text:
    HATTIE WATTS, Plaintiff-Appellee and Cross-Appellant, v. THE BOARD OF EDUCATION, SCHOOL DISTRICT NO. 189, Defendant and Third-Party Plaintiff-Appellant and Cross-Appellee (State Board of Education, Third-Party Defendant).
    Fifth District
    No. 83—180
    Opinion filed June 18, 1984.
    Rehearing denied July 18, 1984.

      Edward L. Welch, of Edwardsville, for appellant.
    John W. Leskera and William L. Berry, both of Dunham, Boman & Leskera, of East St. Louis, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

This appeal and cross-appeal concern section 24 — 12 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12), relating to the removal or dismissal of teachers in contractual continued service. The controversy focuses on the requirement of section 24 — 12 that the State Board provide, within 10 days after receiving notice of hearing, a list of five prospective, impartial hearing officers. Section 24 — 12 provides in pertinent part:

“If a dismissal or removal is sought for *** cause ***, the board must first approve a motion containing specific charges by a majority vote of all its members. Unless the teacher within 20 days requests in writing of the board that no hearing be scheduled, the board shall schedule a hearing on those charges before a disinterested hearing officer on a date no less than 30 nor more than 60 days after the enactment of the motion. Written notice of such charges shall be served upon the teacher at least 21 days before the hearing date. Such notice shall contain a bill of particulars. The secretary of the school board shall forward a copy of the notice to the State Board of Education. Within 10 days after receiving this notice of hearing, the State Board of Education shall provide a list of 5 prospective, impartial hearing officers. Each person on the list must be accredited by a national arbitration organization. No one on the list may be a resident of the school district. The Board and the teacher or their legal representatives within 5 days shall alternately strike one name from the list until only one name remains. The teacher shall have the right to proceed first with the striking. *** The hearing officer shall hold a hearing and render a final decision.” Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12.

The plaintiff, Hattie Watts, a tenured teacher, was advised in a letter dated July 17, 1979, of the motion of the defendant, the Board of Education of School District 189, that she be dismissed for cause. The defendant scheduled a hearing on September 6, 1979, at 10 a.m. The plaintiff received the notice of hearing and bill of particulars on August 14, 1979. A copy of the notice of hearing reached the offices of the Illinois State Board of Education (hereafter referred to as State Board) on August 13, 1979, but the copy of the notice was lost at those offices. On September 4, 1979, the defendant sent a duplicate of the notice to the State Board and notified the plaintiff and the State Board that the hearing had been rescheduled on September 14, 1979, at 10 a.m. On or about September 5, 1979, the State Board sent a list of five prospective hearing officers. Counsel for defendant received the list on September 7, 1979, and counsel for plaintiff received the list on September 11, 1979. The following day counsel for plaintiff and defendant met to select a hearing officer for the hearing from the list of names submitted. At that time, apparently, counsel for plaintiff determined that one of the five prospective hearing officers on the list was deceased. Although the following fact is not included in the parties’ stipulation of facts, it is undisputed that counsel for defendant agreed to strike, as one of defendant’s two “strikes,” the name of the deceased prospective hearing officer listed. According to the stipulation of facts, “plaintiff’s attorney declined to proceed with the selection until five available arbitrators were provided.” On September 17, 1979, counsel for defendant received from the State Board the name of a substitute, and on September 18, 1979, counsel for plaintiff received the name of the substitute. By letter dated September 17, 1979, the defendant advised the plaintiff that it was ready to proceed with the selection of the hearing officer, achieved by the striking of four names on the list of five. However, plaintiff declined to proceed with the selection of the hearing officer and on September 21, 1979, in the circuit court of St. Clair County filed a petition for a writ of mandamus against defendant ordering reinstatement, back pay, and withdrawal of the “Notice of Charges and Dismissal dated July 17, 1979 and to be further barred from action on that Notice.” In the petition for writ of mandamus the plaintiff sought also attorney fees and costs and entry of “such other Orders and [granting of] such relief as justice may require.” Defendant subsequently filed a third-party complaint against the State Board.

Plaintiff moved for summary judgment. In an order filed March 9, 1981, the trial court denied the motion, finding “that plaintiff was not deprived of a substantial right or prejudiced by acts or omissions of either defendant.” Thereafter, by letter dated June 26, 1981, a copy of which is included as Exhibit 0 of the stipulation of facts, the plaintiff, through her attorney, asked that she be “given a hearing on the Notice of Dismissal previously filed by District 189.” By letter dated June 29, 1981, the defendant advised the plaintiff that it would consider her request at its meeting of July 20, 1981. In a letter dated July 9, 1981, included as Exhibit Q in the stipulation of facts, counsel for the State Board responded to a letter of plaintiff’s counsel dated June 26, 1981, in which counsel for plaintiff had requested “that the State Board of Education submit five prospective arbitrators ‘as required by the Illinois School Code.’ ” Counsel for the State Board expressed the view that the State Board’s obligation to provide a list of five prospective hearing officers does not arise until the secretary of a local school board forwards to the State Board written notice of a charge against a particular teacher. Counsel for the State Board was of the opinion that the State Board was not authorized by statute to act as plaintiff had requested. In a letter dated August 11, 1981, counsel for defendant notified counsel for plaintiff that the defendant had voted to deny the hearing plaintiff had requested.

In August of 1981 the motions for summary judgment of the defendant and third-party defendant were denied by the trial court. In October of 1981, with leave of court, the plaintiff filed an amended complaint for a writ of mandamus, in the first count of which the plaintiff sought what she had sought initially, that is, reinstatement, back pay, withdrawal of the notice of charges and dismissal dated July 17, 1979, with the defendant to be “further barred from action on that Notice,” attorney fees and costs, and entry of “such other Orders and [granting of] such relief as justice may require.” In the second count of the amended complaint for a writ of mandamus, the plaintiff sought an order,

“in the alternative to its prayer for recovery in Count I, as follows:
a) Compelling defendant to direct its Secretary to request the State Board of Education of Illinois to submit the names of five (5) potential arbitrators as required in the Illinois Revised Statutes;
b) To proceed with the scheduling of a hearing on the Notice of Dismissal prepared and forwarded by defendant.”

Following a hearing at which no evidence was taken, the parties having stipulated to the facts, in an order filed December 18, 1982, the trial court entered judgment in favor of the defendant and against the plaintiff as to count I except subparagraph (e) thereof, that is, the prayer for the court “[t]o enter such other Orders and grant such relief as justice may require.” The trial court found and ordered as follows:

“in) That there are conclusions in the stipulation herein that evidence which would have been produced at a September, 1979 hearing is now stale. However, there is no evidence in the stipulation that any evidence which would have been produced in 1979 is no longer available due to the passage of time, lapse of memory, or otherwise.
It is therefore ordered that School District 189 contact the State Board of Education immediately to determine whether or not the list of five arbitrators ultimately tendered in September of 1979 is still up to date and useable. If such is the case, then the parties herein are to complete the striking of names on such list within ten days of the date of this order. If the State Board advises that the list is not useable, then the State Board shall supply the parties with a new list within ten days of this date, and the parties thereafter to complete the striking of names within ten days of receipt of the new list.
The hearing officer so selected shall set a hearing date as soon as possible, but in no case later than forty-five (45) days of his selection.”

As to count II the trial court found that the granting of the plaintiff’s prayer for defendant to direct its secretary to request the State Board to submit the names of five arbitrators would be unnecessary “as there is still outstanding from September of 1979 the names of five potential arbitrators.” With respect of subparagraph (b) of the plaintiff’s prayer in count II, the trial court stated, “It would appear that, since more than 60 days has passed from the date of [the motion for dismissal], the authority for setting a hearing date would be vested in the hearing officer,” rather than in the defendant. For these reasons the trial court, as to count II, entered judgment in favor of the defendant and against the plaintiff.

Upon the defendant’s motion to reconsider, the trial court in an order entered on February 14, 1983, dismissed count II of the amended complaint and ordered

“the issuance of a Writ of Mandamus with respect to Count I only insofar as directing the defendant, School District No. 189, to perform its statutory duty of participating in the selection of an arbitrator to hear the merits of the plaintiff’s claim that she was wrongfully terminated by defendant, School District No. 189.”

From this order the defendant has appealed, praying that this court “reverse” the order. The plaintiff has cross-appealed, praying that we reverse the order insofar as it denied the prayer for writ of mandamus for reinstatement. The State Board takes no part in the appeal.

The plaintiff contends that the procedural requirements set forth in section 24 — 12 are jurisdictional and that failure to comply strictly with those procedural requirements “divests the local board of education, the hearing officer, and the State Board of Education of jurisdiction” to consider the dismissal of a tenured teacher. Hence, plaintiff maintains, reinstatement together with compensation in the amount of lost salary must be accorded her. Plaintiff takes the position that the statute requires the hearing to have been held, and not merely to have been scheduled, during a time not less than 30 nor more than 60 days after the approval of the board’s motion for dismissal. Since the hearing was scheduled but not held during that time, plaintiff argues that once 60 days had passed from the time the board approved the motion for dismissal on July 17, 1979, the defendant lacked jurisdiction to proceed with the selection of the hearing officer, beyond, apparently, September 15, 1979. The plaintiff argues further that the State Board’s failure to provide a list of five living prospective, impartial hearing officers within 10 days of receiving the notice of hearing similarly rendered the defendant without authority to proceed with the selection of a hearing officer. The issue of jurisdiction and the arguments advanced by the parties with respect to that issue apply to both the direct appeal and the cross-appeal.

The plaintiff relies heavily on Neal v. Board of Education (1977), 56 Ill. App. 3d 10, 371 N.E.2d 869, and Smith v. Board of Education (1979), 75 Ill. App. 3d 186, 394 N.E.2d 41, both of which, however, involved section 24 — 12 prior to its amendment in 1975 to provide for a hearing, no longer by the local board of education, but by an independent hearing officer. The statute involved in Neal and Smith provided in pertinent part:

“If the dismissal or removal is for any other reason or cause it does not become effective until approved by a majority vote of all members of the board upon specific charges and after a hearing, if a hearing is requested in writing by the teacher within 10 days after the service of notice as herein provided. Written notice of such charges shall be served upon him at least 60 days before the effective date of his dismissal or removal. *** The effective date of the dismissal or removal shall be after November 1 and before the close of the school term. The hearing shall be held and the decision rendered before the effective date of dismissal or removal ***.” (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 122, par. 24-12.)

In Neal we held that the section “in clear and unambiguous language mandates that the dismissal must be at least 60 days after the service of the notice, after a hearing is requested, and between November 1 and the close of the school term.” (Neal v. Board of Education (1977), 56 Ill. App. 3d 10, 12-13, 371 N.E.2d 869, 872.) In Neal the board had sent the teacher a notice of charges and dismissal on March 27, 1975, notifying her of her dismissal, effective immediately, for cause. The hearing was not held until September 2, 1975. Accordingly, we found that the plaintiff had been dismissed in a manner violating the statutory time requirements for dismissal mandated by section 24 — 12 and that the dismissal was void. In Smith, in which the board did not hold a hearing prior to the end of the school term in question or at any time thereafter, we held that the board had the duty to hold the hearing before the close of the school term for the school year in question. Because of the board’s failure to do so, the writ of mandamus for reinstatement of the teacher was properly issued. In both Neal and Smith we stated that under the School Code a tenured teacher can be dismissed for cause, but the dismissal can be accomplished only by following the procedures prescribed in section 24 — 12.

The plaintiff relies also upon Carter v. State Board of Education (1980), 90 Ill. App. 3d 1042, 414 N.E.2d 153, which concerns section 34 — 85 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 34 — 85), relating to schools in Chicago. As was indicated in Chicago Teachers Union v. Board of Education (1973), 14 Ill. App. 3d 154, 301 N.E.2d 833, the requirements set forth in section 24 — 12 apply to schools outside Chicago and do not apply to the schools of Chicago, which are covered by article 34 of the School Code. In the same way, the requirements set forth in section 34 — 85 apply to schools in Chicago and do not apply to schools outside Chicago. Consequently, Carter does not apply to the case at bar.

The purpose of the amendment to section 24 — 12 requiring an independent hearing officer is to avoid inequities that may result from a local school board’s hearing and deciding a case in which the board had already made an initial decision to discipline the teacher, having already passed a motion containing specific charges against the teacher. (Craddock v. Board of Education (1979), 76 Ill. App. 3d 43, 391 N.E.2d 1059.) In Johnson v. Board of Education (1981), 85 Ill. 2d 338, 344, 423 N.E.2d 903, 906, which presented a question concerning the dismissal of a second-term probationary teacher, the supreme court recently had occasion to comment upon the intent of the legislature in enacting section 24 — 11 (Ill. Rev. Stat. 1977, ch. 122, par. 24— 11), relating to contractual continued service of teachers, and section 24 — 12, with which we are here concerned:

“One objective of teacher tenure is ‘to assure continuous service on the part of teachers of ability and experience.’ (Lenard v. Board of Education (1979), 74 Ill. 2d 260, 268.) The tenure system is, we believe, intended to provide continuity and stability for students; provide some degree of job security, thus affording teachers the ability to pursue a career free from arbitrary hiring and firing; attract teachers of high quality; and retain experienced teachers. Since, however, the statutes create liabilities where none would otherwise exist, they must be strictly construed in order not to unduly interfere with the responsibility of local boards to efficiently operate the educational systems. Illinois Education Association Local Community High School District 218 v. Board of Education (1975), 62 Ill. 2d 127.” Johnson v. Board of Education (1981), 85 Ill. 2d 338, 344.

As we stated, the amended statute expressly requires the board to “schedule” a hearing on the charges before a disinterested hearing officer on a date no less than 30 nor more than 60 days after the enactment of the motion for dismissal. The board must serve notice upon the teacher at least 21 days before the date of the hearing date, and, at no specified time, forward a copy of the notice to the State Board, which is to provide, within 10 days of the receipt of the copy of the notice, a list of five prospective, impartial hearing officers. Within five days the local board and the teacher, or his or her legal representative, are to strike four of the five names from the list in order to ascertain the name of the hearing officer who “shall hold a hearing and render a final decision.” In order to select an impartial hearing officer, the statute implicitly requires a certain amount of interaction on the part of several persons and entities, including the local board, the State Board, the teacher himself or herself, or his or her legal representative, as well as the impartial hearing officer who is ultimately chosen. The logistics have necessarily become somewhat more complicated, compared with the local board’s scheduling and conducting the hearing, as happened prior to amendment. The statute specifies no time by which the hearing officer is to hold the hearing or to render a final decision. The legislature has provided a time frame for the selection of the hearing officer in which his or her name might not be known until but a few days before the expiration of the 60-day period following enactment by the local board of the motion for dismissal. Selection of the hearing officer as late in the 60-day period as the legislature permits may well mean that the schedule of the hearing officer chosen would not permit him or her actually to hold the hearing within the days remaining in the 60-day period. According to the plaintiff’s analysis, a teacher would have to be reinstated, for lack of jurisdiction, each time a hearing officer so selected could not hold the hearing within the amount of time remaining, however short. We do not think that the legislature intended such a result.

We find the observation of the supreme court in Donahoo v. Board of Education (1952), 413 Ill. 422, 426, 109 N.E.2d 787, 789, quoted by us in Neal v. Board of Education (1977), 56 Ill. App. 3d 10, 13, 371 N.E.2d 869, 872, of equal force here:

“The province of the courts is not to legislate but to interpret. We cannot read out of the statute words which the legislature has placed therein any more than we can read into the statute words which are not within the manifest intention of the legislature as determined by the statute itself.”

The need for and wish of the legislature for a prompt hearing before an impartial hearing officer on charges against a tenured teacher is plain. That purpose, however, would not be defeated by the failure of the State Board to provide a list of five prospective, impartial hearing officers precisely within the 10-day period. Conceivably such a delay would cause no delay at all in the holding of the hearing as scheduled. Conceivably the schedule of the hearing officer selected would necessitate a continuance of the hearing scheduled by the local board until some time after the expiration of the 60-day period. We doubt that the legislature would require the work of compliance with a procedure as elaborate as the one provided here to go for nought because of an almost inevitable and predictable scheduling conflict. The interests of no one, neither the school board, nor the teaching profession, nor the general public, would be served by such an interpretation.

Therefore, we must disagree with the plaintiff that the legislature intended that the failure to provide the list of five prospective hearing officers within the 10-day period or the failure to hold the hearing within the 60-day period would bar the holding of the hearing at all. We conclude that the legislature intended the local school board to schedule the hearing within the 60-day period, as the statute specifies and as was done here, and did not intend that the hearing would have actually to be held by the independent hearing officer within that period of time or not at all. That being the case, the defendant did not lack jurisdiction to continue with the selection of the hearing officer, and the trial court correctly denied the plaintiff’s prayer for reinstatement in count I of her amended complaint for a writ of mandamus. Hence, the plaintiff cannot prevail as to her cross-appeal.

Before we turn to a consideration of the relief the trial court granted to the plaintiff, namely, the issuance of a writ of mandamus directing the defendant to participate in the selection of an arbitrator, we feel constrained to say that the proceedings of this case at the trial level and on appeal have been accompanied by considerable procedural drift. Although the plaintiff did not in her complaint for writ of mandamus or in count I of her amended complaint therefor expressly challenge the jurisdiction of the board, she did make such a challenge implicitly by seeking a writ of mandamus for reinstatement and back pay. We note that a party need not exhaust his or her administrative remedies before he or she may challenge the jurisdiction of an administrative agency. (Sherman v. Board of Fire & Police Commissioners (1982), 111 Ill. App. 3d 1001, 445 N.E.2d 1; Head-On Collision Line, Inc. v. Kirk (1976), 36 Ill. App. 3d 263, 343 N.E.2d 534; Horan v. Foley (1963), 39 Ill. App. 2d 458, 188 N.E.2d 877.) Thus, it was not necessary that the plaintiff exhaust her administrative remedies before challenging the jurisdiction of the board. However, we likewise note that the plaintiff could have participated in the selection of the arbitrator and in the hearing on the merits of her dismissal but still could have challenged the jurisdiction of the board either at the same time, through a complaint for writ of mandamus for reinstatement, or at a later time, upon judicial review. Certainly the defendant expressed great willingness and determination to proceed with the hearing on the merits, being willing, initially, to sacrifice one of its own two “strikes” by striking the name of the deceased person on the list of five names and, later, obtaining the name of a substitute from the State Board after the plaintiff expressed an unwillingness to allow the defendant to strike the name of the deceased arbitrator. The plaintiff, had she not arbitrarily chosen not to do so, could have availed herself of a prompt hearing on the merits before an independent hearing officer with relatively little expense to herself and no prejudice to her jurisdictional challenge. As we now know, plaintiff erred in her assessment of the defendant’s want of jurisdiction to proceed with the selection of a hearing officer, and although she need not have exhausted her administrative remedies in order to challenge the board’s jurisdiction, we do not think that she should, several years after the events complained of, be allowed to resume a process she chose arbitrarily to abandon when the fairness of the proceeding was, because of its proximity in time to those events, most nearly assured to all concerned. Although the plaintiff did undertake to resume the selection of a hearing officer in June of 1981, almost two years after her refusal to proceed with that selection, as opposed to the delay of nearly five years that has by now occurred, we notice that the plaintiff made overtures to continue the selection process only after her motion for summary judgment had been denied and she had apparently begun to fear that she might not prevail in her implicit jurisdictional attack. The plaintiff, who erred in her assessment of the board’s lack of jurisdiction and who arbitrarily refused to participate further in the administrative process at the time most advantageous to all concerned, must now accept the consequence of her arbitrary refusal and abandonment of the administrative process.

For these reasons the judgment of the trial court is reversed as to the issuance of the writ of mandamus directing the defendant to participate in the selection of an arbitrator and is otherwise affirmed.

Reversed in part; affirmed in part.

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


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    LORRAINE M. KING, Plaintiff-Appellee and Cross-Appellant, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Defendant-Appellant and Cross-Appellee.
    Third District
    No. 3—83—0401
    Opinion filed July 6, 1984.

      Phillip B. Lenzini and Charles G. Roth, both of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria, for appellant.
    Robert S. Calkins, of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

This is an appeal from a directed verdict in favor of plaintiff Lorraine M. King entered in the circuit court of Peoria County in a cause to recover life insurance benefits under a group policy issued by defendant Equitable Life Assurance Society to cover employees of the city of Peoria.

Plaintiff’s husband, Gerald King, was a Peoria police captain in charge of the traffic division who was injured in a fall occurring while he was on duty on January 4, 1979. King’s injuries, which included a broken neck, required that he be hospitalized in traction for a time and further greatly hampered his mobility after he was discharged from the hospital. He was placed on “Injured On Duty” status (IOD) and continued to receive his full salary for 90 working days following the accident. On May 15, 1979, he was placed on disability pension status, where he remained until his death on January 5, 1980, from causes unrelated to the accident.

Effective April 1, 1979, Equitable’s group insurance policy insuring members of the police department was amended to increase life insurance benefits from $1,000 to $6,000 for all employees. At the time that amendment took effect, King was on IOD status, which means that his name still appeared on the active duty roster, he was still subject to all the rules and regulations of the department, and on April 6, 1979, he received his annual $200 allowance for the expense of carrying weapons.

The insurance policy provided that while an employee was disabled, the insurance protection would be the amount for which he was last insured under the group life insurance plan prior to the discontinuance of active work. The insurance booklet given to each employee, which was a part of the policy, indicated that the increased benefits were effective as to all employees on April 1, 1979, and also stated:

“If you are absent from work on the day on which your insurance would normally begin, you will become insured on the day you return to active work.”

Another pertinent provision of the policy provides that an employee’s insurance will cease automatically when his employment terminates. The policy also states:

“Cessation of active work by an employee shall be deemed to constitute the termination of his employment except that ***
(b) in the case of Life and Accidental Death and Dismemberment Insurance, an employee, absent from active work because of injury or sickness may be regarded as still in the employment of the Policyholder for the full period of such absence until the effective date entered on the insurance records maintained in connection with this policy ***.”

Although King never returned to full-time active duty, Equitable obviously considered that he was an employee on the date of his death, since his widow was tendered benefits of $1,000 plus interest which she refused. Plaintiff filed this suit to recover $6,000, and in the course of the trial before the jury, plaintiff produced several witnesses who related the number of conferences, phone calls, police reports, and other police business which King transacted from his home both before and after April 1,1979.

At the conclusion of all the evidence the trial court granted plaintiff’s motion for directed verdict, ruling that the insurance policy was ambiguous and must be construed against the insurer. The court allowed plaintiff 6% interest on the proceeds of the policy from the date of death and denied plaintiff’s motion for taxation of costs as a penalty for defendant’s allegedly unreasonable and vexatious refusal to pay the amount owed.

On appeal, defendant asserts three errors: (1) that the trial court erred as a matter of law in construing the contract; (2) that the question whether King returned to work after April 1, 1979, was a question of fact for the jury; and (3) that defendant should have been ordered to pay no more than 5% interest.

Defendant first argues that the contract was not ambiguous since the provisions relating to the date the increased benefits took effect should be construed together to mean that the increase in benefits are payable to all persons employed by the city of Peoria on April 1, 1979, providing they are at work on that date, and any employee absent from work on April 1 will become insured in the increased amount on the day he returns to active work. We agree that the provisions should be read together, but when we do so, we find that there is still an ambiguity. The policy does not define “active work” and therein lies the ambiguity.

The rule of law in Illinois in such cases is that the issue of whether an ambiguity exists is a question of law, and further that the construction of an insurance contract presents an issue of law only, not submissible to a jury. (E.g., Voss v. Associated Life Insurance Co. (1976), 36 Ill. App. 3d 105, 343 N.E.2d 174.) Thus the determination of whether an ambiguity exists here was properly made by the trial court as a question of law.

Once that determination was made, a special rule of construction applies in the case of insurance policies. In Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 379, 400 N.E.2d 921, 923, the Illinois Supreme Court stated:

“[Wjhere language in an insurance policy is subject to different interpretations such ambiguity is to be construed in favor of the insured, and not the insurance company, which drafted the contract of insurance.”

Here the trial court stated that the provisions of the policy were to be construed against defendant, who wrote the policy, and that the provisions relating to effective date are difficult to apply “because of the lack of any clear language or definitions.” We agree.

Many cases have been cited to us where insureds were found to qualify for life insurance benefits even though they were disabled to such an extent that they were at home or even in the hospital, and we have been cited to other cases denying benefits. (See Annot., 59 A.L.R.3d 993 (1974).) None of those cases involved a police officer.

When we look at the evidence presented in this case, we see that after April 1, 1979, King continued to perform some work in connection with his supervisory duties as police captain in charge of the traffic division. He resolved personnel problems, received oral reports of investigations, gave advice to subordinate police officers, called other officers in the department about police matters, made recommendations for training assignments, and was on call for large fires or other emergencies. In addition, King was involved in a dispute with some people who allegedly harassed him and his wife and threatened harm to his home. In the course of the incident, King had taken possession of a bicycle and attempted to make an arrest. Although the police superintendent testified that he considered King to be a witness and not on active duty with regard to that incident, he nonetheless at the time directed King to prepare an official report on police department forms. Presumably witnesses do not ordinarily make official police reports.

The former superintendent of police, who testified for defendant, also testified that King was “an active duty employee” prior to obtaining his disability pension on May 15, 1979. As indicated earlier, police officer King had a special status, termed “Injured On Duty,” both before and after April 1, 1979, and he was on the active duty roster and receiving full pay on April 1, 1979. Though that status was not full-time work at the station, the policy did not specify full-time work as a condition for receiving increased benefits — only “active work.”

Defendant contends that the question of what constituted “active work” was a question of fact which should have been submitted to the jury. We believe not here. In defining those words, the trial court was construing the policy, and that was an issue of law for the court, as we stated earlier. The term “active work” can logically mean the performance of some police duties, not necessarily full time and not necessarily away from home. We believe the trial court’s construction was reasonable under the policy in question. Considering the undisputed testimony detailing work-related conversations and actions taken by King after his injury, we find that a directed verdict in favor of plaintiff was warranted.

The judgment entered by the trial court awarded plaintiff $6,000 plus 6% interest from the date of death. Defendant argues that the court erred and that the interest should have been 5% from the date of furnishing proof of death. Section 224 of the Illinois Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 836(1)(1)) provides for 6% interest on life insurance proceeds other than industrial, group, and annuities. Thus group life insurance of the kind involved in this case is expressly excluded from the statute and, therefore, the general interest statute (Ill. Rev. Stat. 1983, ch. 17, par. 6402) applies. Under that statute, plaintiff would be entitled to only 5% interest beginning with the date when proof of death was furnished. Supreme Lodge A.O.U.W v. Zuhlke (1889), 129 Ill. 298, 21 N.E. 789.

Although the exact date when proof of death was furnished does not appear in the record, one exhibit introduced by plaintiff at trial is a letter from defendant dated March 5, 1980, indicating that a notice of death dated January 30, 1980, had been received by defendant. In the absence of other evidence, we assume that defendant had notice of death by March 5, 1980, and that interest is owing from that date in any event. In summary, we hold that the trial court erred in awarding 6% interest, and we reverse that portion of the judgment. We remand this cause for a determination of interest as directed in this opinion.

Plaintiff has cross-appealed from the order of the trial court denying her petition to assess costs against defendant under section 155 of the Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 767) which permits the court to tax costs where there was an issue as to the amount of the loss payable and it appears to the court that the company’s action or delay was vexatious and unreasonable. Plaintiff argues that defendant acted unfairly in that it refused to provide a copy of the insurance policy prior to the filing of this lawsuit and that the company twice offered plaintiff $1,000 to settle her claim. Plaintiff insists that the penalty is clearly warranted and that the trial court erred by not holding a special hearing on her petition as well as by denying the petition.

In a case involving the same statute, this court observed in Eike v. Central National Life Insurance Co. (1970), 129 Ill. App. 2d 28, 35, 262 N.E.2d 338, 342:

“[T]he purpose of the statute is not to allow attorney’s fees simply because a defendant-company was unsuccessful in litigation. In the cause before us there were issues and ambiguities to be resolved.”

We then reversed the costs allowed by the trial court.

Like Eike, in the case before us, there were also “issues and ambiguities” in the contract language which had to be resolved. Defendant should not be penalized for choosing to litigate those issues. As to defendant’s refusal to furnish the full policy until after the complaint was filed, we believe it was properly within the discretion of the trial court to decline to impose a penalty for the delay. We note that plaintiff did not have to amend her complaint after seeing the full policy, and we are not aware of any prejudice to plaintiff resulting from the company’s action. Under the circumstances, the trial court did not abuse its discretion in deciding to deny costs after hearing arguments of counsel and without further hearing. See Kerouac v. Kerouac (1981), 99 Ill. App. 3d 254, 425 N.E.2d 543.

Affirmed in part, reversed in part, and remanded with directions.

HE IRLE and SCOTT, JJ., concur.


author: JUSTICE HEIPLE

text:
    SANDRA D. HOFMANN, Petitioner-Appellee, v. ROGER WILLIAM HOFMANN et al., Respondents-Appellants.
    Third District
    No. 3-83-0770
    Opinion filed June 29, 1984.

      Peter H. Lousberg, of Lousberg, McClean, Snyder & Schwarz, of Rock Island, for appellant.
    Franklin S. Wallace, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This is the second appeal in this case. In 1979, the circuit court dissolved the parties’ marriage and distributed the marital property. We reversed and were later reversed by the supreme court. The cause was remanded and the respondent, Roger Hofmann, appeals from the result on remand.

The trial court has entered a total of three orders in this case valuing and distributing the marital property. The primary controversy revolves around the marital or nonmarital status of two parcels of farmland known as the McManus Farm and the Sackville Farm. In order to fully understand the respondent’s arguments, we will summarize the orders entered in this cause.

In October of 1979, the trial court entered an order which designated the following as marital property:

Sackville Farm $430,000

Farm equipment 51,000

Corn 19,000

Arizona lot 4,300

$504,300

Petitioner’s Share (30%) $151,290

McManus Farm was found to be nonmarital property. Maintenance and attorney fees were not awarded to the petitioner.

After the 1979 order was appealed, the Illinois Supreme Court remanded the cause and directed the trial court to revalue the Sackville Farm due to decreases in farm prices and to reconsider the nonmari-tal status of the McManus Farm. The court was also directed to revalue the corn equity and to reconsider the adequacy of the petitioner’s 30% share in the event the farm property was devalued. Designation of the Sackville Farm as marital property was affirmed as was the denial of maintenance and attorney fees. On remand, the trial court made the following disposition in an order entered in June of 1983:

Sackville Farm $387,600

McManus Farm 168,000

Farm equipment 51,000

Corn 9,750

Arizona lot 4,300

$620,650

Petitioner’s share (30%) $186,195

Plus attorney fees 15,000

$201,195

The court reduced the market value of Sackville Farm by 15% but added to the marital equity the amount paid as rent by the respondent after the marriage was dissolved in 1979. The rent was added because the respondent had originally purchased Sackville Farm from his parents on an installment contract. The respondent defaulted, and the farm reverted to his parents. The respondent continued to farm the property and paid rent to his parents. During the former appeals it was determined that this forfeiture and transfer was an attempt to fraudulently deprive the petitioner of her marital property interest in the farm. The trial court reasoned that the rent payments to the respondent’s parents were actually a reduction in indebtedness and served to increase the marital equity in Sackville.

The June 1983 order declared that the McManus Farm was marital property and also reduced the corn equity. The petitioner’s share of the marital property was left at 30%. The court denied maintenance but awarded attorney fees. By agreement of the parties, the petitioner’s award was designated as maintenance in gross for tax purposes.

On rehearing, the court modified the above distribution in an order entered in October of 1983, which is the subject of this appeal:

Sackville Farm $331,600

McManus Farm 30,000

Farm equipment 51,000

Corn 9,750

Arizona lot 4,300

$426,650

Petitioner’s share (45%) $191,992.50

Plus attorney fees 15,000.00

$206,992.50

The court reversed its erroneous decision to add the husband’s rent payments to the Sackville Farm equity. Based on an amendment to section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 503) enacted in August of 1983, the trial court reclassified the McManus Farm as nonmarital property and credited the marital estate for a $30,000 contribution to the farm made while the parties were married. The trial court found that the petitioner was entitled to compensation for the five years during which the respondent had exclusive use of the marital property while this case was being appealed. Instead of awarding equitable interest, the court increased the petitioner’s share of the marital property by 15%. The award of attorney fees, denial of maintenance and designation of the petitioner’s award as maintenance in gross were left intact.

The respondent first argues that the Sackville Farm should be reclassified as nonmarital property based on the same 1983 amendment to section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, sec. 503) which caused the court to reclassify the McManus Farm as nonmarital property.

The petitioner contends that the Sackville Farm was conclusively determined to be marital property during the former appeal based on existing law. That determination now constitutes the law of the case. The petitioner states that the new law was properly applied to the McManus Farm because the former appeal had not settled that issue and because the Illinois Supreme Court had expressly directed the trial court to reconsider the status of McManus.

The respondent argues that the determination of a question on a former appeal is not the law of the case when a higher court during the interval between appeals has announced a contrary law. (Presbyterian Distribution Service v. Chicago National Bank (1962), 36 Ill. App. 2d 1.) The respondent contends that this rule should also apply to legislative changes such as the amendment of section 503. We are of the opinion that a legislative change in the law during the pendency of multiple appeals would have the same effect as a contrary law announced by the Illinois Supreme Court. Therefore, the status of the Sackville Farm should be reevaluated in light of the amendment to section 503. However, we are not free to make new determinations as to factual matters passed upon by the Illinois Supreme Court unless the new law so requires.

The respondent argues that section 503(e) of the 1983 statute now authorizes the 1978 transfer of the Sackville Farm to his parents following respondent’s default. Regardless of whether this is a correct interpretation of section 503(e), the respondent ignores the fact that the Illinois Supreme Court has ruled that there was no bona fide transfer but that the entire transaction was a collusive attempt to defraud the petitioner of her inchoate marital interest in the farm. (Hof-mann v. Hofmann (1983), 94 Ill. 2d 205, 225.) The amendment to section 503 does not require us to reexamine the fraud issue, and the Illinois Supreme Court’s decision thereon is binding.

The respondent also argues that the Sackville Farm was essentially a gift in its price and financing from his parents and is therefore nonmarital by that measure. To the extent any marital income was contributed to the Sackville Farm, the marital estate should be reimbursed for that amount pursuant to section 503(c)(2). (Ill. Rev. Stat. 1983, ch. 40, par. 503(c)(2).) Again, the respondent ignores the fact that the Illinois Supreme Court has conclusively determined that the Sackville Farm was not a gift in whole or in part but was marital property at the time it was acquired. (Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 218.) The 1983 amendment does not change the fact that property acquired during the marriage (as was Sackville) is presumed to be marital property. Nor does the amendment have any effect on the question of when a transfer of property is considered to be a gift so as to rebut the presumption of marital property. Therefore, the Illinois Supreme Court decision on this issue is controlling. Accordingly, the trial court did not err in refusing to reclassify Sackville Farm.

Next, the respondent argues that the trial court abused its discretion by increasing the petitioner’s share of marital property. The statutory criteria for division of marital property are found in section 503(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(b)). The objective of this section is to achieve a division of property which is in just proportions. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31.) The division of marital property is a matter left to the discretion of the trial court. (In re Marriage of Sales (1982), 106 Ill. App. 3d 378, 380.) We have examined the record and find that the trial court’s division is not contrary to the manifest weight of the evidence.

The Illinois Supreme Court directed the trial court to reconsider the adequacy of the petitioner’s award in light of any decrease in the value of the Sackville Farm. This farm was reduced in value by 15%. Also, the respondent has had exclusive use of all of the marital property since 1979. We find that a 15% increase in the petitioner’s share of the marital property was a fair and accurate response to these changed conditions. We affirm the trial court’s property division.

Next, the respondent argues that the court abused its discretion in awarding attorney fees to the petitioner. The issue of attorney fees was discussed by the Illinois Supreme Court during the prior appeal. The trial court had denied attorney fees, and the Illinois Supreme Court affirmed finding that the petitioner had not demonstrated that she was unable to pay her own attorney fees or that the respondent was in any better financial position to do so than she was. (Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 229.) In the absence of a change in the facts, the Illinois Supreme Court decision on this issue was binding on the trial court.

We have examined the record on remand and find that although the petitioner’s attorney fees may have increased, so did her share of the marital property. To the extent there has been a change in the facts, it favors the conclusion that the petitioner is able to pay her own attorney fees. We find no new evidence in support of the trial court’s award of attorney fees to the petitioner. Therefore, the determination of the Illinois Supreme Court in the prior appeal is conclusive. We reverse the award.

The final issue involves the designation of the petitioner’s property award as maintenance in gross pursuant to agreement of the parties. The respondent argues that the right to maintenance terminates upon remarriage. (Ill. Rev. Stat. 1981, ch. 40, par. 510.) Since the petitioner has remarried, her award of maintenance in gross should be reduced. The trial court found that this argument was spe-cions and of no value. We agree.

The phrase “maintenance in gross” is simply another name for the petitioner’s award of marital property and was employed solely for tax purposes. Periodic maintenance was denied. Under these circumstances, the petitioner’s remarriage does not constitute grounds for a modification of the property distribution.

The judgment of the circuit court of Mercer County is reversed as to the award of attorney fees. In all other respects, the judgment is affirmed.

Affirmed in part; reversed in part.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
    REYNOLDS METALS COMPANY, Plaintiff-Appellant, v. V. J. MATTSON COMPANY, Defendant-Appellee.
    Third District
    No. 3—83—0531
    Opinion filed July 6, 1984.

      Masters & Stukel, of Joliet, for appellant.
    James E. Garrison, of Garrison, Fabrizio & Hanson, Ltd., of Joliet, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff-appellant, Reynolds Metals Company (Reynolds), appeals from an order of the circuit court of Will County granting a motion to dismiss made by the defendant-appellee, V. J. Mattson Company (Mattson).

In 1979, a complaint was filed against Reynolds under the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.). In the same action, Reynolds filed a multiple count third-party complaint against Mattson seeking indemnification by alleging, inter alia, breach of contract for failure to provide insurance pursuant to the terms of a construction contract between the parties. The trial court granted Mattson’s motion to dismiss this third-party complaint, but also granted Reynolds leave to file an amended third-party complaint.

Reynolds’ amended third-party complaint was again multiple count; however, the breach of contract count failed to allege the theory of failure to provide insurance. Instead, Reynolds alleged breach of contract on Mattson’s part for failure to indemnify Reynolds for Structural Work Act violations. A summary judgment in favor of Mattson was entered as to the amended complaint. No appeal was taken from this order although the underlying claim was settled and the case terminated.

Thereafter, on August 23, 1982, Reynolds filed the present action against Mattson seeking total indemnification for the settlement. The present complaint alleges, inter alia, breach of contract for failure to provide insurance pursuant to the terms of the construction contract. The trial court originally denied Mattson’s motion to dismiss the present action because it found that as the trial court in the third-party proceeding had entered summary judgment on the basis of the amended third-party complaint which did not allege a theory of failure to provide insurance, the present action was not barred by the doctrine of res judicata. Subsequently, Mattson filed a motion to reconsider this ruling and to dismiss the complaint, which was granted.

Reynolds contends the complaint in the present action alleges a distinct cause of action not litigated in the previous third-party claim; there was no adjudication on the merits in the previous litigation for failure to supply insurance; and the doctrine of res judicata does not apply to an abandonment of a cause of action. Mattson contends the complaint in the present action is barred by virtue of the order granting summary judgment in favor of Mattson in the previous third-party proceeding and the doctrine of res judicata is applicable to the abandonment of a cause of action.

The issue on appeal is whether the doctrine of res judicata is a bar to the present action. For the following reasons, we hold that it is a bar and, therefore, we affirm the decision of the trial court.

Under the doctrine of res judicata, a final judgment on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitute an absolute bar to a subsequent action involving the same claim demand or cause of action. (People v. Kidd (1947), 398 Ill. 405, 408, 75 N.E.2d 851, 853.) The doctrine of res judicata is divided into the doctrines of estoppel by judgment and estoppel by verdict. (City of Elmhurst v. Kegerreis (1945), 392 Ill. 195, 64 N.E.2d 450.) Estoppel by judgment applies in all cases where the second suit is upon the same cause of action and is between the same parties or their privies. This doctrine extends not only to questions actually litigated and decided, but to all grounds of recovery or defense which might have been presented in the first suit. (Bandringa v. Bandringa (1960), 20 Ill. 2d 167, 170 N.E.2d 116.) “When a former adjudication is relied upon as an absolute bar to a subsequent action, the only questions to be determined are whether the cause of action is the same in both proceedings, whether the two actions are between the same parties or their privies, whether the former adjudication was a final judgment or decree upon the merits, and whether it was within the jurisdiction of the court rendering it.” People v. Kidd (1947), 398 Ill. 405, 408-09, 75 N.E.2d 851, 854.

There is no issue on appeal regarding jurisdiction and the parties to the present action are the same parties to the prior third-party litigation. The determination of this appeal rests on whether the cause of action is the same in both proceedings and whether there was a final judgment on the merits in the prior proceedings.

Reynolds’ contention that the construction contract is sever-able because the contract’s provisions as to indemnification and insurance are not made dependent on each other, thereby giving rise to more than one cause of action based upon the contract, is misplaced. A contract is not divisible where the parties assented to all the promises as a single whole so that there would have been no bargain at all if any promise or set of promises were struck out. (Meredith v. Knapp (1965), 62 Ill. App. 2d 422, 211 N.E.2d 151; Bonner v. Westbound Records, Inc. (1979), 76 Ill. App. 3d 736, 394 N.E.2d 1303.) The purpose of the two clauses in the construction contract in the present case is to indemnify Reynolds; one source of indemnification to come directly from Mattson and the other source to come from insurance. Nothing in the nature of the provisions indicates they were divisible or not part of an agreement considered as an entirety. Therefore, the contract is not severable and there is only one cause of action, i.e., indemnification.

Even if, as Reynolds argues, these two theories do represent separate causes of action, the dismissal of the failure to supply insurance count in the original third-party complaint was an adjudication on the merits and, therefore, a bar to the insurance claim in the present action.

Reynolds contends there was no adjudication on the merits of the cause of action based upon Mattson’s failure to supply insurance in the previous litigation. Reynolds reasons that the dismissal of the claim for failing to furnish insurance was comparable to either a voluntary nonsuit or a dismissal for want of prosecution, and, therefore, in either case an adjudication other than on its merits.

In the original third-party complaint, the count for failing to supply insurance was dismissed by the trial court on Mattson’s motion without any indication as to the reason or basis for the dismissal. Supreme Court Rule 273 (87 Ill. 2d R. 273) states: “Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” In the present action, Matt-son, not Reynolds, moved for and was granted a dismissal in the third-party proceeding. The dismissal was, therefore, involuntary and it did not fall within one of Rule 273’s exceptions.

The dismissal would have become a final order had Reynolds elected to stand on the original third-party complaint. However, Reynolds moved for and was granted leave to file an amended complaint. In its amended complaint, Reynolds did not plead over the breach of contract count for failure to supply insurance. Therefore, the motion to dismiss the original third-party complaint remained final as to the failure-to-supply-insurance count. Because the dismissal was involuntary and with prejudice, the dismissal of the insurance count was an adjudication on the merits which bars the same claim in the present litigation.

Reynolds contends that the doctrine of res judicata does not apply to an abandonment of a cause of action; however, no authority was given regarding this proposition. Instead, Reynolds again proposes that the dismissal of the original third-party complaint was akin to a dismissal for want of prosecution and cites cases which hold that a dismissal for want of prosecution is not an adjudication on the merits. Because we find the dismissal of the original third-party complaint not to be for want of prosecution, the authority cited by Reynolds is not persuasive that the doctrine of res judicata does not apply to the abandonment of a cause of action.

For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

Affirmed.

SCOTT and HEIPLE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESTER ZEISLER, Defendant-Appellant.
    Third District
    No. 3—84—0066
    Opinion filed June 29, 1984.
    Rehearing denied August 7, 1984.

      Robert Agostinelli and Verlin R.F. Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John R. Clerkin, State’s Attorney, of Macomb (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Lester Zeisler, was convicted of aggravated arson and was sentenced to a 30-year term of imprisonment. In a previous appeal, we affirmed the defendant’s conviction and sentence. People v. Zeisler (1983), 112 Ill. App. 3d 788.

Pursuant to a writ of certiorari, the United States Supreme Court vacated the judgment and remanded the cause, instructing us to reconsider one of the issues in light of Michigan v. Clifford (1984), 464 U.S. 287, 78 L. Ed. 2d 477, 104 S. Ct. 641. The defendant was found guilty of setting fire to his apartment, causing severe injuries to his wife. The issue we are to reconsider is whether a warrantless search of the defendant’s apartment by a fire inspector violated the defendant’s fourth and fourteenth amendment rights. The facts are set forth at length in our earlier opinion. However, a brief summary of the relevant facts would be helpful.

The Bushnell fire department responded to a fire at the defendant’s apartment at approximately 12:30 a.m. on July 1, 1981. The fire was quickly brought under control. Chief Niestradt entered the apartment to make sure the fire was out and to determine the cause of the fire. Because he lacked expertise in fire origin investigation, Niestradt could not ascertain the cause of the fire. He and the other firemen secured the premises and placed signs on the door prohibiting entry by order of the State Fire Marshal. The firemen left by 2 a.m.

At 6:30 that morning, Niestradt called Hollis Miller, the area deputy fire marshal, who arrived at around noon. Miller and Niestradt entered the defendant’s apartment but decided that they needed a warrant. After being advised that a warrant was unnecessary, they returned to the apartment. When Miller began to suspect arson, he secured a search warrant and completed his investigation.

In our first opinion, we found the search to be lawful based on Michigan v. Tyler (1978), 436 U.S. 499, 56 L. Ed. 2d 486, 98 S. Ct. 1942. In Tyler, the court upheld the warrantless post-fire search of a furniture store where smoke and darkness interrupted a search begun immediately after the fire. The later search was found to be a continuation of the initial search. Michigan v. Clifford elaborated upon and clarified Tyler.

In Clifford, a fire started at the defendant’s home while they were out of town. The blaze was extinguished within an hour and a half, after which all fire and police personnel left the scene. A fire investigator was called within the hour but arrived five hours later. The investigators found that the house was being boarded up at the defendant’s request. The investigators entered the house without a warrant and seized evidence of arson.

The trial court denied the defendant’s motion to suppress. The appellate court reversed. The United States Supreme Court held that the warrantless search violated the defendant’s fourth amendment rights. The justices set out a three-part test for determining the constitutionality of a post-fire search: (1) a court must first determine the expectations of privacy which remain in the fire damaged property; (2) the expectations of privacy must be weighed against possible exigent circumstances which justify an exception to the warrant requirement; (3) the court must determine the object of the search. If the purpose is to determine the cause of the fire, an administrative warrant will suffice. If the purpose is to gather evidence of criminal activity, then a search warrant is needed.

Privacy expectations will vary with the type of property, the amount of fire damage, the prior and continued use of the premises, and in some cases the owner’s efforts to secure it against intruders. The test is essentially an objective one; whether the expectation is one that society is prepared to recognize as reasonable. Michigan v. Clifford (1984), 464 U.S. 287, 292, 78 L. Ed. 2d 477, 483, 104 S. Ct. 641, 646.

In Clifford, a home was rendered uninhabitable by fire. The court found a reasonable expectation of privacy because personal property remained on the premises and the defendants had arranged to have the house secured until they returned.

Here, the defendant’s apartment was heavily damaged but not completely destroyed. Although personal property remained, the defendant made no effort to secure the premises despite having had ample opportunity to do so. The fire department, on its own initiative, secured the apartment in an effort to preserve evidence. Under these circumstances, we find that the defendant’s expectation of privacy was much less than in Clifford. Accordingly, we do not believe that the defendant had a reasonable expectation of privacy in the fire damaged premises.

Regardless of the defendant’s expectations of privacy, we find that under the second part of the Clifford test, exigent circumstances permitted the warrantless entry. In Clifford, the court held that the search could not be considered a continuation of the initial post-fire examination of the premises because police and fire units had left the scene and the owners had taken measures to secure the house.

In the present case, the post-fire investigation was inconclusive as to the cause of the fire, due to Chief Niestradt’s lack of investigative expertise. Therefore, the initial investigation was incomplete. Chief Niestradt is not a full-time fire fighter. The fire occurred after midnight in a small rural town with no fire marshal or investigator. We believe that Niestradt acted reasonably in suspending his investigation until an expert could be located. This situation is analogous to postponing a search until the smoke clears and the proper tools become available. Furthermore, the defendant never made any attempt to secure the premises as did the owners in Clifford. Under these circumstances, we believe that the investigation was carried out with all possible dispatch. The search of the defendant’s apartment was not so detached from the initial attempt to determine the cause of the fire as to require a warrant.

Also, we note that Chief Niestradt was faced with a fire in a unit of an apartment complex. One of the occupants had suffered near fatal injuries and the cause of the fire was unknown. As the court in Clifford pointed out in a footnote: “A fire in an apartment, on the other hand, may present complexities that make it necessary for officials to conduct more expansive searches, to remain on the premises for longer periods of time, and to make repeated entries and re-entries into the building.” (464 U.S. 287, 298 n.9, 78 L. Ed. 2d 477, 487 n.9, 104 S. Ct. 641, 649 n.9.) As soon as was reasonably possible after the fire, Chief Niestradt took steps to ascertain the cause of the fire. This made it necessary for Niestradt and the investigator to reenter the apartment later in the day. As soon as the investigators suspected arson, they obtained a search warrant, as required by Clifford.

In Clifford, fire officials were confronted with a fire in a single-family dwelling and arson was initially suspected. When evidence of arson was later discovered, the investigators did not stop to obtain a warrant, but completed their search and seized evidence. Thus, the facts in Clifford are distinguishable and do not control in the present case.

Having found that the defendant did not retain a reasonable expectation of privacy in the fire-damaged apartment and considering the exigent circumstances surrounding the post-fire investigation, no warrant was required under Clifford in order for Niestradt to re-enter the premises along with Deputy Fire Marshal Miller. The judgment of the circuit court of McDonough County denying the defendant’s motion to suppress is affirmed.

Affirmed.

ALLOY, P.J., and STOUDER, J., concur.


author: JUSTICE HEIPLE JUSTICE BARRY,

text:
    MELBA JEAN CURTIS, Plaintiff-Appellant, v. DR. JAMES GOLDENSTEIN et al., Defendant-Appellees.
    Third District
    No. 3—83—0249
    Opinion filed June 27, 1984.
    Rehearing denied August 7, 1984.

      BARRY, J., specially concurring.
    John C. Ambrose, of Ambrose & Cushing, P.C., of Chicago, for appellant.
    Robert W. Boyd and Richard L. Ackman, both of Ackman, Marek, Boyd & Simutis, Ltd., of Kankakee, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff underwent a hysterectomy performed by the defendants. Following surgery, there were complications which resulted in the loss of the plaintiff’s left kidney. The plaintiff brought a malpractice action alleging that the defendants had damaged her left ureter during surgery, which caused kidney damage. The plaintiff also alleged that the defendants were negligent in failing to recognize the nature of the post-operative complications soon enough so as to prevent kidney damage and in failing to inform her of the nature and severity of the complications.

At the close of the plaintiff’s evidence, the trial court granted the defendants’ motion for a directed verdict. The motion alleged that the plaintiff had failed to establish a standard of care for obstetricians-gynecologists in performing a hysterectomy and failed to show that the defendants’ conduct deviated from any standard of care.

The plaintiff argues on appeal that the court erred in granting a directed verdict because the plaintiff’s evidence established a case of res ipsa loquitur and because there was sufficient evidence to permit the jury to decide whether the defendants were negligent in failing to recognize and treat her post-operative complications and in failing to inform her of the precise nature of those complications. The plaintiff also contends that the court erred by refusing to grant her a continuance or permit the plaintiff to cross-examine her expert witness as a Rule 238(b) hostile witness. We affirm.

The res ipsa loquitur doctrine permits the trier of fact to draw an inference of negligence based upon circumstantial evidence if the plaintiff can demonstrate three things: (1) that her injury is of the kind that ordinarily does not occur in the absence of negligence; (2) the injury was caused by an agency or instrumentality within the defendants’ exclusive control; and (3) the injury was not due to any voluntary act or neglect on the part of the plaintiff. (Spidle v. Steward (1980), 79 Ill. 2d 1.) Before a case based on this doctrine can go to the jury, the trial court must first decide, as a matter of law, whether the plaintiff’s pleaded facts would ever establish the above three elements and whether those elements, as pleaded, gave sufficient notice to the defendant of the res ipsa loquitur cause of action. Spidle v. Steward (1980), 79 Ill. 2d 1, 7.

The plaintiff’s complaint alleges specific acts of negligence. There is nothing alleged in support of the theory that the plaintiff’s injury ordinarily would not occur in the absence of negligence. There is also nothing in the complaint which gave notice to the defendants that plaintiff was relying on res ipsa loquitur. According to the Spidle case, as a matter of law, this case could not have gone to the jury based on res ipsa loquitur. The question then is whether the plaintiff presented sufficient evidence in support of the allegations of specific negligence to survive a motion for a directed verdict.

On a motion for a directed verdict, the role of the trial judge is to view all of the evidence in a light most favorable to the nonmovant and decide whether a verdict for the nonmovant could ever stand. We have examined the record and find that the plaintiff never established a medical standard of care which governed the defendants’ acts.

Specifically, the plaintiff’s expert testified that he had no opinion to express as to what was done by the defendants during surgery. He further stated that the defendants’ procedures following the operation were what he would have done. The plaintiff totally failed to provide any standard by which the jury could measure the conduct of the defendants either during or after surgery.

We do not agree with the plaintiff’s argument that the defendants’ testimony was sufficient to establish a standard of care. The defendants never testified that the standard of care in performing a hysterectomy differed from the surgical techniques employed during the plaintiff’s operation.

The plaintiff also points to the fact that it took six days from the onset of complications before the defendants decided to transfer the plaintiff to another hospital for corrective surgery and that the defendants told her only that she had a “bad kidney.” Again, the plaintiff has failed to show whether this conduct deviated from the standard procedure in the profession.

Failure to establish a standard of care is a fatal deficiency in a malpractice action. Accordingly, no verdict in favor of the plaintiff could stand and the court properly directed a verdict for the defendants.

The last two issues concern the testimony of Dr. Henry Wolfe, the plaintiff’s expert witness. As a sanction for failure to comply with discovery orders and appear at pretrial conferences, the plaintiff was limited to calling Dr. Wolfe as her sole expert -witness. Prior to trial, Dr. Wolfe, on the advice of the risk manager at his hospital, informed the plaintiff that he would not discuss the case before testifying. Dr. Wolfe assured the trial judge that he would testify consistently with a deposition taken by the defendant. Fearing that he would not be able to elicit a favorable opinion from Dr. Wolfe, plaintiff’s counsel moved for a continuance in order to secure a more cooperative witness. The motion was denied. The plaintiff also requested the court to declare Dr. Wolfe a Rule 238(b) hostile witness. The court refused to do so but permitted the plaintiff to renew the motion if Dr. Wolfe deviated from the content of his deposition.

A motion for a continuance, except where it is based on a statutory cause, is addressed to the discretion of the trial court. Our statutes do not authorize continuances to enable litigants to secure cooperative witnesses. Furthermore, because of the potential inconvenience to the parties, witnesses and the court, especially grave reasons for granting a continuance must be given once a case reaches the trial stage. (Needy v. Sparks (1977), 51 Ill. App. 3d 350.) We fail to see any need for a continuance here. The witness was available and willing to testify. Even if a continuance had been granted, the plaintiff could not have secured another witness due to the court’s sanction. Under these circumstances, we cannot say that the trial judge abused his discretion in refusing to grant the plaintiff’s motion.

The question of whether Dr. Wolfe was a Rule 238(b) hostile witness was also within the trial court’s discretion. Such a determination cannot be made until the witness demonstrates hostility or uncooperativeness while testifying. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915.) Thus, the court did not err by refusing to declare Dr. Wolfe a hostile witness prior to trial. Although the plaintiff was permitted to renew the motion while Dr. Wolfe was testifying, there is no indication that the plaintiff did so. In any event, the basis of plaintiff’s argument on this point is that Dr. Wolfe testified that the defendants appeared to have performed properly during and after surgery. Unfavorable testimony is generally no reason for declaring a witness to be hostile or uncooperative. Martin v. Brennan (1977), 54 Ill. App. 3d 421.

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

Affirmed.

SCOTT, J., concurs.

JUSTICE BARRY,

specially concurring:

I concur in the result reached by the majority. The doctrine of stare decisis mandates an affirmance of the action taken by the trial court. The facts before us, however, compel me to go farther. In Walker v. Rumer (1978), 72 Ill. 2d 495, 502, 381 N.E.2d 689, 691-92, our supreme court recited the law of Illinois respecting the application of the res ipsa loquitur doctrine to medical malpractice suits.

“Although ordinarily only ultimate facts, and not conclusions or inferences, are to be pleaded, we are of the opinion that in the pleading of a cause of action in medical malpractice cases under the doctrine of res ipsa loquitur, reliance on the doctrine should be alleged. (See Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 303.”

As observed by the majority, plaintiff’s counsel in the instant case failed to plead that res ipsa loquitur might be used as a substitute for expert testimony of the applicable standard of care and defendant’s breach thereof. As I see it, this was the fatal flaw in the plaintiff’s lawsuit. Had counsel exercised the precaution of including such notice in the pleadings, I would not hesitate to suggest a reversal of the trial court’s result herein.

I find that contrary to the majority’s suggestion that Dr. Wolfe’s testimony failed to discuss the standard of care, the record is otherwise. Dr. Wolfe concluded that there was no deviation from the applicable standard of care here but equivocated several times throughout his testimony. For example the record contains the following colloquy:

“PLAINTIFF’S COUNSEL: O.K., and so the standard of care would be that they do not locate it [the ureter], is that right?
DR. WOLFE: That’s right.”

I find such testimony singularly unpersuasive. It is entirely obvious to me that “where a physician accidentally severs a ureter of a patient during a hysterectomy and closes the wound without exercising some technique to determine the condition of the ureters, such is not an exercise of proper care by a surgeon performing such hysterectomy, and [that] a finding by the jury that such conduct constitutes malpractice” could be sustained without expert testimony being introduced by plaintiff against the defendant physician. (See Faulkner v. Pezeshki (1975), 44 Ohio App. 2d 186, 196, 337 N.E.2d 158, 166 (judgment for plaintiff affirmed on grounds that issue of negligence submitted to jury on res ipsa loquitur doctrine was proper).) Expert testimony is, by my view, unnecessary to sustain a cause of action in negligence when a functioning vital part of the human body is “lost” during surgery without any forewarning.

Unlike Illinois, Ohio courts do not require pleading of res ipsa lo-quitur as a precondition to relying on the doctrine in malpractice suits. Because of the startling similarity of facts in the Faulkner case to those presently before us, the case gives me pause to seriously reconsider the justification for requiring notice of res ipsa loquitur in the pleadings in Illinois. Particularly incisive in the Faulkner opinion is the court’s discussion of one public policy basis for abandoning the Illinois rule of Walker and its progeny:

“Locating an expert to testify for the plaintiff in a malpractice action is known to be a very difficult task, mainly because in most cases one doctor is reluctant and unwilling to testify against another doctor. Although doctors may complain privately to each other about the incompetence of other doctors, they are extremely reluctant to air the matter publicly.” (44 Ohio App. 2d 186,193-94, 337 N.E.2d 158,164.)

This pragmatic analysis convinces me that any rationale for perpetuating the Illinois rule is probably outmoded and tenuous, at best.

In sum, I find the granting of defendant’s motion for a directed verdict a miscarriage of justice, but nonetheless consonant with the law of this State. Since this court stands in no position to reverse decisions of the Illinois Supreme Court, I am constrained to cast my vote against this appellant despite my procedural preference as expressed above.


author: PRESIDING JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIFFORD DAVIS, Defendant-Appellant.
    Fifth District
    No. 5-83-0227
    Opinion filed June 25, 1984.
    Randy E. Blue and Kim G. Noffke, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Robert J. Biderman and Timothy J. Londrigan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

The defendant, Clifford Davis, was convicted of rape and home invasion by a jury in the circuit court of St. Clair County. Defendant was sentenced to concurrent 30-year terms of imprisonment on both counts unless the Board of Prisoner Review decides to release defendant in less than half the time; then the sentence for home invasion is to be served consecutively to the sentence for rape. On appeal, defendant contends that the closing argument of the prosecutor deprived him of a fair trial and that the sentence was improper.

Defendant contends that the prosecutor improperly commented on his failure to testify and that the prosecutor improperly stated that the defense counsel was attempting to mislead the jury. Where, as in the case at bar, defendant made no objection at trial to any portion of the State’s closing argument, any claim of error is waived. (People v. Manna (1981), 96 Ill. App. 3d 506, 517, 421 N.E.2d 542, 550.) In any event, we are unable to say that the improper remarks were so prejudicial that defendant did not receive a fair trial or were so flagrant as to threaten deterioration of the judicial process. (See People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324, 326.) Defendant’s defense was consent; the evidence is overwhelming that the victim did not consent to defendant’s act.

Section 5—8—4(a) of the Unified Code of Corrections states, in part:

“(a) When multiple sentences of imprisonment are imposed on a defendant at the same time, or when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State or in another state, or for a sentence imposed by any district court of the United States, the sentences shall run concurrently or consecutively as determined by the court. ***” (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—4(a).)

Therefore, the court must sentence defendant to a concurrent or a consecutive sentence. The statute does not provide for a sentence based on a contingent subsequent event as provided for in the case at bar. The proper administration of justice requires a rule that will make it unnecessary for anyone to try to figure out what the sentencing judge had in mind when imposing sentence. (People v. Hol-lingsworth (1982), 89 Ill. 2d 466, 468, 433 N.E.2d 682, 683-84.) For the foregoing reasons, the sentencing order is modified pursuant to Supreme Court Rule 615(b) (87 Ill. 2d R. 615(b)) to provide that defendant is sentenced to concurrent 30 years of imprisonment on each of the convictions in the case at bar.

Affirmed as modified.

JONES and EARNS, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN EDWARD PECKA, Defendant-Appellant.
    Fifth District
    No. 82—426
    Opinion filed July 13, 1984.
    Randy E. Blue and Patricia McMeen, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robin Todd, State’s Attorney, of Louisville (Kenneth R. Boyle, Stephen E. Norris, and Karen L. Stallman, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant John E. Pecka was found guilty of murder following a trial by jury in the circuit court of Clay County. Defendant was sentenced to 30 years’ imprisonment. The issues presented on appeal are (1) whether defendant was denied a fair trial by the court’s failure to provide the jury with the proper instruction regarding the affirmative defense of voluntary intoxication (Illinois Pattern Jury Instruction (IPI), Criminal, No. 24 — 25.02A (2d ed. 1981)); (2) whether the evidence at trial was sufficient to prove defendant guilty beyond a reasonable doubt; (3) whether defendant was unfairly prejudiced by certain statements of the prosecuting attorney during closing argument; and (4) whether the trial court imposed an excessive sentence upon defendant.

On the evening of December 16, 1981, defendant attended a party at the mobile home of his friends Marie Kuhlman and Randy Meares. Four others attended: Scott Merritt, Donald McElyea, Robert Thompson, and Richard Gregory. During the course of the evening, defendant displayed a .38 caliber pistol. Eventually, defendant held the pistol as it fired into Scott Merritt’s head, killing him.

Marie Kuhlman testified that she was standing in the kitchen area of the mobile home when the shot was fired. She looked up and observed defendant in a crouched position. Defendant was holding the gun. Scott Merritt was on the floor. She heard defendant say, “Oh, my God, I don’t know what happened. It just went off.” Ms. Kuhlman testified that defendant and Robert Thompson had experienced a disagreement earlier in the evening, but had reconciled after Randy Meares intervened.

Randy Meares stated that at the time the shot was fired, he was conversing with Richard Gregory. After the shot, Mr. Meares observed defendant holding the gun. He testified that there had been no argument between defendant and Scott Merritt. He stated that, when defendant had been asked what had happened, defendant replied, “I don’t know.” Richard Gregory agreed that there had been no argument between defendant and Scott Merritt.

Robert Thompson testified that defendant had in fact argued with Scott Merritt prior to the shooting. Merritt told defendant to “put the gun away.” Defendant stated that such a response constituted “fighting words.” Both men stood up, defendant pointed the gun at Merritt, and fired.

Donald McElyea also stated that defendant and Merritt had disagreed prior to the shooting and that he saw defendant rise from his chair, take aim at Merritt, and fire.

Defendant testified that he remembered arriving at the party, but remembered little or nothing of events after the group had moved, early in the evening, to the dining room area where the shooting occurred. He remembered the sound of the shot, someone lying on the floor, and saying to Randy Meares that he should call an ambulance and the police. Dr. Mary Montgomery, a psychiatrist, testified that she had examined defendant over an eight-day period and administered various tests. She offered her expert opinion that defendant was suffering from an alcoholic blackout on the evening of the shooting. Dr. Leon Jackson, a psychologist, and Dr. Richard Herndon, a specialist in internal medicine, also examined defendant, and offered contrary expert opinions. Each testified that, in his opinion, defendant did not experience an alcoholic blackout on the evening in question. There was conflicting testimony among the experts regarding the precise nature and length of alcoholic blackouts.

The jury received Illinois Pattern Jury Instruction (IPI), Criminal, No. 24 — 25.02 (2d ed. 1981) (definition of voluntary intoxication). The jury did not receive IPI Criminal No. 24 — 25.02A (issues in defense of voluntary intoxication), and this instruction was not offered to the court by defense counsel. The jury received the following instruction regarding the elements of murder:

“To sustain the charge of murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of Scott Allen Merritt; and
Second: That when the defendant did so, he knew that his act would cause death or great bodily harm to Scott Allen Merritt; or he knew that his acts created a strong probability of death or great bodily harm to Scott Allen Merritt.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

It is well established that a party may not appeal a trial court’s failure to give an instruction unless the complaining party tendered the instruction at trial. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180, 415 N.E.2d 1027.) Moreover, issues not raised in a party’s post-trial motion are effectively waived for purposes of appellate review. (People v. Huckstead (1982), 91 Ill. 2d 536, 543, 440 N.E.2d 1248.) The interests of justice nevertheless require that the rule of waiver be modified in criminal cases when it is necessary to insure the fundamental fairness of the trial. (People v. Roberts (1979), 75 Ill. 2d 1, 15, 387 N.E.2d 331.) “Fundamental fairness includes *** seeing to it that certain basic instructions, essential to a fair determination of the case by the jury, are given. Instructions on the elements of the offense are among these basic instructions, and we have recognized that the trial court has responsibility for ensuring that they are given.” People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861.

It is our judgment that the failure of the trial court to tender the pattern instruction regarding the affirmative defense of voluntary intoxication did not misinform, confuse, or otherwise impair the jury in such a manner as to affect the fundamental fairness of defendant’s trial. The jury was properly informed both with regard to the definition of voluntary intoxication and the elements of murder. Essential among the elements of murder was that defendant knew his act would either cause death or great bodily harm to the victim or create the strong possibility of death or great bodily harm. The omission of the language of IPI Criminal No. 24 — 25.02A, “[tjhat at the time of the offense, the defendant was capable of acting knowingly,” did not render the instruction substantially defective, since the language would not have served to delineate an additional element the State was required to prove, but merely to reiterate an element the State was required to prove as part of the necessary propositions of the crime of murder. In other words, a finding that defendant knew his act would either cause or create the possibility of death or great bodily harm would necessarily imply that defendant was capable of acting knowingly. It is essentially on this basis that the instant case is distinguishable from those cited by defendant, all of which involve the failure of a trial court to properly instruct a jury in a murder case on the affirmative defense of self-defense, and not, as here, on the affirmative defense of voluntary intoxication.

When the affirmative defense of self-defense is raised in a murder case, the burden is on the State to prove beyond a reasonable doubt an element extrinsic to the statutory definition of murder — i.e., that the defendant was not justified in the force he or she employed. In contrast, the affirmative defense of voluntary intoxication raised in the instant case did not require the State to prove an element extrinsic to the definition of murder upon which the jury was adequately informed. The error involved in the court’s failure to tender the Illinois pattern instruction was not, therefore, of sufficient magnitude to necessitate a modification of the waiver rule. Defendant’s claim of error regarding the trial court’s failure to instruct the jury on the State’s

burden of disproving his defense of voluntary intoxication was thus waived by defendant’s failure to tender the proper instruction and to preserve the issue in his post-trial motion for a new trial. People v. Woollums (1981), 93 Ill. App. 3d 144, 151, 416 N.E.2d 725.

Defendant’s contention that he was not proved guilty beyond a reasonable doubt is premised upon purported inconsistencies in the statements of the witnesses at the scene, and upon the alleged insufficiency of the testimony of the State’s expert witnesses to sustain the jury's finding that defendant was not suffering from an alcoholic blackout. Neither premise, in our judgment, is supported by the record. Defendant argues, in effect, that the testimony offered by Donald McElyea and Robert Thompson was so replete with inconsistencies and contradictions that it was inherently suspect, and that the testimony of Randy Meares, Marie Kuhlman, and Richard Gregory provided data insufficient to support a reasoned conclusion of defendant’s guilt. Even assuming such inconsistent testimony as defendant alleges, inconsistent statements do not of necessity invalidate a witness’ testimony. (People v. Pavelich (1979), 76 Ill. App. 3d 779, 782, 395 N.E.2d 202.) It is properly the function of the jury, as trier of fact, to resolve conflicting and inconsistent testimony by determining the credibility of the witnesses and the inferences to be drawn from the evidence as a whole. (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733.) There was no question at trial that defendant held the gun at the time it discharged into the victim’s head. The only material issue in dispute was whether defendant acted with the knowledge that he was likely to cause death or great bodily harm to the victim. The testimony offered by the various witnesses at the scene, even though inconsistent on certain points, provided a sufficient basis from which a jury could conclude beyond a reasonable doubt that defendant acted with such knowledge. In a similar manner, the expert opinions of Dr. Jackson and Dr. Herndon were sufficient to support the same finding, notwithstanding the conflicting opinion of Dr. Montgomery.

Defendant’s contention that certain comments by the prosecuting attorney during closing argument were improper has been waived by defendant’s failure to object at trial to any of the allegedly improper statements. People v. Edwards (1973), 55 Ill. 2d 25, 35, 302 N.E.2d 306.

Defendant’s final allegation that the trial court abused its discretion by imposing on defendant a prison sentence of 30 years is not supported by the record, which indicates that the trial court explicitly considered the presentence investigation report, evidence submitted at the sentencing hearing, the argument of counsel, and defendant’s own statement to the court. “[T]he trial court is normally the proper forum in which a suitable sentence is to be determined and the trial judge’s decisions in regard to sentencing are entitled to great deference and weight.” (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) The utter senselessness of defendant’s act, noted by the trial judge, precludes a finding that the sentence imposed in the instant case was an abuse of the trial court’s discretion.

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

Affirmed.

JONES and KASSERMAN, JJ., concur.