author: JUSTICE HOPE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHANIEL BELL, Defendant-Appellant.
    Second District
    No. 80-649
    Opinion filed March 30, 1982.

      Mary Robinson, of State Appellate Defender’s Office, of Elgin, and Richard E. Steck, of Chicago, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the court:

Nathaniel Bell was charged by information with the murder of Sharon Hendriex in violation of section 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(2)). The court refused to quash his arrest and to suppress the evidence against him. On June 25, 1980, a jury in Winnebago County found the defendant guilty as charged. He was sentenced on August 7, 1980, to a term of 40 years in the State penitentiary.

The defendant appeals the denial of his motion to quash the arrest and to suppress evidence, particularly the testimony of David Bunch, an eyewitness to the homicide. The State contends that even assuming defendant would be correct that he was arrested without probable cause, nonetheless the trial court was correct in refusing to suppress the testimony of this witness.

At approximately 2 a.m. on March 22,1980, Sharon Hendriex met her death in a parking lot in Rockford, Illinois, as a result of a gunshot wound. Also with her and injured was her infant daughter. Police observed a light-over-dark car pull away from the incident. They were unable to identify the occupants or make of the vehicle. The defendant resided approximately 15 blocks from the incident. Bell and the decedent maintained a relationship, Bell having fathered two of her children including the infant found at the scene. The relationship was evidently marked by a history of arguments and threats by Bell. A week before, Bell had beaten and locked the decedent in his home. Three friends of the decedent who lived near the parking lot gave statements. One stated that she saw a male Negro with a short afro and wearing a white or light blue suit kicking the decedent’s car about 20 minutes before the shots. One of the other witnesses also saw a male Negro of medium build in the parking lot and a car with a white top and blue or black bottom pull away. Two of these friends indicated that earlier the decedent had expressed a fear of Bell and had gone into the parking lot to investigate who was kicking her car. Another witness gave a statement that decedent had sued Bell for child support and that Bell had, several days before, hurled epithets at decedent in the courthouse.

Arresting officers pursuant to an “attempt to locate” directive issued by the officers investigating the death located Bell at his home. He responded with his name and upon entry into the home the officers stood him against the wall. He was taken to the police station and was given his Miranda warnings at approximately 6:30 a.m. In the home at the time of the arrest was Berlinda Clark, who was taken to the police station for a statement. She told police that a “Dave” had accompanied Bell on that evening. Later in the morning officers inquired of Bell as to the identity of “Dave.” He supplied the surname “Bunch.” Up to that time Bell had refused to identify “Bunch” as he did not want to implicate his friends. Subsequently, Bell made oral and written inculpatory statements, which were not introduced at trial. The only direct evidence linking Bell to the homicide was the testimony of Bunch as to the events that occurred in the parking lot. The other evidence adduced at trial concerned the relationship between Bell and the decedent.

David Bunch upon being called into the police station was hesitant to make a statement. His attorney was brought in and after consultation with police the attorney advised Bunch that he was only a witness and advised him to make a statement. Bunch’s attorney remained with him while this statement was taken.

Bell contends on appeal that his arrest was without probable cause and should have been quashed, that the police came upon David Bunch as the result of this illegal arrest, and that therefore the State should have been precluded from the use of his testimony at trial. Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.

It is the State’s position that the analysis applied in United States v. Ceccolini (1978), 435 U.S. 268, 55 L. Ed. 2d 268, 98 S. Ct. 1054, compels a decision that the testimony of David Bunch was properly admitted.

In Ceccolini the Supreme Court ruled that in an analysis of the fruit of the poisonous tree doctrine, testimonial evidence of a live witness is considered different than other types of evidence. The court quoted Smith v. United States (D.C. Cir. 1963), 324 F.2d 879, 881-82, cert. denied (1964), 377 U.S. 954, 12 L. Ed. 2d 498, 84 S. Ct. 1632:

“ ‘The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.’ ” United States v. Ceccolini (1978), 435 U.S. 268, 277, 55 L. Ed. 2d 268, 277, 98 S. Ct. 1054, 1060.

The Supreme Court set forth a series of factors to be considered in determining whether a live witness’ testimony is to be admitted despite the illegality that preceded the discovery of the witness. Foremost, the court said the degree of free will exercised by the witness in deciding to talk to police is not irrelevant. This is true whether or not the witness is a putative defendant but it is especially true if the witness is not. In determining whether the decision to talk is an exercise of free will a court should consider the time, place and manner of the initial questioning of the witness. Another important consideration which differentiates live witness testimony from typical documentary evidence is that to exclude the testimony of a witness “would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search of the evidence discovered thereby.” United States v. Ceccolini (1978), 435 U.S. 268, 277, 55 L. Ed. 2d 268, 278, 98 S. Ct. 1054, 1061.

The enormous “cost” to the government in the suppression of such testimony was referred to in the case of Michigan v. Tucker (1974), 417 U.S. 433, 450, 41 L. Ed. 2d 182, 196-97, 94 S. Ct. 2357, 2367, where the court, dealing with the trial testimony of a witness whose identity was disclosed after inadequate Miranda warnings, stated: “[W]hen balancing the interests involved, we must weigh the strong interest under any system of justice of making available to the trier of fact all concededly relevant and trustworthy evidence which either party seeks to adduce.” In Ceccolini the court further stated, “[S]ince the cost of excluding live-witness testimony often will be greater [than excluding typical documentary evidence], a closer, more direct link between the illegality and that kind of testimony is required.” 435 U.S. 268, 278, 55 L. Ed. 2d 268, 278, 98 S. Ct. 1054, 1061.

We must examine the testimony and determine if it was “sufficiently unrelated to or independent of the constitutional violation” (435 U.S. 268, 278, 55 L. Ed. 2d 268, 278, 98 S. Ct. 1054, 1061) to be properly admitted.

Though certain factors present in Ceccolini are not present here, i.e., a four-month lapse of time before questioning and an eagerness on the part of the witness to talk, of critical importance to us was role of the witness’ own lawyer, who stood by with Bunch while he made his statement. It was apparent that Bunch was not a putative defendant. Under these circumstances, though there was initial hesitation by Bunch, his statement appeared voluntary.

There is also the likelihood that the police would have discovered the witness sans the defendant’s arrest. The defense contends that had the State raised the matter at trial it would have been required to prove that it would have discovered the evidence from an independent source. (People v. Sampson (1980), 86 Ill. App. 3d 687, 408 N.E.2d 3.) This was, however, not an inanimate object but a live witness, and as stated in Ceccolini, “Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition.” (435 U.S. 268, 276, 55 L. Ed. 2d 268, 277, 98 S. Ct. 1054, 1060.) Once the fact of the death of Sharon Hendriex became known it is not inconceivable that David Bunch would have come forward.

The importance of Bunch’s testimony is very great. Besides the defendant himself, he is the only witness to directly connect the defendant with the homicide. Consequently it can be seen that the cost of the loss of this live-witness testimony would indeed be substantial.

Chief Justice Burger stated in his concurring opinion in Ceccolini:

“[I]t strikes me as evident that the permanent silencing of a witness — who, after all, is appearing under oath — is not worth the high price the exclusionary rule exacts. Any rule of law which operates to keep an eyewitness to a crime — a murder, for example — from telling the jury .what that person saw has a rational basis roughly comparable to the primitive rituals of human sacrifice.” 435 U.S. 268, 285, 55 L. Ed. 2d 268, 283, 98 S. Ct. 1054, 1065.

Though we do not necessarily agree with the Chief Justice’s analogy, to those who criticize the game-like atmosphere surrounding the exclusionary rule the exclusion of David Bunch’s testimony would be the ultimate in gamesmanship.

Considering the factors as promulgated in Ceccolini we are of the opinion that there is sufficient attenuation of this testimony from the assumed illegal arrest to warrant its admission.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

VAN DEUSEN and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ALLOY JUSTICE HEIPLE,

license: Public Domain

text:
    VICTORIA ANN MONKEN KREKE et al., Plaintiffs-Appellees, v. CALDWELL ENGINEERING COMPANY, Defendant-Appellant.
    Fourth District
    No. 17231
    Opinion filed March 25, 1982.

      HEIPLE, J., dissenting.
    Duane L. Traynor, of Traynor, Hendricks & Reed, of Springfield, for appellant.
    Londrigan and Potter, of Springfield (James C. Craven, of counsel), for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

The defendant Caldwell Engineering Company appeals from the judgment of the circuit court in favor of plaintiffs in their action to recover damages for the death of their father, William Monken, under the construction injuries act (Ill. Rev. Stat. 1971, ch. 121, par. 314.1 et seq.).

The suit stemmed from the death of William Monken in November 1972, in an automobile accident which occurred near the intersection of Route 104 and U.S. 36-54. Defendant Caldwell was doing construction work in the area. The jury found liability and entered judgment, in the amount of $400,000, on behalf of the plaintiffs, all children of the decedent. From that verdict and judgment, Caldwell now appeals. It contends that the construction injuries act is not applicable to the facts of this case and that no liability under the act is justified. It further contends that the evidence was insufficient, as a matter of law, to show that any violation of the act was the proximate cause of the accident in which Monken was killed. Other issues raised by Caldwell address evidentiary rulings by the court, decisions on the pleadings, and an instruction. The issues will be specifically set forth in our discussion and analysis following presentation of the pertinent facts.

It is essential to an understanding of the case to have a clear view of the area in which the accident occurred, and for this reason the attached diagram, our composite based upon combined submitted exhibits and testimony, is included. This diagram was not an exhibit submitted in this cause.

The record reveals that defendant Caldwell Engineering was awarded the bid to remove the bridge or superstructure over the railroad tracks on U.S. Route 36-54, just east of the intersection of 36-54 with Route 104. Caldwell’s contract with the State of Illinois contained special provisions

addressing traffic control standards related to the proposed construction on 36-54. The applicable “signing” on 36-54 was set forth, as were the detour layouts for the project. A pertinent part of the plans for construction was the closing of that portion of Route 104 lying between the eastbound lanes of 36-54 and the westbound lanes of 36-54. A barricade was erected, preventing traffic northbound on Route 104 from proceeding normally on 104 at the intersection with 36-54. A barricade was also erected preventing traffic northbound on 104 from turning right, at the intersection, onto eastbound 36-54. Northbound traffic on 104 could neither turn right, nor proceed on 104 and then merge with westbound lanes of 36-54, as was the pre-existing pattern prior to construction. Rather, through the use of barricades, a detour was established which required all traffic coming north on 104 to turn left (westerly) and proceed along the formerly eastbound lanes of 36-54. Traffic off of 104 would proceed along those eastbound lanes until routed north, again by detour crossing, onto the two lanes of 36-54 which were formerly westbound. The formerly westbound lanes, however, were made two-way to accommodate the changes for construction. As is evident, considerable and significant changes in the traffic pattern at the intersection were necessitated. Northbound 104 traffic, which formerly could only have gone straight or turned right, was required to turn left, onto what had formerly been oncoming traffic lanes of 36-54.

In addition to the construction work, Caldwell was performing east of the intersection, it was also the contractor on work which was done at the intersection of 104 with 36-54. This work called for the removal of existing curbing on both sides of northbound 104 at its intersection with 36-54 and for the widening of the radius of the corners there.

The above-mentioned changes and traffic routing, along with barricades, are shown on the diagram referred to in this opinion.

Prior to construction, a conference was held between representatives of Caldwell and representatives of the State Traffic and Construction Division. As a result of the meeting, a traffic-standard sketch, showing necessary changes in signing in the area, was prepared. The initial sketch was unavailable at the time of trial, and there was a dispute in the evidence as to whether the lost sketch contained requirements for advance warning signs on 104, prior to the intersection with 36-54. Although in pretrial statements a senior Caldwell employee, who had attended the conference, stated that there was a temporary advance warning sign erected on 104 as it approached the intersection, at trial Caldwell conceded what photographic evidence conclusively demonstrated. There were no temporary advance warning signs on 104 to advise northbound traffic of the construction ahead or of the detour and traffic changes at the approaching intersection with 36-54.

The only change in Route 104 signing prior to the accident was the removal of a stop sign, with flashing red light atop, from the intersection of northbound 104 and 36-54. Originally, there were three stop signs at the intersection of northbound 104 and 36-54. There was one which stopped 104 traffic turning right onto the eastbound lanes of 36-54, prior to entering those eastbound lanes. There were two, one on each side of the 104 roadway, where 104 met 36-54, and then proceeded across the eastbound lanes of 36-54, to finally merge with the westbound lanes of 36-54. Both of these had flashers atop of the stop sign. The sign on the southwest side of the 104 roadway at the intersection was disconnected and removed in August 1971, by Egizii Electric Company, at the direction of State of Illinois personnel. The removal of the sign and its post was done to permit Caldwell to widen the turn at the intersection and to enable large trucks to turn left onto the westbound pavement as a detour. After the removal of that stop sign, there was one remaining on the southeast side of the 104 roadway, and one further east for traffic which would, after construction, again be able to make the right turn.

Other permanent signing along Route 104 as it approached the intersection included a railroad crossing sign approximately 1500 feet from the intersection, a “Stop Ahead” sign approximately 1100 feet from the intersection, a “Center Curb Ahead” sign about 900 feet from the intersection, a junction sign at about 700 feet, and then a “Keep Right” sign slightly back of the point of the median, some 300 feet before the intersection. As already indicated above, there were no temporary warning signs posted on Route 104 to indicate to northbound traffic that there was construction ahead, that part of 104 was closed ahead, or that a detour was ahead at the intersection.

The facts pertinent to the accident which took the life of William Monken are undisputed. Jo Ann Monken, mother of the five plaintiffs, and suing as next of kin for three of the minors, was the divorced wife of William Monken at the time of the accident. He and she had been divorced in October 1971. On the evening of the accident, being November 16,1971, she had been bowling and had returned to her Chatham, Illinois, home around 11:30 p.m. Sometime thereafter, William Monken, who was then residing in Springfield, came to the house, wanting to talk with her. She asked if he was hungry or wanted a cup of coffee. He said he was not, but he indicated he would like to take a ride and talk with her. They left and took a drive. They drove south to Auburn, where they turned onto Route 104, heading westerly. They decided to go to Jacksonville to stop at a late-night cafe. They proceeded west and then northwesterly on 104 toward Jacksonville. Monken was traveling about 50 mph, and the road surface was dry. It was a clear night. Mrs. Monken testified that she had no reason during the drive to be concerned about his operation of the auto. He had no restrictions on his license and did not wear glasses. He was wearing a.seatbelt, a normal precaution of his, but she was not wearing her belt. As they drove along, she was in a position to see stop signs and other signs. When approaching the 104 and 36-54 intersection, just outside of Jacksonville, she did not notice anything out of the ordinary. She did not see anything indicating any construction in the area. She had never traveled on Route 104 previously. While driving they had discussed a variety of things, including the children and an upcoming birthday. As they were approaching the intersection with 36-54, heading northwesterly on Route 104, she noticed the railroad crossing some 1500 feet from the intersection. She also saw the “Stop Ahead” sign (1100 feet), the “Center Curb Ahead” sign (900 feet), and the “Keep Right” sign (300 feet). William Monken was looking ahead at the roadway, and she was turning from side to side while talking to him. She did see the signs, and she was aware of the “Keep Right” sign as the car approached it. The car slowed down as it proceeded upon the incline toward the intersection. She felt a slight pull as it went up, and testified that Monken was not speeding up the incline. She estimated the speed at 20-25 mph. His attention was directed to the highway as she talked. As they were going up the incline, within 100 to 150 feet of the intersection, she was looking at him and suddenly he said, “Oh my God Jo Ann.” She looked and all she saw was a yellow flashing light. That was all she remembered until she woke up and found herself in the back seat of the car. According to police reconstruction, the Monken auto had swerved left, while braking, and then left the west edge of the 104 pavement, hitting the guardrail on the west edge. The guardrail begins about 100 feet from the intersection. The car then slid along the guardrail, went over it and then rolled over on its top and down the steep grade on the infield side of the guardrail.

Jo Ann Monken woke up in the back seat of the car. She got into the front seat, examined Monken, could not wake him, and could not get the doors open. She attempted to unfasten his seatbelt, but could not. She was then able to get herself out of the car, and she went for help down the road. When help finally arrived, in the form of fire and police vehicles and personnel, the car was in flames and Monken was dead.

Other evidence at trial, while disputed, indicated that there were construction trailers and machinery along the east side of Route 104, approximately 400 feet before the intersection. Plaintiffs’ expert, a consulting traffic engineer, graphically indicated that the presence of the equipment would have made it difficult, if not impossible, for an approaching driver to see the signs at the intersection when his auto was beginning its approach up the incline ramp. It was also shown that the one remaining stop sign with a flasher was located on the southeast side of the 104 roadway, considerably off to the right of the line of sight of a driver approaching the intersection from the direction the Monken car approached. This was the result of the fact that the roadway, after bifurcation at the median, curved considerably to the right. Furthermore, it was shown that the remaining sign with a flasher was on an elevation almost five feet higher than the elevation of the roadway from the railroad crossing (1500 feet) to the median bifurcation (400 feet).

The State highway patrolman who investigated the accident indicated that he drove southerly along 104 after the accident, on the night of November 16, 1971. He then approached the intersection from the direction that the Monken car had approached. He testified that he could observe the flashing stop light, when looking for it, at a distance of 1500 feet, nearby the railroad crossing on 104. However, he stated that he did not continue to check as to its visibility upon closer approach to the intersection. The officer, at the inquest, stated that in his opinion there were two possible causes of the accident. The first was that the driver was unfamiliar with the crossing and the other was that it was a construction site. He also testified that there was no evidence of excessive speed on the part of the Monken auto.

Both sides produced expert testimony on the issue of whether temporary signing was needed along Route 104 as it approached the intersection with 36-54. Plaintiffs’ expert concluded that temporary signing, warning of construction and a detour, was necessary in order to advise motorists to slow down and be aware of possible changes in the direction of travel or other modifications due to construction. He based his conclusion on the dangerous nature of the intersection even before construction, the widening of the curve on 104 at the intersection, the presence of the trailers and equipment alongside 104, and the removal of the stop sign with flasher on the southwest side of the 104 highway at the intersection. Caldwell’s expert, on the other hand, concluded that the existing signing on Route 104 was sufficient to warn oncoming traffic to slow down. He further concluded that Caldwell did not need to re-erect the stop sign that had been removed for their construction at the intersection.

In addition to the above witnesses, there was also considerable testimony on the issue of damages, which we need not detail in this opinion, as no issue with respect to the damage award is taken by defendant. Having set forth the pertinent factual background, we turn to the issues raised by Caldwell in seeking to reverse the judgment and obtain a new trial.

The first issue raised by defendant Caldwell is whether the construction injuries act (Ill. Rev. Stat. 1971, ch. 121, par. 314.1 et seq.) has application to the facts of the instant case. It is Caldwell’s contention that . the act did not require any advance warning signs on Route 104, because there was no “major construction” being done on Route 104. Caldwell points to the fact that the construction work being done at the time of the accident was related to the overpass on U.S. 36-54, some distance east of the 104 intersection. We conclude, however, as did the trial court, that the act has application to the facts in this case. The construction injuries act is a safety statute designed to protect workers and the general public from injury or death during the construction or repair of bridges and highways within the State of Illinois. (Vegich v. McDougal Hartmann Co. (1981), 84 Ill. 2d 461, 468, 419 N.E.2d 918.) As a safety statute, this court is directed to adopt a liberal construction of it in order to effectuate the purposes of the statute and to afford broad protection to those the statute was designed to protect. (Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 127, 302 N.E.2d 64.) The pertinent section of the Act, section 4 (Ill. Rev. Stat. 1971, ch. 121, par. 314.4), states:

“Any portion of highway or bridge which is closed to all traffic shall be marked at each place where vehicles have accessible approach to such portion of highway or bridge, and at a sufficient distance from the closed portion of such highway or bridge shall be marked with an adequate number of safe, suitable, and proper warning signs, signals or barricades as set forth in the Manual of Uniform Traffic Control Devices for Streets and Highways published by the Department of Transportation so as to give warning to approaching motorists that such portion of bridge or highway is closed and unsafe for travel.”

The Manual referred to in section 4, at its pages 190-91, states, in pertinent part:

“Construction Approach Warning Signs. Where major construction or maintenance is under way on a rural highway and any part of the roadway is obstructed or closed, it is necessary to give special advance warning, and for this purpose a series of Construction Approach Warning signs is provided in the following Sections. Because of their importance, these signs shall have a standard size of 48 inches by 48 inches. They shall be of the standard diamond shape for warning signs except as provided for in this Part under Design of Warning Signs.
Application of Construction Approach Warning Signs. Construction Approach Warning signs are for the purpose of alerting traffic, well in advance, to serious obstructions or restrictions due to road work. In rural areas where space permits there should be at least three such signs, at 500, 1,000, and 1,500 feet, respectively, in advance of the point of restriction.
Construction Approach Warning signs should be mounted on two posts, from 6 to 12 feet from the pavement edge or on wing barricades at appropriate advance distances.
The Advance Road Construction sign (W20 — 1) is intended for use in advance of road construction projects as a general warning of possible obstructions or restrictions due to such work.
The Advance Detour sign (W20 — 2) is intended for use in advance of a point at which traffic is diverted over a temporary roadway or route.

As noted, the purpose of the act is to protect motorists from injury or death where construction is occurring on a State highway. The purpose and intent of section 4, and the rules of the Manual to which it refers, are to insure that motorists approaching construction areas or obstructions due to construction are given adequate and sufficient advance warning of those conditions. Section 4 mandates advance warning when “any portion of highway * 0 * is closed to all traffic.” The obvious purpose and value of such advance warning is to alert motorists that normal traffic flow and normal traffic conditions may have been changed. It alerts traffic, in advance, to take special caution and pay special attention in proceeding onward. It is completely clear in the instant case that advance warning signs should have been erected upon Route 104, as per the Manual, in order to warn motorists approaching the intersection that the traffic flow had been changed and the normal highway closed. The facts indicate that a portion of Route 104, that portion lying between the eastbound and westbound lanes of Route 36-54 had been closed completely to regular traffic. The closing of that portion of Route 104 was due to the construction work being performed by Caldwell. Traffic which would normally have proceeded onto that portion of 104 was detoured westerly into what previously had been the eastbound lanes of 36-54. There can be no doubt that there was a significant obstruction to the normal route of traffic on 104. This closing of 104 at the intersection and the rerouting of traffic would, by itself, have necessitated advance warning to motorists, under section 4 of the act. Certainly, motorists had every reason to expect to be forewarned of significant changes in the traffic pattern at the intersection, even if most of the actual construction were being done further east on 36-54. That construction directly involved Route 104 and the intersection of 104 with 36-54, for the construction on 36-54 necessitated the significant and substantial changes in traffic flow for motorists proceeding northwesterly upon Route 104. This portion of 104 and the entire intersection were an integral part of the overall construction work being done in the area by Caldwell. To focus blindly upon the area where actual construction was being done, that is, the overpass, would be to ignore the realities of the situation and to ignore the purpose and intent of the act. Furthermore, there had been construction upon Route 104 at the intersection, in the nature of the widening of the curve on 104. That construction, which was substantially completed by Caldwell in August, had necessitated the removal of one stop sign at the intersection. There was construction on 104, but more importantly, a portion of 104 had been closed and the 104 intersection with 36-54 was part of the construction work being done by Caldwell in the area. Therefore, the construction injuries act had application to the facts of the instant case and required advance warning signs along Route 104.

Caldwell’s arguments against application of the act are unpersuasive. Caldwell places undue emphasis upon their restrictive reading of the highway manual referred to in section 4. They point to the language “where major construction or maintenance is underway” as limiting the application of the act. In the first place, we have already determined that the intersection of 104 and 36-54 was part of major construction being done by Caldwell in the area. Secondly, the act itself is clear and unequivocal as to its application: “where a portion of highway or bridge is closed to all traffic.” There is no indication in the act that the legislature conferred upon the Department of Public Works and Buildings any authority to restrict or limit the clear language of section 4 in the act. Questions concerning application of the act must be decided upon the language of the act, where it is clear and unequivocal. The restrictive interpretation of the language in the manual is contrary to the language of the act and contrary to the rule requiring liberal construction of safety statutes. We reject such an interpretation. Nor is the case of Tylitzki v. Triple X Service, Inc. (1970), 126 Ill. App. 144, 261 N.E.2d 533, controlling. In that case, the court concluded that the act did not apply to an arterial road which led into a road which itself was under construction. (126 Ill. App. 2d 144, 147.) Cases under the act must be determined on their own facts and circumstances, and in that case no part of Roselle Road, the road plaintiff was riding upon, was shown to have been under construction or to have been closed to traffic. It has not shown that the road was an integral part of the construction operation underway on the intersecting roadway. The facts in the case at bar, as already detailed, are different, and they indicate that 104 was closed at the intersection and that the intersection was an integral part of the overall construction operation in the area. The act applies to this case, as indicated.

The next argument for reversal advanced by Caldwell is that, as a matter of law, its violation of the act, in failing to provide advance warning, was not a proximate cause of the accident. To support this position, Caldwell points out that there was a dispute in the trial testimony of the experts as to whether such advance warning signs were necessary. It also argues that the existing signing on 104, indicating an intersection and a stop at the intersection, was sufficient and rendered any other warning signs unnecessary. We disagree. As to the necessity of advance warning signs, we have determined above that the act requires them and that they were necessary. The existing signing, detailed previously in this opinion, did nothing to alert oncoming traffic that there was anything unusual or hazardous ahead. The existing signing did not alert oncoming traffic that there might be obstructions due to construction work or equipment. It did not alert oncoming traffic that the intersection had been substantially altered, so that the normal flow of traffic was completely changed. It did not alert motorists that a detour was ahead. In sum, it did nothing to warn motorists to be especially careful and attentive when approaching the intersection, due to the conditions at the intersection. Advance warning signs, as required by section 4, would have alerted motorists of the necessity for additional, special caution and additional and complete attention to the oncoming situation. Advance warning signs would have alerted motorists to expect the unusual or unexpected when arriving at the intersection. It is evident from the testimony of Jo Ann Monken that William Monken was surprised by the situation he encountered on the incline approach to the intersection. We cannot know specifically what happened on that night. There was a “Keep Right” sign, and then a flashing red light over a stop sign on the right. There was a barricade, with yellow light, pointing left. We do not know whether William Monken was startled and surprised by the barricade, by the change of traffic pattern, and by seemingly inconsistent directions. We do not know if he feared oncoming traffic from the eastbound lanes of 36-54, not knowing it had been barricaded further up the road. We cannot know what specifically happened, but any of these explanations are inferences consistent with the evidence and the situation that night. Monken had come upon the ramp with no reason to suspect anything unusual and had found everything unusual and altered. The existing signing on 104 did nothing to prepare him for anything unusual. Had the proper and required signing been erected by Caldwell, William Monken may well have been more cautious about, and more attentive to, and more expectant of the changed conditions he encountered on 104 late that night. We find that the question of whether Caldwell’s failure to erect proper and necessary advance warning signs was a proximate cause of the accident properly went to the jury for its determination.

The next issues raised by Caldwell center upon allegations and proof by the plaintiffs that Caldwell violated article 107.22 of the Illinois Standard Specifications for Road and Rridge Construction. Article 107.22 states:

“Any traffic sign within the limits of construction which interferes with construction operations may be removed by the Contractor when authorized by the Engineer and reerected immediately at the temporary location designated by the Engineer. * * * As soon as construction operations permit, the sign shall be reerected at its permanent location in a workmanlike manner and to the satisfaction of the Engineer. The cost of all materials required and all labor necessary to comply with this provision will not be paid for separately, but shall be considered as incidental to the contract.”

Plaintiffs’ fifth amended complaint alleged the existence of this standard and a violation of it through Caldwell’s failure to re-erect the stop sign that was removed so that their widening of the 104 intersection could be accomplished. Evidence was introduced at trial, indicating that the sign had been removed by a third party, at the direction of the State Engineer, in order to allow for construction at the intersection and the construction operations further east. It was not re-erected permanently or temporarily before the accident on November 16, 1971. Caldwell argues that since a third party removed the sign, at the direction of the State, it was thereby relieved of any duty it might have had to re-erect the sign, either during construction or after it had concluded construction on the intersection. From this position, it argues the court improperly permitted the allegation of a violation of article 107.22 to go to the jury and that it improperly allowed evidence of a violation to be presented to the jury. We disagree. The evidence indicated that the sign was removed by a third party at the direction of the State, but it also indicated that the removal was undertaken in order for Caldwell’s construction to proceed on the widening of the 104 curve at the intersection. Once it had begun that work, it had principal responsibility to see to it that applicable standards were met. Furthermore, there was testimony, albeit disputed, that the stop sign on the northwest corner could have been re-erected at a temporary location. The contractor has the duty to comply with the State standards and that duty is imposed by virtue of the standards and their incorporation in the contract with the State. The fact that the State bore the initial cost for removing the sign does not relieve the contractor from its obligation and duty, under the contract, to see to it that the sign is re-erected at a temporary location. Standard 107.22 expressly provides that the contractor shall bear primary responsibility. Absent an express waiver of this provision by the State, the contractors has a continuing responsibility to meet State standards with regard to rejection of removed signs. The contractor and the State both have obligations in this area, and the contractor cannot avoid his responsibilities by pointing to omissions or actions by the State.

Even assuming, arguendo, error in the submission of the 107.22 violation to the jury, the other allegations, setting forth violations of the construction injuries act, were amply supported in the evidence. As noted, there was no question that Caldwell had failed to erect the necessary advance warning signs along Route 104. The jury’s verdict is supported by the evidence of those violations. Even if the one count were defective, the other allegations fully sustain the verdict, and reversal would not be warranted. (Ill. Rev. Stat. 1979, ch. 110, par. 68(4); Miller v. DeWitt (1967), 37 Ill. 2d 273, 287, 226 N.E.2d 630.) Defendant concedes the correctness of the statement of law, but disputes the result, arguing the introduction of evidence with regard to the failure to re-erect the stop sign was highly prejudicial. Even assuming, arguendo, error in the submission of the 107.22 violation to the jury, the evidence with respect to the removal of the permanent sign and its lack of re-erection was proper evidence, relevant to the question of whether there was construction which occurred on Route 104, an issue disputed by defendant Caldwell. It was also evidence arguably relevant to the questions of whether, given the situation and circumstances at the intersection, advance warning signs were necessary and whether their omission was a proximate cause of the accident. As a consequence, even if no duty were to be imposed upon Caldwell to re-erect the removed stop sign, the evidence was properly admitted and considered by the jury.

The final issues need not receive extensive treatment. Caldwell argues that the court erred in not permitting it to raise as a defense, in its answer, a question as to the decedent’s willful and wanton misconduct. Caldwell had sought permission to amend its answer to plaintiffs’ fourth amended complaint so as to include that issue. It is clear from the pleadings that Caldwell sought to raise the issue with respect to all of plaintiffs’ allegations in their count I, the bulk of which were construction injuries act violations. There was no attempt by defendant to narrow the issue to the violation of 107.22, nor did Caldwell seek at the time to differentiate the 107.22 issue from the construction injuries act violations. It is established that:

“Once a wilful violation of the act by a person in charge has been shown to be the proximate cause of plaintiff’s injury, then any testimony regarding plaintiff’s conduct is immaterial and irrelevant, since concurrent fault is not a defense to liability under the Structural Work Act.” (Beebe v. Commonwealth Edison Co. (1977), 45 Ill. App. 3d 43, 48, 358 N.E.2d 1343. See Vegich v. McDougal Hartmann Co. (1981), 84 Ill. 2d 461, 466-67, 419 N.E.2d 918.)

The evidence of the decedent’s conduct was admitted and properly went to the question of proximate cause, but the court properly refused to permit defendant to raise as a general defense the issue of the decedent’s conduct.

Neither do we find error in the instruction on proximate cause, being Illinois Pattern Instructions, Civil, No. 180.19 (2d ed. 1971), which informed the jury that if it decided that plaintiffs had proven their case against the defendant, it was no defense that some third person, who was not a party, was also to blame. There was considerable evidence presented which raised a question as to the State’s responsibilities to see that adequate and proper signing was erected upon Route 104 and in connection with the entire project. Given such evidence, and the obvious omissions by State personnel in seeing that all proper signing was accomplished, we find no error in the instruction objected to by Caldwell.

Finally, we find no basis for reversal in the brief, unanswered question about insurance. A question was asked by a prospective juror during voir dire, but was not responded to by either counsel. Neither was the question invited by either counsel. We believe the trial court was in the best position to judge the effect and potential prejudice of this inadvertent mention of insurance by the prospective juror. We will not disturb his finding that no significant prejudice was shown to warrant a mistrial. American State Bank v. County of Woodford (1977), 55 Ill. App. 3d 123, 129-30, 371 N.E.2d 232.

The decision and judgment of the Circuit Court of Sangamon County is affirmed.

Affirmed.

BARRY, P. J., concurs.

JUSTICE HEIPLE,

dissenting:

William Monken, late at night on the evening of November 16, 1971, was driving westerly on State Route 104 east of Jacksonville, Illinois. As he approached a stop sign, he reduced his speed from 50-55 miles per hour to 20-25 miles per hour. Then, while still about 100 feet from the stop sign, he veered to the left, hit the guardrail on the left, went over the guardrail and rolled down a grade. He was killed.

A close scrutiny of the record reveals no discernible reason for the accident. A reading of the majority opinion likewise sheds no light on this proposition. What is clear, however, is that the decedent’s children obtained a $400,000 verdict against a blameless defendant and that the majority of this court wishes to affirm the verdict.

Sympathy and compassion are noble qualities. Without such feelings, life would be cruel, hard and unbearable. The loss of William Monken’s life on the evening in question was tragic. Anyone knowing of this situation could not help but feel sorry for the surviving children. Certainly, the majority of this court is to be commended for that caring concern.

What is not commendable, however, is the majority’s willingness to hang a $400,000 verdict on a party who had no responsibility for this accident, the Caldwell Engineering Company.

This lawsuit is grounded in the construction injuries act. In broad general terms, that statute imposes liability on road contractors during road construction in favor of the general public. The act requires contractors to adhere to certain safety standards as the posting of warning signs, etc. In the case at hand, defendant was indeed performing road construction on an intersecting highway, U.S. 36-54, at some distance east of the stop sign and intersection in question. They were performing no work on State Route 104 where the accident occurred, however. Thus, the statute had no application to this case. The construction injuries act applies only to parties traveling on a road under construction.

Because of the road construction on U.S. 36-54, however, traffic on State Route 104 was diverted at a point past the stop sign. It is important to note at this point that a mere road diversion does not constitute construction. Moreover, the accident took place at a point 100 feet before defendant even reached the stop sign. And it was beyond the stop sign where State Route 104 was diverted. Plaintiffs’ decedent inexplicably ran off the road to his left approximately 100 feet before even reaching the stop sign.

Tylitzki v. Triple X Service, Inc. (1970), 126 Ill. App. 2d 144, is pertinent to the instant case. In Tylitzki, the plaintiff was traveling on Roselle Road approaching an intersection with Flagstaff Road. Roselle Road was not under construction. Flagstaff Road, however, was under construction approximately 80 feet from its intersection with Roselle Road. A collision occurred on Roselle Road between the plaintiff and a truck maneuvering to the construction site on Flagstaff Road. The court in Tylitzki concluded the plaintiff was not among the class of persons protected by the construction injuries act since the plaintiff was not traveling on the road under construction at the time of the accident.

The majority makes note of the fact that defendant had done some construction on State Route 104. Indeed they had. And they had finished their work a full 2¡í months before the accident in question. That work was remote in time. The work on U.S. 36-54 was remote in place. Neither brought the construction injuries act into play in this case. End of lawsuit.

If, however, we assume for purposes of argument that the construction injuries act applies, even then, the plaintiffs cannot recover. For there is not one iota of evidence in the record that suggests that any abjured standard of the statute was the proximate cause of the accident.

The advance warning sign provision of the construction injuries act required three warning signs be set out at intervals of 500,1000, and 1500 feet prior to the point of restriction. On the evening of the accident, 1100 feet from the intersection was a “stop ahead” sign. Nine hundred feet from the intersection was a “center curb ahead” sign. Seven hundred feet from the intersection was a sign which stated “JCT 36 and JCT 54.” At the intersection itself were two stop signs. At least one had a flashing red light. Jo Ann Monken, decedent’s divorced ex-wife, who was a passenger in the car and the only eyewitness, saw all these warnings along the highway with the exception of the stop sign at the intersection at which they never arrived. It is evident the decedent saw the same warnings along the road, as Mrs. Monken testified the decedent slowed down from 55 miles per hour to 20-25 miles per hour just before the accident. It is not clear how the presence of the advance construction signs would have caused the decedent to approach the intersection with more caution. Had he crashed through the intersection and detour barrier, it might be argued that the absence of the advance warning signs was a proximate cause of the accident. But he did not do that. Mr. Monken’s car left the road 100 feet before the intersection. Something caused him to go off the road and lose control of his car. It wasn’t because he didn’t have adequate warning of the situation ahead. He had warning of the stop at the intersection. He heeded it. He slowed down in preparation of the stop ahead. Whether he was warned of a detour at 1500 feet, under the circumstances, was immaterial because that detour started only after he would have come to a stop at the intersection. And, it is uncontroverted that Mr. Monken had adequate advance warning of the stop at the intersection.

The majority admits they cannot know what specifically happened on the night of the accident. They concluded, however, that Mr. Monken “must have been surprised by the situation he encountered on the incline approach to the intersection.” Then, they speculate about what must have occurred and that advance warning signs “may have” made Mr. Monken approach the intersection more cautiously. More cautiously? Mrs. Mon-ken testified he had slowed the car to approximately 20 miles per hour just before he ran off the road, and this was still 100 feet before the intersection.

We instruct our jurors to determine the facts solely from evidence produced in open court. They are further instructed their verdict must be based on evidence and not upon sympathy or speculation. (Illinois Pattern Jury Instructions, Civil, No. 1.01 (2d ed. 1971).) Yet the majority reaches their conclusion by just such proscribed processes.

Thus, this case should be reversed for the dual reasons that the construction injuries act has no application to the case at hand. And even if the act should erroneously be held to be applicable, the evidence does not indicate that any violation of the act was or could have been a proximate cause of the accident.

Accordingly, I dissent.


author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD FINKEY, Defendant-Appellant.
    Fourth District
    No. 17258
    Opinion filed March 25, 1982.
    Daniel D. Yuhas and Charles M. Schiedel, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Two counts attempt murder.

One count aggravated arson.

Jury: guilty, all three.

Sentences: 30-30-20, concurrent.

We affirm.

The handful of facts needed to relate this appeal may be neatly and pithily stated. In the early morning hours of August 14, 1979, the defendant Finkey began an altercation with his wife. At the time, a small child was asleep in an upstairs bedroom of the defendant’s home and defendant refused to allow his wife to remove the child from the house. Eventually, the police were called. The defendant ordered the officers off of his property and began shooting at them with a pistol. In the ensuing gun battle, three police officers were wounded. The defendant was also shot. During this chaotic period, a fire broke out in the garage attached to the defendant’s home — one which the Decatur fire marshal testified had been set intentionally.

At trial, the defendant raised an insanity defense. Dr. William F. Henebry, a psychiatrist who testified for the defense, had examined the defendant on two occasions. At the first meeting, the psychiatrist elicited information from the defendant about his background and about the events of the August 14 shoot-out. Based on this initial examination, Dr. Henebry found no evidence that the defendant suffered from an organic brain syndrome that would have caused his insanity at the time of the shooting. Approximately one month later, Dr. Henebry again met with the defendant. At this second meeting, the defendant revealed that he had learned about his own involvement in the shootings from hospital personnel. According to the defendant, he had no independent recollection of the August 14, 1979, events. This second examination led Dr. Henebry to conclude that the defendant suffered from an acute organic brain syndrome known as pathological intoxication which caused him to lack substantial capacity either to conform his conduct to the requirements of the law or to appreciate the criminality of his conduct.

On rebuttal, another psychiatrist testified that on August 14,1979, the defendant suffered from the mental disorder of depression. In the opinion of the State’s psychiatrist, this mental disease did not cause the defendant to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the law.

The State also called Detective Bradley Collins as a rebuttal witness. Detective Collins testified about an October 1979 conversation between himself and the defendant which occurred in the defendant’s hospital room, after the defendant had been charged and had retained an attorney. Only Detective Collins and the defendant were present. The defendant revealed to Detective Collins that he had some recall of the events charged. This evidence was offered to rebut the determination of Dr. Henebry that the defendant suffered from pathological intoxication based, in part, on symptoms of amnesia. While Finkey did file a pretrial motion in limine (which was granted as to the State’s case in chief), he did not object at trial to Collins’ rebuttal testimony.

Defendant raises two issues on appeal.

I

Finkey argues before this court that the jury should not have been allowed to hear his statements to Detective Collins because they were obtained in violation of his Miranda rights. However, “[i]t does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” (Harris v. New York (1971), 401 U.S. 222, 224, 28 L. Ed. 2d 1, 4, 91 S. Ct. 643, 645 (allowing use of a defendant’s prior inconsistent statements, obtained in violation of Miranda, for impeachment purposes).) See also Oregon v. Hass (1975), 420 U.S. 714, 43 L. Ed. 2d 570, 95 S. Ct. 1215, where a similar use of defendant’s statements was allowed and where the court emphasized that Miranda should not be an obstacle in the way of the search for truth. In Hass, the court said:

“* ” * the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances.” 420 U.S. 714, 722, 43 L. Ed. 2d 570, 577-78, 95 S. Ct. 1215,1221.

Finkey did not testify at his trial, so the statements could not have been admitted for impeachment purposes. However, the rationale of Harris and Hass still applies. There is no argument that the statements were involuntary. It is also apparent that the statements did not contribute to the jury’s determination that Finkey had performed the acts on which his convictions were based. The statements were only admitted in rebuttal and the jury was instructed that they were to consider the evidence only as it related to defendant’s state of mind at the time of the offense. Further, the other evidence — the admission of which defendant does not claim is improper — establishes beyond a reasonable doubt the actus reus portion of the crimes with which Finkey was charged.

The statements to Detective Collins were extremely relevant to defendant’s insanity defense. Finkey made representations to a psychiatrist, which statements formed — at least to some extent — the basis of the psychiatrist’s opinion that Finkey was not legally responsible for his actions of August 14,1979. Just as a defendant cannot be allowed to directly perjure himself and then hide behind the fifth amendment, he cannot be allowed to prima facie establish an insanity defense by his representations to a psychiatrist without affording the State an opportunity to challenge the veracity of those statements.

No reported decision of the courts of this State has addressed precisely this issue, but People v. Muskgrove (1976), 44 Ill. App. 3d 381, 358 N.E.2d 336, is closely analogous. Muskgrove, charged with attempt murder and armed violence, interposed an insanity defense. He did not testify in his own behalf, but attempted to establish a prima facie defense through the testimony of a police officer. On direct, the officer testified that Muskgrove’s behavior at the time of his arrest was “irrational” and that he was “rambling on.” On cross-examination, the prosecution brought out that the one thing the defendant did not ramble about at the time of his arrest was that he wanted to see his attorney, whom he identified by name. The court held that because the request for an attorney was relevant to the determination of the defendant’s sanity, it was not error to admit it, especially since the defendant had not objected at trial.

The Muskgrove court quoted from United States v. St. Pierre (2d Cir. 1942), 132 F.2d 837, 840, wherein Judge Learned Hand held that the fifth amendment “ ° * should not furnish one side with what may be false evidence and deprive the other of any means of detecting the imposition.’ ” (44 Ill. App. 3d 381, 389.) We agree. No error.

II

The defendant was sentenced to the maximum 30-year term of imprisonment on each count of attempt murder. Before sentencing, the trial court stated that the defendant’s intoxication was not sufficient to be a mitigating factor. The defendant now contends that the trial court erred by discounting intoxication as a mitigating factor and abused its discretion in sentencing him to the maximum term of imprisonment for attempt murder. Thus, the defendant asks that this cause be remanded for resentencing.

There is evidence in the record to show that the defendant was in control of his actions on August 14, 1979, despite his alleged intoxication and mental ailments. The defendant had a criminal history which included a conviction for assault with an intent to rape. During the morning of August 14,1979, the defendant committed, without any provocation, a series of violent acts. The record reveals that the trial judge did a commendable job of considering all the statutory factors applicable in minimizing or extending sentences. A court of review cannot substitute its judgment for that of the trial court merely because it would have balanced the appropriate factors differently if it had been assigned the task of sentencing. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) We therefore find that the trial judge did not abuse his discretion when sentencing the defendant.

Both the convictions and sentences are affirmed.

Affirmed.

GREEN, P. J., and TRAPP, J., concur.


author: JUSTICE TRAPP

text:
    GEOFFREY M. BELLMER, a Minor, by Amy Bellmer, his Mother and Next Friend, et al., Plaintiffs-Appellants, v. CHARTER SECURITY LIFE INSURANCE COMPANY et al., Defendants-Appellees.
    Fourth District
    No. 17325
    Opinion filed March 30, 1982.
    Drach, Terrell & Deffenbaugh, P. C., of Springfield, for appellants.

      Gillespie, Cadigan & Gillespie and Heyl, Royster, Voelker & Allen, both of Springfield (Gary M. Peplow and David L. Requa, of counsel), for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

This is an appeal by plaintiffs, Geoffrey Bellmer and Amy Bellmer, his mother, from an order of the circuit court of Sangamon County granting defendant Oscar McNear’s motion pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) to dismiss, with prejudice, count II of plaintiff’s complaint, and finding no just reason for delay of an appeal. See Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).

This action was commenced by plaintiffs against Charter Security Life Insurance Co. (count I) and Oscar McNear, Sr., agent of defendant Charter Security Life Insurance (count II), seeking recovery of damages for failing to notify plaintiff Amy Bellmer, the owner of a life insurance and annuity policy, of the default of her ex-husband (insured) in making premium payments under the policies and their subsequent lapse. The circuit court granted defendant Oscar McNear’s motion to dismiss count II for failing to state a cause of action, and it is from this order that plaintiffs appeal.

In determining whether count II states a cause of action, it is well settled that a motion to dismiss admits all well pleaded facts and inferences therefrom (Bray v. Illinois National Bank (1976), 37 Ill. App. 3d 286, 345 N.E.2d 503), and that the granting of such a motion can be sustained only if no set of facts would support a cause of action. (Browder v. Hanley Dawson Cadillac Co. (1978), 62 Ill. App. 3d 623, 379 N.E.2d 1206.) We conclude that the trial court acted properly in dismissing count II of plaintiffs’ complaint.

In count II of plaintiffs’ amended complaint, plaintiffs allege that Louisiana & Southern Life Insurance Co., the predecessor corporation of Charter Security Life Insurance Co., issued through its agent, Oscar McNear, Sr., a $100,000 life insurance policy and a $100,000 retirement annuity policy to James M. Bellmer on March 9,1976. The owner of both policies was listed as plaintiff Amy Bellmer. On March 9, 1977, plaintiff Amy Bellmer and James Bellmer obtained a decree of divorce in the circuit court of Sangamon County which provided that James Bellmer was to maintain a life insurance policy on his life for $100,000 with the parties’ minor child, Geoffrey Bellmer, named as beneficiary. It was further alleged that defendant McNear was aware of the divorce decree provision requiring James Bellmer to maintain a policy for the minor’s benefit and of the fact that plaintiff was no longer residing with her ex-husband.

On October 12, 1978, James Bellmer failed to pay the premiums on either policy and also later failed to make payment during the 45-day grace period provided in the policy. Plaintiffs alleged that defendant McNear was aware of the provisions of the divorce decree requiring the insured to change the beneficiary of the policy to the minor, Geoffrey Bellmer, and of the failure of the insured to pay the premiums during the 45-day grace period and that notwithstanding such awareness, McNear failed to provide the beneficiary forms or notify plaintiff Amy Bellmer of James Bellmer’s default.

On January 29, 1979, the Charter Security Life Insurance Co., returned a premium check to James Bellmer dated December 31, 1978, in the amount of $299.01 and advised him that payment was made beyond the grace period and could not be applied toward his life insurance policy. The letter further advised Mr. Bellmer of what amounts were owing and what steps were necessary to reinstate the insurance policy. (The annuity premium had been paid by virtue of an automatic loan provision in that policy.) Plaintiffs alleged that both Charter Security and McNear’s failure to advise plaintiff Amy Bellmer of the letter was a breach of the duty owed her and that both defendants had breached a duty owed her in failing to provide reinstatement forms, and to advise her of the right to exchange the annuity for other paid up life insurance policies. On July 14, 1979, James Bellmer was killed in an automobile accident and as a result of the breaches of the foregoing duties plaintiffs alleged they were damaged in the sum of $200,000.

The controlling question we must decide in passing upon plaintiffs’ complaint is whether defendant Oscar McNear, Sr., as agent of Charter Security Life Insurance Co., had a duty to advise Amy Bellmer of her ex-husband’s default in premium payments and the subsequent termination of the policy or otherwise advise her of her right to reinstate the insurance policy or exchange the annuity policy for other paid up life insurance policies. Plaintiffs, citing Talbot v. Country Life Insurance Co. (1973), 8 Ill. App. 3d 1062, 291 N.E.2d 830, and Omni Overseas Freighting Co. v. Cardell Insurance Agency (1979), 78 Ill. App. 3d 639, 397 N.E.2d 112, argue that the defendant had such a duty in the case at bar.

In Talbot, a suit was filed againt an insurance company and its agent for unreasonable delay in acting on a life insurance application submitted September 13, 1969, and rejected February 21, 1970, two days after the proposed insured’s death. There, the court held that both the insurance company and its agent could be held liable in tort for failing to act promptly on the application. In discussing the duties of the insurance agent, the court concluded that one who enters into an undertaking to perform a service for another is required to exercise reasonable care to avoid injury to the beneficiary of the undertaking. Though the court noted that the agent was primarily answerable to the demands of the insurance company, a duty of reasonable care would still be imposed when an undertaking was agreed to and acted upon by the agent on behalf of the proposed insured.

In Omni, the plaintiff, an international cargo company, hired the defendant insurance broker to procure insurance coverage for possible damage to cargo while in plaintiff’s possession. The broker obtained one policy which was subsequently discovered to be insufficient and was canceled. Later, another policy was issued which purportedly provided the requested coverage but this policy was also canceled by the insurer effective on its date of issuance. The insurance broker failed to notify plaintiff of the policy’s cancellation and no further efforts were undertaken to produce the desired coverage. As a result, a subsequent loss was not insured. In ruling on the merits of plaintiff’s complaint against the defendant broker, the court held that the broker’s failure to notify plaintiff of the cancellation of the insurance policy was a breach of the broker’s duty to exercise competence and skill in his dealings with the plaintiff.

The court stated:

“Raguso [the broker] breached his obligation to exercise competence and skill in his dealings with the plaintiff in failing to communicate the fact of the cancellation of the inland transit policy to the plaintiff while he knew or should have known that the plaintiff believed he had appropriate liability coverage.” 78 Ill. App. 3d 639, 643, 397 N.E.2d 112, 116.

Two other cases dealing with the liability of an insurance broker for failing to notify an insured of the cancellation of an insurance policy, though not arising in the courts of this State, are Foster v. Nunmaker Discount Co. (La. App. 1967), 201 So.2d 215, and Adkins & Ainley, Inc. v. Busada (D. C. App. 1970), 270 A.2d 135. In Foster, the plaintiff had obtained an insurance policy through its broker, Carver General, underwritten by Marquette Casualty, on an auto which was subsequently destroyed by fire. The policy had been canceled by Marquette prior to the loss, but the broker failed to relay this information to the plaintiff. Plaintiff sued the broker and recovered a judgment in his favor. On appeal the judgment was affirmed, the court stating:

“We must now decide just what duty the Carver Agency had toward the Plaintiff. To do this we must first determine the relationship between the parties. From the record it is obvious that the Carver Agency was an insurance ‘broker’ rather than an exclusive agent for Marquette Casualty Co.
We conclude that the Carver General Insurance Agency was an agent of the Plaintiff and owed him a duty to inform him that the contract of insurance had been cancelled failing in which it * * * is liable for the resulting damages.” 201 So.2d 215, 217.

In Adkins, the insured had been informed that a policy insuring certain real property had been canceled and contacted the defendant, an insurance broker, to reinstate the policies. The defendant agreed to do so but never contracted for the requested coverage. The defendant had contacted a separate insurance broker of plaintiff and informed him that the policy had terminated and was no longer in force and contended that this notice to the separate broker was effective notice to the principal of the separate broker, plaintiff. The court rejected this argument, however, and held the defendant liable for failing to reinstate the policies, since the other broker was justified in believing that the underwriter of the policy would inform the plaintiff directly of the policy’s termination. The court there stated:

“It is true that * ° * [with respect to the separate broker, he] has a duty to inform the insured of cancellation, however, he is legally relieved of that duty if it can be shown that the insured knew or should have known of the cancellation from other sources.” 270 . A.2d 135, 137.

As the above cases indicate, a duty is imposed upon an insurance broker to exercise reasonable skill and ordinary diligence as may fairly be expected from a person in his profession or situation in doing what is necessary to procure a policy and ensuring that it covers the property to be insured. This duty, however, is imposed by all authorities except Talbot upon the insurance broker, rather than upon the agent acting solely in behalf of the insurer. In Omni, as well as Foster and Adkins, in which liability was imposed on the insurance broker, all involved the rights and duties between an insured and his insurance agent. Absent an agency relationship between the insured and the insurance agent, no duty is imposed upon the insurer’s agent to notify plaintiff of facts detrimental to the insured for the breach of which negligence liability will lie. Supportive of this position is Gieseke v. Hardware Dealers Mutual Fire Insurance Co. (1963), 46 Ill. App. 2d 131, 195 N.E.2d 32.

In Gieseke, plaintiff, administrator of decedent’s estate, brought an action against both an insurer and its agent for the agent’s failure to include in an automobile policy an accidéntal death benefit provision. The evidence adduced by plaintiff supported his claim that the agent had been directed to include such a provision in the auto policy, but on appeal from a judgment in plaintiff’s favor the court reversed the judgment against the agent, holding that the agent did not bind himself personally and was not liable in his capacity as the insurer’s agent. The court stated:

“Counsel for appellee cite several cases dealing with the liability of an insurance broker for failure to obtain an insurance policy. These cases are not persuasive here since plaintiff pleaded and proved that [the agent] was the agent of Hardware Dealers Mutual Fire Insurance Company and he had no other role or relationship in the issuance of an insurance policy. In the complaint, Mr. Wallensack is not mentioned, except as the agent of Hardware Dealers Mutual Insurance Company.” 46 Ill. App. 2d 131, 140-41, 195 N.E.2d 32, 37.

This distinction for purposes of tort liability arises from the different relationships the parties have toward another and the consequent rights and duties flowing therefrom. Whereas the insured’s agent or broker has a duty of care, competence, and skill in performing all aspects of the insurance transaction, no such duty is imposed upon the insurer’s agent regarding its duties toward a customer of the insurer. Under section 490 of the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 1065.37) an insurance agent is defined as:

“ ‘Insurance Agent’ means an individual, firm, partnership, association or corporation appointed by an insurer to solicit, negotiate or bind coverages for or on applications or policies of insurance on its behalf, covering property or risks located in this State.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 73, par. 1065.37(a).

In Browder v. Hanley Dawson Cadillac Co. (1978), 62 Ill. App. 3d 623, 379 N.E.2d 1206, several plaintiffs brought suit against two automobile retailers for failing to disclose to plaintiffs the fact that cheaper credit life and disability insurance was available upon the finance of a used car than was purchased by them. On appeal from the trial court’s order dismissing this count of plaintiff’s complaint, the appellate court reversed, holding that the issue of whether the car dealers were agents of the insurer or the insured presented a question of fact not to be determined at the pleading stage. The court stated:

“Should the facts prove [the auto dealers] to be agents of the insureds, they would be governed by the principles of agency law [citation] in which the relationship between principal and agent is fiduciary in character. [Citation.] In all transactions affecting the subject of the agency the law dictates that an agent must act in utmost good faith and must make known to his principal all material facts within his knowledge which may in any way affect the transaction and the subject matter of his agency. [Citation.]” 62 Ill. App. 3d 623, 630, 379 N.E.2d 1206, 1211.

Plaintiff’s complaint alleges that Oscar McNear, Sr., was the agent of the defendant insurance company, and nowhere was there an allegation that McNear agreed to act on behalf of the plaintiffs as their agent in the insurance transactions. Thus, the duty which plaintiffs allege was owed by the defendant McNear is neither supported by case law, nor are such duties found in the parties’ contract of insurance contained in the record before us. Accordingly, we conclude that defendant Oscar McNear, Sr., had no duty to plaintiffs to inform them of James Bellmer’s default, the termination of the policy, their options under the annuity policy, or to take any other actions with respect to plaintiffs’ rights and duties under either policy.

Plaintiffs also argue, however, that when an agent takes an affirmative role in violating a duty owed by a disclosed principal, such agent may also be held personally liable, relying on Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 394 N.E.2d 1273, and Landau v. Landau (1951), 409 Ill. 556, 101 N.E.2d 103. Specifically, the plaintiffs alleged that the insurance company had á duty to remit to the plaintiffs the forms necessary to effectuate a change of beneficiary, to notify plaintiff Amy Bellmer of the nonpayment of premiums by James Bellmer and of her ability to reinstate the policies, and to notify plaintiff of her rights under the annuity policy.

Apart from the scope of the insurance company’s duties to plaintiffs, which are not issues before us respecting count II, we conclude that McNear took no active part in violating the alleged duties owed by the insurance companies. Nowhere in plaintiffs’ complaint is allegation made that McNear was aware of a breach of duty by defendant Charter Security Life Insurance Co., and no allegation is made of an act McNear took in violating the principal’s duties. Even if the rule regarding the agent’s liability for active violations of a principal’s duties would extend to failing to act, we do not believe liability could be imposed when the agent is not only unaware of the principal’s breach but also takes no action respecting any alleged duty.

Finally, plaintiffs argue that the allegations of the complaint stated a cause of action against defendant Oscar McNear for intentional or reckless infliction of extreme emotional distress. Plaintiffs argue that defendant’s failure to provide plaintiffs with change of beneficiary forms and to notify Amy Bellmer of James Bellmer’s nonpayment of the life insurance premiums when due and during the 45-day grace period caused plaintiff Amy Bellmer extreme and severe emotional distress in her concern for providing the necessary financial support for the minor child, Geoffrey Bellmer.

The tort of intentional infliction of extreme emotional distress was recognized by the Illinois Supreme Court in Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157. In Knierim, the court held the plaintiff’s complaint, alleging that defendant had told plaintiff he would kill plaintiff’s husband and subsequently carried the threat out, resulting in great emotional anguish to plaintiff, stated a cause of action for intentional infliction of extreme emotional distress. The elements of the tort which have been substantially adopted from the Restatement (Second) of Torts, §46 (1965) are: (a) extreme and outrageous conduct; (b) intentionally or recklessly done; and (c) with resulting severe emotional distress. See Public Finance Corporation v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765; Restatement (Second) of Torts §46 (1965); McCaskill v. Barr (1980), 92 Ill. App. 3d 157, 414 N.E.2d 1327.

In the case at bar, however, no conduct of the defendant is alleged to support the tort. While failing to act may form the basis for liability for intentional or reckless infliction of emotional distress (see Eckenrode v. Life of America Insurance Co. (7th Cir. 1972), 470 F.2d 1; Frishett v. State Farm Mutual Automobile Insurance Co. (1966), 3 Mich. App. 688, 143 N.W.2d 612), we reject plaintiffs’ argument that the agent’s failure to act was outrageous. As we have previously indicated, the agent’s conduct was proper and did not give rise to a cause of action in common law tort liability for negligence. Holding such, it would be entirely inconsistent and unwarranted to say that conduct could be outrageous. We reject plaintiffs’ argument that the complaint was sufficient to state a cause of action for intentional or reckless infliction of emotional distress.

Accordingly, the order of the trial court dismissing count II of plaintiffs’ complaint for failure to state a cause of action is affirmed.

Affirmed.

GREEN, P. J., and MILLS, J., concur.


author: JUSTICE LONDRIGAN

text:
    QUINSIPPI CORPORATION, Plaintiff-Appellee, v. LEONARD O. BENING, Defendant-Appellant.
    Fourth District
    No. 17283
    Opinion filed March 31, 1982.

      Noel Stallings, of Robert P. Schulhof & Associates, of Carbondale, for appellant.
    Steven E. Siebers, of Loos & Schnack, of Quincy, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Bening, the debtor, appeals the trial court’s order awarding Quinsippi, the creditor, $4,500 in attorney fees for confessing a judgment. The parties executed a security agreement March 13,1980, for $73,250 plus 15% interest annually; the collateral comprised shares of stock in a nursing home and an interest in a land trust. Bening was to pay the principal and interest in two installments, the first due March 13, 1981, and the second due one year later. In the event Bening missed a payment the agreement permitted Quinsippi to confess judgment for the amount still owed, with Bening to pay reasonable attorney fees for the confession.

Bening failed to pay the first installment March 13, 1981; Quinsippi confessed judgment March 17, 1981. Besides the principal and interest Quinsippi sought $4,519.40 in attorney fees. Bening’s motion to open the judgment for a recalculation of fees was granted, and after hearing testimony the trial court awarded fees and credited Bening with a payment made shortly after the confession.

-At the hearing Quinsippi’s lawyers,' Delbert Loos and Steven E. Siebers, of the Quincy law firm Loos & Schnack, testified regarding the time that they had spent on this case from March 1981 until the date of the hearing, June 22, 1981. A third lawyer, John Deege, also from Quincy, recommended an award of $4,500 in fees.

Quinsippi argues that the award of fees should include compensation for executing on the judgment. The parties’ agreement refers to fees three times; the agreement permits Quinsippi to recover fees and costs incurred (1) in taking, holding, and selling the collateral, (2) in suing on the obligation, and (3) in confessing judgment.

Fees may not be based on fee schedules. (Goldfarb v. Virginia State Bar (1975), 421 U.S. 773, 44 L. Ed. 2d 572, 95 S. Ct. 2004.) The amount of time spent by a lawyer on a case, his ability, and the complexity of the work form the foundation for any award of fees. (Larkin Bank v. Ishak (1976), 43 Ill. App. 3d 918, 357 N.E.2d 840.) A party suing for fees must specify the amount of time expended and describe the work performed, and this rule applies regardless of whether the fee is sought from a (former) client (Serritella v. Plotkin (1980), 89 Ill. App. 3d 739, 412 N.E.2d 7) or from an opponent in the original or underlying cause of action (Board of Managers v. Bucalo (1979), 69 Ill. App. 3d 287, 387 N.E.2d 53).

Bening argues that fees in this case should be awarded only for the work performed by Quinsippi’s attorneys in confessing the judgment. As far as the record discloses this is all Quinsippi has done so far. Furthermore, Quinsippi’s witnesses presented no evidence concerning what steps it would need to take to collect the judgment and how much time that would take beyond saying that their experience with Bening suggests that the debt may be difficult to collect. The fees sought here are attributable almost entirely to the confession of judgment. After the confession and before the hearing on fees some time was spent vetting Bening’s collateral, but no decision had been made regarding what Quinsippi would do next.

Quinsippi therefore may recover fees only for the work performed by its lawyers during the period after March 13, 1981, when Bening’s first payment was due, and through the confession of judgment March 17, 1981. During that period Loos spent 61/4 hours on this case and Siebers 6 hours; Bening concedes the accuracy of the time records. Bening does not dispute that Loos’ hourly rate is $75 and Siebers’ is $60. We conclude that these figures are fair and reasonable; Quinsippi is therefore entitled to a fee of $828.75, and the decision of the trial court is reversed and the cause remanded to enter a judgment for $828.75.

Reversed and remanded.

WEBBER and TRAPP, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD EUGENE GROTH, JR., Defendant-Appellant.
    Fourth District
    No. 17144
    Opinion filed April 8, 1982.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edmond H. Rees, State’s Attorney, of Carlinville (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On March 13, 1981, following a jury trial in the circuit court of Macoupin County, defendant, Donald Groth, was convicted of murder and robbery. He was subsequently sentenced to 40 years’ imprisonment for murder and 7 years’ imprisonment for robbery, the sentences to run concurrently. On appeal, defendant maintains the trial court erred in (1) allowing testimony from a crime scene technician that only one person was in the room with the decedent at the time of his death; and (2) allowing a coroner to testify to the time of death based solely on the degree of rigor mortis in the corpse.

Because of the strength of the evidence, we find no reversible error to have resulted from the admission of the questioned testimony. As no alibi testimony was offered, the exact time of the victim’s death was not of significance. Accordingly, we need not pass upon the propriety of the testimony of the coroner. Similarly, although we deem the admission of the opinion testimony of the crime scene technician to have been error, the testimony was of such minor significance as to make the error harmless.

The parties stipulated to the fact that the victim was a homosexual. His body was found on a bed in his parents’ home in Virden, approximately 30 miles south of Springfield. The victim’s parents found his body the evening of May 18,1975, at about 5:30 p.m., clad only in undershorts. A police officer testified that, at the time of his arrest, defendant claimed he did not know decedent and had never even been in Virden. Yet, testimony was presented at trial of eyewitnesses who claimed to have seen defendant and decedent together, in a tavern in Springfield, between 11 and 11:30 p.m. on the evening of May 17, 1975. In addition, a former employer of decedent identified defendant as a person he had seen accompanying decedent while the latter was purchasing beer at a grocery store on the same evening. Further, a fingerprint expert testified that fingerprints, found in the home where decedent’s body was discovered and in decedent’s car located the morning of May 18,1975, in a parking lot in Springfield, were defendant’s fingerprints. Finally, a friend of defendant testified that in the months after the decedent’s death she saw defendant with a gun which she described as being similar to one depicted in a photograph shown to her. This photograph had, in turn, been identified by the victim’s father as being of the same caliber and otherwise similar to a gun found to be missing at the time decedent’s body was found.

The most damaging testimony came from defendant’s ex-wife, D’Ann Marsh. She testified that on the night before the decedent’s body was found, defendant came to her apartment carrying a beer stein, two guns and other items. The beer stein had some change in it. Ms. Marsh described the beer stein as similar to that depicted in a photograph shown to her. The photograph had been identified as that of a stein which decedent’s mother testified had been missing from their home at the time the body was found. The decedent’s parents had also testified that the beer stein was full of change prior to its being taken. Ms. Marsh further stated that defendant smoked Kool cigarettes. Evidence was introduced that a package of Kool cigarettes was found in the living room of decedent’s parents’ home at the time the body was found.

Ms. Marsh also testified to a conversation she had with defendant a few months after decedent’s death. They were discussing whether they should resume their relationship. She testified she then told defendant she could not live with a person who had killed somebody else. She said he responded that he would “not kill anybody else” and “what happened in Virden would not happen again.” Finally, Ms. Marsh testified that later, during an argument, defendant stated, “he would kill me just like he killed the guy in Virden.”

Although Ms. Marsh was impeached by evidence that at the time of trial she was in dispute with defendant over custody of their children, her testimony was not otherwise refuted.

In considering the propriety of the purported expert testimony in regard to the number of people present at the time of decedent’s death, we need not decide whether the subject was a proper one for testimony of an expert. There was no showing the so-called crime scene technician had any expertise on the subject.

The party offering the expert has the burden of establishing the expert’s scientific, technical, or other special knowledge. (E. Cleary and M. Graham, Handbook of Illinois Evidence §702.2, at 359 (3d ed. 1979).) “That the defendant had an opportunity to cross-examine [the expert] as to his qualifications therefore did not eliminate or in any way reduce the State’s burden of establishing those qualifications.” People v. Park (1978), 72 Ill. 2d 203, 209, 380 N.E.2d 795, 798.

In the instant case, the only foundation laid for the crime scene technician’s expertise was that he had been a crime scene technician for nine years and that he had spent five hours examining the scene when the deceased’s body was found. He did not testify as to his training, background, the number of crime scenes he had examined, or the procedures he used to make the determination as to the number of people present at the time of the murder. In addition, no evidence was offered to show what field of expertise would be required to make such a determination.

We agree with defendant that the admission of the opinion evidence was error. Nevertheless, we find the admission of the testimony to have been harmless since his testimony would have virtually no effect on the outcome of the trial. Even if there were in fact only two persons present at the time of the murder, that alone would not necessarily imply the defendant was present. Nor would the fact that more than two persons were present necessarily exclude defendant or make his responsibility for the murder substantially less likely.

For the reasons stated, we affirm.

Affirmed.

MILLS and LONDRIGAN, JJ., concur.