text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM P. McHUGH, Defendant-Appellant.
    Fifth District
    No. 82—55
    Opinion filed January 6, 1984.

      Randy E. Blue, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Stephen E. Norris and Mark A. LaRose, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

Upon a jury trial the defendant, William P. McHugh, was convicted of two counts of reckless homicide and one count of driving under the influence of intoxicating liquor. He appeals raising three issues: (1) whether the evidence was insufficient to prove any of the three counts of which he was convicted; (2) whether the defendant was “denied a fair trial by introduction of the result of blood alcohol tests performed for medical purposes after the defendant had refused to submit to prosecutorial testing”; (3) whether the conviction for the second count of reckless homicide should be vacated because it arose from the same physical act upon which the conviction for the first count of reckless homicide is based.

The charges arose out of a collision between a truck driven by defendant and a small automobile driven by Michael Mahan, who died in the collision. The collision occurred on a clear day in the southbound lane of a bridge over which Mahan was traveling south and the defendant north. Shortly before the collision loose gravel had been put on the roadway leading to the bridge, some of which had been tracked onto the bridge by vehicles passing over the roadway onto the bridge. Defendant and the two passengers who were in the truck with him at the time of the collision, Byron Bell and Karen Pearson, were employed by the Economic Opportunity Commission in Madison County. The testimony of these two passengers was conflicting in many important respects.

Testifying for the State, Byron Bell indicated that during the afternoon of the collision, the three employees had been using the truck to move park benches and that during the course of this activity the defendant, who was driving the truck, had driven to a liquor store about two miles away. Bell said that on the way to the liquor store the defendant was “driving, you know, fast and kind of crazy, you know.” The witness stated that on the way to the liquor store the defendant was driving in excess of the speed limit and was “drinking the rest of his wine that he had in the first bottle before we left the job site.” The defendant, he said, purchased eight bottles of wine and a half pint of whiskey at the liquor store and in the driveway of the liquor store opened and drank nearly all of one of the bottles of wine just purchased. The witness testified that the defendant was “running stop signs” after he left the liquor store on the way back to the job site. Asked to describe the defendant’s “attitude,” the witness answered, “Well, I just knew he was like drunk, you know. I don’t know how his attitude is when he’s drunk, you know, but he was acting kind of wild to me.” The witness testified that a truck was traveling in front of theirs and that “[defendant] was riding the truck bumper.” When the truck ahead reached the bridge in question it speeded up and “threw up a lot of gravel.” At that point, the witness said, “[defendant] started hitting the accelerator.” He described the truck as “right in front of us bumper to bumper. Pat [the defendant] was riding him on the bumper, you know, and when the truck got on that bridge that’s when he really speeded up, and when he speeded up he threw up a lot of dust as white as that wall. You couldn’t see nothing.” “[A]s it got hard to see,” the witness said, “[defendant] just — he was steady hitting the accelerator like he could see, you know.” In the middle of the bridge, “when the dust was up,” defendant moved from the northbound into the southbound lane and struck the decedent’s white automobile. The witness had been unable to see the truck in front of them or any other vehicle through the dust. He stated that the defendant did not apply his brakes before colliding with the car and estimated the rate of speed of the truck at the time of the collision at about 50 or 60 miles per hour. In the opinion of the witness, who denied having drunk any of the alcohol himself, the defendant was intoxicated. Bell testified that he has been convicted of forgery. On cross-examination he stated that he has brought suit against the Economic Opportunity Commission because of back injuries allegedly sustained by him during the collision.

Testifying for the defendant, Karen Pearson stated that at the job site defendant had pulled a full bottle of wine out from under one of the seats of the truck. She testified further that the defendant, Byron Bell, and four others, including herself, had been drinking from the wine bottle. Asked how the defendant had driven to the liquor store, the witness answered, “Safely.” She said that on the way to the liquor store he did not speed or fail to obey any lights or stop signs. She described in as “sober” on his way there and said she did not see him consume any liquor there. She testified that Bell and the defendant were drinking one of the bottles of wine as defendant drove, after leaving the liquor store. Bell threw the empty bottle from the truck, she said, and opened another, from which he and the defendant were drinking as they traveled. She testified that the defendant was no closer to the truck in front of them than “[m]aybe two and a half, three car lengths” and was traveling at a speed of “[a]bout thirty, thirty-five” miles per hour. She said the defendant had not “tailgated” the truck in front of them. Speaking of the cloud of dust, she said, “We were coming down [the roadway,] and the green pickup truck [in front of them] hit the dust and rocks on the bridge and threw up all the dust behind us [sic].” She described the dust by saying, “You couldn’t see anything. It’s like I said, somebody could have walked across and you wouldn’t have seen them [sic].” The witness stated that she had been unable to determine what lane of travel they were in. She testified that as they approached the cloud of dust the defendant “had already started to slow down to come on to the bridge” and applied the brakes “when we hit the cloud of dust.” She stated, “[R]ight as we come out of the cloud of dust he seen the [decedent’s] car, and that’s when he just crammed on the brakes.” In the opinion of the witness the defendant was not intoxicated at the time of the collision. On cross-examination she estimated defendant’s speed at about 25 or 30 miles per hour as he came into the dust after having slowed down in his approach to the bridge. He slowed down farther, she said, as he drove through the dust. She testified further to having lied to the police to protect the defendant.

The defendant’s testimony was essentially in accord with that of Karen Pearson. He testified that following the collision he threw broken and unbroken bottles of wine over the bridge and tried to conceal both the liquor and the fact that he had been drinking. He said he could not have been traveling 50 or 60 miles per hour on the road in question and had seen the decedent’s white car in the distance prior to the accident but had concluded that it would not reach the bridge when it did.

George Berry, a deputy sheriff who was off duty at the time of the collision but lived nearby and was summoned to help by Karen Pearson, testified that the defendant was bleeding from the mouth and had about him a “strong” odor of alcohol. The witness testified that “[the deceased] was sitting in the driver’s seat behind the wheel. The wheel was — had his chest caved in. The whole front end of the car was pushed back up on his body.” The deputy coroner, Ralph Bahlman, Jr., testified that the deceased

“suffered extensive crush type injuries, which would be common in a traffic collision, to the chest area. It is my opinion that the ribs were fractured, and these fractured ribs in turn punctured the organs in the chest. He also suffered breaks to both legs and to his arms.”

The witness stated that he had found no bones intact.

Roy Gibson, the deputy sheriff who was on duty at the time of the collision and who responded to the call concerning it, testified that the defendant’s upper lip had been cut and that defendant “was sort of staggering, unsteady.” The witness said he could smell “a little bit of liquor.” He had, he said, measured skid marks of about 95 feet, including 40 feet that reflected the distance the truck had pushed the smaller vehicle along the railing of the bridge. He testified that there was “[v]ery little” gravel on the bridge. In the opinion of the witness, the driving conditions caused by the gravel required a driver to reduce his speed by 20 miles per hour. The witness had noticed, apparently as he drove to the scene of the collision over the loose rock on the roadway, a “little bit” of a cloud of dust in his rear view mirror. He testified that it was not so thick he. could not see through it. As he drove over the loose rock he was following another motor vehicle.

The nurse who treated the defendant in the emergency room testified that she could smell a “strong” odor of alcohol about the defendant, but her testimony did not indicate that the defendant’s behavior seemed affected by the alcohol. The witness declined to give an opinion as to whether the defendant was intoxicated. The physician who treated defendant in the emergency room, likewise, did not indicate by his testimony that defendant’s behavior seemed to be affected by alcohol. The physician was, however, of the opinion that the defendant was under the influence of intoxicating liquor. The physician’s opinion was based not on his observations of defendant’s behavior and responses but on the results of a blood test, as may be seen from the following colloquy between the witness and the assistant State’s Attorney:

“Q. [Assistant State’s Attorney] *** Now, Doctor, basing your opinion of intoxication upon your conversations with the Defendant, your physical observations of him, and of the hospital medical records, and did you rely on these records in your treatment?
A. [Dr. Noor Ahmed] Yes.
Q. Basing it on all three of those things, do you have an opinion based upon a reasonable degree of medical certainty as to whether or not the Defendant was intoxicated, basing it on all the evidence?
A. I would say clinically which means by taking the history and physical examination, he was not intoxicated. His behavior was rational, cooperative, but according to the blood levels that was [sic] carried out at that time, it was on intoxication level.
Q. Again my question specifically then is based upon everything, everything in your medical file and your own physical sensory observations, was he under the influence of intoxicating liquor?
A. He was under the influence.”

The blood test itself was made “a part of the Court file” but not sent to the jury.

The first count of reckless homicide of which defendant was convicted alleges that he operated a motor vehicle “at a speed which was greater than was reasonable and proper with regard to the existing traffic conditions and the safety of persons properly on the roadway ***.” A person commits reckless homicide if he kills a person while he is driving a motor vehicle and the acts causing death are such as are likely to cause death or great bodily harm to an individual and are performed recklessly. (People v. Bonzi (1978), 65 Ill. App. 3d 927, 382 N.E.2d 1300.) A person acts recklessly in this regard when he consciously disregards a substantial and unjustifiable risk that his acts are such as are likely to cause death or great bodily harm to some individual and where such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in such a situation. (Bonzi.) In the case at bar the testimony is conflicting on numerous points. If the jury found Byron Bell a more credible witness than Karen Pearson, as it apparently did, and considered his testimony in light of that of Deputy Gibson, it could have concluded not only that defendant was driving too fast for the road conditions but also that he failed to respond to the sudden crisis of little or no visibility in the way a reasonable person would have done, that is, by slowing down. Further, the jury could have concluded from the testimony of Deputy Gibson that had the defendant’s rate of speed been lower and appropriate to the driving conditions he, like Deputy Gibson, would have been able to follow another vehicle over the gravel and still have been able to see through the dust raised sufficiently to remain in his own lane of travel. Had he done so he would presumably have avoided colliding with a car he knew to be approaching from the other direction. For these reasons we cannot agree with the defendant that the evidence was insufficient to prove him guilty of the first count of reckless homicide.

In its brief the State concedes that only one sentence can be imposed against the defendant for his two convictions of reckless homicide, both convictions having been carved from the same physical act. The State urges us, provided we affirm the defendant’s conviction and sentence with respect to count I, to vacate the conviction under count II, on which the trial court did not impose sentence. We hereby affirm the judgment as to count I of reckless homicide and vacate the conviction as to count II of reckless homicide.

With regard to the remaining issue defendant raises, the People stated at trial that the defendant had refused to allow the State to administer a blood test. The defendant correctly maintains that on the date of both the collision, on May 22, 1981, and the trial, on November 17, 18, and 19, 1981, evidence of the blood test in question was inadmissible absent the defendant’s consent to such a test. (Ill. Rev. Stat. 1981, ch. 95½, par. ll-501(c)(3); People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447; People v. Weissinger (1980), 90 Ill. App. 3d 700, 413 N.E.2d 497). In Weissinger, where the blood sample was taken on the initiative of a doctor at the hospital to which the defendant was taken after the accident occurred, as apparently happened in the case at bar, the court concluded:

“The statute prescribes that evidence of such a test ‘shall not be admitted’ without consent. This protection for the defendant is absolute; it is not in any way conditioned upon participation by the State in the test procedures. Further, if we were to draw the distinction argued by the State there could be no assurance that the actions of medical personnel would be free of motivation to aid in law enforcement, which would result in the legislative requirement of consent becoming virtually meaningless.” 90 Ill. App. 3d 700, 702, 413 N.E.2d 497, 499.

In the instant case the State draws no such distinction but argues on the basis of People v. Ward (1975), 61 Ill. 2d 559, 338 N.E.2d 171, and People v. Mello (1980), 87 Ill. App. 3d 506, 409 N.E.2d 152, that because a physician in formulating an opinion may rely on the medical records of a patient, though the medical records have not been admitted into evidence, the physician in the instant case could, likewise, render his opinion as to the defendant’s intoxication on the basis of the defendant’s medical records, including the blood test for alcohol. The psychiatrist in .Ward, however, neither rendered an opinion as to the defendant’s intoxication nor referred to a blood test for alcohol. Mello, which relied heavily upon Ward, involved a physician’s testimony as to the defendant’s acute ethanolism and a blood alcohol test. In Mello, however, as Justice Stouder pointed out in his special concurrence,

“no issue was presented as to the propriety of the medical opinion based on a report which would have been incompetent evidence had the same been proffered directly. For instance, in the instant case a foundation for admitting the laboratory report was established, but the report itself was never proffered as evidence. If the laboratory report could not have been admitted as evidence, then it well might be the opinion testimony based on it would have been improper. Since the defendant’s objection was based solely on the fact the laboratory report was not admitted as evidence rather than on any claim the report would have been inadmissible, I agree with my colleagues, but with the caveat that the competency of such reports might be material.” (87 Ill. App. 3d 506, 511, 409 N.E.2d 152, 155.)

In the case at bar, unlike Mello, the impropriety of the use of the results of the blood test for alcohol in the formulation of the physician’s opinion has been argued vigorously by counsel both at trial and on appeal. To permit a physician to render an opinion as to a defendant’s intoxication upon the basis of a blood test for alcohol, itself inadmissible for lack of the defendant’s consent to it, would, as the court in Weissinger concluded, render meaningless the legislative requirement of consent then in effect. (Cf. Ill. Rev. Stat. 1981, ch. 95½, pars. 11 — 501.1, 11 — 501.2, as amended by Pub. Act. 82 — 311, eff. Jan. 1, 1982 (1981 Ill. Laws 1745-53), providing for the implied consent of drivers on public highways to chemical tests of the blood for alcohol, the results of which shall be admissible at trial.) It was therefore error to permit the physician to rely upon the results of the blood test for alcohol in rendering his opinion that the defendant was under the influence of intoxicating liquor.

In the alternative the State argues that even if “there was any impropriety in Dr. Ahmed’s consideration of the blood test in formulating his opinion that the defendant was intoxicated, any error should be deemed harmless because there was sufficient independent evidence of intoxication to sustain convictions on Counts II and III.” Count II of reckless homicide alleged that the defendant operated a motor vehicle “while under the influence of an intoxicating liquor without regard to the safety of persons properly on the roadway ***,” Qount in is the count of driving under the influence of intoxicating liquor.

We must bear in mind that testimony concerning drinking, standing alone, cannot be equated with intoxication, nor can the use of alcoholic liquor, standing alone, characterize a person as intoxicated. (People v. Shackles (1977), 44 Ill. App. 3d 1024, 358 N.E.2d 1329.) Proof of intoxication requires more than evidence that the defendant consumed alcohol. (Shackles.) In the instant case there is undisputed evidence that the defendant consumed alcohol and smelled, according to some witnesses, strongly of alcohol. However, there is relatively little evidence of intoxication, apart from the results of the blood-alcohol test. Deputy Gibson testified that defendant was “sort of staggering, unsteady.” Nevertheless, the defendant had suffered a facial injury in the collision, and his unsteadiness might have been caused by the injury. Although in the opinion of Byron Bell the defendant was intoxicated, in the opinion of Karen Pearson he was not. While questions of credibility are to be resolved by the trier of fact, the opinion of the physician, based on the results of the blood test, could well have lent credence to the opinion of Byron Bell. Given the relative paucity of evidence of defendant’s intoxication, the use of the results of the blood test by the physician in formulating his opinion as to defendant’s intoxication may have caused the jury to reach a result different from the one it might have reached had the physician’s opinion not been based upon the results of the blood test. Thus, the error may not be deemed harmless, and the judgment rendered on count III must be reversed.

Judgment as to count I of reckless homicide affirmed; verdict as to count II of reckless homicide vacated; judgment as to count III of driving under the influence of intoxicating liquor reversed.

HARRISON and KASSERMAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WELCH

license: Public Domain

text:
    DENNIS D. MOUSER, Plaintiff-Appellee, v. GRANITE CITY STEEL DIVISION OF NATIONAL STEEL CORPORATION, Defendant-Appellant.
    Fifth District
    No. 5—83—0319
    Opinion filed February 9, 1984.
    Eric Robertson, of Lueders, Robertson & Konzen, of Granite City, and Charles R. Volk, C. James Zeszutek, and Kurt A. Miller, all of Thorp, Reed & Armstrong, of Pittsburgh, Pennsylvania, for appellant.
    Harold G. Belsheim, of Fair view Heights, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Plaintiff Dennis Mouser brought this action in the circuit court of Madison County to recover in tort for damages resulting from his discharge by defendant Granite City Steel (Granite City), allegedly for his exercise of his rights under the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.). The defendant moved for summary judgment, and, when this motion was denied, it requested certification by the trial court of a question of law for our determination under Supreme Court Rule 308. (87 Ill. 2d R. 308.) The question certified by the trial court was whether the plaintiff could maintain an action for wrongful discharge after he had entered into voluntary labor arbitration in which he raised the issue of wrongful discharge, and in which the arbitrator found that the plaintiff’s employment had been terminated by the defendant for just cause. We granted defendant’s application for leave to appeal, and we reverse the trial court’s denial of the motion for summary judgment, because an employee who is covered by a collective bargaining agreement prohibiting termination without just cause may not maintain a tort action against his employer for retaliatory discharge.

In 1978, the plaintiff was injured in the course of his employment at the defendant’s waste water treatment plant. He filed an application for adjustment of his claim with the Illinois Industrial Commission, also that year. On June 11, 1979, the plaintiff received written notice from the defendant that he was being placed on a five-day suspension for allegedly missing work without proper excuse. He was discharged by the defendant the following week, for the same reason.

At the time of his employment at Granite City, the plaintiff was a member in good standing of Local No. 50 of the International Chemical Workers Union. The collective bargaining agreement between the union and Granite City established an arbitration procedure in which an arbitrator was empowered to decide whether an employee was discharged without “proper cause.” If an arbitrator determined that an employee was so discharged, then Granite City would be required to reinstate him with back pay and benefits.

Pursuant to this agreement, the plaintiff filed a grievance against the defendant on June 18, 1979. He alleged that his employment was terminated because he had pursued his remedies under the Workers’ Compensation Act. The defendant denied this grievance, and it was then submitted to arbitration. After hearing evidence, the arbitrator issued a lengthy order in which he found the plaintiff’s discharge to have been for just cause, namely, excessive absenteeism. The plaintiff’s union brought suit in the Federal District Court for the Southern District of Illinois, seeking to vacate the arbitrator’s award. One of the issues raised before the court was that the decision of the arbitrator contravened Illinois law by ratifying actions by the defendant which were intended to discourage the plaintiff from seeking workers’ compensation benefits. The district court confirmed the award and stated that although the arbitrator did not specifically find that the plaintiff was not discharged for filing a workers’ compensation claim, such a finding was implicit in his conclusion that the plaintiff’s employment was terminated for just cause. No appeal was taken from the decision of the district court.

Before this court, the defendant presents two arguments against the plaintiff’s action, which the plaintiff has characterized as sounding in tort. First, it contends that the tort remedy for retaliatory discharge does not extend to a worker protected by a collective bargaining agreement. Second, it asserts that the Federal policy in favor of the finality of labor arbitration awards precludes the plaintiff from now raising questions pertaining to his allegedly wrongful discharge after those issues have been resolved adversely to him in arbitration proceedings.

The so-called “tort of retaliatory discharge” in Illinois is not statutory. It was created by our supreme court in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353. The plaintiff in Kelsay was an employee at will. The court explained that an employer’s otherwise absolute power to terminate such an employee could not be used to prevent that employee from seeking workers’ compensation benefits. In order to deter the employer from taking that action, the court granted employees so discharged after the date of the Kelsay opinion the right to sue for compensatory and punitive damages to redress their wrongful discharge. The court did not expressly include in the class of protected employees those covered by a collective bargaining agreement, nor did it expressly exclude those employees from that class.

The Third District of this court subsequently decided that the tort of wrongful discharge does not apply to employees protected by a collective bargaining agreement. In Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407 N.E.2d 95, the plaintiff was discharged from work for certain absences. He filed a grievance, which was submitted to arbitration. This grievance did not contain allegations that the plaintiff’s employment had been terminated for his pursuit of workers’ compensation benefits. The arbitrator decided that the plaintiff had been discharged with just cause. The plaintiff then brought suit, in tort and contract, to recover damages for his allegedly wrongful discharge.

The court held that the contract action was barred because of the plaintiff’s failure to exhaust his remedies under the collective bargaining agreement by raising the retaliatory discharge issue in arbitration. It also refused to expand the holding of Kelsay to grant a tort remedy to an employee covered by such a bargaining agreement. The court explained that the grievance procedures available to an employee protected by a collective bargaining agreement prevent the employer from terminating a worker’s employment without just cause. That situation, it reasoned, is considerably different from that of the unprotected at-will employee who must choose between seeking workers’ compensation benefits and retaining his job. The policy considerations which prompted the Kelsay decision were therefore not present in Cook. Also, the Cook court noted that to permit an employee covered by a collective bargaining agreement to sue in tort for retaliatory discharge would undermine the grievance procedures established in that agreement. The holding of Cook was adopted without further discussion by the Fourth District of this court in Deatriek v. Funk Seeds International (1982), 109 Ill. App. 3d 998, 441 N.E.2d 669.

The First District disagreed with Cook in Wyatt v. Jewel Cos. (1982) , 108 Ill. App. 3d 840, 439 N.E.2d 1053, and held that an employee hired under a labor union contract could recover in tort for being discharged in retaliation for seeking workers’ compensation. The primary reason for this result, according to the court, was that there would be an inconsistency in allowing at-will employees to recover punitive damages for their wrongful discharge while denying that remedy to employees hired under a union contract. Another division of the First District followed Wyatt in Midgett v. Sackett-Chicago, Inc. (1983) , 118 Ill. App. 3d 7, 454 N.E.2d 1092.

Other tribunals have also resolved the issue common to Cook and Wyatt. In Lamb v. Briggs Manufacturing (7th Cir. 1983), 700 F.2d 1092, the United States Court of Appeals for the Seventh Circuit, after a thoughtful review of the competing policies advanced in Cook and Wyatt, concluded that if faced with the issue, the Illinois Supreme Court would not extend the tort of retaliatory discharge to union employees, especially given that court’s guarded reasoning in Kelsay. Recently, the Second District of this court also accepted the holding of Cook in Suddreth v. Caterpillar Tractor Co. (1983), 114 Ill. App. 3d 396, 449 N.E.2d 203.

Having before us the decisions of the other four districts of this court and the Federal courts in Illinois, we believe that Cook and those decisions which follow it are more in accord with the opinion of the supreme court in Kelsay. For the reasons stated in Cook, Lamb and Suddreth, we therefore adopt what appears to be the “majority rule” in Illinois on this issue and hold that an employee covered by a collective bargaining agreement preventing termination of employment without just cause may not sue his employer in tort to recover damages for his discharge in retaliation for seeking workers’ compensation benefits. Our acceptance of this rule requires us to grant the defendant’s motion for summary judgment.

Parenthetically, we observe that even under cases such as Wyatt, the plaintiff cannot maintain his action against the defendant, because the plaintiff’s unsuccessful arbitration proceedings have conclusively determined that he was not discharged for asserting his rights under the Workers’ Compensation Act. See Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 842, 439 N.E.2d 1053, 1054; Bryce v. Johnson & Johnson (1983), 115 Ill. App. 3d 913, 924, 450 N.E.2d 1235, 1242.

Accordingly, we reverse the order of the circuit court of Madison County denying defendant’s motion for summary judgment, and pursuant to our authority under Supreme Court Rule 366(a)(5) (87 Ill. 2d R. 366(a)(5)), we grant that motion.

Reversed.

KARNS and KASSERMAN, JJ., concur.


author: JUSTICE KARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER GUTKNECHT, Defendant-Appellant.
    Fifth District
    No. 82—309
    Opinion filed January 18, 1984.

      Randy E. Blue and Larry R. Wells, both of State Appellate Defender's Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Stephen E. Norris and Mark A. LaRose, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Defendant, Christopher Gutknecht, was charged in an indictment with the offense of residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3(a)) arising out of an incident which occurred on January 6, 1982. Defendant filed pretrial motions to suppress statements and physical evidence which were denied by the trial court. A jury in the circuit court of St. Clair County found defendant guilty of the offense charged and he was sentenced to four years’ imprisonment. Defendant now appeals contending that: (1) he was arrested on less than probable cause, thereby making his arrest illegal and evidence gathered thereafter inadmissible; (2) his rights to terminate questioning and remain silent were asserted and ignored thereby making his statements thereafter to police a product of involuntary coercion; and (3) the evidence was insufficient to prove the knowledge and intent elements required by the statute.

On January 6, 1982, the complaining witness, 75-year-old Margaret Hilger, was awakened at 3 a.m. by a man standing over her bed with a knife at her throat threatening to kill her. The evidence established that the man gained entry to her studio apartment by removing a window pane and reaching in to unlock the door. Mrs. Hilger was the only witness to the incident. She testified that the intruder wore a ski mask and gloves. He walked about the apartment, strewed her money on the floor, broke her radio, cut the telephone cord, and asked her who she was expecting. At one point he walked into her bathroom where she heard him speak “to somebody that wasn’t in there.” She said he threw her on the floor and left when he thought he heard a noise in the upstairs apartment, promising to “come back and finish the job if I squealed on him.” The intruder left with the window pane he had removed to gain entry.

The investigation began about 11:30 a.m. on January 6. Detectives Rokita and Lindsey went to the apartment complex to interview Mrs. Hilger. There they obtained two cut pieces of her telephone cord and four pieces of window molding from the missing window near her rear door. Mrs. Hilger gave them a description of the intruder as being about 5 feet 6 inches with medium build, wearing what she thought was a knee-length tan sweater. The detectives proceeded to canvass the area knocking on apartment doors and asking other residents about the incident. Finding nothing, they returned to the station.

Detectives Knefelkamp and Boyne resumed the investigation at the apartment complex about 6 p.m. that night. Knefelkamp testified that they had spoken to approximately six tenants not interviewed previously before knocking on the defendant’s door. At once the detective noticed the occupant fit the general description given by Mrs. Hilger and also noticed the occupant did not fit the general description of every other tenant interviewed to that time, i.e., elderly, widowed, retired women. Knefelkamp testified that the defendant appeared nervous. He was “[vjisibly shaking, trembling in the voice, hands were shaking, loss for words, such as this.” Brief questioning followed with an advisement that the detectives might return after interviewing other tenants.

The detectives did in fact return after observing that defendant’s rear door was adjacent to Mrs. Hilger’s rear door in the secluded courtyard area around back of the complex. They entered defendant’s apartment at which time, Knefelkamp later testified, defendant was visibly more nervous and trembling with stuttered speech. Knefelkamp observed a 10- to 12-inch dagger sitting on a window ledge across the room. “[N]aturally [this] brought to mind the possibility this could have been the item used.” At that point it was determined that “we had enough circumstantial things going on around that we better read him his Miranda, *** [t]his is what I did.” Knefelkamp testified he was not placed under arrest but did agree to voluntarily accompany the detectives to the station for further questioning.

At the station the defendant was again given his Miranda warnings. No additional facts were gathered by the police from the time the defendant consented to go to the station to the time he asked to leave and was prohibited from doing so. Both parties agree that it was at this time that the defendant was formally placed under arrest. Therefore, as the State correctly suggests, it is the above-outlined facts and circumstances that must be considered to determine whether the arrest was based on probable cause. Since this is the threshold question upon which defendant’s remaining alleged errors are based, we proceed to its disposition first.

Section 107 — 2(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 107 — 2(c)) provides that a person may be arrested without a warrant when a police officer has reasonable grounds to believe that the person arrested has committed an offense. This statutory standard is synonymous with the Federal and State constitutional requirement of probable cause. (U.S. Const., amend IV; Ill. Const. 1970, art. I, sec. 6; People v. Wright (1974), 56 Ill. 2d 523, 528, 309 N.E.2d 537, 540.) Each case is governed by its own particular facts and circumstances. (People v. Clay (1973), 55 Ill. 2d 501, 504-05, 304 N.E.2d 280, 282.) The courts deal with probabilities in deciding the question of probable cause and are not disposed to be unduly technical. “These probabilities are the factual and practical considerations of everyday life on which reasonable men, not legal technicians act. Draper v. United States, 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329; People v. Fiorito, 19 Ill. 2d 246.” (55 Ill. 2d 501, 505, 304 N.E.2d 282.) The facts upon which probable cause to arrest is based need not be sufficient to convict (People v. Williams (1978), 62 Ill. App. 3d 874, 877, 379 N.E.2d 1222, 1225), but something more than a hunch or mere suspicion is required. People v. Garza (1976), 44 Ill. App. 3d 30, 34, 357 N.E.2d 1264, 1268.

The State has argued that the officers’ reasonable belief that the defendant had committed the crime was based on the following facts: defendant fit the general description of the burglar; defendant was the only resident of the apartment complex fitting that description; defendant’s rear door, located in a secluded area, was immediately adjacent to the victim’s rear door; defendant was extremely nervous at the first interview with the detectives and more nervous upon their return for further questioning; and defendant was in possession of a knife of the same character as that known by the detectives to have been displayed by defendant.

We do not believe any one of these factors by itself amounts to probable cause. Nor do we believe combinations of any two factors would amount to the same. It is arguable whether any more than two when considered together would cause a reasonable person having such knowledge to believe the defendant committed the crime under investigation. But the existence of probable cause or reasonable grounds for an arrest depends on the totality of facts and circumstances known to the officer at the time of the arrest. (People v. Tedder (1980), 83 Ill. App. 3d 874, 404 N.E.2d 437.) The actions of a policeman in making an arrest are to be judged by the reasoned considerations of everyday life; and any assessment of the reasonableness of the officer’s conduct should take into consideration the responsibility of the police to prevent crime, to apprehend criminals, and often to act quickly in appraising data before them. People v. Watkins (1960), 19 Ill. 2d 11, 166 N.E.2d 433.

A composite picture was forming gradually from successive bits of information in the officers’ minds. Upon first seeing defendant the detectives were immediately aware that his general height, build and gender matched those of the burglar described by the victim. He was oddly out of place living in a complex otherwise occupied by elderly women only. His physical proximity to the scene of the crime, his apartment’s proximity to the scene of the crime and his availability to undetectable access to the scene of the crime were factors observed by the detectives. He appeared extremely nervous when interviewed. He appeared more nervous when interviewed again. The knife observed inside his apartment was known by the detectives to be of the same character as that used in the burglary. While defendant is constitutionally guaranteed freedom from unreasonable seizure, he is not immune from seizure. This right has been defined in terms of whether the arresting officer had a reasonable belief that the person seized committed the offense. We are of the opinion that these facts constitute reasonable grounds for the arresting officer to believe that at the time the arrest was made, the defendant burglarized Mrs. Hilger’s apartment.

In this regard, Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, Taylor v. Alabama (1982), 457 U.S. 687, 73 L. Ed. 2d 314, 102 S. Ct. 2664, and People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103, can be distinguished. In those cases, lack of probable cause was a stated premise from which it was determined that evidence gained subsequently was inadmissible. While the circumstances of the instant case may indicate that the detectives interrogated the defendant in the hope of obtaining additional information about the burglary, they do not, in our view, indicate an improper “ ‘quality of purposefulness’ ” as an “ ‘expedition for evidence’ ” in order to obtain sufficient evidence upon which to predicate the probable cause necessary for an arrest. (Dunaway v. New York (1979), 442 U.S. 200, 218, 60 L. Ed. 2d 824, 839, 99 S. Ct. 2248, 2259, quoting Brown v. Illinois (1975), 422 U.S. 590, 605, 45 L. Ed. 2d 416, 428, 95 S. Ct. 2254, 2262.) In fact, it appears that the arrest was made without any additional evidence.

Defendant’s second alleged error relates to his right to terminate questioning and remain silent. About an hour after arriving at the police station and while talking to Knefelkamp and Boyne in an interrogation room the defendant indicated that he wanted to go home. Knefelkamp refused the request believing that the defendant “showed signs that he was thinking about wanting to talk about something [and] [f]rom my experience, you just know those people have got something they want to divulge to you.” Shortly after this refusal, Knefelkamp testified, the defendant asked if he could be alone with Knefelkamp. Boyne left the room. The defendant thereafter gave an incriminating oral statement. According to Knefelkamp, the defendant stated that the previous evening he had consumed alcohol, LSD and amphetamines and that their combined effect “wiped him out.” He described to Knefelkamp a similar type situation in which he had been involved in Effingham sometime before. He said he had been through a drug and alcohol rehabilitation center. “He advised that he did have a problem, he did need help, that he didn’t want to tell me for fear of it being prejudicial to this particular incident, if in fact he had done it, which he stated he couldn’t really remember ***. He said it was very possible that he could have done it, but he really couldn’t say for sure, because in his words he was wiped out.” Another request to leave was apparently made by the defendant in order that he might get his thoughts together and return in the morning to give a written statement. Knefelkamp responded that there would be further investigation and that the defendant had said enough to warrant holding him for additional investigation. Defendant was jailed.

The next day, the police secured defendant’s consent to search his apartment. They seized physical evidence including a beige pajama top and a window pane. The pane was found in a closet between a chest of drawers and the wall of the closet. Upon examination, the police discovered that the pane was the same one taken from Mrs. Hilger’s back porch.

Subsequently, the defendant signed a written statement taken during the fourth interrogation session. The statement was prepared and witnessed by Detective Lindsey. The statement reads as follows:

“In the evening of 1-5-82, I, Christopher Gutknecht, was drinking in a tavern I know as Hondos. A guy gave me a hit of LSD, and I took it. I had also taken some speed earlier in the evening. I got a ride home at about 11:30 p.m. with some people I don’t know. I went to bed, and sometime during the night I remember being outside of another apartment in the complex. The lights in the apartment were on. The next thing I remember I was inside the apartment with the window glass in my hand. I saw a woman standing by the table. I went into the bathroom, and then I left with the window glass from the back door, and went home, and put the glass in my closet. I have read the above statement and it is true. [Signed Christopher Gutknecht.]”

As noted above, defendant’s restraint after first requesting to leave amounted to an arrest, a lawful arrest based on probable cause. Defendant argues that his first request to go home was tantamount to a manifestation of his desire to terminate questioning and since the interview did not stop his right to refuse to speak was not “scrupulously honored.” (Miranda v. Arizona (1966), 384 U.S. 436, 479, 16 L. Ed. 2d 694, 726, 86 S. Ct. 1602, 1630.) Subsequent statements made by defendant were therefore made involuntarily and should not have been admitted as evidence at trial.

We do not believe the evidence supports defendant’s argument. Probable cause for arrest existed at the time the arrest was made. The arrest was made only after defendant requested to go home and was prohibited from doing so. The record establishes that once arrested, the defendant never asserted his rights to terminate questioning or remain silent until after informing the police of his involvement with drugs and alcohol and that he might have burglarized Mrs. Hilger’s apartment the night before. The record does not establish coercion or improper influence or abuse. The defendant’s initial statement was given with full knowledge of his Miranda rights. Defendant’s written statement was also similarly obtained. We are not persuaded that defendant’s statement confiding that it was possible he committed the burglary was obtained involuntarily. Nor do the circumstances surrounding his written statement indicate that his rights were violated.

Finally, defendant argues that the evidence was insufficient to prove that he had the requisite state of mind to commit the offense of residential burglary. (Ill. Rev. Stat. 1981, eh. 38, par. 19 — 3.) In particular, he argues that his alleged drugged and intoxicated condition on the night of the burglary absolves him from criminal responsibility in that it negatives the existence of knowledge of entry and intent to commit a felony or theft. Defendant relies upon the affirmative defense of intoxication (Ill. Rev. Stat. 1981, ch. 38, par. 6 — 3), which provides:

“A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition either:
(a) Negatives the existence of a mental state which is an element of the offense; ***.”

Defendant characterizes his conduct as irrational and that he was probably suffering from temporary psychosis during the incident in question. He argues that his power consciously to form an intent was suspended. He relies in part on the testimony of an expert on the effects of controlled substances on the human mind who concluded that all of the actions described in a hypothetical based on the evidence would be consistent with delusions and lack of intent. He also relies upon those actions described which included Mrs. Hilger’s testimony that he did not appear to know what he was doing, his talking to “people that weren’t there,” his expectation of Mrs. Hilger having visitors at 3 a.m., his cutting of her phone line and breaking her radio, his declaration that the pane of glass was worth $1,000, and the fact that he had an opportunity to take her belongings but left with nothing but the pane.

The State responds that the facts of the case show that the defendant acted knowingly and with the intent to commit aggravated battery or theft when he entered Mrs. Hilger’s apartment. His actions were those of a bold and calculating criminal who knew the risks and danger of the crime and took premeditated measures to avoid detection. The State points out that the intruder carefully removed the pane of glass from the window. He wore a ski mask to avoid identification and gloves to avoid leaving fingerprints. He constantly kept the knife at the victim’s throat and threatened her that he would return if she “squealed on him.” He cut the phone cord so she could not summon help and was very apprehensive about being detected by someone in the upstairs apartment. He threw her on the floor and threatened to kill her.

Where some evidence supports the defense of intoxication, the question is for the jury to determine whether it has been established. (People v. McGuire (1960), 18 Ill. 2d 257, 163 N.E.2d 832.) If the evidence is sufficient to raise the defense, the burden is on the State to rebut it by proving the defendant knew what he was doing when he committed the offense. (People v. Hayes (1976), 37 Ill. App. 3d 772, 347 N.E.2d 327.) Whether or not the State has sustained its burden is a factual determination to be made by the jury. (People v. Jones (1978), 67 Ill. App. 3d 477, 384 N.E.2d 523.) Similarly, it is well settled in Illinois that the question of whether the defendant was so intoxicated or drugged as to be incapable of forming the requisite intent to commit a crime is a question of fact for the trier of fact. (People v. Fields (1978), 56 Ill. App. 3d 1068, 372 N.E.2d 980.) For the affirmative defense to obtain, the condition of intoxication must be so extreme as to suspend all reason. (People v. Williams (1973), 14 Ill. App. 3d 789, 303 N.E.2d 585.) “There are many degrees of intoxication through which an individual may pass before reaching the level of intoxication at which his power of reason is entirely suspended so as to render him incapable of any mental action, such as forming the specific intent to commit a crime.” (37 Ill. App. 3d 772, 774, 347 N.E.2d 327, 329.) The jury found the defendant guilty of residential burglary and by doing so found the defendant’s alleged intoxication and drugged condition insufficient to negative knowledge and intent. It is apparent from the record that the jury was properly instructed regarding these elements. “This court will not substitute its judgment for that of the jury in cases in which the facts could lead to either of two inferences unless the inference accepted by the jury is inherently impossible or unreasonable.” (People v. Parker (1976), 35 Ill. App. 3d 870, 874, 343 N.E.2d 52, 55.) We do not believe it was impossible or unreasonable for the jury to conclude that the defendant either knew what he was doing or had the requisite intent to commit aggravated battery or theft when he entered the victim’s apartment. The expert himself testified that it was possible that the defendant might have known what he was doing. Further, the commission of aggravated battery is some evidence that he entered with the intent to commit that offense. The jury was not bound to believe that the defendant was even intoxicated when the burglary occurred. The only direct evidence of intoxication was that related by the police based on what the defendant told them. We believe the jury’s finding was not inherently impossible or unreasonable.

The judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

WELCH, P.J., and HARRISON, J., concur.


text:
    BOARD OF EDUCATION OF HAMILTON COUNTY COMMUNITY UNIT SCHOOL DISTRICT NO. 10, HAMILTON COUNTY, Plaintiff-Appellant, v. REGIONAL BOARD OF SCHOOL TRUSTEES OF JEFFERSON AND HAMILTON COUNTIES et al., Defendants-Appellees.
    Fifth District
    No. 83—128
    Opinion filed February 8, 1984.

      Allen D. Schwartz and David R. Smith, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellant.
    James W. Sanders and Associates, of Marion, for appellees.
    Neil F. Hartigan, Attorney General, of Springfield (Julia Quinn Dempsey, Special Assistant Attorney General, of counsel), for amicus curiae.

   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

This appeal is taken from the dismissal by the circuit court of Jefferson County of the plaintiff school board’s complaint to enjoin defendants, regional boards of school trustees, from holding hearings on a petition to establish several new school districts. We hold that the complaint sufficiently alleged that extrajurisdictional action by the regional boards was threatened, and therefore the court erred in dismissing the complaint for injunctive relief.

On July 12, 1982, a petition was filed with the Regional Board of School Trustees of Jefferson and Hamilton counties and the Regional Board of School Trustees of Franklin County. The petitioners were the majority of legal voters in Hamilton County Community Unit School District No. 10 (District 10) and were represented by a committee of 10 petitioners as attorney in fact. (Ill. Rev. Stat. 1981, ch. 122, par. 7 — 6.) By this petition, it was requested that district 10 be divided into three separate districts, one high school district and two elementary school districts. District 10 currently consists primarily of land in Hamilton County, with some territory in Jefferson and Franklin counties.

The regional board for Hamilton and Jefferson counties scheduled a hearing on the petition for October 6, 1982. This hearing has apparently been held in abeyance pending resolution of these proceedings. On September 22, 1982, the board of education of District 10 filed a complaint to enjoin the regional boards for Hamilton, Jefferson and Franklin counties from holding a hearing on the petition or taking any other action upon it. District 10’s position is that the regional boards do not have the authority to grant the relief requested in the petition. It points to several sections of the School Code to support its argument. Section 12 — 9 of the Code states, “All high school districts shall be governed by the provisions of this Act for the operation of a community high school district.” (Ill. Rev. Stat. 1981, ch. 122, par. 12 — 9.) Section 12 — 1 of the Code was amended in 1965 to provide that “[n]o petition for the establishment of a community high school district may be filed” after the effective date of the amendment. (Ill. Rev. Stat. 1981, ch. 122, par. 12 — 1.) Reasoning from those two provisions, District 10 concludes that no new high school district may be created in Illinois after 1965, and since the petition seeks the creation of a new high school district, it should not be heard by the regional boards. Amicus curiae Dr. Donald G. Gill, State Superintendent of Education, has filed a brief in this court in which he agrees with District 10’s interpretation of these provisions.

The petitioners’ committee of 10, who intervened in the proceedings below, asserted, inter alia, that District 10’s resort to the courts was premature. The intervenors moved to dismiss with prejudice the complaint for injunctive relief. Following a nonevidentiary hearing, the court orally granted this motion, and it is this ruling which District 10 now assigns as error.

Normally, a party aggrieved by administrative action cannot seek relief in the courts without first pursuing all administrative remedies available to him. (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 359 N.E.2d 113.) District 10 maintains that this doctrine should not be applied in this case. It notes that the doctrine of exhaustion of administrative remedies “applies to any question of law or fact except those going to the jurisdiction of the agency over the subject matter or the person” (Head-On Collision Line, Inc. v. Kirk (1976), 36 Ill. App. 3d 263, 266, 343 N.E.2d 534, 537), but it states that, under its interpretation of the provisions of the School Code quoted above, the regional boards do not have jurisdiction to consider the petition. Assuming, arguendo, that the petition did not meet the requirements of the School Code, then District 10 may resort to the courts without taking action before the regional boards if a petition not authorized by the Code is a jurisdictional defect. We believe that it is.

In hearing a petition to change the boundaries or organization of school districts, a school board must act in conformity with the School Code. (Ottawa Township High School District No. 140 v. County Board of School Trustees (1969), 106 Ill. App. 2d 439, 246 N.E.2d 138.) The board has the authority only to grant the relief sought in the petition or to deny it. (See School District No. 79 v. County Board of School Trustees (1954), 4 Ill. 2d 533, 123 N.E.2d 475.) Therefore, if a school board hears or otherwise takes action on a petition which does not comply with the Code, it exceeds its statutorily granted jurisdiction. (See Streator Township High School District No. 40 v. County Board, of School Trustees (1957), 14 Ill. App. 2d 251, 144 N.E.2d 531.) District 10’s complaint alleges in essence that a school board may not entertain a petition for the creation of a high school district, and that the instant petition seeks that relief. These allegations show that the injunction sought by District 10 would have the effect of preventing the regional boards from acting beyond the limits of their authority under the School Code. As such, further proceedings before the boards are not a prerequisite to that relief, and District 10’s complaint was properly before the circuit court.

Upon examining the merits of that complaint, we find that the School Code no longer allows voters to petition for the creation of a new high school district. Before 1965, the Code permitted voters in certain described territory to petition for an election to establish a community high school district. (Ill. Rev. Stat. 1963, ch. 122, par. 12— 1.) The language of the Code permitting this procedure did not specifically limit the establishment of community high school districts to territory which was not part of an existing district. As a result, it was held in People ex rel. Petty v. Community High School District No. 128 (1964), 50 Ill. App. 2d 445, 200 N.E.2d 609, that a community high school district could be created from territory already included in another high school district. It does not appear that the reviewing courts were presented with the question of whether a community high school district could be established in territory belonging to a community unit school district.

Section 12 — 1 of the Code was amended, as effective July 1, 1965. The required procedure for establishing a community high school district was not altered, but the following language, as we have noted earlier, was added to this provision: “No petition for the establishment of a community high school district may be filed after the effective date of this amendatory Act of 1965.” (Ill. Rev. Stat. 1981, ch. 122, par. 12 — 1.) This amendment, according to District 10, effectively prohibits the initiation of proceedings to establish any new high school district in Illinois after 1965, especially when the amendment is read with section 12 — 9 of the Code, which states that all high school districts are to be governed by the laws pertaining to community high school districts.

The intervenors respond that this construction of section 12 — 1 would render it internally inconsistent. They argue that it does not make sense to retain the procedure to initiate a referendum on a community high school district while at the same time preventing voters from filing a petition to commence those proceedings. This section of the Code may seem to be contradictory when read nearly 20 years after its amendment, but the retention of the pre-amendment portions of section 12 — 1 served a purpose just after the effective date of the amendment. Even though no new petition to establish a community high school district could be filed after July 1, 1965, the procedure governing referenda would still apply to proceedings occurring after July 1, 1965, on petitions filed before that date. A more logical statement of the interveners’ position is that if the General Assembly had intended to prohibit the formation of all new high school districts, it would have deleted the referendum provisions of section 12 — 1 some time between 1965 and the present. It would have also modified section 7 — 2 of the Code (Ill. Rev. Stat. 1981, ch. 122, par. 7 — 2), under which the instant petition is filed, to read, “New school districts *** may be created except high school districts.” That section presently states, “New school districts *** may be created” and does not list exceptions.

The first duty of a court in construing a statute is, of course, to effectuate the intention of the legislature. (People v. Robinson (1982), 89 Ill. 2d 469, 433 N.E.2d 674.) The best indication of that intent is the language which the legislators voted to adopt. (Coryn v. City of Moline (1978), 71 Ill. 2d 194, 374 N.E.2d 211.) The action taken by drafters of legislation is a more definite expression of their thoughts than is their failure to act. Here, in opposition to the plain language of the 1965 amendment, the interveners posit only inferences drawn from the General Assembly’s lack of activity in amending other portions of the School Code. We will not read this inaction to defeat the 1965 amendment of section 12 — 1, especially because the retention of the remainder of that section is explained by the necessity for rules on pending petitions. If no petition to establish a community high school district may be filed after July 1, 1965, and if all high school districts must be governed by the laws which control the operation of a community high school district, then it follows that no petition to establish any new high school district may be filed in Illinois after July 1,1965.

This conclusion is bolstered by reasons other than the language of the Code itself. Over the last four decades, the General Assembly has enacted legislation to promote larger, economically sound school districts so as to better the State’s educational facilities. The courts have consistently recognized in that legislation an expression of public policy to that effect. (Joliet Township High School District No. 204 v. Regional Board of School Trustees (1979), 72 Ill. App. 3d 430, 391 N.E.2d 147; Community Consolidated School District No. 210 v. Mini (1973), 55 Ill. 2d 382, 389, 304 N.E.2d 75 (Goldenhersh, J., dissenting), appeal dismissed (1974), 416 U.S. 923, 40 L. Ed. 2d 279, 94 S. Ct. 1921; Boughton v. Shears (1961), 29 Ill. App. 2d 216, 172 N.E.2d 497; People v. Newman Community Unit School District No. 303 (1953), 1 Ill. 2d 370, 115 N.E.2d 606.) Obviously, prohibiting the creation of new high school districts advances that policy by preventing the fragmentation of existing districts.

Furthermore, the Office of the Legal Advisor of the Superintendent of Public Instruction, now the Office of the Legal Advisor of the State Board of Education, has construed the School Code in a similar manner. Pursuant to section 2 — 3.7 of the Code (Ill. Rev. Stat. 1981, ch. 122, par. 2 — 3.7), that office is authorized to give written advisory opinions on questions of school law. (See Board of Education v. Bakalis (1973), 54 Ill. 2d 448, 299 N.E.2d 737.) Appended to the amicus curiae brief are two such letter opinions, addressed to local school authorities. In the first of these letters, dated March 13, 1974, an attorney in the office concluded that no petition for the establishment of a new community high school district could be filed after the effective date of the 1965 amendment. In the second letter, dated January 28, 1975, the same attorney wrote that he was of the opinion “that new high school districts may not be legally formed under the Illinois School Code at this time.” Copies of these opinions, according to amicus curiae, are made available to local school officers who pose a question on that issue, where it is determined that an additional opinion is unnecessary or unsuitable. Amicus curiae also notes that no high school district has been created in Illinois since 1965, demonstrating the acceptance of the legal advisor’s position by the educational community.

The intervenors minimize the significance of these opinions. They observe that the opinions were not rendered as quasi-judicial or quasi-legislative acts, and therefore should not be accorded great weight. Nonetheless, the supreme court has explained that statutory interpretations by administrative agencies are an informed source for ascertaining legislative intent (Adams v. Jewel Cos. (1976), 63 Ill. 2d 336, 348 N.E.2d 161), even if not reached by trial in adversary form (Oscar L. Paris Co. v. Lyons (1956), 8 Ill. 2d 590, 134 N.E.2d 755). As a result, even if we accept the intervenors’ contention that the two letter opinions do not form a “long standing interpretation,” the position of the legal advisor is, if not binding on us, at least persuasive. Hardway v. Board of Education (1971), 1 Ill. App. 3d 298, 274 N.E.2d 213.

Finally, the intervenors insist that this construction of the statute does not bar the regional boards from hearing their petition. They state that no new high school district would be created if their petition were granted, but instead the existing district, District 10, would be merely “redefined.” The high school would be the same attendance center if the reorganization were allowed, the same geographical area would be served by the school, and the families and students would be the same, as would the teachers and administrators. As the interveners express it in their brief, “The number of the district to which the high school belongs may change but all else will remain constant.”

This argument is specious. Section 12 — 1 of the Code, as we have interpreted it, prohibits the filing of a petition to establish any new high school district. It makes no exception for districts which could be fashioned with existing facilities. The point is that the instant petition seeks the creation of a new legal entity, a high school district, which does not now exist. As such, it is beyond the authority of the regional boards to consider the petition.

For the aforesaid reasons, the circuit court of Jefferson County erred in dismissing the plaintiff’s complaint for injunctive relief. Accordingly, that complaint is reinstated and this cause is remanded for further proceedings consistent with our opinion.

Reversed and remanded.

EARNS and EASSERMAN, JJ., concur.


author: JUSTICE McNAMARA

text:
    DOLORES NIEDER, Indiv. and as Special Adm’r of the Estate of John Mowery, Deceased, Plaintiff-Appellant, v. JOHN WAYNE GACY et al., Defendants (Department of Police of the City of Chicago et al., Defendants-Appellees).
    First District (3rd Division)
    No. 82—3062
    Opinion filed February 1, 1984.

      Barry E. Witlin, of Chicago, for appellant.
    James D. Montgomery, Acting Corporation Counsel, of Chicago (Jerome A. Siegan and Mary K. Rochford, Assistant Corporation Counsel, of counsel), for appellee Department of Police of the Chicago of Chicago.
    Thomas J. Miller, Attorney General, of Des Moines, Iowa (Thomas D. McGrane, Assistant Attorney General, of counsel), for appellee Iowa State Board of Parole.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Dolores Nieder, individually and as special administrator of the estate of her son, John Mowery, brought this wrongful death action against defendants John Wayne Gacy, the city of Chicago, Illinois Department of Corrections and Lemuel Sykes, Administrator, and the Iowa State Board of Parole. The trial court entered a default judgment against Gacy but dismissed the other defendants. Plaintiff appealed all the dismissals but did not object when this court dismissed her appeals against Sykes and the Illinois Department of Corrections for want of prosecution. Plaintiff now appeals the orders dismissing the city of Chicago and the Iowa State Board of Parole.

We first address plaintiff’s contention that the trial court erred in dismissing her action against the city of Chicago.

Plaintiff’s complaint charged that on September 29, 1977, she reported her son missing to the Chicago police department; that her son’s body was found on Gacy’s property on January 26, 1979; and that Gacy had assaulted and battered her son resulting in his death.

In count II plaintiff alleged that Chicago police arrested Gacy in February 1971 and numerous times thereafter knowing that he was a convicted felon and a parolee; that the police department owed a duty of care to plaintiff’s decedent; and that it breached that duty by failing to protect the decedent from the actions of Gacy, by failing to investigate missing persons cases and by engaging in other wilful and wanton acts. Plaintiff asserted that these wilful and wanton acts proximately caused decedent’s death.

The trial court granted the city of Chicago’s motion to dismiss based upon sections 4 — 102 and 4 — 107 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 1 — 101 et seq.). Section 4 — 102 provides:

“Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals.” (Ill. Rev. Stat. 1981, ch. 85, par. 4 — 102.)

Section 4 — 107 provides:

“Neither a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest or by releasing a person in custody.” Ill. Rev. Stat. 1981, ch. 85, par. 4-107.

Plaintiff contends, however, that these immunity provisions must be read in conjunction with section 2 — 202 of the act which she argues limits the extent of the immunity granted in the police immunity provisions. Section 2 — 202 provides:

“A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes wilful and wanton negligence.” (Ill. Rev. Stat. 1981, ch. 85, par. 2 — 202.)

Pursuant to this section plaintiff maintains that the city of Chicago may be liable for the actions of its police department if such acts are wilful and wanton, and that since her complaint contains such allegations, the action should not have been dismissed against the city of Chicago.

Plaintiff concedes that the identical argument was specifically rejected in Jamison v. City of Chicago (1977), 48 Ill. App. 3d 567, 363 N.E.2d 87, but contends that the holding in Jamison was erroneous. The Jamison court held that sections 4 — 102 and 4 — 107, the specific police immunity provisions, prevailed over section 2 — 202, the general immunity provisions relating to any public employee enforcing any law. We agree with the reasoning in Jamison and therefore find that sections 4 — 102 and 4 — 107 bar this action against the city of Chicago for the actions of its police officers. See also LeMenger v. Fitzgerald (1971), 1 Ill. App. 3d 803, 274 N.E.2d 913.

In so holding, we reject plaintiff’s contention that the decision in Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214, requires a reversal in the present case. In Huey, the court discussed generally the immunity of municipalities for the failure to provide police and fire protection and noted that exceptions to the immunity of municipalities are recognized only when the municipality assumes a special duty of care to a particular individual. The court found that no special duty was alleged in its case and therefore upheld the trial court’s dismissal of the action. (Accord, Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 446 N.E.2d 1183.) Similarly here, plaintiff has not alleged that a special duty was owed to decedent individually. As in Huey, plaintiff did not allege that the decedent had requested police protection or that the police department knew that he was in some peculiar danger. Moreover, to hold that under this complaint the city owed a special duty of care to decedent to protect him from the criminal acts of Gacy would impose an all but impossible burden, making the city essentially an insurer of the personal safety of every missing person.

Since we agree that the complaint failed to state a valid cause of action against the city of Chicago, we need not consider the city’s argument that plaintiff failed to file a timely statutory notice.

We next address plaintiff’s contention that the trial court erred in dismissing her complaint against the Iowa State Board of Parole.

In count IV, plaintiff alleged that Gacy had been sentenced in 1968 by an Iowa court to a 10-year prison term for the offense of sodomy. In 1970, the parole board released Gacy on parole to Illinois pursuant to the Interstate Probation and Parole Compact to which both Illinois and Iowa are parties. The complaint further alleged that the parole board’s wilful and wanton acts including its premature release of Gacy, its failure to supervise Gacy while on parole in Illinois, and its failure to revoke Gacy’s parole when he was arrested in Illinois in 1971, proximately caused decedent’s death on September 25, 1977. Plaintiff argues that these wilful and wanton actions were sufficient to subject the parole board to the jurisdiction of Illinois courts.

A State court may exercise personal jurisdiction over a nonresident defendant only if there exist certain minimal contacts between defendant and the forum State such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. (World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559; International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 2d 95, 66 S. Ct. 154.) To establish minimum contacts, it is essential that there be some act by which the defendant purposefully availed itself of the privilege of conducting activities within the forum State, thereby invoking the benefits and protections of the laws of that State. International Shoe Co. v. Washington; Coca-Cola Co. v. A. Epstein & Sons International, Inc. (1980), 89 Ill. App. 3d 253, 411 N.E.2d 917.

In the present case, none of the parole board’s actions of which plaintiff complains demonstrate the parole board’s invocation of the benefits and protections of the laws of Illinois. The parole board engaged in the alleged acts in Iowa pursuant to Iowa law. There are no allegations that it performed any acts in Illinois or conducted any business in Illinois. Instead, plaintiff appears to argue that because the consequences of the parole board’s actions, namely the killing of decedent by Gacy, occurred in Illinois, the parole board’s actions constituted the commission of tortious acts in Illinois which thereby established the requisite minimum contacts.

Jurisdiction over a nonresident defendant may be obtained if the defendant has committed a tortious act in Illinois. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 209(a)(2).) It is also true that physical presence in Illinois is not necessary for the commission of a tortious act in Illinois. (Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 176 N.E.2d 761.) To satisfy this statutory provision here, however, a less tenuous connection between the parole board’s acts and Illinois is required. (See Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 427 N.E.2d 1203.) The decedent was killed by Gacy seven years after the parole board’s release of Gacy to Illinois and five years after the parole period expired. The decedent’s death clearly is too remote a consequence of the parole board’s actions to conclude that the board’s actions fall within this jurisdictional base. (Cf. Martinez v. California (1979), 444 U.S. 277, 62 L. Ed. 2d 481, 100 S. Ct. 553.) Nor does the fact that the parole board’s actions permitting Gacy to reside in Illinois during his parole period were authorized by the Interstate Probation and Parole Compact, a reciprocal agreement between Iowa and Illinois (Iowa Code Ann. sec. 247.40 (West Supp. 1982); Ill. Rev. Stat. 1981, ch. 38, par. 1003-3-11), make the connection between the parole board and Illinois any less tenuous. Thus, we conclude that plaintiff failed to establish minimum contacts between the parole board and Illinois, and that the trial court properly dismissed the complaint against the Iowa State Board of Parole.

For the reasons stated, the orders of the circuit court of Cook County are affirmed.

McGILLICUDDY and WHITE, JJ., concur.


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL P. JOHNSON, Defendant-Appellant.
    First District (3rd Division)
    No. 82—506
    Opinion filed February 1, 1984.
    James J. Doherty, Public Defender, of Chicago (Thomas F. Finegan, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Harry H. Semrow, Jr., Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

On December 7, 1979, a jury convicted defendant, Michael P. Johnson, of armed robbery, unlawful use of weapons and unlawful restraint. A sentence was not imposed at that time, however, because it was determined that defendant was unfit for sentencing. On December 12, 1981, a restoration order finding defendant fit to be sentenced was entered. Defendant was thereafter sentenced to a term of 22 years’ imprisonment. The only issue on appeal is whether there existed a bona fide doubt as to defendant’s fitness to stand trial.

A defendant has a right not to be tried or convicted while incompetent to stand trial. (Drope v. Missouri (1975), 420 U.S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896; Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836; People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677; People v. Burson (1957), 11 Ill. 2d 360, 143 N.E.2d 239.) A defendant is unfit to stand trial if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 10.) The issue of a defendant’s fitness for trial may be raised before, during, or after trial. (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 11(a).) Once facts are brought to the attention of the trial court, either from observation of the defendant or by suggestion of counsel, which raise a bona fide doubt of a defendant’s fitness to stand trial, the court has a duty to hold a fitness hearing. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N,E.2d 677; People v. Burson (1957), 11 Ill. 2d 360, 143 N.E.2d 239; People v. Burnside (1977), 52 Ill. App. 3d 524, 367 N.E.2d 733.) A trial continued after a bona fide doubt of defendant’s fitness is raised but not resolved is in violation of due process of law. (Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836; People v. Burnside (1977), 52 Ill. App. 3d 524, 367 N.E.2d 733.) Whether a bona fide doubt has been raised is a decision resting largely within the discretion of the trial court. (People v. Murphy (1978), 72 Ill. 2d 421; People v. Turner (1980), 88 Ill. App. 3d 793, 410 N.E.2d_, 1151.) The trial court’s order refusing a fitness hearing should be overturned only when the trial court has abused its discretion. People v. Davenport (1980), 92 Ill. App. 3d 244, 416 N.E.2d 17.

Certain factors are to be considered in determining a defendant’s fitness to stand trial. These factors include: counsel’s assertion that defendant is unable to cooperate in his defense, prior treatment for mental disability, and defendant’s demeanor at trial. (People v. Davenport (1980), 92 Ill. App. 3d 244, 246.) The presence of several of these factors indicates that a defendant is unable to understand the nature of the proceedings against him or to assist in his defense. People v. Davenport (1980), 92 Ill. App. 3d 244, 247.

In the case at bar, counsel alerted the court to the fact that defendant was unable to cooperate with him. Defendant did not speak to counsel from September until the start of trial. Defendant only smiled when counsel tried to explain his rights and other aspects of the case to him. Counsel informed the court that defendant’s inability to cooperate was part of his mental illness. Counsel also represented to the court that Dr. Lorimer of the Psychiatric Institute, informed him defendant was unfit for trial — that defendant suffered from episodic dysfunctions during which defendant did not know what was occurring. Moreover, defendant’s demeanor prior to trial and at trial indicated that defendant was prey to serious mental problems. Defendant insisted that he was in court because someone had “tried to kill him in a hospital two years ago with his hand.” Defendant also believed that one of the deputies was trying to kill him. Twice counsel interrupted the testimony of prosecution witnesses because defendant was upset by the presence of a deputy in the courtroom. Counsel informed the court that defendant believed one of the deputies hit him, that defendant’s veins were “popping on the side of his head,” and that defendant kept looking at the deputy. On several occasions defendant complained that his head hurt, and defendant was once removed from court while howling, his body jerking convulsively. Four deputies were required to subdue defendant. Defendant also attempted suicide while in the lockup awaiting the start of trial. Several deputies observed defendant stabbing his arm with a broken razor blade.

An additional factor persuading us to believe that there existed a bona fide doubt as to defendant’s fitness to stand trial is that defendant was found unfit for sentencing. We are aware that a defendant could be fit to stand trial and yet later be unfit for sentencing. (People v. Martinez (1979), 78 Ill. App. 3d 590, 396 N.E.2d 1359.) But there exists a risk that a defendant found unfit for sentencing may also have been unfit during trial. (See People v. Turner (1980), 88 Ill. App. 3d 793, 410 N.E.2d 1151.) In the instant case, the finding that defendant was unfit for sentencing together with factors such as defendant’s demeanor at trial, and defense counsel’s representations to the court, lead us to conclude that there existed a bona fide doubt as to defendant’s fitness to stand trial.

Since a bona fide doubt existed as to defendant’s fitness to stand trial, the trial court was statutorily required to conduct a fitness hearing. (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 11(a).) Such a hearing was not conducted. In view of the difficulties inherent in conducting a fitness hearing several years after a trial (Drope v. Missouri (1975), 420 U.S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896; People v. McLain (1967), 37 Ill. 2d 173, 226 N.E.2d 21), we remand this case for a new trial. People v. Thomas (1969), 43 Ill. 2d 328, 253 N.E.2d 431; People v. McLain (1967), 37 Ill. 2d 173; People v. Turner (1980), 88 Ill. App. 3d 793.

Reversed and remanded.

McNAMARA and McGILLICUDDY, JJ., concur.


author: JUSTICE O’CONNOR

text:
    GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION, LTD., Plaintiff-Appellant, v. ALOYSIUS KLATT, Defendant-Appellee.
    First District (3rd Division)
    No. 82—2708
    Opinion filed February 1, 1984.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Thomas M. Hamilton, and Peter C. Morse, of counsel), for appellant.
    Kwiatt & Silverman, Ltd., of Chicago (Scott E. Tuckerman and Michael Silverman, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff General Accident Fire & Life Assurance Corp., Ltd., filed an action for declaratory judgment to determine the availability of uninsured motorist coverage for defendant, Aloysius Klatt, who was injured, on October 18, 1980, in a one-car accident while being driven by his wife. Both parties filed motions for judgment on the pleadings. Defendant’s motion was granted, the circuit court of Cook County holding that he was entitled to uninsured motorist coverage under the policy issued on his automobile by plaintiff. Plaintiff appeals, contending that defendant’s wife was an insured under the policy and that, therefore, defendant was not entitled to uninsured motorist coverage.

Section 143a(l) of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 755a(l)) provides in pertinent part:

“Sec. 143a. (1) On or after July 1, 1963, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7 — 203 of The Illinois Vehicle Code for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit- and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom, except that the named insured shall have the right to reject such coverage only on policies delivered, renewed or issued for delivery before July 1, 1967.”

The legislative intent of this section is in part to insure that persons injured by an uninsured motorist are protected at least to the extent that compensation is made available for persons injured by a motorist insured for the minimum limits under section 7 — 203 of the Illinois Safety Responsibility Law (Ill. Rev. Stat. 1979, ch. 95½, par. 7 — 203). (Severs v. Country Mutual Insurance Co. (1982), 89 Ill. 2d 515, 434 N.E.2d 290.) Thus, protection is afforded only when the motorist at fault is uninsured.

Policy No. ACF2781851 issued by plaintiff to defendant provided liability coverage and also uninsured motorist coverage as required by section 143a(l).

Part I of the policy provided liability coverage:
“Part I — Liability
Coverage A — Bodily Injury Liability;
* * *
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
A. bodily injury, *** sustained by any person; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, * false or fraudulent;
* * *
Persons Insured
The following are insureds under Part I:
(a) with respect to the owned automobile,
(1) the named insured and any resident of the same household,
* * *
Definitions Under Part I:
‘named insured’ means the individual named in Item 2 of the declarations and also includes his spouse, if a resident of the same household.
* *
Part IV provided uninsured motorist coverage:
“Part IV — PROTE CTION AGAINST UNINSURED MOTORISTS
Coverage G — Uninsured Motorists (Damages for Bodily Injury)
To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury *** sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile;
* * *
Definitions
* * *
‘uninsured automobile’ includes a trailer of any type and means:
(a) an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder or
*** 99

From the foregoing provisions of the statute and policy it is clear that uninsured motorist coverage is provided only when the motorist j causing the injury is uninsured. It is equally clear from the provisions of the policy here involved that defendant’s wife who was driving was an insured under part I of the policy. Defendant admits she was an insured, but contends that because of the statutory interspousal tort immunity created by section 1 of “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1979, ch. 40, par. 1001), defendant’s wife was an uninsured motorist.

That section, as amended in 1953, provides:

“A married woman may, in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried; provided, that neither husband nor wife may sue the other for a tort to the person committed during coverture. An attachment or judgment in such action may be enforced by or against her as if she were a single woman.”

Defendant argues that the interspousal immunity precludes liability coverage under his policy and invokes the uninsured motorist coverage of his policy. We disagree.

In Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 390, 396 N.E.2d 528, on which defendant relies, the court stated:

“From our examination of the authorities we conclude that prior to the 1953 amendment of the statute (Ill. Rev. Stat. 1951, ch. 68, par. 1) one spouse could bring an action in tort against the other during coverture (Brandt v. Keller (1952), 413 Ill. 503) and that the effect of the 1953 amendment was not to destroy the cause of action of the injured spouse, but to confer immunity on the tortfeasor spouse, which like a defense based upon the statute of limitations can be waived by the defendant spouse.”

Thus, because the interspousal immunity statute did not destroy the cause of action, but only provided a defense, defendant’s wife in the case before us was an insured, thus making the uninsured motorist insurance coverage unavailable.

In Elkins and in Farmers Insurance Group v. Nudi (1982), 108 Ill. App. 3d 151, 438 N.E.2d 1260, also relied on by defendant, the policies involved each had a household exclusion provision, the effect of which was to make the spouse an uninsured motorist. Here, to the contrary, the policy provided coverage and a defense for defendant’s wife even if “any of the allegations of the suit are groundless, false or fraudulent.” The insurer’s duty to defend is considered broader than its duty to pay. McFadyen v. North River Insurance Co. (1965), 62 Ill. App. 2d 164, 170, 209 N.E.2d 833.

Defendant’s argument that the immunity statute precludes liability coverage overlooks the fact that coverage depends on whether the occurrence falls within the terms of the insuring agreement and not on the ultimate outcome of the suit (Allstate Insurance Co. v. Gleason (1964), 50 Ill. App. 2d 207, 214, 200 N.E.2d 383).

In Williams v. Williams (1982), 108 Ill. App. 3d 936, 439 N.E.2d 1055, the existence of insurance coverage was not an issue; it was assumed. No question as to uninsured motorist coverage was involved. The trial court dismissed because of the statutory interspousal immunity. The supreme court affirmed the dismissal, but vacated the appellate court judgment without comment as to its merits to the extent that it had decided whether the immunity conferred by the inter-spousal immunity statute was personal and may be waived and whether the insurance carrier can invoke the immunity in defense of an action for personal injuries. Williams v. Williams (1983), 98 Ill. 2d 128, 455 N.E.2d 1388.

That case has no application here.

Neither Bonkowsky v. Bonkowsky (1982), 69 Ohio St. 2d 152, 431 N.E.2d 998, nor Hendrickson v. Cumpton (Mo. App. 1982), 632 S.W.2d 512, nor First National Insurance Co. of America v. Perala (1982), 32 Wash. App. 527, 648 P.2d 472, is applicable. Bonkowsky did not involve uninsured motorist protection. The latter two were not concerned with interspousal immunity. In Hendrickson, the vehicle’s owner had no applicable policy, but the permissive driver was covered by a liability policy. The court held that, because the Missouri statute is an “uninsured motor vehicle” statute, the personal liability insurance of the operator did not foreclose the availability of uninsured motorist coverage with respect to the claim against the owner for his negligent entrustment of his automobile to the operator. In First National, there was a policy in effect with respect to the automobile involved; because the operator was only 16 years old and the policy excluded operators under 25 years, the alleged tortfeasor was uninsured.

The judgment of the circuit court of Cook County is reversed and judgment is entered here for plaintiff General Accident & Life Assurance Corp., Ltd.

Reversed and judgment entered for plaintiff.

RIZZI, P.J., and WHITE, J., concur.