author: JUSTICE STAMOS

text:
      In re MARRIAGE OF CAROLE FINE, Plaintiff-Appellee, and GEORGE FINE, Defendant-Appellant.
    First District (2nd Division)
    No. 82—2155
    Opinion filed July 26, 1983.

      Richard L. Hoffman, of Chicago, for appellant.
    Kalcheim & Kalcheim, Ltd., of Chicago (llene E. Shapiro, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

The sole question presented for review in this case is whether evidentiary hearings on plaintiff Carole Fine’s right to temporary maintenance and a preliminary injunction are “hearings” within the meaning of section 52(1) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 52(1)), so as to bar her absolute right to dismiss her action pursuant to that section.

On March 16, 1981, Carole Fine commenced an action for dissolution of marriage against defendant George Fine. The complaint also contained alternative counts praying for damages, specific performance, a constructive or resulting trust, and for an equitable lien. These latter counts were all based on Carole’s contention that the house occupied by the couple during the marriage was actually a marital asset, although title was in Meyer Fine, George’s father.

Between March of 1981 and June 8, 1982, Carole presented various motions for temporary maintenance and preliminary injunctions. Those motions were denied by the court after evidence was heard and memoranda were considered.

On June 8, 1982, Carole filed a motion for voluntary dismissal pursuant to section 52(1) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 52(1)), which provides in pertinent part:

“The plaintiff may, at any time before trial or hearing begins, *** upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice, by order filed in the cause.”

The court granted Carole’s motion on June 11, 1982, and denied George’s timely motion to vacate that order on September 1, 1982. George appeals, contending that the evidentiary hearings on Carole’s motions for temporary relief constituted “hearings” within the meaning of section 52(1), and that therefore Carole did not have the absolute right to dismiss her action upon payment of George’s costs.

This case turns on the meaning of the word “hearing” as it is used in section 52(1) of the Civil Practice Act. The question of whether a “hearing” has commenced within the meaning of that section so as to bar the plaintiff’s absolute right to dismiss the action has been given confusing treatment by the various panels of the appellate court, and a review of the cases treating the question is necessary to a discussion of the issue.

The word “hearing” has two distinct usages, as a generic term and as a term of art. Black’s Law Dictionary (4th ed. 1968), defines a hearing as a “[proceeding of relative formality *** with definite issues of fact or of law to be tried *** much the same as a trial” but also states “In equity practice. The trial of the case, including introduction of evidence, argument of counsel, and decree of court.” (Black’s Law Dictionary 852 (4th ed. 1968).) In the most precise sense, then, a “hearing” is a trial at equity, and the term may be used interchangeably with the word “trial.” In its popular sense, the term applies to any formal proceeding before a judge or other magistrate exercising a judicial function. See Menard v. Bowman Dairy Co. (1938), 296 Ill. App. 323, 326, 15 N.E.2d 1014.

Section 52 was enacted in 1933, along with the rest of the Civil Practice Act. The fact that the statute was enacted before the merger of law and equity, and the fact that the predecessor statute provided that a nonsuit could be had before the case was submitted to the jury or before the case was submitted for final decision to the court in a bench trial, should lead to the conclusion that the word “hearing” was intended by the legislature to refer to trials at equity, and that the term was used to preserve the symmetry between the availability of voluntary dismissals in bench and jury trials which existed in the predecessor statute. Under this reading, the beginning of the “trial” in a legal action or the beginning of the “hearing” in an equitable action is the only event which cuts off the plaintiffs absolute right to dismiss the action without prejudice. No court, however, has interpreted this provision in this way.

The first case to indicate that pretrial hearings may be “hearings” within the meaning of section 52 was Menard v. Bowman Dairy Co. (1938), 296 Ill. App. 323, 15 N.E.2d 1014. In that case, the court held that the prohibition of the statute applied to hearings before a master in chancery. That holding appears to be based upon the court’s conclusion that the statute applies to “hearings” in the popular sense, i.e., hearings before any magistrate exercising judicial power. However, it should be noted that a hearing before a master in chancery under former practice was essentially the “trial” of the case, because that was the portion of the case which embodied the parties’ opportunity to present evidence.

The question of what types of “hearings” fall within the meaning of that term in section 52 became more complex with the decision of Bernick v. Chicago Title & Trust Co. (1945), 325 Ill. App. 495, 60 N.E.2d 442. In that case, the defendant filed a motion to dismiss the case under section 45 of the Civil Practice Act, and also filed a motion under section 48(l)(c) of that act alleging that the action was barred by res judicata. The court granted the section 45 motion and allowed the plaintiff to amend the complaint. The court reversed its ruling on the section 48 motion. The plaintiff then moved to dismiss the action pursuant to section 52(1), and the trial court granted the motion. The appellate court reversed, reasoning that the defense of res judicata is a controlling defense which, if found to exist, will terminate the litigation. Therefore, the hearing on the section 48(l)(c) motion was a “hearing” under section 52 because the granting of the motion would in effect dispose of the case. (325 Ill. App. 495, 501-02.) The court concluded that the absolute right to a voluntary dismissal was lost when that motion was taken under advisement. We note that the court seemed to assume that the section 48(l)(c) motion had merit in that case. The court did not address whether the unsuccessful prosecution of a section 48(l)(c) motion would operate as a bar to the plaintiff’s right to a voluntary dismissal.

The Bernick holding was explained by the court in North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406, 349 N.E.2d 664. In that case, the court noted that the trial court is authorized to decide disputed issues of fact on affidavit and testimony in a section 48 motion (see Ill. Rev. Stat. 1981, ch. 110, par. 48(3)), while the court may only decide the sufficiency of the complaint in a section 45 motion and may only decide if a disputed question of fact exists when passing on a motion for summary judgment. The court concluded that a section 48 motion can not be considered a preliminary proceeding for the reason that an entire cause of action may rise or fall on the motion. The court stated that while a hearing on a section 48 motion is a “hearing” within the meaning of section 52(1), hearings on a section 45 motion or a motion for summary judgment are not. 39 Ill. App. 3d 406, 409-10; see City of Palos Heights v. Village of Worth (1975), 29 Ill. App. 3d 746, 749, 331 N.E.2d 190.

The other cases which have treated the question of whether a “hearing” has commenced within the meaning of section 52 have set forth the general rule that a “hearing” occurs when the court takes evidence for the determination of issues in the action sought to be dismissed. (See In re Marriage of Mostow (1981), 95 Ill. App. 3d 915, 917, 420 N.E.2d 731; Central Ice Cream Co. v. Goldenrod Ice Cream Co. (1958), 18 Ill. App. 2d 7, 9, 151 N.E.2d 466.) This general rule has been applied to hold that a hearing had not begun when: (1) a hearing on a petition for temporary maintenance had been held (Mostow); (2) defendant had taken the evidence deposition of an ailing witness (Wright); and (3) a hearing on a preliminary injunction had been conducted during which the parties had stipulated that evidence taken in that hearing would be considered as evidence going to the merits of the case. Central Ice Cream Co.

It is clear that the situation presented by the instant case falls squarely within the holdings of Mostow and Central Ice Cream Co. Here, a hearing on a preliminary injunction and hearings on temporary maintenance were conducted. Although the likelihood of the plaintiff’s success on the merits of the case must be scrutinized at such a hearing, no ultimate determination of the plaintiff’s right to permanent relief is made at that time, and therefore, under the rule enunciated in those cases, no hearing within the meaning of section 52 had begun. (Cf. Long v. City of New Boston (1982), 91 Ill. 2d 456, 461, 440 N.E.2d 625 (“trial” means a judicial determination of the merits of plaintiff’s claims with respect to the legal issues presented).) Although the instant case could be disposed of by an order to this effect, we are cognizant of the unusual amount of confusion engendered by the cases interpreting the meaning of the word “hearing” in section 52(1). We therefore find it desirable to go further and to propound the simple and easily applied rule that a “hearing,” being merely the equitable equivalent of a “trial” as it is used in section 52(1), does not begin until the parties begin to present their arguments and evidence to the court sitting without a jury in order to achieve an ultimate determination of their rights. Under this rule, an examination of defenses under section 48 of the Civil Practice Act is no more a “hearing” under section 52(1) than are other proceedings relating to preliminary motions.

We adopt this rule primarily because of the anomaly that results from the current rule that the consideration of a section 48 motion bars the plaintiff’s absolute right to dismiss the action while a hearing on preliminary equitable relief does not. Although ultimate determinations of fact are made in passing on a section 48 motion, those determinations go to the existence of technical defenses to the action rather than to the disputed issues in the underlying controversy. Contrariwise, although no ultimate determinations of fact are made in a hearing on a preliminary injunction, the issues examined generally are derived from the same facts as the transaction complained of in the underlying action. There seems to be no logical reason why an unsuccessful section 48 motion initiated by the defendant should operate to bar the plaintiff’s absolute right to dismiss the action, while a successful plaintiff may gain extraordinary, if preliminary, equitable relief which may have a profound effect on the positions of the parties, and may still retain the absolute right to dismiss the action.

For the reasons expressed herein, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

DOWNING, P.J., and HARTMAN, J., concur.

      For an exhaustive review of most of the cases discussed herein, see Note, The Vanishing Right of a Plaintiff to Voluntarily Dismiss His Action, 9 J. Mar. J. Prac. & Proc. 853 (1976).


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    MARIO CORTEZ SOTO et al., Plaintiffs-Appellees, v. E. W. BLISS DIVISION OF GULF & WESTERN MANUFACTURING COMPANY, Defendant-Appellant.
    First District (5th Division)
    No. 82—0614
    Opinion filed June 17, 1983.
    Rehearing denied September 1, 1983.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, Harry J. O’Kane, Edward J. Kulkey, and Mark L. Karasik, of counsel), for appellant.
    Jack Ring, Ltd., of Chicago (Jack Samuel Ring and Richard L. Wattling, of counsel), for appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from a judgment on a verdict for plaintiffs in their strict liability action seeking damages for injuries sustained by plaintiff Mario Cortez Soto (Soto) while working on an allegedly defective punch press. Defendant contends that (1) either its motions for a directed verdict or its motion for judgment notwithstanding the verdict should have been granted because plaintiffs failed to establish the elements of their action; (2) the sanction imposed for failure to produce a witness was improper; (3) numerous trial errors and improper argument of plaintiffs’ counsel deprived it of a fair trial; and (4) the jury was improperly instructed.

It is the position of plaintiffs, as alleged in the pleadings, that defendant manufactured and sold a punch press to Soto’s employer which was unreasonably dangerous in that (a) after the stop button was pushed the flywheel continued to rotate while coasting to a stop and, during this coasting period, the press could be tripped, and (b) no warnings of this dangerous characteristic were given. It was further alleged that this unreasonably dangerous condition existed when the press left the control of defendant and was the proximate cause of Soto’s injury.

Evidence pertinent to the issues raised on appeal was presented only by plaintiffs. In substance, Soto testified that he began working in May 1974 as a punch press operator on a partial-revolution press. Two months later, he was assigned to a full-revolution punch press which was activated by a foot pedal — differing from the partial-revolution press which would activate only after two palm buttons were pressed. While Soto was given operating instructions by his employer concerning the full-revolution press, he stated that there were no warning signs of any kind on the press. During his second day of work on the machine and in compliance with the instructions he had been given on how to clean the press, Soto said that he pushed the stop button expecting the press would come to a complete stop. He then picked up the guard in front of the press and placed it in its upper ridge and had started cleaning when the guard fell and struck him on the head. He was so startled that he stepped on the foot pedal and the ram came down on his left hand.

Plaintiffs’ expert witness testified that on the full-revolution press the stop button disconnects the electrical power to the drive motor, but the flywheel continues to rotate before it finally coasts to a stop. The machine could be tripped by the foot pedal at any time while the flywheel was coasting. The machine did not have a drive motor interlock, costing about $50, which would have prevented the activation of the machine while the flywheel was coasting and which could have been incorporated into the press during its design and manufacture. The installation of such an interlock would not have affected any of the various uses to which the press could be put. Drive motor interlocks were available when the press in question was manufactured and sold, and it was his opinion that the full-revolution press in question was unreasonably dangerous, for several reasons, including (a) after the stop button was pressed the flywheel would continue to rotate while coasting to a stop, and if the foot pedal was depressed during the coasting period the machine could be tripped, and (b) there was no warning of this characteristic on the press or in the manual provided for it.

Peter Bosch, manager of product liability for defendant, in a section 60 examination, testified that when the stop button on a partial-revolution press is pushed, the press will stop and it cannot be activated by contact with the foot pedal because the electric current is cut off from the motor control. However, when the stop button on a full-revolution press such as the.one involved here is pushed, the flywheel continues to rotate while coasting to a stop and contact with a foot pedal will activate the press. Defendant was aware prior to the sale of the machine in question that its presses would have to be cleaned and, if a press had a guard, it would have to be lifted to clean the die area. The press in question was sold by Bliss with no warning that the flywheel would continue to rotate after the stop button was pushed or that it could be activated during the coasting period. He also said that neither a drive motor interlock nor any other device was attached to the press to prevent activation during the coasting period.

Opinion

Defendant initially contends that the necessary elements of plaintiffs’ action were not established and thus that the court should either have directed a verdict or entered judgment notwithstanding the verdict. It is settled that to recover under a strict liability theory, a plaintiff must establish that the injury or damage proximately resulted from an unreasonably dangerous condition of the product which existed at the time it left the manufacturer’s control. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.

Under the Pedrick standard (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504), the issue presented by defendant’s contention that either a directed verdict or judgment notwithstanding the verdict should have been entered is whether the evidence, when viewed in its aspect most favorable to plaintiffs, so overwhelmingly favors defendant that no contrary verdict based on this evidence could stand under the theory advanced by plaintiffs.

In support of its contention that plaintiffs did not prove the necessary elements of strict liability, defendant makes several arguments. Initially, he states that “the Record contains no testimony that the product was in the same condition at the time it left the manufacturer’s control.” We see no merit in this argument. While it is correct, as defendant states, that Soto’s employer added four or five different clutches, a guard, and also a foot pedal as the means of activation, we note that plaintiffs’ expert gave uncontradicted opinions that the press was unreasonably dangerous (1) because it could be activated while the flywheel was coasting after the button was pushed; and (2) because it lacked any warning of this condition. He also gave testimony, which was not contradicted, that the attachment of a drive motor interlock not only would have prevented the activation of the press but also would not have affected any use of the press. Moreover, Bosch, defendant’s manager of product liability, admitted that the press could be activated while the flywheel is coasting after the stop button is pressed and that, when defendant sold the press, there was no warning either on the machine or in its manuals that it could be so activated. Thus, we think it clear that this condition of the press with no warning thereof was the same when the press left the control of defendant as it was at the time of Soto’s injury.

Defendant also argues that it had no duty to add the drive motor interlock to the press. While it is clear that a manufacturer has a nondelegable duty to provide a product which is reasonably safe (Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 385 N.E.2d 690), defendant, relying primarily upon Rios v. Niagara Machine & Tool Works (1973), 12 Ill. App. 3d 739, 299 N.E.2d 86, aff’d (1974), 59 Ill. 2d 79, 319 N.E.2d 232, maintains that it had no duty to provide the drive motor interlock or any other safety device because the press was multifunctional in nature. In Rios, the plaintiff was injured while operating a punch press which he alleged was unreasonably dangerous because it was not equipped with adequate safety devices. This court held that because the machine was multifunctional, different types of safety devices would be required to obtain reasonable safety in performing those various functions and, under such circumstances, no duty should be imposed upon the manufacturer to provide safety devices. The supreme court, however, although it affirmed, stated that the multifunctional nature is only one factor to consider in determining whether a product is unreasonably dangerous and that it would not necessarily be decisive of whether there was a duty to provide safety devices.

It is our view that Rios is not controlling here because it is undisputed that none of the uses to which the press could be put would be affected by the attachment of the drive motor interlock. More persuasive is Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 326 N.E.2d 74, in which there was also a contention by the defendant that a verdict should have been directed for it. Scott was a strict product liability action involving an injury to the plaintiff while operating a press, the flywheel of which, as in the case before us, would continue to coast after the electric current was cut off, and during this coasting period the press was activated. The evidence disclosed that a simple lock-out device could have been attached to prevent the ram from descending during the coasting period after the current was turned off. The defendant contended that it had no duty to provide such a device because of the press’ multifunctional nature. The court disagreed, stating that because the defect (the fact that it could be activated after the electric current was off) was unrelated to the multifunctional aspect of the machine, the no-duty rule of Rios was not applicable.

Under the circumstances in the case before us, we hold that the multifunctional nature of the press did not, as a matter of law, obviate defendant’s duty to provide a reasonably safe product.

We also find no merit in defendant’s argument that as a matter of law it had no duty to warn Soto that the press could be activated after the stop button is pushed. A product may be unreasonably dangerous if a manufacturer failed to warn or gave an inadequate warning of a condition which it knew or should have known was dangerous. (Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194.) However, where an injury results from a condition of a product that is open and obvious, no warning is required (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465), and the determination as to whether a duty to warn exists is a question of law (Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307).

In support of this position, defendant states “the risks and dangerous propensities of the subject press is [sic] open and obvious; undeniably while the flywheel coasts, the press makes the same noise as when it is activated. Under this circumstance, there can be no duty to warn of the possibility of injury, since such possibility results from the common propensity of the product, a propensity that is open and obvious.” Defendant appears to say that because the noise of the flywheel is the same upon activation as when coasting, the dangerous propensity of the press was obvious to plaintiff and thus that it had no duty to warn. However, we find nothing in the record to support defendant’s statement as to the noise being the same, nor does defendant inform us how this sameness, if it were so, made the “dangerous propensities” of the press obvious to Soto. To the contrary, it seems to us that if the noises were alike, the danger would be less obvious to plaintiff. In any event, there was a question of fact as to whether the lack of warning rendered the press unreasonably dangerous.

We turn, then, to defendant’s argument that the sole proximate cause of Soto’s injuries was the conduct of his employer. It is recognized that a manufacturer can avoid all responsibility in a strict product liability action where the evidence establishes that the sole proximate cause of the injury was the conduct of another. Nelson v. Hydraulic Press Manufacturing Co. (1980), 84 Ill. App. 3d 41, 404 N.E.2d 1013.

Defendant posits that “[b]ecause the press was multi-functional, it was the duty of the employer to add the additional safety device [the drive motor interlock], since only the employer knew how the press was to be used.” We have held above, however, that the multifunctional nature of the press in question did not obviate defendant’s duty, and we therefore reject his argument that it was the sole duty of Soto’s employer to add the device to the press.

In light of the above and viewing the evidence in its aspect most favorable to plaintiffs, we cannot say that it so overwhelmingly favors defendant that no contrary verdict based on this evidence could stand. Accordingly, we find the trial court did not err in denying defendant’s motions for a directed verdict and for judgment notwithstanding the verdict.

We turn next to defendant’s contention that the sanction imposed against it for failure to produce an employee at trial was improper. We disagree.

Supreme Court Rule 237 governs the procedure for compelling the appearance of witnesses at trial and provides that upon failure to comply with a notice designating a person who, at the time of trial, is an officer, director, or employee of the party and is required to appear, the court may enter any order that is just, including any appropriate order provided for in Rule 219(c). 87 Ill. 2d R. 237.

On November 3, prior to the selection of the jury, plaintiffs orally supplemented an earlier notice by requesting that defendant produce an engineer employee, James Lewis, pursuant to Rule 237(b). Following an extended discussion on the relevance of his testimony, the trial court ordered that he be produced, and plaintiffs’ counsel requested his presence on November 16. On that date, the court inquired of defense counsel and Bosch concerning Lewis’ availability. Bosch stated that Lewis was in his office in Hastings, Michigan, awaiting a call from Detroit as to whether a trial there, in which Lewis was involved, had started. Defense counsel then stated, “I am not going to produce Mr. Lewis. I don’t think I have to. *** I am refusing to produce him.” Lewis was not produced, and at the close of plaintiffs’ case, the court imposed the following sanction for defendant’s failure to produce the witness:

“The court holds as a matter of law that there were numerous accidents from 1867 to 1974 on the full revolution press after the motor was turned off and the flywheel was still coasting.”

Defendant initially argues that this sanction was improper because Lewis’ absence was reasonably explained when the court was informed of his involvement in trials on the east coast and in Detroit during the present litigation. This argument is unavailing, as Lewis was to appear in those cases only as a witness, with no showing that his presence was required by court order. Furthermore, the record discloses that from November 3, when Lewis’ presence was ordered, until the close of plaintiffs’ case on November 19, when the sanction was entered, defense counsel was repeatedly instructed by the court to produce Lewis and was informed that sanctions would be imposed upon his failure to do so. Nevertheless, on November 16, defense counsel told the court that he would not produce the witness.

Defendant additionally argues, relying upon Oakview New Lenox School District No. 122 v. Ford Motor Co. (1978), 61 Ill. App. 3d 194, 378 N.E.2d 544, that it was not required to produce Lewis because he had no personal knowledge of relevant facts. It appears to us, however, that Oakview is clearly distinguishable as it involved the denial of a motion to quash a Rule 237 notice on the basis that the witness had no personal knowledge of “the facts of the case.” At the beginning of trial in Oakview, the court denied the defendant’s motion for leave to file an affidavit and deposition of the witness attesting to his lack of knowledge. When the defendant refused to produce the witness, a sanction was imposed barring the presentation of certain crucial evidence. On appeal, it was held that the sanction was improper, with the court reasoning:

“[T]he record is utterly devoid of any relevant information which plaintiff expected to elicit from [the witness] at trial, but does contain numerous sworn statements declaring that [the witness] has no personal knowledge of the matters involved. In light of plaintiff’s failure to assert any facts to the contrary, or to disclose what purpose would be served by requiring [the witness] to appear, we are compelled to conclude that plaintiff failed to show good cause.” 61 Ill. App. 3d 194, 199, 378 N.E.2d 544, 547-48.

Here, although defendant indicated that Lewis possessed no relevant information, unlike Oakview, no supporting documents were presented by defendant. Furthermore, the record contains numerous statements by plaintiffs’ counsel concerning the information he expected to elicit from Lewis; namely, that he had received information during the weekend before trial from an attorney in another case in which Lewis was a witness that he (Lewis) was not only knowledgeable concerning full-revolution presses of defendant but could also testify as to prior accidents and injuries to persons operating such presses, and that because Lewis had been an employee of defendant since 1949, his testimony would not be cumulative to that of Bosch, who was first employed by defendant in 1968. Moreover, Bosch, who began to work for defendant in 1968, testified that he had been informed by Lewis that between 1954 and 1964 injuries had occurred on full-revolution presses but Lewis had not told him the number of such injuries. In light of the above, we conclude that defendant was not justified in refusing to produce the witness.

Defendant also argues that the sanction was improper in that it introduced evidence of accidents which were not “substantially similar” to the instant occurrence. Although «evidence as to a prior accident to be admissible does not have to occur in an identical manner, substantial similarity is required. (Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534.) Here, the sanction limited the accidents to a period prior to the occurrence in question and to those occurring on a “full revolution press after the motor was turned off and the flywheel was still coasting.” While there appears to have been no specific evidence concerning accidents involving, as here, hand and arm injuries to operators of defendant’s full-revolution presses prior to the date the press in question was manufactured, there was evidence of accidents and injuries prior to that time when such presses were activated while the flywheel was coasting after the stop button was pushed.

In Rucker v. Norfolk & Western Ry. Co., evidence of prior accidents involving 42 punctures of a certain type of tank car was admitted for the purpose of showing the danger in the design of those cars. While 26 of the accidents involved punctures by the couplers of other cars, which was the situation in Rucker, other reasons were the cause of 16 punctures, and defendant contended that there was a failure to show that those 16 were substantially similar to the situation in Rucker. The court stated:

“The point sought to be made by plaintiff in introducing the evidence is that the car is susceptible to puncture without a head-shield. Whether the puncture was by coupler or other means is irrelevant. The circuit court, in its discretion, therefore could have determined that all 42 accidents were sufficiently similar and relevant to the issue of whether the car was dangerous. It need not be shown that the accidents occurred in an identical manner. Substantial similarity is all that is required.” (77 Ill. 2d 434, 441, 396 N.E.2d 534, 537-38.)

We think the evidence here satisfies the substantial similarity requirement as set forth in Rucker.

Finally, we note that the imposition of this sanction was based on evidence presented in the record as well as by consent of defense counsel. Bosch, when asked whether he knew of any case “prior to 1974 where an individual would push a Stop button and the flywheel would continue to turn and they were injured by the press, and depressing the foot pedal on the full revolution press,” responded that “there have been such incidents.” We also note a statement by defense counsel that “I think the only sanction that could be entered is that there were numerous accidents on full revolution clutch presses” and that while plaintiffs’ counsel suggested limiting the court’s ruling to the years 1954 to 1967, the dates 1867 and 1974 were inserted at the suggestion of defense counsel.

We conclude, therefore, that under these circumstances the court did not err in entering the sanction against defendant.

Defendant next sets forth a number of instances in which it contends that the trial court erred in denying its motions for a mistrial. The first such instance concerns alleged improper questioning of Bosch by plaintiffs’ counsel as to (a) complaints relating to foot treadies on presses when there was no foot treadle placed by defendant on the press involved and (b) whether defendant was aware that air valves would stick if not properly maintained when this information was immaterial. In each situation, however, the trial court sustained defendant’s objections and barred such inquiry by plaintiffs, and because we see no prejudice to defendant, we find that the court properly denied the motion for mistrial made in reference thereto.

Next, defendant asserts error in the denial of its motion for a mistrial after Soto broke into tears for the third time in the presence of the jury. It argues that this conduct prejudiced the jury, as indicated by the verdict for plaintiffs. “[Ejmotional outbursts *** by a party to a personal injury action do not constitute grounds for a mistrial where (1) such conduct was neither intentional, simulated, nor improperly motivated and (2) its effect or impact is not so prejudicial as to have an unquestioned influence upon the jury’s ability to try the issues fairly” (Costello v. Chicago Transit Authority (1976), 40 Ill. App. 3d 461, 469-70, 352 N.E.2d 417, 424), and this determination rests within the discretion of the trial court (Costello v. Chicago Transit Authority). Here, there is nothing in the record to indicate Soto’s tears were improperly motivated or that the jury’s verdict was influenced by his displays of emotion. Therefore, we see no abuse of discretion in the denial of the motion for a mistrial.

Defendant also argues that Bosch was improperly examined concerning certain repair orders. Defendant, in its objection, stated that plaintiffs’ counsel “is categorizing these as repair orders trying to insinuate that Bliss went out and repaired the press.” The objection was sustained and, again, because we find no prejudice to defendant, we view the motion for mistrial to have been properly denied.

Next, defendant maintains that a mistrial should have been granted after plaintiffs’ counsel alluded to the Powell case (Powell v. E. W. Bliss Co. (W.D. Mich. 1972), 346 F. Supp. 819), because it created the inference that other accidents occurred in the same manner, and there was no showing that the Powell accident was substantially similar to that in the present case. We note, however, that both accidents involved hand and arm injuries when defendant’s full-revolution presses were activated while the flywheel was coasting after the stop button was pushed. In light of our holding above, that other accidents occurring under such circumstance are substantially similar, we find no merit in this contention.

Defendant then maintains that the testimony of plaintiffs’ expert as to seeing an electrical interlock on a 1954 full-revolution press of defendant created an inference that it had manufactured a press at that time with a drive motor interlock. In our view, any possible prejudice created by this statement was cured by the following direction to the jury:

“THE COURT: Ladies and gentlemen, on the press that had been mentioned before the recess, there is no evidence that Bliss put a solenoid mechanical interlock [drive motor interlock] on the press and therefore this will not be considered by the jury.”

Further, it is also our belief that during defendant’s cross-examination of plaintiffs’ expert, the trial court cured any prejudice resulting from plaintiffs’ objection to questions pertaining to ANSI (mechanical power press code) which, defendant argues, created an inference that the press did not comply with the code. The court stated: “The jury is so instructed to disregard it [plaintiffs’ counsel’s remark that the code does not apply] and the court is allowing inquiry [concerning the code].”

Finally, defendant contends that its motion for a mistrial should have been granted when, during its cross-examination of Soto’s employer, mention was made of prior repairs of the press which, defendant argues, created a prejudical inference that defendant makes defective presses which needed continual repair. It is our view that the court remedied any possible inference in this regard by stating to the jury that he had gone over the repair records of the press in question with the attorneys and they revealed that a series of repairs from 1964 to 1966 were unrelated to the accident in question, and that from 1966 to the time of the accident here, there was only one other repair, which was also unrelated. We conclude that any possible prejudicial effect of the answers by Soto’s employer was cured by the court’s action. Accordingly, we find no error in the failure to grant any of defendant’s motions for a mistrial.

Defendant also contends that plaintiffs’ counsel made improper prejudicial comments during closing arguments. Improper comments generally do not constitute reversible error unless the defendant has been substantially prejudiced thereby (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200) and “although the prejudicial effect of an improper argument cannot always be erased from the minds of the jurors by an admonishment from the court (People v. Garreau (1963), 27 Ill. 2d 388, 391), the act of promptly sustaining the objection and instructing the jury to disregard such argument has usually been viewed as sufficient to cure any prejudice” (76 Ill. 2d 19, 30, 389 N.E.2d 1200, 1205-06). Furthermore, the trial court is in a superior position to evaluate the effect of the alleged improper comments upon the jury (People v. Brown (1982), 107 Ill. App. 3d 576, 437 N.E.2d 1240), and its ruling on such remarks will not be disturbed by a reviewing court absent a finding that its discretion was abused (People v. Olejniczak (1979), 73 Ill. App. 3d 112, 390 N.E.2d 1339).

We note, after examining the numerous instances of alleged improper comments which defendant has called to our attention, that in each case the trial court either promptly sustained defense counsel’s objection and admonished plaintiffs’ counsel or the latter clarified his comments to the satisfaction of defense counsel, and where defense counsel objected that plaintiffs’ counsel was misstating the law, the court either clarified the law and/or stated that it would instruct the jurors as to the matters they should consider.

While many of plaintiffs’ counsel’s comments were improper, in view of the above stated action by the court and plaintiffs’ counsel, we do not believe that defendant was so prejudiced by them either individually or cumulatively as to have been denied a fair trial. We conclude that the comments do not warrant reversal.

Defendant’s final contention concerns jury instructions. It first argues that the court erred in refusing its instruction No. 18, stating as follows:

“The fact that the full revolution press complied with the American Safety Standards Institute (ANSI), the National Safety Council Power Press Code, and the Occupational Safety and Health Act (OSHA), may be taken into consideration by you in determining if the full revolution press was unreasonably dangerous. Whether the full revolution press was unreasonably dangerous and was the sole proximate cause of plaintiffs’ injuries is for you to decide.”

We find that the court properly refused this instruction for each of the following reasons. First, it uses the term “sole proximate cause” and it is settled that in a strict product liability action the plaintiff need only prove that the condition of the product was “a” proximate cause of the injury. (Lundy v. Whiting Corp. (1981), 93 Ill. App. 3d 244, 417 N.E.2d 154.) Thus, to the extent that the instruction indicates plaintiffs were required to establish that an unreasonably dangerous condition of the press was the sole proximate cause of Soto’s injuries, it was incorrect. Second, the tendered instruction improperly assumed as true the fact that the press was in compliance with the safety standards mentioned. Where a tendered instruction is equivocal and can be viewed as accepting facts which are in dispute, it is properly refused. (Pioneer Hi-Bred Corn Co. v. Northern Illinois Gas Co. (1975), 61 Ill. 2d 6, 329 N.E.2d 228.) While defendant states that plaintiffs’ expert and defendant’s witnesses, Grant and Barriga, testified that the press complied with those standards, it cites no record references in support thereof, and our examination of the record reveals that none of those witnesses so testified. Plaintiffs’ expert, on cross-examination, stated that ANSI required an interlock press barrier guard, and that when he examined the press there was such a guard on it; however, when asked whether the press complied with the 1971 ANSI code, he replied, “I don’t know.” He also stated that when he examined the press in 1975, it was not in compliance with OSHA because the opening under the front gate was excessive, but did admit that if the opening was reduced the press would have been in compliance with OSHA “for operating the machine.” Nowhere, however, is there any acknowledgment by either plaintiffs’ expert, Grant, Barriga, or any other witness that the press complied with the provisions of the standards mentioned in instruction No. 18. Third, even assuming that there was undisputed testimony that the standards were complied with, no particular provision in any of them was brought to the attention of the jury, and there is nothing in the record to indicate that any provision had any relevance to the fact that the press could be activated while the flywheel was coasting after the stop button was pushed.

Defendant next maintains that the court erroneously gave plaintiffs’ instruction No. 16:

“Now the court instructs you that Bliss has the obligation to manufacture and sell a product which is not in an unreasonably dangerous condition.
Since that obligation cannot be delegated to another, it is not a defense for the manufacturer that another person, including Plaintiff’s employer, failed to make it free from the unreasonably dangerous condition.
Now when I use the term ‘cannot be delegated’ in these instructions, I mean that the duty must be performed by Bliss and cannot be left to some other person or individual, including Plaintiff’s employer”;

and plaintiffs’ instruction No. 6, a modified Illinois Pattern Jury Instruction, Civil, No. 12.04 (2d ed. 1971):

“More than one person may be to blame for causing an injury. If you decide that the Plaintiff, Mario Soto, has proved all the propositions of his case, then it is not a defense to the Plaintiff, MARIO SOTO’S claim, that some other person may also have been to blame.”

It appears to be defendant’s position that instruction No. 16 was improper because there is no evidence in the record “that anyone failed to make the press reasonably safe” and that the court erred in giving instruction No. 6, because the evidence established that Soto’s employer was the sole proximate cause of the injury. We reject defendant’s position as to these instructions in light of our conclusions above, that plaintiffs presented jury questions as to whether the press was in an unreasonably dangerous condition when it left defendant’s control and concerning whether that condition was a proximate cause of Soto’s injury-

For the reasons stated, the judgment appealed from is affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.

      Plaintiff Maria Feliciano Soto sought damages for loss of consortium.


author: JUSTICE LINN

text:
    HENRY SCHIONIGER, Plaintiff-Appellant, v. THE COUNTY OF COOK et al., Defendants-Appellees.
    First District (4th Division)
    No. 82—2903
    Opinion filed August 4, 1983.

      Michael D. Gerstein, of Chicago (William J. O’Connor, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Roman L. Sukley, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

On December 9, 1981, plaintiff, Henry Schioniger, filed a complaint against defendant, County of Cook et al., in the circuit court of Cook County seeking administrative review of an order of the hearing officer, which was adopted by the Board of Commissioners of Cook County (Board) upholding his layoff as an employee of Cook County Hospital. On November 22, 1982, the circuit court entered an order affirming the decision of the hearing officer and the Board. Plaintiff appeals, arguing that (1) the hearing officer exceeded his authority; (2) defendant Board failed to follow its own rules in that there was insufficient evidence that lack of funds was the reason for plaintiff’s layoff; and (3) the hearing officer’s decision was against the manifest weight of the evidence. We affirm the decision of the trial court.

Facts

In 1978 the Board of Commissioners of Cook County reduced the amount of money budgeted for Cook County Hospital. As a result, hundreds of employees, including tradesmen who were “merit employees” working in the building and grounds departments at Oak Forest and Cook County Hospitals, were notified that they would be laid off “due to lack of funds.” Eighty-three of these tradesmen brought an action in the circuit court of Cook County seeking reinstatement. This court held in the appeal of that case (Altman v. Health & Hospitals Governing Com. (1980), 91 Ill. App. 3d 498, 414 N.E.2d 1091) that plaintiffs’ layoffs were done in good faith and their due process rights were adequately protected by the hearing provided them.

Plaintiff Schioniger, a painter, and a few others opted out of the Altman case and brought a separate action alleging that the Health and Hospitals Governing Commission (HHGC) had not followed proper procedures in laying them off. The circuit court found that the notice afforded them had been inadequate and ordered reinstatement. On November 9, 1979, plaintiff again was laid off after receiving proper notice, which again attributed his layoff to lack of funds.

Effective November 30, 1979, the HHGC’s enabling statute was repealed by the County Hospitals Governing Act (Ill. Rev. Stat. 1979, ch. 34, par. 5011 et seq., as amended by Pub. Act 81—1197, effective November 30, 1979). The County of Cook became its successor in interest.

In July 1980, plaintiff brought an action against the County of Cook seeking reinstatement and back pay. A hearing was held on May 28, 1981, at which Victor Jackson, Cook County Hospital personnel director at the time plaintiff was laid off, testified that plaintiff was laid off because of lack of funds. Jackson stated that he had personal knowledge of the hospital’s financial difficulties and had participated in preparation of the 1979 budget. He testified that there were no budgeted line items for painters in the 1979 budget.

Jackson also testified that under the HHGC’s policy resolution, after a layoff of one year, “the employee shall be terminated.” Plaintiff was not sent a letter of termination after he had been laid off for one year. Such a letter was “not called for in the resolution.” The 1981 budget provided for five painters. Five painters were hired after plaintiff’s recall rights had expired.

On November 20, 1981, the hearing officer notified plaintiff of his decision that plaintiff’s layoff was done because of lack of funds and in accordance with the policy and procedures in effect at the time. The hearing officer concluded that since plaintiff’s maximum layoff period under HHGC rules was one year and he had not been recalled within that time, the HHGC policy that “[a]n employee not recalled within the applicable lay-off period *** shall be terminated” would apply. This decision was upheld following administrative review by the circuit court of Cook County.

Opinion

Plaintiff appeals, arguing first that “the hearing officer exceeded his authority in terminating the employment of the plaintiff.” This argument appears to us to be a general expression of disagreement with the outcome of the hearing, as plaintiff complains in this section of his brief of a due process violation and insufficiency of the evidence, as well as the hearing officer’s exercise of authority. With regard to the latter issue, plaintiff quotes Ladenheim v. Union County Hospital District (1979), 76 Ill. App. 3d 90, 98, 394 N.E.2d 770, 776: “Hearing officers may not rely on their own expertise in making factual determinations ***. Their decision [sic\ must be based on evidence presented at the hearing.” Therefore, plaintiff argues, the hearing officer had no authority to terminate plaintiff’s employment because termination could be accomplished only in compliance with the statute that was in effect at the time. The applicable statute provided that no merit employee could be discharged except for cause and on written charges. Ill. Rev. Stat. 1977, ch. 34, par. 5026, repealed by Pub. Act. 81—1197, sec. 5, effective November 30, 1979.

This claim is unpersuasive for two reasons. First, plaintiff misperceives the role of the hearing officer in his termination. The hearing officer did not terminate plaintiffs employment; he merely acknowledged the fact that under the applicable HHGC rule plaintiffs employment had been terminated.

Second, as the Altman court explained, where an employee is laid off for appropriate reasons other than employee misconduct, this statutory requirement of cause and written charges is not applicable: “That section refers to cases where an officer or employe is removed for some reason personal to himself. *** The provision in question does not apply to a case where the incumbent is dismissed for want of funds ***.” (Fitzsimmons v. O’Neill (1905), 214 Ill. 494, 503, 73 N.E. 799, 800.) Plaintiff concedes that the HHGC’s “Policy and Procedure” provides that lack of funds is a valid reason for employee layoffs. The HHGC may adopt its own independent rules relating to layoffs (Stenzel v. Health & Hospitals Governing Com. (1977), 50 Ill. App. 3d 545, 365 N.E.2d 1076), lack of funds was one of the valid reasons for layoff adopted by the HHGC, and the statute cited by plaintiff is inapplicable to a layoff for lack of funds. Accordingly, we find that plaintiff’s argument is not only unsupported but is directly contradicted by the relevant legal precedents.

Plaintiff’s related claim that the procedures followed in this case amounted to a denial of his due process rights is similarly lacking in merit for the reasons explained above. “[D]ue process is a flexible concept; its requirements vary with the circumstances to which it is applied, because no particular mode of procedure is mandated. [Citations.]” (Ladenheim v. Union County Hospital District (1979), 76 Ill. App. 3d 90, 96, 394 N.E.2d 770, 774.) Here, we find that the due process requirements appropriate to the circumstances of plaintiff and his employer were followed.

Plaintiff’s claim that defendant failed to follow its own rules because there was insufficient evidence that lack of funds was the reason for his layoff is simply not supported by the record. Plaintiff’s statement that Mr. Jackson lacked personal knowledge of the facts is incorrect. When asked by the hearing officer, “[H]ow do we know the hospital had financial problems? Could you explain?” Jackson replied, “Sure I know. I have a personal reason.” Jackson stated that there were no budgeted line items for painters in the 1979 budget. Plaintiff argues that this evidence of lack of funds is of inferior quality to the evidence presented in the Altman case. Whether this is so or not is irrelevant to our finding that the evidence adduced in the case at bar was sufficient to establish that lack of funds was the reason for the plaintiffs layoff.

Plaintiff’s final claim of error is that the decision of the hearing officer was against the manifest weight of the evidence. The first two subheadings of plaintiff’s argument refer once again to the sufficiency of the evidence and the defendant’s observation of its own rules, both of which issues have been discussed above. The final argument is that the trial court “did not satisfy its duties in administrative review” because it failed to rule that the decision of the hearing officer was contrary to the manifest weight of the evidence. The rules applicable to the questions of administrative review and manifest weight of the evidence indicate that plaintiff’s claim is lacking in merit.

In an action to review an administrative decision, “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1979, ch. 110, par. 274.) A reviewing court may not substitute its judgment for that of the administrative agency where substantial evidence fairly supports the findings of the agency. (Davenport v. Board of Fire & Police Commissioners (1979), 2 Ill. App. 3d 864, 278 N.E.2d 212; Golden Egg Club, Inc. v. Illinois Liquor Control Com. (1970), 124 Ill. App. 2d 241, 260 N.E.2d 329.) The presumption on appeal is that the trial court heard sufficient evidence on which to base its judgment, and the appellant has the burden of demonstrating that the record fails to support that judgment. (Hogan v. Braudon (1976), 40 Ill. App. 3d 352, 352 N.E.2d 303.) The findings and judgment of the trial court in nonjury cases will not be disturbed by a reviewing court if there is any evidence in the record to support such findings. Brown v. Zimmerman (1959), 18 Ill. 2d 94, 163 N.E.2d 518; Skurat v. Kellerman (1977), 53 Ill. App. 3d 361, 368 N.E.2d 966; Swan v. Allstate Insurance Co. (1967), 89 Ill. App. 2d 205, 232 N.E.2d 491.

In the instant case, we find that the trial court correctly upheld the decision of the hearing officer. Plaintiff has failed to set forth any reason that would justify a holding that the trial court’s judgment was not supported by the evidence. We are compelled, therefore, to affirm the decision of the trial court.

Affirmed.

ROMITI, P.J., and JIGANTI, J., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL TAYLOR, Defendant-Appellant.
    First District (1st Division)
    No. 82—909
    Opinion filed July 18, 1983.
    James J. Doherty, Public Defender, of Chicago (Marilyn Martin, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and LuAnn Rodi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial, defendant was convicted of murder, robbery and burglary. (Ill. Rev. Stat. 1979, ch. 38, pars. 9—1, 18—1, 19—1.) Defendant was sentenced to concurrent respective terms of 22 years for murder and seven years for both the burglary and robbery. On appeal defendant contends that his written confession was improperly obtained in violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Defendant also contends that if his confession is held inadmissible, then the other evidence would not be sufficient to sustain his conviction.

The facts concerning the issues are not in dispute. On June 25, 1980, the 86-year-old male victim was residing at a residential hotel on the north side of Chicago. The hotel manager last recalled seeing the victim at approximately 2 p.m. that day. On the morning of June 26, 1980, the manager was informed by another hotel clerk that the victim had still not been seen. Shortly after 9 a.m., the manager went to the victim’s apartment located on the fourth floor of the building and opened the room door. There he found the victim lying dead on the floor. The victim had a sock stuffed into his mouth and a belt tied over his mouth. The victim also had his hands tied behind him and his feet were bound. He had died of asphyxiation. The police were summoned. Their examination of the physical surroundings revealed the right palm print of the defendant on a service door leading into the victim’s room. The police also discovered that a large sum of money kept by the victim was missing.

The defendant, a Korean immigrant, was living with his uncle in Norridge, Illinois, in July 1980. The police investigation was directed toward the defendant possibly based on their previous arrest of his alleged accomplice, and it is to be gathered from the record that the police went to the Norridge residence on July 12, 1980, looking for the defendant but he was not there. The following day, defendant and members of his family went to the headquarters of the Chicago police department to determine the reason for the police inquiry. They were directed to Area 6, Violent Crimes Headquarters located on the northwest side of the city of Chicago. At approximately 6:30 a.m., defendant and members of his family arrived at Area 6 headquarters, and they were directed to the homicide unit located on the second floor of the building.

Officer Thomas Sappanos was the only officer in the homicide unit at that time, and he was assigned to sit at a desk to handle inquiries made to his unit. He had just returned from a 10-day furlough and had read several reports on pending homicide investigations taking place in the area. Defendant and his family approached Officer Sappanos, and defendant asked if this was the homicide office and if the officer was a homicide detective. After Sappanos affirmatively replied, defendant explained that he was there to confess to a murder.

Sappanos testified on the motion to suppress defendant’s confession that he was “taken [ajback” by defendant’s statement and did not know which crime defendant referred to. The officer then asked defendant what murder he was speaking of and to give him the location. Defendant told the officer on what street the murder occurred and indicated that he and his companion broke into the man’s apartment and tied him up. Sappanos then remembered seeing a case report on the crime, and he put defendant into an interview room and advised him of his Miranda rights. Prior thereto, the officer said the defendant was not in custody at the time he said he wanted to confess to a murder because the officer had no knowledge of the incident to which defendant was referring and merely asked more facts about it.

It is undisputed that after defendant was placed in the interview room, an assistant State’s Attorney interviewed the defendant, and after again advising him of his Miranda rights defendant’s signed confession detailing his complicity in the crime was obtained.

Defendant now contends that his initial statement to Officer Sappanos that he was there to confess to a murder was properly admitted because it was a voluntary statement which he made to the officer. However, defendant maintains that the second phase consisted of certain answers which he gave to Officer Sappanos concerning the details identifying the offense. Defendant maintains that this second phase amounted to custodial interrogation requiring Miranda warnings which in fact he did not receive until after Officer Sappanos had placed him in an interview room. Consequently, defendant maintains that his subsequent confession was impermissibly tainted by the questioning of Officer Sappanos and should have been suppressed.

In support of defendant’s position he has cited People v. Clark (1980), 84 Ill. App. 3d 637, 405 N.E.2d 1192. There the police arrived at the scene of the occurrence and saw the victim slumped over the steering wheel of the car. The defendant, who was his wife, was nearby, and she appeared to be emotionally upset. The police placed defendant in their police car and then asked her what happened. She responded that she had shot her husband. This court concluded that questioning defendant thereafter without advising her of her Miranda rights precluded introduction of her subsequent statement to the police. We concluded that at this point the investigating officer was aware that defendant had shot her husband and that the investigation obviously focused on her conduct involving the shooting. Thus, the police inquiry was designed to elicit details of the occurrence which could prove incriminating. Further, in rejecting the State’s claim that the subsequent questioning was merely routine and investigatory in nature, we concluded that the questions posed to defendant after she admitted that she had shot her husband went beyond the mere general on-the-scene inquiry. And we noted that the defendant had been deprived of her freedom when she was placed in the squad car. Defendant also cites other Illinois cases (People v. Bryant (1967), 87 Ill. App. 2d 238, 231 N.E.2d 4, and People v. Mrozek (1977), 52 Ill. App. 3d 500, 367 N.E.2d 783), in which the defendants in those respective cases were clearly in custody at the time their incriminating statements were elicited from them by police.

In the present case it is apparent that defendant was not in custody until he was taken to the interview room by Officer Sappanos. (Compare People v. Bradford (1981), 97 Ill. App. 3d 998, 1001-02, 423 N.E.2d 1179.) To that extent Bryant, Mrozek and Clark differ. And as hereinafter explained Clark is additionally distinguishable.

We reject defendant’s contention that his answers to Officer Sappanos’ questions during the second phase of the questioning at the desk of the homicide unit were not spontaneous or volunteered. We do not believe that such characterization necessarily is dispositive of the issue which defendant presents. Rather, we find apposite to this case the statement of our supreme court in People v. Thompson (1971), 48 III. 2d 41, 44, 268 N.E.2d 369, where the court stated:

“The Miranda ruling was primarily directed at incommunicado interrogation at the stationhouse, in which the accused is subjected to the inherent compulsion of a police-dominated atmosphere. Specifically excepted were the traditional investigatory functions of the police, including general on-the-scene questioning in the fact-finding process, where ‘the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.’ [Citation.] Thus, statements made in response to routine investigatory questions, asked during a brief initial period of noncoercive detention and designed to clarify a suspicious circumstance, have often been held admissible under Miranda.”

We believe that the situation confronting Officer Sappanos fits within the description contained in Thompson. Instructive to our conclusion are decisions from other jurisdictions involving situations quite similar to the one presented in this case. In State v. Philbrick (Me. 1981), 436 A.2d 844, the Supreme Court of Maine considered a situation where the defendant was taken to a police station by a motorist. The defendant was covered with blood, and he grasped a knife in his left hand while holding his injured right hand. When the uniformed police officer at the station asked the defendant what had happened, defendant indicated that he had been in a fight during which he shot the attacker. The officer then continued to question the defendant concerning the events surrounding the occurrence. The interview lasted for several minutes and defendant was not placed under arrest. The court concluded that the questions by the police officer were merely routine and qualified as a general on-the-scene questioning because the officer did not know anything about the circumstances about which the defendant was speaking and did not even know that a crime had been committed. The court stated, “A noncustodial interrogation setting is not converted into a custodial interrogation situation merely because the questioning took place in a coercive environment such as in a police station or by a police officer.” (436 A.2d 844, 849.) The court went on to say that the questions posed to the defendant by the officer were merely designed to clarify an ambiguous situation and were not a critical police interrogation which Miranda contemplated. The court concluded, “Questions asked in the wake of an event or occurrence which would naturally invite such an inquiry and which are characterized, as in the instant case, by brevity, neutrality and absence of an intent to elicit a confession or admission do not rise to the level of interrogation in the Miranda sense.” 436 A.2d 844, 849; see also the discussion in State v. Simoneau (Me. 1979), 402 A.2d 870.

Similar results were reached in Newhouse v. State (Tex. Crim. App. 1967), 420 S.W.2d 729, where the defendant walked into a police station after stabbing his girlfriend at a cafe. He encountered a police officer and voluntarily told him that he had “cut up his girlfriend real bad.” The officer then asked how badly she was hurt, and the defendant replied. The officer then went on to inquire whether his girl friend was dead, where defendant obtained the weapon and the reason why defendant came to him. The officer explained that he did not know anything about the crime until his conversation with the defendant and it was not until after he confirmed that a stabbing had in fact occurred with other officers that he arrested the defendant and advised him of his right to remain silent. The Texas court refused to suppress defendant’s statement, finding that the statement was not made in contravention of Miranda.

In Lung v. State (Okla. Crim. App. 1966), 420 P.2d 158, defendant entered a police station and told the duty officer that he had stolen a car. He also indicated that the car was parked near the police station and voluntarily took the police outside and showed them where the car was located. The officers then called another police agency to verify the validity of defendant’s statement. When the defendant’s claim was verified, he was arrested. In holding that defendant’s statements were proper, the court quoted language from Miranda wherein it was said, “There is no requirement the police stop a person who enters a police station and states that he wishes to confess to a crime ***. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” 384 U.S. 436, 478, 16 L. Ed. 2d 694, 729, 86 S. Ct. 1602,1630.

In his reply brief, defendant has cited the Wisconsin Supreme Court decision of LaTender v. State (1977), 77 Wis. 2d 383, 253 N.W.2d 221. There the defendant walked into the police station and said that he had just killed a certain named priest. While one of the officers went to investigate at the rectory, the other officer continued to question the defendant and defendant revealed what he had done with the weapon. The Wisconsin court concluded that the question concerning the disposition of the weapon should not have been made without advising defendant of his Miranda rights. However, we do not find LaTender persuasive authority given the unclear situation confronting Officer Sappanos in contrast to the fact that defendant in LaTender had identified his victim and it was only for the police to confirm the crime.

When Officer Sappanos was told by defendant that he wanted to confess to a murder, the officer was the only policeman stationed in the homicide unit. He had just returned from a furlough and was initially unaware of what crime defendant was speaking. In fact, the record shows there were several homicide investigations taking place by that unit. We believe that Officer Sappanos’ questions concerning what crime the defendant was speaking of were proper without Miranda warnings because they were inquiries evoked by defendant’s surprise statement that he wanted to confess to a murder. The officer properly elicited the street on which the crime occurred, and some facts indicating which homicide defendant was speaking about. Thus defendant’s subsequent written confession was not inadmissible based on a claim that it was tainted by his prior statement.

Having rejected defendant’s initial contention, we need not consider whether the evidence was sufficient to prove his guilt beyond a reasonable doubt because defendant claims that his contention would have merit if the confession is suppressed.

We grant the State’s request for $50 in appellate costs under the authority of People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McGLOON and GOLDBERG, JJ., concur.

      In defendant’s written confession defendant stated that he and an accomplice entered the victim’s residence through the service door, overpowered the victim, and bound and gagged him before taking the money.

      Defendant has also cited the case of United States v. Jordan (5th Cir. 1977), 557 F.2d 1081. However, we note that the fifth circuit has somewhat questioned the rationale of that case. See United States v. Bennett (5th Cir. 1980), 626 F.2d 1309, 1311 n.6.


author: JUSTICE O’CONNOR

text:
    HARRIS TRUST & SAVINGS BANK et al., Co-guardians of the Estate and Person of Michael La Roi Richard Powell, Jr., a Minor, Plaintiffs, v. CHICAGO COLLEGE OF OSTEOPATHIC MEDICINE et al., Defendants—(Nicholas G. Dozoryst II, Trustee in Bankruptcy of the Estate of W. Jason Mitan d/b/a LaSalle Investment, Petitioner-Appellant, v. Joseph A. Rosin, Respondent-Appellee).
    First District (3rd Division)
    No. 82—0653
    Opinion filed July 27, 1983.

      Nicholas G. Dozoryst II and Edita L. Arambulo Maier, both of Dozoryst & Brustein, of Chicago, for appellant.
    Joseph A. Rosin & Associates, Ltd., of Chicago (Joseph A. Rosin, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Petitioner, Nicholas G. Dozoryst II, as trustee in bankruptcy of the estate of W. Jason Mitán, a disbarred attorney, filed a petition in the above-entitled cause for attorney fees on behalf of Mitán. His claim was alternatively based on (1) a referral agreement between Mitán and attorney Joseph A. Rosin, or (2) quantum meruit. Rosin moved for summary judgment, which was granted. Subsequently, the court denied Dozoryst’s motion for a rehearing. Dozoryst appeals, contending that (1) summary judgment was improperly granted because there were genuine issues of material fact, (2) the trial court improperly limited further discovery, (3) the trustee’s motion for rehearing was improperly denied, and (4) the trial court did not have jurisdiction to offset cash advances against the trustee’s claim for attorney fees.

On April 20, 1979, the parents of the minor plaintiff (Michael La Roi Richard Powell, Jr.) retained the law firm of Mitán and Michelotti in connection with a claim of medical malpractice resulting in permanent injury to the minor. Attorney Robert E. HcAuliffe was associated with that firm and filed suit on May 29, 1979, against the Chicago College of Osteopathic Medicine. In June 1979 Joseph A. Rosin was retained as trial counsel. In September 1979 the entire file was turned over to him and on December 10, 1979, he and HcAuliffe filed an amended complaint naming three doctors as defendants.

On January 15, 1980, Hitan was disbarred for making several material false statements on his application for admission to the bar. (In re Mitan (1979), 75 Ill. 2d 118, 387 N.E.2d 278.) The minor’s parents then discharged Hitan and HcAuliffe and retained Rosin as the sole attorney. Rosin effectuated a settlement of $2,000,000 against the college and the attending surgeons. Suit then proceeded against the on-call, but not present, physician, who was found not guilty by a jury. Attorney fees in the gross amount of $500,000 were awarded. The trial court ordered all persons other than Rosin to file petitions for fees.

McAuliffe filed a petition claiming a portion of the total fee awarded based upon an alleged agreement with Mitán. In response, the minor’s parents stated that they never retained McAuliffe and that his involvement was as an associate of Mitán, whom they had discharged. Rosin stated that McAuliffe was entitled to fees which had been fully paid.

In the meantime, a creditor of Mitán had filed a bankruptcy proceeding against him in the Federal court. That court entered a temporary restraining order preventing the payment of all fees and reimbursements in the case at bar. That order was based on statements by McAuliffe that Mitán had an interest in the fees to be paid in this case. After a hearing, the referee in bankruptcy set aside the restraining order and remanded all proceedings to the circuit court of Cook County to resolve all issues relating to attorney fees in this case.

On September 18, 1981, the trustee filed his petition for fees on behalf of Mitán. His petition was based solely on statements made by McAuliffe and claimed, upon information and belief, that Mitán was entitled to 421/a% of the fee awarded, based upon the referral fee agreement between Rosin and Mitán, as well as for undefined services performed by Mitán from April to December 1979.

In a suit unrelated to the case at bar, proceedings were pending between Rosin and McAuliffe concerning fees paid by Rosin to McAuliffe in that matter. The proceedings between Rosin and McAuliffe were settled and the latter executed a release and an affidavit in which he stated that his prior statements concerning fees allegedly due to himself or Mitán were false. McAuliffe was paid $25,000 to end further litigation. By stipulation, judgment was entered (1) in favor of Rosin against McAuliffe in the amount of $217,626.12 representing fees paid to McAuliffe in connection with the case at bar and other pending cases, and (2) denying McAuliffe any further attorney fees.

On October 1, 1981, Rosin filed his response to the trustee’s petition for fees and also filed a motion to dismiss, incorporating as exhibits the order of the trial court denying. fees to McAuliffe, McAuliffe’s affidavit and Mitán’s affidavit denying any interest or claim to fees or advances made in the case at bar. Subsequently, on October 13, 1981, Rosin filed a motion for summary judgment based on these affidavits and the verified responses of Rosin and of the parents of the minor plaintiff.

On November 18, 1981, the trustee filed his response to the motion for summary judgment, relying on McAuliffe’s original allegations concerning fees and on pleadings from the bankruptcy proceedings and on various allegations, conclusions and suppositions. On November 24, 1981, Rosin filed a detailed reply.

At the hearing on the motion for summary judgement, the trustee filed his notice to take the discovery deposition of Stanley Wilcox, an attorney named in the bankruptcy proceedings who had filed a motion objecting to discovery proceedings relating to fees allegedly due Mi-tan. The court denied further discovery. After arguments were heard, the trial court, on December 18, 1981, issued its memorandum of decision and order granting summary judgment. In his decision, he stated: “Under no set of facts presented to the court, disputed or otherwise, is Mitán entitled to recover any attorney’s fees. Nor is there even any suggested possible set of facts that would allow such recovery.” The trustee’s petition for rehearing was denied on February 18, 1982.

The trustee’s claim for fees was based on two grounds: (1) A referral fee agreement between Mitán and Rosin when the suit was assigned to Rosin just before Mitan’s disbarment. The trustee alleged that under that agreement the firm of Mitán and Michelotti would be entitled to 421/a% of the gross attorney fees. (2) Quantum meruit for the value of the services rendered by Mitán and Michelotti up until the time of Mitan’s disbarment.

We do not find it necessary to determine the effect of Mitan’s disbarment on the validity of the referral fee contract as to Rosin. (See Sympson v. Rogers (Mo. 1966), 406 S.W.2d 26; Code of Professional Responsibility Rules 2—106, 2—107 (87 Ill. 2d Rules 2—106, 2—107); Corti v. Fleisher (1981), 93 Ill. App. 3d 517, 529-32, 417 N.E.2d 764.) Even if it were valid, it could relate only to legal services rendered by Mitán up to the employment of Rosin by the minor’s parents at the time of Mitan’s disbarment. The record shows that upon his disbarment Mitán was paid by Rosin an additional $150,000 in complete discharge and release for all or any claims Mitán might have for attorney fees and costs in connection with the case at bar. Thus, Mi-tan has no claim that he was owed additional fees under the referral agreement. His trustee in bankruptcy has no greater rights. Mitán has been paid and his trustee is entitled to no further fees.

We reach the same result as to the trustee’s quantum meruit claim. After his discharge, an attorney’s right to recover fees is limited to reasonable fees for services rendered up to his discharge. (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969; Department of Public Works v. Exchange National Bank (1981), 93 Ill. App. 3d 390, 417 N.E.2d 1045.) The same rule applies to a disbarred attorney; his recovery for fees is limited to the reasonable value of the services rendered up to the time of his disbarment.

In Stein v. Shaw (1951), 6 N.J. 525, 79 A.2d 310, the court held that an attorney who was disbarred prior to procuring settlement of a suit commenced under a contingent fee contract was entitled to recover from the client for the reasonable value of his services. The court said (6 N.J. 525, 527-29, 79 A.2d 310, 311-12):

“We are of the opinion that the plaintiff should be permitted to recover in quasi contract for the reasonable value of his services rendered and disbursements made prior to his disbarment, for otherwise the defendant will be unjustly enriched at the expense of the plaintiff. To deprive an attorney of his claim for any and all compensation for services rendered prior to his disbarment when the services are not involved in the unprofessional conduct occasioning disciplinary action, would be inequitable. There is no sound reason in law or morals for permitting the defendant to use the plaintiff’s disbarment as an escape from paying him for services rendered or necessary disbursements made by him in her behalf. * * *
If the rule were otherwise, the effect of disciplinary action would inevitably be retroactive, which is not the intent or purpose of imposing discipline. The court, moreover, would never know the extent of such retroactive punishment without an undesirable inquiry as to the extent of the attorney’s pending business and the monetary value thereof. It is unthinkable that .punishment should be inflicted by a court so unintelligently. *** Disbarment is not a form of outlawry. To bring economic considerations into disciplinary proceedings would not only needlessly complicate them, but would in many instances serve to defeat the essential purpose thereof.
We are aware of Davenport v. Waggoner, 49 S.D. 592, 207 N.W. 972, 45 A.L.R. 1126 (S. Dak. 1926) and In re Woodworth, 85 F.2d 50 (2nd Cir. 1936) which hold to the contrary, but we cannot subscribe to the theory on which they are premised, that withdrawal from a suit by reason of disbarment constitutes a voluntary abandonment of the contract without just cause. Such is actually not the fact in those cases. The contract was not voluntarily abandoned, it was automatically terminated by operation of law, when the order of the court made further performance impossible. While the plaintiff was disbarred because of his own wrongful acts, so far as this defendant is concerned he is guiltless. It is pure fiction to say that he has intentionally and without cause abandoned his contract with her. *** In our opinion the situation resulting here from the plaintiff’s disbarment is not dissimilar to that when an attorney is incapacitated by reason of death, illness or insanity. In such cases it has been uniformly held that because of his inability to perform the contract is discharged, but that the attorney may nevertheless recover in quasi contract for the reasonable value of the services rendered, 45 A.L.R. 1135, 1158. Nor is recovery in quasi contract here barred by virtue of the express contract for a contingent fee, for as we have indicated that contract was discharged by operation of law when its performance was rendered impossible by the plaintiff’s disbarment.”

In New York, a disbarred attorney, absent any evidence that he was disbarred for conduct in connection with the case, is entitled to a lien for disbursements and legal services rendered prior to disbarment. Tiringer v. Grafenecker (1962), 38 Misc. 2d 29, 239 N.Y.S.2d 567.

The record discloses that all of the services rendered with reference to the minor’s claim prior to Rosin taking over the case were performed by McAuliffe. McAuliffe filed a petition for fees, claiming that Mitán was to pay him a portion of Mitán’s alleged 421/2%. Subsequently, however, as disclosed by affidavit and agreed orders entered in the case at bar and in another matter, he was fully and completely compensated for his services. Other than his services, there is no evidence of any service rendered either by Mitán and Michelotti or by Mitán himself. Further, the evidence shows without contradiction that Rosin had advanced large sums to Mitán not only in anticipation of his referral fee interest in this case but also to satisfy any claim by Mitán for fees. All this was acknowledged by Mitán in his affidavit. He also released in writing any lien he might have had.

Further, the trustee made no allegation as to the necessary factors to be considered in determining the reasonable value of professional services:

<<<«*** [Tjke skill and standing of the attorney employed; the nature of the cause and the novelty and difficulty of the questions at issue; the amount and importance of the subject matter; the degree of responsibility involved in the management of the cause; the time and labor required; the usual and customary charge in the community; and the benefits resulting to the client. [Citations.]” Neville v. Davinroy (1976), 41 Ill. App. 3d 706 , 711, 355 N.E.2d 86, 90.’ ” George v. Chicago Transit Authority (1982), 107 Ill. App. 3d 784, 787, 438 N.E.2d 498.

The trustee contends that there were genuine issues of material fact to be determined before the trial court could pass on the motion for summary judgment and that the trial court improperly limited discovery. He contends that he should have been allowed to explore other paths concerning payments by check made by Rosin to Mitan and particularly concerning the role of the law firm of Wilcox and Associates. He also contends that after the court had granted summary judgment, it should have granted him a rehearing because of new evidence concerning Wilcox’ association with Mitan and Rosin. We disagree with all of these contentions.

McAuliffe, in a deposition in April 1981, referred to money paid to Wilcox. Rosin, in his deposition in October 1981, testified that following Mitan’s disbarment in 1980 Mitán waived all interest and right to fees in all cases being handled by Rosin and that he (Rosin) had paid money to Wilcox at Mitan’s direction for any interest or claim which he (Mitán) might have in any pending matter. Further, Rosin’s checks evidencing payment to Mitán concerning the case at bar were always available to the trustee, who did not request any further discovery until the hearing on Rosin’s petition for summary judgment in December of 1981.

With reference to the claim that discovery was improperly curtailed, the law is well settled that a trial judge has wide discretion in controlling the scope of discovery; a reviewing court will not interfere with his rulings on discovery absent a manifest abuse of discretion; there is no abuse of discretion to deny discovery of a subject not relevant to the issues; discovery should be denied where there is insufficient evidence that the requested discovery is relevant. M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122, 424 N.E.2d 1193.

We have examined the record and find, because it shows that any claims which Mitán might have had for fees had been settled with Rosin, no issues of material fact remained to prevent the granting of summary judgment. We also find that the trial court did not abuse its discretion in limiting further discovery.

In his memorandum of decision, the trial court stated that anything that might have been discovered from Wilcox was immaterial, in that it could not empower the court to enforce the agreement and last minute continuances (as were sought here) were not “to be granted for nebulous reasons to engage in remote discovery that might have been accomplished earlier.” We agree with the trial court’s statement.

We also uphold the trial court’s denial of a rehearing which was sought because of new evidence as to Wilcox’ association with Mitán and Rosin.

Finally, the trustee argues that the trial court lacked jurisdiction to offset, against the bankruptcy trustee’s claim for attorney fees, prebankruptcy cash advances to the debtor in bankruptcy (Mitán).

In the bankruptcy court, the trustee had sought a temporary restraining order to prevent the trial court in the case at bar from proceeding on the ancillary matter of the determination of attorney fees to Mitán. The referee in bankruptcy recognized the ancillary jurisdiction of the trial court and remanded to that court all further proceedings:

“That all controversies presented in this proceeding and involved in the Circuit Court of Cook County in the case of Harris Trust & Savings Bank, et al, plaintiff vs. Chicago College of Osteopathic Medicine, et al., defendants, No. 79 L 11377, are within the peculiar knowledge of that court and require the Circuit Court to complete its disposition of such controversies and matters therein without further interference from this Court; this Court therefore abstains from any involvement in the Circuit Court matter and all of the controversies contained therein, until such time as any issues relating thereto may be properly brought before this Court.”

Under this remandment order, the trial court in the case at bar properly proceeded to resolve all of the issues (including offsets) involved in the trustee’s claim as to Mitán’s entitlement to attorney fees and correctly found that Mitán was not entitled to any fees.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA, P.J., and McGILLICUDDY, J., concur.


author: PRESIDING JUSTICE ROMITI PRESIDING JUSTICE ROMITI

text:
    COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. MICHAEL KOSMOS, Defendant-Appellee.
    First District (4th Division)
    No. 82—680
    Opinion filed May 26, 1983.
    Supplemental opinion filed on denial of rehearing August 25, 1983.
    Beverly, Pause, Duffy & O’Malley of Chicago (Frank J. Pause, Robert O. Duffy, and Michael W. Rathsack, of counsel), for appellant.
    Thomas W. Stewart, of Joseph R. Curcio, Ltd., of Chicago (David A. Novoselsky, of counsel), for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The sole issue in this case is whether an insurer can be forced to arbitrate an uninsured motorist claim even where it is clear as a matter of law from the pleadings that there is no coverage. We hold there is no duty to arbitrate under such circumstances and reverse the trial court which ordered arbitration.

Plaintiff Country Mutual Insurance Company filed this action to obtain a declaration that there was no insurance coverage and no duty to arbitrate. In its complaint the insurer alleged that the insured, after suffering an accident, made a claim and demanded arbitration. When interviewed the insured stated that the accident occurred when as a result of swerving to avoid another motor vehicle his car left the roadway and collided with a light pole. The insurer thereupon denied coverage since there was no contact with another motor vehicle.

The insured has never denied that there was no contact, either in the trial court or on appeal.

As required by statute, the automobile liability policy issued by Country Mutual to defendant provided uninsured motorist coverage including accidents caused by hit and run vehicles. (Ill. Rev. Stat. 1979, ch. 73, par. 755a.) It is well established in Illinois that a provision, statutory or otherwise, limiting coverage to accidents caused by hit and run vehicles affords coverage only where the hit and run vehicle makes contact with the insured or his vehicle. Finch v. Central National Insurance Group (1974), 59 Ill. 2d 123, 319 N.E.2d 468; Ferega v. State Farm Mutual Automobile Insurance Co. (1974), 58 Ill. 2d 109, 317 N.E.2d 550; Liberty Mutual Fire Insurance Co. v. Loring (1968), 91 Ill. App. 2d 372, 235 N.E.2d 418; Prosk v. Allstate Insurance Co. (1967), 82 Ill. App. 2d 457, 226 N.E.2d 498.

The insurance policy does provide for arbitration, but only where the parties disagree over whether the insured is “legally entitled to recover damages from the owner or operator of an uninsured motor vehicle” or the amount of such damages. Under this provision only questions of negligence and damages can be submitted to the arbitrator. (Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 242 N.E.2d 149.) Questions of law or fact concerning coverage cannot, under this clause, be submitted to arbitration. (Flood; Liberty Mutual Fire Insurance Co. v. Loring (1968), 91 Ill. App. 2d 372, 235 N.E.2d 418.) Thus the question whether there was contact is not arbitrable under this clause but is decided by the trial court in a declaratory judgment action. (Loring.) “[I]f no contact; no hit-and-run automobile. If no uninsured motorist; no right to arbitration ***.” Cruger v. Allstate Insurance Co. (Fla. App. 1964), 162 So. 2d 690, 693, quoted in Liberty Mutual Fire Insurance Co. v. Loring (1968), 91 Ill. App. 2d 372, 375-76, 235 N.E.2d 418, 420.

The insured contends that this limitation on the right to arbitration is invalid in light of the 1978 amendment to the statute providing in part:

“No such policy shall be renewed or delivered or issued for delivery in this State after July 1, 1978 unless it is provided therein that any dispute with respect to such coverage shall be submitted for arbitration to the American Arbitration Association or for determination in the following manner: Upon the insured requesting arbitration, each party to the dispute shall select an arbitrator and the two arbitrators so named shall select a third arbitrator. If such arbitrators are not selected within 45 days from such request, either party may request that such arbitration be submitted to the American Arbitration Association.” (Ill. Rev. Stat. 1979, ch. 73, par. 755a.)

If, in fact, the policy provision is in conflict with the statute then of course the statute is controlling. (Bertini v. State Farm Mutual Automobile Insurance Co. (1977), 48 Ill. App. 3d 851, 362 N.E.2d 1355.) If not, then the parties are bound by the policy provisions.

The language “disputes with respect to such coverage” is ambiguous. It is not clear whether it refers to issues of the existence of coverage or merely disputes arising under the policy provision where coverage is established. Accordingly, it would be appropriate to look at the construction of the legislature when enacting the bill. (People v. Boykin (1982), 109 Ill. App. 3d 112, 440 N.E.2d 285, aff’d (1983), 94 Ill. 2d 138, 445 N.E.2d 1174.) But the legislative debates, as cited by the insurer (80th Illinois General Assembly, Third Reading of Senate Bill 1041, May 23, 1977, at 46-47), indicate that the statute was enacted solely to curb delays in arbitration and not to extend the scope of arbitration.

However we need not resolve that question because in this case no bona fide dispute has been raised by the pleadings. As already noted, the insurer alleged that there was no contact and the insured has not alleged that there was contact. Yet absent an allegation of physical contact with the unidentified driver, the insured’s claim is insufficient and must be dismissed. (Finch v. Central National Insurance Group (1974), 59 Ill. 2d 123, 319 N.E.2d 468.) To allow an arbitrator to rule for an insured despite the clearly established absence of coverage would be to give the arbitrator unconstitutional powers to decide questions solely of law (see Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 347 N.E.2d 736), and to overrule the Illinois Supreme Court, something even this court cannot do.

Accordingly, the judgment of the trial court is reversed and judgment entered for the plaintiff.

Judgment reversed; judgment entered for plaintiff.

JOHNSON and JIGANTI, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Defendant has filed a petition for rehearing contending that this court decided the issue on a ground not raised by plaintiff in its brief; that plaintiff had simply argued that the factual issue of whether there was contact should have been determined by the trial court. While plaintiff’s brief is not as clear as it might be, an examination of it does not support defendant’s contention. Plaintiff in its brief contended, inter alia, that there was no contact, that the coverage question was a legal issue to be decided in a court of law, that the interpretation of the contract was for the judicial system and that any contrary result would be unconstitutional because the issues were legal issues for decision by the judiciary. As telling is the fact that we have found no contention in defendant’s brief that there were specific factual issues to be decided as to whether there was actual contact with the hit-and-run vehicle. Not once in its brief did it enumerate any factual issues involving coverage which it believed should be arbitrated. To the contrary it sought to support the trial court’s ruling that all issues “both factual and legal, including the coverage issue of whether an impact occurred” must be submitted to arbitration. Absent specific factual allegations in defendant’s pleading in the trial court contravening plaintiff’s contentions of no contact, the sole coverage issue was one of law and appropriately decided by this court regardless of the construction of the amendment to the statute. Finally we note that the defendant has not sought remand to amend his pleading to allege such contact.

JOHNSON and JIGANTI, JJ., concur.

      In its section 48 motion (Ill. Rev. Stat. 1979, ch. 110, par. 48), insured alleged that “plaintiff” (insurer) conceded there was a question as to whether there was physical contact. But the insurer never so conceded. And even if the court assumes that the word “plaintiff” was a typographical error, which the defendant has never contended, this statement still fails to allege that there was contact with another vehicle.