author: JUSTICE HOPE

text:
    W. H. LYMAN CONSTRUCTION CO., Plaintiff-Appellant, v. THE VILLAGE OF GURNEE, Defendant-Appellee.
    Second District
    No. 84—0153
    Opinion filed February 27, 1985.

      Donald V. O’Brien and LaDonna M. Loitz, both of O’Brien & O’Rourke, of Chicago, for appellant.
    Julian Johnson, of Snyder, Clarke, Dalziel & Johnson, of Waukegan, for appellee.
   JUSTICE HOPE

delivered the opinion of the court:

This is the second time this case is before this court. (See W. H. Lyman Construction Co. v. Village of Gurnee (1980), 84 Ill. App. 3d 28, 403 N.E.2d 1325.) In this appeal, plaintiff claims the trial court erred: (1) in granting the village’s motion for summary judgment on count II of plaintiff’s third amended complaint; (2) in granting the village’s motion for a directed verdict on count I of the third amended complaint; and, (3) in permitting defendant Baxter and Woodman to participate in the proceeding below when there were no claims pending against it.

Plaintiff, W. H. Lyman Construction Company (Lyman), was the successful bidder on a sanitary sewer project advertised by the village of Gurnee (village). Lyman’s bid was computed on the basis of certain plans and specifications prepared for the village by the engineering pervising engineer for the project on behalf of the village. Following pervising engineer on behalf of the village for the project. Following completion of the project, Lyman filed a complaint, and later an amended complaint, against the village and Baxter and Woodman, alleging that the village had breached its implied warranty of accuracy and sufficiency of the plans and specifications provided to plaintiff, and that Baxter and Woodman acted negligently in designing certain manhole bases and in administering the contract. As a result, Lyman alleged it was required to expend a significant amount over and above the stated amount of the contract, and sought damages in the amount of $675,000. In the first appeal, this court reversed part of the lower court’s dismissal of plaintiff’s amended complaint.

Upon remand to the circuit court of Lake County, plaintiff filed its third amended complaint containing two counts against the village and one count against Baxter and Woodman. Count I alleged that the village breached its implied warranty of accuracy and sufficiency of the plans and specifications pertaining to the construction of the manhole bases. Count II sought to recover from the village certain expenses incurred by plaintiff in providing additional granular bedding material over and above the amount specified in the contract. Finally, count III alleged negligence against Baxter and Woodman in designing the manhole bases and in administering the contract. During the course of the proceedings below, the village filed a cross-claim against Baxter and Woodman alleging that if the village was found liable to plaintiff, then Baxter and Woodman was liable to the village based on the contract between the village and Baxter and Woodman. The village’s subsequent motion for summary judgment on the cross-claim was granted, and Baxter and Woodman was ordered to indemnify the village should the village be found liable to plaintiff.

Subsequently, the village moved for summary judgment on count II of plaintiff’s third amended complaint, relating to damages for the extra bedding material supplied by plaintiff. The motion alleged, in part, that the extra bedding was necessary to maintain the grade level of the pipe and was due to the soil conditions on the site, which this court held were the responsibility of the plaintiff. (See W. H. Lyman Construction Co. v. Village of Gurnee (1980), 84 Ill. App. 3d 28, 33, 403 N.E.2d 1325.) The motion also stated that any alleged promise made by John Lóete, an employee and engineer for Baxter and Woodman, to pay for the extra bedding was unenforceable as being without consideration and beyond the scope of his authority. After reviewing the pleadings, depositions, and affidavits in the record, and considering the arguments of counsel, the court granted the village’s motion for summary judgment on count II. Additionally, plaintiff moved to voluntarily dismiss count III of its complaint and Baxter and Woodman as a defendant. The motion was granted over the village’s objection.

The case proceeded to trial on count I of the third amended complaint, which alleged a breach by the village of its implied warranty of the accuracy and sufficiency of the plans and specifications relating to construction of the manhole bases. Baxter and Woodman also took part in the trial. According to the plans and specifications, 10 manholes were to be installed on the project. The manhole base for each was a reinforced concrete structure approximately six feet in interior diameter, with a hole on either side, and an eight-inch wall thickness. The holes in the structures were several inches larger than the outside diameter of the 42-inch reinforced concrete pipe which was to be inserted into the holes at the manhole base. The dispute in count I focused upon the meaning of certain language in the contract which stated:

“Spaces around and under all pipes entering at the bottom of manholes shall be filled with concrete from the outside.”

During trial, these spaces were referred to as “annular spaces.” The contract also required that the pipe and manholes be installed to a certain line and grade, but was silent as to how this was to be- accomplished while filling the annular spaces around the pipe with concrete. Accordingly, plaintiff devised a method whereby brick and mortar were placed in part of the annular spaces around the pipe so as to hold it to the specified line and grade. Then, the concrete was poured into the remainder of the annular spaces. According to plaintiff, the brick and mortar also served to prevent the concrete from flowing back into the manhole bases. When this work was completed, it was discovered that there were leaks in the manhole bases. Plaintiff expended significant amounts in order to rectify' the problem.

At the close of the plaintiff’s case, the village moved for a directed verdict on count I, alleging that the plans and specifications required that the entire annular space be filled with concrete and that plaintiff’s use of brick and mortar was a departure from the plans and specifications. The village further argued that, having departed from the plans and specifications, the plaintiff warranted its work and could not complain of design deficiencies. The trial court granted the village’s motion for a directed verdict, finding that the contractual provisions relating to the filling of the annular spaces were unambiguous, that plaintiff did not follow the plans and specifications in that it failed to fill the entire annular space with concrete, and that plaintiff thereby constructed the manholes at its peril and warranted the project as constructed.

Plaintiff first contends that the trial court erred in granting the village’s motion for summary judgment on count II of plaintiff’s third amended complaint, pertaining to extra granular bedding material. The contract between the village and Lyman provided, in relevant part:

“BEDDING OF PIPES:
Granular bedding materials shall be uniformly placed and compacted to support the bottom quadrant of all pipes. Bedding materials shall be placed with minimum thicknesses of 4-inches under pipe barrels and 2-inches under bells.” (Emphasis added.)

Plaintiff alleged in count II of the complaint that during the course of construction, John Lóete, the Baxter and Woodman resident engineer for the village, directed plaintiff to place more than four inches of granular bedding material beneath the pipe. It was also alleged that plaintiff complied with these directions and with a provision of the contract which required that the “Contractor shall proceed to make such changes [in the work] without causing delay.” The count further stated that plaintiff was directed by Lóete to maintain records of the amounts of additional granular bedding material used, and was assured that the village would pay for such additional material. Finally, count II alleged that the village was aware that extra bedding material was used, and that plaintiff was then informed by Baxter and Woodman that no additional payment would be made.

In its motion for summary judgment, the village alleged that it was the soil conditions that necessitated the use of the extra granular bedding material, that such conditions were the responsibility of the plaintiff, that plaintiff never submitted any proposed change or claim for paymént of the extra material, that Lóete was without authority to promise payment for the additional material, and that any alleged promise by Lóete was contrary to the terms of the contract. Attached to the village’s motion were excerpts from the depositions taken by George Lyman, president of Lyman, and Roger Doolin, plaintiff’s foreman; these depositions were incorporated by reference into the motion. In their depositions, both Lyman and Doolin stated that Lyman had encountered difficulty in getting a firm bed for the laying of the pipe and that in order to get the firm bed, additional bedding material had to be used. Lyman further stated in his deposition that in a job such as this one, four inches of bedding material was not a usual amount for the laying of the sewer pipe, but that eight inches to two feet would usually be required in ground conditions such as those here. He also stated that Lyman had laid pipe under similar conditions numerous times before, and if additional bedding material was used over and above the amount called for in the specifications, it was always a subject of additional compensation. Finally, during his deposition, Lyman stated that in the instant case, there was no unit price for the bedding material and none was asked for by Lyman at any time during the course of the job. However, later in the deposition, Mr. Lyman stated that Lyman knew the unit price for the bedding because it had a contract with a firm that was supplying the bedding material. However, no reimbursement request was made by Lyman until after completion of the job.

In addition to these allegations and the motion for summary judgment, this court’s opinion in the initial appeal of this cause was a matter of record in the trial court. In that opinion, this court found that plaintiff had an affirmative duty to inspect the site, including subsurface conditions, and to deal with adverse subsoil conditions and additional expenses encountered during construction due to plaintiff’s failure to inspect. W. H. Lyman Construction Co. v. Village of Gurnee (1980) , 84 Ill. App. 3d 28, 33, 403 N.E.2d 1325.

It is well established that summary judgment should only be granted “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1983, ch. 110, par. 2— 1005.) In deciding such a motion, any evidence in support of it must be construed strictly against the moving party and liberally in favor of the opponent. (Fryison v. McGee (1982), 106 Ill. App. 3d 537, 539, 436 N.E.2d 12.) Summary judgment is an extraordinary measure and should be employed only where the right of the movant is clear and free from doubt. (Susmano v. Associated Internists of Chicago, Ltd. (1981) , 97 Ill. App. 3d 215, 219, 422 N.E.2d 879.) It should be awarded with caution so as not to preempt a right to a trial by jury or the right to fully present a factual basis for a case where a material dispute may exist. Decatur Construction, Inc. v. Central Illinois Public Service Co. (1974), 16 Ill. App. 3d 1056,1059, 307 N.E.2d 431.

In the instant case, plaintiff suggests the following issues of material fact which it claims precluded the trial court from granting the village’s motion for summary judgment in the instant case: (1) whether defendant’s conduct was such that it could be said to have waived the requirement that the request for extra compensation be in writing; (2) the meaning of “minimum”; and, (3) whether the soil conditions which necessitated the additional stone were of the type which could not have been discovered in an inspection by plaintiff and thus were not the responsibility of the plaintiff.

With respect to this last suggested material issue of fact, plaintiff failed to submit any affidavits, depositions, etc., in the trial court which would support its claim that the soil conditions necessitating the additional stone were of the type which could not have been discovered upon inspection. Further, this court’s opinion in the first appeal of the cause made it clear that indeed plaintiff had an affirmative duty to inspect the subsurface soil conditions and that it was responsible for any additional expenses incurred as a result of its failure to inspect. (W. H. Lyman Construction Co. v. Village of Gurnee (1980), 84 Ill. App. 3d 28, 33, 403 N.E.2d 1325.) Additionally, there is no dispute that plaintiff had the duty under the contract to provide a firm bed for the laying of the sewer pipes. Lyman and Doolin both stated in their depositions that the extra bedding material was required in order to obtain a firm bed and that this additional material was needed due to unexpected subsurface soil conditions. There was absolutely no indication that this was not the type of problem which could have been discovered had plaintiff complied with its duty to inspect. Thus, this was not a genuine issue of material fact which would have precluded the granting of a summary judgment in the instant case.

With respect to the meaning of the term “minimum” in the contract, it is well settled that the meaning of contractual terms is determined by the court as a matter of law, while it is for the jury to determine what terms comprised the contract and the intent of the parties. (National Tea Co. v. Commerce & Industry Insurance Co. (1983), 119 Ill. App. 3d 195, 200, 456 N.E.2d 206.) The plain language of the provision in question, and specifically the term “minimum,” means “the least quantity assignable, admissible, or possible in a given case ***.” (Webster’s Third New International Dictionary 1438 (1981).) Thus, by the plain language of this provision, the village was setting only a minimum limit on the amount of bedding material which it would accept, but was permitting the contractor to use more than this amount if it was needed to obtain a firm foundation, which was undisputedly plaintiff’s responsibility to provide. Accordingly, there was no “bedding design” specified by the village, other than the minimum specifications given, of which the plaintiff could complain. Further, George Lyman stated in his deposition that in conditions such as those here, eight inches to two feet were usually used to make the bed. Thus, the clear inference is that if plaintiff had inspected the site, as it was required to do before making its bid, it would have anticipated the use of the extra bedding material and would have increased its bid accordingly. Further, although Mr. Lyman stated in his deposition that typically additional bedding material is the subject of additional compensation, we do not construe this testimony as constituting evidence of custom and usage in the industry on the meaning of the term “minimum.” To the contrary, Mr. Lyman’s deposition testimony never referred to the interpretation of the term “minimum” in construction contracts. Accordingly, we conclude that there was no genuine issue of material fact as to the meaning of the term “minimum” in the contract.

Finally, plaintiff claims that there was a genuine issue of material fact on whether defendant waived the requirement that the request for extra compensation be in writing. Even assuming the defendant, through its agent, John Lóete, waived the requirement that the request be in writing, there is no authority for the proposition that such an agent could vary the terms of the contract and agree to pay for materials which plaintiff already had an obligation to provide. A promise to do that which one is already legally obligated to do is no consideration and does not create new obligations. (In re Marriage of Roth (1981), 99 Ill. App. 3d 679, 684, 426 N.E.2d 246.) In the instant case, plaintiff was already legally obligated to provide sufficient granular bedding material to accomplish a firm bed for the laying of the pipes. Thus, the use of more than the four-inch minimum to obtain this result was not consideration for Loete’s alleged promise to pay for the cost of the additional material. (In re Marriage of Roth (1981), 99 Ill. App. 3d 679, 684, 426 N.E.2d 246.) We therefore conclude that the trial court did not err in granting the village’s motion for summary judgment on count II of plaintiff’s third amended complaint.

Plaintiff’s next contention is that the directed verdict in favor of the village on count I, relating to the concrete encasement of the pipes, was improperly granted, since the evidence and the reasonable inferences to be drawn from the evidence, construed most strongly in favor of the plaintiff, did not so overwhelmingly favor the movant (i.e., the village), that no contrary verdict based on that evidence could ever stand. See Sunseri v. Puccia (1981), 97 Ill. App. 3d 448, 422 N.E.2d 925; Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

There was no dispute at trial that John Lóete, the resident engineer from Baxter and Woodman, instructed Lyman to encase the sewer pipes in concrete where they entered the manhole bases. George Heck, the designer of the sewer for Baxter and Woodman, was called by plaintiff to testify as an adverse witness. He indicated that the purpose of the specification in question was to ensure that the void between the pipewall and the manhole wall was filled with concrete to keep the outside soil and water from entering the manhole. In Heck’s judgment, and based upon his experience, the placement of good quality ready-mix concrete in the annular spaces throughout the thickness of the manhole wall would have accomplished this result. Heck also testified that the entire annular space could have been filled, as required in the contract, by supporting the pipe on block or brick on the inside of the manhole structure' rather than in the annular space, lining the pipe up from inside to some point outside the manhole, and then filling the entire annular space with concrete.

Plaintiff relies on the testimony of four other witnesses to support its position that the evidence was not so overwhelmingly in favor of the village as to support the directed verdict. Roger Doolin and James Welch each testified that John Lóete had instructed them to encase the pipes with concrete but that no one told them to use brick and mortar and that they did this on their own. Jim Crawford, an employee of Lyman, also testified as to the brick and mortar procedure.

Otto Larsen, the head of outside field operations for Baxter and Woodman at the time of the project, testified that insofar as he observed the construction methods followed by Lyman, he did not have occasion to disapprove of them. The resident engineer was responsible for observing the construction procedures and reporting their progress to Larsen. No reports were received from the resident engineer that the project was not being constructed according to the plans and specifications. Larsen testified that pipe has a tendency to move in the process of pouring the concrete if it is not properly supported or locked in place. He stated, however, that in the course of his duties as the person ultimately in charge of this process, he did not come to learn how the contractor blocked the pipe in this job. Larsen testified as to the prevailing method in 1976 of blocking pipe as it comes into precast manholes as in this case. He stated that under the conditions that existed in this job, the prevailing method of blocking was to wedge the pipe in position so that it will not move laterally or vertically during the process of pouring the concrete in the void outside the manhole. He further stated that in a situation like this, the only place to wedge it would be between the wall of the manhole opening and the outside of the wall of the pipe, within the annular space that is the subject of this suit. He stated that as the engineer, this method would be acceptable to him. He stated that locking the pipe in place under the conditions that existed here could not be accomplished “very well” from outside the manhole due to the unstable soil conditions. Larsen also believed that supporting the pipe from the inside of the manhole would be “possible” but probably not “acceptable,” because it would require a greater amount of pipe protruding into the manhole than would be desirable. On cross-examination, Larsen stated that while working for Baxter and Woodman, he was not responsible for any design work. He also stated that if the pipe extended some four inches to six inches into the manhole space, as in the present case, then it would be possible to compensate for any vertical and lateral movement with some sort of form either out of metal or wood, and thereby avoid placing a wedge in the annular space. Such a form would prevent seepage of concrete into the manhole as well.

Additionally, plaintiff introduced the testimony of an expert witness, Lloyd Jones, who testified that the use of any amount of ready-mix concrete to fill the annular spaces would not effectively waterproof the manhole bases.

In ruling on the village’s motion for a directed verdict, the trial court first found that the contractual provision in question was unambiguous. Plaintiff urges us to consider extrinsic evidence in determining the meaning of the statement, “Spaces around and under all pipes entering at the bottom of manholes shall be filled with concrete from the outside.” In construing the terms of a contract, they must be given their ordinary and natural meaning when they are clear and unambiguous, and no parol or extrinsic evidence may be considered to vary the meaning of the terms. (Susmano v. Associated Internists of Chicago, Ltd. (1981), 97 Ill. App. 3d 215, 219, 422 N.E.2d 879.) Whether an ambiguity exists in a contract is to be determined by the court as a matter of law. (97 Ill. App. 3d 215, 219, 422 N.E.2d 879.) A contract is ambiguous where the language used is reasonably susceptible to more than one meaning. 97 Ill. App. 3d 215, 219, 422 N.E.2d 879.

Plaintiff argues that the provision in question is ambiguous and that it may be interpreted as permitting a portion of the spaces around and under all pipes to be filled with a material other than concrete, namely bricks and mortar. We disagree and do not believe that the plain language of the contract permits such a construction. Accordingly, the trial court properly found the contract to be unambiguous.

This being the case, the evidence offered by the plaintiff clearly demonstrates that the plaintiff was deviating from the terms of the contract when it filled a portion of the annular space with a material other than concrete. Although plaintiff argues that John Loete impliedly approved of the plaintiff’s method of blocking by not reporting a deviation from the plans and specifications, we could discover no evidence in the record that Loete in fact observed or even was aware that a portion of the spaces were being filled with brick and mortar. Had such evidence been introduced, plaintiff’s claim that any deviation from the plans was consented to by the village (through Baxter and Woodman) would have had at least some support in the record. However, the testimony of all of plaintiff’s witnesses indicated that Loete, contrary to any consent, directed plaintiff to encase the pipes at the manhole bottoms with concrete.

Further, Otto Larsen’s testimony regarding acceptable industry methods for blocking the pipes could not alter the fact that plaintiff had not filled the entire annular space with concrete, as required by the contract. Nor does his testimony regarding what he would have found acceptable and unacceptable here excuse plaintiff from its failure to perform its end of the bargain. Similarly, a verdict for plaintiff could not be based upon Lloyd Jones’ testimony that had the plans and specifications been complied with, there still would have been a leakage problem. A negligent design by an architect or engineer cannot be interposed as a defense by a contractor who has failed to comply with the plans and specifications provided him. (Corbetta Construction Co. v. Lake County Public Building Com. (1978), 64 Ill. App. 3d 313, 328, 381 N.E.2d 758.) The contractor has a duty to carry out the construction in accordance with the plans and specifications agreed upon and can depart from them only at its peril. (64 Ill. App. 3d 313, 328, 381 N.E.2d 758.) Accordingly, we conclude that plaintiff’s departure in the instant case from the plans and specifications provided by the village now precludes it from alleging a faulty design in those specifications. Thus, the directed verdict was properly granted.

Finally, we consider the question whether Baxter and Woodman was properly allowed to participate in the trial below where there were no claims pending against it. It is clear that the summary judgment obtained by the village against Baxter and Woodman made it an interested party to this litigation. The fact that the village’s cross-claim had been litigated prior to trial in this case did not eliminate Baxter and Woodman’s interest in the present litigation. To the contrary, Baxter and Woodman’s interest was increased since it had already been determined that it would be held liable for any liability found on the part of the village. Under these conditions, Baxter and Woodman, if not an actual party to the case pursuant to section 2 — 406 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 406), had a right to intervene pursuant to section 2 — 408(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 408(a)). Although section 2 — 408(e) requires that the party in question file a petition in the court, intervention may be accomplished by oral motion and a subsequent filing of an answer setting up their interests. (Miller v. Clark (1921), 301 Ill. 273, 133 N.E. 685.) Any failure in the instant case to formally file a petition pursuant to this section was harmless, since an oral motion was apparently made, an answer to the complaint was already on file, and clearly Baxter and Woodman would be affected by the judgment in the action. Accordingly, we conclude that there was no error in permitting Baxter and Woodman to participate in the proceeding below.

For the reasons previously stated, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

REINHARD and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANNIE RUTH BIAS, Defendant-Appellant.
    Fourth District
    No. 4—84—0299
    Opinion filed February 26,1985.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Peter C. Drummond, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Armed robbery — jury—six years.

No evidence as to the nature of the instrumentality used to persuade the victim to part with his billfold — except that it may have been a sharp fingernail.

Since no portion of the human anatomy is legally a dangerous weapon, we reduce Bias’ conviction to simple robbery and remand for resentencing.

Because Bias also asserts that the victim’s identification testimony was insufficient to establish beyond a reasonable doubt that she was the robber, a rather detailed summary of the evidence is required.

EVIDENCE

The State’s first witness, Everett Jackson, testified that on December 19, 1983, he went to the Argonne Tavern in Springfield, where he had a couple of beers. After leaving the tavern at about midnight, he went to his car which was parked nearby. He had started his car and was cleaning the frost off the side mirror when he was approached by a black woman who asked, “Do you want a date?” Jackson replied in the negative, and stated that she wasn’t his type. Almost immediately thereafter, the woman said, “Just give me your money then.” At that time, the woman, using one hand, pointed something which felt sharp at Jackson’s neck. The robber was about one to two feet away from Jackson at the time of the encounter, and the area was lighted to the extent that Jackson could see his assailant.

After Jackson surrendered his wallet, the robber began running in an easterly direction. Jackson gave chase and kept track of the robber by means of her distinctive black and white striped leg warmers. He lost sight of his assailant once during the chase, but soon caught up with her and followed her to the area of a public housing project. Upon arriving at the project, the robber first knocked on the door of an apartment at which no one was apparently home. She then knocked on the door of a second residence, to which she was admitted. Jackson subsequently went to the Springfield police station and reported the robbery.

Jackson first stated that he retrieved his wallet while in pursuit of the robber. He subsequently testified, however, that he was “mixed up” (apparently while testifying) and that he retrieved the wallet after reporting the robbery to the police, because they asked him to retrace his path in pursuing the robber.

Jackson testified that at the time of the robbery, the assailant was wearing white striped leg warmers, a brown stocking cap, and a brown furry coat. He also made an in-court identification of Bias as the robber and stated that, upon viewing her in court, she appeared to be about five feet two inches in height.

A day or two after the robbery, Jackson viewed an array of photographs of possible suspects. After viewing the photographs for approximately two minutes, he identified a picture of Bias as that of the robber. A copy of the array of five sets of photographs which Jackson viewed was preserved, and at trial Jackson identified the first set as those of the robber of whom he had previously made the in-court identification. There was no doubt in Jackson’s mind that this was the person who robbed him.

On cross-examination, Jackson stated that on the same day he viewed the photograph array, he pointed out to a detective and to a uniformed police officer the residence which the robber entered. He did not know the address of the residence which he pointed out to them and could not remember whether his identification of the residence took place before or after he viewed the five sets of photographs.

Jackson specifically remembered that the desk sergeant on duty when he reported the robbery was a female officer, but he could not remember the figures as to the robber’s height or weight which he provided the officer who took his initial report on the night of the robbery. Jackson admitted that he did not describe to the investigating officer the length of the robber’s hair or the condition of the robber’s teeth, and did not state whether the robber had facial scars.

Also on cross-examination, Jackson implied that at the time of the robbery, he was working for the Wyzard Roofing Company from 8 a.m. to 2 p.m. on weekdays and was usually paid every Friday. He further stated, however, that on the day of the robbery he worked at Wyzard’s “shop” from 8:30 to 11 a.m. and that on the evening of the robbery, he did some paneling work for a Joseph McGrath from approximately 6:30 p.m. to 10:30 or 11 p.m.

Jackson acknowledged that he really did not know what the object which the robber pointed at his neck was and admitted that it could have been a very sharp fingernail. He pursued the robber for 30 to 40 minutes and the closest he came to the robber while chasing her was about 20 feet. When the woman came up to his car, Jackson apparently looked to the left and had a full-face view of her initially, but he later looked straight ahead. Finally, he testified that he had never been asked to view a line-up and that he knew before he came to court that he would be asked to identify Bias.

On redirect, Jackson stated that he had been paid on the Friday prior to the robbery, but that he had not cashed his check until the following Monday, which was apparently the day of the robbery. He further testified that at the time of the robbery, he was looking up at the robber and that although he waited a minute after the robbery before moving his car, he never lost sight of the robber before beginning to follow her. He reiterated that the robber wore a brown stocking cap, but stated that he could not see what was underneath the cap. Jackson also implied that he was not very good at estimating heights.

On recross, the defense established that Jackson had initially stated to the police that the robber was five feet six inches tall in contrast to his testimony upon viewing Bias in court that she was five feet two inches in height. Furthermore, Jackson admitted that he initially told police that the robber was wearing a brown hat as opposed to a stocking cap. He also acknowledged that the photograph of Bias which he identified showed that she had long hair.

Detective Murphy, of the Springfield police department, testified that he showed Jackson the photo array and that after viewing the photographs, Jackson signed a statement indicating that he had positively identified the robber. Murphy did not in any way indicate to Jackson the identity of any of the persons depicted in the photographs. The photographs of Bias which Jackson identified were taken in 1982. When he showed Jackson the photographs, Murphy did not know what apartment the robber entered after robbing Jackson, but he did have a reason for selecting the pictures that he did.

Detective Mann, also of the Springfield police department, testified that after talking to Detective Murphy, Jackson pointed out to him the residence in the public housing project which the robber entered. One of the occupants of that residence was Deanna English. Mann was familiar with both English and Bias and had had occasion to see them together. Mann did not, however, enter the apartment on that day, and stated that to the best of his knowledge, no one ever talked to English about the robbery.

The defendant’s case began with the testimony of Officer Bivens, who took Jackson’s initial report of the robbery. Bivens testified that Jackson described the robber as a black female about five feet six inches in height, weighing 130 pounds. Jackson further stated that she was wearing a three-quarter length brown fur coat, black and white striped pants, and white leg warmers. According to Bivens, Jackson did not provide a description of the robber’s facial features, teeth, hair, eyes, voice or shoes. Bivens normally would not expect a robbery victim to take note of the robber’s shoes.

Recalled as a defense witness, Detective Murphy, stated that no photographs of Deanna English were included in the array which Jackson viewed.

Donald Wyzard, owner of Wyzard Roofing Company, testified that he laid off Jackson during the November preceding the robbery. Jackson did, however, work for him a couple of days in December 1983. The last payroll check which he issued to Jackson prior to the robbery was dated December 2, 1983, and was in the amount of $54.45. Wyzard may, however, have paid Jackson additional cash amounts for odd jobs done for-him personally during December 1983. On cross-examination, Wyzard stated that his main reason for laying Jackson off during the winter months was to enable him to collect unemployment compensation.

In rebuttal, the State recalled Jackson. He first stated that he began receiving unemployment compensation about the middle or last of January 1984. He then, however, admitted that he was nervous and that his unemployment benefits actually started in the middle of November 1983. Jackson also retracted his earlier testimony as to having received a paycheck in the middle of December 1983, and stated that upon examining his records, he found that he had received an unemployment check in the amount of $182 on December 16, 1983, which he cashed on December 19, 1983. He also stated that he most likely did some odd jobs around Wyzard’s shop on the day of the robbery, although he was not entirely certain as to this.

Following closing arguments, the jury found Bias guilty of armed robbery.

OPINION

I

Bias initially asserts that the trial court erred in failing to instruct the jury as follows:

“In this case the identifying witness is of a different race than the defendant. In the experience of many it is more difficult to identify members of a different race than members of one’s own. If this is also your own experience, you may consider it in evaluating the witness’ testimony. You must also consider of course, whether there are other factors present in this case which overcome any such difficulty of identification. For example, you may conclude that the witness has had sufficient contacts with members of the defendant’s race that he would not have greater difficulty in making a reliable identification.”

However, the court did give the following jury instruction:

“You are the sole judges of the believability of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his degree of attention at the time of the offense, the accuracy of his earlier description of the offender, the length of time between the offense and the confrontation, his memory, his manner while testifying, any interest, bias, or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.”

Bias contends that the former instruction should have been given because of empirical evidence which demonstrates that interracial identifications are much less reliable than intraracial identifications.

In People v. White (1978), 58 Ill. App. 3d 226, 374 N.E,2d 250, this court squarely rejected an identical contention. Bias’ argument contains no persuasive reasons why we should reverse our decision in White, and we therefore decline the invitation to do so. It should further be noted that the majority opinions in two of the cases which Bias cites in support of her position as to this issue, United States v. Hodges (7th Cir. 1975), 515 F.2d 650, and United States v. Telfaire (D.C. Cir. 1972), 469 F.2d 552, utterly fail to support that position. In neither of these cases did the majority opinion mandate the giving of an interracial identification instruction.

Finally, it should be noted that contrary to Bias’ contentions, the empirical studies are not unanimous in concluding that most individuals have greater difficulty identifying members of another race, as opposed to members of their own race. While some studies have concluded that interracial identifications are more difficult than intraracial identifications (e.g., Ellis, Davies & Shepherd, Experimental Studies of Face Identification, 3 National Journal of Criminal Defense 219 (1977)), other studies suggest that this is not necessarily true. (E.g., Malpass & Kravitz, Recognition for Faces of Own and Other Race, 13 Journal of Personality & Social Psychology 330 (1969).) In view of the conflicting empirical evidence, we feel that determination of the propriety of an instruction such as that at issue is better left to committees of the bench and bar as opposed to courts of review. See United States v. Telfaire (D.C. Cir. 1972), 469 F.2d 552, 563 (Leventhal, J., concurring).

II

Bias next contends that the identification testimony was insufficient to establish beyond a reasonable doubt that she was the person who robbed Jackson. As basis for this contention, Bias relies on (1) Jackson’s focus on articles of the robber’s clothing, which were never connected to Bias; (2) Jackson’s alleged failure to identify certain of the robber’s facial features; (3) the empirical studies which conclude that interracial identifications are more difficult than intraracial identifications; and (4) the contradictions and inconsistencies in Jackson’s testimony as to such matters as the robber’s height and the source of the check which Jackson cashed on the day of the robbery.

Our analysis of this issue must begin with the premise that credible identification testimony of even one eyewitness is sufficient to support a finding of guilt. (People v. Jones (1975), 60 Ill. 2d 300, 325 N.E.2d 601.) The cases so holding do not state that an identification is rendered unreliable simply because the clothing which the victim asserts that an assailant was wearing was never connected to the assailant. To hold otherwise would have the practical effect of virtually precluding the admission of identification testimony when the assailant is apprehended only after he or she has had an opportunity to change his or her clothing. Moreover, minor discrepancies and omissions in a victim’s description of his or her attacker, as to such matters as the presence or absence of a beard, mustache, or tattoo, whether the assailant had missing teeth, and the assailant’s height, weight and complexion, do not render an identification utterly inadmissible. People v. Thomas (1979), 72 Ill. App. 3d 186, 389 N.E.2d 1330; People v. Mays (1976), 38 Ill. App. 3d 182, 347 N.E.2d 235.

We are of the opinion that in the case at bar, all of the discrepancies in Jackson’s identification testimony are comparatively minor, and that all of the inconsistencies in his identification testimony have a reasonable explanation. First of all, Jackson admitted that he was nervous when testifying, and the jury was in a much better position than we to evaluate the veracity of this statement. Presumably the jury felt that this statement was worthy of belief, and it alone accounts for many of the inaccuracies and contradictions in Jackson’s testimony. Also, Jackson’s admitted lack of skill in estimating heights and the fact that he viewed the robber only while seated in a car provides a reasonable explanation for Jackson’s initially telling investigating officers that the robber was five feet six inches, while stating, after viewing Bias in open court, that Bias was only five feet two inches tall.

Furthermore, it is unreasonable to expect one under the stress of a holdup-type situation to notice whether the robber has missing teeth or scars on her face, or what type of shoes the robber is wearing, especially when the robbery occurs at night under artificial, outside lighting. (Cf. People v. Hemphill (1978), 62 Ill. App. 3d 977, 379 N.E.2d 1284 (where defendant has no abnormal or distinguishing physical characteristics, omission of description of facial features from victim’s preliminary description of defendant does not raise a reasonable doubt of defendant’s guilt).) Moreover, Jackson (whose race, incidentally, does not appear of record) did not testify that he had any greater difficulty identifying blacks as opposed to whites, and in the absence of such testimony, we do not deem the possibility that the identification was interracial to be a crucial factor in evaluating the reliability of Jackson’s testimony. Finally, a close examination of Jackson’s testimony reveals that he had a plausible reason for wishing to conceal the fact that he was receiving unemployment benefits at the time of the robbery. In view of the existence of plausible explanations for virtually all of the inconsistencies and contradictions in Jackson’s testimony, we cannot say that his identification of Bias as his robber is inherently unreliable.

We further note that Bias’ reasonable doubt argument is premised on the assumption that Jackson’s identification of Bias as his robber is wholly uncorroborated. This is not so. Detective Mann, who accompanied Jackson when he pointed out the apartment into which the robber fled, stated that one of the occupants of that apartment was Deanna English and that he had had occasion to see English and Bias together. It does not appear that Jackson had any knowledge of the identity of the occupants of the apartment into which Bias fled when he pointed it out to Detective Mann. Jackson’s identification of Bias as his robber is thus corroborated by independent evidence that Bias took refuge in the residence of an individual with whom she was known to associate.

In view of what we have just said, both of the cases on which Bias relies in support of her argument that the evidence is insufficient to establish that she robbed Jackson, People v. Thompson (1970), 121 Ill. App. 2d 163, 257 N.E.2d 197, and People v. Marshall (1966), 74 Ill. App. 2d 483, 221 N.E.2d 133, are distinguishable, for in neither of those cases was there a plausible explanation for the many inconsistencies and inaccuracies in the victim’s testimony. Furthermore, in both of those cases, unlike in the present case, the conviction was based solely on an uncorroborated identification which the reviewing court deemed less than reliable.

In sum, the inconsistencies and inaccuracies in Jackson’s identification testimony are readily explainable, and the identification is buttressed by independent evidence as to the occupants of the apartment in which Jackson stated that the robber took refuge. In our view, this evidence is sufficient to establish beyond a reasonable doubt that Bias is the person who robbed Jackson.

Ill

Bias’ final contention is that there is no real evidence that a dangerous weapon was used in the robbery and that we should therefore reduce her conviction to robbery. In order for the offense of robbery to be enhanced to armed robbery, the robbery must occur when the defendant “carries on or about his or her person, or is otherwise armed with a dangerous weapon.” (Ill. Rev. Stat. 1983, ch. 38, par. 18 — 2(a).) Where the evidence utterly fails to demonstrate that the defendant was armed with a dangerous weapon at the time of the offense, an armed robbery conviction must be reversed, even where the assailant verbally threatened to use a dangerous weapon at the time of the robbery. People v. Fiala (1980), 85 Ill. App. 3d 397, 406 N.E.2d 931.

In the present case, the only evidence as to the nature of the object pointed at Jackson is Jackson’s statement that it may have been a very sharp fingernail. In People v. Skelton (1980), 83 Ill. 2d 58, 66, 414 N.E.2d 455, 458, the supreme court implied that a finger cannot be considered a dangerous weapon for purposes of the armed robbery statute. This suggestion is in accord with the virtually unanimous weight of authority in other jurisdictions, which holds that bodily appendages may not be regarded as dangerous weapons for purposes of statutes which enhance criminal offenses if a dangerous weapon was used to commit the offense. See, e.g., Commonwealth v. Davis (1980), 10 Mass. App. 190, 406 N.E.2d 417 (human teeth are not a “dangerous weapon” for purposes of statute proscribing assault and battery by means of a dangerous weapon).

We find the State’s arguments that the presence of a dangerous weapon may be inferred from the circumstances of the robbery, and the authority cited in support thereof, to be unpersuasive. The State asserts that it is unreasonable to assume that a person of Bias’ stature would have attempted an armed robbery unless armed with a dangerous weapon. However, a short person can master karate or one of the other martial arts as easily as a larger person. Furthermore, neither of the cases cited in support of the State’s position as to this issue — People v. Agee (1980), 85 11. App. 3d 74, 405 N.E.2d 1245, and People v. Elam (1972), 50 Ill. 2d 214, 278 N.E.2d 76 — is on point, since in both of those cases, unlike the present case, a dangerous weapon was either seen by the victim at the time of the robbery or discovered on the person of the defendant shortly after the robbery.

When the possible presence of a very sharp fingernail is disregarded, the record before us does not contain a shred of evidence that any particular type of dangerous weapon was present at the time that Bias robbed Jackson. We therefore reduce Bias’ conviction to simple robbery (People v. Binion (1967), 80 Ill. App. 2d 130, 225 N.E.2d 485) and remand the cause to the circuit court with directions that the court conduct a sentencing hearing on the simple robbery conviction.

Affirmed as modified and remanded with directions.

GREEN, P.J., and TRAPP, J., concur.


author: JUSTICE WELCH JUSTICE KARNS,

text:
    FREMONT INDEMNITY COMPANY, Plaintiff-Appellee, v. SPECIAL EARTH EQUIPMENT CORPORATION et al., Defendants-Appellees (Fruin-Colnon Corporation et al., Defendants-Appellants).
    Fifth District
    No. 5—83—0831
    Opinion filed February 14, 1985.

      EARNS, J., dissenting.
    Allan Goodloe, Jr., of Pope & Driemeyer, of Belleville, and Michael E. Wilson, of Greensfelder, Hemker, Wiese, Gale & Chappelow, P.C., of St. Louis, Missouri, for appellants.
    C. Patout Ducey, of Ducey, Feder & Ducey, Ltd., of Belleville, for appellee Fremont Indemnity Company.
   JUSTICE WELCH

delivered the opinion of the court:

This case concerns pile-driving operations at the Jefferson Barracks Bridge Project and the construction of an insurance contract. Fremont Indemnity Company (Fremont) is the insurer. Special Earth Equipment Corporation (SEECO) is the insured. The pile-driving operations were performed by Fruin-Colnon Corporation and Granite Construction Company, which parties were engaged in a joint venture at all times pertinent to this appeal and will hereinafter be referred to collectively as “the Joint Venture.” SEECO supplied the Joint Venture with various components for the pile-driving operations. Banner Iron Works, Inc. (Banner), supplied certain equipment to SEECO. Banner commenced an action against SEECO in the circuit court of Monroe County for the price allegedly due Banner on its contract with SEECO. The Joint Venture, also named a defendant in that action, cross-claimed against SEECO for damages based on incidents involving the pile driving apparatus. Banner and the Joint Venture each were awarded a judgment by default against SEECO. Fremont’s counsel’s subsequent motion to reconsider, filed on behalf of SEECO, was denied. Thereafter, Fremont commenced the instant action in the circuit court of Monroe County, naming SEECO, Banner, and the Joint Venture as defendants, seeking a declaratory judgment that the above-mentioned contract of insurance provided no coverage for the judgments obtained by the Joint Venture and Banner against SEECO. The trial court granted Fremont’s motion for summary judgment as to both Banner and the Joint Venture. The Joint Venture appeals. Banner and SEECO are not involved in this appeal. There is no cross-appeal.

The pertinent facts are as follows: According to affidavits and copies of “purchase orders” of record, SEECO supplied the Joint Venture with a diesel pile hammer and guide rails, 150 feet of box leads, and the connectors and pins which hold the leads together. Box leads act as guides for the piling and the pile hammer during the pile-driving operation. The box leads and hammer are raised to and maintained in position by a crane. The purchase order price of the hammer with guide rails was $56,475. The purchase order price of the box leads was $22,877. The purchase order includes, inter alia, various hydraulic system components and “[a]ll necessary valving and hoses for plumbing into American 9Z99 crane.”

On July 14, 1978, a set of box leads broke while the leads were being lowered from operating position. Herb Minatre, a SEECO engineer, visited the site the next day. According to Minatre, whose recorded statement is transcribed of record, Minatre suggested that a different raising and lowering procedure be employed. However, on July 21, 1978, while another set of leads was being raised, the leads broke again. Minatre’s statement indicates his belief that SEECO’s design of the leads may have been at fault. According to Minatre’s statement, when he visited the site after the first lead failure, it was “very obvious that some sort of failure had occurred.” According to Minatre, the hammer guides, though not defective, were also damaged. Asked whether the bridge itself had been damaged, Minatre replied that “very very minor” damage had been done to a trestle. He stated that the second failure was identical to the first.

In count I of its cross-claim against SEECO, the Joint Venture sought $57,610.14 as damages for repair of the defective leads, alleging that said leads were not fit for the particular purpose for which they were purchased in that they twice “snapped and broke.” In count II, the Joint Venture sought $35,000 for labor, materials and overhead expenses for two weeks’ delay of the project construction schedule. The Joint Venture was awarded judgment by default against SEECO for SEECO’s failure to appear. After a damages hearing, judgment was entered in favor of the Joint Venture in the amount of $34,865.14 as to count I and $32,854.96 as to count II, which according to exhibits of record is itemized as follows: Labor, payroll taxes, workmen’s compensation insurance, fringe benefits, overhead and profit totalling $14,960.16; equipment rental, $11,281.26; materials, $1,726.12; repair of damaged pile hammer, $2,484; repair of all lead connectors, $4,413.60; and two weeks’ delay at $16,427.48 per week for “fixed and overhead costs,” $32,854.96.

Fremont’s complaint for declaratory judgment stated, in count I, that the insurance contract afforded no coverage for Banner’s and the Joint Venture’s judgments against SEECO, and, in count II, that Fremont was relieved of liability under the contract due to SEECO’s breach of its duty to forward suit papers to Fremont. The trial court granted Fremont summary judgment against Banner and the Joint Venture based on the first count only. The order signed by the trial judge indicates the following conclusions: That the damage to the leads and the guide rails on the hammer were damages to a single pile-driving apparatus of which all components were sold by SEECO; the other damages incurred by the Joint Venture were a result of expenses incurred in the repair of the defective product itself and delay of the construction operations incident to that repair; no “damage” occurred to property other than that supplied by SEECO; and the damage did not occur in “sudden and accidental” manner. It is from this judgment that the Joint Venture appeals.

The relevant portions of the insurance contract provide in essence that Fremont will pay on behalf of SEECO all sums which SEECO shall become legally obligated to pay as damages because of bodily injury or “property damage to which this insurance applies, caused by an occurrence, if the bodily injury or property damage is included within the completed operations hazard or the products hazard ***.” Exclusion (e) states that this insurance does not apply

“to loss of use of tangible property which has not been physically injured or destroyed resulting from
(1) a delay in or lack of performance by or on behalf of the named insured of any contract or agreement, or
(2) the failure of the named insured’s products or work performed by or on behalf of the named insured to meet the level
of performance, quality, fitness or durability warranted or represented by the named insured; but this exclusion does not apply to loss of use of other tangible property resulting from the sudden and accidental physical injury to or destruction of the named insured’s products or work performed by or on behalf of the named insured after such products or work have been put to use by any person or organization other than an insured.”

Exclusion (f) excludes from coverage

“property damage to the named insured’s products arising out of such products or any part of such products.”

The contract of insurance defines “damages” as, inter alia, damages for loss of use of property resulting from property damage. “Occurrence” is therein defined as an accident which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured. “Property damage” is therein defined as injury to or destruction of tangible property. “Named insured’s products” is defined as goods or products manufactured, sold, handled or distributed by the named insured. “Products hazard” is defined as including, inter alia, property damage arising out of the named insured’s products or reliance upon a representation or warranty made with respect thereto.

Summary judgment should be rendered if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005(c).) The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. The right of the moving party to summary judgment must be free from doubt. (Lawrence v. Rubio (1980), 85 Ill. App. 3d 472, 476, 406 N.E.2d 946, 951.) We examine the Joint Venture’s contentions on appeal with these principles in mind.

As a preliminary matter, the Joint Venture maintains that California substantive law governs this case, the insurance contract having been issued by a California insurer to a California insured. (See Criterion Insurance Co. v. Reed (1978), 66 Ill. App. 3d 925, 383 N.E.2d 786.) Fremont has not briefed this issue, and informs this court in oral argument that choice of law should not affect the outcome of this appeal.

We have adopted a four-part framework for consideration of the issues raised in this appeal. The Joint Venture must establish the existence of at least a triable issue of fact as to all four if the judgment in Fremont’s favor is to be reversed.

1. Was the damage represented by the Joint Venture’s judgment against SEECO caused by an “occurrence”?

2. Are any elements of that judgment “property damage” covered by the general insuring clause of the contract?

3. Are there any elements of “property damage” which are not excluded by Exclusions (e) and (f)?

4. Is Fremont entitled to judgment based on SEECO’s failure to forward suit papers?

We answer questions 1, 2, and 3 in the affirmative, and question 4 in the negative, i.e., the Joint Venture does prevail on all four issues.

We first consider the Joint Venture’s argument that the trial court erred in concluding as a matter of law that there was no “occurrence” with respect to the failure of the leads as that word is used in the insurance contract’s general insuring clause. Incorporating the insurance contract’s definition of “occurrence” with the definition of “property damage” therein, it can be seen that what is required is an “accident” which results in injury to or destruction of tangible property neither expected nor intended from the standpoint of the insured. These are relatively standard insurance contract definitions. An “occurrence” is found in the area of products liability insurance in the event of deliberate manufacture of a product which is inadvertently mismanufactured, and thereafter results in property damage, as to conclude otherwise would render the coverage virtually meaningless. (Yakima Cement Products Co. v. Great American Insurance Co. (1980), 93 Wash. 2d 210, 608 P.2d 254.) Thus, an “accident” has been found where defective doors or concrete panels were installed in buildings, and where the planting of the wrong seed resulted in yield reduction. (See Yakima Cement Products Co. v. Great American Insurance Co. (1980), 93 Wash. 2d 210, 608 P.2d 254, and cases cited therein.) Compared to those examples, Mr. Minatre’s statement indicates that an “accident” did indeed occur: The hammer guides, though not defective, were also damaged; it was “very obvious” that some sort of failure had occurred; some damage had resulted to a bridge trestle. In our view, whether an “accident” occurred was at least a triable question of fact.

Next, the parties dispute whether a triable issue of fact appears as to whether the items of damage claimed by the Joint Venture are “property damage’’ covered by the general insuring clause. “Property damage” is defined in the contract as injury to or destruction of tangible property. This definition obviously encompasses the leads and hammer guides. However, the Joint Venture asserts that the leads and hammer guides were so integrated with the remainder of the pile-driving rig that the damage was to the Joint Venture’s product, not SEECO’s. The sole component of the pile-driving rig referred to by the Joint Venture as not having been supplied by SEECO is the"crane. Fremont apparently assumes that the crane was not part of the pile-driving rig, as Fremont fails to directly address the significance of the crane or its use as a component of the pile-driving rig. We would be similarly inclined to conclude that SEECO supplied all components of the pile-driving rig if the record indicated that the crane merely held the rest of the apparatus aloft and could be similarly used for hoisting other equipment and materials. However, the purchase orders for sale of the components supplied by SEECO to the Joint Venture indicate that the crane was connected to the pile-driving rig, not only by a hoist cable, but by hydraulic connections. This supports the Joint Venture’s position that the crane was part of an integrated rig, part of which was not supplied by SEECO, and the whole of which was tangible property damaged by the failure of the box leads. (See Pittway Corp. v. American Motorists Insurance Co. (1977), 56 Ill. App. 3d 338, 342-43, 370 N.E.2d 1271, 1274; Elco Industries, Inc. v. Liberty Mutual Insurance Co. (1980), 90 Ill. App. 3d 1106, 1111, 414 N.E.2d 41, 45-46.) At the least, no contrary conclusion can be reached as a matter of law on this record.

Fremont argues that loss of use of the crane and other construction equipment, disassembly and reassembly of the pile-driving apparatus, and other delay damages such as fixed overhead constitute intangible or economic loss not covered under the contract. We find it well established under California law that loss of use, fixed overhead expenses, and other intangibles are not recoverable as “injury to or destruction of tangible property” under this type of policy. (See Geddes & Smith, Inc. v. Saint Paul Mercury Indemnity Co. (1965), 63 Cal. 2d 602, 407 P.2d 868, 47 Cal. Rptr. 564; Hogan v. Midland National Insurance Co. (1970), 3 Cal. 3d 553, 476 P.2d 825, 91 Cal. Rptr. 153; see also Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill. App. 3d 115, 294 N.E.2d 7.) However, in view of our conclusion that the pile-driving rig may be considered injured tangible property in the context of Fremont’s motion for summary judgment, loss from damage to such intangibles is recoverable “to the extent that it provides a measure of damages to physical property which is within the policy’s coverage” (Hogan v. Midland National Insurance Co. (1970), 3 Cal. 3d 553, 562, 476 P.2d 825, 830, 91 Cal. Rptr. 153, 158), i.e., in this case, the pile-driving rig. The damages should be measured by the diminution in value of the pile-driving rig or the cost of restoring it to operating condition, whichever is less. Geddes & Smith Inc. v. Saint Paul Mercury Indemnity Co. (1965), 63 Cal. 2d 602, 407 P.2d 868, 47 Cal. Rptr. 564.

Summarizing, we conclude that damage to the pile-driving rig is property damage not excluded from coverage as a matter of law under the general insuring clause of the contract. We next consider the effect of Exclusions (e) and (f):

Exclusion (f) excludes damage to the named insured’s products arising out of such products or any part of such products. The Joint Venture argues that this exclusion is ambiguous. Ambiguities should be construed in favor of the insured. (Sentry Insurance Co. v. S & L Home Heating Co. (1980), 91 Ill. App. 3d 687, 691, 414 N.E.2d 1218, 1221.) The court in Sentry Insurance Co. v. S & L Home Heating Co. found an essentially identical exclusion bereft of ambiguity. We agree. It is brief and direct. It excludes damage to all of the insured’s products, whether defective or not. Since the Joint Venture’s expenses are to some extent attributable to repairing the damaged leads and hammer guides supplied by SEECO, a portion of such damages is excluded by Exclusion (f). Under the plain language of Exclusion (f), repair of the box leads and the hammer guides is not covered. As to assembly and disassembly of the pile-driving rig, we note that SEECO is not alleged to have assembled, prior to the lead failures, the component parts it supplied. Thus, assembly of the pile-driving rig was not part of the “named insured’s products.” Under analogous circumstances, involving installation by a third party of doors manufactured by the insured, which doors subsequently proved defective, the California supreme court concluded that while the manufacturer was liable for the cost of the doors themselves, the insurer was liable for the expense of removing the defective doors as well as for installation of replacement doors. (Geddes & Smith, Inc. v. Saint Paul Mercury Indemnity Co. (1965), 63 Cal. 2d 602, 608, 407 P.2d 868, 872, 47 Cal. Rptr. 564, 568.) In conformity with Geddes, we conclude that Exclusion (f) excludes the cost of repairing the leads and hammer guides, but not the expenses of removing those components from the rig constructed by the Joint Venture or the expenses of reinstalling those components after repair.

As to the effect of Exclusion (e), said exclusion does not apply to all loss of use of tangible property which has not been insured or destroyed; otherwise, the contract should have so stated. While count I of the Joint Venture’s cross-claim against SEECO refers to a warranty of fitness for a particular purpose, the allegation that the leads “snapped and broke,” and the exhibits supporting that characterization, are sufficient to prevent categorizing loss of use of the crane and other equipment as an Exclusion (e)(2) breach of warranty as a matter of law. The extent of an exclusion essentially identical to the instant Exclusion (e) has been explained as follows:

“This exclusion distinguishes between a physical breakdown of the insured’s product and a mere failure of the product to perform as well as warranted, presumably because the latter is a typical business risk whereas the former is more likely to have catastrophic consequences. One commentator illustrates the distinction as follows:
A boiler sold and installed by the insured in a manufacturing plant fails to heat a quantity of water to the specified temperature, and the plant’s capacity is thereby reduced. There would be no coverage for the resulting loss. However, if the boiler suddenly and accidently breaks down, or explodes, without causing physical damage to other property, the loss of use of the plant would be covered. Defense Research Institute, Annotated Comprehensive General Liability Insurance Policy 50 (1979).” (Honeycomb Systems, Inc. v. Admiral Insurance Co. (D. Maine 1983), 567 F. Supp. 1400, 1407.)

We conclude that none of the elements of “property damage” which the judgment in favor of the Joint Venure against SEECO represents are excluded from coverage by Exclusion (e).

Summarizing the analysis to this point, we conclude that damage to the pile-driving rig, as such, is not excluded from coverage as a matter of law; the Joint Venture’s “intangible” or “economic” expenses, while not covered under the contract, are recoverable to the extent that such expenses provide a measure of damage to tangible property, i.e., the pile-driving rig; and the Joint Venture’s expenses attributable to the repair of the leads and hammer guides are not recoverable, as opposed to the expenses directly attributable to assembly and disassembly of the pile-driving rig pursuant to those repairs.

This conclusion leads us to the fourth and final inquiry, whether Fremont was entitled to summary judgment based on count II of its complaint for declaratory judgment. A summary judgment may be sustained upon any ground warranted by the record, irrespective of whether the particular reasons stated by the trial court are correct. See Sentry Insurance Co. v. S & L Home Heating Co, (1980), 91 Ill. App. 3d 687, 691, 414 N.E.2d 1218, 1222.

The Joint Venture urges that SEECO’s failure to forward suit papers does not permit Fremont to avoid liability under the insurance contract since Fremont suffered no prejudice thereby. Fremont argues that prejudice was inherent in the judgment it had no opportunity to defend against. The general rule is that an insurer is not bound by a judgment unless it had notice of the pendency of the action. (Clem mer v. Hartford Insurance Co. (1978), 22 Cal. 3d 865, 587 P.2d 1098, 151 Cal. Rptr. 285; Samson v. Transamerica Insurance Co. (1981), 30 Cal. 3d 220, 636 P.2d 32, 178 Cal. Rptr. 343.) However, as a matter of law on motion for summary judgment, Fremont’s claim of lack of notice does not entitle it to judgment because Fremont has not shown prejudice resulting therefrom. Clemmer v. Hartford Insurance Co. (1978), 22 Cal. 3d 865, 587 P.2d 1098,151 Cal. Rptr. 285.

Because this record does not reveal the extent of the judgment in favor of the Joint Venture against SEECO which was based on damages covered by the insurance contract, we must reject the Joint Venture’s argument that summary judgment in its favor was appropriate. For the same reason, we must reject the Joint Venture’s request for prejudgment interest.

For the foregoing reasons, the judgment of the circuit court of Monroe County is reversed, and this cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

HARRISON, J., concurring.

JUSTICE KARNS,

dissenting:

I do not believe that the components manufactured or sold by SEECO were so “intertwined” with the crane that damage to a new or different product, a “pile driving rig,” occurred under the reasoning of Pittway Corp. v. American Motorists Insurance Co. (1977), 56 Ill. App. 3d 338, 370 N.E.2d 127, and Elco Industries, Inc. v. Liberty Mutual Insurance Co. (1980), 90 Ill. App. 3d 1106, 414 N.E.2d 41, and cases therein cited. The attachment of the components manufactured or supplied by SEECO to the crane, which suffered no damage, did not result in “incorporation” or “integration” into a new structure or product which suffered damage. Elco Industries, Inc. v. Liberty Mutual Insurance Co. (1977), 46 Ill. App. 3d 936, 361 N.E.2d 589; Timberline Equipment Co. v. St. Paul Fire & Marine Insurance Co. (1978), 281 Or. 639, 576 P.2d 1244.

There has been no property damage within the coverage afforded by the policy, as the only property damage was to the insured’s products, which are all excluded from coverage under Exclusion (f). Unless there has been damage to tangible property within the policy coverage, there can be no recovery for economic loss occasioned by “down-time,” including those items included in count II of the Joint Venture’s complaint. Exclusion (e) excludes from coverage loss of use of tangible property which has not been physically injured or destroyed from the failure of the insured’s products to perform in a satisfactory manner.

I do not consider the pile-driving rig to be tangible property as an entity different from the components supplied by SEECO. Under Hogan v. Midland National Insurance Co. (1970), 3 Cal. 3d 553, 476 P.2d 825, 91 Cal. Rptr. 153, which discusses and explains the holdings of the earlier cases of Geddes & Smith, Inc. v. Saint Paul Mercury Indemnity Co. (1959), 51 Cal. 2d 558, 334 P.2d 881, and Geddes & Smith, Inc. v. Saint Paul Mercury Indemnity Co. (1965), 63 Cal. 2d 602, 407 P.2d 868, 47 Cal. Rptr. 564, there can be no recovery for intangible or economic loss under California law unless there is damage to tangible property other than that which has been manufactured or supplied by the insured.

In Hamilton Die Cast, Inc. v. United States Fidelity & Guaranty Co. (7th Cir. 1975), 508 F.2d 417, the court reasoned that the inclusion of a defective component, where no physical harm to the other parts results, did not constitute property damage under a general liability policy insuring against product liability property damage. In Yakima Cement Products Co. v. Great American Insurance Co. (1980), 93 Wash. 2d 210, 608 P.2d 254, the supreme court of Washington concluded that no intangible damage to tangible property within the policy coverage occurs unless there is proof that the value of the structure or entity into which the insured’s product was integrated was in some way diminished. This is in accord with the law of Hlinois. Sentry Insurance Co. v. S & L Home Heating Co. (1980), 91 Ill0. App. 3d 687, 414 N.E.2d 1218; Chambers Gasket & Manufacturing Co. v. General Insurance Co. of America (1975), 29 Ill. App. 3d 998, 331 N.E.2d 203.

The question of coverage aside, it seems to me that Fremont has demonstrated prejudice as a matter of law and should be relieved of any responsibility under the policy. It never received notice of the actions filed against SEECO, which suffered a default judgment to be entered against it. Fremont had no opportunity to contest the amount of damages assessed against it. In Pittway Corp. v. American Motorists Insurance Co. (1977), 56 Ill. App. 3d 338, 370 N.E.2d 1271, the court held that the facts established prejudice as a matter of law where the insured failed to notify the company to enable it to make an effective investigation of the claim asserted against the insured. I consider the conduct of the insured here much more egregious.


author: JUSTICE KASSERMAN

text:
    BRIAN W. HOLLO, Petitioner-Appellee, v. ANNA MARIE HOLLO, Respondent-Appellant.
    Fifth District
    No. 5—83—0749
    Opinion filed January 29, 1985.

      John P. Madden, of Gillespie, for appellant.
    Denis McGrady, of McGrady & McGrady, of Gillespie, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Respondent, Anna Marie Hollo, appeals from a judgment entered by the circuit court of Montgomery County dissolving the second marriage of respondent and petitioner, Brian W. Hollo.

The first marriage of the parties was dissolved on December 11, 1981. One child, Michael Brian Hollo, was born to the parties during their first marriage. The parties were remarried on June 25, 1982, and they separated on August 11, 1982, at which time respondent left the State with Michael to eventually take up residence in Leisure City, Florida. Petitioner commenced these proceedings on August 12, 1982, at which time both petitioner and respondent were 22 years old and Michael was 13 months old. Petitioner was employed as a correctional officer at the Graham Correctional Center in Hillsboro. Subsequent to their separation, respondent obtained employment as a nurse’s aide for Health Medical Systems in Miami, Florida.

The first issue raised by respondent’s appeal is whether the trial court erred in finding that respondent had, without cause or provocation by the petitioner, been guilty of extreme and repeated mental cruelty. The court also awarded custody of Michael to petitioner. Respondent challenges this portion of the judgment on the grounds: (1) that the circuit court lacked the jurisdiction to make a child-custody determination; (2) that in awarding custody the circuit court failed properly to consider all the relevant factors contained in section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 602); (3) that the court’s finding that it was in Michael’s best interest that the child be placed in the custody of petitioner is against the manifest weight of the evidence; and (4) that the trial judge was prejudiced against her.

The trial proceedings were conducted on a bifurcated basis, with the grounds being tried first. The only evidence introduced at the hearing on the grounds was the testimony of petitioner and his mother. That evidence is undisputed. Petitioner testified that six days after their second wedding on June 25, 1982, respondent informed him that their marriage was a mistake and that she was going to leave him as soon as she was able to acquire enough money to obtain a divorce. He testified that she repeated this threat some 30 times before she finally did leave on August 11, 1982. Petitioner testified that since their separation neither party had spoken to the other. The respondent has a minor daughter by another father. Petitioner testified that respondent would repeatedly remind him of this fact, particularly when petitioner would attempt to discipline the child. Petitioner also stated that on one occasion three or four days prior to their separation, respondent struck him and then threatened to kill him while he slept. Petitioner testified that respondent’s conduct caused him to feel helpless, with an uncomfortable anticipation but never the certainty of something happening.

The testimony of petitioner’s mother corroborated most of what petitioner had said. In particular, she testified that respondent’s conduct had caused her son to be “very, very nervous.” She testified that he could not sit still for any period of time. Further, she stated that once the respondent left, her son’s condition improved and he calmed down.

At the conclusion of petitioner’s mother’s examination, the trial judge stated that he had heard enough evidence. Respondent’s counsel had previously indicated no witnesses would appear on her behalf. After hearing the arguments of counsel for both petitioner and respondent, the circuit court found that, without cause or provocation by petitioner, respondent had been guilty of extreme and repeated mental cruelty. (Ill. Rev. Stat. 1983, ch. 40, par. 401(2).) At trial, and now again on appeal, respondent has argued that there was not sufficient evidence to support that finding.

Section 401 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 401) is authority for the circuit court to enter a judgment of dissolution of marriage if the court finds that, without cause or provocation by petitioner, respondent has been guilty of extreme and repeated mental cruelty. (Ill. Rev. Stat. 1983, ch. 40, par. 401(2).) The statute, however, provides no definition of mental cruelty. The reported decisions in cases where our courts have had occasion to consider the proof required to establish mental cruelty have employed such a variety of phraseology that we are drawn to the conclusion that a determination of whether given evidence constitutes proof of mental cruelty depends upon the particular circumstances present in each case. Furthermore, the assessment of these factors is best done by the circuit court. It is obvious to us that it is for this reason that great deference is given to circuit court findings as to the existence of the requisite mental cruelty, as in In re Marriage of Burrows (1984), 126 Ill. App. 3d 752, 467 N.E.2d 987, and In re Marriage of Naguit (1982), 104 Ill. App. 3d 709, 433 N.E.2d 296, or its absence, as in In re Marriage of Rittmeyer (1982), 107 Ill. App. 3d 892, 438 N.E.2d 237, and In re Marriage of Semmler (1980), 90 Ill. App. 3d 649, 413 N.E.2d 503.

Nevertheless, respondent urges that section 401 of the Illinois Marriage and Dissolution of Marriage Act requires the circuit court to refrain from entering a judgment of dissolution of marriage on the ground of mental cruelty unless the court finds that as a result of the conduct complained of the petitioner suffered actual tangible harm. None of the cases cited to us by respondent hold that suffering actual tangible harm is the sine qua non of mental cruelty. Indeed, had the courts made such a requirement, we would be hard pressed to then explain the results in cases such as In re Marriage of Burrows (1984), 126 Ill. App. 3d 752, 467 N.E.2d 987, In re Marriage of Nilsson (1980), 81 Ill. App. 3d 580, 402 N.E.2d 284, Morris v. Morris (1979), 70 Ill. App. 3d 125, 388 N.E.2d 129, Jackson v. Jackson (1974), 24 Ill. App. 3d 810, 321 N.E.2d 506, and Hayes v. Hayes (1969), 117 Ill. App. 2d 211, 254 N.E.2d 288. In each of these cases, under proof similar to the case now before us, a finding of mental cruelty was upheld on appeal. In these cases, both the conduct complained of as mental cruelty and the adverse effect thereof on the complaining spouse’s health were considered. In the case at bar, the respondent’s conduct was of a nature to fall well within accepted definitions of mental cruelty. The circuit court was able to observe the petitioner and gauge the effect of respondent’s conduct upon him and properly could have concluded that respondent’s conduct had an adverse effect upon petitioner’s mental health in spite of the absence of tangible physical harm. In view of the precedents of the above-cited cases, the trial court’s finding of mental cruelty in the instant case was not against the manifest weight of the evidence.

We next address the first of the several challenges respondent directs against the circuit court’s custody determination. Respondent’s first claim is that the circuit court lacked the jurisdiction to make a custody determination. By virtue of section 601 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 601), section 4 of the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1983, ch. 40, par. 2104) (hereinafter referred to as the UCCJA) governs jurisdiction of the court to make a child-custody determination. Little significant case law has developed under this section, and all of the cases respondent cites to this court are factually distinguishable. The law in force at the time these proceedings were commenced provided:

“(a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:
1. this State
(i) is the home state of the child at the time of commencement of the proceeding, or
(ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
2. it is in the best interest of the child that a court of this State assume jurisdiction because
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and
(ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
3. the child is physically present in this State and
(i) the child has been abandoned or
(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
4. (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs 1., 2., or 3., or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and
(ii) it is in the best interest of the child that this court assume jurisdiction.
(b) Except under paragraphs 3. and 4. of subsection (a), physical presence in this State of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination.
(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.” Ill. Rev. Stat. 1979, ch. 40, par. 2104.

The child over which this custody dispute centers was born to the parties in North Carolina on July 9, 1981, while petitioner was stationed there serving in the United States Marine Corps. In September of that year petitioner was discharged from the United States Marine Corps and returned to Illinois with respondent and their child. The parties’ first marriage was dissolved in December of the same year, at which time respondent returned to North Carolina with the child. Respondent and the child returned to Illinois in May of 1982. Petitioner and respondent were subsequently married for the second time on June 25, 1982. The parties separated on August 11, 1982, at which time respondent and the child left Illinois and went to New York, then to North Carolina and finally took up residence with the respondent’s mother in Florida on August 23, 1982. These proceedings were commenced by petitioner on August 12,1982.

At the outset, we note that at the time these proceedings were commenced on August 12, 1982, no State qualified under section 4(a)(l)(i) of the UCCJA (Ill. Rev. Stat. 1983, ch. 40, par. 2104(a)(l)(i)) as the child’s home State. Section 3.04 of the UCCJA defines the term “home state” and provides:

“ ‘Home state’ means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned, however, periods of temporary absence of any of the named persons are counted as part of the 6-month or other period.” (Ill. Rev. Stat. 1983, ch. 40, par. 2103.04.)

At the time these proceedings were commenced the child was 13 months old and had lived in both Illinois and North Carolina; however, he had not lived in either State for the six consecutive months necessary for either State to be considered his “home state.” By now Florida may have achieved home State status; however, the respondent and the child did not take up residence in Florida until after the instant proceedings were commenced. Consequently, Florida had not acquired jurisdiction over Michael Brian at that time. Furthermore, none of the jurisdictional prerequisites set forth in paragraphs 1, 2, or 3 of subsection 4(a) of the UCCJA (Ill. Rev. Stat. 1983, ch. 40, pars. 2104(a)(1), (2) and (3)) may be said to exist regarding the State of North Carolina. We conclude, therefore, that only the circuit court of Montgomery County, Illinois, had jurisdiction to make the child custody determination. See Ill. Rev. Stat. 1983, ch. 40, par. 2104(a)(4).

Application of paragraph 2 subsection 4(a) of the UCCJA (Ill. Rev. Stat. 1983, ch. 40, par. 2104(a)(2)) dictates a similar conclusion. The child and both his parents have a significant connection with Illinois, all having resided, as opposed to having been merely present, within Illinois immediately prior to the commencement of these proceedings. (Ill. Rev. Stat. 1983, ch. 40, par. 2104(a)(2)(i).) Petitioner’s continued residence in Illinois and the fact that he represents a potential custodian indicate that there is available within this State substantial evidence concerning the child’s future care. (Ill. Rev. Stat. 1983, ch. 40, par. 2104(a)(2)(ii).) The fact that the child is no longer physically present within the State is not fatal to the circuit court’s jurisdiction. Subsection 4(c) of the UCCJA states that the child’s physical presence within the State is not required. (See Ill. Rev. Stat. 1983, ch. 40, par. 2104(c); compare Ill. Rev. Stat. 1983, ch. 40, par. 2104(a)(2)(i) (“significant connection”) with Ill. Rev. Stat. 1983, ch. 40, par. 2104(a)(3) (“physically present”).) We conclude, therefore, that the trial court had jurisdiction to make the instant custody determination.

Respondent next challenges the custody award by claiming that the circuit court failed to properly consider all the relevant factors contained in section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 602). We disagree. Section 602 provides:

“(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved; and
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person but witnessed by the child.
(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.” (Ill. Rev. Stat. 1983, ch. 40, par. 602.)

The record on appeal amply reveals that the circuit court thoroughly considered all the relevant factors, including those contained in section 602 of the Illinois Marriage and Dissolution of Marriage Act, in determining custody. Respondent bases her claim on the fact that nowhere in the record does the circuit court recite that it considered any of the relevant factors; however, section 602 does not require that any such specific findings or recitals be made. There is compliance with the Act where the record contains sufficient evidence concerning the specified factors. (In re Marriage of Shedbalkar (1981), 95 Ill. App. 3d 136, 138, 419 N.E.2d 409, 410; In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617, 623, 402 N.E.2d 831, 835-36.) The circuit court heard testimony from the petitioner and the respondent, from petitioner’s supervisor and from the parties’ friends, neighbors and relatives. That testimony included information concerning each of the factors listed in section 602, and in our opinion constitutes a sufficient basis for the circuit court’s custody decision.

Of a somewhat related nature is respondent’s claim that the circuit court erred by failing to order, sua sponte, an investigation and report concerning the custodial arrangements for the child although she made no request for the same. The authority to order such investigations is granted by section 605 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 605). Subsection (a) thereof provides in part: “In contested custody proceedings, and in other custody proceedings if a parent or the child’s custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child.” The use of the word “may” indicates that the exercise of this power is within the court’s discretion. Thus, respondent’s claim must be interpreted as an allegation that the circuit court abused its discretion in failing to order such an investigation in the absence of a request by either party. In support of her position, respondent attempts to invoke the so-called “Muscarello Doctrine.” That doctrine, as enunciated in Muscarello v. Peterson (1960), 20 Ill. 2d 548, 555, 170 N.E.2d 564, 569, provides: “The court has a duty to see that the rights of an infant are adequately protected, and is bound to notice substantial irregularities even though objections are not properly presented on its behalf.” In the context of cases involving the custody of minor children this court has held that “[wjhen serious charges of neglect or abuse are addressed to the court, *** a duty devolves upon the court to satisfy itself that minor children who are its wards are being cared for in a proper manner and that they are not suffering neglect, abuse or privation.” (Layton v. Miller (1975), 25 Ill. App. 3d 834, 838, 322 N.E.2d 484, 487.) We find nothing of record in the case now before us that would require a court to proceed sua sponte to cause an investigation to be made. Therefore, since respondent made no specific request for such an investigation, the circuit court’s failure to order such an investigation was not an abuse of discretion.

Respondent also challenges the custody award by claiming that the circuit court’s award was against the manifest weight of the evidence. In cases involving custody we are constrained to observe a strong and compelling presumption in favor of the result reached by the trial court. (See In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 420 N.E.2d 555; Marcus v. Marcus (1974), 24 Ill. App. 3d 401, 320 N.E.2d 581.) The trial court is in a better position than a reviewing court to evaluate the credibility of the witnesses and the needs of the children in custody cases. (In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617, 625, 402 N.E.2d 831, 836.) Thus, only where the custody award is contrary to the manifest weight of the evidence will it be reversed. (In re Marriage of Yakin (1982), 107 Ill. App. 3d 1103, 436 N.E.2d 573; Soldner v. Soldner (1979), 69 Ill. App. 3d 97, 386 N.E.2d 1153.) Of the several witnesses that did testify, not a single witness expressed an opinion that either party was an unfit parent. The record reveals that both parties were concerned for the welfare of their child and were able to properly raise him. Under these circumstances, we conclude that the trial court’s decision was not against the manifest weight of the evidence.

The final error urged by respondent is that she did not receive a fair trial because the trial judge was prejudiced against her. However, we will not consider this issue, as it was not properly preserved for our review. Where any party fears that he or she will not receive a fair trial in the court in which the action is pending because the judge is prejudiced against him or her, that party should seek a change of venue. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1001.) Respondent made no such request. Therefore, we deem the issue waived. See Lannon v. Lamps (1980), 80 Ill. App. 3d 318, 327, 399 N.E.2d 712, 718.

For the foregoing reasons, the judgment of the circuit court of Montgomery County is affirmed.

Affirmed.

JONES, P.J., and WELCH, J., concur.