a notice of appeal, it does not permit a corporate litigant to avoid the prohibition contained in section 1 of the Practice of Law by Corporations Act.

The Illinois cases have held that where proceedings in a suit are instituted by a person not entitled to practice law, such proceedings are a nullity, and the suit will be dismissed. If the cause has proceeded to judgment, the judgment is void and will be reversed. (Marken Real Estate & Management Corp. v. Adams (1977), 56 Ill. App. 3d 426, 371 N.E.2d 1192; Aarrow Ambulance v. Davis (1974), 16 Ill. App. 3d 318, 306 N.E.2d 363.) Similarly, we conclude that since no attorney represented defendant in the filing of the notice of appeal, the instant appeal, having been instituted by a person not entitled to practice law, is a nullity. Therefore, these appellate proceedings must be dismissed.

Because of our dismissal of this appeal, it is unnecessary to consider the issue raised by defendant on appeal. However, we note that defendant’s sole issue on appeal is that the denial of its motion for a continuance was an abuse of discretion. While an abuse of discretion is reversible just as any other error committed, the denial or refusal of a continuance is not a ground for reversal where the party complaining is not prejudiced thereby. (Shumak v. Shumak (1975), 30 Ill. App. 3d 188, 332 N.E.2d 177.) Defendant does not allege any prejudice resulting to it from the denial of its motion; therefore, we conclude that the denial of defendant’s motion for a continuance was not error.

Motion granted; appeal dismissed.

WELCH, P.J., and JONES, J., concur.


author: JUSTICE WEBBER

text:
    SUSAN PARSONS, Plaintiff-Appellee, v. DARRELL McROBERTS, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0830
    Opinion filed May 10, 1984.
    John E. Gambill, of Allen & Korkowski & Associates, of Rantoul, for appellant.
    Arthur M. Lerner, of Greaves, Lerner & Kirchner, of Champaign, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff filed a three-count complaint against the defendant (her former stepfather) alleging in counts I and II that he wilfully, wantonly and intentionally sexually assaulted her and forced her to commit various sexual acts with him. Plaintiff requested compensatory damages in the amount of $75,000 in count I and punitive damages in the amount of $250,000 in count II. In count III, plaintiff alleged the tort of outrage and asked for $150,000 in damages.

Following a bench trial, the circuit court entered an order dismissing count III while finding in plaintiff’s favor as to counts I and II. The court awarded her $18,000 in compensatory damages and $12,000 in punitive damages. Defendant then filed a petition asking the court to reconsider the damages awarded. In its order of November 21, 1983, the circuit court denied defendant’s petition and ordered him to begin paying the judgment in installments of $175 per month, stating that defendant’s ability to pay would be reviewed in one year. Defendant filed his timely notice of appeal on December 12,1983.

On appeal defendant admits that his conduct was wilful, wanton and intentional and he agrees that he should pay the plaintiff damages. However, he argues that the damages awarded here are excessive in amount because he does not have the means to pay them.

Initially, we note that a defendant’s financial circumstances are irrelevant where an award of compensatory damages is concerned. (Fopay v. Noveroske (1975), 31 Ill. App. 3d 182, 334 N.E.2d 79.) Since defendant raises no other objections in this regard, we find that the $18,000 in compensatory damages awarded here was not excessive.

In determining whether a punitive damages award is excessive, a reviewing court should consider: (1) the nature and enormity of the wrong, (2) the financial status of the defendant, (3) the potential liability of the defendant in cases where defendant faces multiple liability. (Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199.) We cannot overstate the enormity of the wrong involved in this case. Although defendant introduced evidence in the form of a self-prepared financial statement indicating that his net worth was $3,116, it is also clear that he was young, healthy and employed at the time of the trial. Under these circumstances we cannot say that the award of $12,000 in punitive damages was excessive.

Accordingly, the judgment of the circuit court of Champaign County is affirmed.

Affirmed.

TRAPP and GREEN, JJ., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOYLE EDWARD JOHNSON et al., Defendants (Alan “Lil Al” Walker, Defendant-Appellant).
    Fourth District
    No. 4 — 82—0845
    Opinion filed April 30, 1984.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant Alan Walker was convicted in the circuit court of Champaign County of the offenses of murder, attempt (murder), and armed robbery and was sentenced to natural life imprisonment for murder and concurrent terms of 50 years for armed robbery and attempted murder. (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1, 8 — 4, 18 — 2.) Defendant Johnson entered a negotiated plea with the State, and no appeal was taken. (See People v. White (1984), 122 Ill. App. 3d 24.) Our references to defendant herein relate only to defendant Walker. Defendant argues here that (1) the trial court erred in denying a motion to suppress physical evidence seized from the vehicle he was driving; (2) a pretrial lineup was unnecessarily suggestive; (3) he was not proved guilty beyond a reasonable doubt; (4) the trial court erred in allowing the admission of expert testimony; (5) his right to a representative jury was violated by excluding certain jurors for cause; (6) the instructions for attempted murder were erroneous; and (7) the trial court abused its discretion in sentencing him to natural life imprisonment.. We affirm.

The evidence at trial indicates that on August 6, 1982, at a rest stop along Interstate 57, near Pesotum, Illinois, Waymond Jackson was killed from a shotgun blast to the back of the head and his companion, Donald Stewart, was shot several times with a handgun, sustaining permanent injuries. The testimony discloses that the victims were running a prostitution operation at the rest stop and were shot by operatives of a rival group of pimps. Four prostitutes, working for the victims, Angela Andujo, Carmen Lucas, Gabrie Davis, and Shirley Bond, were with the victims and were eyewitnesses to the slaying. They immediately advised State police of the crime and an emergency dispatch was broadcast over the State police emergency network that a possible suspect vehicle was a silver, newer model car with license number XF 7184.

The State police dispatch was monitored by Farmer City police officer Larry Jacobsen and he, along with De Witt County deputy Chuck Wells, proceeded to the intersection of routes 150 and 54, approximately 40 miles northwest of the crime scene. Within minutes, Officer Jacobsen observed a 1980 Silver Chevrolet Malibu with license QV 7834, -with one headlamp, stop near the intersection and back off the roadway. Officer Jacobsen started to drive toward the vehicle when it turned into the lot where he was positioned. Walker stopped the car, exited the vehicle and yelled “officer, officer.” Jacobsen instructed Walker to drive into a nearby gasoline station parking lot so they could talk, and defendant pulled into the lot with Officer Jacobsen behind and Officer Wells in a separate vehicle on the other side of defendant’s car.

Walker exited the vehicle and proceeded to explain that he had been driving from the Champaign area (near Pesotum) toward Chicago and was lost. Jacobsen apparently gave defendant directions but then walked to the front of the car to point out the inoperable headlamp. Defendant was asked to produce a driver’s license, but he said he did not have one. Jacobsen also noted another person lying in the back seat and requested Deputy Wells to get this person out of the car. Jacobsen then obtained identification from the other person, Doyle Johnson, and asked defendant for identification which he did not have. Walker gave Jacobsen his name and date of birth and Jacobsen returned to his squad car to run a vehicle check. According to Walker, Officer Wells then opened the back door of the vehicle, began a complete search of the car on his hands and knees, and located a live round of .357 ammunition. Officer Wells, however, stated that he observed the round in plain view while standing outside the vehicle.

Another De Witt County deputy, Officer Chick, who was called as a backup, testified that he had also monitored the State police dispatch and was aware that the homicide suspects were two black males, as were defendant and Johnson, and one of the suspects was bearded and wearing a maroon baseball cap as was Walker. During the stop, Jacob-sen was in contact with the local police dispatcher, who in turn was in contact with the State police, to verify information about the vehicle registration. At some point during the radio broadcast, Officer Jacob-sen relayed a description of Walker and Johnson and the similarities between the descriptions led the officers to suspect defendants’ possible involvement in the shooting earlier that morning. The car and suspects were then fully searched and a bag believed to contain cannabis was found, although no weapons were found in the car. Walker was arrested for improper lighting, driving without a license, failure to display a license, and failure to possess a firearm owner’s identification card.

Walker first argues that the trial court erred in denying his motion to suppress items of evidence taken from the automobile. The trial court denied the motion to suppress on the ground that the search was justified for a number of reasons aside from having probable cause to believe that Walker and Johnson were the assailants in the homicide. The court found that the officers had probable cause for the stop based upon the defective headlamp, and found credible Officer Wells’ testimony that he discovered the round of ammunition in plain view. The court concluded that once the round of ammunition was discovered in plain view and it was discerned that neither Walker nor Johnson had a firearm owner’s identification card, either a limited Terry search was proper (see Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868) or a full search incident to an arrest. Walker’s challenge on appeal to the trial court’s findings relates primarily to the court’s factual conclusion that Officer Wells discovered the ammunition in plain view. Defendant charges that the facts indicate practical impossibility for such an observation since Wells did not have a flashlight, there was no overhead lighting in the area, and the car doors were shut.

From the inherent limitations of appellate review, it is not for this court to determine the weight and credibility of evidence. It is the province of the judge hearing the motion to suppress to determine the witnesses’ credibility and the weight to be given their testimony since he had the advantage of observing their demeanor while testifying. (People v. Chandler (1967), 84 Ill. App. 2d 231, 228 N.E.2d 588.) A circuit court’s ruling on a motion to suppress will not be overturned unless it is found to be clearly erroneous. People v. Clark (1982), 92 Ill. 2d 96,440 N.E.2d 869.

We find the trial court’s conclusion is not clearly erroneous, and the record suggests other theories to support the officers’ actions in searching the vehicle and its occupants. The “stop” óf defendant by Officer Jacobsen (if Officer Jacobsen’s request that defendant pull in the gasoline station parking lot can even be deemed a stop) was supported upon probable cause to make an arrest for the traffic offense, and once a stop is made, a limited search of the vehicle and occupants is permissible if the circumstances reasonably indicate that the officer is dealing with a criminal rather than an ordinary traffic offender. (See Michigan v. Long (1983), 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469; People v. Lichtenheld (1976), 44 Ill. App. 3d 647, 358 N.E.2d 694.) Moreover, Walker’s arrest for the traffic offenses likewise justified a search incident to the arrest. (United States v. Robinson (1973), 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467; Gustafson v. Florida (1973), 414 U.S. 260, 38 L. Ed. 2d 456, 94 S. Ct. 488.) Finally, the similarities between the description of defendant, the vehicle, and the State police broadcast furnished sufficient probable cause to believe that the vehicle contained fruits or instrumentalities of a crime. (Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280; Colorado v. Bannister (1980), 449 U.S. 1, 66 L. Ed. 2d 1, 101 S. Ct. 42.) It may not have been apparent that defendant was a possible homicide suspect when he was initially stopped, but by the time Officer Chick had arrived and Jacobsen had discussed Walker’s description with the local police dispatcher, sufficient information was in their possession for a finding that probable cause existed to connect the defendant with the homicide. In light of the conclusions reached, it is unnecessary to respond to the State’s argument that defendant lacks standing to question the search and seizure. See People v. Flowers (1982), 111 Ill. App. 3d 348, 444 N.E.2d 242.

Defendant also raises an issue as to the composition of a pretrial lineup. On August 6, 1982, the same day of the offense, defendant and codefendant, Doyle Johnson, were placed in a seven-man lineup. All the persons in the lineup were black, clad in jail uniforms, six had mustaches, and two had beards. Their heights ranged from 5 feet 6 inches to 6 feet IV2 inches, their ages from 23 to 34, and their weights from 105 to 165 pounds. The eyewitnesses to the shooting described one assailant as heavy set, with a full beard, and the other man (Johnson) as slimmer and of medium height. Before the lineup, the four eyewitnesses were told that the police had two suspects in custody but were not told who these persons were. All four eyewitnesses separately identified Walker in the lineup.

Defendant argues that he was denied due process when the court refused to suppress evidence of his out-of-court identification and his in-court identification by the four eyewitnesses to the shooting. Defendant suggests that the lineup was unnecessarily suggestive and conducive to an irreparable mistaken identification because the witnesses knew the suspects were in the lineup, only two persons in the lineup had beards, and the only other person with a full beard was taller than the defendant. See Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967.

The fact that the witnesses knew the suspects were in the lineup is not suggestive per se but is merely stating the obvious (People v. Madden (1977), 52 Ill. App. 3d 951, 368 N.E.2d 384), and not all of the participants in the lineup need match the description given by the victim. (People v. Harrison (1978), 57 Ill. App. 3d 9, 372 N.E.2d 915; People v. Miller (1977), 55 Ill. App. 3d 421, 370 N.E.2d 1155; People v. Wyatt (1974), 23 Ill. App. 3d 587, 319 N.E.2d 575.) In Harrison the defendant was the only tall person in the lineup; in Miller the defendant was the only one with light hair; and in Wyatt the defendant was the only tall suspect with a gold tooth. In all of the lineups in these cases, the defendant was the only suspect in the lineup with a distinguishing characteristic as described by the victim, but under the circumstances no suggestiveness was found to vitiate the witnesses’ identification. The lineup here is even less subject to criticism, since the lineup contained six persons with varying degrees of facial hair. Clearly, such a lineup cannot be said to be unnecessarily suggestive to require the exclusion of the out-of-court identifications.

Even assuming that the lineup was suggestive, an out-of-court identification is still admissible so long as it is not likely to lead to an irreparable mistaken identification. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) In considering whether a suggestive lineup is likely to lead to an irreparable mistaken identification, the court must consider the opportunity of the witness to view the crime, the witness’ degree of attention, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. (Manson.) The four eyewitnesses viewed the shooting of the victims at the rest stop for several minutes at very close range. They all testified that there were lights from passing cars and the illumination from the moon, and they had a good opportunity to view the assailants. They had also seen the defendants earlier when they pulled into the rest stop asking for directions to Chicago. Finally, all the witnesses unequivocally identified Walker as the murderer at the lineup which was held the day of the offense. Under these circumstances, we hold that the lineup was neither unnecessarily suggestive nor likely to lead to an irreparable mistaken identification. The trial court correctly denied Walker’s motion to suppress the identification testimony.

Walker also argues that the State failed to prove his guilt beyond a reasonable doubt. We disagree. Defendant was identified by four eyewitnesses to the shooting both in court and out of court, and each witness described in detail the acts of the robbery and the shooting of Jackson and Stewart. In addition to this direct testimony, the State introduced evidence that when the defendant was arrested he possessed a round of .357 ammunition of a type which could have fired from one of the handguns found north of the rest stop, his clothing had blood on it which was consistent with that of the victim, and evidence was also introduced that a sawed-off shotgun, handgun, and other ammunition were found a short distance from the rest stop along the interstate. The testimony of a single credible eyewitness is sufficient to establish guilt beyond a reasonable doubt, and a reviewing court will not reverse a conviction unless the evidence is so unsatisfactory that a reasonable doubt of defendant’s guilt remains. (People v. Clarke (1971), 50 Ill. 2d 104, 277 N.E.2d 866; People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136.) The eyewitness identifications of the defendant and the physical evidence providing a link between defendant and the slaying, when considered with defendant’s arrest and other circumstances, provided ample proof for the jury’s finding that he was guilty beyond a reasonable doubt.

Walker points out that the eyewitnesses were prostitutes, that they initially lied to the police telling them they were returning from St. Louis when they pulled into the rest stop, and they disposed of the victim’s handgun after the occurrence. Defendant also notes that the shooting occurred at night in a place where there was no overhead lighting and that, although the prostitutes believed that $750 was taken from Jackson, only $332 was found on defendant and Johnson when they were arrested. Suffice it to say, the jury was well aware of these weaknesses, and we find ample evidence to support their finding of guilt. The eyewitnesses explained that they were reluctant to tell the police the reasons for their presence at the rest stop, they all identified Walker, and none of them was definite as to how much money Jackson possessed. The handgun of the victim, although admittedly hidden by one of the prostitutes, played no part in the sequence of events and the State introduced testimony that it had not been fired recently.

Defendant also assigns as error a ruling of the trial court which allowed Cecil McDougall to testify that a piece of rubber found in defendant’s car matched a rubber surgical glove found north of the rest stop near the shotgun, handgun, and other ammunition. McDougall was employed by the Illinois Bureau of Scientific Services and had made numerous comparisons of glass pieces, tools, paint chips, blood, hair, etc., in his investigative work. McDougall compared the rubber found in defendant’s car with the rubber glove found along the interstate near the shotgun, and took enlarged photographs for comparison. He concluded that the rubber tip found in defendant’s car was once a part of the surgical glove found along the interstate. Walker contends that expert testimony was unnecessary to give an opinion on this comparison, and that the trial court should have excluded the opinion because it was not based upon any scientific or microscopic analysis and was only based upon a simple matching which any layman could have done.

In determining whether error has occurred in admitting expert testimony, this court will not upset the trial court’s ruling unless its discretion has been abused. Such testimony is properly admitted when the subject matter is sufficiently beyond common experience so that only persons of experience and skill are capable of forming a correct judgment as to any connected fact. (People v. Snow (1974), 21 Ill. App. 3d 873, 316 N.E.2d 216; People v. Perroni (1958), 14 Ill. 2d 581, 153 N.E.2d 578.) It has also been stated that such testimony will be admitted if the expert has some knowledge or experience which will aid the court or jury in arriving at determinations on the questions at issue. (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 702.4, at 363-64 (3d ed. 1979).) We find the issue here to be controlled by Perroni. There the supreme court said that it was proper to allow an expert to draw a comparison between a mark left on a safe with a crowbar found in defendant’s possession. The court stated:

“Certainly the facts brought out by Evans [expert witness] were not within the realm of ordinary observation. Before any deductions were possible, photographs had to be taken of the damaged portions of the safe. This was done by the use of a highly specialized instrument — a specially constructed, self-focusing and enlarging fingerprint camera. While the prints obtained as a result of this process clearly show the peculiar marks left by the tool, yet only an expert would be qualified to compare them with the burr on the crowbar.” (14 Ill. 2d 581, 591-92, 153 N.E.2d 578, 583.)

Here, the expert explained the comparison of the items by reference to enlarged photographic pictures, a comparison which the jury would have been unable to draw absent McDougall’s testimony. McDougall’s matching procedures and observations formed a sufficient basis to allow his opinion to be admitted and was of assistance to the trier of fact in determining whether the surgical glove found in defendant’s car matched a part of a glove found near the weapons.

Turning next to instructional problems, Walker argues that his conviction for attempted murder must be reversed because the jury was improperly instructed on this offense. The instructions for attempted murder included all of the mental states listed in section 9 — 1 of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1.) We note that this issue was neither raised at the instruction conference nor in Walker’s post-trial motion. This error is now waived unless the error amounted to grave error or unless the case is close factually on this issue. People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331.

In People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888, and People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28, the supreme court held that the crime of attempted murder requires proof that the defendant acted with the intent to kill, and that the other lesser mental states sufficient for a murder conviction (intends to do great bodily harm, knows such acts will cause death, or knows such acts create a strong probability of death or great bodily harm) are insufficient. Only proof that the defendant acted with the intent to kill an individual will support a conviction of attempted murder.

In Roberts, the supreme court noted that there, as here, defendant did not object to the jury instructions on attempted murder which would have allowed a conviction short of proof that defendant acted with the intent to kill and rejected the suggestion that this amounted to grave error. As for the question of whether the evidence of Walker’s intent was close, we believe the record demonstrates a pronounced intent to kill both Jackson and Stewart. As described by one of the eyewitnesses to the shooting, defendant ordered both Jackson and Stewart out of their cars, forcing them to lie face down on the pavement while he searched their clothing. After robbing Jackson, defendant ordered Johnson to “start over there” on Stewart, defendant then placed a shotgun near the back of Jackson’s head while he was face down on the pavement and shot him.

Defendant also raises the same argument with the charges of the indictments, some of which alleged a mental state for attempted murder other than intent to kill. One indictment, however, did charge attempt in the language of intent to kill. The entry of a general verdict of guilty by the trial court obviates this defect since it will be presumed to be based upon the sufficient count charging intent to kill as required by Trinkle. See People v. Lymore (1962), 25 Ill. 2d 305, 185 N.E.2d 158.

Other issues raised by defendant in this appeal involve the jury selection process in general and one juror in particular. The State in this case requested the death penalty and the trial court excused jurors for cause who stated that they could not vote to impose the death penalty under any circumstance. Defendant argues that this practice of “Witherspooning” the jury deprived him of a jury chosen from a fair cross section of the community resulting in a jury more prone toward conviction. This court has addressed this issue in People v. Kirkpatrick (1979) , 70 Ill. App. 3d 166, 387 N.E.2d 1284, and People v. Nobles (1980) , 83 Ill. App. 3d 711, 404 N.E.2d 330, and more recently in People v. Hargis (1983), 118 Ill. App. 3d 1064, 456 N.E.2d 250. In Hargis this court noted the supreme court’s opinion in People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346, was controlling on these issues. We adhere to Lewis and our prior decisions.

The other jury selection issue concerns a prospective juror who was asked by defense counsel whether he had any personal or business concern that would prevent him from devoting complete attention at the trial. He responded that he was a professor of entomology and was working on a paper in connection with his research which he had to complete in a short period of time. Kuhlman stated he could not be sure whether this would affect his ability to be attentive at trial. Defendant moved to exclude Kuhlman for cause, his request was denied, and a peremptory challenge was used. At a later point, defendant exhausted all of his peremptory challenges and was denied additional peremptories. Again, defendant failed to include this issue in his post-trial motion and to be reviewable, the error, if any, would have to constitute plain error. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

The burden of showing that a juror possessed a disqualifying state of mind is on the party challenging the juror and so long as the juror meets the statutory qualification, the trial court’s decision on a challenge will not be disturbed unless it is against the manifest weight of the evidence. (People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.) In Cole the supreme court indicated that a person is not competent to sit as a juror if his state of mind is such that with him as a member of the jury a party will not receive a fair and impartial trial.

We interpret Kuhlman’s remarks to indicate that he would have preferred not to serve on the jury. Kuhlman’s statements do not support any conclusion that he would not have been able to fairly and impartially consider the evidence. We find no plain error in refusing to exclude Kuhlman from the panel.

Finally, Walker charges that his sentence of natural life imprisonment is an abuse of discretion. As previously indicted, the State requested the death penalty, and at the death penalty hearing, the jury found the existence of statutory aggravating circumstances to impose the death penalty. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(b).) The jury failed to reach a unanimous finding that there were no mitigating factors to preclude a sentence of death, however, and the court then sentenced the defendant to a term of natural life imprisonment. Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-l(a)(l).

Defendant does not suggest that the sentence is not authorized by statute, nor that the trial court made insufficient findings or relied upon incompetent evidence at the sentencing hearing. Walker’s argument appears to be based upon a comparison of the various heinous circumstances surrounding the murders in People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, and People v. Hudson (1981), 95 Ill. App. 3d 350, 420 N.E.2d 271, where life sentences were imposed. He also argues that the trial court gave insufficient consideration to his possibility of rehabilitation. We doubt if any meaningful distinction can be made between the factual nuances of La Pointe and Hudson. Nevertheless, we find no abuse of discretion in the sentence here. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The defendant’s planned and unprovoked murder of Jackson by discharging a firearm at close range and his accountability for Johnson’s attempted murder of Stewart in a similar fashion, considered with his prior criminal record, provides ample basis for the trial court’s sentence.

For the foregoing reasons, the conviction and sentence are affirmed.

Affirmed.

MILLS, P.J., and MILLER, J., concur.


text:
      In re MARRIAGE OF HELEN LUCILLE DEEM, Petitioner-Counterrespondent-Appellee, and MAX E. DEEM, by Doris Marilyn Garves, Adm’r of the Estate of Max E. Deem, Deceased, Respondent-Counterpetitioner-Appellant.
    Fourth District
    No. 4 — 83—0172
    Opinion filed May 7, 1984.

      Kristen H. Fischer, of Champaign, and Roger A. Marsh, of Urbana, for appellant.
    Greaves & Lerner, of Champaign, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

The parties were married on March 24, 1956. The marriage was dissolved on September 28, 1978, with written judgment of dissolution upon the counterpetition filed on October 27, 1978. Maintenance and property matters were reserved. Respondent was 73 and petitioner was 60 years old. In October 1981, petitioner set ancillary matters on the counterpetition for hearing on December 16, 1981. Petitioner testified at the hearing; respondent was represented by counsel but was not present. The trial court awarded petitioner the following as her nonmarital property: a residence in Champaign, Illinois; a lot and cottage in Shelby County, Illinois, at Lake Mattoon; furniture she owned prior to this marriage; the balance in her Investor’s Diversified Services’ (I.D.S.) account; and other property in her possession. The court awarded respondent furniture purchased during the marriage in Louisville, Kentucky, as marital property. The court further awarded him other property standing in his name. The court denied respondent’s request for a lien against petitioner’s real estate for his contributions increasing its value. On January 20, 1983, the trial judge entered a written order on respondent’s motion for reconsideration classifying the Champaign residence as marital property, awarding it to petitioner, and otherwise denying the motion. Respondent appeals from the judgment of the circuit court of Champaign County. Respondent died during the time that this appeal was pending. This court allowed the appellant’s motion for substitution of administrator for the deceased party, over objection. We affirm in part, reverse in part, and remand the cause.

Respondent raises three issues on appeal: (1) whether the trial court erred in classifying the Shelby County property and the furniture petitioner brought to the marriage as petitioner’s nonmarital property, (2) whether the court erred in awarding petitioner the balance of her I.D.S. account, including interest earned during the marriage, and (3) whether the court erred in its allocation of marital property given the lack of evidence on the value of the parties’ marital and nonmarital assets at the time of dissolution, the lack of evidence of his economic and physical circumstances at the time of the hearing, and the court’s reference to an alleged loan from petition to respondent.

We first consider respondent’s argument that the trial court erred in classifying the Shelby County property as petitioner’s nonmarital property. This property was acquired during the marriage as an unimproved lot. It was purchased with $1,200 of petitioner’s nonmarital funds. Title was taken by the parties as joint tenants. Several years later, petitioner’s nephew assisted respondent in building a cottage on the property. Both parties supplied materials. Asked whether respondent was paid for work on the cottage, petitioner answered affirmatively. She later clarified her testimony, saying respondent was paid for repairs to her home prior to their marriage; thereafter he was paid when he had help.

On January 3, 1962, the parties executed and recorded a warranty deed conveying the property to petitioner in consideration of “one dollar and Love and Affection.” Petitioner did not testify as to their intention in executing this deed but said respondent had told her at the time that he might take bankruptcy.

On appeal, respondent argues that evidence presented on the Shelby County property was not sufficient to support a finding that the transfer constituted a gift, given the presumption of marital property of section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503). We agree.

The party seeking to establish that property acquired after marriage is not marital property has the burden of proving that the property in question was intended to be a gift. (Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 446 N.E.2d 499; In re Marriage of Severns (1981), 93 Ill. App. 3d 122, 416 N.E.2d 1235.) The presumption of marital property is overcome upon a showing by clear, convincing, and unmistakable evidence that the property was a gift. (Severns.) Mere proof that title to a tract was placed in one party’s name does not rebut the presumption of section 503. (In re Marriage of Wittenauer (1981), 103 Ill. App. 3d 53, 430 N.E.2d 625; see also In re Marriage of Parr (1981), 103 Ill. App. 3d 199, 430 N.E.2d 656 (quitclaim deed or interest of one’s spouse in condominium executed in favor of other spouse insufficient to rebut marital property presumption; both parties testified transfer was made primarily for business and tax purposes).) We conclude that the deed itself was insufficient to show the transfer was a gift. Therefore, on remand the Shelby County property should be treated as marital property.

Respondent also contends that the trial court improperly classified furniture petitioner brought to the marriage as her nonmarital property, since it had been used in the same rooms as furniture purchased during the marriage. Respondent cites In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239, in support of his theory that this furniture was transmuted into marital property. We disagree and decline to give Smith such an expansive interpretation.

A theory similar to respondent’s was eschewed in In re Marriage of Crouch (1980), 88 Ill. App. 3d 426, 410 N.E.2d 580. In Crouch, the wife theorized that various art objects and business inventory acquired prior to the marriage had been commingled with other marital property acquired after the marriage thus evidencing an intent to have the former property treated as marital property. The reviewing court held that the disputed personal property, originally nonmarital property, retained that status after the marriage. By contrast, in In re Marriage of Westphal (1981), 99 Ill. App. 3d 1042, 426 N.E.2d 303, the reviewing court held that certain nonmarital assets — $1,600 worth of tools and equipment used in the husband’s business — had irretrievably lost a separate identity through commingling with tools and equipment purchased after the remarriage of the parties. No difficulty was raised below in identifying furniture petitioner brought to the marriage as separate and distinct from items purchased during the marriage.

Respondent next maintains that the trial court erred in finding the interest earned during the marriage on petitioner’s I.D.S. account was her nonmarital property. Upon review of the record, we conclude that the trial judge regarded respondent as having a burden to establish the existence of such a marital asset, i.e., accumulated interest. Given the posture of this issue, we find this question is controlled by the recent amendment of section 503(a)(7) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1983, ch. 40, par. 503(a)(7).) The amending language states that an increase in the value of property acquired before marriage remains nonmarital property (Ill. Rev. Stat. 1983, ch. 40, par. 503). This legislation was expressly made applicable to actions pending on its effective date, August 19, 1983. (Pub. Act 83 — 129, 4 Ill. Legislative Service 1222 (1983).) We conclude that interest earned on the account during the marriage remained petitioner’s nonmarital property. See generally Feldman & Fleck, Taming Transmutation: A Guide to Illinois’ New Rules on Property Classification and Division upon Dissolution of Marriage, 72 Ill. B.J. 336 (1984).

Respondent’s last issue on appeal is whether the trial court erred in dividing the marital property, awarding petitioner the marital residence and him the marital furniture. He first contends that the division was improper as there was no proper evidence of the value of the parties’ nonmarital and marital assets — the Champaign residence, the Shelby County property, the I.D.S. account, or the furniture — as of the date of dissolution. Petitioner argues respondent has waived the valuation issue by his failure to present such evidence below.

There is no requirement under the Act that the court place a specific value on each item of property but only that there be competent evidence of value and that the trial court’s division of property be supported by the evidence. (In re Marriage of Miller (1983), 112 Ill. App. 3d 203, 445 N.E.2d 811.) Evidence of the value of both marital and nonmarital assets must be shown on the record in order for a reviewing court to determine the propriety of the division of marital property. (In re Marriage of Walsh (1982), 109 Ill. App. 3d 171, 440 N.E.2d 310; In re Marriage of Cuisance (1983), 115 Ill. App. 3d 551, 450 N.E.2d 1302.) Therefore, the failure to offer evidence of the value of such assets does not necessarily waive the right to appeal on this issue. In re Marriage of Reib (1983), 114 Ill. App. 3d 993, 449 N.E.2d 919; In re Marriage of Kundit (1982), 107 Ill. App. 3d 310, 437 N.E.2d 777; In re Marriage of Cuisance (1983), 115 Ill. App. 3d 51, 450 N.E.2d 1302.

It is noted, however, that it is the parties’ obligation to present the court with sufficient evidence of value of the property. Reviewing courts have refused to reverse and remand dissolution cases wherein the complaining spouse (1) presented no evidence on the value of the parties’ assets despite the presentation of such evidence by his spouse (In re Marriage of Mullins (1984), 121 Ill. App. 3d 86, 458 N.E.2d 1360; In re Marriage of McCartney (1983), 116 Ill. App. 3d 512, 452 N.E.2d 114); (2) stipulated to the valuation evidence (In re Marriage of Miller (1983), 112 Ill. App. 3d 203, 445 N.E.2d 811); or (3) gave or suggested the valuation evidence (In re Marriage of Mullins (1984), 121 Ill. App. 3d 86, 458 N.E.2d 1360 (wife presented husband’s financial statement showing value of farm and gave value thereon in affidavit); In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 448 N.E.2d 545 (husband suggested appraisal value and offered no additional evidence until after entry of judgment). A reviewing court may further refuse to reverse and remand a dissolution case where some evidence was presented on the parties’ assets, e.g., pensions, and the parties had an adequate opportunity to introduce further evidence but failed to do so. See In re Marriage of Smith (1983), 114 Ill. App. 3d 47,448 N.E.2d 545.

Here there is no record evidence of the value at the date of dissolution of petitioner’s I.D.S. account, the furniture she brought to the marriage, or furniture purchased during the marriage. There was evidence of the purchase price around 1957 for the Shelby County lot, but no evidence of the value of the cottage and property at dissolution. There was some testimony on the reduced purchase price of the Champaign residence in 1968 in an unfinished condition. There was, however, no more recent evidence of value and no evidence of the equity value in the home. Hence, petitioner presented no evidence of the value of some assets and such scant evidence on others as to preclude reasonable assessment by the trial judge. Respondent did not appear personally at the hearing, and his counsel were apparently taken aback that they were to present evidence in his behalf. The trial judge denied respondent’s request for an additional hearing to present evidence of value. Since evidence of the value of such assets is lacking, we reverse and remand so this evidence may be taken. In doing so we note that under the Act, the value of the parties’ nonmarital assets is a factor to be considered in the division of the marital property. In re Marriage of Meyer (1981), 103 Ill. App. 3d 44, 430 N.E.2d 610; In re Marriage ofCuisance (1983), 115 Ill. App. 3d 551, 450 N.E.2d 1302.

Second, no evidence was presented to suggest that other property existed standing in respondent’s name. Neither was there any evidence of his economic or physical condition or needs. The counterpetition stated that he received social security benefits but did not fix the amount of benefits received. Absent record evidence on the needs and circumstances of each party as required under section 503(d) of the Act, a reviewing court lacks a basis for determining the propriety of the division of property. We therefore find it necessary to remand the case so that additional evidence may be taken on the parties’ circumstances at the time of the December 1981 hearing.

Finally, the trial court awarded the Champaign residence to petitioner with reference to an alleged $6,000 loan from petitioner to respondent. No documents were tendered into evidence in support of the alleged loan, and there was no testimony as to the date, or dates, or the source of the monies which comprised the alleged loan. Further, in view of the presumption of marital property under section 503 of the Act, expenditure of nonmarital funds addressed to marital expenses would be deemed a gift to the marriage absent clear evidence to the contrary. Petitioner stated in interrogatories that $5,000 to $6,000 was owed her by respondent which “may be marital property.” We conclude that no loan was proved and such setoff may not be made in the court’s allocation of marital property on remand.

Affirmed in part; reversed in part; and remanded for additional evidence on the value of the parties’ marital and nonmarital assets on the date of dissolution and evidence on the needs and circumstances of the parties at the time evidence is taken.

MILLER and WEBBER, JJ., concur.


author: JUSTICE EARNS

text:
    CHARLES R. BAIN, Plaintiff-Appellant, v. BENEFIT TRUST LIFE INSURANCE COMPANY, Defendant-Appellee.
    Fifth District
    No. 5 — 83—0631
    Opinion filed May 25, 1984.
    Rehearing denied May 25, 1984.

      Mark D. Hassakis, of Hassakis & Hassakis, of Mt. Vernon, for appellant.
    Glen E. Moore, of Campbell, Furnall, Moore & Jacobsen, P.C., of Mt. Vernon, for appellee.
   JUSTICE EARNS

delivered the opinion of the court;

Charles R. Bain, a former employee of Fruit Growers Express Company (FGE), seeks recovery of disability benefits under an insurance policy issued by Benefit Trust Life Insurance Company (Benefit) to FGE on behalf of FGE’s employees. Bain appeals from the judgment of the circuit court of Jefferson County granting summary judgment to Benefit because Bain had failed to satisfy the master contract’s eligibility requirement of “six consecutive months of actual full time employment” with FGE.

Bain started to work for FGE on September 4, 1979. On October 24, 1979, he completed and signed a group enrollment card as part of the application procedure for coverage under the contract between Benefit and FGE. The enrollment card, which was sent to Benefit, listed Bain’s occupation as project engineer. Bain described his duties as designing and supervising the building of freight cars. FGE said his work entailed “traveling to and from job sites on r.r. yard-loading & unloading r.r. cars at remote sites.” Bain was unable to work on January 8, 1980, and it is undisputed that he was absent from his employment from that date until March 17, 1980. During that period he was hospitalized for treatment of arteriosclerosis obliterans, and his right leg was amputated below the knee. On January 26, 1980, a second operation was performed to close off the stump.

Bain returned to FGE on March 17, 1980. The record provides no evidence that FGE notified Benefit of Bain’s absence or return. On April 25, 1980, FGE paid the first premium to Benefit on Bain’s behalf. Bain’s group enrollment card in Benefit’s files noted that the certificate of coverage was sent on May 5, 1980. Bain worked until May 14, 1980, when a heart attack and pulmonary blood clots forced him to stop working. In response to an interrogatory concerning the performance of his duties, Bain stated, “I also performed duties from bedside during my different illnesses.” He talked on the phone and was consulted about the making of freight cars.

When Bain returned to FGE on March 17, 1980, he found on his desk a group insurance identification card and a certificate of coverage issued by Benefit. The identification card stated that Bain’s disability coverage was effective as of March 4, 1980. The certificate stated that “the Insured named in the Identification Card *** is insured *** and is covered by” the contract. The certificate also contained a provision captioned “EFFECTIVE DATE OF INSURANCE” which referred to the date on the card as “[t]he effective date of insurance.” The same provision explained that there would be a delay in coverage if the employee were absent on the day his insurance would ordinarily become effective. If he were absent from work on that day because of a disability, leave of absence or temporary layoff, his insurance would become effective when he recovered or returned and resumed full-time employment.

A single sentence within the paragraph describing the “EFFECTIVE DATE OF INSURANCE” stated that “[a]ll benefits described herein are governed by and subject in every respect to the provisions of the Group Insurance Contract referred to above which alone constitutes the agreement under which payments are made.” Part IV of the certificate provided that the contract “will be kept on file at the principal office of the Assured and may there be inspected by any Insured during the regular business hours of the Assured, [FGE].” As late as January 19, 1983, when Bain filed his amended complaint, he alleged that the contract had not been “made available to or delivered to [him] ***.”

On May 14, 1980, Bain was hospitalized for treatment of a heart attack, pulmonary blood clots and related conditions. His doctor considered it unlikely he would ever return to work. In December 1980, Bain filed his claim for long-term disability benefits under the contract between Benefit and FGE. After Benefit denied Bain’s claim, FGE stopped paying premiums for Bain. In January and July 1981, Benefit sent letters to FGE explaining its denial of Bain’s claim on the ground that his disability was the result of a condition existing prior to the effective date of his insurance, March 4, 1980. Arthur J. Fischer, writing on behalf of Benefit in July 1981, said, “[n]o one is contending that the man never became eligible for insurance ***.” Fischer expressed difficulty in understanding the issues raised by Bain’s attorney at that time and pointed out to FGE that Benefit’s information was “based upon that provided by your company ***.” It is not clear when Bain received a copy of Fischer’s letter to FGE or a letter from FGE advising Bain of a review of his eligibility.

Failing to receive benefits for his disability, Bain sought a declaratory judgment that he was covered by the insurance contract between Benefit and FGE because the certificate and identification card established an effective date of March 4, 1980. He also sought damages and an adjudication of his right to receive benefits until he was 70 years old.

Benefit admitted that Bain had been furnished an identification card and certificate by FGE but denied that Benefit knew of Bain’s absence from work at the time it issued these items. As the first of three affirmative defenses, Benefit cited Part I, Paragraph C of the contract, which stated that an employee became eligible for insurance “on the date he completes six consecutive months of active full time employment for the Employer.” Benefit pointed out that Bain had failed to satisfy this requirement. The other two affirmative defenses are based on exceptions from coverage which are not at issue here. Thus the parties joined issue on whether the contract or the certificate was controlling in a determination of Bain’s right to disability benefits.

Each party moved for summary judgment. Bain contended that there was no genuine issue of fact concerning his coverage under the contract between Benefit and FGE because the identification card and certificate of coverage stated that the insurance was effective on March 4, 1980. He reasoned' that a conflict on the issue of coverage arose because the contract stated a requirement of six consecutive months of employment and the certificate and card declared his insurance effective on March 4, 1980. He asked the court to find an ambiguity arising from this conflict between the documents and to apply the rule that ambiguities in the meaning of insurance contracts are resolved in favor of the insured, thus giving effect to the terms of the certificate and identification card. Bain also raised the question of whether Benefit had waived the contract requirement or could be es-topped from asserting it because Benefit issued the card and certificate.

Benefit argued that the contract was not in conflict with the certificate because the certificate was silent on the requirements for eligibility, that Bain may have been an “insured” and that a contract may have been “in effect” or “effective,” but nonetheless to be eligible for benefits, he must have satisfied the six-month requirement of the master contract. Benefit considered the contract to be controlling and that there was no factual dispute that Bain had never become eligible under the contract because he had not worked full time for six consecutive months. Benefit also argued that it had not waived the contract requirement nor did its issuance of the card and certificate estop it from asserting the eligibility requirement because when it issued the card and certificate it had no knowledge of Bain’s absence from work. Bain conceded that he had no evidence that Benefit knew of his absence from work. Benefit asserted that the letters sent by its employees in 1981 established neither waiver nor estoppel because they were also based on Benefit’s lack of information.

At the hearing on the motions for summary judgment, Bain conceded that he could not prove he had worked full time for the six months required, unless taking phone calls at his hospital bed could be construed to satisfy the requirement. In argument to this court, Bain again conceded “[t]here is no dispute that the plaintiff never completed six consecutive months of active full-time employment for his employer *** [and] that the plaintiff never became eligible for insurance ***.” Bain has consistently recognized that he could not prevail if the contract were controlling.

As the case was presented to the trial court, there were no genuine issues of fact concerning the major events leading to Bain's claim for disability benefits. All parties agreed that Bain could not satisfy the contract requirement, that the card and certificate issued before Benefit knew of Bain’s absence, and that Bain found them on his desk when he returned to work on March 17, 1980. The trial court found no facts sufficient to raise a genuine issue of waiver or estoppel. Although the trial court found that Benefit had failed to submit the certificate of coverage to the Director of Insurance for approval, it considered that finding to have no effect on its decision.

The major question posed to the trial court was a question of law: whether there was an ambiguity as to coverage arising from a conflict between the contract and the certificate. In resolving this question, the trial court relied on Hofeld v. Nationwide Life Insurance Co. (1975), 59 Ill. 2d 522, 322 N.E.2d 454, which held that where there is no conflict between the contract and certificate because the certificate is silent on a subject expressed in the contract, the contract controls. The court began its construction of the certificate and contract by comparing the two documents part by part. Finding no provision in the certificate to correspond with Part I of the contract which set out the six-month requirement, the trial court concluded that the certificate was silent on that matter and could not be in conflict with the contract. The court matched Part II of the contract, captioned “EFFECTIVE DATE OF INDIVIDUAL INSURANCE,” with the certificate provision captioned “EFFECTIVE DATE OF INSURANCE.” The court drew a line between provisions dealing with eligibility and those defining the effective date, and it did not compare them with each other. By divorcing language of eligibility from that of effectiveness, the court was able to conclude that the contract’s six-month requirement was the only measure of the time at which Bain would be covered. In light of Bain’s admission that he could not satisfy such a requirement, the court granted summary judgment to Benefit.

Bain asks us to determine whether (1) the trial court erred in finding as a matter of law that there was no conflict between the contract and the certificate as to his coverage under the contract between Benefit and FGE; (2) whether there was a genuine factual issue of waiver or estoppel; and (3) whether Bain is entitled to benefits under the doctrine of reasonable expectations.

One purpose of a summary judgment proceeding is to render prompt judgment on a question of law where no genuine factual issues exist between the parties. (Kusiciel v. LaSalle National Bank (1982), 106 Ill. App. 3d 333, 435 N.E.2d 1217.) Construction of an insurance policy presents only a question of law and may properly be decided by summary judgment. (Rivota v. Kaplan (1977), 49 Ill. App. 3d 910, 364 N.E.2d 337.) In reviewing a trial court’s entry of summary judgment, the reviewing court’s sole function is to determine whether the trial court correctly determined that there were no genuine issues of material fact, and if there were none, whether judgment for the moving party was correctly entered as a matter of law. (Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 414 N.E.2d 865.) The reviewing court may make an independent determination concerning a question of law. Rymer v. Kendall College (1978), 64 Ill. App. 3d 355, 380 N.E.2d 1089.

The trial court’s method of proceeding part by part in comparing the contract and certificate fails to take into consideration the relationship between the concepts treated in each part. The contract provisions concerning eligibility and effectiveness of the insurance are not mutually exclusive. They must be read together to determine the time at which an employee would be covered by the contract. In the contract, the effective date of coverage is identified as “the date of [an employee’s] eligibility.” In the certificate, the effective date is defined as the date on the identification card. In each case, the effective date is subject to modification if the employee is absent from work on the date his insurance would ordinarily become effective. In its effort to establish the moment at which an employee becomes insured, Benefit has used the term “effective date” in two distinct contexts, thus giving the term two possible meanings, only one of which is linked to the six-month eligibility requirement.

Other language in the certificate, while not addressed directly to the question of eligibility, creates the impression that the holder of the card and certificate is qualified for and entitled to insurance, that he is in fact eligible for benefits. The certificate is addressed to “the Insured named in the Identification Card issued with this Certificate *** [who] is insured in the schedule stated on the Identification Card and is covered under the Group Insurance Contract ***.” The certificate then lists benefits for “*** Insureds Who Become Eligible ***.” There is no qualifying cross reference to the eligibility provision of the contract. Just below the table of benefits and after the heading “EFFECTIVE DATE OF INSURANCE,” the certificate states that “[t]he effective date of insurance shall be the date shown on the Identification Card issued with this Certificate and bearing the same Certificate Number ***.” The term “effective date” may reasonably be understood to mean the date on which the insurance coverage was in force or became active with respect to Bain. The cumulative effect of such language in the only document freely available to Bain was to establish the date on the card, March 4, 1980, as the time at which Bain could consider himself an “insured” and entitled to benefits. The single sentence in the certificate which declared that all benefits were governed by the contract was not enough to negate the assertion that the card established the date of coverage.

Taking a closer look at the language of the contract and the card and certificate, we find that Benefit’s drafting created a conflict as to how one was to determine the effective date of coverage under the contract with FGE. Where there is a conflict between a certificate and a master contract, the certificate normally controls. (Hofeld v. Nationwide Life Insurance Co. (1975), 59 Ill. 2d 522, 322 N.E.2d 454.) The effective date of Bain’s insurance is determined by the certificate of coverage and the identification card.

We find that there was no genuine issue of material fact before the trial court and that the court erred in determining as a matter of law that there was no conflict between the contract and certificate. Because of our findings, it is unnecessary for us to reach Bain’s other contentions concerning estoppel, waiver, and the effect of Benefit’s failure to submit the certificate to the Director of Insurance for approval. We find no merit in Bain’s argument that he is entitled to recovery under the doctrine of reasonable expectation. Such a doctrine has not been adopted in Ilinois. Insurance Co. of North America v. Adkisson (1984), 121 Ill. App. 3d 224.

For all the foregoing reasons, we reverse the circuit court’s judgment granting summary judgment to Benefit, and pursuant to our power under Supreme Court Rule 366 (87 Ill. 2d R. 366), we hereby enter summary judgment for the plaintiff and against the defendant, finding that the insurance became effective with respect to the plaintiff on March 4, 1980. We remand this cause for further proceedings with respect to affirmative defenses not ruled on by the trial court.

Reversed; judgment entered for plaintiff; remanded.

HARRISON and KASSERMAN, JJ., concur.


author: PRESIDING JUSTICE MILLS

text:
    MONTEREY COAL COMPANY et al., Plaintiffs-Appellees, v. BRAD EVILSIZER, Director of the Department of Mines & Minerals, Defendant-Appellant (Freeman United Coal Mining Co. et al., Intervening Plaintiffs; Peabody Coal Co., Intervening Plaintiff-Appellee; United Mine Workers of America, District 12, Intervening Defendant).
    Fourth District
    No. 4 — 83—0656
    Opinion filed May 7, 1984.

      Alexandra de Saint Phalle, of Londrigan, Potter & Randle, P.C., of Springfield, for appellant.
    Stuart Dobbs, of Denby, Dobbs, Meno & Bloomer, P.C., of Carlinville, for appellee Monterey Coal Co.
    Richard R. Elledge, of Gould & Ratner, of Chicago, for appellee Peabody Coal Co.
    Edmund J. Moriarity, of Chicago, for appellee Old Ben Coal Co.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

A single issue.

Does section 6.04(A) of the Coal Mining Act require a preshift examination before company personnel may carry out a “fire watch”?

We hold that it does not.

The Facts

In the summer of 1982, the United Mine Workers of America, Local Union No. 9878, petitioned the Mining Board of Illinois for an interpretation of section 6.04(A) of the Coal Mining Act (Ill. Rev. Stat. 1981, ch. 96V2, par. 604(A)), which requires a preshift examination of a mine before a shift of workers enters the mine to work. Section 6.04(A) of the Coal Mining Act states in pertinent part:

“1. When the mine is to be operated he [the mine examiner] shall examine the prescribed working places of such mine within 4 hours before any workers in such shift *** enter the underground areas of the mine. Examine every active working place in the mine and make tests therein with a permissible flame safety lamp for accumulation of methane and oxygen deficiency in the air therein; examine seals and doors to determine whether they are functioning properly; inspect and test the roof, face and rib conditions in the working areas and on active roadways and travelways; inspect active roadways, travelways, approaches to abandoned workings and accessible falls in active sections for explosive gas and other hazards; and inspect to determine whether the air in each split is traveling in its proper course and in normal volume.
2. On non-coal producing shifts he shall examine the mine in its entirety the same as for a coal producing shift, except where men are to work only in the shaft, slope or drift or on the immediate shaft bottom, then only that area immediately surrounding the bottom need be examined.”

Local 9878 requested the Mining Board to rule whether a coal mine operator could send company personnel down into a vacant mine to perform a fire watch inspection without first having the mine preexamined in accordance with section 6.04(A).

A “fire watch” is an inspection carried out by company personnel when the mine is vacant — when no coal producing or non-coal-producing shift work, such as construction or maintenance work, is being performed. Fire watches are usually performed over long holiday weekends and during vacation periods. The fire watch personnel consists of company supervisory personnel — including foremen, mine managers, and assistant mine managers. All the personnel hold mine examiner certificates and most of them also hold mine manager certificates.

The fire watch personnel enter the mine and monitor the condition of the property, equipment, and materials underground. Their primary function is to locate and extinguish smouldering fires while the fires are small enough for one man to control. The fire watch personnel also visually check all belt drives, transformers, circuit breakers, battery chargers, and shaft bottoms. In addition, they check to make sure that all electrical circuits that should be energized are energized and that all electrical circuits that should not be energized are not energized.

The Mining Board declined to rule on Local 9878’s petition for an interpretation of section 6.04(A) and instead referred the question to the Attorney General of Illinois. The Attorney General issued an opinion, finding that a fire watch may not be performed unless a section 6.04(A) preshift examination is carried out first.

Several coal mine operators (Monterey Coal Company, Old Ben Coal Company, Freeman United Coal Mining Company, Inland Steel Coal Company, Peabody Coal Company) appealed the Attorney General’s decision to the circuit court of Sangamon County, asking the court to enjoin Brad Evilsizer, the Director of the Illinois Department of Mines and Minerals, from enforcing the Attorney General’s opinion. District 12 of the United Mine Workers of America was granted leave to intervene.

The coal mine operators filed a motion for summary judgment. Evilsizer and District 12 replied. After a hearing was held, the circuit court entered an order finding that the Attorney General’s opinion was an invalid and erroneous construction of section 6.04(a) and enjoined the enforcement of the opinion.

Evilsizer and District 12 each filed separate appeals. This opinion deals with Evilsizer’s appeal.

Analysis

On appeal, Evilsizer argues that the plain language of 6.04(A) supports the Attorney General’s opinion that 6.04(A) requires that a preshift examination must be performed before a fire watch may be carried out. Evilsizer also argues that requiring a preshift examination before a fire watch is carried out furthers the legislature’s purpose for enacting the Coal Mining Act — the promotion of mine safety.

We disagree on both points and affirm the trial court’s order.

PLAIN LANGUAGE

The plain language of 6.04(A) requires a preshift examination before any shift of workers enters the mine to perform coal producing or non-coal-producing work. A fire watch is simply not a shift of workers.

Webster’s Third New International Dictionary 2095 (1976) defines a “shift” as:

“A group of people who work or occupy themselves in turn with other groups ***; a change of one group of people *** for another in regular alternation; a scheduled period of work or duty.”

A single worker entering an otherwise vacant mine on a random basis to perform a safety check does not fit within the above definition of a shift. Ergo, the plain language of 6.04(A) does not require a preshift examination before a fire watch is carried out.

MINE SAFETY

This court noted in Freeman Coal Mining Corp. v. Ruff (1967), 85 Ill. App. 2d 145, 228 N.E.2d 279, that the legislative purpose behind the enactment of the Coal Mining Act was coal mine safety. Requiring a preshift examination before a fire watch would not further that purpose.

Fire watches are not required by law. The coal mine operators carry them out on a strictly voluntary basis. The operators apparently believe that the cost of the fire watches is outweighed by the protection they afford both the people and the property in the mine.

Adding the burden of the cost — in both time and money — of a preshift examination to the cost of a fire watch would undoubtedly reduce the operator’s incentive to carry out fire watches. Consequently, fire watches would be performed less frequently. And the overall result would be a decrease, not an increase, in mine safety. Ergo, requiring a preshift examination would hinder — not further — the legislative purpose behind the enactment of the Coal Mining Act.

Hi conclusion, both the plain language of section 6.04(A) and the legislative purpose behind the Coal Mining Act support the trial court’s order finding that a preshift examination is not required before a fire watch is carried out.

Accordingly, we affirm.

Affirmed.

TRAPP and WEBBER, JJ., concur.


text:
      In re J.W.M., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. J.W.M., Respondent-Appellant).
    Fourth District
    No. 4 — 83—0801
    Opinion filed May 9, 1984.
    Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Officer, of Springfield, for appellant.

      Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Eider man and Perry Lee Miller, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

The minor was committed as a delinquent.

His mother and father (with their addresses) were named in the petition.

Thé record does not reveal that notice was given to either parent of the hearings — adjudicatory and/or dispositional.

Only the mother was present at each.

The Juvenile Court Act provides that every parent, legal guardian, and custodian — or when necessary, the nearest relative — must be named as a respondent, and each is to be individually served unless that is not feasible, in which case service may be by publication. Ill. Rev. Stat. 1981, ch. 37, pars. 704-1, 704-3, 704-4.

The dispositional report here reflects that the minor visits his father often and receives spending money from him, and the minor says he has a good relationship with his father.

These facts distinguish this case from the exceptions to the notice requirements carved out by In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501, In re L.E.J. (1983), 115 Ill. App. 3d 993, 451 N.E.2d 289, In re R.S. (1983), 117 Ill. App. 3d 698, 453 N.E.2d 139, and In re J.P.J. (1984), 122 Ill. App. 3d 573.

Notice to all required by the Act is mandatory.

The State confesses error.

Reversed and remanded.

TRAPP and WEBBER, JJ., concur.


author: PRESIDING JUSTICE WELCH JUSTICE HARRISON,

text:
    FRED A. KOEHLER, Plaintiff-Appellee, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellant.
    Fifth District
    No. 5 — 83—0401
    Opinion filed May 3, 1984.
    HARRISON, J., dissenting.
    Richard F. Nash and James R. Garrison, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellant.
    C. E. Heiligenstein and Brad L. Badgley, both of Belleville, and James H. Cooksey, of Centraba, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Plaintiff Fred A. Koehler instituted this action against his employer, defendant Illinois Central Gulf Railroad Company, in the circuit court of St. Clair County. He alleged in his complaint that he had been wrongfully discharged from his employment for exercising his rights under the Federal Employers’ Liability Act or FELA (45 U.S.C. sec. 51 et seq.). The defendant moved to dismiss the complaint, but the trial court denied that motion. At the defendant’s request, the court certified a question for interlocutory appeal, and we granted defendant’s application for leave to appeal. (87 Ill. 2d R. 308.) We must reverse the decision of the trial court because an employee who is covered by a collective bargaining agreement prohibiting termination without just cause may not maintain a tort action against his employer for retaliatory discharge.

The plaintiff’s employment with the defendant was terminated in 1979. At that time, an action brought by the plaintiff against the defendant under the FELA was pending in the circuit court of St. Clair County, and, in 1974, the plaintiff obtained a verdict in his favor against the defendant in a suit brought under the same enactment. As a member of the Brotherhood of Railway Carmen of America, their Helpers and Apprentices, the plaintiff was protected by a collective bargaining agreement between the defendant and the System Federation No. 99, Railway Employees’ Department, AFL-CIO. That agreement prohibited the unjust termination of employment and provided for a grievance procedure in the case of violation of the agreement.

In December 1979, the plaintiff’s local union submitted a grievance on his behalf to the defendant. It was denied. Pursuant to the collective bargaining agreement, an appeal from this denial was taken within the defendant. The grievance was again denied. In February 1981, the Brotherhood of Railway Carmen submitted the plaintiff’s claim to the National Railroad Adjustment Board. That claim was still pending when the notice of appeal was filed in the present case. In 1983, a hearing was held on the plaintiff’s claim, the board rendered its decision, and the plaintiff was reinstated as an employee of the defendant, with full seniority, but without retroactive pay or benefits.

The question certified by the trial court was whether an employee whose employment is covered by the Railway Labor Act (45 U.S.C. sec. 151 et seq.), portions of which are incorporated by reference into the grievance procedures in the collective bargaining agreement at bar, may bring a wrongful discharge action in State court without exhausting the remedies provided by that act. Of course, the plaintiff has now exhausted those remedies by pursuing his claim to a successful conclusion. The focus of the briefs in this court is instead upon whether the remedies established by the act preempt any State tort action for wrongful discharge.

Subsequent to oral argument in this case, we filed an opinion in Mouser v. Granite City Steel Division (1984), 121 Ill. App. 3d 834, 460 N.E.2d 115. In Mouser, we examined conflicting decisions in the appellate court and the Illinois Federal courts on the issue of whether an employee covered by a collective bargaining agreement preventing discharge without just cause could bring an action for wrongful discharge against his employer. We observed that the policies behind that judicially created tort were not present in the case of an employee covered by such an agreement. Along with the majority of districts in this court, and the Federal courts in this State, we concluded that the tort of wrongful or retaliatory discharge was not available to an employee whose employment was governed by a collective bargaining agreement proscribing termination of employment without just cause.

There is no question that the plaintiff here is covered by such an agreement. Under Mouser, then, he may not maintain an action in tort for wrongful discharge under Illinois law. Having decided that no Illinois tort remedy supports the plaintiff’s complaint, we need not decide whether such a remedy would be preempted by Federal law if it existed. Accordingly, the decision of the circuit court of St. Clair County is reversed and the plaintiff’s complaint is dismissed with prejudice.

Order reversed; complaint dismissed with prejudice.

JONES, J., concurring.

JUSTICE HARRISON,

dissenting:

I respectfully dissent, for I believe that the result reached in this case operates to undermine the public policy considerations inherent in our supreme court’s recognition of a cause of action for retaliatory discharge. In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, wherein such cause of action was recognized, the court also held that punitive damages may be awarded to the discharged employee under appropriate circumstances. The court noted that, in the absence of the deterrent effect of punitive damages, there would be little to dissuade an employer from wrongfully discharging an employee. (74 Ill. 2d 172, 186.) In so holding, the court joined those courts which have recognized that the situation of the employee and employer in today’s society is hardly equivalent, and that the “mutuality of obligations” rule permitting discharge of the employee at will for any or no cause is unduly harsh in the modern world. (See Smith v. Atlas Off-Shore Boat Service, Inc. (5th Cir. 1981), 653 F.2d 1057, 1060-63, and authorities cited therein.) In my view, the holdings in the instant case and the cases relied on in support of today’s result operate to take away a significant part of what our supreme court in Kelsay expressly gave, without restriction, to the employee discharged for exercising the rights expressly given him by legislative enactment. Nothing in Kelsay even remotely indicates that its protections are not to extend to employees covered by a collective bargaining agreement, and today’s decision has the irrational effect of immunizing from punitive damages the employer who fires a union member, while providing no such protection to the employer who fires a nonunion employee. Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 841-42, 439 N.E.2d 1053.

Moreover, in addition to these general policy considerations, specific analysis of the differing functions of a collective bargaining agreement and the tort remedy for retaliatory discharge underscores the erroneousness of the result reached by the majority herein. The issue before this court does not involve interpretation of a collective bargaining agreement, an appropriate matter for arbitration (Hendley v. Central of Georgia R.R. Co. (5th Cir. 1980), 609 F.2d 1146, 1151); rather, the question here is whether the terms of the agreement can preclude the pursuit of a wholly independent and judicially created remedy for retaliatory discharge. As observed by Justice Barry in his well-reasoned dissent in Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407, 407 N.E.2d 95 (Barry, J., dissenting), “in his complaint the plaintiff is not alleging that the discharge was wrongful in the sense that the terms of the collective bargaining agreement were violated. [Citations.] Rather, the plaintiff is seeking damages for his retaliatory discharge based upon his pursuing a workmen’s compensation claim. The plaintiff’s cause of action sounds not in contract, but in tort. It is based not upon violation of the terms of the collective bargaining agreement, but upon a violation of the public policy of the State of Illinois to compensate employees for work-related injury.” Here, plaintiff’s action is based upon an express public policy seeking to deter retaliatory discharge, and not upon anything granted to the employee under the terms of the collective bargaining agreement.

Finally, we should not ignore the reality that many collective bargaining agreements simply do not provide the discharged employee with protection comparable to that afforded by Kelsay. As one law review article dealing with Kelsay has noted, reliance on collective bargaining agreements alone under the circumstances presented here may deprive the employee of any recovery in some cases, as when a union is reluctant to arbitrate, or may severely limit the employee’s recovery. (Note, Kelsay v. Motorola, Inc. — Illinois Courts Welcome Retaliatory Discharge Suits Under the Workmen’s Compensation Act, 1980 U. Ill. L.F. 839, 852 & n.80, 853 & n.81.) Indeed, the potential for unfair diminution of the employee’s recovery is graphically illustrated by this case, where plaintiff’s full pursuit of his rights under the collective bargaining agreement yielded nothing better than reinstatement without retroactive pay or benefits. Such a result does nothing to provide the disincentive for retaliatory discharge inherent in Kelsay. Today’s decision, which eviscerates both the rights conferred on employees by Kelsay and the ability of the courts to give full force to legislative schemes designed for the protection of employees, is simply out of touch with the slow but steady evolution of the rights of employees in the latter half of this century.