author: PRESIDING JUSTICE JONES JUSTICE WELCH,

text:
    JOHN PAUL KELLEY, JR., Plaintiff-Appellee, v. AMERICAN MOTORS CORPORATION, Defendant-Appellant.
    Fifth District
    No. 5—82—0333
    Opinion filed January 29, 1985.

      Allen D. Churchill and Joseph B. McDonnell, both of Churchill, Nester & McDonnell, of Belleville, and Richard Lee Blatt, Thomas E Lucas, and Patricia M. Relosky, all of Peterson, Ross, Schloerb & Seidel, of Chicago, for appellant.
    Edward J. Kionka, of Kionka & Associates, of Carbondale, and Morris B. Chapman, of Chapman & Carlson, of Granite City, for appellee.
   PRESIDING JUSTICE JONES

delivered the opinion of the court:

The plaintiff, John Paul Kelley, Jr., brought suit in strict liability in tort against the defendant, American Motors Corporation, alleging that a 1972 Hornet automobile nianufactured by the defendant was unreasonably dangerous as a result of certain deficiencies in its fuel system. The plaintiff suffered serious burns, principally to his face and head, following a collision that occurred on March 25, 1978. At trial, conducted during the latter part of March and the early part of April of 1982, a jury awarded the plaintiff $500,000. The trial court denied the defendant’s post-trial motion, and the defendant has appealed, presenting several issues for review:

“1. Whether accident reconstruction offered by AMC is admissible.
2. Whether it is proper to permit plaintiff to question AMC’s expert witness regarding a prior specific act which is unrelated to any issue in this case.
3. Whether the trial court should have quashed plaintiff’s requests to produce documents and witnesses at trial.
4. Whether the jury was improperly instructed on the inferences permissible from a party’s failure to call a witness under his control (I.P.I. No. 5.01).
5. Whether photographs of plaintiff taken during reconstructive surgery are admissible.
6. Whether evidence of AMC crash tests and proposed federal motor vehicle safety standards is admissible.
7. Whether the jury was improperly instructed on the issue of compliance with safety standards.”

With respect to the first issue the defendant raises, that is, whether it was error for the trial court to exclude reconstruction testimony of the defendant’s expert witness, Derwyn Severy, it is necessary to consider not only the defendant’s offer of proof concerning reconstruction of the accident but also certain testimony of this witness and others, including the expert called by the plaintiff as well as the only eyewitness to the accident to testify.

Other eyewitnesses were unable to be reached, apparently, by either party, and the plaintiff has been unable since the collision to recall anything about it. Testifying for the plaintiff, the eyewitness, James Johnson, stated that just before the collision occurred on Sand Prairie Lane in Collinsville, a Ford Torino passed him. Shortly thereafter the Hornet, driven by the plaintiff, likewise passed the witness, who said that there “wasn’t enough room” between the Torino and the car the witness was driving for the Hornet to reenter the lane between them. As a consequence, the driver of the Hornet attempted, at a rate of about 45 miles per hour, to pass the Torino. The road was damp and somewhat slick. The witness testified that as the Hornet attempted to reenter the lane ahead of the Torino, “[t]he Torino car sped up and hit the car in the back quarter panel by the bumper.” According to the witness, the Hornet then struck a bridge abutment. The witness stated that he had seen sparks at the right rear quarter panel of the Hornet when the Torino struck it. He seemed later, however, to indicate that such sparks had not occurred until the Hornet had struck the abutment, though he seemed also to suggest that the two occurrences were virtually simultaneous. The Hornet then, he said, “spun around like it was coming back towards my car.” Having flipped upside down, shortly thereafter the Hornet was on fire, with gasoline on the ground. The Hornet and the Torino came to rest about 15 feet apart. With the aid of a passerby the witness was able, with difficulty, to open the door of the Hornet and to remove the plaintiff, whose head was afire. The witness described the plaintiff as having “gasoline all over him.” The witness stated further that the Torino had struck the Hornet “[o]ne time,” that the two cars had not touched again, that “first the back side [of the Hornet] was burning,” and that the fire, growing larger, moved to the front of the vehicle. He said that an explosion occurred after the plaintiff was removed from the car. A young woman who was a passenger in the Hornet at the time of the collision had been thrown from the Hornet and run over by the Torino. In the attempts of the witness and the bystander to free the young woman from beneath the Torino the witness noticed that the front bumper of the Torino was “warm,” “kind of hot.” He had not, he said, at any time seen any fire coming from the Torino. The witness stated that the fire department arrived approximately 45 minutes after the collision occurred, at which time the Hornet was “totally burned.” Indicating that he had looked over the Hornet at the scene of the accident, the witness said further, “I had taken a look at the car and seen the—what amazed me was the gas tank on it, it seemed like it just split open,” the seams on the tank having “split.” He testified that the gas tank was visible to him while the car was upside down, and described the location of the tank as “on the quarter panel and where the bumper is, where the Torino hit the car.” He testified further that one of the two straps, apparently metal, around the tank had broken.

On cross-examination the witness stated that he could see “a foot or so in front of the bumper” on the passenger side of the Hornet as it attempted to reenter the lane in front of the Torino. He said that the impact was “right on the quarter panel” of the Hornet and that the fire “seemed to start at the back of the car.” However, the witness admitted that in a deposition dated February 12, 1979, he had stated that the fire had started in the front of the Hornet. In the same statement the witness had said that he “didn’t pay any attention to the gas tank” and that he had “no knowledge about its condition.” On redirect examination the witness stated, “I believe that when the Ford hit the Hornet car that it busted the gas tank.” He said that he had seen the tank in the “busted condition.” Of the course of the fire he stated, “Well, the way I remember there was just gas everywhere and I believe that the gas just traveled up the car to the front.” The plaintiff’s testimony indicated that the Torino and the Hornet had departed from the home of the young woman riding with the plaintiff and were at the time of the collision on the way to a common destination.

The plaintiff called as an expert Dr. Robert Brenner, an engineer from Rockville, Maryland. He testified that the fuel tank in the 1972 Hornet is strapped under the floor of the trunk of the automobile, with the filler pipe to the tank extending through the luggage compartment to the center of the rear of the vehicle. As part of the hypothetical question asked of this witness, he was asked to assume that the eyewitness had stated that the left front of the Torino had struck the passenger side of the Hornet near the back and that, as a result of the collision, the Hornet had gone out of control and had struck a concrete bridge abutment. He was also asked to assume, among other things, that the flames had begun at the rear of the vehicle and had moved forward. The witness expressed the opinion that the plaintiffs injuries were “the result of an unreasonably dangerous design in the Hornet.”

He was of the further opinion that the discoloration of the paint at the front of the Torino, as shown in a photograph of the vehicle, was

“precisely what is caused by gasoline. Gasoline that has been ignited.
The accident, the crash took place at night, the headlights were on. The impact starts off on the right rear quarter panel, left side of the vehicle. The things happen to where the right side of the Torino takes the heavy bump after the initial impact, which produces the defamation [sic] of the bumper.”

He explained that the damage to the right front of the Torino, which was greater than that sustained by the left front of the car, had been caused by the movement of the Torino and the Hornet during the collision. The witness continued:

“Again, the question pertains to an explanation of the discoloration and again, interpreting the discoloration on the right front corner of the vehicle along with the discoloration in patches on top of the hood, is completely consistent. This is precisely what happens when gasoline strikes metal.
Now, the gasoline is now exposed to a headlight. The headlight, however, is broken. That means that there are electrical wires that are exposed. So now we have the fuel, and we have the source of ignition, which is the broken wires in the headlight, to ignite the gasoline to produce the *** discoloration which is typical of gasoline burning on paint. The—But, again, typically if the gasoline isn’t all over the vehicle then the fire goes out ***.”

The witness added, “[TJhere is simply no doubt in my mind that we have fire in the right front corner of the Torino, there’s simply, in my opinion, no other way that this kind of discoloration, which is the signature of the gasoline burning on metal, so that it could be explained.” The source of the gasoline, according to the witness, was the gas tank of the Hornet. Explaining a photograph of the Hornet as viewed from the back, the witness testified concerning the vehicle:

“Here we see the center mounted rear filler pipe area of the vehicle. We see the major burn patterns. Again, the same type of discoloration ***.”

He continued:

“[W]e have the discoloration which, again, I firmly believe that this is gasoline burning on paint.
We see same, again, type of discoloration which is fire produced.
However, the testimony from the hypothetical states that there really isn’t any kind of massive fire on the Hornet until after it has rolled over and the young man is trapped inside. So this fire had to occur after this fire had occurred and gone out.
Furthermore, the opinion that this had to be related to the fire relates to the other aspect of the hypothetical, which is that the eyewitness, when he went over to the Torino to get it up off the girl, found this area hot. The fire has gone out, there’s no reason on a cold night for this area to be hot unless there had been fire.
So, again, we have a situation which again confirms my opinion that we have a fire at the Torino, it goes out, leaving the vehicle still hot in that area. The Hornet keeps on going, it turns over, then we have the massive fire. So this damage and as a matter of fact all of the massive damage to this Hornet happens after the fuel system has failed. So that in crash survivability we talk about the survivability of two factors. The survivability of the people in this car and the survivability of the fuel tank. What we have here is the fuel system has failed to survive the impact by the Torino, it has already let go. The entire incident is over. We find that the young man has survived the crash-producing forces under the hypothetical, but since the fuel system has failed to survive now he’s subjected to this danger of the very serious burns.
The answer to the question then is, and we see massive damage to the Hornet. We see burn, massive fire damage which is similar in coloration to the fire damage on the Torino. However, the massive fire damage to the Hornet and the massive metal damage to the Hornet has nothing to do with the fact that we have the fuel system having failed. The fuel system has failed before all this happens.”

The witness testified that the Hornet, like other motor vehicles produced by the defendant and some other automobile manufacturers, has a “unitized” body, instead of a frame, and that the unitized body, which offers certain advantages in terms of weight and expense, is, however, “bad from the stand point of rear-end impact” because of little or no “structure” to protect against impact from the rear. He stated that “from a design standpoint” this “major disadvantage” of unitized construction can be avoided by placement of the gas tank over the rear axle and, thus, out of the “crush zone of the trunk area.” The axle itself, he said, provides some structural protection for the fuel tank. The witness described this design as “an important, extremely important safety design whether or not it is unitized or frame-type construction. Frame-type construction is going to have structure back here, a lot more structure. This design approach is important in the frame-type unit, and it is even more important in the unitized area.” The witness expressed the opinion that

“with the fuel tank located over the axle area the triggering fire which produced the damage to the Torino never would have occurred.
And because of the evidence with regard to the performance of the fuel tank over the axle I just don’t think there would have been a fire there and certainly not a fire of the massive magnitude that occurred here with the young man doused with gasoline and what have you. It just wouldn’t have happened in my opinion.”

This witness gave all of the foregoing upon direct examination.

The defendant called as an expert Derwyn Severy, an engineer from El Segundo, California. The witness, asked to assume, among other things, an impact between “the left front corner of the Torino and the right rear quarter panel of the Hornet,” was of the opinion that the impact did not compromise the gas tank of the Hornet because “[tjhere’s no way in the world that type of contact is going to in any way involve the fuel system of the Hornet.” The witness was of the further opinion that a photograph of the front of the Torino, plaintiff’s exhibit No. 5, did not show any evidence of a gasoline fire to the Torino because of the absence of carbonaceous material, which is created when gasoline burns, on the surface of the Torino, including the surfaces of the chrome bumper. The witness stated:

“I have examined this very carefully to try to find where the smoke or fire could have been and I find absolutely no evidence of any fire having been on or about this Torino. It may have been in what we call proximity heating condition where it’s near enough to the Hornet that as the Hornet is subsequently burning, it will come up on its temperature as a consequence of radiation, but not as a consequence of direct contact.”

In the opinion of the witness the portions of the front of the Torino that appear to be rusty were damaged by “disfiguration to the surface,” that is, crumpling of the metal, rather than fire, as the plaintiffs expert had maintained. The witness expressed the opinion that such damage to the front of an automobile as occurred to the front of the Hornet “would likely compromise the fuel system [of the vehicle] at the front” and that, assuming the damage that occurred to the Hornet, an over-the-axle gas tank would have been compromised and would have leaked. He was of the further opinion that the design of the fuel system of the 1972 Hornet was not unreasonably dangerous for the reason, among others, that

“[t]he cumulative impacts add up to an extremely severe collision damage condition and so we, I believe, would find that the front engine area fuel line system was disrupted, probably at the flex line that leads to the fuel pump. *** [I]f that hose [flex line] were to be separated at that point then the fuel can continue to ciphen [sic] out of that point and supply any flame.”

The witness also expressed the opinion that the “combination of the fuel system and the unit body construction does not render this total design unreasonably dangerous, as a matter of fact it’s a safe or conservative design based on the tests I have done in the past years.”

Upon the trial court’s sustaining of the plaintiff’s objection to a reconstruction of the accident by this witness, the defendant made an offer of proof as follows. The witness stated that the Torino did not hit the Hornet until after the front and left side of the Hornet had struck the bridge abutment and the Hornet had rebounded into the lane in which the Torino was traveling, having flipped over so that it was lying on its “top and left side” at an angle of about 45 degrees at the time the front of the Torino struck the back of the Hornet. The witness referred to defendant’s exhibits Nos. 16 through 20, which were not admitted into evidence and, hence, are not a part of the record for review. Some of these exhibits, however, incorporated photographs that were admitted as plaintiff’s exhibits and are included in the record on appeal. The witness stated that certain “embossments” on the left rear quarter panel of the Hornet correspond to the shape and the dimensions of certain of the bridge railings. These embossments are visible in plaintiff’s exhibit No. 3, a photograph of the back and the left side of the Hornet, which photograph is included in the record for review. In striking the bridge abutment, the Hornet suffered damage so severe that its front end was almost completely torn away from the rest of the car. According to the witness, the “disrupted” front end would have provided a source of fuel for a fire. The source of ignition for such a fire, he said, would have been sparks resulting from the contact of metal with either the concrete bridge abutment or the surface of the road as the Hornet slid on its top and left side. The witness stated:

“Now, when it got onto its top it was rearended and it wasn’t on the full top, actually the top and left side. Rearended by the Torino and we can see by holding up the [defendant’s] Exhibit 16 and looking at also Defendant’s Exhibit 17 that there is a crease that is very prominent to the back of the lower photograph of Exhibit 17, which correlates with in evidence Exhibit 3 and that deep [nearly vertical] crease is [from] the front bumper of the Torino crushing into the rear luggage cover and rear bumper of the ’72 Hornet. And that there is a corresponding embossment of the Hornet’s bumper across the hood and bumper of the Torino. And when you fit those vehicles into that relationship it turns out that the Hornet is resting on its top and side as a consequence of the distortions [to the top and side] that have been produced primarily by the bridge contact, but partly by the rolling over onto its top ***.”

The witness estimated that the Hornet was traveling at about 55 miles per hour when it struck the bridge abutment and at about five to 10 miles per hour when it was struck by the Torino, whose speed he estimated at about 35 to 45 miles per hour.

The witness continued:

“The thing that I wish to point out, as cars pass each other I have studied this in a prospective [sic] of what a person can see. As cars pass and you’re a driver, if you line yourself up where you’re in the driving position on a highway without going out into the passing lane then as you’re watching the car ahead, what you see is a big rearend, you don’t see the sides of the car ahead. So when the car, the Hornet, is passed by the Torino or I will put it this way, when the Torino was passed by the Hornet and speeded up what the person behind can see is the rearend of both cars. They can also see that the vehicle that is cutting in on the pass, that’s the Hornet, is cutting in a relationship quite close to the car, quite close or maybe in a relationship that looks like there is going to be a contact, impossible to see that interface or to judge exactly how close in a longitudinal mode. *** [I]t’s reasonable to assume a contact might have been made. But Johnson never said he saw the Torino wiggle from the contact. *** What I’m saying, if you hook the front you’re going to cause movements on the Torino that should have been evident but weren’t described. Maybe he just didn’t notice that. I’m not saying it didn’t occur, I’m saying you have to hang loose on that one, either contact occurred between them or it appeared to have occurred between them.”

The witness expressed the opinion that because of the weight of the Torino (over 4,000 pounds) and its rate of speed (over 20 miles per hour) the kind of rear-end collision involved in this accident was different from those for which the 1972 Hornet would have been tested for any proposed standards. In ruling upon the defendant’s offer of proof the trial court stated, “The Court, of course, accepts the offer of proof, but sustains the objection thereto. I think it’s a brilliant piece of deduction by the expert witness and—but I think that the law requires that the eyeball or the person who saw the incident precludes that type of reconstruction.”

In rebuttal, the plaintiff called as a witness Billy Joe Hayes, whom the defendant had called as a witness earlier. A member of the State Park Volunteer Department, the witness had responded to the call on the evening of the collision and had returned to the scene the next morning to help remove the wreckage of the Hornet from the side of the highway, where it had been placed temporarily following the accident. The witness testified that in order to prepare the Hornet for towing he had had to cut the gas line as well as part of the frame with a cutting torch. He stated that the gas line was still in contact with the motor, which he described as “still hanging on the right part of the frame where it was attached to the frame so I had to cut about maybe four inches of the frame.”

In its brief, the defendant does not suggest that the excluded testimony of its expert witness was not reconstruction evidence but, instead, characterizes portions of the testimony of the plaintiff’s expert as, likewise, reconstruction evidence. From this premise the defendant argues that it was

“patently unfair to permit plaintiff to utilize reconstruction testimony to support his theory of the case but to refuse to permit defendant to offer reconstruction testimony in support of an alternative theory. Had the court admitted Mr. Severy’s reconstruction testimony, the jury would then have been free to choose which theory it believed. However, such a choice was not presented to the jury, since it did not have the opportunity to hear Mr. Severy’s reconstruction.”

In response the plaintiff discusses the rules concerning the admission of reconstruction evidence, arguing that the trial court was well within the scope of its discretion in prohibiting the reconstruction testimony proffered in the offer of proof, and urges that inasmuch as there was “clear and accurate eyewitness testimony” and “physical facts from which the jurors could determine what happened with reference to the collision,” reconstruction testimony of an expert was not necessary for the jury to understand the facts of the case. The plaintiff maintains, further, not only that the testimony of his expert witness did not constitute reconstruction testimony as it is defined in the case law but also that, in fact, the defendant’s expert “did give ample testimony on this point.”

Despite the plaintiff’s characterization of the testimony of Dr. Brennan as merely “his opinion that fuel from the Hornet’s tank was splashed onto the Torino’s bumper at the time of the initial impact and was ignited by exposed electrical connections from a broken front headlight,” we are able to make no distinction in this regard between the testimony of the plaintiff’s expert and that which the defendant’s expert would have given had he had the opportunity to do so. The conclusion is inescapable that the character of the testimony of both experts is one and the same.

Whether to admit evidence of reconstruction is within the discretion of the trial court, and the court’s determination is not to be disturbed on appeal in the absence of an abuse of that discretion. (Diefenbach v. Pickett (1969), 111 Ill. App. 2d 80, 248 N.E.2d 840.) Under the circumstances presented here, we conclude that it was an abuse of the trial court’s discretion, after the plaintiff had put on reconstruction evidence favorable to its case, to prohibit the defendant from putting on similar evidence by way of defense.

Both parties discuss the effect that the testimony of an eyewitness may have upon the need for the testimony of an expert concerning reconstruction. In Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 359, 392 N.E.2d 1, 3, the court addressed the matter, saying:

“Because of a preference for eyewitness testimony, prior holdings have placed restrictions on the admissibility of reconstruction testimony. In Plank v. Holman (1970), 46 Ill. 2d 465, 471, the court held that reconstruction testimony ‘may be used in addition to eyewitness testimony’ if it is determined that ‘it is necessary to rely on knowledge and application of principles of science beyond the ken of the average juror.’ Two years later, in McGrath v. Rohde (1972), 53 Ill. 2d 56, 61, the court again held that it is not proper to supplement eyewitness testimony with reconstruction testimony if the factual matters to be resolved do ‘not require a scientific knowledge beyond that of typical jurors.’ ”

Whether the factual matters to be resolved here required a scientific knowledge beyond that of typical jurors—and that we do not decide— the plaintiff chose, through portions of the testimony of the expert whom he called, to put on evidence that is indistinguishable in kind from that which he prevented the defendant from introducing, evidence that both the plaintiff and the defendant deem to be reconstruction evidence. For the trial court to permit one party to introduce such evidence but to preclude the other from doing so was simply unfair.

In making its ruling the trial court relied, in part, on Albee v. Emrath (1977), 53 Ill. App. 3d 910, 369 N.E.2d 62, in which the court on review stated that, though eyewitness testimony lessens the need for a reconstruction expert, such a witness may be allowed to testify when the testimony of an eyewitness is unclear or unconvincing. The plaintiff’s description of James Johnson’s testimony notwithstanding, the testimony of the eyewitness in the case at bar was singularly unconvincing concerning matters crucial to the imposition of liability. The credibility of the eyewitness was badly shaken by his prior inconsistent statements about the initial location of the fire in the Hornet and the rupture of its gas tank. The testimony of the plaintiff’s expert helped to shore up—surely it did not diminish—the flagging credibility of the eyewitness, in part, because the theory espoused by this expert accorded with the account upon which the eyewitness ultimately settled and, in part, because no countervailing theory was admitted into evidence. Each party called a single expert witness of roughly comparable credentials and relied heavily upon the testimony of his own expert. Had the defendant’s expert been able to testify as indicated in the offer of proof, since his theory was in accord with the contrary statements of the eyewitness that were decidedly unfavorable to the plaintiff’s position, the jury might have reached a different conclusion.

Although the plaintiff asserts the amplitude of the testimony of the defendant’s expert that was admitted into evidence with regard to matters of reconstruction, the record does not admit of so generous a reading. Though the defendant’s expert was able to express the view that the fuel line system to the “front engine area” was disrupted so as to be able to supply a flame, he was not permitted to present the reasoning in support of his view. As a result, his opinion, which bore upon the origin of the fire, was deprived of plausibility. At no time, other than in the offer of proof, was the defendant’s expert able to suggest that the Torino did not strike the Hornet until after the engine of the latter vehicle had been severely damaged by the collision with the abutment. However, the initial collision between the right rear quarter panel of the Hornet and the front of the Torino, and the ensuing fire, was of critical importance to the plaintiff’s claim that the fuel system of the Hornet was unreasonably dangerous, inasmuch as the claim rested largely on the allegedly faulty location of the gas tank of the Hornet near the rear bumper instead of over the axle.

Thus, the exclusion of the testimony of the defendant’s expert, as set forth in the offer of proof, was highly prejudicial to the defendant and constituted reversible error. Accordingly, we reverse the judgment of the trial court entered on the verdict of the jury and remand the cause for a new trial. It goes without saying that, upon retrial, it will be discretionary with the court whether to allow the use of or to admit into evidence the exhibits of the defendant that accompanied the offer of proof, assuming that the defendant should wish to use or to offer them.

Having considered the dispositive issue in this case, for purposes of guidance we turn to a consideration of those issues that might arise upon retrial. With respect to the second issue the defendant raises, that is, the questioning of the defendant’s expert during cross-examination about a prior act of misconduct, the record shows that plaintiff’s counsel asked the following question concerning another case in which the witness had been a consultant: “Did a problem arise in that case about some—your testing of some of the—this Ford at that time and whether or not you had tampered with the—in the testing process of that car?” Upon the defendant’s hearsay objection and motion for mistrial counsel for plaintiff in an offer of proof stated that the plaintiff’s attorney in the case in question, Segar v. Aufenberg Lincoln-Mercury and Ford Motor Co., had “told me he talked with the mechanic who called him later and said this man did it and told him he saw him do it.” Counsel for plaintiff in the case at bar described the indications of tampering as “marks of either a screwdriver or some kind of wrench or something on the vehicle.” Apparently counsel for the defendant in the instant case, Mr. Churchill, was one of the defense attorneys in Segar, and Derwyn Severy seems to have examined the vehicle in question there for the defendant but did not testify. During discussion of the defendant’s objection and motion in the case at bar, Mr. Churchill stated that he did not deny that there were marks on the car but denied that Mr. Severy “had anything to do with it.” The trial court overruled the objection and denied the motion for mistrial.

The plaintiff cites People v. Kirwan (1981), 96 Ill. App. 3d 121, 421 N.E.2d 317, in which counsel had attempted to impeach a witness by making known to the jury the witness’ commission of perjury in another case. The witness had not been charged with or convicted of the crime of perjury. The court in Kirwan noted the difference of opinion among authorities concerning the admissibility of such impeachment:

“According to one authority on Illinois evidence law, impeachment of a witness with evidence of prior acts of misconduct not leading to a conviction is expressly prohibited. (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 608.5 (3d ed. 1979).) ‘Inquiry with respect to specific acts of misconduct is barred on the ground that such examination is regarded as overly prejudicial in relation to its probative value.’ (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 608.5 at 282 (3d ed. 1979).) Other authorities indicate, however, that such evidence is admissible subject to the discretionary control of the court. (S. Gard, Illinois Evidence Manual Rule 22:12 (2d ed. 1979); McCormick, Handbook on the Law of Evidence sec. 42 (2d ed. 1972).)” (96 Ill. App. 3d 121, 126, 421 N.E.2d 317, 321.)

The court in Kirwan concluded that “[although the complete prohibition of such evidence may be the preferred rule (see McCormick), applying the abuse of discretion standard we do not believe the lower court committed reversible error in ruling that the evidence relating to [the witness’] prior perjury was not to be heard by the jury.” 96 Ill. App. 3d 121, 126, 421 N.E.2d 317, 321.

In the case at bar, neither party has suggested that the nature of the misconduct complained of differs from that addressed in Kirwan and the authorities cited therein. Although Kirwan might authorize such impeachment in some cases, in the instant case the evidence tendered by way of the offer of proof was so slight and so tenuous that it is unreliable as an attack upon the credibility of this witness. Hence, any probative value it might have is substantially outweighed by the danger of prejudice. We note that there is nothing in the record to suggest and the plaintiff has made no assertion that the defendant’s expert acted improperly in any way in the case at bar.

Citing United States v. Terry (2d Cir. 1983), 702 F.2d 299, 316, cert. denied (1983), 461 U.S. 931, 77 L. Ed. 2d 304, 103 S. Ct. 2095, the plaintiff maintains that “[t]here is no doubt that this question [asked on cross-examination] would be proper under the federal rule.” In Terry, on cross-examination, the prosecutor had questioned a “voice expert” about prior cases in which his testimony had been criticized by the court as unworthy of belief. A judge before whom the witness had testified as an expert had found that the witness had “guessed under oath.” Proof that the judge had so found was to the court “probative of the weight to be accorded to his testimony” (702 F.2d 299, 316). The evidence upon which the impeachment was based in the instant case was remarkably less reliable than that in Terry, whose facts, we think, not only distinguish it from the case at bar but underline the inadequacy of the evidence tendered here.

The defendant asserts that the trial court abused its discretion in giving plaintiff’s instruction No. 7, which is based upon Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971), concerning the inference that may be drawn by a party’s failure to produce a witness within his power to produce. The plaintiff maintained that the instruction was warranted because of the defendant’s failure to call any of its employees involved in the design of the unitized construction and the fuel system of the 1972 Hornet, saying:

“They have got 10,000 employees or whatever number, they never brought a single employee into this courtroom who was an engineer designer or else to say we had a good fuel system. There hasn’t—numerous people’s names were given here, Seidl [one of defendant’s employees, a mechanical engineer, called by plaintiff as an adverse witness] mentioned several of them. Some other [Mr.] Turtle, [Mr.] Nemeth various other people were involved in the fuel system of this automobile, knew its design and so forth. None of those people were brought here. They brought one guy in here to testify to that and that was the [sic] Severy.”

Under the plaintiff’s approach, the defendant would have to parade before the jury all of its employees who are knowledgeable about these matters in order to forestall the giving of this instruction. To allow the instruction under the circumstances is to work undue prejudice upon the defendant. This is so quite apart from any consideration of the defendant’s making its employees available to the plaintiff as witnesses pursuant to Supreme Court Rule 237 (87 Ill. 2d R. 237). See Feigl v. Terminal Railroad Association (1975), 30 Ill. App. 3d 55, 332 N.E.2d 416.

The defendant contends that the trial court erred in admitting 44 photographs of the plaintiff taken by his physicians during the course of his treatment. It is well settled that a photograph should be excluded when it is irrelevant or immaterial or its prejudicial nature plainly outweighs its probative value. (Rusher v. Smith (1979), 70 Ill. App. 3d 889, 388 N.E.2d 906.) The admission and use of such evidence is within the sound discretion of the trial court. (LeMaster v. Chicago Rock Island & Pacific R.R. Co. (1976), 35 Ill. App. 3d 1001, 343 N.E.2d 65.) In the case at bar, although the photographs in question are unquestionably gruesome, their probative value outweighs any prejudice they might occasion. In the case of the plaintiff’s exhibits Nos. 13 through 43, the testimony of the plastic surgeon, Dr. Richard Halford, would not have been fully understandable without the aid of these photographs. Similarly, the other photographs of plaintiff included in the record on review as plaintiff’s group exhibit No. 53 and exhibit No. 54 are illustrative of the course of the plaintiff’s progress and treatment by Dr. Monafo during the first eight months after his injury prior to Dr. Halford’s treatment of him.

We turn to the issue defendant raises concerning the admission of evidence of both a crash test it had conducted in July of 1971, called Crash Test 508, and proposed Federal safety standards. The decision whether to admit evidence of experiments rests largely in the sound discretion of the trial court. (Hubbard v. McDonough Power Equipment, Inc. (1980), 83 Ill. App. 3d 272, 404 N.E.2d 311.) However, it is well established that reconstruction experiments are incompetent unless the essential elements of the experiment are shown to be substantially similar to those existing at the time of the accident. (Hubbard v. McDonough Power Equipment, Inc. (1980), 83 Ill. App. 3d 272, 404 N.E.2d 311.) On retrial there must be a “foundational showing of substantial similarity between the tests conducted and actual conditions.” (Rockett v. Chevrolet Motor Division (1975), 31 Ill. App. 3d 217, 225, 334 N.E.2d 764, 771.) We note the difficulties that will arise in establishing substantial similarity between Crash Test 508 and the actual conditions of the accident because of, among other things, the differences in the size and weight of the 1971 Ambassador automobile used in the test and the 1972 Hornet in which the plaintiff was injured. In the Ambassador the gas tank had been placed over the axle. The test vehicle lacked a filler spout and gas cap. In the test, the vehicle was moving backward at a speed of 31 miles per hour into a fixed barrier, and the entire rear end of the vehicle apparently struck the barrier.

Crash Test 508 was described at trial by plaintiff’s expert as having been undertaken by defendant to determine the feasibility of complying with a proposed safety regulation concerning fuel system integrity. The proposed regulation, referred to as Docket 70-20, involved a rear end impact with a fixed barrier at 30 miles per hour. This proposed standard, more stringent than the existing standard, which was also in evidence at trial, was never adopted. The defendant asserts that because the proposed standard was never adopted it is inapplicable to the Hornet and, hence, irrelevant. The plaintiff, in support of the admissibility of this proposed standard, relies upon the cases, among others, of Seward v. Griffin (1983), 116 Ill. App. 3d 749, 452 N.E.2d 558, and Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 273 N.E.2d 809. In Seward, certain Federal motor vehicle safety standards were held admissible, although some of them were not applicable to the 1970 Volkswagen van in question until a later date. In Merchants National Bank the court held admissible standards for grade-crossing protection of public highways in Illinois that had been set by the Department of Public Works and Buildings. These standards were not, however, binding upon the defendant railway because the Illinois Commerce Commission had not adopted them. In contrast to these two cases, however, is the case at bar, in which the proposed standard was not adopted at any time by any agency. We fail to see its relevance to the 1972 Hornet. Hence, on retrial evidence of the proposed standard ought not to be admitted.

The defendant objects to the trial court’s having given Plaintiff’s Instruction No. 18, which stated:

“The compliance by a party with a federal standard is not a defense to this action but may be considered by you along with all the other evidence herein in determining the question of whether the vehicle in question was or was not unreasonably dangerous when it left the defendant’s control.”

If upon retrial a similar instruction is tendered, it should conform to the following expression of the court in Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 305, 443 N.E.2d 575, 578, discussing Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534:

“The decision in Rucker expressly announced that safety-standard evidence is not conclusive on the issues for which it may be presented. ‘The finder of fact may conclude that a product is in an unreasonably dangerous defective condition notwithstanding its conformity to Federal standards’ [Rucker], and the jury may be so cautioned.”

Rucker held that evidence of a product’s compliance with governmental safety standards is relevant and admissible in a product liability case on the issues of whether the product is defective and whether a defect in the product is unreasonably dangerous. In determining whether to give such an instruction, the trial court should on retrial bear in mind the caution of the court in Moehle that

“in instructing the jury the trial judge may avoid unnecessary highlighting of safety-standard evidence by following the approach of the trial judge in this case, who refused to submit Chrysler’s proposed instruction on safety-standard evidence to the jury, presumably on the ground that it would have unnecessarily over-emphasized the importance of that evidence.” 93 Ill. 2d 299, 305, 443 N.E.2d 575, 578.

We note that in their briefs both parties appear to quote from an earlier opinion of Dugan v. Sears, Roebuck & Co. (1983), 113 Ill. App. 3d 740, 447 N.E.2d 1055. According to the footnote on the first page of the opinion printed in the hardbound volume of the Official Reports, the subsequent opinion was filed after rehearing was allowed and replaced the earlier opinion, which appeared in the May 18, 1983, advance sheet at the same page. The hardbound volume of the unofficial reports appears to contain the earlier opinion.

Reversed and remanded.

KASSERMAN, J., concurs.

JUSTICE WELCH,

dissenting:

I would affirm the judgment of the circuit court of Madison County. Therefore, I respectfully dissent.

The general rule regarding reconstruction testimony is that it may not be used as a substitute or supplement for eyewitness testimony where the latter testimony is available unless it is necessary to rely on knowledge and application of principles of physics, beyond the ken of the typical juror. (McGrath v. Rohde (1972), 53 Ill. 2d 56, 61-62, 289 N.E.2d 619, 622-23; Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 359, 392 N.E.2d 1, 3.) Where eyewitness testimony is available, use of experts is left to the discretion of the trial court, with the guiding principle that the use of such testimony should be the exception rather than the rule. (People v. Dietschweiler (1974), 21 Ill. App. 3d 707, 714-15, 315 N.E.2d 585, 592.) The appellate court should not find error or set aside a ruling of the trial court based on a discretionary matter unless there has been a clear abuse of discretion. (People ex rel. Illinois State Dental Society v. Norris (1979), 79 Ill. App. 3d 890, 900-01, 398 N.E.2d 1163, 1172.) In the case at bar, the trial court’s rejection of offered reconstruction testimony is in accord with the general rule, and I do not view this case as so obviously requiring a contrary result as to justify reversal.

The majority of the court in this cause appears to have been most strongly convinced in favor of the AMC’s position by the fact that plaintiff’s expert offered a reconstruction opinion regarding the accident, whereas AMC’s expert was prevented from doing so. Thus, the majority does not address the issue of whether the fact issues at trial required scientific knowledge beyond that of typical jurors. I believe that there was sufficient eyewitness description of the contact between the Torino and the Hornet, and between the bridge abutment and the Hornet, that neither party was entitled to present an accident reconstruction to the jury. (See McGrath v. Rohde (1972), 53 Ill. 2d 56, 289 N.E.2d 619, which involved facts no more complex than the instant facts, yet reconstruction testimony was held properly refused.) The trial court cannot have abused his discretion in permitting plaintiff’s expert to testify as he did, since the record does not indicate that AMC provided the court an opportunity to exercise his discretion by objecting thereto. Given such opportunity by plaintiff’s objection to defendant’s expert’s testimony, the trial court in my opinion exercised his discretion correctly.

On the preceding points the majority and I do not disagree, as the majority does not decide whether the instant eyewitness testimony sufficed to preclude reconstruction testimony. Rather, the majority is concerned that one party was permitted to introduce reconstruction evidence and the other party was precluded from doing so. I believe this lack of symmetry was more apparent than real. In response to a hypothetical question by plaintiff’s counsel based on the facts of the collisions as gleaned from Johnson’s eyewitness testimony, plaintiff’s expert testified at length concerning his theory that the described impact between the vehicles compromised the fuel tank of the Hornet, as shown by fire damage to the Torino. Defendant’s expert testified before the jury that he found no evidence of fire damage to the Torino; that the contact between the Torino and the Hornet could not have involved the Hornet’s fuel system; and that the damage to the front of the Hornet would have compromised the fuel system at the front of the vehicle. He was prevented from testifying that Johnson’s eyewitness account that the Hornet had contacted the Torino before the bridge abutment was likely the reverse of what actually happened, based on the impact damage of the two vehicles, and that the Hornet was travelling 55 miles per hour when it struck the bridge abutment, whereas Johnson had testified that the Hornet’s speed was about 45 miles per hour just prior to the accident. Thus, both experts testified before the jury regarding their opinions of the effect on the Hornet’s fuel system of the events described by the eyewitness, whereas defendant’s expert was prevented from contradicting the eyewitness account, which contradiction plaintiff’s expert had not attempted. In this context, I do not view the ruling complained of as having diminished the fairness of the trial.

Finally, AMC’s reliance on the trial court’s comments at the time of the ruling complained of is overstated. The trial court did not purport to state the entirety of the rule set forth by our supreme court regarding the admissibility of reconstruction testimony. Rather, the trial court’s comment was directed solely to the most significant fact standing against admission of the offered reconstruction, i.e., the nature of the foregoing eyewitness testimony. It is the judgment and not what else may have been said by the trial court that is on appeal; the judgment may be sustained upon any ground warranted, regardless of the reason given by the trial court. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.

Finding no other error justifying reversal, I would for the foregoing reasons affirm the judgment of the circuit court.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JERRY K. MYERS, Defendant-Appellee.
    Third District
    No. 3—84—0448
    Opinion filed February 14, 1985.

      Tony L. Brasel, State’s Attorney, of Watseka (Dennis E. Both, Assistant State’s Attorney, of counsel), for the People.
    Frank J. Simutis, of Ackman, Marek, Boyd & Simutis, Ltd., of Watseka, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

“Alice felt dreadfully puzzled. The Hatter’s remarks seemed to her to have no sort of meaning in it, and yet it was certainly English.” Alice in Wonderland, by Lewis Carroll

The appeal before us raises the question of whether a defendant may confound the enforcement of the law of this State by engaging in Hatter-like dialogue. Unlike Alice, we are not puzzled, and, consequently, we reverse the order of the circuit court.

The defendant, Jerry K. Myers, was arrested for driving under the influence of alcohol. The evidence introduced during the hearing demonstrated that in the early morning of March 20, 1984, the defendant was driving on Route 1 when he was stopped by Iroquois County deputy sheriff David Gronewald. Gronewald arrested the defendant for driving under the influence of alcohol and requested that the defendant submit to a breath analysis test. The defendant stated that he refused to refuse to take the test but also would not agree to take the test.

Gronewald then transported the defendant to the Iroquois County jail. At the jail, Gronewald again asked the defendant to submit to the breath analysis test. The defendant responded once more that he would not refuse to take the test but would not consent to it.

Deputy Gronewald then completed the necessary paperwork on the defendant’s arrest. Approximately 15 minutes after the second request, Gronewald asked the defendant for the third time if he would submit to a breath analysis test. The defendant made no response at all to this final request.

At the conclusion of the evidence, the trial court found that Deputy Gronewald’s repetition of the request to take the test prevented the defendant from refusing to submit to the test because the defendant was never certain when the final request to take the test would be issued. The court found that the defendant had not refused to take the test and dismissed the implied consent hearing. The State appealed.

Our review of the proceedings below requires that we address two issues: (1) whether the defendant’s responses to Deputy Gronewald constituted a refusal under section 11—501.1; and (2) whether the refusal was effective in light of Gronewald’s multiple requests that the defendant submit to the test. We initially consider whether the defendant’s “refusal to refuse but failure to consent” is a refusal under the implied consent statute.

Under section 11—501.1 of the Illinois Vehicle Code, any person who drives an automobile on Illinois highways is deemed to have consented to submit to tests to determine the alcohol level in his body if he is arrested for driving under the influence of alcohol. Refusal to submit to the test results in a suspension of the person’s license to drive. Ill. Rev. Stat. 1983, ch. 951/2, par. 11—501.1.

Illinois courts have consistently held that section 11—501.1 should be liberally construed to accomplish its purpose of protecting the citizens of Illinois upon the highways. (People v. Ellerbusch (1983), 118 Ill. App. 3d 500, 503, 454 N.E.2d 1166, 1168.) Thus, the courts have found an effective refusal to submit to the test where the driver consents to the test but only feigns performance of the test (People v. Schuberth (1983), 115 Ill. App. 3d 302, 450 N.E.2d 459); where the driver is so intoxicated at the time she is requested to take the test that she later has no memory of the request (People v. Solzak (1984), 126 Ill. App. 3d 119, 466 N.E.2d 1201); and where the driver is requested to and refuses to submit to only one of the three methods of testing available under the statute (People v. Kiss (1984), 122 Ill. App. 3d 1056, 462 N.E.2d 546).

The defendant’s attempt at Alice in Wonderland linguistics is absolutely unavailing. Section 11—501.1 imposed a choice upon the defendant. He was required to either consent to the test or refuse the test. His failure to comply with the testing requirement was a refusal under the statute to submit to a test, despite the defendant’s verbal “refusal to refuse.” A driver who fails to complete a test under the statute will be deemed to have refused to take it. (People v. Frazier (1984), 123 Ill. App. 3d 563, 463 N.E.2d 165; People v. Schuberth (1983), 115 Ill. App. 3d 302, 450 N.E.2d 459.) We find, therefore, that the defendant refused to submit to the test each time Deputy Gronewald requested that he perform the test.

Having determined that the defendant did refuse to submit to a test under the statute, we must now consider whether that refusal was somehow voided by Deputy Gronewald’s repeated requests.

A second purpose of the implied consent statute is to provide objective evidence of the offense of driving under the influence of alcohol. (People v. Malloy (1980), 83 Ill. App. 3d 344, 403 N.E.2d 1221.) Consistent with this purpose, a law enforcement officer may allow a driver to reconsider his refusal to submit to a test. (People v. Frazier (1984), 123 Ill. App. 3d 563, 463 N.E.2d 165.) However, a driver has no right to withdraw a refusal in order to subsequently consent to taking the test. People v. Schuberth (1983), 115 Ill. App. 3d 302, 450 N.E.2d 459.

We find, therefore, that it was proper, although not mandatory, for Deputy Gronewald to allow the defendant to reconsider his refusal to submit to the test. Further, each time the defendant refused, he did so at the risk that Gronewald would not allow him the opportunity to reconsider. Because a driver has no right to withdraw a refusal, no prejudice resulted to the defendant when Gronewald exercised his option of allowing the defendant to reconsider. Gronewald’s action in repeatedly requesting that the defendant submit to the test did not negate the defendant’s refusal under section 11—501.1.

Accordingly, the judgment of the circuit court of Iroquois County is reversed and the cause remanded for further proceedings consistent with this decision.

Reversed and remanded.

HEIPLE, P.J., and STOUDER, J., concur.


author: JUSTICE STROUSE

text:
      In re MARRIAGE OF JANET SUE ANDERSON, a/k/a Janet Sue Senseney, Petitioner-Appellee, and RICHARD H. ANDERSON, Respondent-Appellant.
    Second District
    No. 84—0826
    Opinion filed February 11, 1985.

      Feiwell, Galper & Lasky, of Chicago, and Michael J. Berger, Lawrence S. Starkoff, and Andrew D. Eichner, all of Mirabella & Kincaid, of Wheaton, for appellant.
    George J. Sotos and Joan Brady, both of Lyle B. Haskin & Associates, and Burek & Field, both of Wheaton, for appellee.
   JUSTICE STROUSE

delivered the opinion of the court:

The respondent, Richard Anderson, appeals from an order of the trial court that restricted his visitation rights and denied his petition for a rule to show cause. His principal assignment of error in this court is the trial court’s order restricting his visitation rights.

The petitioner, Janet Sue Anderson, a/k/a Janet Sue Senseney, and the respondent were married on August 10, 1968. Two children, Justin and Marc, were born as a result of the parties’ union. Their marriage was dissolved in Cook County on November 14, 1979, pursuant to Janet’s petition for dissolution. A written separation agreement, which granted the petitioner custody of the two minor children and provided for visitation rights as agreed upon by the parties, was incorporated as part of the judgment of dissolution.

On June 15, 1984, the petitioner sought to enroll the Cook County judgment in the circuit court of Du Page County, and to terminate the respondent’s visitation with his minor children. The court, ex parte, enrolled the Cook County judgment of dissolution and suspended the respondent’s visiting rights until further order of the court based on allegations of sexual misconduct of the father with his minor son, Marc, age six, when they repeatedly bathed together in a tub.

On June 25, 1984, the court granted respondent leave to file a petition to vacate the ex parte order, and on June 29 the parties appeared in court to determine whether Sharon Ellis, a social worker employed by the Child Sexual Abuse Treatment & Training Center of Illinois (CSATC) had completed her evaluation. The court ordered that Marc be evaluated by Dr. Roger Hatcher, that the respondent be given supervised visitation after that interview with Dr. Hatcher, and that the matter be continued to July 2. On July 2, Dr. Hatcher, a clinical psychologist, testified with respect to his interview with Marc. He conducted no psychological tests on Marc but limited his contact to a 20-minute interview. He performed tests on the respondent that demonstrated no significant clinical abnormality, and, in his opinion, the respondent had no personality trait that was consistent with the traits of a sexual abuser.

Dr. Hatcher also interviewed the petitioner and her new husband but did not conduct any tests on them, and was told of additional conduct of the child of which the mother was concerned. He stated that further evaluation was necessary but that the respondent posed no danger to the child, although he was not then convinced that no abuse had taken place. In his opinion, Marc would not suffer any psychological or physical danger if his father were allowed to visit him alone. He indicated that a supervised visitation would be prudent until he completed his evaluation, and he commented adversely on the evaluation of the CSATC.

At the conclusion of that hearing, the court entered an order reinstating visitation rights, but providing that weekend visitations were to be supervised. The order discharged CSATC and prevented them from further interviews or evaluation.

At the hearing on July 26, Dr. Hatcher testified that he interviewed Marc three times and had given him a battery of projective personality tests. He also interviewed both the petitioner and the respondent. While it was his opinion that the acts of sexual abuse had not taken place, he believed that Marc was afraid of seeing his father undress in front of him. He believed that the minor was not in danger, that the respondent had not sexually abused him, that it would be damaging to continue supervised visitation, and that the respondent should be allowed extended unsupervised visitation immediately. He also commented that Marc, now six years old, should not be bathing with his father.

At the hearing on August 8, David Moulthrop, a clinical psychologist, testified on behalf of the petitioner. He had not met Marc, the respondent or the petitioner, but gave his opinion that the psychological tests given by Dr. Hatcher could not indicate whether a child had been sexually abused. On August 10, the trial court entered an order finding the respondent had not engaged in sexual child abuse, reinstating his visitation rights, except for supervised overnight visitation, and denying the petition for a rule to show cause. The respondent filed a motion to reconsider that order. Following a hearing, the court made a finding that Marc had suffered mental abuse, without a specific finding as to whether respondent or petitioner had caused it. The court thereafter denied the motion to reconsider. The respondent filed a timely notice of appeal from both the August 10 order and the subsequent order denying the motion to reconsider.

The respondent argues on appeal that the trial court’s order of August 10, 1984, which provided, in pertinent part, that respondent was entitled to one week’s summertime visitation, excluding overnight visitation, and supervised overnight weekend visitation with his minor son, amounted to a restriction of his visitation rights under section 607(c) of the Illinois Marriage and Dissolution of Marriage Act (hereinafter Act) (Ill. Rev. Stat. 1983, ch. 40, par. 607(c)).

The petitioner responds that the trial court’s order of August 10 amounted to a modification, rather than a restriction, of the respondent’s visitation rights and that there was sufficient evidence in the record to support the modification order under the “best interest” test of section 607(c) of the Act.

Section 607(c) of the Act, which addresses both the modification and restriction of visitation, provides as follows:

“The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child; but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral or emotional health.” Ill. Rev. Stat. 1983, ch. 40, par. 607(c).

An examination of the above enactment reflects that the legislature prescribed two different tests concerning the modification and restriction of visitation rights. (See Gibson v. Barton (1983), 118 Ill. App. 3d 576, 580; In re Marriage of Solomon (1980), 84 Ill. App. 3d 901, 906.) The best-interest-of-the-child standard governs the modification of visiting rights (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 131; see In re Marriage of Griffiths (1984), 127 Ill. App. 3d 123, 125), whereas the endangerment standard governs the restriction of such rights where the court finds that the visitation as it exists seriously endangers the child’s physical, mental, moral, or emotional health (see In re Marriage of Hanson (1983), 112 Ill. App. 3d 564, 568; In re Marriage of Kessler (1982), 110 Ill. App. 3d 61, 70).

With respect to the restriction of visitation, the endangerment standard is an onerous one (In re Marriage of Hanson (1983), 112 Ill. App. 3d 564, 568; In re Marriage of Neat (1981), 101 Ill. App. 3d 1046, 1048), and is more stringent or exacting than the best-interest standard (In re Marriage of Solomon (1980), 84 Ill. App. 3d 901, 907; Ill. Ann. Stat., ch. 40, par. 607(c), Supplement to Historical and Practice Notes, at 27 (Smith-Hurd Supp. 1983); see In re Marriage of Neat (1981), 101 Ill. App. 3d 1046, 1048). Where the custodial parent seeks to restrict visitation rights, he or she bears the burden of proving by a preponderance of the evidence that the existing visitation seriously endangers the child. (Griffiths v. Griffiths (1984), 127 Ill. App. 3d 126, 129; In re Marriage of Neat (1981), 101 Ill. App. 3d 1046, 1048.) Of course, the trial court is vested with wide discretion in resolving visitation issues, and a court of review will not interfere with the lower court’s determination unless an abuse of discretion occurred (Crichton v. Crichton (1979), 75 Ill. App. 3d 326, 330), or where manifest injustice has been done to the child or parent (In re Marriage of Lawver (1980), 82 Ill. App. 3d 198, 202).

“Restrict” has been defined as to keep within certain limits (Gibson v. Barton (1983), 118 Ill. App. 3d 576, 580), or to limit, restrain, or confine within bounds (In re Marriage of Solomon (1980), 84 Ill. App. 3d 901, 907). The endangerment test has been applied to the granting of overnight visitation. Crichton v. Crichton (1979), 75 Ill. App. 3d 326, 330; see Gibson v. Barton (1983), 118 Ill. App. 3d 576, 580; Ill. Ann. Stat., ch. 40, par. 607(c), Supplement to Historical & Practice Notes, at 27 (Smith-Hurd Supp. 1983).

The August 10 order clearly restricted the respondent’s visitation with Marc. The trial court did not make the requisite finding that the visitation would seriously endanger Marc’s physical, mental, moral or emotional health (Ill. Rev. Stat. 1983, ch. 40, par. 607(c)), but rather found that the restriction in visitation was in “the best interests of the minor child.” Accordingly, we conclude that the trial court erred in restricting the respondent’s visitation rights. See In re Marriage of Solomon (1980), 84 Ill. App. 3d 901, 907; but see In re Marriage of Johnson (1981), 100 Ill. App. 3d 767, 771; see generally Gibson v. Barton (1983), 118 Ill. App. 3d 576, 580.

The respondent argues, without citation of authority, that the trial court’s denial of his petition for a rule to show cause filed on August 3, 1984, denied him his fundamental right of due process.

Supreme Court Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7)) provides that a litigant’s brief must contain citations to the relevant authority supporting the argument on appeal. (Michalek v. Village of Midlothian (1983), 116 Ill. App. 3d 1021, 1039.) A court of review is entitled to have the issues clearly defined and to be cited pertinent authority. (Fuller v. Justice (1983), 117 Ill. App. 3d 933, 943; Pecora v. Szabo (1982), 109 Ill. App. 3d 824, 825-26.) A contention that is supported by some argument, but by no authority whatsoever, does not satisfy the requirements of Supreme Court Rule 341(e)(7). (Fuller v. Justice (1983), 117 Ill. App. 3d 933, 942-43; Wilson v. Continental Body Corp. (1981), 93 Ill. App. 3d 966, 969.) By failing to meet the standard of Supreme Court Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7)), this issue is waived.

We note that defendant filed a motion to supplement the record on appeal by adding the motion to bar Sharon Ellis and the Child Sexual Abuse Treatment & Training Center of Illinois from further examination granted by the trial court and the report of Dr. Roger Hatcher which was admitted into evidence during the hearings. A search of the record indicates that these were filed appropriately, and there seems to be no reason why they were not forwarded with the original record. Accordingly, the motion to file supplemental records is granted and the matters therein incorporated in the record considered by the court.

Affirmed in part, reversed in part and remanded.

LINDBERG and SCHNAKE, JJ., concur.


author: JUSTICE STOUDER

text:
      In re MARRIAGE OF CHARLOTTE Y. ROWE, Plaintiff-Appellee, and CLOYCE E. ROWE, Defendant-Appellant.
    Third District
    No. 3—84—0365
    Opinion filed February 5, 1985.

      C. Stephen Marsh, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellant.
    James J. Mesich, of Gende, Mesich & Beatty, of Moline, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from the division of marital property upon the dissolution of the marriage of Charlotte Rowe, the plaintiff, and Cloyce Rowe, the defendant. Cloyce appeals the division of the marital assets by the circuit court of Rock Island County. Cloyce was awarded two businesses, Uniform World, Inc., and Uniform City, Inc., and Charlotte was awarded the marital home.

Cloyce raises three issues on appeal. First, he argues that the two uniform businesses were improperly classified as marital property; second, that the two businesses were overvalued; and third, even if they were properly classified as marital property the trial court erred because it failed to reimburse the defendant’s nonmarital estate for contributions made from his nonmarital property.

The two uniform businesses in question were incorporated in 1972 and 1974. The couple was married in 1967. At the time of their marriage Cloyce was a shareholder and employee of Kaybee-Moline, Inc., in which he owned 150 shares which he had purchased in 1963. Subsequent to their marriage, Cloyce purchased 250 more shares of Kay-bee-Moline stock and became the sole shareholder. In 1979, Kaybee-Moline, Inc., was liquidated, the trial court found, at a loss to creditors and presumably with a total loss to the owner.

Cloyce argues that both uniform businesses were established with funds from Kaybee-Moline, Inc., and that the additional stock acquired after their marriage was acquired from funds previously accumulated by Cloyce. Therefore, Cloyce reasons, the two businesses were his nonmarital assets. We disagree. All property acquired during marriage is presumed marital property and “[t]he presumption *** is overcome by showing that the property was acquired by a method listed in Sub-Section (a) of this Section.” (Ill. Rev. Stat. 1983, ch. 40, par. 503(b).) Subsection (a) of section 503 of the Illinois Marriage and Dissolution of Marriage Act excepts certain property from “marital property.” The part of subsection (a) applicable to this case is “(2) property acquired in exchange for property acquired before the marriage ***” (Ill. Rev. Stat. 1983, ch. 40, par. 503(a)). Far from proving that the uniform businesses were acquired in exchange for Kaybee-Moline, Inc., the evidence suggests just the opposite. Cloyce admits in his brief that Kaybee-Moline was liquidated five years after the first uniform business was formed and three years after the formation of the second business. Furthermore, the trial court found that Cloyce presented no evidence that he had $30,000 to $40,000 in the bank at the time he was married. In fact, Cloyce’s tax return for the year prior to his marriage showed only $96 in “other income.” The trial court found that the success of the two uniform businesses was due to the joint efforts of Cloyce and Charlotte. We will not disturb the findings of the trial court when no other evidence except Cloyce’s testimony exists to overcome the presumption created by the statute.

The next issue raised by Cloyce is that the businesses were overvalued because the accountant who testified as to their value took future earnings of the corporation into consideration in determining their value. Cloyce relies largely upon In re Marriage of Frazier (1984), 125 Ill. App. 3d 473, 466 N.E.2d 290, where the Fifth District held that the valuation of the husband’s insurance agency based upon discounted present value of future earnings was not a proper method of valuation under the Illinois Marriage and Dissolution of Marriage Act because of the nature of the husband’s business. In Frazier, the husband’s earnings from the business were based solely upon a percentage of the commissions generated by premium payments; he had no exclusive territory, and State Farm had the right to transfer any automobile policy to another agent upon written notice. The business could be terminated upon notice by State Farm with only a termination payment by State Farm.

Unlike the agency valued in Frazier, the uniform businesses in this case were not service-oriented businesses which relied solely upon the continuous “personally produced” services of Cloyce. They were well-established ongoing businesses to which Charlotte, too, had contributed her time and efforts. The businesses had inventory and equipment and would not disappear as entities if Cloyce were forced to leave the businesses. The uniform businesses were marketable and had a present value if they were offered for sale at the time of the dissolution in spite of liabilities based upon the corporations’ future earnings and good will. Therefore, the rationale of Frazier is not applicable to the facts of this case because of the differences in the agency and the two corporations in this case. The reasoning which supports the decision in Frazier does not support the reasoning in this case. We also note that the valuation of the two businesses at $170,000, as found by the trial court, is based upon accepted accounting principles and is supported by the evidence.

As to the final allegation of error, we find that because defendant never proved that he contributed nonmarital assets to the uniform businesses, the trial court did not err in refusing to reimburse Cloyce’s nonmarital estate.

We, therefore, affirm the decision of the circuit court of Rock Island County.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


text:
    BRITT A. BEARD, Plaintiff-Appellant, v. THE BOARD OF POLICE COMMISSIONERS OF THE CITY OF WASHINGTON et al., Defendants-Appellees.
    Third District
    No. 3-84-0327
    Opinion filed February 14, 1985.

      David M. Lynch, of Lynch & Bloom, of Peoria, for appellant.
    Kenneth L. Black, of Black & Black, of Washington, and Frederick A. Bernardi, of Bernardi & Bernardi, of Pekin, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from the dismissal of a complaint filed in the circuit court of Tazewell County. The complaint alleged that plaintiff, Britt Beard, and several other police officers (all named defendants) were improperly listed on the promotional eligible register in violation of section 10—2.1—15 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 10—2.1—15). Although none of the officers listed had passing scores on the promotional examination, the register was used to promote one officer to sergeant. Defendants, the board of police commissioners of the city of Washington and the other parties defendant, moved to dismiss for failure to exhaust administrative remedies. The circuit court granted the dismissal.

The sole issue before us on appeal is whether the Administrative Review Law (Ill. Rev. Stat. 1981, ch. 110, par. 3—101 et seg.) applies to promotion of police officers under section 10—2.1—15 of the Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 10—2.1—15).

There is a split in authority on this issue. The First District Appellate Court held in People ex rel. Smith v. Board of Fire & Police Officers (1977), 51 Ill. App. 3d 221, 366 N.E.2d 554, that the Administrative Review Act applies generally to all of division 2.1 of article 10, “Board of Fire and Police Commissioners,” of the Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 10—2.1—1 et seq.). On the other hand, the Second District Appellate Court has several times held that the Administrative Review Act applies only to section 10—2.1—17, the only section in which the Administrative Review Act is mentioned, and not to section 10—2.1—15. (See Barrows v. City of North Chicago (1975), 32 Ill. App. 3d 960, 336 N.E.2d 596; Foster v. Board of Fire & Police Commissioners (1980), 81 Ill. App. 3d 48, 400 N.E.2d 1089; Sullivan v. Board of Fire & Police Commissioners (1981), 103 Ill. App. 3d 167, 430 N.E.2d 636.) We prefer the reasoning of the First District Appellate Court in Smith v. Board of Fire & Police Officers and, therefore, affirm the decision of the circuit court of Tazewell County.

In Smith, the decision leans on the definition of “hereunder” in the section entitled “Removal or Discharge—Investigation of Charges—Retirement.” The pertinent paragraph of that section reads as follows:

“The provision of the Administrative Review law, and all amendments and modifications thereof, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the board of fire and police commissioners hereunder. ***” (Ill. Rev. Stat. 1983, ch. 24, par. 10-2.1-17.)

As the court in Smith found, “hereunder” in this paragraph applies to “the entire Fire and Police Board Division of the Municipal Code of 1961 (Ill. Rev. Stat. (1973), ch. 24, par. 10—2.1—1 et seq.)” and applies to all final decisions of that board. (51 Ill. App. 3d 221, 223, 366 N.E.2d 554, 556.) Furthermore, this is the identical provision found in division 1 of article 10, “Civil Service in Cities,” and we will not limit the applicability of the above paragraph merely because in division 2.1 of article 10, “Board of Fire and Police Commissioners,” the paragraph dealing with administrative review is a paragraph within a section, whereas in division 1 of article 10, “Civil Service in Cities,” the paragraph is a separate section. The section containing the administrative review paragraph is a general section dealing with a variety of only loosely related provisions.

For the foregoing reasons, we find the Administrative Review Law applicable to promotion under section 10—2.1—15, and we therefore affirm the decision of the circuit court of Tazewell County dismissing the complaint.

Affirmed.

HEIPLE, P.J., and BARRY, J., concur.


author: JUSTICE EARNS

text:
    LARRY G. TROVILLION et al., Plaintiffs-Appellants, v. UNITED STATES FIDELITY AND GUARANTY COMPANY et al., Defendants-Appellees.
    Fifth District
    No. 5—84—0323
    Opinion filed February 15, 1985.

      Edwina Warner, of Caldwell, Troutt, Alexander, Quindry & Popit, of Benton, for appellants.
    W. A. Armstrong, of Mitchell & Armstrong, of Marion, for appellees.
   JUSTICE EARNS

delivered the opinion of the court:

This action for declaratory judgment was brought in the circuit court of Franklin County by plaintiffs-insured to determine the rights and duties of the parties under a policy of liability insurance issued by defendant. The trial court held that the defendant, United States Fidelity and Guaranty Company (USF&G), had no duty to defend plaintiffs or to indemnify them for loss because of a judgment entered against them in an action by a third party. Plaintiffs assert on appeal that the complaint filed against them was potentially within the coverage afforded under the policy issued by USF&G and that the insurer breached its contractual duty to defend and is estopped to deny coverage.

The Trovillions, partners in a carpentry and construction business, built a house as general contractors for James and Melissa Williamson. The Williamsons sued the Trovillions and obtained a judgment for breach of contract because of their failure to erect the house in a good and workmanlike manner. Prior to that trial, the Trovillions filed this action, seeking a declaration that USF&G must defend the Williamson suit and indemnify them for any adverse judgment rendered against them. USF&G had theretofore undertaken their defense under a reservation of rights but later withdrew its defense, citing several policy exclusions. The Williamson suit meanwhile proceeded to trial and was defended unsuccessfully by counsel retained by the Trovillions. The judgment was satisfied, and in their instant amended complaint plaintiffs sought to recover that amount plus attorney fees and costs expended in the defense of that suit.

Two weeks after the original complaint was filed, USF&G wrote to Trovillions indicating its belief that several policy exclusions would be effective to preclude coverage and reserving its rights under the policy pending its investigation. The July 5, 1979, letter stated that “there is serious question as to whether this policy provides coverage” and “[i]n view of the foregoing and for other good and sufficient reasons we have referred the complaint to our defense attorney.” USF&G’s defense counsel subsequently filed interrogatories, a request to produce and a motion to dismiss the complaint, which motion was granted, resulting in Williamson’s amended complaint filed in September 1979.

The parties are in agreement that it has long been established that if an action is commenced against an insured alleging claims potentially within the policy coverage, the insurer must either defend the suit under a reservation of rights or seek a declaratory judgment that the policy affords no coverage. (Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24; County of Massac v. United States Fidelity & Guaranty Co. (1983), 113 Ill. App. 3d 35, 446 N.E.2d 584; Consolidated Rail Corp. v. Liberty Mutual Insurance Co. (1981), 92 Ill. App. 3d 1066, 416 N.E.2d 758; Clemmons v. Travelers Insurance Co. (1980), 88 Ill. App. 3d 201, 410 N.E.2d 445; Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 193 N.E.2d 123.) The trial court concluded that “there is no potential or possible coverage afforded to the Plaintiffs under the policy of insurance with respect to the allegations of the [Williamson’s] Amended Complaint.”

Count I of the amended complaint filed against the plaintiffs by Williamson was based on breach of contract. The complaint alleged that the Trovillions agreed to construct a specified house in reasonably good and workmanlike manner. The complaint alleged that the Trovillions failed to perform in that the floor sagged because of inadequate support and as a result the floor in the bedroom area buckled and in other places became detached from the walls; that the walls cracked and the vinyl kitchen floor cracked. The complaint further alleged that the mortar and bricks in the exterior walls and the concrete footings cracked because of structural defects and that the roof leaked. Numerous other defects resulting from faulty construction of the house were alleged. All of the complained-of defects were laid to faulty construction, inferior materials and failure to supply contracted-for items. Count II is a repetition of count I but based on negligence. Judgment was entered on behalf of Williamson on count I only.

The Trovillions argue that the amended complaint also alleges property damage to products or materials other than those furnished by them, specifically the vinyl kitchen flooring, or at least that it clearly encompasses a claim for compensatory damages for such other property damage; although no such' damage was specifically alleged. Such damage would ostensibly not fall within one of the two exclusions relied on by USF&G.

The coverage clause in pertinent part provides:

“The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of *** property damage to which this insurance applies, caused by an occurrence, and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such *** property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, ***.”

An occurrence is defined as an accident. USF&G does not contend that the damage to the house did not result from an accident.

The policy exclusions state that the insurance does not apply:

“(n) To property damage to the Named Insured’s products arising out of such products or any part of such products;
(o) to property damage to work performed by or on behalf of the Named Insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith; * * *. ”

In November 1979, USF&G again wrote to the Trovillions and declared, “We are now in position to advise you that your policy does not provide coverage for the allegations made by the Williamsons.” Specifically, USF&G cited the policy exclusions (n) and (o), which exclusions provide the basis of the dispute. USF&G withdrew its defense in December.

In accordance with the literal terms of the instant policy and applying the reasoning of the recent and strikingly similar case of Western Casualty & Surety Co. v. Brochu (1984), 122 Ill. App. 3d 125, 460 N.E.2d 832, we could conclude, if the procedural posture were the same, that the USF&G general liability policy excludes claims for property damage to the insured’s products or to work performed by the insureds arising out of the work or materials furnished by them.

There, the insured, a contractor, agreed to construct a home in a good and workmanlike manner. As here, the insured purchased a general liability policy with “completed operations” coverage. Three years after the house was completed, the owner sued the insured, alleging property damage to the house when it began sinking into unstable soil which the insured failed to test after representing he would do so. The insurer initially agreed to accept the defense and told the insured’s attorney that there was coverage under the products and completed operations coverage. Representation was then undertaken under reservation of rights, citing the same exclusions (n) and (o) present here.

The court held that while the policy was not written in clear language, it was not ambiguous and that only property damage to property of third parties was included in the coverage. Damage to the product manufactured by the insured or to work performed by the insured were excluded from coverage. The court noted, however, that damage to “other property” was not excluded.

The damage alleged to have occurred here would appear to be damage to the named insured’s product, the house and its several parts and materials. Western Casualty & Surety Co. v. Brochu (1984), 122 Ill. App. 3d 125, 460 N.E.2d 832, is, however, procedurally distinguishable in a very significant respect. There it was the insurer who sought a declaration of its rights when potentiality of coverage was questioned.

We have heretofore held that an insurer’s duty to defend under a reservation of rights or to seek a declaratory judgment is not satisfied by simply refusing to participate in the litigation and waiting for the insured to institute litigation against the insurer to determine their respective rights and duties. County of Massac v. United States Fidel ity & Guaranty Co. (1983), 113 Ill. App. 3d 35, 446 N.E.2d 584; Consolidated Rail Corp. v. Liberty Mutual Insurance Co. (1981), 92 Ill. App. 3d 1066, 416 N.E.2d 758.

The insurer must have been uncertain as to its potential liability under the policy, as it initially undertook the defense of the William-sons’ claim, albeit under a reservation of rights. Under these circumstances, if it later determined that the policy provided no coverage for this occurrence it could not simply withdraw and become a bystander; it would be obliged to seek a declaration of the rights and duties of the parties. Whatever information it may have learned from its independent investigation is of no consequence, as it is the potentiality of coverage from the facts pleaded that determines its duty to defend. (Consolidated Rail Corp. v. Liberty Mutual Insurance Co. (1981), 92 Ill. App. 3d 1066, 1070, 416 N.E.2d 758, 763; Associated Indemnity Co. v. Insurance Co. of North America (1979), 68 Ill. App. 3d 807, 816, 386 N.E.2d 529, 536; Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 193, 193 N.E.2d 123, 127.) When an exclusionary clause is relied upon to deny coverage, its applicability must be clear and free from doubt.

We are aware that the recent Fourth District case, Qualls v. Country Mutual Insurance Co. (1984), 123 Ill. App. 3d 831, 462 N.E.2d 1288, found no liability under facts which may seem like those present here, but we do not find that the disposition there is dispositive, because we perceive that a different issue is presented. There, an action was brought by a dissatisfied homeowner against a carpenter-builder for breach of contract and warranty claiming that the house was poorly constructed. It appears that the reviewing court was convinced that the only damage alleged in the complaint was to work performed by the insured. The court held that a carpenter’s general liability insurance policy did not afford coverage for economic loss resulting solely from poor workmanship. The questions of potential property damage claims within the policy coverage, or the duty of the insurer either to defend under reservation of rights or to seek a declaration of rights, were apparently not raised by the insured, as these issues were not discussed at length in the opinion, because the court found the complaint only requested compensation for economic loss, which fell outside the policy coverage.

USF&G concedes that it would be required to defend if it were alleged that other tangible property owned by the insured, or another, was damaged in the occurrence. We cannot conclude that such a claim is not potentially asserted under the broad allegations of damage contained in the Williamson complaint. Damages of this type could be covered. See, e.g., Western Casualty & Surety Co. v. Brochu (1984), 122 Ill. App. 3d 125, 460 N.E.2d 832; Pittway Corp. v. American Motorists Insurance Co. (1977), 56 Ill. App. 3d 338, 370 N.E.2d 1271; Elco Industries, Inc. v. Liberty Mutual Insurance Co. (1977), 46 Ill. App. 3d 936, 361 N.E.2d 589; Elco Industries, Inc. v. Liberty Mutual Insurance Co. (1980), 90 Ill. App. 3d 1106, 414 N.E.2d 41.

The threshold that the complaint must satisfy to present a claim of potential coverage is low. (La Rotunda, v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 408 N.E.2d 928.) The complaint must be liberally construed and all doubts resolved in favor of the insured. (Maryland Casualty Co. v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 150, 466 N.E.2d 1091; Sentry Insurance Co. v. S & L Home Heating Co. (1980), 91 Ill. App. 3d 687, 414 N.E.2d 1218.) The insurer must defend any claim under the pleadings which might possibly fall within the scope of the policy coverage, even though the claim is later determined to have no merit as a matter of law. (Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 387 N.E.2d 700.) “The insurer can safely and justifiably refuse to defend only when the allegations clearly show on their face that the claim is beyond policy coverage [citations], for the duty to defend is broader than the duty to pay [McFadyen v. North River Insurance Co. (1965), 62 Ill. App. 2d 164, 209 N.E.2d 833].” (Emphasis in original.) La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 451, 408 N.E.2d 928, 933.

We adhere to the rule that in cases in which an insurer believes a policy does not provide coverage, its options are clear. It must either secure a declaratory judgment as to its rights and obligations before or pending trial of the original action or defend under a reservation of rights. Clemmons v. Travelers Insurance Co. (1980), 88 Ill. App. 3d 201, 209, 410 N.E.2d 445, 451; Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 387 N.E.2d 700, and cases therein cited.

Having concluded that USF&G breached its contractual duty to defend, it follows that it is estopped from raising noncoverage as a defense to this action. (Thornton v. Paul (1978), 74 Ill. 2d 132, 144, 384 N.E.2d 335, 340; Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 789, 387 N.E.2d 700, 709; Aetna Casualty & Surety Co. v. Coronet Insurance Co. (1976), 44 Ill. App. 3d 744, 358 N.E.2d 914; Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 193 N.E.2d 123.) The measure of damages for such a breach is the amount of the judgment against the insured plus any expenses incurred. (Thornton v. Paul (1978), 74 Ill. 2d 132, 144, 384 N.E.2d 335, 360.) In the instant case the Trovillions are entitled to the amount of the judgment entered against them plus all costs and attorney fees, which shall include those incurred in defending the underlying suit and in the prosecution and appeal of the instant action.

For all of the above-stated reasons, the judgment of the circuit court of Franklin County is reversed and the cause is remanded for determination of the amount to which plaintiffs are entitled.

Reversed and remanded with directions.

KASSERMAN and HARRISON, JJ., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    MICHAEL W. HELLER et al., Plaintiffs-Appellees, v. CLIFFORD G. LEE, JR., et al., Defendants-Appellants.
    Third District
    No. 3—84—0410
    Opinion filed February 5, 1985.
    Clem & Triggs, of Peoria, for appellants.

      Michael W. Heller, of Peoria, for appellees, pro se.

   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

On August 16, 1982, the circuit court of Peoria County entered a $44,281.85 judgment in favor of the plaintiffs. The defendants appealed and we affirmed. After leave to appeal was denied by our supreme court, the trial court granted the plaintiffs’ motion to release bond on appeal. The bond consisted of a deed to real property and a $15,000 certificate of deposit. The plaintiffs applied the certificate of deposit against the judgment and instituted garnishment proceedings against the defendants to recover the deficiency. Pursuant to section 12—183(g) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 12— 183(g)), the defendants filed an original and amended petition for release from judgment and for return of excess bond. The defendants appeal the dismissal with prejudice of their amended petition.

Section 12—183 supplants the former writ of audita querela and allows a judgment debtor to obtain a release upon a showing that the judgment has been satisfied. The plaintiffs argue that the defendants’ section 12—183 petition was properly dismissed because it did not plead facts sufficient to show that the judgment was satisfied.

Generally, the only way in which a money judgment can be satisfied is by payment in money unless the parties agree otherwise. (ADA Enterprises Inc. v. Thompson (1965), 26 Wis. 2d 269, 132 N.W.2d 244; 47 Am. Jur. 2d Judgments sec. 985 (1969).) Since the defendants rely primarily upon a transfer of real property rather than cash as satisfaction of the judgment, they must plead facts sufficient to show that the plaintiffs agreed to accept real estate in lieu of cash.

The defendants’ petition alleges that the appeal bond, consisting of the certificate of deposit and real property appraised at $50,000, was sufficient to satisfy the judgment. The defendants expected that the plaintiffs would accept the release of bond in satisfaction of the judgment. The plaintiffs allegedly took title to the property instead of exercising their option to compel a sheriff’s sale. Finally, the defendants stated that the plaintiffs never indicated that release of the appeal bond would not satisfy the judgment.

The defendants have alleged only that they expected the property transfer to satisfy the judgment. They have failed to allege facts which show that the plaintiffs shared that expectation. The appraised value of the property is speculative and irrelevant unless the defendants show that the plaintiffs agreed to accept the property at its appraised value instead of cash. The fact that the plaintiffs never indicated that the property transfer would not satisfy the judgment proves nothing. Similarly, the fact that the plaintiffs elected to petition for release of property instead of compelling a sheriff’s sale is not evidence of an agreement to accept the property in satisfaction of the judgment. The plaintiffs were entitled to petition for release of the appeal bond in order to obtain partial cash payment via the certificate of deposit. The plaintiffs did not give up the right to recover the rest of the judgment in cash.

We find that the defendants’ petition fails to allege facts sufficient to show satisfaction of the judgment in cash or an agreement to transfer property in lieu of cash. Therefore, the defendants had no cause of action under section 12—183 and their petition was properly dismissed. Although the petition was technically deficient under section 12—183, for reasons which follow, we find that the defendants are entitled to equitable relief.

The plaintiffs contend that they took the property as security for eventual cash payment of the judgment. We agree. But, as matters now stand, the plaintiffs can sit on the property indefinitely and institute supplemental proceedings to recover the rest of the judgment. Thus, the plaintiffs have the use and enjoyment of a valuable piece of property, while the defendants, who put the property up as bond expecting it to satisfy the judgment, are not only deprived of the property, but may also be compelled to dig even deeper in order to pay the judgment. Such a result is inequitable. The plaintiffs have received a windfall at the defendants’ expense. If, as the plaintiffs contend, the transfer of the real estate was intended to secure the judgment, then by taking the deed the plaintiffs acquired only a lien. Rather than proceed against the defendants to recover the judgment, the equitable solution is for the plaintiffs to foreclose on their lien by selling the property.

We are guided in this result by the maxim that equity regards as done that which ought to be done. The parties intended the property to secure the judgment. Therefore, the property should be used to satisfy the judgment.

Although the defendants’ petition was properly dismissed for failure to state a cause of action under section 12—183, the petition is sufficient to state a claim for equitable relief. The cause is remanded, and the trial court is directed to sell the property, apply the proceeds to the judgment, and remit the excess, if any, to the defendants.

Affirmed and remanded with directions.

SCOTT and STOUDER, JJ., concur.