author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VAUGHN WASHINGTON, Defendant-Appellant.
    First District (4th Division)
    No. 82—302
    Opinion filed June 21, 1984.

      Steven Clark and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Peter M. Delongis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

In a bench trial, defendant, Vaughn Washington, appeals his convictions of murder and armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(a), 33A — 2), and raises the following issues for review: (1) whether he was proved guilty of murder beyond a reasonable doubt; (2) whether attempted murder may be used as a predicate offense for a finding of habitual criminality; (3) whether the habitual criminal statute is unconstitutional; (4) whether the trial judge violated the habitual offender statute; and (5) whether the convictions and sentences for armed violence and murder must be vacated.

Defendant was indicted for the following offenses: the murder of Rudy Jones, the attempted murder of Leroy Martin, a police officer, armed violence against Jones and Martin, and unlawful use of weapons.

At the bench trial, A1 Law testified that on February 22, 1981, at 8:30 p.m., he was in a McDonald’s restaurant at 35th and Wabash Avenue in Chicago, Illinois. Law was waiting to be served when he observed a man, whom he later identified as defendant, walk behind the counter and toward the drive-up window. The man wore a tan trench coat and a brown tweed hat. Law saw nothing in the man’s hand. When Law next observed defendant, he was “scuffling” with the security guard. He never heard the two men say anything. Law heard two shots, turned around and saw the two men still wrestling. The security guard tried to draw his own weapon but defendant had his hand on the security guard’s arm, forcing the gun back into its holster. The defendant pulled a gun from his trousers.

While running out of the restaurant, Law looked back and observed that the two men were still scuffling. The security guard was partially on the floor; only his head was visible above the counter. Law then saw defendant standing over the guard as though shooting down at him; there was a gun in defendant’s hand. After Law heard another three shots fired, he no longer saw the security guard’s head. From a gas station, Law telephoned the police who came immediately. Law saw defendant running down the street. When the officers exited their automobile, Law heard more gunshots. The officers had not drawn their weapons. Law saw defendant shoot at the officers three times; they returned the fire twice. Law went back into the restaurant and saw the guard lying behind the counter. During the struggle, Law never saw the security guard with a gun in his hand.

On cross-examination, Law was asked whether he heard shots during the struggle between defendant and the security guard. He answered in the affirmative. Then he was asked whether that was when he noticed the gun in defendant’s hand. Law said that he saw defendant pull his gun earlier. Law also testified that he heard shots before the security guard drew his weapon. After Law ran out of the restaurant, he saw defendant standing over the security guard and firing down at him. During the incident, Law heard two shots and later three more shots.

In February 1981, Nolan Humphries was the manager of a McDonald’s restaurant. He testified that on February 22, 1981, at about 8:30 p.m., he went to the McDonald’s restaurant at 35th and Wabash to return an item he had borrowed. While talking with the manager in the rear of the building, another employee informed them that a man was behind the counter. Humphries looked around, heard two shots and went to the front of the restaurant. He saw defendant struggling with someone. Humphries heard another shot and eventually ran out of the restaurant but returned when police arrived. He then heard at least two shots coming from the rear of the restaurant but did not see who was firing. When Humphries re-entered the restaurant, he saw the security guard. There was no weapon in his hand or in his holster. On cross-examination, Humphries stated he never saw a weapon in defendant’s hand.

Vernita Fields, a McDonald’s employee, was taking customer orders on February 22, 1981, at about 8:30 p.m. She turned around and saw a person in a beige coat and tweed hat “tussling” with the security guard who was in the drive-up window area. The man in the coat did not have a gun in his hand. She did not previously hear any loud words or argument. She heard a shot and fled to the basement, where she remained until police arrived. While in the basement, she heard two or three more shots.

Pamela Cureton, a Chicago police officer, was on patrol with her partner, Leroy Martin, in the vicinity of the McDonald’s restaurant in the evening hours of February 22, 1981, when a citizen informed them of the incident in question. When the officers arrived at McDonald’s, Cureton saw a man running through a parking lot. She did not see anything in his hands. Cureton and Martin shouted to the man to stop and identified themselves as police officers. The man turned around and fired at Martin who returned the fire. Cureton radioed for help. Martin and defendant exchanged gunfire a second time. When another police car approached, Martin knocked defendant to the ground.

Leroy Martin, a Chicago police officer, corroborated Cureton’s testimony. However, he stated that defendant fired at him three times. When he apprehended defendant, the latter had a .38 caliber revolver. Defendant sustained gunshot wounds, but they were not caused by Martin’s revolver.

The prosecution introduced a stipulation that the security guard who was killed was Rudy Jones, and then rested.

Defendant presented the following stipulations: a blood test taken on February 23, 1981, at 5:40 a.m., at Cook County Hospital revealed .27 milligrams of ethanol in defendant’s blood; on February 22, 1981, defendant sustained two gunshot wounds, one in the right chest and another to the liver; three .38 caliber pellets were removed from the body of Rudy Jones, one from the right chest and two from the right leg; two bullets were fired from a .38 caliber Taurus revolver and the third bullet was fired from a .38 caliber Smith and Wesson. The Taurus revolver was recovered by Officer Martin from defendant and was registered to Rudy Jones. The Smith and Wesson was recovered from the floor near the drive-up window of McDonald’s and was unregistered. The defense then rested.

After closing arguments, the trial court found defendant guilty of murder and armed violence, and not guilty as to all other charges. Defendant was sentenced to a term of natural life. He appeals.

The first issue raised by this appeal is whether defendant was proved guilty of murder beyond a reasonable doubt. Defendant argues that the evidence in this case supports, at best, a finding of voluntary manslaughter. Defendant walked behind the counter of the restaurant, a struggle ensued between him and the security guard, and both men were shot. Two of the three bullets recovered from the victim’s body were from his own gun. Defendant argues that this evidence supports an inference that he reasonably believed deadly force was necessary to prevent imminent death or great bodily harm to himself. No evidence suggests that he entered the restaurant for an unlawful purpose or that he was the aggressor in the incident. Evidence of mutual combat also supports a finding that defendant was guilty only of voluntary manslaughter because evidence of an altercation between the decedent and the accused prior to the acts causing death suggests that the homicide was committed under a sudden and intense passion resulting from serious provocation.

We reject defendant’s argument. A reviewing court will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320.) In a bench trial, it is the province of the trial court to determine the credibility and weight of the testimony, to resolve the inconsistencies and conflicts therein, and to render its decision accordingly. The trial court, unlike the reviewing court, was in a position to observe the witnesses. (People v. Berland (1978), 74 Ill. 2d 286, 305-06, 385 N.E.2d 649, 658.) Applying these principles to the instant case, we hold that there was sufficient evidence to convict defendant of murder. A1 Law testified that he saw defendant and the victim struggling; he heard shots before the security guard drew his weapon; and he saw defendant draw a weapon. Later, Law saw defendant standing over the victim as though firing down on him. Two other witnesses testified that they heard shots, one of whom saw the struggle. We cannot say that the evidence is so unsatisfactory as to raise a reasonable doubt of guilt.

Next, defendant argues that the finding of habitual criminality must be reversed. The habitual criminal statute provides in pertinent part as follows:

“(a) Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony or murder, and is thereafter convicted of a Class X felony or murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal.
* * *
(e) Except when the death penalty is imposed, anyone adjudged an habitual criminal shall be sentenced to life imprisonment.” (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1.)

Defendant had previously been convicted of attempted murder and armed robbery. Defendant claims that attempted murder is not a Class X felony because the statute provides that the sentence for attempted murder “is the sentence for a Class X felony.” (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(c)(1).) Other Class X statutes provide that the offense “is a Class X felony.” (See, for example, Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1(c).) Defendant contends that the difference in language suggests that the legislature did not intend that attempted murder be treated as a Class X felony for all purposes. Alternatively, defendant argues that even if attempted murder is a Class X felony, under ex post facto principles, this court should consider the attempt statute at the time the offense was committed. Previously, attempted murder had the sentence for a Class 1 felony. Ill. Rev. Stat. 1975, ch. 38, par. 8 — 4(c)(1).

We reject defendant’s argument. In a recent case, this court has held that attempted murder is a Class X felony. (People v. Pagliuca (1983), 119 Ill. App. 3d 906, 913, 458 N.E.2d 908, 914.) Therefore, we hold that the trial court properly invoked the habitual criminal statute where defendant had previously been convicted of attempted murder and armed robbery, both offenses now classified as Class X felonies.

Defendant offers several arguments that the habitual criminal statute is unconstitutional. First, defendant claims that the statute does not provide adequate notice to a defendant that if he is convicted the prosecutor will seek a natural life sentence. The prosecutor may wait until the sentencing hearing before giving such notice. According to defendant, this deficiency in the statutory notice requirement and the lateness of notice violates the due process clauses of the United States and Illinois constitutions. Defendant contends that notice is required well in advance of the sentencing hearing so that the defendant’s attorney will have time to challenge prior convictions so as to uncover any infirmity. Defendant also claims that by failing to require the State to prove beyond a reasonable doubt the existence of facts requiring the enhanced penalty, the habitual criminal statute violates the rule of People v. Ostrand (1966), 35 Ill. 2d 520, 221 N.E.2d 499, as modified in People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490.

We reject defendant’s argument. The habitual criminal statute is concerned with sentencing. When defendant was charged with murder, he was put on notice that if convicted he would be subject to all possible penalties applicable to such a conviction. In Oyler v. Boles (1962), 368 U.S. 448, 452, 7 L. Ed. 2d 446, 450, 82 S. Ct. 501, 504, the Supreme Court held that due process does not require advance notice that the trial on the substantive offense will be followed by a habitual criminal proceeding, although a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge. In the instant case, defendant had an adequate opportunity to prepare a possible defense to invocation of the habitual criminal statute. Defendant was found guilty of murder on December 15, 1981. The sentencing hearing was held on January 12, 1982. At the hearing, the trial court asked defendant’s attorney whether he wanted to rebut the prima facie presumption of validity established by certified copies of defendant’s prior convictions for armed robbery and attempted murder. The attorney stated that he had nothing to rebut the presumption. We hold that defendant waived his right to challenge the validity of his prior convictions. See People v. Mason (1983), 119 Ill. App. 3d 516, 522, 456 N.E.2d 864, 868.

We find inapposite People v. Ostrand (1966), 35 Ill. 2d 520, 221 N.E.2d 499, and People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490. In each of those cases, a misdemeanor offense was enhanced to a felony because of defendant’s prior convictions. In the instant case, defendant was subject to an enhanced penalty because of prior convictions.

Defendant argues that the habitual criminal statute removes all of the sentencing authority traditionally reserved to judges and gives it to the prosecutor. The statute gives the prosecutor absolute discretion as to whom he wishes to sentence to life imprisonment, and gives the prosecutor no standards or other guidance in making this decision, allowing him, at his whim, to sentence one person to spend the rest of his life in prison while another serves only a term of years. The statute violates the separation of powers doctrine by taking the sentencing function from the judicial branch and giving it to the executive branch, by a legislative infringement of an exclusively judicial function, and by improperly delegating legislative power to the executive branch. Defendant contends that the habitual criminal statute should either be declared unconstitutional or construed as nonmanda-tory.

The issues of whether the habitual criminal statute is unconstitutional because it gives the prosecution unbridled discretion in deciding whether to seek the imposition of a life sentence and because it violates the separation of powers doctrine have been addressed in two recent cases, People v. Mason (1983), 119 Ill. App. 3d 516, 456 N.E.2d 864, and People v. Withers (1983), 115 Ill. App. 3d 1077, 450 N.E.2d 1323. In Withers, the court stated that the language in the habitual criminal statute “does not explicitly delegate to the State the power to choose which defendants shall be made subject to its terms. Rather, its provisions apply to ‘every person’ who meets its criteria. The word ‘may’ in section 33B — 2(a) can be read as prescribing how the prosecutor brings to the court’s attention a defendant’s prior conviction history.” (115 Ill. App. 3d 1077, 1088.) In Mason, the court concluded that the habitual criminal provision did not violate the separation of powers doctrine. Therefore, we conclude that the habitual criminal statute is not unconstitutional as granting unbridled discretion to the prosecutor or as violative of the separation of powers doctrine.

Next, defendant argues that the habitual criminal statute is unconstitutional because it requires the imposition of natural life imprisonment while forbidding consideration of personal characteristics and the seriousness of the offense, thus violating the Illinois Constitution, due process, and the eighth amendment to the United States Constitution. A similar argument was considered at length but rejected in Withers. Accordingly, we hold that the habitual criminal statute does not violate the Illinois Constitution, due process, nor the eighth amendment to the United States Constitution.

Defendant contends that the habitual criminal statute violates the United States and Illinois constitutional provisions regarding ex post facto laws and double jeopardy. He claims that under the statute, a defendant is punished not just for committing the third offense but for being a habitual criminal. Thus, he is necessarily being punished for the two earlier offenses which made up part of the finding of habitual criminality. Since this punishment was in part for offenses committed prior to the effective date of the habitual criminal statute, the ex post facto principle is violated. The double jeopardy provision is violated because defendant is being punished a second time for the first two offenses, which are alleged as part of the charge of habitual criminality.

We again reject defendant’s arguments. Recidivist statutes have been consistently upheld as not violative of ex post facto constitutional provisions. (People v. Mason (1983), 119 Ill. App. 3d 516, 524, 456 N.E.2d 864, 869.) Under the habitual criminal statute, defendant is not punished a second time for a prior offense; rather, prior adjudications are used to establish matters in aggravation to support the disposition authorized for a third serious offense. (Cf. People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, 77-78, 413 N.E.2d 1269, 1274-75), construing the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 1 et seq.). Accordingly, we hold that the habitual criminal statute does not violate ex post facto and double jeopardy provisions of the Illinois and United States constitutions.

Defendant argues that he was denied his statutory and due process right to a hearing at which the State must prove defendant’s prior convictions. He alleges that the trial judge failed to directly address and inform him of his right to a habitual offender hearing and improperly allowed defense counsel to waive his right to a hearing even though counsel had not consulted with him. Defendant claims it was error to shift to him the burden of disputing the convictions.

Defendant’s argument has no merit. When defendant was pronounced guilty, he was put on notice that a sentencing hearing would follow. As we stated above, defendant waived his right to challenge the validity of his prior convictions at the sentencing hearing. Moreover, at that hearing, defendant said that he “did all of those things in the past,” thus admitting the validity of his past convictions. Therefore, we hold that defendant was not deprived of his right to a habitual offender hearing.

Finally, defendant argues that his convictions for armed violence and murder must be vacated under People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, and People v. Davis (1981), 100 Ill. App. 3d 268, 426 N.E.2d 1047. The State argues that defendant was properly convicted of both offenses because the victim died of multiple gunshot wounds, thereby indicating that the offenses arose from a series of closely related or incidental acts and not from a single act as defendant contends.

In our opinion, under Donaldson, defendant’s conviction for armed violence must be reversed. In Donaldson, our supreme court stated that the armed violence statute enhances the mandatory minimum sentence to be imposed upon conviction of a felony. (People v. Donaldson (1982), 91 Ill. 2d 164, 169.) The legislature intended only to increase or enhance the minimum penalty upon conviction of a felony when the violator was in possession of a dangerous weapon while committing the felony. If it were its intention, the legislature could have expressly provided for separate convictions and sentences on charges of armed violence and its predicate or underlying felony. People v. Donaldson (1982), 91 Ill. 2d 164, 168.

In the instant case, armed violence is the underlying felony for the murder. However, defendant was sentenced under the habitual criminal statute to the maximum penalty possible, except for capital punishment; he was sentenced to a term of natural life. Thus, the purpose of the armed violence statute is not fulfilled in this case because defendant’s penalty cannot be further enhanced. Therefore, we reverse defendant’s conviction for armed violence.

For the foregoing reasons, the conviction for murder is affirmed, and the conviction for armed violence is reversed.

Affirmed in part and reversed in part.

LINN, P.J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE HOPE

license: Public Domain

text:
    D. L. SCHOENROCK et al., Plaintiffs-Appellees, v. ANDEN CORPORATION, Defendant-Appellant.
    Second District
    No. 2—83—0555
    Opinion filed June 20, 1984.

      David Apter, of Kantor & Apter, of Chicago, for appellant.
    Frank G. Roux, of Lunardi, Roux & Svehla, of Waukegan, for appellees.
   JUSTICE HOPE

delivered the opinion of the court:

Defendant, Anden Corporation, appeals from a judgment for $1,300.83 entered in favor of plaintiffs, D. L. and Catherine Schoenrock. Defendant had constructed and sold a home to the plaintiffs in 1977. Plaintiffs subsequently filed a small claims complaint on February 23, 1983, alleging a defect in the sewer pipe construction. After a hearing, the circuit court of Lake County found that defendant had improperly aligned the sewer line in constructing the home, causing the sewer to back up and damage plaintiffs’ lower floor and requiring plaintiffs to incur costs for repairing the sewer. The court found for plaintiffs and defendant appeals.

On appeal defendant argues that plaintiffs should be barred from obtaining relief because the implied warranty of habitability does not extend liability to a builder for defects which do not manifest themselves until two to six years after the sale of the home. Defendant also urges that because plaintiffs failed to notify it of the defect and give it an opportunity to make repairs, relief should be denied.

The plaintiffs moved into the home constructed by defendant in June of 1977. After about two years, they experienced a sewage backup into an unfinished basement of the home. They contacted a plumber, who had to rod the pipe out. This procedure was repeated six times over the next three years, and plaintiffs paid this plumber a total of $191. Plaintiffs contacted a second plumber in November of 1981 who also rodded the pipe out and provided temporary relief.

In February 1983 this second plumber, who testified at trial, broke open the concrete floor covering the sewer pipe and discovered that the pipe was improperly pitched so that at one point sewage flowing through it was required to run against the force of gravity. He decided to open the concrete floor based upon the history of backups and because his rodding in November of 1981 found the presence of grease and soap indicative of a “swale” (low spot) in the sewer line which would prevent these substances from flowing out and permit them to congeal. He hypothesized that the improper pitch resulted from improper installation of the pipe or some subsequent event. He replumbed the pipe to eliminate the pitch and charged plaintiffs $1,088.83 representing 32 hours of labor. Plaintiffs paid $20 to a scavenger to remove broken cement.

Plaintiffs testified that they never reported the problem to defendant because they thought that something had been thrown in the toilet causing the problem and because both plumbers diagnosed a possible cause of the problem as building debris caught in the pipes. They admitted receiving a warranty after closing the sale and that they had previously contacted defendant to perform other repairs. The court admitted into evidence a checklist on which defendant warranted mechanical and structural defects for one year and on which D. L. Schoenrock’s signature appeared.

Plaintiffs further testified that the backed up sewage caused their carpet to mold, requiring its replacement with 80 yards of comparable grade at $17 per yard. At the same time they recarpeted their entire home and paid the $3,300 bill. They never contacted defendant about the carpeting replacement.

The trial court found in favor of plaintiffs and awarded damages representing their plumbing expenses and the scavenger bill in the amount of $1,300.83. However, it awarded only $1 for the carpeting loss because plaintiffs failed to establish the value of the damaged carpeting.

Basically, defendant raises two issues for consideration on appeal. First, it contends that a builder-vendor of a new home cannot be held liable for defects that do not manifest themselves for two to six years after the sale of the home. Secondly, it contends that the purchaser of a new home is precluded from recovering for defects under the doctrine of implied warranty of habitability where the purchaser fails to notify the builder-vendor and allow it the opportunity to make the repairs. After consideration of the issues, the case law and the relevant statutes, we conclude that the trial court should be affirmed.

Defendant contends that the plaintiffs first discovered the problem in 1979 and should have acted prior to the time they filed suit. Contrary to this assertion, however, the plaintiffs’ testimony reveals that the defect manifested itself within two years, but was not actually discovered until the basement floor was tom up to expose the pipe. Thus, we believe plaintiffs could not reasonably have been expected to act any sooner than they did.

Defendant also argues that a builder-vendor does not guarantee a home for its lifetime and that a claim based upon a defect manifesting itself as late after the closing as here should not be encompassed within the implied warranty of habitability. Defendant refers to Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 185, 441 N.E.2d 324, 331, where our supreme court held that the implied warranty of habitability extended to a subsequent purchaser is limited to latent defects which manifest themselves within a reasonable time after the original purchase of the house. Defendant attempted to distinguish Knox College v. Celotex Corp. (1980), 85 Ill. App. 3d 714, 407 N.E.2d 176. It contended that Knox was based upon fraud and misrepresentation, and because of this the court found that the plaintiff did not delay unreasonably in discovering the true defects. It contends that there were no representations made inhibiting the Schoenrocks from enforcing their claim. It claims that they could have discovered the defect earlier than when in fact it was discovered. However, Knox was reversed by our supreme court upon grounds which will be discussed later in this opinion. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.

Although defendant refers to the concept of statutes of limitations, it never moved to dismiss the complaint on this basis and therefore has waived this issue. (Conley v. Rust (1973), 12 Ill. App. 3d 26, 29, 297 N.E.2d 397, 400.) The essence of defendant’s argument appears to relate to the time span for which an implied warranty of habitability applies. Resolution of this issue requires reference to the applicable statute of limitation. These were not cited by either party, but are dispositive of this appeal.

Section 13 — 214 of the Code of Civil Procedure provides, in pertinent part:

“Actions based upon tort, contract or otherwise against any person for an act or omission of such person. in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 2 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.” (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214(a).)

This section applies in actions seeking recovery under the implied warranty of habitability theory for defective construction of a home. (See Matayka v. Melia (1983), 119 Ill. App. 3d 221, 223-24, 456 N.E.2d 353, 355; see also Briarcliffe West Townhouse Owners Association v. Wiseman Construction Co. (1983), 118 Ill. App. 3d 163, 172, 454 N.E.2d 363, 368.) It further provides that:

“No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 12 years have elapsed from the time of such act or omission.” Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214(b).

This legislation represents the General Assembly’s determination that 12 years is a reasonable maximum time period for which an implied warranty of habitability may be imposed. Such a limitation should alleviate defendant’s concern that a builder may become a lifetime guarantor of his homes.

The parties have not cited any case law which discusses what factors, if any, could be considered in determining whether the defect manifested itself within a reasonable period of time within the meaning of Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 185, 441 N.E.2d 324, 331. Thus, there is no basis for applying a time period any shorter than that set forth in the above-quoted statute. Though Re-darowicz seemed to limit this standard to a subsequent purchaser, we see no reason for this distinction, and it should apply to an original purchaser as well. (Cf. Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 389 N.E.2d 1154.) Apart from the statute of limitations (Ill. Rev. Stat. 1981, ch. 110, pars. 13 — 214(a), (b)), which the parties failed to raise, and applying the standards set forth in Redaro-wicz, it is readily apparent that the defect complained of manifested itself within a short and reasonable period of time of the sale of the home.

The earliest that it could be said that the plaintiffs discovered the defect, and who was responsible for it, was in November of 1981. This was when the second plumber hired by the plaintiffs, by his rodding procedures, determined that there may have been a swale in the line. This occurrence was approximately five years after the purchase of the home and well within the 12-year statute of limitations (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214(b)).

It was not until the second plumber broke open the basement floor in February of 1983 that the defect was particularly determined and who was at fault. This lawsuit was then commenced on February 23, 1983. Regardless of which date is chosen as the date of discovery, the suit was instituted within the two-year limitation after discovery as set forth in section 13 — 214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214(a)).

In the instant case both parties have relied upon one aspect or another of Knox College v. Celotex Corp. (1980), 85 Ill. App. 3d 714, 407 N.E.2d 176, rev’d (1981), 88 Ill. 2d 407, 430 N.E.2d 976. In Knox College the college sought to recover from the defendant’s manufacturer of roofing material installed in September 1970 for defects therein. Leaks developed in the roof soon after its installation. These were repaired initially by the installer at his own expense pursuant to the term of its own five-year guarantee. Subsequently the college shared the repair expenses. The college was informed in July 1976 that the roof would have to be replaced and in November 1976 that the problems might have been caused by deficiencies in the roofing system. In June 1978 the college filed suit against the defendant, among others, but its complaint was dismissed for, among other reasons, being barred by the statute of limitations. The appellate court reversed, applying the discovery rule which in the instant case is specifically incorporated in the statute of limitations provision set forth above. Addressing the issue of “[d]oes the cause of action accrue when the plaintiff knows he has suffered injury or damage or does it accrue when he knows or should know that the injury or damage is the result of another’s tortious act?” the court held that the period of limitations commences when the plaintiff knew or should have known that the injury or damage is the result of another’s tortious act. (Knox College v. Celotex Corp. (1980), 85 Ill. App. 3d 714, 719-20, 407 N.E.2d 176, 180-81.) The supreme court reversed the appellate court, however, on this issue, holding that the period of limitations commences at the point where a person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved. Knox College v. Ce-lotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976, 980-81; Pollock v. Hafner (1982), 108 Ill. App. 3d 410, 414, 439 N.E.2d 85, 87.

We believe that the reasonableness standard and its application to discovery of a latent defect as set forth by the supreme court in Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976, is applicable to the case before us. Both plumbers originally diagnosed a cause other than a defective pitch to a sewer line. The true cause of the defective line was only discovered after a portion of the basement was tom up, albeit the second plumber believed in November of 1981 that a swale in the line could have caused the backup. We note that even if the earlier date of November 1981 is used the suit was still filed within two years. It appears that the discovery of the defect and its relation to the conduct of the defendant occurred within a reasonable time and there was not unreasonable delay in commencing suit.

With regard to the defendant’s second issue on appeal, we note that the defendant cites no case law to support its contention that an implied warranty of habitability may not be maintained where the purchaser failed to notify the builder of the problem and afford the builder an opportunity to remedy the defects. At most this would be a question of damages. However, in the instant case defendant has failed to establish that it was prejudiced by plaintiff’s failure to notify it of the defect. There is no evidence of such prejudice, and none can be presumed to exist from the present record. Therefore, for the reasons stated, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

SEIDENFELD, P.J., and REINHARD, J., concur.


author: PRESIDING JUSTICE LINN

text:
    GORDON E. PIENTKA, Plaintiff-Appellee, v. THE BOARD OF FIRE COMMISSIONERS OF THE NORTH MAIN FIRE PROTECTION DISTRICT et al., Defendants-Appellants.
    First District'(4th Division)
    No. 82—2637
    Opinion filed June 21, 1984.

      M. Leslie Kite and David Schachman, both of M. Leslie Kite & Associates, P.C., and Sidney M. Libit, of Libit, Lindauer & Henry, both of Chicago, for appellants.
    Murphy, Mitchell & Jaffe, of Chicago (James P. Flannery, Jr., and Lee Preston, of counsel), for appellee.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Following a hearing before the board of fire commissioners of the North Main Fire Protection District (board), plaintiff, Gordon E. Pientka, was discharged from his position as a firefighter employed by the North Main Fire Protection District (district) on the ground that he had lied when he represented to the district and to the Industrial Commission that he had injured his back on March 6, 1979, while

on duty. Pientka filed a complaint for administrative review under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.).

Meanwhile, in a separate proceeding before the Industrial Commission, Pientka and the district entered into a lump sum settlement contract resolving four workers’ compensation claims filed by Pientka between 1976 and 1979. The trial court reversed the decision of the board and remanded the case with specific instructions to the board to consider the effect of the settlement contract on its decision to discharge Pientka. After reconsideration, the board affirmed Pientka’s discharge, whereupon he filed a second complaint for administrative review. This time the trial court reversed the decision of the board in its entirety, and the board filed this appeal.

Three issues are raised on appeal: (1) whether the trial court erred in considering the settlement contract to be a judicial admission of liability on the part of the board, (2) whether the trial court erred in reversing the decision of the board as being against the manifest weight of the evidence, and (3) whether section 4(h) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.4(h)) prevents the board from discharging plaintiff.

We reverse the decision of the trial court and affirm the decision of the board.

Facts

The record discloses that Gordon Pientka, a firefighter employed by the district, was assigned to the 24-hour shift beginning at 8 a.m. on March 6, 1979. Also on duty that day was Firefighter Michael Bronk, who testified that by 10 a.m., Pientka was complaining that his back was bothering him. Although Pientka worked at various tasks around the fire station during the day, he complained that his back was growing steadily worse, until by 9:30 p.m. he was unable to walk. However, Bronk testified that when he suggested that Pientka go to the hospital, Pientka refused unless he could claim that he had been injured on the job so that he could claim workers’ compensation benefits. When Pientka asked Bronk to support his story that he had slipped in some water on the apparatus floor, Bronk said he could not. Pientka was then taken by ambulance to Lutheran General Hospital. Nearly a year later, Pientka requested that Bronk meet him in the hospital parking lot, and he asked again if Bronk would support his story at the upcoming Industrial Commission hearing. Bronk again refused.

On March 7, 1979, the day following his treatment at the hospital, Pientka filed his workers’ compensation claim and was placed on inactive duty. He retained that status for more than a year except for a period of five weeks in 1979 when he returned temporarily to light duty. Not until the new fire chief, Walter Kelly, received a report from Pientka’s doctor allowing him to return to limited duty did he begin to investigate Pientka’s claim. Finally, as a result of his interview of Michael Bronk, Kelly filed formal charges against Pientka requesting that the board discharge him from his position.

Pientka’s version of the incidents in question was decidedly different. He testified that at no time on March 6 had he complained about his back until after he slipped and fell late that evening. Further, he said that neither on the night he was taken to the hospital nor at the meeting a year later in the hospital parking lot did he ask Bronk to support his story, but instead simply asked if Bronk had seen him slip and fall.

On January 20, 1981, the board announced its findings and decision to discharge Pientka. Specifically, the board found that Bronk was a more credible witness than Pientka and that Bronk’s version of the activities in question provided sufficient evidence to support Pientka’s discharge for falsely reporting to both the district and to the Industrial Commission that he had injured his back while on duty.

Meanwhile, following the March 7, 1979, filing of Pientka’s workers’ compensation claim, the Industrial Commission held hearings to determine the validity of that claim and three others previously filed by Pientka. A hearing officer presided over several days of testimony, which resulted in a record of over a thousand pages. However, before the hearing officer could render his decision, he died; consequently, Pientka and the district were faced with three alternatives: (1) a new Industrial Commission hearing officer could conduct new hearings, (2) a new hearing officer could make a decision after reading the transcript and reviewing the exhibits from the original hearing, or (3) the parties could reach a settlement. Deciding that the third choice was the most expeditious, on March 30, 1981, Pientka and the district agreed to settle all four claims for a lump sum of $6,500.

The settlement contract specifically recited the following:

“[Tjhere are disputed questions of law and fact. The parties agreed to this settlement to avoid further litigation, believing it is fair and reasonable under the circumstances, wherein the Respondent [District] claims they have no liability whatsoever as a result of any and all claims, known or unknown, for injuries or conditions of ill-being which occurred at work.”

No dollar amount was assigned to any of the four claims, and no findings were made concerning their validity.

On June 24, 1981, Pientka filed his complaint for administrative review of his discharge. The trial court, believing that the settlement contract was a judicial admission by the board that Pientka had sustained an on-the-job injury on March 6 and therefore had not lied, remanded the case to the board with directions to consider the effect of the settlement on its decision. After another hearing, at which the board heard arguments on that specific issue, the board affirmed its earlier decision to discharge Pientka.

Pientka then filed his second complaint for administrative review; the trial court again reversed the decision of the board, this time stating outright that the board’s approval of the settlement contract was a judicial admission of the “facts” explaining each claim as set out in the contract and characterizing the decision by the board discharging Pientka as unsupported by the manifest weight of the evidence. From the order reversing the decision of the board in its entirety, the board now appeals.

Opinion

The first issue to be dealt with here concerns Pientka’s assertion that his discharge was unlawful because section 4(h) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.4(h)) protects an employee from being discharged in retaliation for filing a workers’ compensation claim. Our reading of the. record in no way supports Pientka’s claim that he was discharged for filing a claim; he was discharged for allegedly violating section 2.14 of the Rules of the North Main Fire Protection District in that he “accepted] salary payments from the District without working, by falsely claiming that he sustained an injury to his back on March 6, 1979 while on duty in the Fire Station of the North Main Fire Department.”

Section 16.13 of “An Act in relation to fire protection districts” (Ill. Rev. Stat. 1979, ch. 1271/2, par. 37.13) vests in the board of fire commissioners exclusive jurisdiction to investigate, hear, and decide charges against an officer or member of the fire department and to suspend, remove or discharge an officer or firefighter found guilty. The fact that the charge of lying lodged against Pientka was based on the same underlying circumstance that triggered his filing a claim with the Industrial Commission, i.e., his allegation that he was injured on the job on March 6, 1979, does not alter the fact that the disciplinary action taken by the district was a direct result, not of his filing a workers’ compensation claim, but of his making what was determined to be a false statement to his superior officer and thereby collecting his salary for more than a year without working.

While the Industrial Commission provides the exclusive means by which covered employees may recover damages from their employers for work-related injuries (Ferguson v. Roundtable Motor Lodge (1980), 83 Ill. App. 3d 331, 404 N.E.2d 1039), it has no jurisdiction over disciplinary measures taken by an employer against an employee who violates specific rules governing his job. In the case of firefighters, the statutorily granted right to discipline is in the hands of the local board of fire commissioners, which makes its own determination of any charges brought against an officer or firefighter. The gravamen of the charge filed before the board was Pientka’s claim to an on-the-job injury and his subsequent acceptance of this salary without working for nearly a year. Therefore, we find meritless Pientka’s contention that he was discharged for exercising his right to file a workers’ compensation claim.

II

The second issue raised on appeal concerns the propriety of the trial court’s consideration of the settlement contract as a judicial admission by the district. Pientka claims that by signing the contract, which is also a petition to the Industrial Commission to enter the agreed-upon sum as a judgment order against the district, the district “admitted” as true all the statements contained in the contract, including those listing each injury and the date of its occurrence. The board, on the other hand, points to the specific disclaimer of liability quoted above as proof that the district’s signing the contract was not an admission of any “fact” contained in the settlement. We agree with the board and specifically find that as the contract was not a judicial admission, the trial court improperly considered it when reversing the board’s decision to discharge Pientka.

In support of his argument that the settlement contract constituted a judicial admission, Pientka cites Bassi v. Morgan (1965), 60 Ill. App. 2d 1, 208 N.E.2d 341, in which an application for exclusive workers’ compensation benefits was held to be an evidentiary admission that the applicant was injured in the course of her employment and therefore was limited to seeking recovery under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). This evidentiary admission precluded plaintiff from maintaining a separate claim for damages against the defendant on the ground that she was a nonpaying guest passenger in defendant’s automobile.

Another case, discussed by the board but not cited by Pientka, is Korleski v. Needham (1966), 77 Ill. App. 2d 328, 222 N.E.2d 334, in which an Industrial Commission settlement contract between a decedent’s widow and his employer was properly admitted into evidence as an admission against the employer’s interest in another suit. In a related suit brought against the employer by another party injured in the same automobile accident, the settlement contract was held to be sufficient evidence to establish a prima facie case of an agency relationship between the employer and the decedent.

Although the above cases bear some similarity to the present case, we find that neither supports Pientka’s position, adopted by the trial court, that the settlement contract constitutes a judicial admission of the truth of every entry relating to Pientka’s four claims.

In Bassi, the document involved was an application by the plaintiff for workers’ compensation benefits, a direct contradiction of the statement in her complaint at law alleging that at the time of the accident she was not engaged in her employment. Clearly, the issue was the status of the plaintiff at the time of the accident, and the appellate court ruled that the application should have been admitted as some evidence of her status. However, the application was not admitted for any reason related to the merit of plaintiff’s claim for damages.

In Korleski, the settlement contract itself was properly admitted, not as an admission of any of the facts relating to the decedent’s widow’s claim, but only as some evidence of the principal-agent status of the decedent and his employer, the defendant. In both these cases, the major issue concerned the status of one of the parties and its effect on either the forum for recovery or the identity of the real party in interest. In neither case was the Industrial Commission document used to prove a fact relating to the claimed injury itself.

In contrast, in the instant case the trial court used the settlement contract not as some evidence but as dispositive evidence of the truth of one of the claims filed with the commission. Further, this use was in direct contravention of the disclaimer language agreed to by both parties. Indeed, at one of the many hearings involved in this case, Pientka’s attorney agreed that the settlement contract contained no findings of fact, a position directly contradictory to the one he has taken in this appeal.

We hold that the use of the settlement contract as evidence of the truth of any of Pientka’s claims for workers’ compensation recovery was error. A settlement agreement between two parties cannot be used as an admission of liability against one of them in a related suit. (Hill v. Hiles (1941), 309 Ill. App. 321, 32 N.E.2d 933.) Further, the disclaimer was part of the bargain entered into by Pientka and the district, and therefore it is effective according to its terms. (See Gideon Service Division v. Dunham-Bush, Inc. (1980), 80 Ill. App. 3d 633, 400 N.E.2d 89.) Finally, even if the disclaimer were not effective, the fact that no dollar amount was assigned to any of the four claims prevents any conclusion that each claim was found to be meritorious. “A compromise settlement as represented by the lump-sum settlement contract may not be determinative of the merits of an employee’s claim under the Workmen’s Compensation Act.” (Hammond v. Prudential Insurance Co. of America (1966), 75 Ill. App. 2d 15, 18, 220 N.E.2d 26.) The listing of the claims in the body of the form contract merely set out which claims were being disposed of, nothing more and nothing less.

Ill

Last, the board maintains that the trial court erred in reversing its decision to discharge Pientka because the board’s decision was not against the manifest weight of the evidence. We agree.

The sole issue before the board was a factual one: whether the evidence indicated that Pientka had lied about injuring his back when he slipped in water on the fire station floor and fell. In reviewing an administrative decision, the trial court must accept as prima facie true and correct the agency’s findings and conclusions on questions of fact. (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 110.) The function of the reviewing court is limited to determining whether the decision of the administrative agency is contrary to the manifest weight of the evidence, which means that an opposite conclusion must be clearly evident. (Pryka v. Board of Fire & Police Commissioners (1978), 67 Ill. App. 3d 210, 384 N.E.2d 784.) Where it appears that there is evidence to support the findings of the agency, its decision should be affirmed. Okino v. Department of Corrections (1980), 84 Ill. App. 3d 1084, 405 N.E.2d 1369.

Pientka argues that the board should have accepted his unrebutted testimony that he fell and injured himself while at work. However, the board heard sufficient testimony from Firefighter Bronk to support its decision. Conflicts in testimony focus on the credibility of the witnesses and are to be resolved by the agency that heard the evidence and observed the witnesses. (Keen v. Police Board (1979), 73 Ill. App. 3d 65, 391 N.E.2d 190.) “The trier of fact is not required to believe the testimony of an interested witness merely because it is uncontradicted.” (Davies v. Arthur Murray, Inc. (1970), 124 Ill. App. 2d 141, 260 N.E.2d 240.) Pientka’s testimony before the board was not found to be credible. Because we cannot say that an opposite conclusion is clearly evident (Carlisi v. Liquor Control Com. (1969), 116 Ill. App. 2d 350, 359, 253 N.E.2d 560, 565), we reverse the decision of the trial court and affirm the board’s discharge of Gordon Pientka.

Reversed.

JOHNSON and JTGANTI, JJ., concur.

      A second charge against Pientka, that of refusing to obey an order of his superior officer, concerned his refusal to take a polygraph test covering his alleged on-the-job injury. The recent case of Kaske v. City of Rockford (1983), 96 Ill. 2d 298, 450 N.E.2d 314, cert, denied (1983), 464 U.S. 960, 78 L. Ed. 2d 335, 104 S. Ct. 391, held that a police officer" may not be compelled to take a polygraph examination, nor are results of any polygraph examination admissible in any administrative hearing. Consequently, the second charge was not made part of this appeal.


author: JUSTICE LORENZ

text:
    WALTER BRAUN, Plaintiff-Appellee, v. RETIREMENT BOARD OF THE FIREMEN'S ANNUITY & BENEFIT FUND OF CHICAGO, Defendant-Appellant (The Chicago Fire Fighters Union, Local No. 2, et al., Intervenors-Appellants).
    First District (5th Division)
    No. 83—759
    Opinion filed June 15, 1984.

      James J. Ahern, of Connelly & Ahern, of Chicago, for appellant Retirement Board of the Firemen’s Annuity & Benefit Fund of Chicago.

      J. Peter Dowd, of Jacobs, Burns, Sugarman & Orlove, of Chicago, for other appellants.
    Collins, Jutila & Shovlain, Chartered, of Waukegan (Peter T. Shovlain, of counsel), for appellee.

      Pursuant to the 1977 City of Chicago Personnel Rules, an exempt position is one that does not require certification prior to appointment from a general employment list maintained by the Commissioner of Personnel.

   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff sought administrative review of a decision rendered by the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago (Retirement Board) which denied his request to have his pension benefits computed on his actual exempt rank salary as deputy fire commissioner of the Chicago fire department rather than on the salary appropriated to the highest civil or career service rank he had attained. The trial court reversed the Retirement Board’s decision and stayed enforcement of the order pending a determination on appeal.

The Retirement Board, the Chicago Fire Fighters Union, Local No. 2, International Association of Fire Fighters, AFL-CIO (the Union), and four elected trustees of the Retirement Board appeal the trial court’s decision, contending that pursuant to article 6 of the Illinois Pension Code (the Pension Code) (Ill. Rev. Stat. 1983, ch. 1081/2, par. 6 — 101 et seq.), the basis for computation of plaintiff’s pension benefits is the current annual salary appropriated to the highest career service rank he had held prior to his exempt appointment. In his cross-appeal, plaintiff asserts that the appeal should be dismissed on the ground that neither defendant Retirement Board nor intervenors has standing to sue. For the reasons stated below, we find that the intervenor appellants have standing to sue, and we reverse the judgment of the circuit court.

Pertinent to this appeal are the following:

Plaintiff was hired by the Chicago fire department as a firefighter, a career service position, on May 10, 1948, and remained in the career service ranks in various capacities until January 1, 1972, at which time he was promoted to his first exempt rank position, chief of personnel, plans and training. From January 1, 1972, to the present, he has continued to serve in various exempt rank positions, the last of which as deputy fire commissioner.

While working within the career service ranks, plaintiff’s pension contributions and deductions were computed on his actual annual salary, and increased proportionately with his salary, but when he was promoted above the highest career service rank to the exempt ranks, his pension deductions were not increased concomitantly with his salary. Instead, they continued to be computed upon the salary appropriated to his highest career service rank. As a result of this practice, on September 20, 1977, while serving as chief of personnel, plaintiff sent a demand letter to the Retirement Board requesting that all future pension deductions be based on his actual salary rather than on his highest career service salary. In addition, he requested a statement from the Retirement Board as to the amount of money he owed to the retirement fund so as to bring his contributions current with the higher computation base. When he received no response, plaintiff sent a follow-up letter to the Retirement Board on December 5, 1977, stating that if no action were taken on his request by January 1, 1978, plaintiff would demand a formal hearing. When the Retirement Board failed to reply by August 11, 1978, plaintiff issued a formal demand for a hearing, followed by a second formal demand on December 19, 1978, and a third on April 25, 1979. Finally, after filing a suit seeking a writ of mandamus demanding that he be given a formal hearing, plaintiff was granted a hearing before the Retirement Board in February and April 1982.

At the February hearing, plaintiff characterized his current position of deputy fire commissioner as “permanent exempt” and argued that because it is a permanent, not a temporary position, he is entitled to have pension deductions computed on his actual salary. The Corporation Counsel of Chicago (Corporation Counsel), acting as the Retirement Board’s legal representative, concurred with plaintiff and relied on Quinn v. Retirement Board (1972), 7 Ill. App. 3d 791, 289 N.E.2d 117 (Quinn), as dispositive of the issue in plaintiff’s favor.

At the April hearing, the union was present for the first time and argued extensively against plaintiff’s position, claiming that plaintiff’s current exempt position is not permanent, thus, his pension is properly computed on the salary appropriated to the highest permanent career service rank he has held. As support for its argument that the designation “permanent” applies only to career service positions and the exempt position of fire commissioner, the Union relied on section 6 — 163 and 6 — 211 of the Illinois Pension Code and their interrelationship with the 1981 Municipal Code of Chicago (Municipal Code) and the 1977 and 1982 Revised Chicago Personnel Rules (Personnel Rules). In response, plaintiff reiterated his reliance on Quinn and urged the trial court to adopt the opinion of the Corporation Counsel expressed at the February hearing.

When the Retirement Board denied his request, plaintiff filed a complaint for administrative review in the circuit court, alleging, inter alia, that the Retirement Board’s decision was erroneous and illegal in law and in fact and against the manifest weight of the evidence. Subsequently, the trial court granted the motion to intervene filed by the Union and certain individual pension trustees and granted plaintiff leave to file a two-count amended complaint wherein plaintiff sought, individually and on behalf of all annuitants of the Firemen’s Annuity and Benefit Fund of Chicago similarly situated, administrative review of the Retirement Board’s decision (count I); and class certification and injunctive relief (count II). Count II was subsequently severed and continued until such time as a decision was rendered on count I.

Following extensive arguments by plaintiff and interveners, the trial court found Quinn dispositive of the issue, reversed the Retirement Board’s decision, and ordered the defendant Retirement Board to compute plaintiff’s pension and the pensions of others similarly situated on the basis of their actual exempt salaries. The court also stayed enforcement of the order pending appeal.

Opinion

We first address plaintiff’s contention on cross-appeal that appellants lacked standing to prosecute this appeal. Specifically, plaintiff contends that: (1) the Retirement Board and its individual members are exceeding their statutory authority by prosecuting this appeal; and (2) the city of Chicago, represented by the Corporation Counsel, is the only party with standing to appeal and it has not elected to do so. We disagree and find Quinn dispositive of this issue.

In Quinn, plaintiff, the fire commissioner of the Chicago fire department, filed a complaint for administrative review of the Retirement Board’s denial of his request that his pension benefits be computed on his actual exempt rank salary. At trial, the Corporation Counsel, acting as legal representative of the Retirement Board, urged the circuit court to reverse the Retirement Board’s decision, which the court ultimately did. Subsequently, the individual members of the Retirement Board who had voted against plaintiff’s request retained private counsel and appealed the circuit court’s decision. Plaintiff and the Corporation Counsel each filed motions to dismiss the appeal on the ground that appellants lacked standing to sue. Recognizing that the individual Retirement Board members who had voted against plaintiff’s request had a special interest which was directly and materially affected by the circuit court’s decision and that the ends of justice would not be served by foreclosing their opportunity to obtain a review of that decision, the Quinn court denied the motions to dismiss.

Similarly, in the present case, the Corporation Counsel, acting as the Retirement Board’s legal representative, adopted plaintiff’s adversarial position at both the hearing and at trial, leaving the Retirement Board no alternative but to retain private counsel in order to protect its interests. Contrary to plaintiff’s contention, this action by the Retirement Board is statutorily authorized (Ill. Rev. Stat. 1983, ch. 1081/2, par 6 — 190) and is further justified by the Retirement Board’s need to protect its fiduciary obligations as administrator of the retirement fund. (Ill. Rev. Stat. 1983, ch. 1081/2, par. 6 — 174.) With respect to the Union, we find that their right to appeal arises directly from their uncontested right to intervene in the trial court proceeding. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 408.) Accordingly, plaintiff’s request to dismiss the appeal is denied.

We next address the issue as to whether plaintiff’s actual salary earned in his exempt position or the salary appropriated to his highest attained career service rank provides the proper basis for computation of his pension benefits. All parties to this action concur that sections 6 — 111, 6 — 163 and 6 — 211 of the Pension Code govern computation of these benefits, but differ as to the application of these sections to the particular action at bar. The relevant sections provide, in pertinent part:

“Sec. 6 — Ill. Salary. ‘Salary’: *** annual salary of a fireman, as follows:
(a) For age service annuity *** the actual amount of the annual salary.” Ill. Rev. Stat 1983, ch. 1081/2, par. 6 — Ill.
“Sec. 6 — 163. Annual salary for computing annuities and benefits — Amount of duty disability benefit limited. For age and service annuity *** salary as defined in Section 6 — 111 shall be the basis of computation.” Ill. Rev. Stat. 1983, ch. 1081/2, par. 6-163.
“Sec. 6 — 211. Permanent and temporary positions. No annuity, pension or other benefit shall be paid to a fireman or widow, under this Article, based upon any salary paid by virtue of a temporary appointment. All contributions, annuities and benefits shall be related to the salary which attaches to the permanent position of fireman. Any fireman temporarily serving in a position or rank other than that to which he has received permanent appointment shall be considered, while so serving, as though he were in his permanent position or rank, except that no increase in any pension, annuity or other benefit hereunder shall accrue to him by virtue of any service performed by him subsequent to attaining the compulsory retirement, age provided by law or ordinance. This section shall not apply to any person certified to the fire department by the civil service commission of the city, during the period of probationary service.” Ill. Rev. Stat. 1983, ch. 1081/2, par. 6 — 211.

Relying on the statutory analysis set forth in Quinn, plaintiff asserts that the plain language of Pension Code sections 6 — 111 and 6— 163 unambiguously provides that pension benefits for exempt positions such as his are to be based on the fireman's actual annual salary. The fallacy in this argument is twofold. First, plaintiff focuses primarily on sections 6 — 111 and 6 — 163 of the Pension Code, minimizing the impact of section 6 — 211 which sets forth the exception to the general rule contained in section 6 — 163. Second, he mistakenly relies on Quinn, which decision is expressly limited to the unique position of fire commissioner.

With respect to plaintiff’s analysis of the Pension Code, it is axiomatic that when construing a statute, a court must not be guided by a single sentence or by an isolated provision. (Winks v. Board of Education (1979), 78 Ill. 2d’ 128, 135, 398 N.E.2d 823.) Rather, the statute as a whole must be evaluated, with each provision being construed in connection with every other provision and in light of the statute’s general purposes. (Miller v. Department of Registration & Education (1979), 75 Ill. 2d 76, 81, 387 N.E.2d 300; Borg v. Village of Schiller Park Police Pension Board (1982), 111 Ill. App. 3d 653, 657, 444 N.E.2d 631.) Accordingly, in applying the Pension Code provisions to the facts at bar, we cannot ignore or give cursory review to section 6 — 211 which provides the exception to the general rule for computation of pension deductions.

With respect to plaintiff’s reliance on Quinn, the pivotal distinction between Quinn and the facts at bar which renders Quinn inapplicable is the actual exempt position held by each plaintiff. In Quinn, plaintiff was the fire commissioner. Here, plaintiff is the deputy fire commissioner. Plaintiff argues that that distinction is irrelevant because the Quinn holding applies to any participant in the fund who holds an exempt position. In support of his contention, plaintiff relies on the following excerpt from the Quinn opinion:

“In our opinion, the legislature clearly intended that after the 1967 amendment to Section 6 — 163 the minimum annuity or pension of a participant in the fund would be predicated upon the actual amount of annual salary appropriated in the annual budget for the particular position occupied by the participant.” (Quinn v. Retirement Board (1972), 7 Ill. App. 3d 791, 797.)

We find the foregoing paragraph unpersuasive of plaintiff’s position for two reasons. First, it is dicta, not the holding of the court. Second, it merely paraphrases the general rule for pension computation which is not in dispute without reference to the section 6 — 211 exception. In that portion of the opinion where the Quinn court does address the “temporary” versus “permanent” controversy triggered by the section 6 — 211 exception, the court’s conclusion is strictly limited to the position of fire commissioner, as indicated by the following: “Within the meaning of Section 6 — 211, plaintiff was not appointed on a temporary basis, but received a permanent appointment as Commissioner.” (7 Ill. App. 3d 791, 799.) Accordingly, our determination that Quinn is factually distinguishable from the present case renders irrelevant plaintiff’s argument that legislative acquiescence to Quinn demonstrates the legislature’s intent that computation of the pension benefits for exempt positions should be based upon actual annual salary.

Although we find Quinn distinguishable on the facts, we recognize the similarity of the central issue confronted by both the Quinn court and by this court, i.e., the legislature’s intended meaning of the words “temporary” and “permanent” as they appear in section 6— 211. While we concur with the Quinn holding, we disagree with that court’s reliance on an opinion letter rendered by the Corporation Counsel and an interpretation by the retirement fund’s actuary. In the present case, as in Quinn, by adopting plaintiff’s position, the Corporation Counsel became, in effect, the Retirement Board’s adversary while concurrently acting as its legal representative. Thus, in our opinion, it would be highly prejudicial for us to give opinion letters issued by the Corporation Counsel determinative weight in our decision. (See People ex rel. Brenza v. Gebbie (1955), 5 Ill. 2d 565, 577, 126 N.E.2d 657.) With respect to the actuary, we decline to vest its nonlegal definition of a pivotal statutory term with legally authoritative weight. Instead, we look to House Bill No. 483 (Pub. Act 83 — 16), an amendment to sections 6 — 111 and 6 — 211 of the Code, signed into law on July 7, 1983 (Willis v. Ohio Casualty Co. (1981), 101 Ill. App. 3d 1099, 1104, 428 N.E.2d 1061), section 25.1 — 3 of the Municipal Code, and Rule III of the Personnel Rules (see Gillespie v. City of Maroa (1982), 104 Ill. App. 3d 874, 878, 433 N.E.2d 688) for clarification of the legislature’s intended meaning of the words “temporary” and “permanent” as they appear in section 6 — 211.

In substance, Public Act 83 — 16 adds “Subject to Section 6 — 211” to the first sentence of section 6 — 111, revises section 6 — 211’s title to read: “Permanent and temporary positions,” and adds the following clarifying paragraph to the end of section 6 — 211:

“A fireman who holds a position at the will of the Fire Commissioner or other appointing authority, whether or not such position is an ‘exempt’ position, shall be deemed to hold a temporary position, and such employee’s contributions and benefits shall be based upon the employee’s permanent career service salary. The provisions of this paragraph shall be retroactive to January 1,1976.”

Thus, pursuant to Public Act 83 — 16, a temporary position is one filled by discretionary appointment. The question then becomes in what manner is the position of deputy fire commissioner filled.

Resolution of that query lies in section 25.1 — 3 of the Municipal Code and Rule III of the Personnel Rules. Read in conjunction, they classify the office of deputy fire commissioner as a senior executive position to which an appointment is made at the discretion of the department head. We hold that plaintiff’s exempt position is temporary within the meaning of that term as used in section 6 — 211 and computation of his pension benefits is properly based upon the salary appropriated to his highest attained career service rank.

Plaintiff argues that retroactive application of Public Act 83— 16 would trigger serious constitutional problems on the grounds that: (1) it implies that section 6 — 163, as amended, applies only to the fire commissioner position, thus creating an arbitrary distinction; and (2) it diminishes pension benefits in direct violation of the Illinois Constitution of 1970. We disagree. Contrary to plaintiff’s position, section 6 — 163 applies to all firemen who do not fall within the exception delineated in section 6 — 211. Far from being arbitrary, this distinction has its roots in article 10 of the Illinois Municipal Code (Ill. Rev. Stat. 1967, ch. 24, par. 10 — 1—1 et seq.), which was subsequently incorporated into and superseded by the 1977 Personnel Rules. Moreover, Public Act 83 — 16 does not change existing law; it merely clarifies it. Accordingly, it cannot act to diminish benefits to which plaintiff was never entitled.

Finally, we address defendant’s and intervenors’ argument that the circuit court’s order extending relief to a class rather than to plaintiff alone was an abuse of its discretion. Plaintiff’s initial complaint which sought administrative review of the Retirement Board’s decision on behalf of himself only was subsequently amended to include a second count which requested declaratory and injunctive relief on behalf of himself and others similarly situated. By order dated October 1, 1982, the trial court severed the two counts and stayed consideration of count II, which included the class claim, until final determination of count I. Thereafter, in direct contradiction to this ruling, the trial court entered a final order directing the Retirement Board to compute the pension of “others similarly situated on the basis of their actual exempt salaries.” Based on these uncontroverted facts, we concur with defendant and intervenors that the trial court’s action was an abuse of discretion in that it violated section 2 — 801 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 801), which sets forth the manner by which a class action determination is to be made, and denied defendant its fundamental right to present its argument against class certification. See Nye v. Parkway Bank & Trust Co. (1983), 114 Ill. App. 3d 272, 276, 448 N.E.2d 918.

For the foregoing reasons, we reverse the judgment of the circuit court and reinstate the decision of the Retirement Board.

Reversed.

MEJDA, P.J., and SULLIVAN, J., concur.

      With the adoption of the 1977 Chicago Personnel Rules, the term “civil service,” formerly used in the superseded Civil Service Commission Rules, was revised to “career service.”

      Apparently for a six-month period in 1981, plaintiff’s pension deductions were computed upon his actual exempt rank salary. However, the record is void as to any explanation for this isolated occurrence.

      Quinn will be discussed in detail later in this opinion.

      The vote of the Retirement Board had resulted in a four-to-four tie.

      Pursuant to appendix A of the Municipal Code, the same analysis is applicable to every exempt position held by plaintiff prior to his current position of deputy fire commissioner.


author: JUSTICE SULLIVAN

text:
    NANCY GIBSON, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 83—0880
    Opinion filed June 22, 1984.

      David J. Feeley, of Winnetka, for appellant.
    Victor J. Piekarski and Michael Resis, both of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiff appeals from a judgment for defendant in an action seeking a declaration of her rights under the uninsured motorist provisions of two automobile insurance policies issued by defendant. She contends that: (1) the trial court erred in (a) ruling that she bore the burden of proving that a hit-and-run vehicle was involved in the accident which caused the insured’s injury, and (b) admitting the hearsay testimony of police officers who investigated the accident; and (2) the judgment is contrary to the manifest weight of the evidence.

In her complaint for declaratory judgment, plaintiff alleged in pertinent part that her husband, Kevin Gibson (Gibson), died on August 2, 1978, as the result of an accident in which the motorcycle he was driving was struck by a hit-and-run motor vehicle; and that at the time of his death Gibson was the insured under two policies issued by defendant both of which provided in relevant part:

“We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.
* * *
Uninsured Motor Vehicle means:
* * *
3. a ‘hit-and-run’ land motor vehicle whose owner or driver remains unknown and which strikes:
a. the insured or
b. the vehicle the insured is occupying and causes bodily injury to the insured.”

She further alleged that defendant had wrongfully denied coverage, and asked that the trial court declare her right to recover under the uninsured motorist provisions of the policies. In its answer, defendant admitted that Gibson was the insured under two automobile insurance policies issued by it; that those policies contained uninsured motorist provisions which covered injuries caused by a hit-and-run vehicle; and that Gibson died as a result of injuries sustained in a vehicular accident. However, it denied that any hit-and-run motor vehicle was involved in the accident, and a hearing was therefore held on the sole issue of the cause of the accident which resulted in Gibson’s death.

At trial, David Wisniewski testified that, in the early morning hours of August 2, 1978, he and Gibson were riding their motorcycles northbound on Western Boulevard near 49th Street on the south side of Chicago. He was in the left lane, and Gibson was beside him in the right lane; however, as they approached a viaduct just south of 49th Street, he accelerated and passed Gibson, but remained in the left lane. Shortly thereafter, he heard a loud screech and a crash, and when he glanced back he saw Gibson and his motorcycle flying through the air. Wisniewski further testified that after the accident, both Gibson and his motorcycle were north of the intersection of 49th and Western; Gibson was lying near a lamp post at the comer, and his motorcycle was in the middle of the street. He (Wisniewski) then drove to 47th and Western, where he located two officers, explained what happened, and returned to the scene. The next morning, he again visited the site of the accident, and noted tire tracks near the middle of the intersection and under the viaduct, as if an automobile driver had slammed on his brakes. Wisniewski also stated that the screeching sound he heard at the time of the accident was made by an automobile rather than by Gibson’s motorcycle. On cross-examination, Wisniewski acknowledged that he did not see any cars traveling in the northbound lanes of Western Boulevard prior to or immediately after the accident. He further testified that, after the accident, Gibson’s motorcycle was in one piece, but the handlebars and seat were damaged, and the front tire was flat as the result of being pierced by a screwdriver; he knew that Gibson kept a screwdriver in the tool kit under his seat, and opined that the screwdriver entered the wheel as the motorcycle was flying through the air.

Caesar Torres testified that on the night of the accident he was in the yard of the Bracket Company, located northeast of the intersection of 49th Street and Western Boulevard, when he heard the noise of motorcycle engines. He was approximately 100 feet from the well-lighted intersection, and when he looked up, he saw two motorcycles emerge from under the viaduct, traveling north on Western, the one in the left lane riding slightly ahead of the vehicle in the right lane. As the motorcycles approached the intersection, a dark orange automobile attempted to pass between them, and the car’s right front fender struck the motorcycle in the right lane, causing the motorcycle to overturn and the driver to be thrown against a lamp post on the corner; the point of impact was on the left side of the motorcycle near the rear wheel. Torres stated that he did not hear brakes screeching, nor did he hear the sound of a collision. After the accident, the automobile involved turned east onto 49th Street, passing within five feet of him, and he noted that there were two people in the car and that the driver was a white male. Torres further testified that, immediately after the accident, he described what he had seen to a police officer, and signed a statement which the officer prepared, but asserted that he did not know what the statement said, since he cannot read or write English. On cross-examination, Torres admitted that there is a viaduct across Western Boulevard just south of 49th Street, but asserted that this structure did not block his view of the accident because it occurred in the intersection. Torres acknowledged stating in a deposition that he could not describe or give the number of the vehicle’s occupants and that after the accident Gibson’s motorcycle was in two pieces. Finally, Torres testified that he did not recall telling an insurance investigator shortly after the accident that he did not see the car hit the motorcycle, nor did he recall telling an officer on the night of the accident that he did not see the car collide with the motorcycle.

Donald Rohe, testifying for defendant, stated that he was the insurance investigator assigned by defendant to investigate the accident which caused Gibson’s death. He spoke to Torres by telephone on September 25, 1978, and although Torres at first said that he saw another vehicle strike Gibson’s motorcycle, he later stated that he thought that was what happened, but did not actually see any collision because the embankment of the viaduct obstructed his vision. Torres also said at that time that both motorcycles were hit by the car. Rohe further testified that on October 2, 1978, Wisniewski told him that he did not see any vehicle but did hear a screeching noise that sounded like an automobile skidding or brakes squealing.

Officer Krause testified for defendant that he responded to a radio call of an accident at 49th and Western Boulevard on the night of August 1-2, 1978. When he arrived at the scene, Gibson was lying against a lamp post on the northeast corner of the intersection, and his motorcycle was lying on its side in the middle of Western, approximately 50 feet north of the intersection. He interviewed Wisniewski, who said that he did not know what happened, then spoke to Torres, who stated that he had heard noises and, when he looked up, he saw a motorcycle sliding down Western and a car driving east on 49th Street, but did not see the car strike the motorcycle. Krause next testified that he examined the scene of the accident that night, and found fresh scrape marks on the east curb of Western Boulevard under the viaduct; there were other gouges in the pavement of the street, beginning under the viaduct and ending where Gibson’s motorcycle was resting. An examination of the motorcycle revealed that it was heavily damaged by concrete scraping marks, but contained no other residue or substance. Krause acknowledged that his report stated that the automobile seen by Torres contained a white male and a white female, and that he could not recall whether it was noted in the report that Torres said he did not see the collision, although he thought there was a note to that effect.

Officer Taglioni testified that, because the accident was initially classified as a hit-and-run traffic accident, further investigation was undertaken. He and his partner reviewed the reports and statements of eyewitnesses, then examined the scene on the morning of August 2, 1978, specifically seeking evidence that another vehicle was involved. They found gouge marks along the curb on the right-hand side of the northbound lanes of Western Boulevard, commencing under the viaduct south of 49th Street; Taglioni concluded that the marks were of recent origin, because they were still clean and there was concrete powder around them. He and his partner then went to the spot where reports indicated Torres was standing at the time of the accident, and determined that the point where the gouge marks began was not visible from that site; Torres’ view would have been blocked by the embankment around the viaduct. Taglioni further stated that the section of Western Boulevard which is under the viaduct was visible only to a person standing within five or six feet of the northeast corner of Western and 49th Street. The officer then testified that he examined Gibson’s motorcycle on the morning of August 2, and noted that it was badly damaged on the right side, and that there was a residue of powder on it, which he thought was concrete dust, although no laboratory tests were made to confirm his assumption. However, there was no evidence of contact with another vehicle. Taglioni admitted that he did not interview any of the witnesses or the officers who compiled the initial accident reports, although he did take those reports and the witnesses’ statements into account when conducting his investigation.

Officer Puhr testified that he became involved in investigating the accident on August 5, 1978. He examined Gibson’s motorcycle on that date, and determined that the only damage to that vehicle was on the right side, and consisted of scrape marks on the heavy metal parts; the left side of the vehicle was undamaged, and bore no paint, metal, or other substance which would have indicated contact with another vehicle. Gibson’s clothing was also tested for evidence of the transfer of foreign substances which might have proved that another vehicle was involved, but the tests were negative. Puhr next stated that scrape marks on the pavement indicated that Gibson’s motorcycle first made contact with the ground underneath the viaduct south of 49th Street, and it would have been impossible for Torres, who, reports indicated, was standing 50 to 60 feet east of the intersection, to have seen what caused the motorcycle to go down. Puhr also stated that he interviewed Wisniewski, who said he saw no other vehicles in the northbound lanes, but did not interview Torres, although he stated that one of his partners did interview him. Finally, Puhr testified that, as a result of the subsequent investigation, the incident was reclassified from a hit-and-run accident to a single vehicle occurrence.

The trial court concluded that plaintiff had failed to prove that a hit-and-run vehicle struck Gibson’s motorcycle, and entered judgment for defendant. This appeal followed.

Opinion

Plaintiff first contends that the burden of proof was erroneously placed on her, positing that defendant should have been required to bear the burden of proving the negative averment of its answer, i.e., that no contact with another vehicle took place.

Initially, we note that this issue was not raised before the trial court. In fact, when specifically asked at oral argument who bore the burden of proof, plaintiff’s counsel represented to the trial court that the burden was on plaintiff to prove the facts giving rise to coverage. Generally, we will not consider issues presented for the first time on appeal (Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 443 N.E.2d 575), nor will a party be heard to complain of an action induced by its own stipulation or acquiescence (Ziebell v. Board of Trustees (1979), 73 Ill. App. 3d 894, 392 N.E.2d 101). For these reasons, the issue must be deemed waived for purposes of review.

We further note, however, that in our view the burden of proof was correctly placed on plaintiff in the instant case. Our courts have consistently held that the claimant under an insurance policy has the burden of proving that he comes within the terms of coverage (Hays v. Country Mutual Insurance Co. (1963), 28 Ill. 2d 601, 192 N.E.2d 855; Polzin v. Phoenix of Hartford Insurance Cos. (1972), 5 Ill. App. 3d 84, 283 N.E.2d 324), a rule which is in accord with the general proposition that “ ‘the burden of proof rests on the party having the affirmative of the issue.’ ” (Arrington v. Walter E. Heller International Corp. (1975), 30 Ill. App. 3d 631, 639, 333 N.E.2d 50, 57.) Plaintiff seeks to shift her burden to defendant by reasoning that, in denying the allegations of her complaint, defendant in effect established a negative averment, and she argues that “a party is not required to prove a negative averment.” (Board of Trade v. Dow Jones & Co. (1982), 108 Ill. App. 3d 681, 686, 439 N.E.2d 526, 530.) We believe that plaintiff misapprehends the cases so holding. In Abhau v. Grassie (1914), 262 Ill. 636, 638, 104 N.E. 1020, 1021, the supreme court noted:

“The burden of proof does not depend upon the form of the proposition. The weight of authority is, that whoever asserts a claim or defense which depends upon a negative must establish the truth of the allegation, [citation] for that particular fact is essential to his case.”

Here, however, defendant has asserted no claim or defense which depends upon a negative assertion; it merely answered the allegations of plaintiff’s complaint, as it is required to do pursuant to section 2 — 610 of the Code of Civil Procedure, which provides in relevant part that “[e]very answer and subsequent pleading shall contain an explicit admission or denial of each allegation of the pleading to which it relates.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 610(a).) If plaintiff’s rationale were to prevail, then the burden of proof would be placed on the defendant in every case by the very act of denying the positive averments of the plaintiffs complaint, a result which would totally ne-the general rule that the party asserting affirmative matter has the burden of proving the issue.

Plaintiff next contends that the testimony of Officers Taglioni and Puhr was based on hearsay and was therefore inadmissible, arguing that the sole basis for their conclusion that the accident occurred under the viaduct, as well as their purported determination that Torres could not possibly have seen the occurrence, was the reports of other officers and the written statements of the witnesses. However, plaintiff made no objection to the testimony of these officers, and it is established that a party who wishes to preserve a question regarding the admissibility of evidence must make an appropriate, timely objection at the time of its admission (Vee See Construction Co. v. Luckett (1981), 102 Ill. App. 3d 444, 430 N.E.2d 91; Northern Trust Co. v. Winston (1975), 32 Ill. App. 3d 199, 336 N.E.2d 543), and the failure to do so waives the issue for purposes of review (Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 424 N.E.2d 1279).

Moreover, the record does not support plaintiffs assertion that the conclusions of these officers were based solely on hearsay; in fact, it appears that the sole basis for their opinion regarding where the accident occurred was their own personal observations. Both officers stated that they saw fresh scrape marks on the pavement, beginning at a point under the viaduct south of 49th Street, and that scrape marks caused by the motorcycle skidding on its side along the pavement were found on the right side of that vehicle. From this, they concluded that the accident occurred under the viaduct.

With regard to the opinion stated by the officers concerning Torres’ inability to see the point under the viaduct where the scrape marks began, it does appear that their conclusion was based on hearsay, since the sole source of their knowledge of where Torres was standing was the report of another officer. However, even assuming that admission of this testimony was error, we note that not all such errors require reversal; it must be shown that admission of the incompetent evidence was prejudicial or materially affected the outcome of the trial. (Cummings v. Chicago Transit Authority (1980), 86 Ill. App. 3d 914, 408 N.E.2d 737.) Here, Officer Taglioni testified that from his own observations, he determined that the point where the scrape marks began would not be within the view of a person standing north and east of the "viaduct unless that person was within five or six feet of the intersection of Western and 49th Street, while Torres stated in his testimony that he was approximately 100 feet from the northeast corner of that intersection when the accident occurred. Both of these statements were within the personal knowledge of the respective witnesses, and taken together they establish the fact that Torres could not see under the viaduct (we further note, in this regard, that plaintiff acknowledges in her brief the accuracy of this conclusion). Since the fact asserted by the officers was established by other, competent evidence, plaintiff was not prejudiced in any way by the admission into evidence of the officers’ conclusions, and any error therein was harmless. See Stromquist v. Burlington Northern, Inc. (1983), 112 Ill. App. 3d 37, 444 N.E.2d 1113.

Finally, plaintiff contends that the judgment is contrary to the manifest weight of the evidence. In considering this issue, we must bear in mind that it is the province of the trial court, when sitting without a jury, to resolve disputed questions of fact and to determine the credibility of witnesses and the weight to be given their testimony (MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 445 N.E.2d 418), and we will not substitute our judgment thereon unless the opposite conclusion is clearly evident (Balla v. Department of Revenue (1981), 96 Ill. App. 3d 293, 421 N.E.2d 236). Thus, it is not sufficient to show that the record would support a contrary decision (Graham v. Mimms (1982), 111 Ill. App. 3d 751, 444 N.E.2d 549); we will affirm if there is evidence to support the trial court’s judgment (Swartzberg v. Dresner (1982), 107 Ill. App. 3d 318, 437 N.E.2d 860).

In the instant case, the testimony of Torres that he saw a car strike the left rear portion of Gibson’s motorcycle would support a finding that a hit-and-run vehicle was involved in the accident, the fact which plaintiff must prove in order to recover under the uninsured motorist provision. (Ferega v. State Farm Mutual Automobile Insurance Co. (1974), 58 Ill. 2d 109, 317 N.E.2d 550.) It is her position that Torres’ testimony was conclusive on this point, and the trial court was required to accept it as true, citing Sobotta v. Carlson (1978), 65 Ill. App. 3d 752, 754, 382 N.E.2d 855, 857, wherein the court noted:

“ ‘The general rule is that the testimony of an impartial or disinterested witness as to a fact, which is not of itself improbable and is not contradicted by other equally credible evidence, is to be taken as establishing such fact. However, where there are facts and circumstances appearing in evidence which naturally raise questions which reflect upon such testimony, then the aforesaid rule does not apply.’ ”

In the instant case, other evidence does raise numerous questions affecting the credibility of and weight to be accorded to Torres’ testimony, and the circumstantial evidence tends to contradict that testimony. (See Kosch v. Monroe (1982), 104 Ill. App. 3d 1085, 433 N.E.2d 1062 (positive direct evidence including that of eyewitnesses may be discredited and contradicted by circumstantial evidence).) The three officers who examined Gibson’s motorcycle after the accident stated that there was no damage to the left side of that vehicle, which contradicts Torres’ statement that a car struck that side of the motorcycle. Furthermore, Officer Puhr testified that there was no transfer of paint, metal, or other foreign substance on the motorcycle or on Gibson’s clothing, a fact which tends to corroborate that no contact with another vehicle occurred. We also note that Torres’ credibility was impeached by evidence that on the night of the accident, as well as shortly thereafter, he stated that when he first looked in the direction of the noise, the motorcycle was already skidding along the pavement, and the car in question was traveling east on 49th Street, and that he did not see the car strike the motorcycle. In this regard, other physical evidence indicates that whatever caused the accident occurred underneath the viaduct, out of Torres’ line of vision. Officer Krause testified that fresh scrape marks began under the viaduct and ended where Gibson’s motorcycle came to rest 50 feet north of the intersection. That these marks were of recent origin, and made by Gibson’s motorcycle, is corroborated by another officer, who testified that there was still powdered concrete residue around the scrape marks, and that residue which appeared to be concrete was found on the right side of the motorcycle.

Under these circumstances, we believe that the trial court was justified in giving little credence to Torres’ testimony, and in the light of the lack of any other evidence establishing that Gibson’s motorcycle was struck by another vehicle, it is our view that the trial court’s finding that plaintiff failed to sustain her burden of proving that contact with a hit-and-run vehicle occurred is not contrary to the manifest weight of the evidence.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.