author: JUSTICE SCOTT PRESIDING JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALVIN ABRAMS, Defendant-Appellant.
    Third District
    No. 81—546
    Opinion filed October 6, 1982.
    Rehearing denied November 16, 1982.
    BARRY, P.J., specially concurring.
    Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Alvin Abrams, was convicted of murder, felony murder and armed robbery following a jury trial in Will County. He was thereafter sentenced to a term of 20 years’ imprisonment on the felony murder conviction and a concurrent term of 10 years as a result of the armed robbery conviction. No sentence was imposed on the murder conviction.

On appeal, the defendant contends he was not proved guilty beyond a reasonable doubt, that the trial court erred in refusing to give certain tendered instructions, that the prosecutor made an improper and prejudicial closing argument and that the convictions for murder and armed robbery should be set aside as lesser included offenses of felony murder.

With respect to defendant’s first issue raised on appeal, which challenged the sufficiency of the evidence to support his convictions, we note that the evidence at trial established the following sequence of events.

On Octrober 20, 1979, Edward Dorris, Jon Smith, George Norris and Walter Richardson were going to meet at an abandoned residence in Joliet, Illinois, where they regularly met to gamble. This particular evening the group was joined by a newcomer, the defendant.

Dorris arrived at the house approximately 9 p.m. Smith, Norris and defendant were already present. Defendant arrived with Norris in a light-colored station wagon. Defendant asked Dorris where the gambling was and when it would start. Dorris said that not everyone had arrived but that the game would start soon. Walter Richardson had not yet arrived. However, defendant was anxious to start and so they eventually went inside and began to gamble. Defendant and Smith started to shoot craps. Dorris ran the game while Norris just watched.

Smith and the defendant had been gambling for approximately 10 minutes when Richardson walked in. Richardson had driven to the house accompanied by Rosemary Durham, who remained in the vehicle. Eventually, Richardson asked Smith to let him gamble. After Smith let Richardson take his place at the table, Smith went out to the car and coaxed Durham to come inside. Richardson proceeded to shoot craps with the defendant.

Defendant and Richardson gambled for awhile with defendant winning at first and then Richardson. According to Dorris, defendant ran out of money and he then reached into his pocket as if to get more money, but instead defendant brandished an automatic weapon. Smith had not been paying much attention to the game, but when he looked up, defendant was holding a 9mm Browning automatic handgun and pointing it at him. Defendant told them to raise their hands and to put their money and car keys on the table. Everyone complied with defendant’s demand except for Norris. Defendant then specifically asked Smith, “Where are all your $100 bills?” Smith told him that he put all the money he had on the table. Defendant told Smith, “If I don’t get them $100 bills, I am going to blow you away.” Sometime after defendant had pulled the gun and the time that the shooting began, Norris told the defendant to “Hurry up, man!”

In searching Smith, defendant discovered two guns, a .25-caliber automatic and a .357 magnum. He took both guns from Smith. The .357 magnum was either in the defendant’s hand or on the table in front of the defendant. After the guns had been taken from Smith, Richardson placed about $200 on the table. Overall, the witnesses estimated that about $300 to $400 had been placed on the table. Most of the money that was used to gamble with was in denominations of $5, $10 and $20 bills.

After the money had been placed on the table, according to Dorris, defendant was going to search him. Smith testified that defendant looked towards the door and when the defendant turned his attention away from Richardson, Richardson pulled a .25-caliber automatic pistol similar to the one that defendant had taken from Smith. Richardson directed an obscene remark to the defendant and then shot him at least three times. Just prior to the commencement of the shooting, Dorris and Durham began to run out of the room. After Richardson shot at defendant, Smith upended the table and ran out of the room. More shots were heard by Dorris and Smith after leaving the house. Based on the reports, Dorris testified that two different types of guns had been shot, one sounded louder than the other. Dorris then went to a neighbor that he knew in the vicinity and used the telephone to call the police. Smith ran out of the home, stopped and looked back and observed a long white car pull away. He had earlier seen it with defendant and Norris in it, but was unable to see who was in the vehicle at the time it was driven away.

Smith then returned to the house and reentered the room where the shooting occurred. He saw Richardson lying on the floor, checked his pulse and determined that he was dead. Smith found a .25-caliber automatic pistol lying on the windowsill. He did not know if it was Richardson’s or his. Smith took the gun and threw it in the woods to the east of the house. He later informed the police of what he had done, and although efforts were undertaken to recover the gun, it was never found.

Rosemary Durham also reentered the room and Smith told her that Richardson was dead. After throwing the gun into the woods, Smith took Durham to town in Richardson’s car. Smith took Durham to town because he did not want her to become involved in the shooting. All of these events took place in about 20 minutes.

When Smith returned to the scene, he attempted to call the police from a home directly across the street; however, the police arrived as he was on the phone and he returned to the scene. When Dorris called the police, he told them that Norris had shot someone because he did not know the defendant’s name.

After the police arrived certain physical evidence was recovered, including a projectile from a door jam just above the strike plate on the kitchen door and a .38-caliber spent projectile from the basement of the residence. Also recovered were six spent .25-caliber shell casings, a copper jacketed bullet from just inside the left leg of the victim, a nickle-plated 9mm Browning automatic pistol, some loose change and a wristwatch. Outside the home, officers recovered two $1 bills and some broken car glass with blood on it.

An autopsy revealed that the decedent, Richardson, died of multiple gunshot wounds and three .38-caliber projectiles were removed from the victim’s body.

A forensic scientist testified that all of the .38-caliber spent projectiles from the residence and the decedent’s body could have been fired from the same gun. Ballistic tests further revealed that the .38-caliber projectiles had not been fired from the 9mm Browning automatic initially possessed by the defendant.

The ballistics expert further testified that many types of firearms could fire a .38-caliber projectile. A weapon chamber for a .357 magnum cartridge (such as the weapon taken by defendant from Smith) can fire a variety of .38-caliber cartridges. A projectile fired from a .38-caliber and a projectile fired from a .357 magnum would exhibit similar characteristics.

A University of Chicago police officer who worked at the emergency room at Billings Hospital in Chicago, testified that on October 21, 1979, two men wheeled a third man into the emergency room. The officer was informed that the man in the wheelchair had been shot. After the man had been wheeled into the trauma room, his personal effects were inventoried and it was determined that the wounded individual had $560 on him. The money was dirty and lumped together in a crumpled-up ball. The denominations consisted of $20’s, $10’s, $5’s and two $1 bills. The officer also testified that he recognized a photograph of George Norris as the heavyset individual, who walked with a slight limp, as one of the men who wheeled the defendant into the emergency room.

The Chicago Police Department conducted a preliminary investigation at Billings Hospital into the shooting of defendant. The defendant was asked who shot him, and made no reply. The defendant was asked if a man shot him, and the defendant said “No.” The defendant was then asked if defendant was shot by a woman, and defendant replied “Yes.” Defendant would say nothing more to the police at that time.

The Chicago Police Department did a follow-up investigation later on the afternoon of October 21, 1979. An officer spoke with the defendant while the latter was in X ray. Defendant stated that he was shot at 63d and Cottage Grove in Chicago and that he did not know who shot him. The officer asked if it was a woman and defendant replied that he did not know. Defendant then told the officer that he was tired and did not want to talk any more.

When the defendant was served with an arrest warrant in the hospital he denied any knowledge of the alleged shooting incident. Later, during transit from the Cook County jail to the Will County jail, the defendant stated “I don’t know why I’m being charged with this when the other guy shot me three times and almost killed me.”

Defendant claimed that after he caught Richardson switching dice (the switch came after the defendant had already lost $100), Richardson shot him three times. Although wounded, the defendant reached across the table and grabbed Richardson and struggled to get the gun. It was then that another person entered the room and fired three shots at the defendant. The defendant said that he shielded himself with Richardson’s body and as a result, Richardson was killed. Defendant also claimed that since he checked into the hospital under his real name, such a fact necessarily proves that he was telling the truth.

Defendant levies numerous attacks on the People’s evidence attempting to discredit it. He first focuses upon the credibility of Smith and Dorris, claiming that they were both disreputable characters. The basis of this assertion is that Smith and Dorris were engaged in criminal enterprises, including gambling, carrying concealed weapons, etc. We note that like Smith and Dorris, defendant was also engaged in the same criminal enterprises on the night of the instant occurrence: gambling and illegally carrying a concealed weapon.

Defendant’s argument that he was not proved guilty beyond a reasonable doubt is essentially the same argument which was presented to and considered by the jury, which by its verdict resolved such questions as conflicting evidence and the credibility of the witnesses in favor of the State. These ultimate issues are properly to be considered and weighed by a jury. People v. Arndt (1972), 50 Ill. 2d 390, 280 N.E.2d 230.

In cases where the evidence is irreconcilably conflicting, it is the peculiar prerogative of the trier of fact to ascertain the truth. (People v. Hammond (1970), 45 Ill. 2d 269, 259 N.E.2d 44.) Thus, the trier of fact is not bound to believe testimony of the defendant as against the State’s evidence in a case where the evidence is conflicting. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.) When a trier of fact renders a decision based upon credible and substantial evidence, which we believe was sufficient here to support the conviction, the verdict may not be lightly set aside merely because the trier of fact chose to believe the testimony presented by the State rather than that presented by the defendant. People v. Martinez (1978), 62 Ill. App. 3d 7, 377 N.E.2d 1222; People v. Slaughter (1980), 84 Ill. App. 3d 1103, 405 N.E.2d 1295.

The defendant’s second issue raised on appeal concerns the propriety of the trial court’s decision not to give defendant’s tendered instruction on self-defense to the jury. The jury was instructed on self-defense, however, when IPI Criminal Jury Instruction No. 24.06 was read to them as follows:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or the commission of a forcible felony.” Illinois Pattern Instruction, Criminal, No. 24.06 (1968) (hereinafter cited as IPI Criminal).

Defendant argues that the issues instructions on murder (IPI Criminal No. 7.02) should have been adapted in accordance with IPI Criminal No. 25.05 and that the phrase “without legal justification” should have been added to IPI Criminal No. 7.01 for the definition of murder. IPI Criminal, at 435-36.

The People contend that despite the fact that the prosecutor at trial submitted the self-defense instruction (IPI Criminal No. 24.06), which was given without objection, no evidence of self-defense was ever presented. Such a claim is based upon their analysis that since the defendant’s version of the killing included the defendant using the murder victim as a shield from shots fired from an alleged unknown assailant, the sine qua non, the defendant’s admission of the killing as the basis for a reasonable belief that the exertion of such force was necessary, was never presented. People v. Tanthorey (1949), 404 Ill. 520, 89 N.E.2d 403; People v. Lahori (1973), 13 Ill. App. 3d 572, 300 N.E.2d 761.

While we believe such a theory propounded by the State is indeed a novel approach to the subject of the availability of self-defense, we are inclined to reject its application at least to the case at bar. We believe that the issues instruction defining the offense of murder should have included the question of “legal justification” since the defendant’s version of the victim’s killing constituted some evidence of self-defense. (People v. Sunquist (1977), 55 Ill. App. 3d 263, 370 N.E.2d 864; People v. Wright (1974), 24 Ill. App. 3d 536, 321 N.E.2d 52.) However, we note that defendant has also alleged, and we believe properly so, that despite the fact that no sentence was imposed as a result of his murder conviction, the conviction itself must be set aside in any event pursuant to the authority of People v. Miller (1980), 89 Ill. App. 3d 973, 412 N.E.2d 175 (supervisory order No. 54338 vacating conviction for murder while allowing felony murder conviction to stand). The issue therefore of whether the defendant was denied a fair trial on the charge of murder because of the alleged improper jury instruction would appear to be moot, if the conviction for murder is subsequently set aside. And since the claim of self-defense is not available to one who participates in a forcible felony (such as felony murder) (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 4(a); People v. Gates (1977), 47 Ill. App. 3d 109, 361 N.E.2d 809), any error stemming from the failure to instruct the jury on the question of self-defense regarding the charge of murder could not have had any prejudicial effect or impact on the jury’s deliberations with respect to the charges of felony murder and armed robbery.

The foregoing holding applies equally to the defendant’s allegation that the trial court erred in refusing to give defendant’s tendered instruction for voluntary manslaughter. While voluntary manslaughter is an included offense of murder (People v. Pierce (1972), 52 Ill. 2d 7, 284 N.E.2d 279), it is not an included offense of felony murder (People v. Weathers (1974), 18 Ill. App. 3d 338, 309 N.E.2d 795). Hence, even if it was error to refuse to give the defendant’s tendered manslaughter instruction in connection with the murder charge, such error could not, as a matter of law, have affected the jury’s deliberations regarding the felony murder and armed robbery charges.

The defendant also contends that the trial court erred in refusing to instruct the jury regarding an initial aggressor’s use of force. (IPI Criminal No. 24.09.) Again, since we have agreed with defendant that his murder conviction must be set aside, and since a person is not justified in the use of force if he is committing a forcible felony (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 4(a)), the defendant’s tendered instruction would necessarily have been refused with regard to the charges of felony murder and armed robbery.

Defendant claims the prosecutor’s closing and rebuttal arguments were improper and amounted to prejudicial error. Upon a review of the record, it is readily apparent that certain comments cited in the defendant’s brief to support his prejudicial claim were not objected to at trial. Because the errors claimed by defendant have been claimed for the first time on appeal, the People submit that the defendant has waived any error in these various statements by failing to raise a timely objection.

The failure to make a timely objection to allegedly improper remarks of the prosecutor effects a waiver of the objection. People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.

Defendant attempts to salvage the matter by asserting that the cumulative effect of the comments was prejudicial and therefore should be considered as a matter of plain error. It is well settled that only when the remarks complained of result in substantial prejudice is reversal required. (People v. Kitchen (1977), 53 Ill. App. 3d 521, 368 N.E.2d 528.) Even though the court may relax the waiver rule, the case should not be reversed unless those portions of the closing argument of the prosecutor, which were not objected to a trial, were so prejudicial and inflammatory that they have deprived defendant of a fair trial and were a material factor in the guilty verdict of the jury. People v. Simmons (1974), 21 Ill. App. 3d 310, 315 N.E.2d 226.

The comments complained of did not distort the law or obscure the State’s burden of proof in the minds of the jury. The comments were not so prejudicial and inflammatory that they deprived defendant of a fair trial, nor were the comments a material factor in the jury’s guilty verdict. Moreover, defendant has not established any actual prejudice stemming from the prosecutor’s comments now objected to for the first time on appeal. A general assertion of prejudice does not establish such a fact, but is nothing more than mere speculation in the absence of actual prejudice. (People v. Walker (1974), 24 Ill. App. 3d 421, 321 N.E.2d 114.) Hence, none of the comments were so inflammatory or prejudicial as to deny defendant a fair trial. The prosecutor’s argument does not therefore constitute plain error.

The first objection levied by defendant refers to a series of comments relating to the prosecutor’s theory that George Norris was defendant’s accomplice in the armed robbery. The four comments made were based on the testimony of Dorris and the reasonable inferences deducible therefrom. Thus, the comments were legitimate and proper argument. People v. Hill (1977), 45 Ill. App. 3d 14, 358 N.E.2d 1350; People v. Butler (1974), 21 Ill. App. 3d 331, 315 N.E.2d 144.

Of the four statements, only once did the prosecutor mention that Jon Smith testified about Norris’ conduct. Although Smith never testified as argued by the prosecutor, such a minor misstatement could not have had much of an impact upon the jury. The comment was an isolated remark. Moreover, the underlying factual content of the statement was premised upon the evidence adduced at trial regardless of who stated it. As noted, the prosecutor’s misstatement was not objected to by trial counsel. Furthermore, the jury was instructed that any statement made in closing argument by the attorneys which was not based on the evidence should be disregarded. Under the totality of the circumstances, no reversible error has occurred.

Defendant also complains about the prosecutor’s rebuttal argument regarding certain spent cartridges found in Smith’s vehicle. The defense argued that the cartridges found in Smith’s car indicated that Smith may have been responsible for shooting Richardson. No evidence was presented linking the spent cartridges to the shots which killed Richardson. While there was no evidence to support the defense theory, the argument was presented anyway. The prosecutor, based upon reasonable inferences from the record, merely postulated a contrary theory explaining the presence of the cartridges in Smith’s vehicle. The prosecutor’s argument was made solely to rebut defense counsel’s contentions. Hence, defendant invited the prosecutor’s response and, accordingly, no error occurred. People v. White (1980), 88 Ill. App. 3d 788, 410 N.E.2d 1082; People v. Hine (1980), 88 Ill. App. 3d 671, 410 N.E.2d 1017; People v. Dunning (1980), 88 Ill. App. 3d 706, 410 N.E.2d 1052.

Defendant next argues that the prosecutor made inflammatory remarks during his closing argument when he referred to the racial composition of the men who were gambling. The People contend that the prosecutor was not attempting to appeal to the prejudices of the jury. The defense at trial dwelled at great length about the fact that Smith possessed two guns that evening. The prosecutor’s argument was an apparent attempt to explain why Smith was carrying these weapons on the night in question. The remarks, although referring to race and better left unsaid, were general in nature and were not a direct slur against the defendant designated to arouse the prejudice of the jury (which we note was composed of both white and black people). Moreover, defense counsel himself injected racial overtones into his closing argument. Accordingly, under the circumstances, no reversible error occurred as a result of the prosecutor’s reference to race. People v. Gary (1976), 42 Ill. App. 3d 357, 356 N.E.2d 135.

Additionally, if any error resulted from the prosecutor’s isolated reference to race, it was cured by the trial judge’s sustainment of defense counsel’s timely objection to the comment. People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

In reading the prosecutor’s closing argument in toto, we believe that the prosecutor’s argument was within the generally accepted bounds of legitimate and proper comment, and having arrived at this determination, it logically follows that there is no merit in defendant’s assertion that the unobjected-to remarks of the prosecutor constituted plain error.

Finally, defendant contends that his convictions for murder and armed robbery must be vacated as lesser included offenses of felony murder. (People v. Miller (1980), 89 Ill. App. 3d 973, 412 N.E.2d 175 (supervisory order No. 54338 vacating conviction for murder while allowing felony murder conviction to stand); People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823.) We agree.

For the foregoing reasons, the defendant’s conviction and sentence for felony murder is affirmed, while his convictions for murder and armed robbery are reversed and the sentence for armed robbery is vacated.

Judgment affirmed in part, reversed in part.

ALLOY, J., concurs.

PRESIDING JUSTICE BARRY,

specially concurring:

I concur with the majority opinion on the substantive issues generally.

On the instruction issue, I believe that the majority has properly found error in the trial court’s failure to include the phrase “without legal justification” in the issues instruction on murder. I part company with the majority in its treatment of the instruction issue as “moot.” I would, instead, find reversible error (People v. Sunquist (1977), 55 Ill. App. 3d 263, 370 N.E.2d 864) with respect to the defendant’s conviction of murder. However, I believe the majority correctly finds that this error did not taint the defendant’s convictions of felony murder and armed robbery. Those convictions should not, therefore, be reversed on speculation that they “must have been” tainted, as suggested by the defendant on appeal. Accordingly, I would reverse the defendant’s murder conviction on the basis that it was obtained as a result of reversible error in the issues instruction. We are left with the felony murder conviction and sentence standing alone, because, as the majority correctly concludes, the armed robbery conviction was a lesser-included offense of felony murder.

I do not believe that the majority has properly interpreted the supervisory order in People v. Miller (1980), 89 Ill. App. 3d 973, 412 N.E.2d 175. That order merely stated that “one conviction for murder” was to be vacated. In People v. Bone (1982), 103 Ill. App. 3d 1066, 432 N.E.2d 329, we held that, as between intentional murder and felony murder, felony murder is the less serious or “included” offense. Applying the Bone rationale to this case, and given the fact that the majority does not find reversible error in the issues instruction on murder, the felony murder conviction — not the intentional murder conviction — would have to be vacated. Furthermore, since armed robbery is not a lesser-included offense of intentional murder, the defendant’s conviction therefor would not be subject to vacatur, lacking other reversible error. Obviously, by my view, the majority result cannot be reconciled with Bone. Nonetheless, for the reasons given, I concur in the result reached by the majority.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    ROLLAND RAY ROTHERT, a/k/a Rolland R. Rothert, Plaintiff-Counterdefendant-Appellant and Cross-Appellee, v. ROBERT HENRY ROTHERT, Indiv. and as Adm’r of the Estate of Emma E. Rothert, Deceased, et al., Defendants-Counterplaintiffs-Appellees and Cross-Appellants.—(Rolland Douglas Rothert et al., Defendants-Appellees.)
    Fourth District
    No. 17535
    Opinion filed October 20, 1982.
    Rehearing denied November 12, 1982.

      Edward F. Casey, of Casey & Casey, of Springfield, for appellant.
    Kenneth H. Otten, of Nafziger & Otten, of Springfield, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

We deal here with owelty.

Owelty is “the amount paid or secured by one owner to another to equalize a partition of property in kind.” Webster’s Third New International Dictionary 1612 (1976).

BACKGROUND

This partition action involves two farms in Sangamon County. The farms are owned by two brothers and a sister: plaintiff, Holland Rothert, and defendants, Robert Rothert and Kathryn Hill (previously Kathryn Rothert). The parties inherited the farms from their father, William Rothert, who died intestate in 1922. William’s survivors were his wife, Emma Rothert-, and his three children, Holland, Robert, and Kathryn. Emma died in 1973 and son Robert acted as the administrator of her estate. Plaintiff Holland has farmed the 160-acre farm in Chatham Township (the Auburn farm) for more than 30 years. Defendant Robert has farmed the 114-acre farm in Cartwright Township (the Pleasant Plains farm) for more than 30 years and has lived on the farm for substantially all of his life.

In. 1978, plaintiff filed a complaint in chancery in case number 158— 78 seeking partition of the Auburn farm and reimbursement for two-thirds of the costs of improvements made thereon. The major improvements were a new barn, four new grain bins, and a basement that was finished off as living quarters. Named as defendants in this case were Robert Rothert (individually and as administrator of the estate of Emma Rothert), Oda Rothert (Holland’s -wife), Holland Douglas Rothert (Holland’s son), and Kathryn Hill. Defendants Robert and Kathryn filed an answer and counterclaim seeking partition and other relief including an accounting of the farm operation over a period of years.

Also in 1978, Holland filed a complaint in partition in case number 159— 78, seeking partition of the Pleasant Plains farm. Robert, Kathryn, and Jean Rothert (Robert’s wife) were named as defendants in this case. General Telephone Company of Illinois was also named as a defendant because of an alleged easement. Again, defendants Robert and Kathryn filed an answer and a counterclaim seeking partition. Robert also sought a lien for improvements he had made on the property and reimbursement from plaintiff for crop expenses.

The two cases were consolidated by court order and tried on September 17 and 18, 1980. A judgment of partition was entered on December 9, 1980, in the consolidated cases. It was adjudged that Holland, Robert, and Kathryn each owned an undivided one-third interest in each of the farms. It was further adjudged that Holland was entitled to the enhanced value of the south 80 acres of the Auburn farm for having constructed the basement home. Upon partition in kind, the court ordered that the basement home be included in the parcel assigned to Holland without charging him for the enhanced value.

Pursuant to article XVII of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 17 — 101 et seq.) (Partition Act), three commissioners were appointed and ordered to partition the premises. The commissioners submitted a 48-page appraisal to the court with a letter stating that there could not be a reasonably equitable division of the farms using land only. However, in the letter, the commissioners recommended a division, based on the appraisal, using land and cash.

The recommendation was as follows:

Holland filed objections to the commissioners’ report, maintaining that the value assigned to the Auburn farm was improper because of the addition of $300 per acre for coal underlying the farm. He also objected to the commissioners’ recommendation of a division in kind with cash payments.

Following a hearing on the objections, the trial court discounted the value of the coal on the Auburn farm as being too speculative and determined that certain improvements should not have been included in the value of the Pleasant Plains farm but otherwise confirmed the commissioners’ report. The court ordered that Robert be awarded the 114-acre Pleasant Plains farm, that Kathryn be awarded the north 80 acres of the Auburn farm, and that Holland be awarded the south 80 acres of the Auburn farm. Robert was ordered to make payments of $12,260 each to Holland and Kathryn to equalize the division of the farms. The judgment was based on the following calculations:

The trial court subsequently made an express written finding pursuant to Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)) that there was no just reason for delaying enforcement or appeal.

Plaintiff appeals from the judgment of the trial court and asks this court to reverse the judgment and order a public sale of the farms, or in the alternative, order that a new trial be granted. Defendants cross-appeal from that part of the judgment that discounts the value of the coal in the valuation of the Auburn farm. Defendants also cross-appeal from an award of attorney fees to plaintiff.

I

Plaintiff argues that the trial court’s judgment, ordering an unequal division of the farms with payments of owelty, was improper.

Section 17 — 106 of the Partition Act (Ill. Rev. Stat. 1981, ch. 110, par. 17 — 106) provides that, when a court orders partition, it shall appoint three commissioners to make the partition. The commissioners are to allot “the several shares to the respective parties, quality and quantity relatively considered, according to their respective rights and interests as adjudged by the court ***.” (Ill. Rev. Stat. 1981, ch. 110, par. 17 — 108.) If the commissioners find the premises are not susceptible of division without manifest prejudice to the parties, the commissioners are to value each piece of property separately. The commissioners are then directed to make a written report to the court showing what they have done. (Ill. Rev. Stat. 1981, ch. 110, par. 17— 109.) Section 17 — 116 of the Act (Ill. Rev. Stat. 1981, ch. 110, par. 17 — 116) provides that if the commissioners report that the premises cannot be divided without manifest prejudice to the owners, the court shall order the premises sold at public sale.

The Partition Act makes no reference to an unequal division of the premises with a payment of owelty. However, the inherent power of the court sitting in equity to make such a division has long been recognized. (Stortz v. Ruttiger (1911), 249 Ill. 494, 94 N.E. 181; see Miller v. Miller (1980), 88 Ill. App. 3d 893, 411 N.E.2d 118.) The law favors a division of land in kind, rather than a division of proceeds from a sale of the land and, therefore, an unequal division with owelty is preferred over a sale of the premises. See Harris v. Johnson (1976), 42 Ill. App. 3d 751, 356 N.E.2d 1107; Miller.

Plaintiff argues that the trial court’s order must be reversed because the commissioners were not authorized by the trial court to recommend an unequal division with owelty and that their “unauthorized” recommendation in some way negated the court’s inherent power in equity to enter such an order. Plaintiff quotes language from Stortz which purportedly imparts merit to this argument.

In Stortz, a suit was brought for the partition of 66 acres of land. The plaintiff owned an undivided one-third interest in the land and the defendant owned an undivided two-thirds interest. Commissioners were appointed and reported that they had allotted and set off to the plaintiff 22 acres and to the defendant 44 acres. They further reported that the premises were not susceptible of any other division without manifest prejudice to' the parties and that in order to make the division fair and equitable the defendant should be required to pay the plaintiff $1,166 as owelty. The defendant filed several objections to the report. These objections were overruled by the trial court and a decree was entered confirming the report of the commissioners. The supreme court reversed and remanded the decree of the trial court and stated:

“While this court has held a court of equity may decree a pecuniary sum as owelty in order to equalize the shares of the parties in a partition [citations] the power to do this is in the court and not the commissioners. Before an unequal partition can be ordered made and equalized by awarding owelty it must be so ordered by the court, and where the parties do not agree, the amount of owelty must be fixed and determined by the court. Unless otherwise ordered by the decree the commissioners must divide the premises equally between the parties according to their respective rights, and if they cannot do that without prejudice to the parties they cannot make partition but must value each tract or parcel and so report to the court. ‘The court must see that the requirement of owelty is equitably necessary, that the amount required is fair, and that its payment is not so imposed upon a party as to be unreasonably burdensome, considering both the condition of the property and the party.’ [Citation.]” 249 Ill. 494, 499-500, 94 N.E. 181,183.

Apparently, the commissioners in Stortz, after finding that the land was not susceptible to equal division, failed to value the parcels of land. Without such a valuation, the trial court had no basis for determining whether owelty was necessary or whether the amount recommended by the commissioners was fair and reasonable. For this reason, it was necessary for the supreme court to reverse and remand the order for the commissioners to value the land as they were originally instructed by the trial court’s decree.

In the present case, the commissioners did what they were directed to do. They inspected the land, determined that it was not susceptible to an equal division without manifest prejudice to the parties, valued the land and then reported their findings to the trial court. The commissioners’ report provided the trial court with sufficient information to determine whether owelty was necessary and to determine the amount of owelty that would be fair and reasonable. The fact that the commissioners suggested a division of property using land and cash is of little moment. Given the values of the two farms, it was a simple matter of arithmetic to derive the pecuniary amounts that would be required to equalize the shares when the two farms were divided among the three parties. The trial court was more than competent to make such a calculation without the aid of the commissioners and, therefore, the fact that the commissioners volunteered the calculations is insignificant. Furthermore, the commissioners must have made similar calculations in the process of determining whether an equal division was feasible and, consequently, the calculations could have been properly included in the report to show that an equal division was not possible.

While it would have been better practice for the trial court to provide in its order authorization for the commissioners to recommend an unequal division of land with owelty, the failure to do so does not constitute reversible error on the facts of this case.

II

After the hearing of plaintiff’s objections to the commissioners’ report, the trial court determined that the commissioners incorrectly included in the value of the Auburn farm $300 per acre based on the coal underlying the farm. The trial court found that the value of the coal was speculative and discounted the value of the Auburn farm by $300 per acre. Defendants cross-appeal from this portion of the trial court’s judgment and ask that the commissioners’ valuation of the Auburn farm be reinstated.

The commissioners’ findings will not be sustained if they are against the manifest weight of the evidence. (See Anderson v. Anderson (1978), 62 Ill. App. 3d 468, 378 N.E.2d 1079.) In the present case, one of the commissioners testified at the hearing of objections to the commissioners’ report that the $300-per-acre figure for the coal was obtained by contacting a secretary at Nicor Minerals, Inc., who indicated that the “fee simple value of those coal rights at the date of the appraisal was $300 per acre.” However, the commissioner also testified that, after the date of the appraisal, he spoke with the secretary and the land manager at Nicor and they indicated that Nicor was no longer seeking fee simple rights in coal but only leases.

It is evident that the commissioners’ report was based on the fact that, at one time, Nicor Minerals, Inc., was offering to buy fee simple interests in coal rights at $300 per acre. Since these offers no longer existed at the time of the hearing, the addition of $300 per acre to the value of the Auburn farm based on the coal rights was against the manifest weight of the evidence. Accordingly, we affirm the trial court’s decision discounting the value of the coal rights in determining the value of the Auburn farm.

Ill

Defendants cross-appeal from the trial court’s judgment awarding attorney fees to plaintiff. The judgment states that plaintiff “shall recover as costs his reasonable attorney fees and costs incurred herein, as heretofor provided in paragraph H of judgment entered December 9, 1980; determination of the amount thereof is reserved.” Paragraph H of the December 9 judgment provided that plaintiff “shall recover as costs his reasonable attorney fees and costs incurred herein; determination of the amount thereof is reserved.”

Neither party has addressed the issue of whether this part of the judgment is appealable. Nevertheless, the appellate court has a duty to consider its jurisdiction to hear an appeal whether or not the issue has been raised by the parties. E. M. Melahn Construction Co. v. Village of Carpentersville (1981), 100 Ill. App. 3d 544, 427 N.E.2d 181.

In Laterza v. Murray (1954), 2 Ill. 2d 219, 117 N.E.2d 779, the trial court, in a partition action, allowed attorney fees and costs to the plaintiff but reserved jurisdiction for an accounting to determine the amount of the allowance. The defendant appealed from the trial court’s decree ordering the partition of the premises and also challenged the award of attorney fees to the plaintiff. The supreme court said, “Since no allowance was ordered, and determination of the matter was reserved in the circuit court, there is nothing for this court to review in this respect.” (2 Ill. 2d 219, 223, 117 N.E.2d 779, 782.) The supreme court affirmed the decree of the circuit court.

We follow the supreme court’s decision in Laterza and hold that the issue of attorney fees is not reviewable at this time.

The judgment of the trial court is affirmed.

Affirmed.

GREEN, RJ., and TRAPP, J., concur.


author: JUSTICE GOLDBERG

text:
    BOARD OF TRUSTEES OF THE FIREMEN’S PENSION FUND OF THE CITY OF PARK RIDGE et al., Plaintiffs-Appellants, v. THE DEPARTMENT OF INSURANCE et al., Defendants-Appellees.
    First District (1st Division)
    No. 81—2862
    Opinion filed October 4, 1982.

      Paul N. Keller, of Park Ridge, for appellants.

      Tyrone C. Fahner, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

The Board of Trustees of the Firemen’s Pension Fund of the city of Park Ridge, the Park Ridge Professional Firefighters’ Association, and the city of Park Ridge (plaintiffs) brought this action for administrative review (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) of a final decision by the Director and a hearing officer of the Department of Insurance of the State of Illinois (defendants). The decision by the defendants, which required the plaintiff Board of Trustees to assess contributions to the pension fund upon the compensation paid to the city’s firemen-paramedics, was affirmed by the trial court. Plaintiffs appeal.

A contract between the city of Park Ridge and the Park Ridge Professional Firefighters’ Association covered the period from May 1, 1977, through April 30, 1979, and thereafter until changed by the parties. The contract provided for specific annual salaries for the city’s firemen according to their rank. In addition, the contract provided that “As an incentive for Firemen to become certified and maintain qualifications as a Paramedic” the city agreed to pay up to 18 firemen who met established standards for paramedics “a bonus of $700 annually payable on a quarterly basis.” This amount was payable until the recipient was permitted by the department head to become inactive as a paramedic after completion of a minimum term of four years.

A hearing was held on February 27, 1980. The hearing officer found the additional money paid to the firemen-paramedics was “salary” within the meaning of the Illinois Pension Code, and not a “bonus.” The hearing officer recommended the Board of Trustees take steps to assess payroll deductions pursuant to section 4 — 124 of the Code (Ill. Rev. Stat. 1977, ch. 108½, par. 4 — 124). On May 1, 1980, the Director of the Department of Insurance adopted the findings of the hearing officer.

I

Plaintiffs first contend Park Ridge paramedics are specifically excluded from the statutory definition of “fireman” as found in the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. 108½, par. 4 — 101 et seq.). The Code defines “fireman” as (Ill. Rev. Stat. 1979, ch. 108½, par. 4 — 106(c)):

“*** any person employed by a city in its fire service as a fireman, fire engineer, marine engineer, fire pilot, bomb technician, or scuba diver; and, in any of these positions whose duties also include those of a fireman and are certified in the same manner as a fireman in that city; ***.”

Because this statute does not include “paramedics,” plaintiffs take the position that the use of the statutory phrase “these positions” indicates all others must be excluded from this definition. (See Shanahan v. Policemen’s Annuity & Benefit Fund (1976), 43 Ill. App. 3d 543, 357 N.E.2d 582.) Plaintiffs also urge that although paramedics are also qualified as firefighters, they receive their compensation from the “ambulance service” division of the entire fire department budget and they do not perform routine firefighting duties. Therefore, plaintiffs maintain paramedics do not fall within this statutory definition.

We disagree. First, we do not agree the intention of the legislature in drafting section 4 — 106 was to include only those particular specialties named. It has been held such pension statutes are to “be liberally construed in favor of those to be benefited.” (Board of Trustees of the Policemen’s Pension Fund of the Village of Oak Brook v. Department of Insurance (1976), 42 Ill. App. 3d 155, 159, 356 N.E.2d 171.) Furthermore, the contract between the city of Park Ridge and the Firemen’s Association specifically provides that only firefighters who met standards for paramedics “in addition to all other [fjiremen’s responsibilities” would be certified as paramedics. It is also undisputed Park Ridge paramedics contributed to the firemen’s pension fund out of the non-“bonus” portion of their salary. Thus, we cannot agree the statute provides that certification of firefighters as paramedics alters their status so as to exclude them from being “firemen.”

II

Plaintiffs next contend that even assuming a paramedic is a fireman within the framework of section 4 — 106(c), the additional paramedic compensation is not subject to pension deductions. Plaintiffs cite the section of the Pension Code which requires the Board of Trustees (Ill. Rev. Stat. 1979, ch. 108½, par. 4 — 124):

“[tjo assess each fireman [a specified percentage] of salary including longevity attached to the rank held by the fireman as established by the municipality appropriation ordinance, but does not include ‘overtime pay’, ‘holiday pay', ‘bonus pay’, ‘merit pay’, or any other cash benefit over and above the salary established by the appropriation ordinance, which sum is to be deducted and withheld from the pay or fees of each fireman so assessed.”

Plaintiffs contend the designation of the paramedic compensation as “bonus” pay specifically excludes it from the pension deductions as detailed in the above statute. Plaintiffs further contend the “paramedic bonus” is excluded by not being “salary attached to the rank held by the fireman.”

In our opinion, the $700 paid Park Ridge paramedics must be construed as “salary” rather than “bonus.” Our courts define “salary” as “ ‘a fixed, annual, periodical amount payable for services and depending upon the time of employment and not the amount of services rendered.’ ” (Board of Education v. Chicago Teachers Union Local 1 (1980), 89 Ill. App. 3d 861, 866, 412 N.E.2d 587, reversed on other grounds (1981), 88 Ill. 2d 63, 430 N.E.2d 1111, quoting In re Sanitary District Attorneys (1932), 351 Ill. 206, 274, 184 N.E. 332. See also John v. City of Woodstock (1981), 99 Ill. App. 3d 206, 425 N.E.2d 490.) The additional sum “of $700 annually” is paid to paramedics “on a quarterly basis” according to the contract. Firemen are to receive this additional amount “prorated based upon the date they complete all training *** and are authorized *** to assume full [paramedic responsibilities.” The paramedic continues to receive this amount until he requests, and is permitted, to become “inactive as a [p]aramedic.” These factors demonstrate that when the fireman is certified as a paramedic, his fireman’s salary including the paramedic sum becomes the total amount due him under the contract.

As a complete contrast, “bonus” is defined as “money *** given in addition to the usual compensation.” (Webster’s Third New International Dictionary 252 (1971).) The gap between an ordinary bonus and a regular salary is widened by legal definitions of “bonus.” Black’s Law Dictionary 165 (5th ed. 1979) contains several definitions of “bonus.” For example: “A gratuity to which the recipient has no right to make a demand.” Another definition is: “A premium or extra or irregular remuneration in consideration of offices performed or to encourage their performance.” Or, “An addition to salary or wages normally paid for extraordinary work.”

Thus, the entire total received constitutes the fireman’s “salary” as defined by the statute. Plaintiffs urge such a finding runs directly contrary to the designation of this sum by the parties as “bonus.” We are not, however, bound by the terminology used by the parties. We are required to look beyond that to the actual legal character of the compensation. (See Commonwealth Life & Accident Insurance Co. v. Board of Review (1953), 414 Ill. 475, 483-84, 111 N.E.2d 345.) In reaching this conclusion we are constrained to look “to the facts rather than to the self-serving characterizations of the parties.” Mississippi River Fuel Corp. v. Illinois Commerce Com. (1953), 1 Ill. 2d 509, 524,116 N.E.2d 394.

Plaintiffs cite Oak Brook, 42 Ill. App. 3d 155, in support of their contentions the paramedic compensation is neither “salary” nor “salary attached to the rank” of paramedic. In Oak Brook, the dispute was whether “merit increases” were exempt from policemen’s and firemen’s pension deductions under sections 3 — 125 and 4 — 124 of the Pension Code (Ill. Rev. Stat. 1973, ch. 108½, pars. 3 — 125 and 4— 124). The Oak Brook court noted the contract between the village and the municipal employees provided for salary increases of up to 10% per year based on departmental recommendation. The pay increase was then “added to the employee’s former salary and that total was appropriated by ordinance as the annual salary for the employee. It merged into and became the employee’s ordinary salary for the next year, was permanent and vested in the employee.” (42 Ill. App. 3d 155, 157.) These increases replaced both longevity and cost-of-living pay increases. This court ruled these salary increases were subject to pension deductions and differed from the “merit pay” excluded by the Code. We held the intention of the legislature was to exclude “merit pay” over and above the salary established by the municipal ordinance.

Plaintiffs attempt to differentiate this ruling from the instant case by arguing the paramedic “bonus” is neither permanent nor vested in the Park Ridge firefighter. Plaintiffs claim the bonus may be terminated at will if the individual is deemed no longer qualified and also note the instant agreement covered only a two-year period. Plaintiffs also deny the bonus “merges into” the salary for the following year. Rather, plaintiffs assert salary increases will be calculated only on the employee’s base salary, and not the salary plus the bonus.

We do not find these attempted distinctions convincing. First, under the contract between the parties, once a firefighter is certified as a paramedic, he is entitled to the additional compensation unless he requests inactive status or permits his qualifications to lapse. The contract, while effective from May 1, 1977, through April 30, 1979, remains effective “from year-to-year thereafter until changed by mutual agreement.” The funds for the “bonus” are specifically appropriated in the Park Ridge ordinance. Thus, we reject the contention the Oak Brook case does not support the decision of defendants.

Ill

Plaintiffs urge that Rule B3 — 125 promulgated by the Department on March 30, 1979, lacks legislative authority. Section 3 of the rule provides:

“If the municipality’s appropriation ordinance assigns a salary to a policeman’s or fireman’s rank that salary, as regularly received by the policeman or fireman, shall be used to determine salary contributions and pension computations. Otherwise, salary shall include all regularly received salary attached to rank. The word ‘rank’ is not limited to civil service ranks but includes all specialty ranks such as ‘Detective,’ ‘Juvenile Officer,’ ‘Special Instructor,’ ‘Shift Commander,’ ‘Training Officer,’ ‘Chief,’ ‘E.M.T.,’ ‘Paramedic,’ ‘Range Officer,’ ‘Mechanic,’ etc., as well as classifications devoting compensation for educational and other work-related achievements.”

Undoubtedly it lies within the scope of the legal authority of an administrative body to promulgate rules to clarify the administrative function. The statute authorizes the Department to make “reasonable rules and regulations ***.” (Ill. Rev. Stat. 1979, ch. 108½, par. 22— 501.1.) However, as plaintiffs properly urge, an administrative body may not alter or add to statutory provisions by exercise of its rule-making power and all administrative “rules and regulations must be authorized by statute.” Northern Illinois Automobile Wreckers & Re-builders Association v. Dixon (1979), 75 Ill. 2d 53, 60, 387 N.E.2d 320, cert. denied (1979), 444 U.S. 844, 62 L. Ed. 2d 57, 100 S. Ct. 87.

But, where an administrative agency is charged with enforcement of a statute and is duly authorized to promulgate regulations thereunder, the administrative interpretation of that statute, although not controlling, “is entitled to great weight.” (R. E. Joos Excavating Co. v. Pollution Control Board (1978), 58 Ill. App. 3d 309, 313, 374 N.E.2d 486, appeal denied (1978), 71 Ill. 2d 614.) In People ex rel. Watson v. House of Vision (1974), 59 Ill. 2d 508, 514-15, 322 N.E.2d 15, cert. denied (1975), 422 U.S. 1008, 45 L. Ed. 2d 671, 95 S. Ct. 2631, the court pointed out that a reasonable and consistent construction of a statute by the administrative agency charged with its enforcement may create “a presumption of correctness which is only slightly less persuasive than a judicial construction of the same act.”

We see no basis for the contention by plaintiffs that the above regulation goes beyond the holding of Oak Brook. We see no special significance in the use of the term “rank” in the departmental rule. We also reject the contention of plaintiffs that the rule in any manner gives the Department discretion in determining what compensation is or is not subject to pension requirements. In our opinion, the rule does not exceed the proper authority of the Department and it is a valid exercise of administrative authority.

IV

Plaintiffs close their brief with the argument that a valid contract concerning the paramedic “bonus” exists between the city of Park Ridge and the Firefighters’ Association and that it was beyond the legal power of the defendant to interfere with this contract. We reject this contention completely. The contract between the city and the Firefighters’ Association is dated January 12, 1978. It purports to cover wages and benefits from May 1, 1977, through April 30, 1979, and from year-to-year thereafter until changed by mutual agreement. We have above quoted the pertinent provisions of this contract which ° simply refer to a payment to 18 eligible firemen of “a bonus of $700 annually payable on a quarterly basis.” The contract contains no specific provision regarding the payment of pension benefits which ordinarily would accrue under the pension statute above quoted.

The excellent opinion in Kraus v. Board of Trustees (1979), 72 Ill. App. 3d 833, 390 N.E.2d 1281, is cited and relied upon by plaintiffs. But, the opinion expressly negates this argument of plaintiffs. Kraus summarized its holding (72 Ill. App. 3d 833, 850):

“However, once again, all we have decided is that a Pension Code modification changing the basis upon which pension benefits are directly determined cannot be applied to diminish the benefits of those who became members of the system prior to the statute’s effective date.”

Plaintiffs also depend upon the decision in Carroll v. Grumet (1952), 281 App. Div. 35, 117 N.Y.S. 553. However, Kraus cites Carroll only as holding “that an agreement whereby a cost of living allowance is paid and accepted by a public employee on condition that it will not be regarded as salary for pension purposes was valid and binding on the employee.” (72 Ill. App. 3d 833, 849-50.) The situation before us is far different from that in Carroll. There is nothing in the written contract between the city and the labor association which exempts the payment to the paramedics as free from the pension obligation. The contract does not concern itself in any manner with the payment of pension contributions.

Plaintiffs urge the Department has no authority to interfere with the contract between the city and the union. We find no interference here. The contract has no relation in any particular to the pension statute or to the regulations promulgated thereunder by the defendant.

Plaintiffs next argue that article I, section 16, of the Illinois Constitution of 1970 and article 1, and section 10 of the United States Constitution prohibit any law which would invalidate or impair obligations expressed in contracts in existence when the laws were passed. This is a valid concept, but it has no application to the case at bar.

In making this argument plaintiffs completely overlook a binding legal principle. The pension statute in question was adopted by the legislature in 1963 long prior to the execution of the labor contract. In Schiro v. W. E. Gould & Co. (1960), 18 Ill. 2d 538, 544, 165 N.E.2d 286, the supreme court held:

“It is settled law that all contracts for the purchase and sale of realty are presumed to have been executed in the light of existing law, and with reference to the applicable legal principles. (91 C.J.S. 1032.) Thus, the law existing at the time and place of the making of the contract is deemed a part of the contract, as though expressly referred to or incorporated in it. [Citations.]”

Many other cases have repeated this sound and basic principle regarding the accepted rule that a contract includes statutory provisions and existing principles of law as though they had been specifically incorporated within the contract terms. Polytechnical Consultants v. Lind Plastic Products, Inc. (1980), 82 Ill. App. 3d 472, 474, 402 N.E.2d 869; Horwath v. Parker (1979), 72 Ill. App. 3d 128, 131, 390 N.E.2d 72.

As we have carefully attempted to point out, the basic problem here is the insistence by the city that since the word “bonus” is used in the labor contract, all pension statutes and regulations are superseded.

We find no merit in the contentions of plaintiffs and the order appealed from is accordingly affirmed.

Order affirmed.

CAMPBELL, P.J. and O’CONNOR, J., concur.


author: JUSTICE TRAPP PRESIDING JUSTICE GREEN,

text:
    GENE T. TAPP et al., Plaintiffs-Appellants, v. WRIGHTSMAN-MUSSO INSURANCE AGENCY et al., Defendants.—(Aetna Casualty and Surety Company of Illinois, Defendant-Appellee.)
    Fourth District
    No. 17603
    Opinion filed October 13, 1982.
    GREEN, P.J., specially concurring.

      Durbin & Lestikow, of Springfield (Richard J. Durbin, of counsel), for appellants.
    Gillespie, Cadigan & Gillespie, of Springfield (Patrick J. Cadigan, of counsel), for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

The trial court entered a judgment on the pleadings finding that Aetna Casualty and Surety Company had no duty to defend the insured Greff and Dodson in plaintiffs’ action. Plaintiffs, as assignees of the rights and claims of Greff under a policy issued by Aetna, appeal.

Plaintiffs filed a complaint against Kenneth Greff, Donald D. Dodson and others on September 8, 1980. Counts VII and VIII of this complaint were the only counts against Greff and Dodson. A contract for the sale of a building by defendant, Kamar, to defendants, Greff and Dodson, as partners, was attached to the complaint as an exhibit. Subsequently, plaintiffs filed count XIII of their fourth amended complaint against defendant, Aetna. This count alleged that Aetna insured certain property of defendants, Greff and Dodson, by a policy which was in effect on September 30,1978.

On September 30, 1978, Greff began dismantling the building, then located at the Farm Progress Show near Taylorville, Illinois, for relocation of the building as a storage facility in Virden, Illinois. During this dismantling operation, plaintiff, Gene Tapp, who voluntarily assisted Greff and Dodson, was injured. The complaint also alleged damages to Margie Tapp. The initial complaint against Greff was referred to defendant, Aetna, as a tender of defense. Defendant Aetna informed Greff it would not defend him.

It was alleged that a default judgment was entered against Greff on December 29, 1980. On February 27, 1981, Greff executed a document whereby he assigned to the plaintiffs all of his right, title, and interest in his policy with Aetna and all claims, demands, and causes of action arising out of the injuries sustained by plaintiffs. Plaintiffs, as assignees of the insurance policy, alleged that Aetna was obligated to provide a defense to defendant Greff on the initial complaint, and defendant denies this duty. Therefore, there was an actual controversy between the parties, and plaintiffs prayed for a declaration of rights under the policy, and a finding that defendant Aetna was liable for $300,000 and expenses.

On August 27, 1981, Aetna filed a motion to dismiss under sections 45(1) and 48(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 45(1) and 48(1)). Attached as exhibit A was the initial complaint against Greff and Dodson.

On October 30, 1981, the court granted the motion in favor of Aetna. It further stated that although there were multiple parties involved in the case, the claim for relief could proceed without all parties being present and there was no just reason for delaying enforcement or appeal of the order.

In plaintiffs’ count XIII of the fourth amended complaint, plaintiffs contend defendant was obligated to provide a defense to defendant Greff because the policy provides:

“*** the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent ***.”

The general law in cases such as this is well defined. If the complaint reveals a potential for coverage by the policy, but the insurer believes that it has a valid exclusionary coverage defense, then the insurer must either (1) secure a declaratory judgment of its rights while defending the potential insured under a reservation of rights, (2) defend the potential insured under a reservation of rights and adjudicate its coverage in a supplemental suit, or (3) defend without a reservation of right. (Aetna Casualty & Surety Co. v. Coronet Insurance Co. (1976), 44 Ill. App. 3d 744, 358 N.E.2d 914.) The insurer is obliged to defend where the complaint alleges a state of facts within the coverage of the policy, even if there is only potentially a case under the complaint within the coverage of the policy. (Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 193 N.E.2d 123.) The complaint must be liberally construed and all doubts as to coverage must be resolved in favor of the insured. La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 408 N.E.2d 928.

The opinion in Thornton v. Paul (1978), 74 Ill. 2d 132, 144-45, 384 N.E.2d 335, 340, states:

“When the insurer wrongfully refuses to defend a complaint which alleges facts within coverage, it is liable to the insured for breach of contract. [Citation.] The measure of damages for such a breach is generally the amount of the judgment against the insured or of a reasonable settlement, plus any expenses incurred.”

Where the company has already breached a contract by failing to defend where the facts alleged reveal potential coverage, the insurer no longer has any right to insist that the insured be bound by the exclusion provisions. Sims.

In Christensen v. Wick Building Systems, Inc. (1978), 64 Ill. App. 3d 908, 912, 381 N.E.2d 1189,1192, the court stated:

“In deciding a motion for judgment on the pleadings, the court must determine whether the pleadings present a material issue of fact [citation], and if the pleadings present such an issue, the motion must be denied. The motion for judgment on the pleadings concedes the well-pleaded facts in the opposing pleadings [citation], concedes all fair inferences therefrom [citation], and concedes that the movant’s own allegations are false in so far as they have been controverted by opposing pleadings [citation]. A motion for judgment on the pleadings does not test whether there is any evidence to support the pleading, for that is the province of a motion for summary judgment.”

Various arguments are advanced in support of each parties’ position by comparing portions of the initial complaint with the insurance policy. Only those arguments relying upon counts VII and VIII, the counts against Greff and Dodson, are relevant. Of these arguments, we need only address three to dispose of the case.

Aetna relies initially upon exclusion (g) of the policy for its conclusion that there is not even potential coverage. Exclusion (g) provides:

“This insurance does not apply:
* * *
(g) to bodily injury or property damage arising out of operations on or from premises (other than insured premises) owned by, rented to or controlled by the named insured, or to liability assumed by the insured under any contract or agreement relating to such premises; ***.”

The initial complaint alleges the existence of a contract to purchase a building near Taylorville, which was to be dismantled and removed from those premises. The policy designates the insured premises as “one acre southwest corner of Church and George Street, Virden, Illinois-storage of truck and tractors.”

In Aetna’s letter to Greff denying coverage, Aetna asserted that the injury arose out of operations controlled by Greff and out of the dismantling of a building owned by Greff. Therefore, exclusion (g) applied. Plaintiffs do not challenge the fact that the building was located and the injury occurred at a place other than the designated insured premises. Their only response to this argument is the assertion that it was alleged the building was not owned by Greff at the time of the injury. It is not necessary to consider defendants’ response since there are sufficient allegations that the premises were “controlled” by Greff and Dodson.

Aetna cites paragraphs three, four and six of count II, which were incorporated into counts VII and VIII against Greff and Dodson. Those paragraphs alleged the existence of Greff and Dodson’s contract to buy the Taylorville building, and alleged that under the terms of the contract the buyers were to dismantle the building, provide certain materials to Kamar from the dismantled building, and remove the building from the premises. Although these allegations refer only to what Greff and Dodson were supposed to do under the contract, those counts continue to allege that defendants asked Tapp to assist them in the dismantling of the building and that Tapp was injured while dismantling the building. Thus, counts VII and VIII necessarily infer Greff and Dodson were in control of the building and responsible for preventing such injuries. Since Greff and Dodson controlled the premises and operations from which the bodily injury arose, exclusion (g) applied and Aetna had no duty to defend.

Plaintiffs advance two arguments in support of potential coverage, notwithstanding the language of exclusion (g).

They first argue coverage under the following provision describing property covered by the policy:

“Building(s) or structure(s) shall include attached additions and extensions ***; materials and supplies intended for use in construction, alteration or repair of the building(s) or structure(s); ***; all while at the designated premises.”

Plaintiffs’ argument concerning this provision vaguely asserts that the injury was caused by, or occurred, while using materials and supplies intended for use in construction of the building. Whatever merit there otherwise may have been to this argument, Aetna points out that the last portion of the provision modifies the coverage by stating “all while at the designated premises.” Since the materials involved here were near Taylorville, Illinois, rather than at the designated premises in Virden, Illinois, the provision is literally inapplicable. Defendant aptly points out that without this last qualifying phrase any materials purchased at a retail store would be covered by the insurance policy even while still in the store. We find no merit in plaintiffs’ argument.

Finally, plaintiffs assert potential coverage under the following provision:

“The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence, and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental to the business of the named insured conducted at or from the insured premises ***.”

Plaintiffs assert the activity in Taylorville arose out of the “maintenance or use” of the building to be located in Virden; was “necessary and incidental” to the business of the insured; and was conducted “from” the insured premises in Virden. Therefore, they conclude this provision brings the activity within the coverage of the policy.

Aetna argues that there are no allegations in the initial complaint alleging facts which would alert it to the contention that the operation was related to the insured premises, or business, of the insured.

A reading of counts VII and VIII shows only that Greff and Dodson entered into a contract to buy a building which they intended to dismantle and that plaintiff Gene Tapp was injured during the dismantling of this building. There is absolutely no reference in the allegations to the property at Virden or the business of storing trucks. From the allegations themselves, the insurance company had absolutely no indication that the actions were in any way related to the Virden property, or the truck storage business. The contract itself gives the address of the purchasers as 131 Liberty Street, Virden, Illinois. It contains no references to the relocation site of the building. The designated premises are on the corner of Church and George streets in Virden, Illinois. There is no indication anywhere that Liberty Street, the address of the purchaser, is anywhere near the corner of Church and George streets.

Plaintiffs argue that since the complaint did not exclude the possibility that the circumstances surrounding the injury were related to the insured property and business purpose, such actions were potentially related to such insured premises and business. Therefore, defendant was obligated to provide a defense to the potential insured. Although case law does state that the lack of coverage must be absolutely clear when comparing the complaint with the policy for an insurer to refuse to defend with impunity, we believe this broad statement of law presumes that the complaint gives some indication there is a reason to believe the insurance policy is relevant to the alleged facts. The allegations of counts VII and VIII give absolutely no indication that the dismantling of the building in Taylorville was in any way related to the insured premises, or the business of the insured. Therefore, defendant was not alerted by the allegations to any potential coverage under the above provision, and we need not determine whether the activities would otherwise come within the terms of this provision.

For the foregoing reasons, we conclude there was no alleged state of facts which were even potentially covered by the policy, and therefore the judgment of the trial court is affirmed.

Affirmed.

WEBBER, J., concurs.

PRESIDING JUSTICE GREEN,

specially concurring:

I concur in the decision to affirm the circuit court.

I agree that the pleadings before the court showed conclusively that Greff and Dodson had control of the premises near Thylorville where the building was allegedly being demolished. Thus, as stated, exclusion (g) was conclusively shown to be applicable. It controlled over the provision of the policy otherwise giving coverage, and we need not decide whether the pleadings negated the evidence of potential coverage which might otherwise exist.

I take no position as to whether such potential coverage might exist in the absence of the operation of exclusion (g).