author: PER CURIAM:

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARMIN E. STAHLMAN, Defendant-Appellant.
    Fifth District
    No. 80-300
    Opinion filed January 8, 1982.
    John H. Reid, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William A. Schuwerk, Jr., State’s Attorney, of Chester (Martin N. Ashley and Nicholas B. Svalina, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PER CURIAM:

The defendant, Armin E. Stahlman, was convicted

of unlawful possession of a controlled substance and unlawful possession of more than 30 grams but less than 500 grams of a substance containing cannabis. Defendant, age 30, was sentenced to probation, which subsequently was revoked. After a sentencing hearing on May 29, 1980, defendant was sentenced to four years’ imprisonment on the unlawful possession of a controlled substance conviction and three years’ imprisonment on the unlawful possession of cannabis conviction, such sentences to run concurrently. On appeal, defendant contends (1) that he is entitled to a new sentencing hearing because the court failed to order an updated presentence report and (2) that the court abused its discretion in sen-fencing defendant by considering that defendant had been dealing in drugs, when the record allegedly contains no evidence of “dealing.”

Before defendant was sentenced to probation on March 2, 1979, a presentence report was prepared and filed in the record. The presentence investigation revealed that defendant had been convicted of two counts of burglary and one count of attempt burglary in 1970 and sentenced to probation. It further established that in 1973 defendant had been convicted of illegal possession of cannabis, possession of a hypodermic syringe and disorderly conduct and that in 1976 he had been convicted of unlawful possession of a prescription form. In 1974, he had a charge disposed of under section 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56M, par. 1410). The presentence report further indicated that defendant has been employed by the Zeigler Coal Company since July 19, 1974, and that he has never been married and has no dependents. Defendant has a high school education and has attended college. At the first sentencing hearing, the testimony established that defendant’s father has been paralyzed from the waist down since May 23, 1975, and has relied a great deal on defendant to take him places.

Defendant’s probation was revoked, on the basis of his having committed forgery and his unlawful possession of a prescription form, after defendant admitted the allegations of the petition to revoke probation. The State’s Attorney then stated that it was his understanding that defendant would waive a presentence report and on the foregoing basis, the State would also waive a presentence report. Defense counsel stated that he had advised defendant that he had a right to an updated presentence report but that defendant preferred to tell the court where he had been during the year in which he had been on probation and be sentenced that day rather than wait for an updated presentence report. The court personally addressed the defendant and advised him of his right to another presentence report, and defendant stated that he waived the presentence report. The court stated that it was fairly familiar with defendant due to his court appearances and would concur in the waiver of a new presentence report.

Defendant then testified that he is presently living with his girlfriend and three of her children and that he and his girlfriend planned to get married during miner’s vacation. Defendant is a general laborer for the Zeigler Coal Company and had worked steadily for the last six months after a long layoff. Defendant then stated his prior criminal record. Defendant had not been arrested or otherwise in trouble, except for the charges which led to revocation of probation, since being sentenced to probation. The parties then stated that they had no objection to the court considering the presentence report already on file, and both parties made sentencing recommendations.

Defendant relies on People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 417, in which defendants were convicted at a bench trial. After the court denied their motions for a new trial, both the State and defendants waived the presentence report and requested an immediate sentencing hearing. The trial court held that section 5—3—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—3—1) was unconstitutional as an invasion of the sentencing powers of the court. Section 5—3—1 provides:

“Presentence Investigation. A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.
However, the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant’s history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.”

Our supreme court ruled that section 5—3—1 is constitutional and that a defendant cannot waive a presentence investigation unless both parties agree to a specific sentence. Thus, Youngbey indicates that a presentence report must be provided in the record absent a stipulation to sentence by the parties and a finding of prior criminal activity. In the case at bar, a presentence report was, in fact, made after defendant was found guilty; however, the issue in the instant case remains whether such presentence report is sufficient to comply with the statute when the parties waive an update as defendant did in the case at bar.

The question was answered by People v. Higgins (1980), 92 Ill. App. 3d 27, 416 N.E.2d 9. In Higgins, defendant was convicted of voluntary manslaughter in a bench trial. Following the submission of a presentence report, she was sentenced to probation and given a three-year sentence. Although Higgins waived the preparation of an updated presentence investigation, on appeal she maintained that she was entitled to a new sentencing hearing because a proper or updated presentence report had not been prepared. The appellate court ruled that the requirement of a presentence report did not apply to sentencing for a felony where probation was revoked.

We conclude, therefore, that a defendant can waive errors in a deficient presentence report. (People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.) Moreover, the absence of an updated presentence report is a form of deficiency. The presentence report on file in the case at bar is deficient in that it does not reflect defendant’s history since the time of admission to probation. However, defendant’s testimony supplied the missing information. When a person is sentenced after revocation of probation, the sentence must be imposed on the basis of the offense for which he was placed on probation and not for his.conduct while on probation, although the court may reassess his potential for rehabilitation based on conduct while on probation. (People v. Shockley (1977), 54 Ill. App. 3d 1041, 370 N.E.2d 551.) Consequently, the most relevant information is the history and character of the defendant at the time of the offense for which he was placed on probation. Further, in the instant case, at the time of sentencing, the court also had before it evidence of the conduct of defendant which led to probation revocation. Section 5—6—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—6—4(h)) provides, in part, that resentencing after probation shall be under article 4 (Ill. Rev. Stat. 1979, ch. 38, par. 1005—4—1 et seq.). Article 3 (Ill. Rev. Stat. 1979, ch. 38, par. 1005—3—1 et seq.) is not mentioned under the provisions for resentencing after violation of probation. Therefore, had the legislature wished to require an updated or second presentence report after violation of probation, it could have so provided by including in section 5—6—4(h) article 3 as well as article 4 of the Unified Code of Corrections. (People v. Higgins.) For the foregoing reasons, we find that no error was committed on the facts of this case in allowing defendant and the State to waive a presentence investigation.

This court is aware of People v. Demma (1980), 92 Ill. App. 3d 303, 415 N.E.2d 1244, in which the court vacated the sentence after revocation of probation and remanded the case for a new sentencing hearing because the updated presentence report was not prepared. Demma, however, is factually distinguishable from the case at bar. Demma was resentenced approximately four years after the preparation of the presentence report while in the case at bar only 14 months elapsed between initial sentencing and preparation of a presentence report and resentencing. Demma had been convicted of other crimes in the interim and the State and defendant disputed his attempts to complete a drug rehabilitation program, which was a condition of probation. In the case at bar, the record does not indicate any need for an updated presentence report as the defendant testified to his activities and the State did not attempt to contradict that testimony. By this order we do not rule that in every case where only 14 months elapses between a presentence report and revocation of probation, an updated presentence report is not necessary. We do rule that on the facts of this case an updated presentence report could be waived by the parties.

In sentencing defendant, the following occurred:

“By the Court: Mr. Stahlman do you have anything you wish to say?
Defendant Stahlman: The only thing that I can say in my own behalf is that if I was given the maximum sentence like the State suggests, this might sound rather corny or whatever you want to say, it’s not so much for me but my girlfriend and her children I would like to receive a minimum sentence so I will get back out because we plan to get married. Even if I am sentenced to prison we plan to get married and I like to get out as soon as possible so I can get out and work and support her and her children.
By the Court: Armin, the wheels of justice grind slowly and I think in this case they have. I note that in 1979 when I granted you probation, at that time it was done with a great deal of reluctance. In view of the prior record that you have accomplished and we heard a great deal of testimony at that time from your family and there was a statement made that you were helping your invalid father and to some extent and all of these various reasons were stated and I know that the Court finally, although the Court was at that time dispositioned to give you a sentence in the penitentiary, went along with the argument that was made and decided to give you one more chance and to one more time see if you would live up to the faith and trust that people were placing in you. And if you would finally turn over a new leaf and try to make your life go in a new direction, but apparently you haven’t. Looking at your record, the first time you were convicted in this court was approximately ten years ago and you were younger at that time and I think that’s the only time you maybe, maybe somebody could have made the argument, well, it was a young teenager who hadn’t grown up, gone off in the wrong direction and you were given a break. You are no teenager any more. You are a man twenty-eight years of age. You had many years here and a long, long time to think about what you are doing and knowing what you are facing. It isn’t a case of somebody misleading a youngster or something like that. I have to go along with what the State has said about giving you breaks. I think you have been given about as many breaks by the Court as I know of anybody that’s ever been in this court over the years. Even on some of these misdemeanors where you could have been sentenced for up to a year, nobody saw fit to do it on those charges even in spite of the fact that you had a felony record at that time. I think the long record here is sufficient without any doubt to deny any further probation and that’s what I am doing because I don’t believe any further probation in this case is warranted, because as I stated, even with a great deal of reluctance I gave you another chance about a year ago. Based on all this record and based on your prior delinquency record and this prior, not delinquency, but your prior criminal record that you have accomplished here and just your prior felony record alone; you now have been convicted on three felonies in this court. I agree with one thing that you have said that apparently you haven’t caused any great harm in a violent way to anybody. I don’t know that you are not harming people too being in the drug scene as you have been all these years. You have never gotten out of it apparently. You just stayed in, stayed in very quitely [sic] until you get caught and you go right back to it again. You say you never harmed anyone; maybe you haven’t in a violate [sic] physical way, but how do we know what kind of harm you might be doing out there dealing in drugs over the years as you have been doing. I will give you the benefit of the doubt you have not harmed anybody violently.
Defendant Stahlman: Your Honor, the only thing I could say in response to that is there is no way to prove, polygraph test, is the only thing I could say.
By the Court: You probably done more harm to yourself than anybody else.
Defendant Stahlman: Yes, I never been involved.
By the Court: You deteoriorated [sic] over the years.
Defendant Stahlman: I never been involved in dealing with drugs whatsoever.
By the Court: Whatever it is you are doing with drugs, you keep getting caught with drugs or something connected with the drug scene and based on your record to give any kind of deterrance to anyone else, I do think you deserve time in the penitentiary and I don’t think it should be a minimum, in view of the fact you have been given all those breaks in the past and been warned time and time again what was going to happen to you if you didn’t straighten out. You are not a teenager any more. You are a man of twenty-eight. You had plenty opportunity to think about this in a serious way. At this time I am going to sentence you to the Illinois State Penitentiary, Department of Corrections of the State of Illinois on the charge of unlawful possession of a controlled substance for a term of four years. On the charge of unlawful possession of cannabis, I am going to sentence you to the Illinois Department of Corrections, State Penitentiary, State of Illinois, for a period of three years. These sentences are to be served concurrently.”

Defendant contends that the court improperly concluded that he had been “dealing” in drugs. No evidence was presented that defendant had been selling controlled substances to others, nor did any of the offenses included in defendant’s history of criminality have as an element intent to deliver. A trial court is presumed to disregard incompetent evidence (People v. Thornton (1979), 70 Ill. App. 3d 532, 388 N.E.2d 923); and, although the trial court referred to defendant’s “dealing” in drugs, we find that the court did not base defendant’s sentence on a finding that defendant had been engaged in the sale of controlled substances. To the contrary, the court alluded to the fact that if any harm had come from defendant’s “dealing,” it was to defendant himself.

We conclude that the court did not abuse its discretion in imposing sentence on defendant; therefore, the sentence of the trial court is affirmed. Cf. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

We have taken the case under advisement without oral argument pursuant to Supreme Court Rule 352(a) (73 Ill. 2d R. 352(a)).

Affirmed.

HARRISON and WELCH, JJ., took no part in the consideration or decision of this case.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    JAMES E. SCHREMPF, Special Adm’r of the Estate of Victor G. Null, Deceased, for the benefit of Tanya Kay Null et al., Minors, Plaintiff-Appellee, v. NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY et al., Defendants-Appellants.
    Fifth District
    No. 81-178
    Opinion filed January 5, 1982.
    Rehearing denied February 24, 1982.

      Robert F. Quinn, of Wood River, and P. Terence Crebs and J. Reed Johnston, Jr., both of Peper, Martin, Jensen, Maichel & Hetlage, of St. Louis, Missouri, for appellant New England Mutual Life Insurance Company.
    Harold A. Donovan, of Donovan, Hatch and Constance, of Belleville, for appellant William S. Comfort.
    James T. Williamson, of Williamson, Webster and Blaine, Ltd., of Alton, and Don B. Sommers and Prudence W. Kramer, both of Don B. Sommers, Inc., of St. Louis, Missouri, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Shirley Ann Null, widow of Victor G. Null, brought this wrongful death action in 1980 in the Circuit Court of Madison County, on behalf of the two Null children, against New England Mutual Life Insurance Co. and its agent William S. Comfort. Subsequently, James E. Schrempf, special administrator of the estate of Victor G. Null, deceased, was substituted for Shirley Ann Null as plaintiff in these proceedings. The complaint alleged that the defendants negligently allowed Ronald and James Calvert to maintain large amounts of insurance on Victor Null’s life, thereby contributing to a plan in which the Calverts had Victor Null murdered in the hope of receiving the insurance proceeds. Much litigation has occurred as the aftermath of this scheme, leading to several published opinions by the Federal courts in Missouri. We have adapted and expanded the account of relevant transactions as described in New England Mutual Life Insurance Co. v. Calvert (E.D. Mo. 1978), 459 F. Supp. 979, and United States v. Calvert (8th Cir. 1975), 523 F.2d 895.

Prior to July 19, 1972, Victor Null sought financial backing for the development of an invention, a rotary engine. Ronald and James Calvert agreed to provide the financial backing. Victor Null and the Calverts agreed to procure life insurance upon the life of Victor Null to protect the investment of the Calverts. Null and the Calverts made application to New England Mutual Life for $500,000 insurance; William S. Comfort and Harold L. Whitney were the agents of New England with whom Null and the Calverts dealt.

Frank W. French, Jr., assistant vice-president for New England, advised Whitney, by telegram-teletype, that New England would only issue $150,000 “corporate insurance” but would be willing to issue $100,000 personal insurance upon receipt of a new application by Null. William Comfort advised Null and Ronald Calvert of this decision, and further advised them that were Null to purchase a personal life insurance policy, he would be the owner of the same and would therefore have the right to assign the policy to the Calverts. Null agreed to purchase $100,000, with accidental death benefits. His estate was named as beneficiary thereof; however, Null contracted for this insurance solely for the reason that he wanted to assign the same to the Calverts, thus providing the security that the Calverts desired before they would invest in Null’s invention.

On July 21, 1972, Null made application for the personal life insurance policy. On July 24, 1972, Null, accompanied by Ronald Calvert, went to the offices of the Whitney agency. Calvert delivered a check signed by his father, James Calvert, in the sum of $5,616. This sum represented the premium due on the $150,000 business insurance policy and the premium for the $100,000 personal life insurance policy. On this same date, Null executed an “Absolute Assignment and Change of Beneficiary Request,” making the Calverts the owners and beneficiaries of the $100,000 personal insurance policy. New England’s home office did not receive the assignment and change of beneficiary form until September 5, 1972.

In August of 1972, Ronald Calvert contacted Bowes and Company, an insurance broker, and asked if it would consider writing a $2,000,000 accident policy on the inventor, with a partnership, which included the Calverts, Null and several others, to be named as beneficiary. Calvert filled out the appropriate applications, and, after some communications with Lloyd’s of London, Bowes and Company received a telex from London on September 13 indicating “bound coverage.”

On November 9, 1972, Null’s body was found in his East St. Louis workshop. He had been shot four times in the head with a .22-caliber firearm. There were no signs of forced entry, and nothing was reported missing, although the office had the appearance of being ransacked. The murderer has never been found.

Ronald Calvert was charged with and convicted of 12 counts of mail fraud in connection with the insurance applications. He was sentenced to 45 years’ imprisonment. (United States v. Calvert (8th Cir. 1975), 523 F.2d 895). As the court noted in New England Mutual Life Insurance Co. v. Calvert (E.D. Mo. 1978), 459 F. Supp. 979, 980, “the Calverts were not interested in procuring the insurance to protect their investment, but instead procured the same as part of their scheme to obtain the proceeds thereof through the murder of Victor Null.”

New England and Lloyd’s filed separate complaints for declaratory judgment, seeking to declare the respective insurance policies void. In the New England action, brought in the Federal District Court for the Eastern District of Missouri, Shirley Null counterclaimed to recover the proceeds from the personal insurance on Victor Null. Relying on the evidence in Ronald Calvert’s conviction, the district court granted summary judgment for New England on its complaint and on the counterclaim. (New England Mutual Life Insurance Co. v. Calvert (E.D. Mo. 1976), 410 F. Supp. 937.) Holding that summary judgment was inappropriate, the Eighth Circuit Court of Appeals reversed that order and remanded the case for a full trial. (New England Mutual Life Insurance Co. v. Null (8th Cir. 1977), 554 F.2d 896.) Following trial, the district court again entered judgment in favor of New England on its complaint and on the counterclaim. (New England Mutual Life Insurance Co. v. Calvert (E.D. Mo. 1978), 459 F. Supp. 979.) The Eighth Circuit affirmed. New England Mutual Life Insurance Co. v. Null (8th Cir. 1979), 605 F.2d 421.

The Lloyd’s litigation was terminated much sooner than the New England case. On July 8,1975, the following release was executed in favor of Lloyd’s:

““ * ° in consideration of the payment of the sum of One Hundred Thousand Dollars ($100,000) by said Releasee, and other good and valuable consideration, receipt whereof is hereby acknowledged, I, Shirley Ann Null, individually, as Administratrix of the Estate of Victor N. Null, Deceased, and as Guardian of the Estates of the two minor children Tanya Null and Tamara Null, do hereby remise, release and forever discharge, and by these presents do for my heirs, executors, administrators and assignors remise, release and forever discharge Releasees of and from any and all manner of action or actions, cause or causes of action, controversies, damages, claims and demands whatsoever, in law or in equity, which I now have against the said Releasees or any of them, or which I ever had or which I may have, or which my heirs, executors, administrators or assignees can, shall or may have upon or by reason of any matter, cause or thing whatever, from the beginning of the world to the date of these presents, and in particular, but without limiting the generality of the foregoing, of and from any action, cause of action, controversy, damages, claims or demands based upon or in any manner arising out of or in connection with or as a result of the acceptance by the Releasees of the insurance on the life of Victor G. Null, evidenced by the Certificate of Insurance No. 33393 and the said Companies’ Cover Note EC-721288, it being understood and agreed that the acceptance of said sum is in full accord and satisfaction of a disputed claim and that the payment of said sum is not an admission of liability.
I acknowledge that I am represented by my own counsel and that in executing this Release I have relied on his advice, and I intend to be legally bound by its terms.”

The release contained no reservation of rights against New England.

After the present Madison County wrongful death action was instituted, New England filed a motion to dismiss the complaint on several grounds. Defendant Comfort joined in this motion. The trial court denied the motion to dismiss, but certified two issues for interlocutory appeal by permission pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308). The questions before this court are:

(1) whether the complaint is barred under Rule 13(a) of the Federal Rules of Civil Procedure because of the plaintiff’s failure to assert it in the proceedings in the Missouri Federal courts, and,
(2) whether the complaint is barred by the release given to Lloyd’s.

We need discuss only the second issue.

In support of its contention that the release executed in favor of Lloyd’s benefits them as well, New England and Comfort point to the rule that the release of one joint or concurrent tortfeasor acts to release all tortfeasors. The plaintiff responds that there is no showing that New England, Comfort and Lloyd’s were joint or concurrent tortfeasors and that the release given to Lloyd’s only covered contractual claims, not tort claims.

Illinois has long adhered to the theory that a release given to one of several joint or independent concurrent tortfeasors acts to bar suit against the other tortfeasors. (Manthei v. Heimerdinger (1947), 332 Ill. App. 335, 75 N.E.2d 132; Anderson v. Martzke (1970), 131 Ill. App. 2d 61, 266 N.E.2d 137.) This theory, it should be noted, applies to those concurrently liable for a single indivisible injury as well as to those who are technically joint tortfeasors. (Alberstett v. Country Mutual Insurance Co. (1979), 79 Ill. App. 3d 407, 398 N.E.2d 611.) The critical question is then whether the injury is single and indivisible, and not whether the tortfeasors acted in concert, which it is apparent Lloyd’s, New England and Comfort did not do.

Accepting as true plaintiff’s allegations against New England and Comfort, the misconduct of which they were guilty lay in allowing the Calverts to obtain $150,000 of business insurance and $100,000 of double indemnity personal insurance on Null’s life. This misconduct, it is alleged, aided the machinations of the Calverts and contributed to Null’s death.

But, if this is so, then Lloyd’s must have also been negligent in issuing a much greater amount of insurance to the Calverts after the New England policies had been issued. If the reasoning of the complaint is continued, then the negligence of New England, Comfort and Lloyd’s converged at the point at which the insurance provided enough of an incentive to the Calverts to have Null murdered, and the ultimate result of that negligence was indeed the death of Victor Null. Any injury for which the plaintiff could possibly be compensated therefore derives from a single source—the solicitation by the Calverts of the killing of Victor Null.

Plaintiff’s injuries are thus truly single and indivisible. For that reason, if Lloyd’s were given a release which covered the wrongful death action, then a similar action would be barred against the present defendants. This leads us to plaintiff’s argument that the release extended only to contractual claims against Lloyd’s and not to tort claims.

The pertinent language states that Lloyd’s would be released “of and from any action, cause of action, controversy, damages, claims or demands based upon or in any manner arising out of or in connection with or as a result of the acceptance by the Releasees of the insurance on the life of Victor G. Null.” The release is not limited to claims asserted in the declaratory judgment action brought by Lloyd’s.

It is certainly true that the intention of the parties controls the scope and extent of the release. (Gladinus v. Laughlin (1977), 51 Ill. App. 3d 694, 366 N.E.2d 430.) We do not see any evidence in the release that the parties intended to limit its effect to contractual claims. The language of that release is broad and does not, by its terms, make any reference to contractual claims or to the pending Lloyd’s litigation. Nor does it specifically exclude tort claims. It bars actions connected with the acceptance by Lloyd’s of insurance on the life of Victor Null. As this is the precise conduct upon which any wrongful death action against Lloyd’s would be based, we believe that such an action would be barred by the release.

Because the release given to Lloyd’s is binding on the plaintiff to this action, covers tort actions against Lloyd’s and does not reserve rights against New England and Comfort, and because Lloyd’s, New England and Comfort would be independent concurrent tortfeasors under the legal theories advanced in this complaint, the release bars the present action. The decision of the Circuit Court of Madison County is therefore reversed, and judgment is entered in favor of defendants New England and Comfort.

Reversed.

KASSERMAN and HARRISON, JJ., concur.


author: JUSTICE HARRISON

text:
    WILLIAM L. BUSKIRK, Plaintiff-Appellant, v. BURLINGTON NORTHERN, INC., Defendant-Appellee.
    Fifth District
    No. 81-28
    Opinion filed January 13, 1982.
    Rehearing denied February 17, 1982.
    James McGlynn and John D. Wendler, both of McGlynn & McGlynn, of Belleville, for appellant.
    John Newell, Kenneth J. Wysoglad, Lewis M. Nixon, and Thomas J. Knapp, all of Chicago, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff William L. Buskirk appeals from a judgment against him entered in the circuit court of St. Clair County after a jury verdict in favor of defendant. Buskirk filed suit to recover damages for injuries sustained while he was employed as a railroad switchman. His two-count complaint alleged both a violation of the Safety Appliance Act (45 U.S.C. §2 (1970)) and a violation of the Federal Employer’s Liability Act (45 U.S.C. §51 et seq. (1970)). On appeal, he does not question the judgment against him on the FELA count. Instead, his principal argument is that defendant violated section 2 of the Safety Appliance Act as a matter of law. We agree, and therefore reverse the jury’s verdict and remand this cause for a new trial on damages only.

The following facts are undisputed by the evidence. Buskirk worked as a railroad switchman in defendant’s East St. Louis Yard. This area serves as a classification yard where railroad cars are separated from each other and “kicked” into switch tracks for eventual connection with outgoing trains. Plaintiff testified that, on the night of the occurrence, a block of cars in switch yard number 10 was ready to be transferred to an outgoing trainyard. He directed a small engine slowly onto the switch-track and hooked up to the head car. When the engine began to pull the block of cars out of the classification yard, plaintiff could see that a hopper car had failed to couple with the car in front of it. At some point, he noticed that the drawbars of the two cars had skewed in opposite directions. He went between the cars and straightened one bar, but was unable to straighten the drawbar attached to the hopper car. He fell and injured his back while struggling to force the jammed bar back into position.

Based on these undisputed facts, we hold defendant liable under title 45, section 2, as a matter of law. Section 2 of the Act was specifically designed to protect parties who are injured while going between cars to effect a coupling which did not take place automatically. (Southern Pacific Co. v. Mahl (5th Cir. 1969), 406 F.2d 1201, 1203.) Federal courts had consistently held that the failure of cars to couple automatically because of a misaligned drawbar constitutes a violation of section 2. Metcalfe v. Atchison, Topeka & Santa Fe Ry. Co. (10th Cir. 1974), 491 F.2d 892, 896-97, and cases cited therein.

There is no question that the drawbar in this case was misaligned to such an extent that it precluded coupling automatically by impact. A carman assigned to Buskirk’s crew testified that the two of them were able to move the bar only after applying oil to it and prying it loose with a large piece of wood. Although the parties presented several theories about what could have caused the drawbar to become so misaligned, we need not resolve that issue. It is sufficient for the plaintiff to have shown that, after a failure of the cars to couple automatically, he went between them and was injured while trying to straighten the misaligned bar. The Act imposes absolute liability on the railroad, regardless of how the drawbar became misaligned. (See Kansas City Southern Ry. Co. v. Cagle (10th Cir. 1955), 229 F.2d 12, 14, cert. denied (1956), 351 U.S. 908, 100 L. Ed. 1443, 76 S. Ct. 697.) Consequently, we find defendant liable as a matter of law and remand to the circuit court for a determination on the issue of damages.

Having concluded that there will be a new trial, we must address another issue raised by the plaintiff. Buskirk charges that the trial court committed prejudicial error by refusing to give his tendered instruction No. 18, Illinois Pattern Jury Instruction, Civil, No. 34.01 (2d ed. 1971) (hereinafter IPI) on future damages. His instruction differed from the one actually given by the trial court in that it contained the following paragraph:

“If they are permanent in nature then in computing these damages you may consider how long the plaintiff is likely to live.”

Instead the jury was told:

“If these damages are of a continuing nature, you may consider how long they will continue.”

IPI Civil No. 34.01 was drafted with alternate paragraphs to cover either temporary or permanent damages. Plaintiff argues correctly that if his damages are permanent, he is entitled to have the paragraph which he tendered read to the jury. We have reviewed the record and find that there was substantial evidence to support a conclusion that plaintiff’s injuries are permanent. Thus, at the trial on the damage issue, if plaintiff introduces evidence that his injuries are permanent, the court should instruct the jury accordingly. Morehead v. Peyton (1979), 73 Ill. App. 3d 809, 811, 392 N.E.2d 433.

Finally, plaintiff challenges the trial court’s refusal to give plaintiff’s tendered instruction on assumption of the risk and its refusal to allow counsel to comment on defendant’s purported admission. Our decision imposing liability on the railroad as a matter of law makes the resolution of these issues unnecessary. This cause is therefore remanded to the circuit court with directions to enter judgment for plaintiff on the issue of liability, and a new trial on the issue of damages is ordered, consistent with the views expressed in this opinion.

Reversed and remanded.

KARNS, P. J., and WELCH, J., concur.


text:
    THE DEPARTMENT OF CONSERVATION et al., Plaintiffs-Appellants, v. THE BALTIMORE AND OHIO RAILROAD COMPANY, Defendant-Appellee.
    Fifth District
    No. 80-541
    Opinion filed January 28, 1982.
    Tyrone C. Fahner, Attorney General, of Chicago (Hercules F. Bolos and Anita Johnson, Assistant Attorneys General, of counsel), for appellant Illinois Commerce Commission.
    Tyrone C. Fahner, Attorney General, of Chicago (Merle C. Bassett, Assistant Attorney General, of counsel), for appellant Department of Conservation.
    Richard F. Nash, of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belle-ville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

At issue in this case is the perfection of an appeal to the circuit court from an order of the Illinois Commerce Commission (ICC). On April 4, 1977, the Illinois Department of Conservation (the Department) filed a petition with the ICC to condemn for an archaeological site certain St. Clair County land owned by the Baltimore and Ohio Railroad (B & O). Following hearings and other proceedings, the ICC granted the Department permission to condemn the land on March 21, 1979. The B & O applied for rehearing on April 20, 1979, and this was denied on May 9, 1979. ICC staff prepared a “Certificate of Commission Action” which was dated the following day. According to the certificate of the ICC’s chief clerk, the “Certificate of Commission Action” was mailed on May 10, 1979. It was received at B & O offices on May 14.

On June 8, 1979, B & O’s counsel placed in a mailbox in Belleville, Illinois, several copies of a notice of appeal from the decision. That notice of appeal was captioned “The Department of Conservation, State of Illinois v. The Baltimore and Ohio Railroad Co.,” as the case had been titled before the ICC. It was received by the ICC in Springfield on June 11, and another copy was file-stamped by the clerk of the circuit court of St. Clair County on June 12. On June 13, the secretary of the ICC wrote to the circuit clerk to acknowledge receipt of the notice of appeal and to forward copies of the final ICC order.

The ICC filed its entry of appearance on October 14,1979. It did not contest the timeliness of filing the notice of appeal or the adequacy of its caption. On January 7, 1980, the Department filed its first motion in the circuit court, being a motion to dismiss the appeal because no record had been filed in the circuit court. The ICC corrected this omission by filing the record on January 17. Both the Department’s motion to dismiss and the ICC’s letter which accompanied the record referred to this case as “The Department of Conservation v. The Baltimore and Ohio Railroad Co.”

The ICC filed its motion to dismiss the appeal on March 20, 1980. It was captioned “The Baltimore and Ohio Railroad Co. v. Illinois Commerce Commission,” and it alleged that the B & O’s notice of appeal was not timely filed or properly captioned. The motion was denied on September 10,1980, and the Department and ICC requested the trial court to reconsider its order. The court allowed the original order to stand, but granted the agencies leave to file an application for an interlocutory appeal to this court under Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308). That application, which this court has allowed, limits this appeal to the following questions:

(1) Was the notice of appeal filed by the B & O with the Twentieth Judicial Circuit, St. Clair County, Illinois on June 12,1979 a timely filing?
(2) Was the failure to designate the ICC a party to the appeal a failure that renders the appeal fatally defective, and subject to dismissal?

The B & O claims that this discretionary appeal should not be entertained at all. It notes that Supreme Court Rule 308(a) refers to appeals from a trial court to “the Appellate Court,” and that in reviewing ICC decisions, the trial court stands as an appellate court. According to the B & O, the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 1 etseq.), under which this appeal arises, requires the circuit court to retain jurisdiction over such appeals until the entire case is decided. Part of section 68 of the Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 72) states:

“The Court first acquiring jurisdiction of any appeal from any rule, regulation, order or decision shall have and retain jurisdiction of such appeal and of all further appeals from the same rule, regulation, order or decision until such appeal is disposed of in such circuit court.”

The B & O also points to section 69 of the Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 73), under which “[a]ppeals from all final orders and judgments entered by the circuit court in review of rules, regulations, orders or decisions of the Commission, may be taken as in other civil cases.”

Although we can find no case authority precisely on point, we do not believe that the sections of the Public Utilities Act quoted by the B & O were intended to limit our discretion under Rule 308. For example, section 68 requires the circuit court to retain jurisdiction of an appeal until the appeal “is disposed of” in that court. This clause, which was designed to prevent conflicting results in different circuit courts (Illinois Bell Telephone Co. v. Illinois Commerce Com. (1953), 414 Ill. 275, 111 N.E.2d 329), does not define the “disposition” of an appeal in the circuit court. Given that section 68 requires the appeal to be tried “according to the rules governing other civil cases, so far as the same are applicable,” it is plausible that a trial court may “dispose of” the appeal by certifying appropriate questions for appellate review instead of proceeding to a final judgment. Had the drafters of the Public Utilities Act intended the circuit court to march uninterrupted to final judgment, it seems likely that they would have referred to the term “final judgment” instead of using the phrase “disposed of.” In one common use of the word “dispose,” an appeal to the circuit court would be “disposed of” by certification of a question for an interlocutory appeal because the circuit court would thereby have placed the case in the hands of another. In another sense, an appeal could be “disposed of” by the appellate court if it would find, for example, that the circuit court had not acquired jurisdiction over the original appeal. The appeal would be “disposed of” in the second instance, because the case would have come to a conclusion. (See Webster’s Third New International Dictionary 654 (1976) (“dispose of”).) Because of the different meanings of the phrase “disposed of,” we cannot say that an interlocutory appeal is an unauthorized procedure under the Public Utilities Act.

Moreover, even if the words “disposed of” should be read to mean “a final judgment in the circuit court,” section 68 does not expressly require that only the circuit court should participate in rendering a decision on the appeal. Under that provision, the circuit court is to “have and retain jurisdiction” of the appeal. But, since Rule 308 does not automatically stay circuit court proceedings if an application for permission to appeal is granted (Ill. Rev. Stat. 1979, ch. 110A, par. 308(e)), there is nothing to prevent the trial court from retaining control over the case while the appellate court resolves the questions presented to it. All in all, section 68 is susceptible of several interpretations, and it is not sufficient authority to negate the strong discretionary powers vested in this court by Rule 308.

Additionally, section 69 of the Act, in allowing appeals from final orders and judgments to be “taken as in other civil cases,” does not prohibit appeals to be taken from nonfinal orders under the procedure established in Rule 308. However, even if sections 68 and 69 of the Act could be seen as a bar to interlocutory appeals, this would not be persuasive because Rule 308 does not exempt Public Utilities Act proceedings from its scope and, under Supreme Court Rule 1, “[t]he [supreme court] rules on appeals supersede statutory provisions inconsistent with the rules and govern all appeals” (Ill. Rev. Stat. 1979, ch. 110A, par. 1).

The B & O argues that, even on its own terms, Rule 308 does not allow interlocutory appeals in cases of review of ICC orders. Admittedly, the Rule refers to appeals from “the trial court” to “the Appellate Court,” while several other supreme court rules governing appeals mention “the circuit court” instead of or in addition to “the trial court.” (Ill. Rev. Stat. 1979, ch. 110A, pars. 301, 302, 303, 306.) But, it would be simplistic to conclude that because the trial court acts in a reviewing capacity, it is therefore not a “trial court,” but an “appellate court” and that Rule 308 no longer applies. To accept this argument would ignore that Rule 308 refers to “the Appellate Court,” which is certainly this court and not simply a circuit court sitting in a reviewing capacity, whether it be under the Public Utilities Act, Administrative Review Act or other statute. Moreover, Rule 308 is classified in the supreme court rules under article III, “Civil Appeals Rules,” and part A, “Appeals from the Circuit Court.” In many of the rules in this part, the terms “circuit court” and “trial court” are used interchangeably, and in this type of proceeding, that interpretation seems necessary, because there has been no “trial court” involved if one does not consider the circuit court to be “the trial court.” If we would read “trial court” to exclude a circuit court reviewing an administrative decision in this case, that interpretation would be required in every rule in article III, part A, where that term is used. To engage in strained semantics to reach a result which would riddle an important portion of the supreme court rules with doubt is unwarranted. It is obvious to us that Rule 308 applies to appeals to this court from a circuit court reviewing ICC orders under the Public Utilities Act, and we so hold.

Turning to the merits of the appeal, it is apparent that they are not complex. The Department and ICC first claim that the B & O’s appeal was not timely filed. According to section 68 of the Public Utilities Act, an appeal may be taken from a decision of the ICC within 30 days of the service of that decision. The date of mailing the decision is the date of service. (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 70.) In this case, the “Certificate of Commission Action” was dated May 10, 1979, and the ICC’s chief clerk certified that it was mailed that day. Because June 9,1979, was a Saturday, June 11 was the 30th day following the service of the ICC’s order. Ill. Rev. Stat. 1979, ch. 1, par. 1012.

The Department and ICC argue that, even though the notice of appeal was received by the ICC on June 11, it was not filed in the circuit court until June 12. Since the affidavit of the B & O’s counsel stated that both documents were mailed on June 8, we must hold that (1) the date of mailing these documents is not the date of filing, or, (2) the affidavit was not competent evidence of mailing, and that, (3) the notice must be filed in the circuit court within 30 days of service of the ICC’s decision, in order to dismiss the B & O’s appeal to the circuit court as untimely. We cannot accept the position of the agencies on the first two of these propositions, and therefore we do not need to discuss the third.

Under section 1.25 of “An Act to revise the law in relation to the construction of statutes” (Ill. Rev. Stat. 1979, ch. 1, par. 1026), the date of mailing “any writing of any kind or description required or authorized to be filed with * * * the State or any political subdivision thereof” shall be the date of its filing, unless an act otherwise provides. The Public Utilities Act does not contain a contrary provision, and, indeed, the fact that service of ICC orders is complete when mailed suggests that the application of section 1.25 would further consistency in the Act. In appeals to the circuit court from ICC orders, then, the date of mailing documents required by section 68 of the Public Utilities Act shall be deemed the date of their filing.

The proof of that date in this case is the affidavit of the B & O’s counsel. According to paragraph (1) of section 1.25, the date of mailing is “the date shown by the post office cancellation mark stamped upon the envelope or other wrapper containing it.” If the document is not received by the State, or if it is received without a cancellation mark or with an illegible or erroneous cancellation mark, then the sender may establish the date of mailing by “competent evidence.” (Ill. Rev. Stat. 1979, ch. 1, par. 1026(2).) The statute does not say what evidence is considered competent.

As can be seen, this case falls into a gap in section 1.25, because the notice of appeal was received by the circuit clerk but no envelope, or evidence concerning the condition of its postmark, was introduced into the proceedings below. In our opinion, this omission is a gaping hole in the statute, because, given the volume of business in many State agencies, the retention of envelopes is usually a low priority. The purpose of that portion of the statute which allows alternate proof of mailing is to fill a vacuum which is created when a letter is lost, or when the postmark is absent, obscured or incorrect. Because the same vacuum also exists if the envelope is not introduced into evidence, common sense requires alternate proof in that situation as well.

Counsel for the B & O offered his affidavit in the court below to prove the date of mailing. As the B & O notes in its brief, Supreme Court Rule 373 (Ill. Rev. Stat. 1979, ch. 110A, par. 373), as amended January 5, 1981, now allows this as competent evidence of the date of filing papers in a reviewing court. We believe that this is one type of “competent evidence” authorized as alternate proof by section 1.25, and the B & O has therefore established that both copies of its notice of appeal were timely filed.

Counsel for both sides have addressed the issue of whether section 68 requires an appellant to serve a copy of his notice of appeal with the clerk of the circuit court within 30 days of service of the ICC order. The First District so stated in Hoffman v. Illinois Commerce Com. (1978), 62 Ill. App. 3d 85, 379 N.E.2d 42. It appears to us that the dissent expresses a more realistic reading of that section, but, since this appeal to the circuit court is timely even under the standard of Hoffman, we will not discuss that issue here.

Finally, the Department and ICC urge that the B & O’s omission of the ICC in the caption of its notice of appeal deprived the circuit court of jurisdiction over the appeal. The B & O replies that both the Department and the ICC had participated in the appeal for months before they objected to the caption of the notice of appeal, and both agencies adopted the allegedly erroneous caption and used it on several motions made in the circuit court. Since the only jurisdictional step in the perfection of an appeal from the ICC is the timely filing of a notice of appeal (Illinois Telephone Association v. Illinois Commerce Com. (1978), 57 Ill. App. 3d 968, 373 N.E.2d 676), the facts mentioned by the B & O are significant. The Department and ICC have waived any defects in the caption of the notice of appeal by not objecting to it and by adopting the caption on their motions.

Because this appeal to the circuit court was timely, and because any defects in the caption of the notice of appeal have been waived, the circuit court has jurisdiction to hear this appeal. We therefore affirm the decision of the Circuit Court of St. Clair County and remand this cause for further proceedings.

Affirmed and remanded.

JONES and KASSERMAN, JJ., concur.


author: PRESIDING JUSTICE KARNS

text:
    EMMENEGGER CONSTRUCTION CO., INC., Plaintiff-Appellant, v. FRANK KING et al., Defendants-Appellees.
    Fifth District
    No. 80-603
    Opinion filed January 29, 1982.

      Thomas Q. Keefe, Jr., of Hillebrand, Cook, Shevlin & Keefe, of Belleville, and Husch, Eppenberger, Donohue and Elson & Cornfield, both of St. Louis, Missouri (Joseph P. Conran and Lisa M. Camel, of counsel), for appellant.
    Bernard J. Ysursa, of Sprague, Sprague and Ysursa, of Belleville, for appellee Jerry Ames.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Emmark Collaborative, Inc., and Emmenegger Construction Company, Inc., instituted separate proceedings to foreclose mechanics’ liens in the Circuit Court of St. Clair County against the owners and lien claimants of a construction project known as the Oak Hill Racquet Club. Emmark claimed sums were due it for the design and construction of the improvements, and Emmenegger claimed money was due it as a subcontractor for concrete work, carpentry labor, common labor and landscaping as well as other work. Jerry Ames, d/b/a Jerry Ames Construction Company, a lien claimant, was named a defendant in both actions. Ames filed counterclaims against Emmenegger and Emmark seeking damages incurred as a result of a breach of an alleged oral contract in failing to pay for certain concrete work furnished by Ames. All other matters were disposed of, and Ames’ claims were tried before the court after the two actions were consolidated for trial. The court entered judgment against Emmenegger in the amount of $16,172.55 and in favor of Emmark. In addition, the court, finding the refusal to pay the claim to be unreasonable, awarded prejudgment interest to Ames at the statutory rate. (Ill. Rev. Stat. 1979, ch. 74, par. 2.) Only Emmenegger Construction appeals.

The following issues are raised on appeal: whether the finding of the trial court as to the existence of a contract between Ames and Emmenegger was against the manifest weight of the evidence; whether the job superintendent on the construction site had authority, actual or apparent, to bind Emmenegger to the alleged contract, and whether the trial court’s finding that the failure to pay the claim was unreasonable as to justify an award of prejudgment interest was against the manifest weight of the evidence.

A detailed recitation of the facts is necessary. In June of 1973, Frank King and John J. Vassen, co-trustees of Oak Hill Racquet Club Land Trust No. 1, contracted with Emmark Collaborative, Inc., for the design, construction and construction management of the Oak Hill project. Emmark then entered into a subcontract with Emmenegger Construction Company, Inc. Emmenegger was to do the concrete work on the project. At the time these contracts were entered into and at all other times relevant to this litigation, Russell Emmenegger was the sole shareholder in Emmark and the sole or majority shareholder in Emmenegger. During the same period, Leo Kuntz was either corporate secretary or president of Emmark, depending on whether we credit his testimony or his verification of the sworn complaint filed by Emmark, and also served as vice-president of Emmenegger.

As stated, Emmark was the construction manager for the Oak Hill project. Fred Alsbach was the job superintendent for the project and directed activities on the job site. There is some dispute as to Alsbach’s employer. Kuntz testified that Alsbach was an employee of Emmenegger, but that for the purposes of the project was working for Emmark. However, the record reveals that Alsbach was paid by Emmenegger.

Labor and contract problems arose for Emmenegger in late 1973. Pursuant to the suggestion of John Yock, a representative of Concrete, Inc., Ames approached Alsbach concerning the possibility of doing some of the concrete work. It is undisputed that Alsbach hired Ames to do this work. Ames testified that the agreement between himself and Alsbach called for the work to be performed in January and February of 1974. The exact dates Ames was to pour the concrete were unknown because this work depended on the progress of other subcontractors and was dictated somewhat by weather conditions. This agreement was never reduced to a writing.

There is some indication that Ames was not certain for whom he was working. He dealt exclusively with Alsbach and did not meet or talk to either Russell Emmenegger or Leo Kuntz. Ames testified that the trailer at the construction site had a large sign labeled “Emmenegger Construction Company” and that he assumed that he was working for Emmenegger.

Ames testified that, by the terms of the agreement with Alsbach, he was to present a bill for the work completed at the end of the month and that payment would be forthcoming sometime between the 10th and 20th day of the following month. It should be noted that Alsbach did not testify at the trial and there was no other evidence submitted with regard to the terms of the agreement.

Ames completed approximately one-half of the work during January and on January 31,1974, he presented a bill for $7,516.20 to Alsbach. The bill was presented on a work order form to “Emmenegger Const., Inc.” and was approved for payment by Leo Kuntz. The bill was approved on an Emmenegger Construction Company, Inc., purchase order form which was signed by Alsbach. This bill was never paid. Ames continued to work until he had completed performance on the contract. When he returned to the jobsite on approximately March 1,1974, to present his bill for the February work, he could not find Alsbach and noticed that the Emmenegger trailer was gone. The February bill was for $8,656.35.

Ames testified that after going to the jobsite on or about March 1, 1974, he called the office of Emmenegger Construction Company, Inc. and was referred to Leo Kuntz. When Ames inquired as to when he would be paid, Kuntz responded that he would be paid when the company received payment for work completed. It is unclear whether Kuntz was referring to monies owing to Emmenegger or Emmark.

Kuntz testified that Ames was a subcontractor of Emmark and not of Emmenegger. He stated that Emmenegger subcontracted to do the concrete work, and Ames subcontracted to do the flat work. Kuntz further stated that it was not uncommon to divide the concrete work in this manner. A thorough search of the record reveals that Ames was not listed as a subcontractor of Emmark on any of the numerous documents submitted. This includes documents dated January 31, 1974, and February 28,1974.

There is also a dispute as to when Emmark and Emmenegger terminated work on the job. Ames testified that he performed his work between January 22, 1974, and February 22, 1974. He stated that Alsbach was on the job throughout this period as was Emmenegger’s trailer. Ames further testified that there were many other tradespersons working throughout this period. Kuntz testified that Emmark pulled off the job on February 11,1974; although, in Emmark’s complaint to foreclose, verified by Kuntz, it was averred that Emmark performed work through February 28, 1974. In so stating, he places primary reliance on a daily log kept by Alsbach in which the last entry was made on that date. Kuntz further testified that he visited the jobsite after February 11, 1974, and saw tradespersons working. The construction trailer was removed from the jobsite on February 28, 1974. Kuntz testified that he informed all of the subcontractors by telephone, including Ames, that Emmark was pulling off the job. Kuntz was uncertain as to the date the calls were made. On March 21,1974, a form letter was sent to all the subcontractors, including Ames, that Emmark was terminating work. This letter is the only written acknowledgement of Ames’ claimed status as a subcontractor of Em-mark.

Emmenegger asserts that Ames failed to prove the existence of a contract between itself and Ames by a preponderance of the evidence. Whether an oral contract exists, its terms and conditions and the intent of the parties are questions of fact to be determined by the trier of fact. (Panko v. Advanced Appliance Service (1977), 55 Ill. App. 3d 301, 371 N.E.2d 3.) In the instant case, the trial court, pursuant to the request of Emmenegger, made oral findings and conclusions prior to pronouncing judgment. The trial court found that Ames was hired by Alsbach, that Alsbach was employed by Emmenegger and that Alsbach hired Ames as a subcontractor of Emmenegger.

It is undisputed that Alsbach hired Ames to do certain concrete work on the Oak Hill project. Ames’ testimony with regard to the terms and conditions of the agreement was uncontroverted. This testimony reveals definite and certain terms, including the price to be charged and time and method of payment. Therefore, the real questions raised with regard to the existence of a contract between Ames and Emmenegger are whether Alsbach was in Emmenegger’s employ at the time of the agreement, and, if he was, whether he had authority to bind Emmenegger to the contract.

It is axiomatic that findings of the trier of fact will not be disturbed on appeal unless they are clearly contrary to the manifest weight of the evidence (Yale Development Co. v. Texaco, Inc. (1977), 51 Ill. App. 3d 616, 366 N.E.2d 892); and that for judgment to be against the manifest weight of the evidence, it must appear that conclusions opposite to those reached by the trier of fact are clearly evident. (Joray Mason Contractors, Inc. v. Four J’s Construction Corp., Inc. (1978), 61 Ill. App. 3d 410, 378 N.E.2d 328.) As stated, the trial court found that Alsbach was employed by Emmenegger. Emmenegger admits that Alsbach generally worked for it, but asserts that for the purposes of the Oak Hill project, he was employed by Emmark as the job superintendent. However, throughout the relevant period, Alsbach continued to be paid by Emmenegger. The only evidence supporting Emmenegger’s position was Kuntz’ testimony. The trial court is in a better position to observe the conduct and determine the credibility of a witness. (Joray Mason Contractors.) In the instant case, it is apparent that the trial court did not believe Kuntz’ testimony. A careful review of the testimony in question reveals that it was replete with contradiction and that the impeachment of Kuntz was effective. Therefore, we find that the trial court’s determination that Alsbach was an employee of Emmenegger at the time of the agreement with Ames was not against the manifest weight of the evidence.

The trial court found that Alsbach was an employee of Emmenegger and that Alsbach hired Ames to do some of the concrete work. Although no express finding of agency was made, it is implicit in the trial court’s decision, that it found Alsbach had the authority to bind Emmenegger to the contract in question. The existence of this authority is the main issue before us on appeal.

Ames asserts that the relationship between Alsbach and Emmenegger was sufficient to clothe Alsbach with the apparent authority to bind Emmenegger to the contract with Ames. Emmenegger, citing Shoenberger v. Chicago Transit Authority (1980), 84 Ill. App. 3d 1132, 405 N.E.2d 1076, responds that the authority of an agent may only come from the principal and it is therefore necessary to trace the source of an agent’s authority to some word or act of the alleged principal. Emmenegger asserts that there were no words or acts by itself or its authorized representatives which establish such apparent authority.

The law of agency in Illinois is in accord with the Restatement (Second) of Agency on the subject of apparent authority. (See Shoenberger.) The Restatement provides in pertinent part:

“* * 0 apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.” (Restatement (Second) of Agency §27 (1958).)

Thus, to establish apparent authority, it is critical to find some words or conduct by the principal that could reasonably indicate consent.

Although there was some indication that Ames was uncertain for whom he was working, he did testify that because Emmenegger’s trailer was on the jobsite that he assumed he was working for it. Ames dealt exclusively with Alsbach, and they discussed matters pertaining to work, and particularly billing and payment, in Emmenegger’s trailer. The bill for the January work was made out to “Emmenegger Const. Co.,” and was submitted by Ames to Alsbach in the trailer. This bill was approved for payment by Leo Kuntz, Emmenegger’s corporate vice president, and was later submitted for payment by Alsbach on an Emmenegger purchase order. If doubt existed as to Alsbach’s authority to bind defendant, it was removed by Kuntz’ action in approving the January bill for payment. This indicated consent by the principal (Emmenegger) to actions of its agent (Alsbach). In fact, it appears that the name “Emmark” was nowhere present at the jobsite or on any documents. There is no indication that the actions taken by Alsbach were beyond his actual authority as job superintendent but, assuming they were, we find sufficient conduct on the part of Emmenegger which could reasonably cause Ames to believe that Emmenegger consented to the actions of Alsbach. Therefore, we find that Alsbach had apparent, if not actual, authority to bind Emmenegger to the contract in question.

Emmenegger argues that, if it is liable to Ames, it is only liable for work performed prior to February 11, 1974, because it terminated work on this date. To support this position, it places primary reliance on the daily log entry made by Alsbach. The only other supporting evidence is Kuntz’ recollection. We find this argument to be untenable. Emmenegger’s “Complaint to Foreclose on Mechanics Liens,” verified by Kuntz as Emmenegger’s vice-president, avers that work was performed through February 28, 1974. The evidence further reveals that Emmenegger’s trailer remained on the jobsite until February 28 and that written notice of termination was not sent to Ames until March 21.. It is undisputed that Ames completed work on the contract by February 22 and that this work was satisfactory. Therefore, the trial court properly assessed as damages the total contract price.

The final issue we must address involves the trial court’s award of prejudgment interest. The trial court found the refusal to pay the claim to be unreasonable and thus awarded interest at the statutory rate. (Ill. Rev. Stat. 1979, ch. 74, par. 2.) Emmenegger first asserts that the trial court only found the refusal to pay to be “unreasonable,” whereas the statutory language requires a finding of “unreasonable and vexatious delay.” We find that the mere failure of the trial court to trace the statutory language will not, in itself, defeat the award.

Emmenegger next asserts that a real dispute existed in this case in that the amount of damages was not readily ascertainable and therefore, prejudgment interest was improvidently awarded. An honest dispute as to the existence of a legal obligation will not result in an unreasonable and vexatious delay which would permit recovery of interest. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069.) On the question of interest, the trial judge has discretion, according to the equities of the case, to award or deny interest as an element of recoverable damages, and interest will be allowed where such damages are liquidated or where they can be ascertained by simple and certain computation. (Weiland Tool & Manufacturing Co. v. Whitney (1968), 100 Ill. App. 2d 116, 241 N.E.2d 533.) In the instant case, the only question raised with regard to the amount of damages involved the dispute as to the date Emmenegger terminated work on the jobsite. Having already determined that defendant remained on the jobsite until March 1, 1974, we now find, after review of the evidence, that no real dispute existed as to the termination date and therefore, damages were readily ascertainable.

Emmenegger correctly states that where payment is delayed as a result of litigation, plaintiff must establish conduct by a litigant which approximates actual fraud to come within the statutory language. (Hamilton v. American Gage & Machine Corp. (1976), 35 Ill. App. 3d 845, 342 N.E.2d 758.) The trial court, noting the interrelationship between Em-mark Collaborative, Inc., and Emmenegger, and having observed the credibility and demeanor of the witnesses, found that payment was unreasonably withheld. Implicit in that finding is that no honest dispute existed and that fraudulent conduct on the part of Emmenegger was established. Considering the factual nature of these determinations, we defer to the discretion of the trial court. Therefore, we find that the trial court’s determination that Emmenegger’s failure to pay the claim was unreasonable as to justify an award of prejudgment interest was not contrary to the manifest weight of the evidence.

Affirmed.

KASSERMAN and HARRISON, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD E. SMITH, Defendant-Appellant.
    Third District
    No. 81-67
    Opinion filed January 26, 1982.

      Robert Agostinelli and Verlin R. F. Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Richard Smith, was charged by indictment with the unlawful possession of a controlled substance (cocaine) and with the unlawful possession of cannabis, violations of section 402(b) of the Illinois Controlled Substances Act and section 4(a) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 561/2, pars. 1402(b) and 704(a)), respectively. The defendant was convicted of these offenses upon a jury trial in the circuit court of Tazewell County. The trial court entered judgment only on the controlled substance charge.

The defendant filed a motion to suppress evidence prior to trial. The motion challenged the search of defendant’s car and the warrantless seizure and search of a wooden box in the car.

On June 4, 1980, a Tazewell County deputy sheriff stopped an El Camino truck being driven by defendant. He did so because he noticed the truck had an expired safety inspection sticker. After stopping the truck, the officer met the defendant between the two vehicles, took and examined defendant’s license and then walked up to the front door of the truck. The officer noticed a beer bottle on the passenger-side floor of the truck and a brown box underneath the steering wheel.

The deputy then went to the passenger side of the truck, opened the door and searched the truck’s interior. He recovered the bottle, the box and a syringe which was lying near the box. The box appeared to be a “one hitter box” commonly used to carry cannabis. The deputy opened the box and discovered cannabis and a piece of plastic containing a white substance. The defendant was standing outside the truck on the passenger side when the deputy found and opened the box. The officer had no warrant to open the box and did not secure defendant’s consent to open it. The defendant was then arrested for a variety of offenses including “no valid safety test,” “unlawful opening of an alcoholic beverage” and possession of a controlled substance, cannabis, and a hypodermic syringe.

The court denied the defendant’s motion to suppress, finding that the deputy needed no warrant to search the wooden box after properly stopping the defendant’s truck.

Upon trial, the jury found the defendant guilty of possession of a controlled substance and of less than 2.5 grams of cannabis. On the State’s motion, the court entered judgment only on the possession of a controlled substance charge. Defendant was sentenced to a term of three years in prison.

The issue presented for review is whether the trial court erred in denying defendant’s motion to suppress evidence found during the warrantless search of a closed wooden box discovered in defendant’s vehicle.

In Arkansas v. Sanders (1979), 442 U.S. 753, 61 L. Ed. 2d 235,99 S. Ct. 2586, the Supreme Court held that the warrantless search of an unlocked suitcase found in the trunk of a taxi was in violation of the fourth amendment. The court stated that the expectation of privacy associated with luggage, first set forth in United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476, applies no less to luggage found in automobiles than to luggage found in other locations. The reasonableness of a search does not overcome the need for a judicial warrant. The court concluded that a search of luggage without a warrant must be justified under some exception to the warrant requirement other than that applicable to automobiles.

In footnote 13 of Sanders, however, the court indicated that not all containers found during the course of a search would deserve the full protection of the fourth amendment. “[S]ome containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to ‘plain view’, thereby obviating the need for a warrant.” 442 U.S. 753, 764-65 n.13, 61 L. Ed. 2d 235, 245 n.13, 99 S. Ct. 2586, 2593 n.13.

In the most recently decided “closed container” case, Robbins v. California (1981),_U.S__, 69 L. Ed. 2d 744, 101 S. Ct. 2841, the court held that a package wrapped in green opaque plastic could not be searched without a warrant, even if it were found during the course of a lawful search of an automobile.

In the Robbins opinion the court attempted to clarify the meaning of footnote 13 in Sanders. The court stated that the footnote’s import was essentially a variation of the plain-view exception. Expectations of privacy are established by general social norms, and if a container’s distinctive configuration, transparency or other revealing characteristics clearly imply its contents, then such contents can be said to be in plain view.

The Supreme Court in the Chadwick, Sanders and Robbins line of decisions has developed a rule relating to the search of closed containers. This rule can be characterized as an objective test whereby the contents of a container will be protected from warrantless searches because of the owner’s expectations of privacy unless it is obvious to an observer what the contents of the container are by either its distinctive configuration, its transparency or otherwise.

If a container, otherwise undistinctive in appearance, is known to some segments of society to be used for certain purposes, its contents should remain fully protected by the fourth amendment, if it is closed and opaque, not subjecting its contents to public view. The closed wooden box found on the floor of the defendant’s vehicle was undistinctive in its appearance. However, law enforcement officials apparently knew that this type of box was commonly used for the transportation of marijuana. Their subjective knowledge, while relevant, is not conclusive. Rather, the container must be evaluated to determine whether society as a whole would recognize it as one commonly used to carry a controlled substance. One could not automatically conclude that marijuana was contained within that wooden box. Its shape did not imply its contents, nor was it in any way transparent or open, subjecting its contents to public view. Therefore, in keeping with the holding of Robbins, the defendant’s wooden box could not have been searched without a warrant.

The case of New York v. Belton (1981),-U.S.-, 69 L. Ed. 2d 768, 101 S. Ct. 2860, should be distinguished from Robbins and the case at hand. In Belton, the court held that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may search, if incident to the arrest, the passenger compartment of that automobile. In addition, the officer may seize and search any containers found during his search, whether they be open or closed. Both in Robbins and in this case no argument was made that the containers were opened and searched incidental to a lawful custodial arrest. Belton, therefore, is not controlling in the present case.

It is our opinion that the warrantless search by the officer of defendant’s closed wooden box was in violation of the fourth amendment to the United States Constitution. The fruits of the search, namely the contents of the box, should have been suppressed at trial. For the foregoing reasons the judgment of conviction entered in the circuit court of Tazewell County is reversed.

Reversed.

BARRY and ALLOY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD CORDER, Defendant-Appellant.
    Third District
    No. 81-252
    Opinion filed January 26, 1982.

      Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Defendant Richard Corder was convicted of unlawful delivery of a substance represented to be a controlled substance and sentenced to a five-year term of imprisonment. After filing a notice of appeal, defendant moved to dismiss his appeal and filed a pro se petition for post-conviction relief. Counsel was appointed, and after an evidentiary hearing on an amended petition, the circuit court of Peoria County denied post-conviction relief.

On January 4, 1979, défendant was indicted for the subject crime, and a public defender was appointed to represent him. That appointment was withdrawn on February 13,1979, when a privately retained attorney appeared for defendant. Trial was set for March 5,1979, but the attorney requested and received a continuance for the purpose of further investigation. On March 19, 1979, counsel again requested a continuance pending the disposition of another proceeding. This the court denied and the cause proceeded to trial.

The State’s evidence implicating defendant in the crime consisted of the testimony of Officer James Williams, an occurrence witness. Officer Williams testified that on June 21,1978, he was working in an undercover capacity in the area of the El Dorado Club. At approximately 1 a.m., the witness met a black male who was introduced to him as Richard Corder. The officer had never met or seen this person before, but at trial identified defendant as that individual and further testified that defendant sold him a substance represented to be heroin. Officer Williams indicated that the transaction occurred while he was in the front seat, and defendant was in the rear seat, of a station wagon. The vehicle was parked approximately 75 feet from the nearest street light, and the interior lights were off, but the officer could clearly see that the criminal was clean shaven.

Defendant’s evidence was designed to demonstrate that he was not the person who delivered the substance to Officer Williams. The crux of his defense was that, for the last six or seven years, he had continually worn a beard. William Bauer testified to this fact, but had not seen defendant between March 1978 and August 1978. Defendant also testified to the fact, but for the relevant period of time, his testimony was completely uncorroborated. At defendant’s post-trial hearing, however, his attorney attempted to introduce corroborating evidence. Defendant’s driver’s license, issued six days after the crime, clearly bore the photograph of a bearded man, but had not been introduced into evidence during the trial. As defense counsel did not allege that the license was not available or unknown at the time of trial, this evidence was not considered by the court.

In his amended petition for post-conviction relief, defendant alleged that his trial counsel was incompetent, ineffective, and frequently intoxicated. While a number of specific inadequacies were noted, the gravamen of the petition was the failure to corroborate defendant’s testimony regarding his beard. It was defendant’s burden to prove this allegation, and the determination of the trial court must be upheld unless manifestly erroneous. People v. Bracey (1972), 51 Ill. 2d 514, 282 N.E.2d 685.

At his evidentiary hearing, defendant produced both witnesses and affidavits from potential witnesses who indicated that they could corroborate his testimony concerning his beard. Bruno Scordo, the owner of the night club outside of which the drug transaction took place, testified that he had never seen defendant clean shaven, and that defendant had a beard of 1 to 1M inches on June 21, 1978. Cathy Taylor testified that she saw defendant almost every day in June 1978, and he always wore a beard approximately 1 inch long. Frankie Jacobs, defendant’s sister, testified that defendant had always worn a beard and had one on June 21, 1978. These witnesses, Robert Drucker and Ernest Washington, all alleged that they were able to testify at trial that defendant had a beard on June 21, 1978, or thereabouts, but they were not contacted by defendant’s attorney.

Defendant testified that he gave his lawyer a list of witnesses, with addresses, three weeks before trial. The witnesses included, among others, Dick Brewer, Bill Bush, Robert Drucker, Frankie Jacobs, Bruno Scordo, and Ernest Washington. Four weeks before trial, defendant had informed his attorney about his driver’s license. Trial counsel testified that defendant informed him of several witnesses a week or two before trial, but he could not recall their names or number. He indicated that de^ fendant provided their telephone numbers, and that he personally attempted to telephone some of the witnesses, but was unsuccessful in reaching them. The attorney stated that he “got the word out” to his contacts in the black community, had his secretary place some calls, and had Prince Chandler, who at the time ran an establishment called the Psychedelic, attempt to contact the witnesses. Counsel did not know whether Chandler ever contacted anyone.

This was the extent of defense counsel’s effort to contact witnesses. He explained that he felt the witnesses were being uncooperative and found his attempts to contact them a “very frustrating experience.” When asked if he therefore was forced to subpoena the witnesses, he replied that he did not know as he had disposed of defendant’s file sometime after the trial. The reality of the matter is that he did not subpoena any witnesses nor seek a subpoena duces tecum for the driver’s license.

While not a factor in our decision today, extensive evidence was presented concerning the existence of a serious drinking problem on the part of the attorney. The problem was expressly acknowledged by the trial court.

A defendant is entitled to the assistance of counsel under both the United States Constitution and the Illinois Constitution of 1970. Counsel can, however, be so incompetent as to undermine that right and deprive a defendant of his due process right to a fair trial. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) While the courts of this State have traditionally employed a two-tiered standard to determine the competence of counsel, holding an appointed attorney to a more rigorous standard than a privately retained attorney (compare People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203, with People v. Murphy), such a distinction has been questioned by the Supreme Court:

“A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. * * * [W]e see no reason for drawing a distinction • * (Cuyler v. Sullivan (1980), 446 U.S. 335, 344-45, 64 L. Ed. 2d 333, 344, 100 S. Ct. 1708, 1716.)

The State accurately indicates that Cuyler does not state that the standard for retained counsel must rise to that for appointed counsel, but we find this the better view and supported by precedent. (See People v. Talley (1981), 97 Ill. App. 3d 439, 443, 422 N.E.2d 1084, 1088; People v. Scott (1981), 94 Ill. App. 3d 159, 163-64, 418 N.E.2d 805, 808.) Therefore the inadequacy of a defendant’s trial counsel entitled him to a new trial if counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the defendant without which the result of the trial would probably have been different. People v. Greer.

In the case at bar, defendant was convicted on the strength of the identification testimony of one undercover officer, who did not effect an arrest at the time of the crime. The officer unequivocally stated that the criminal was clean shaven. Although aware of this from pretrial discovery, defense counsel introduced no evidence at trial to corroborate defendant’s testimony that he wore a beard before, during, and after the time of the crime. This was the case in spite of the fact counsel was aware of defendant’s driver’s license showing the presence of a beard six days after the commission of the offense, arid that he had received a list of potential witnesses. None of the witnesses were interviewed. Neither the license nor a.single witness was subpoenaed. When the attorney requested another continuance at the time of trial, he did not state that there was any problem securing or producing any needed evidence.

The failure to interview witnesses may indicate actual incompetence, particularly when the witnesses are known to trial counsel and their testimony may be exonerating. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) This case presents a situation where not only this mode of incompetence was evidenced, but witnesses and evidence came after trial, when defense counsel attempted to introduce the license at the post-trial hearing. Yet even this attempt was thwarted by the attorney’s failure to allege that the evidence was not available or known to him at the time of trial. Under the circumstances presented in this case, we find trial counsel was actually incompetent, and this incompetence produced substantial prejudice to defendant without which the outcome of his trial would probably have been different.

Accordingly, the order of the circuit court of Peoria County denying the petition for post-conviction relief is reversed and this cause remanded for a new trial.

Reversed and remanded.

SCOTT, P. J., and BARRY, J., concur.