author: JUSTICE SCHNAKE

text:
    CURTIS COOK, Plaintiff-Appellant, v. OPTIMUM/IDEAL MANAGERS INC., Defendant-Appellee.—LEE R. McTARSNEY, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA et al., Defendants-Appellees.
    Second District
    Nos. 83—1039, 84—26 cons.
    Opinion filed December 10, 1984.
    Modified on denial of rehearing January 18, 1985.
    Richard J. Smith, of Sullivan, Smith, Houser & Noonan, of Waukegan, for appellants.

      Gifford, Detuno & Gifford, of Chicago, for appellee Insurance Company of North America.
    John P. McAuliffe and Richard J. Leamy, both of Wiedner & McAuliffe, Ltd., of Chicago, for appellee Optimum/Ideal Managers Inc.
    Alan M. Goldberg, of Rosenfeld, Rotenberg, Schwartzman, Hafron & Shapiro, of Chicago, for appellee James Ryan.
   JUSTICE SCHNAKE

delivered the opinion of the court:

Both of these cases present the question of whether an injured employee may bring an action in the circuit court against his employer’s workers’ compensation insurance company or insurance adjuster, or a physician retained by the insurance company, for failure to furnish the employee with a report of a medical examination conducted under section 12 of the Workers’ Compensation Act (hereinafter the Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.12), or for improper termination of payments under the Act. The cases have been consolidated for opinion by this court.

In No. 83—1039, Curtis Cook filed a complaint in the circuit court of Lake County against his employer’s insurance adjuster, Optimum/ Ideal Managers Inc. (hereinafter Optimum). As amended, the complaint alleged that Cook was an employee of Waukegan Tire & Supply Co., and that he received work-related injuries on January 3 and April 27, 1983. Cook was examined at the request of his employer pursuant to section 12 of the Act on at least two occasions. According to the complaint, Optimum stopped making payments to Cook for temporary total incapacity even though Cook’s doctor certified that Cook was unable to work because of his injuries. Optimum allegedly stopped paying Cook’s medical bills and also refused to pay for his hospitalization, even though Cook’s doctor certified that it was required by virtue of his work-related injuries. The complaint further alleged that after one of the medical examinations under section 12, Optimum directed the physician who examined Cook not to furnish him with a copy of the examination report. After another examination, Optimum obtained the report and “secreted” it so that it was not available to Cook. All of these actions were allegedly taken by Optimum to interfere with Cook in the exercise of his rights under the Act. More specifically, the actions were allegedly taken because Cook retained an attorney to represent him in connection with his claim under the Act, and because he demanded copies of the reports of medical examinations conducted pursuant to section 12. Finally, the complaint alleged that as a direct result of Optimum’s conduct, Cook suffered economic loss and was delayed in the presentation of his claim under the Act. Actual and punitive damages were sought.

Optimum moved to dismiss the complaint on the grounds that it failed to state a cause of action, and that Cook had failed to exhaust his administrative remedies before the Industrial Commission. The trial court granted Optimum’s motion, and Cook appealed.

In No. 84—26, Lee R. McTarsney filed a complaint in the circuit court of Lake County against his employer’s insurance company, Insurance Company of North America (hereinafter INA), and Dr. James Ryan. As amended, the complaint included three counts.

Count I was against INA. It alleged that McTarsney was an employee of Petrolane, Inc., who received a work-related injury and had been unable to work since December 29, 1981. Pursuant to section 12 of the Act, INA requested McTarsney to submit himself for an examination by Dr. Ryan on March 30, 1982. Prior to the examination, Mc-Tarsney sent Dr. Ryan a written request for a copy of the examination report. According to the complaint, however, INA directed Dr. Ryan not to comply with McTarsney’s request. Dr. Ryan did not send McTarsney a copy of the report when it was prepared and mailed to INA on April 7, 1982. The complaint further alleged that INA knew that withholding the report would damage McTarsney in two ways. First, INA knew that McTarsney was facing surgery on his arm, and that his treating physicians would not have access to the report. Second, the attorney representing McTarsney before the Industrial Commission would not be able to use the information in the report to protect his legal rights.

Count I further alleged that on April 19, 1982, INA stopped making payments to McTarsney for temporary total incapacity even though he was totally disabled because of the injury and surgery. Mc-Tarsney’s condition of total disability was fully substantiated by the investigation conducted by INA. The payments were allegedly terminated for the purpose of penalizing McTarsney for requesting a copy of the medical examination report.

Count I sought actual and punitive damages from INA for the withholding of the medical examination report and the improper termination of payments for temporary total incapacity.

In count II McTarsney sought injunctive relief against INA in connection with the withholding of the medical examination report. According to the complaint, it was the policy of INA to require the physicians it retained for the purpose of conducting medical examinations under section 12 not to send copies of the report to the employee. Count II sought an injunction ordering INA to refrain from directing physicians to withhold the reports.

Count III was against Dr. Ryan. It sought compensatory and punitive damages for his failure to turn over a copy of the report.

Dr. Ryan moved to dismiss on the basis that the exclusive remedy for the conduct complained of would be in proceedings before the Industrial Commission. That motion was granted by the trial court. Subsequently, INA filed a motion to dismiss. The motion alleged that the complaint failed to state a cause of action, and that McTarsney had failed to exhaust his administrative remedies before the Industrial Commission. INA’s motion contended that the allegations concerning the medical report were moot since INA had given McTarsney a copy of the report after the lawsuit was filed. The trial court granted INA’s motion to dismiss, and McTarsney brought the case to this court.

Since both cases are here on appeal from orders dismissing the complaints, all well-pleaded facts will be taken as true, and the orders of dismissal will be affirmed only if it is apparent that no set of facts could be proved that would entitle the plaintiffs to relief. Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 432 N.E.2d 849.

Before addressing the arguments of the parties based on the above pleadings, it will be helpful to set out the relevant provisions of section 12 of the Act which describe the nature and purposes of the medical examinations involved herein. Section 12 provides:

“An employee entitled to receive disability payments shall be required, if requested by the employer, to submit himself, at the expense of the employer, for examination to a duly qualified medical practitioner or surgeon selected by the employer, *** for the purpose of determining the nature, extent and probable duration of the injury received by the employee, and for the purpose of ascertaining the amount of compensation which may be due the employee from time to time for disability according to the provisions of this Act. ***
* * *. Such examination shall be made in the presence of a duly qualified medical practitioner or surgeon provided and paid for by the employee, if such employee so desires.
In all cases where the examination is made by a surgeon engaged by the employer, and the injured employee has no surgeon present at such examination, it shall be the duty of the surgeon making the examination at the instance of the employer to deliver to the injured employee, or his representative, a statement in writing of the condition and extent of the injury to the same extent that said surgeon reports to the employer and the same shall be an exact copy of that furnished to the employer, said copy to be furnished the employee, or his representative as soon as practicable but not later than 48 hours before the time the case is set for hearing. *** If such surgeon refuses to furnish the employee with such statement to the same extent as that furnished the employer said surgeon shall not be permitted to testify at the hearing next following said examination.” Ill. Rev. Stat. 1983, ch. 48, par. 138.12.

Prior to discussing the issues herein, it will be helpful also to review the case of Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353. In Kelsay our supreme court recognized a cause of action against an employer for discharging an employee in retaliation for his filing a workers’ compensation claim. (See also Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143.) Punitive, as well as compensatory, damages were held to be recoverable. Such a cause of action, although not expressly provided for by our General Assembly, was deemed to be necessary to discourage the practice of retaliatory discharge which contravened the public policy of this State as expressed in the Workers’ Compensation Act.

In the Kelsay opinion the court noted that, after the employee in that case had been fired, our General Assembly adopted section 4(h) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.4(h)), which made it a criminal offense for an employer to discharge an employee in retaliation for filing a claim. The court stated, however, that the fact that the statute was penal in nature did not bar a civil remedy, and that where a statute is enacted for the benefit of a particular class of individuals, a violation of its terms may result in civil as well as criminal liability, even though the former remedy is not specifically mentioned.

In No. 83—1039 Cook points out that section 4(h), which has not been substantively amended since Kelsay, does not prohibit only retaliatory discharge. It prohibits other conduct on the part of an employer or its agents taken in retaliation for the employee’s exercise of his rights under the Act. The statute provides:

“It shall be unlawful for any employer, insurance company or service or adjustment company to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his or her exercise of the rights or remedies granted to him or her by this Act.
It shall be unlawful for any employer, individually or through any insurance company or service or adjustment company, to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.” (Ill. Rev. Stat. 1983, ch. 48, par. 138.4(h).)

Cook argues that a cause of action should be implied, not only for conduct on the part of an employer which violates the second paragraph of section 4(h) involving retaliatory discharge, but also for conduct in violation of the first paragraph involving interference with an employee in connection with the exercise of his rights under the Act. Cook points out that under the Act he had a right to promptly receive the reports of the medical examinations conducted under section 12, and to representation by an attorney, and he contends that his complaint, with its allegations of retaliatory termination of compensation payments and refusal to turn over medical reports, adequately pleaded interference by Optimum in connection with his exercise of those rights.

In No. 84—26 McTarsney appears to have abandoned that portion of his complaint seeking damages from INA for retaliatory termination of payments under the Act. No mention was made of this claim in his briefs or at oral argument in this court. Accordingly, the propriety of its dismissal is not before us. McTarsney has focused his arguments on that portion of his complaint seeking injunctive relief against INA and damages from INA and Dr. Ryan based on their failure to furnish him with a copy of the report of the medical examination conducted under section 12. Unlike Cook, McTarsney did not allege that the report was withheld in retaliation for his assertion of rights under the Act. Accordingly, he does not rely on section 4(h) of the Act. Instead, McTarsney argues that a cause of action for failure to turn over the report should be implied from section 12 itself.

Finally, both Cook and McTarsney argue, citing various authorities, that the public policy of this State requires disclosure of medical information to the person involved. They maintain that a cause of action, based on the failure to furnish an employee with a copy of a report of a medical examination conducted under section 12, should be recognized in order to implement that public policy.

We will first address the question in No. 83—1039 of whether a cause of action should be implied from section 4(h) against an insurance adjuster for retaliatory termination of payments due under the Act or retaliatory refusal to furnish copies of reports of medical examinations conducted under section 12.

In deciding whether a cause of action should be implied from legislation not specifically providing for it, the following questions should be considered: (1) Does the violation alleged contravene the public policy of this State? (2) Are the plaintiffs within the class the statute was designed to protect? (3) Is the injury one the statute was designed to prevent? (4) Is the need for civil actions under the statute clear? (5) Is there any indication that remedies available are limited to those enumerated in the Act? Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 389, 432 N.E.2d 849; Sherman v. Field Clinic (1979), 74 Ill. App. 3d 21, 29, 392 N.E.2d 154.

Consideration of the first three questions tends to support implication of the cause of action herein. Section 4(h) is itself a statement of the public policy of this State regarding interference with employees in the exercise of their rights under the Act and discrimination against them because of the exercise of said rights. Alleged violations of section 4(h) are contrary to that public policy. The plaintiff, Curtis Cook, is within the group the statute was designed to protect, i.e., he is an employee subject to the Workers’ Compensation Act. Furthermore, we believe that the injuries Cook alleged, economic loss and delay in the presentation of his workers’ compensation claim, were of the sort that section 4(h) was designed to prevent.

Consideration of the fourth and fifth questions, however, works against the implied cause of action. The need under the statute for civil actions like the one brought by Cook is anything but clear. The Act itself provides numerous remedies to employees for the delay and economic loss caused by the improper conduct of which Cook complains. For example, an employee not receiving compensation may seek a preliminary award of compensation under section 19(b) (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(b)). (See Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462, 466, 413 N.E.2d 390.) Moreover, the Act includes provisions for penalties where payment of compensation awarded, including compensation for temporary total incapacity, has been unreasonably delayed or withheld without good and just cause. (Ill. Rev. Stat. 1983, ch. 48, pars. 138.19(k) and (1).) Section 12 itself provides a remedy for the failure to turn over a copy of the medical report, i.e., the employer’s doctor is prevented from testifying at the hearing next following the examination. Counsel for Cook has agreed that an employee can compel production of such reports in the proceedings before the Industrial Commission by subpoena returnable at the hearing.

Moreover, there are indications that these are the exclusive remedies for the economic loss and delay caused by the conduct complained of. If we were to recognize the cause of action proposed by Cook, claimants under the Workers’ Compensation Act would have two forums available to litigate the propriety of termination or reduction of payments under the Act, and to seek to compel production of the medical reports. As our supreme court stated in Robertson v. Travelers Insurance Co. (1983), 95 Ill. 2d 441, 451, 448 N.E.2d 866, in a slightly different context:

“To permit such a course would invite the indefinite prolonging of litigation and risk double recoveries and inconsistent findings of fact, a result which the legislature, in enacting a system of compensation in place of common law remedies, certainly wished to avoid.”

In our judgment, these considerations working against recognition of Cook’s proposed cause of action under section 4(h) are more significant than any which tend to support it. Unlike the employee in Kelsay, Cook was not faced with the dilemma of choosing between his job and filing a claim under the Act. In fact, Cook did not allege that any of the misconduct on the part of Optimum was undertaken to coerce him into withdrawing his claim, or to punish him for filing the claim itself. Unlike retaliatory discharge, the alleged misconduct on the part of the insurance adjuster in this case would not “effectively [relieve] the employer of the responsibility expressly placed upon him by the legislature ***.” (Kelsay v. Motorola (1978), 74 Ill. 2d 172, 182, 384 N.E.2d 353.) Under these circumstances, and where remedies for the damage caused by the alleged misconduct are available in proceedings under the Act, we do not believe that a cause of action in the circuit court should be implied from section 4(h).

We next consider the question in No. 84—26 of whether a cause of action should be implied from section 12 against an insurance company or a doctor retained by it for failure to turn over a copy of a report of a medical examination. McTarsney alleged that the withholding of the report damaged him in two ways. First, it prevented the attorney representing him in the workers’ compensation proceedings from using the information in the report to protect his legal rights. As noted above, however, the Workers’ Compensation Act itself provides remedies for such damage available in the proceedings before the Industrial Commission. We conclude, as we did above, that these are the exclusive remedies for that claim of damage.

The second way McTarsney alleged that he was damaged by the withholding of the report was that his treating physicians did not have access to it. The remedies discussed above do little to alleviate this problem. The exclusion of the testimony of the employer’s doctor does nothing to remedy the ignorance of the employee’s treating physician of the contents of the report. Moreover, if the injury is such that prompt treatment is required, proceedings before the Industrial Commission to compel production of the report might take too long to be of any use to the treating physician.

Notwithstanding these inadequacies of the remedies under the Act in alleviating this alleged injury, we do not believe that McTarsney’s proposed cause of action should be implied from section 12 because the injury is not one which the statute was designed to prevent. (See Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 432 N.E.2d 849.) Section 12 is essentially a prehearing discovery rule governing proceedings before the Industrial Commission. It provides that the purpose of the medical examination is for “determining the nature, extent and probable duration of the injury received by the employee,” and “ascertaining the amount of compensation which may be due the employee from time to time for disability according to the provisions of this Act.” The examination under section 12 is not for the purpose of providing the employee’s own treating physician with additional information. This court will not, without a clearer statement of legislative intent, convert violation of a prehearing discovery rule into a tort.

Finally, we consider the issue common to both cases of whether a cause of action, based on the failure to furnish an employee with a copy of a report of a medical examination conducted under section 12, should be recognized in order to implement the public policy of this State regarding disclosure of medical information. Both Cook and McTarsney cite Cannell v. Medical & Surgical Clinic, S.C. (1974), 21 Ill. App. 3d 383, 315 N.E.2d 278, to support their view that public policy requires disclosure of medical information to the person involved. In Cannell the court held that a doctor hired by the employer to treat the employee had a fiduciary relationship with the latter which imposed a duty on the doctor to turn over the patient’s medical records to him on request. We do not believe that the concept of a fiduciary relationship can be extended from a patient and his treating physician to an employee and a doctor hired by his employer to examine him under section 12. Our supreme court has stated that a fiduciary duty may arise from “all legal relations, such as attorney and client, principal and agent, guardian and ward, and the like, and also every case in which a fiduciary relation exists in fact, where confidence is reposed on one side and domination and influence result on the other.” (Wen nerholm v. Wennerholm (1943), 382 Ill. 254, 262, 46 N.E.2d 939.) While a patient certainly reposes confidence in his treating physician, the same cannot be said of an employee and a physician retained by the employer, not to treat the employee, but to examine him with reference to a pending workers’ compensation claim. Moreover, where the employee has other physicians treating his injury as in the instant cases, it is difficult to see how the “section 12 physician” would have domination and influence over him.

Cook and McTarsney also cite section 8—2003 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 8—2003), which requires physicians to make their patients’ medical records available to them. That provision is, however, explicitly limited to treating physicians.

Finally, Cook and McTarsney cite Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 439 N.E.2d 60, in which this court held that the existence of a physician-patient relationship was not necessarily required in order for there to be a duty of reasonable care, including a duty of disclosure of medical information, on the part of the physician. The determination of whether such a duty exists was held to require a weighing of the factors of foreseeability of subsequent occurrences, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the doctor.

The physician in Davis had agreed to see the patient on referral from another doctor for purposes of treatment. The doctor who agreed to see the patient allegedly knew that X rays had disclosed that the latter might have cancer. An appointment was made and rescheduled, and the patient was unable to appear for the rescheduled appointment. When he so advised the doctor’s office, he was informed that the doctor would not treat him. The doctor, however, did not advise him of the malignancy, or of the urgency of seeking treatment elsewhere. As a result, the cancer grew worse, and the patient’s leg had to be amputated. Weighing the factors set forth above, this court determined that, under these circumstances, the doctor had owed a duty to the patient to inform him of the problem.

Davis is distinguishable, however, because the doctor in that case had agreed to see the patient for purposes of care and treatment, not for purposes of examination on behalf of the patient’s adversary in pending litigation. Where the examination is for the latter purpose, and where, as here, the patient has other treating physicians, the foreseeability and likelihood of injury resulting from withholding the examination report is insubstantial. Although the magnitude of the burden in guarding against such injury, i.e., turning over the report, is also slight, we do not believe that a duty of care should be recognized under these circumstances. Other courts have reached similar conclusions. (See Keene v. Wiggins (1977), 69 Cal. App. 3d 308, 138 Cal. Rptr. 3; and Johnston v. Sibley (Tex. Civ. App. 1977), 558 S.W.2d 135.) Public policy does not support recognition of the cause of action proposed herein.

This court does not approve of the withholding of medical reports in these cases. Section 12, which is essentially a prehearing discovery rule, requires their disclosure “as soon as practicable.” Discovery is intended to be a mechanism for the ascertainment of truth. It is not a tactical game to be used to obstruct the opposing litigant. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 282, 433 N.E.2d 253.) It may be that our General Assembly should consider whether it would be appropriate to provide the Industrial Commission with stronger sanctions for violation of section 12. For the reasons stated above, however, we do not believe that a cause of action in the circuit court should be recognized for its violation.

The orders of the circuit court of Lake County dismissing the complaints herein are, therefore, affirmed.

No. 83—1039: Judgment affirmed.

No. 84—26: Judgment affirmed.

HOPF and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
      In re MARRIAGE OF JEAN R. FUGGITI, Petitioner-Appellee, and RICHARD J. FUGGITI, Respondent-Appellant.
    First District (1st Division)
    No. 83—1910
    Opinion filed January 14, 1985.

      John E. Cunningham, of Chicago, for appellant.
    Kirsh & Berman, Ltd., of Chicago (Alan D. Hoffenberg, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court;

This is the second appeal concerning the disposition of property in the dissolution action between these two parties. In the initial distribution of marital property, petitioner Jean Fuggiti was awarded a larger portion of the marital property than was awarded to respondent Richard Fuggiti. This disposition was reversed and remanded in a Rule 23 order with instructions “for determination of appropriate allocation of marital property in conjunction with the possibility of an award of maintenance to respondent.” At the second hearing, new evidence was introduced which showed that Jean Fuggiti suffered from a terminal illness. Based on the changed circumstances, the trial court made substantially the same distribution as it had before. Respondent now appeals. During the pendency of these proceedings, Jean Fuggiti died and a special administrator was appointed to represent her estate.

On this second appeal, Richard Fuggiti contends (1) that the trial court failed to follow the appellate court’s remanding instructions and (2) that the division of marital property was inequitable and not in "just proportions” as required by the Illinois Marriage and Dissolution Act (the Act) (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)).

The record reveals that the parties were married on April 7, 1945. Neither party brought substantial assets to the marriage. Three children were born to the couple, each of whom is now emancipated. Jean Fuggiti was employed all but 12 years of the 36-year marriage. During those 12 years, Jean cared for the children and performed the services of a housewife at the family’s home located in Arlington Heights.

During the first few years of marriage, Richard Fuggiti was in the United States Marine Corps. He was eventually discharged and given a 20% disability pension for injuries sustained in Korea. Richard then started his own business manufacturing plastic three-dimensional advertising displays. The business continued in operation until 1968, when it was destroyed in the riots which occurred upon the death of Martin Luther King, Jr. The only remaining assets of the business are two vacant lots located on Larabee Street in Chicago. Subsequently, Richard held various jobs dealing with fiberglassing, and after 1971 he was employed by companies located outside the Chicagoland area. While employed in Indiana, Richard was injured on the job and received a $9,362 workmen’s compensation award. From 1971 to 1978, while living apart, he contributed to the family’s income and returned home on weekends periodically. Jean Fuggiti filed a petition for dissolution of the marriage on July 17,1979.

At the initial trial, the grounds for dissolution were uncontested, and a judgment dissolving the marriage was entered on August 17, 1981. The trial court valued the marital property and divided it as follows: The petitioner, Jean Fuggiti, was awarded the marital residence, which was valued at $90,000, subject to an $11,000 outstanding mortgage and a $6,000 debt owed to the petitioner’s mother. The respondent, Richard Fuggiti, was awarded a $25,000 interest-free lien on the marital residence that was payable within 10 years and if upon sale of the house the net proceeds exceeded $90,000, he was to receive 34% of the excess.

Jean Fuggiti received home furnishings valued at $2,000. She was also awarded her profit-sharing fund, which at that time had a present value of $25,838; American Telephone and Telegraph stock worth $16,000, which she had purchased during the marriage under an employee stock purchase plan. A 1974 automobile valued at $500 was also awarded to her.

In addition to his lien on the marital residence, Richard was also awarded his IRA account, his workmen’s compensation award in the amount of $9,362, $500 worth of Seal Power stock, and a 1977 automobile valued at $1,000.

The parties were each awarded a half-interest in the vacant lots located on Larabee Street to be held in tenancy in common.

At the time of the original award in this case, Richard Fuggiti was unemployed, although he was studying and attempting to sell real estate and had some expertise in plastics and fiberglass. Jean was employed on a full-time basis as a receptionist for the Sealy Mattress company. The parties were apparently in good health and both were capable of supporting themselves through employment.

Upon appeal by Richard Fuggiti, the court in a Rule 23 order reversed the judgment of the trial court, finding that the award was not in “just proportions.” The court noted that Jean Fuggiti had as great, if not greater, opportunity for future income, as did Richard, and that she was employed and apparently in good physical health, while he was unemployed and suffering from physical impairment. The cause was remanded for determination of appropriate reallocation of the marital property in conjunction with the possibility of an award of maintenance to respondent. The court also stated that “[hjowever, upon remand, the trial court may divide the property in equitable and fair proportions which might eliminate the need for maintenance.”

Upon remandment, the trial court heard additional evidence and found that a substantial change in circumstances had occurred since the filing of the appellate court’s opinion on September 13, 1982. Evidence at the hearing on remand indicated that Jean Fuggiti had been diagnosed as having a severe form of lung cancer and that her estimated time of survival was about one year. She was unable to work due to the widespread nature of her illness and the side effects of the chemotherapy she was receiving. Her sole source of income was disability benefits in the amount of $758 per month.

The trial court also found that the respondent had become a self-employed records searcher and a part-time real estate salesman who had earned $10,000 in 1982 and between $1,000 and $2,000 in the first two months of 1983. He was also receiving $54 per month in government disability benefits. His average monthly expenses were $400 to $500.

No issue with respect to the dissolution was raised, and the parties stipulated to the use of the same property values as found by the appellate court. Based on the supplemented record, the trial court entered a judgment with respect to the property distribution which essentially reaffirmed the previous distribution with one exception. Instead of awarding the marital residence to the petitioner subject to the respondent's $25,000 interest-free lien payable within 10 years, the trial court ordered the sale of the marital residence after 18 months or the death or remarriage of the petitioner, whichever occurred first. The net proceeds of the sale were to be divided as follows: (a) to the petitioner’s mother, $6,000 in payment of a loan, (b) to Jean, an amount equal to the amount by which the principal balance of the mortgage had been reduced from August 17, 1981 (the date of dissolution), to the date of sale, (c) the remaining balance to be divided 60% to Jean and 40% to Richard. The court denied maintenance as to Richard because his income was sufficient to meet his needs, and reserved maintenance as to Jean because her future was uncertain.

Respondent contends that the trial court failed to properly follow the remanding order of the appellate court. He argues that the trial court should have “followed” the order by dividing the marital property equally and should not have heard new evidence. We do not agree.

Where the remanding instructions of the appellate court are general in nature, the trial court upon remand is required to examine the appellate court’s opinion and determine what further proceedings would be consistent with the opinion, and, in this regard, it may hear new evidence and make an appropriate disposition of the case. (David v. Russo (1983), 119 Ill. App. 3d 290, 295-96, 456 N.E.2d 342; In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 403 N.E.2d 730.) In the present case, the appellate court’s use of terms such as “appropriate allocation,” “possibility of an award of maintenance” and “may divide the property in equitable and fair proportions” demonstrates that the Rule 23 order was general in nature so as to fall within the above-stated rule. See In re Marriage of Clearman (1980), 85 Ill. App. 3d 584, 407 N.E.2d 189, appeal after remand (1981), 97 Ill. App. 3d 641, 423 N.E.2d 283, appeal denied (1981), 85 Ill. 2d 564.

In Clearman, the trial court awarded the wife substantially all of the marital property. The appellate court reversed this disposition and determined that the assets of the parties ought to be more justly apportioned given the relatively equal positions of the parties. (85 Ill. App. 3d 584.) The cause was remanded to allow the trial court to reconsider the disposition of marital property previously ordered. Upon remand, the court took additional evidence and found that, in the interim, the wife had become seriously ill and suffered serious physical impairment. The trial court then entered virtually the same disposition of property. The appellate court affirmed the actions of the trial court and upheld the disposition because of the extraordinary circumstances which had arisen after the remanding order. In re Marriage of Clearman (1981), 97 Ill. App. 3d 641.

As in Clearman, the trial court in the present case, upon remandment, heard additional evidence and made its distribution based on the extraordinary circumstances which had arisen after the appellate court had filed it's Rule 23 order. We find that the actions of the trial court on remand were proper because the court could not have made an equitable disposition of marital property or determined the need for maintenance without considering the current health and economic circumstances of the parties.

The respondent also argues that the trial court abused its discretion in making a disparate disposition of the marital property that was not in “just proportions” as required by section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)). We disagree.

An equal division of marital property is not required by section 503 of the Act, only a disposition that is just and equitable. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 411 N.E.2d 238.) The trial court’s division of property will be reversed only where “no reasonable man would take the view adopted by the trial court.” (In re Marriage of Pancner (1982), 111 Ill. App. 3d 546, 550, 444 N.E.2d 653, appeal denied (1983), 94 Ill. 2d 553.) Further, the trial court must consider all relevant factors before exercising its discretion in disposing of the marital property but need not make specific findings as to each of the ten factors set forth in section 503(c) of the Act. (In re Marriage of Walsh (1982), 109 Ill. App. 3d 171, 440 N.E.2d 310; In re Marriage of Lipsch (1980), 86 Ill. App. 3d 81, 407 N.E.2d 1028.) We believe the trial court satisfied the requirement of section 503(c).

The record discloses that the trial court considered the contribution of the parties; the value of the parties’ resources; the disparity of the parties’ earning potentials subsequent to dissolution; the relevant economic circumstances including the health and employability of each of the parties; and the fact that the distribution was in lieu of maintenance. Although the court did not list these factors serially, with a separate finding for each, the record indicates facts noted by the court which show that the court considered all relevant factors.

It is obvious in this cause that the critical factor in the trial court’s decision as to distribution, upon remandment, was the extreme change in the health and employment capabilities of Jean Fuggiti. This additional extraordinary factor, coupled with the fact that Richard Fuggiti had become self-employed, formed the basis for the court’s award of a substantial portion of the marital assets to Jean Fuggiti and the denial of maintenance to Richard. We find no abuse of discretion in the court’s division of the parties’ marital property and its refusal to award maintenance to respondent. We affirm.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE NASH

text:
    HANZEL CONSTRUCTION, INC., et al., Plaintiffs-Appellees, v. WEHDE & SOUTHWICK, INC., et al., Defendants (William Spann, Defendant-Appellant).
    Second District
    No. 83—1117
    Opinion filed January 25, 1985.

      Neil F. Hartigan, Attorney General, of Springfield (William G. Sullivan and Rosalyn B. Kaplan, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    Norman H. Lehrer, of Lehrer & Flaherty, of Wheaton, for appellees.
   PRESIDING JUSTICE NASH

delivered the opinion of the court:

Defendant, William Spann, appeals from a judgment for $23,601.25 entered in favor of plaintiffs, Dennis Hanzel and Hanzel Construction, Inc., in an action for tortious interference with a contract and for alleged violation of plaintiffs’ civil rights under 42 U.S.C. sec. 1983 (1982).

As to the tort action, defendant contends he was immune from liability as a public official; that he had a conditional privilege and justifiably interfered with plaintiffs’ contract; and that plaintiffs’ claim was barred by the doctrine of sovereign immunity. Defendant contends he was also immune from liability in the civil rights action under Federal law and, in any event, his conduct did not violate plaintiff’s right to due process. He further argues that plaintiffs failed to prove the damages recovered in the judgment.

This case arose after a contract was entered in 1982 between the Forest Preserve District of DuPage County and defendant-general contractor Wehde & Southwick, Inc., for building construction. The contract provided, inter alia:

“In compliance with the provisions of Chapter 48, secs. 39s— 1, et seq., Illinois Revised Statutes, 1979, the Contractor, and each subcontractor shall pay all laborers, workers and mechanics performing work pursuant to this Contract not less than the prevailing rate of wages as has been ascertained by the Illinois Department of Labor.”

The general contractor then entered into a subcontract with plaintiffs for carpentry work on the project which incorporated in its terms the master agreement between the owner and general contractor, including the requirement for compliance with the prevailing wage act (Ill. Rev. Stat. 1979, ch. 48, par. 39s—1 et seq.).

Plaintiffs commenced work in October 1982 and completed it in January 1983. Dennis Hanzel testified he had borrowed $20,000 to purchase materials and pay his employees for the job. When the general contractor, Wehde & Southwick, Inc., failed to make the final payment of $2,700 due under the subcontract in February 1983, the loan had to be extended, costing a “couple hundred dollars” in additional interest. Hanzel testified the general contractor told him it was withholding the contract payment at the request of the State until a prevailing wage investigation was completed. Hanzel also testified that he did not make the anticipated $1,500 profit on the project and, if he had believed it necessary to pay prevailing wages to his employees, his contract bid would have been higher.

Walter Carey is the chief labor conciliator for defendant Illinois Department of Labor and head of its Division of Conciliation and Mediation. Defendant William Spann is employed as a conciliator by the division, and his duties include investigation of disputes arising under the prevailing wage act. In November 1982, Carey assigned Spann to investigate a complaint of a wage violation on the project upon which plaintiffs were engaged. On February 3, 1983, Spann advised plaintiffs by letter that he was conducting a prevailing wage investigation of Hanzel Construction and requested payroll information regarding plaintiffs’ employees on the forest preserve project. Plaintiffs responded by furnishing copies of their payroll records on February 17, and on that same day defendant Spann wrote to the general contractor, Wehde & Southwick, Inc., advising it of the investigation of Hanzel Construction, Inc., and stating therein, “I am requesting that your company withhold any funds due to Hanzel Construction until I have completed my investigation of their payroll records for this project.”

On March 1, Spann completed his investigation, determining that Hanzel Construction owed two of its employees a total of $1,785.02 to bring their wages up to the prevailing rate. In a letter to plaintiffs on that date, Spann advised them of his findings that they were in violation of their obligation to pay prevailing wages on the project and requested that plaintiffs make out checks for the deficiencies to those employees and send them to the Department of Labor for forwarding. On March 22 and March 23, Spann also directed letters to the general contractor’s attorney advising of the results of his investigation of plaintiffs and stating:

“Inasmuch as it is the duty of the general contractor to insure that all subcontractors working for them shall conform to these requirements, the Department of Labor is requesting that you hold up any monies due the above named contractor until this violation of the contract is corrected.”

Plaintiffs did not remit the requested checks for the balance due its employees, and the general contractor did not pay over to plaintiffs the $2,700 balance on their contract prior to the initiation of this litigation. Before trial, the defendant general contractor was dismissed with prejudice after deposit of $2,753 in trust until the further order of the court, and the Department of Labor was dismissed as a defendant by agreement of the parties.

After a bench trial, judgment was entered in favor of plaintiffs under count II of the complaint (tortious interference with contract) and count III (Federal civil rights violation) in the sum of $15,000 against defendant Spann. The trial court found that defendant’s intentional and unjustified actions had caused the general contractor to breach its contract with plaintiffs and that defendant’s conduct had also deprived plaintiffs of their property interest in the contract without due process of law in violation of 42 U.S.C. sec. 1983. Attorney fees of $8,601.25 were also awarded to plaintiffs under count III.

We note initially that it is the declared policy of this State that a wage of no less than the general prevailing hourly rate paid for work of a similar character in the locality be paid to laborers and workers employed by contractors who are engaged in public works. (Hayen v. County of Ogle (1984), 101 Ill. 2d 413, 416, 463 N.E.2d 124; Ill. Rev. Stat. 1981, ch. 48, pars. 39s—1, 39s—3.) A public body awarding a contract is required to insert a provision to that effect in its contracts (Ill. Rev. Stat. 1981, ch. 48, par. 39s—4), as the Forest Preserve District did in this case, which provision was also incorporated in the subcontract awarded to plaintiffs. The prevailing wage act mandates, too, that the Department of Labor “inquire diligently as to any violations” of the act and enforce its provisions. (Ill. Rev. Stat. 1981, ch. 48, par. 39s—6.) It is in the context of a Department of Labor investigation and enforcement of the terms of the prevailing wage act that this action arose and in which the rights of plaintiffs and defendant must be considered.

I

Tortious Interference With Contract

Defendant contends first he is immune from liability for his described conduct under the doctrine of public officials’ immunity. That doctrine provides that State officials and employees are protected from personal liability for actions taken in the exercise of their official discretion. (Mora v. State (1977), 68 Ill. 2d 223, 234, 369 N.E.2d 868; Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 1000, 372 N.E.2d 1131.) To be protected, the actions taken must be within the scope of the official’s authority and not as a result of malicious motives. (Hicks v. Williams (1982), 104 Ill. App. 3d 172, 177, 432 N.E.2d 1278, appeal denied (1982), 91 Ill. 2d 569.) The doctrine is based upon the policy that public officials should be free to exercise their judgment according to their best perception of public needs. Kelly v. Ogilvie (1965), 64 Ill. App. 2d 144, 147, 212 N.E.2d 279.

While some cases applying the doctrine distinguish between an official’s actions which are discretionary and those which are only ministerial, and thus not protected, it appears that the better distinction is whether or not the conduct in issue was governmental in character; if so, the immunity doctrine will apply. (Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 1002, 372 N.E.2d 1131.) In Hicks v. Williams (1982), 104 Ill. App. 3d 172, 177, 432 N.E.2d 1278, appeal denied (1982), 91 Ill. 2d 569, the court held that the duty to license and inspect grain elevators, as authorized by statute, was governmental in character and thus within the doctrine. Conversely, in Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 1002, 372 N.E.2d 1131, the court determined that negligent treatment of an inmate by a doctor employed by the Department of Corrections was not conduct protected by the doctrine, as a doctor’s duty of care is the same whether he is a governmental employee or private practitioner.

Plaintiffs recognize there are circumstances wherein governmental employees are not personally liable for their actions, but argue that defendant Spann here acted outside of his lawful authority. Plaintiffs rely substantially on their exhibit No. 10, a document entitled “Procedures and Guidelines For Investigation and Enforcement of the Illinois Prevailing Wage Act.” Defendant Spann had testified that he generally followed the procedures contained therein, but that he had omitted certain of the investigative steps noted, i.e., Spann had not interviewed the person who had filed the complaint alleging the Act was being violated and he had not visited the construction site to talk to the employees.

Defendant’s supervisor, William Carey, testified, however, that Spann’s actions in investigating and acting upon the complaint were proper and were consistent •with the Department’s procedures. Carey had reviewed the letters Spann sent to plaintiffs and the general contractor and its attorneys and testified they did not violate departmental policy or were unusual in such matters. As to exhibit No. 10, Carey described it as a rough draft of proposed investigative procedures which he had circulated to all conciliators for comment; it had never been adopted by the Department and did not represent official policy. Carey testified that the Department had no formal policies or procedures in such investigations, other than the prevailing wage act itself, which charged it to “enforce generally” the Act. He considered that a request to a general contractor to withhold payment to suspected violators of the Act pending an investigation was an acceptable departmental procedure.

The prevailing wage act requires the Department of Labor to inquire diligently into violations and to enforce the terms of the Act. Defendant Spann was an employee of the Department whose duties as a conciliator included such investigations and he was assigned by his supervisor to do so in this case. Spann’s action in advising the general contractor that plaintiffs were being investigated for violations and that payments to plaintiffs should be withheld was not more than a request and, while it was followed, the general contractor was not required to do so.

Defendant Spann was clearly acting within the scope of his employment by the Department of Labor in carrying out his duty under the statute. Whenever a statute sets forth its requirements in general terms, officials charged with enforcement are vested with a reasonable discretion in doing so. (Zehender & Factor, Inc. v. Murphy (1944), 386 Ill. 258, 267, 53 N.E.2d 944.) We do not consider Spann exceeded that discretion in this matter, and, as his actions were governmental in character, the immunity doctrine protects him from liability in this case.

While the judgment must be reversed on the grounds we have discussed, there is a second basis which also requires reversal.

To prevail in an action for tortious interference with a contract a plaintiff must prove: (1) the existence of a valid contract between himself and another; (2) that defendant was aware of the contract; (3) that defendant intentionally and unjustifiably induced á breach by the other contracting party which was caused by defendant’s wrongful conduct; and (4) damages. Schott v. Glover (1982), 109 Ill. App. 3d 230, 234, 440 N.E.2d 376; Mitchell v. Weiger (1980), 87 Ill. App. 3d 302, 304, 409 N.E.2d 38, appeal denied (1980), 81 Ill. 2d 602.

Defendant Spann argues that the investigative procedures undertaken by him were privileged and thus may not be considered to be an unjustified and tortious interference with plaintiff’s contract.

A person is privileged to cause a breach of another’s contract if his acts in doing so were lawful and were not unreasonable under the circumstances, and if he acts to preserve a conflicting interest which the law deems to be of equal or greater value than the contractual rights at issue. (Schott v. Glover (1982), 109 Ill. App. 3d 230, 234, 440 N.E.2d 376; Connaughton v. Gertz (1981), 94 Ill. App. 3d 265, 269-70, 418 N.E.2d 858.) The privilege is conditional, however, and provides no protection if a defendant acted with malice. To demonstrate malice, more than ill-will must be shown, and the evidence must establish defendant acted with a desire to harm which was unrelated to the interest he was presumably seeking to protect by bringing about the contract breach. Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill. 2d 546, 551, 229 N.E.2d 514.

Plaintiffs’ remaining interest under the contract with Wehde & Southwick, Inc., was receipt of the $2,700 final payment due on completion of the work. Defendant Spann, in carrying out his duties under the prevailing wage act, advised those contracting parties that the Department of Labor was investigating a complaint that plaintiffs had violated the Act; Spann requested, but did not purport to order, that the payment be temporarily withheld. There is no suggestion made that Spann acted with malice or any motive other than to secure compliance with the Act. He also acted pursuant to procedures considered proper by the Department of Labor in such matters. As earlier noted, the general contractor was not obliged to comply with Spann’s request, but after consulting with its attorney chose to do so.

We conclude that while defendant’s actions did result in an interference with plaintiffs’ contract, they were not unlawful and were a reasonable means in these circumstances to seek compliance with the prevailing wage act. As such, a conditional privilege existed permitting Spann to so act in an effort to preserve and enforce the public policy expressed in the Act and justified his conduct. See Audition Division, Ltd. v. Better Business Bureau (1983), 120 Ill. App. 3d 254, 458 N.E.2d 115; American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 435 N.E.2d 1297, appeal denied (1982), 91 Ill. 2d 566; Middlesex Concrete Products & Excavating Corp. v. Carteret Industrial Association (1962), 37 N.J. 507, 517, 181 A.2d 774, 780.

In view of our resolution of these issues we need not consider defendant’s contention that this action was also barred by the doctrine of sovereign immunity.

II

Federal Civil Rights Claim

42 U.S.C. sec. 1983 (1982) provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

The trial court found that defendant Spann caused the general contractor to withhold payment on the contract, thus depriving plaintiffs of their property without due process of law, for which they could recover damages under section 1983.

Defendant contends he was immune from liability for damages under Harlow v. Fitzgerald (1982), 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727. Plaintiffs respond that the immunity doctrine therein stated does not here apply because defendant violated Department of Labor policy as set forth in exhibit No. 10, to which we have referred, and defendant cannot thus be said to have acted in “good faith.”

In Harlow v. Fitzgerald the court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (457 U.S. 800, 818, 73 L. Ed. 2d 396, 410, 102 S. Ct. 2727, 2738.) Although the rule in Harlow was not announced in the context of a section 1983 action, the court specifically noted its application to such claims. (457 U.S. 800, 818 n.30, 73 L. Ed. 2d 396, 410 n.30, 102 S. Ct. 2727, 2738-39 n.30.) The “good faith” test urged by plaintiffs was rejected in Harlow, which determined that a right to a qualified immunity is to be determined through an objective test of the reasonableness of an official’s conduct measured by reference to clearly established law. 457 U.S. 800, 815, 817-18, 73 L. Ed. 2d 396, 408-09, 102 S. Ct. 2727, 2737.

We have heretofore determined that defendant’s conduct in requesting the contract payment be withheld was privileged and was not tortious under State law. Nor did defendant’s request actually cause the general contractor to withhold the funds; defendant neither seized the funds nor ordered them to be withheld under threat of adverse consequences for failure to do so. There is no support in the record, nor did the trial court find, that defendant Spann either-knew or should have known that his conduct of this investigation was unlawful or contrary to State policy in any respect. He followed customary procedures of long and unchallenged standing in the Department of Labor and did nothing to require that the general contractor withhold the funds. On the contrary, Spann testified that if he was unable to secure voluntary compliance with his requests the file would be closed and the matter referred to his supervisors for a decision as to other action.

Essentially, defendant Spann’s conduct demonstrates only the reasonable efforts of the Department of Labor to enforce the terms of the prevailing wage act as it is there directed to do. By these procedures Spann sought to ascertain whether violations had occurred and to request compliance and the withholding of funds which may be due to workers on public works projects. There are neither statutory nor constitutional prohibitions of the procedures here followed, and defendant is entitled to be shielded from liability for his conduct.

III

Damages

As we have determined the judgment must be reversed on the several grounds discussed, we need not consider the arguments relating to damages. Plaintiffs’ motion to strike portions of defendant’s reply-brief relating to damages, which was taken with the case, -will be denied.

Accordingly, the judgment of the circuit court will be reversed.

Reversed.

HOPF and STROUSE, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL T. CARLYLE, Defendant-Appellant.
    Second District
    No. 83—1124
    Opinion filed January 23, 1985.
    Mary Robinson, of Elgin, for appellant.

      Theodore Floro, State’s Attorney, of Woodstock (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Following a hearing conducted pursuant to the Illinois implied-consent statute (Ill. Rev. Stat., 1982 Supp., ch. 951/2, par. 11— 501.1), the trial court found the State had met its burden on the issues required to be proved under the implied-consent statute, and denied Michael T. Carlyle’s request for a finding that he did not refuse to submit to a breathalyzer test.

Carlyle appeals from that decision, contending on appeal that the State failed to prove that he refused to submit to the breathalyzer test.

The parties entered into an agreed record of the proceedings below, signed by the trial judge, as a substitute for a verbatim transcript of the evidence at the hearing. See 87 Ill. 2d R. 323(c).

At the hearing, Wayne Wofford, a McHenry County deputy sheriff, testified that on November 4, 1982, at 8:04 p.m. he observed a brown Subaru, later determined to be driven by Michael T. Carlyle, go off the roadway several times. He had to force the vehicle to a stop, as the vehicle failed to stop after Wofford activated his Mars light and siren. Carlyle fell while exiting the vehicle, and a strong odor of alcohol emanated from his breath. His speech was slightly slurred and he was incoherent. Carlyle was unable to walk a straight line or stand, and refused to perform a finger-to-nose test. Wofford placed him under arrest for driving under the influence of alcohol (DUI) and read him the implied-consent warning that his refusal to take the breathalyzer test would result in suspension of his driving privileges. He repeated this warning two or three times at the scene and several times at the police station. In response to the requests to take the breathalyzer tests, Carlyle replied that he did not know what was going on and did not understand what Wofford was saying. Wofford testified Carlyle was almost incomprehensible at times and was very intoxicated. Carlyle was able to respond to other questions about where he had been, when he had been there, and what he had eaten during the day.

The only witness presented by the defense was Dr. Robert Meyer, a psychologist employed as director of the jail rehabilitation program for McHenry County, who testified, in essence, that alcohol impairs one’s ability to make judgments.

Carlyle contends on appeal that Wofford’s testimony established that he was extremely intoxicated, that he was unable to stand on his own, and that he was largely incoherent, and also showed that each time he was requested to submit to a breathalyzer test he responded by saying he did not understand. He further seemed to be confused about the requests to take the tests. Carlyle argues that as a matter of law Wofford’s testimony fails to support a finding that he actually refused to submit to the tests.

The Illinois implied-consent statute provides, in pertinent part, that:

“(a) Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol *** content of such person’s blood if arrested [for driving under the influence of alcohol] ***.
(b) Any person who is dead, unconscious or who is otherwise in a condition rendering such person incapable of refusal, shall be deemed not to have withdrawn the consent provided by paragraph (a) of this Section ***.
(c) A person requested to submit to a test as provided above shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in suspension of such person’s license to operate a motor vehicle for six (6) months for the first such arrest and refusal and a suspension of such privilege for 12 months for the second and each subsequent such arrest and refusal within 5 years. Following this warning, if a person under arrest refuses upon the request of a law enforcement officer to submit to a test designated by the law enforcement agency as provided in paragraph (a) of this Section, none shall be given, but the law enforcement officer shall file with the clerk of the circuit court for the county in which the arrest was made, a sworn statement naming the person refusing to take and complete the test or tests requested under the provisions of this Section. Such sworn statement shall identify the arrested person, such person’s driver’s license number and current residence address and shall specify that a refusal by said person to take the test or tests was made. Such sworn statement shall include a statement that the arresting officer and [sic] reasonable cause to believe the person was driving the motor vehicle within this State while under the influence of alcohol, other drug, or combination thereof and that such test or tests were made as an incident to and following the lawful arrest for an offense as defined in Section 11—501 of this Code or a similar provision of a local ordinance, and that the person after being arrested for an offense arising out of acts alleged to have been committed while so driving or in actual physical control of a motor vehicle refused to submit to and complete a test or tests as requested by the law enforcement officer.
*** Such hearing shall proceed in the court in the same manner as other civil proceedings, shall cover only the issues of whether the person was placed under arrest for an offense as defined in Section 11—501 of this Code or a similar provision of a local ordinance as evidenced by the issuance of a uniform traffic ticket; whether the arresting officer had reasonable grounds to believe jthat such person was driving or in actual physical control of a motor vehicle while under the influence of alcohol, other drug, or combination thereof; and whether such person refused to submit and complete the test or tests upon the request of the law enforcement officer. Whether the person was informed that such person’s privilege to drive would be suspended if such person refused to submit to the test or tests shall not be an issue.” Ill. Rev. Stat., 1982 Supp., ch. 951/2, par. 11—501.1.

In an implied-consent hearing, the State has the burden of proving by a preponderance of the evidence that the person to whom the request to take an intoxication test was given refused to submit to the test. (People v. Schuberth (1983), 115 Ill. App. 3d 302, 304, 450 N.E.2d 459.) A decision of the trial court in an implied-consent hearing will not be overturned on appeal unless it is contrary to the manifest weight of the evidence. (See People v. Schuberth (1983), 115 Ill. App. 3d 302, 304, 450 N.E.2d 459.) This State’s implied-consent statute was adopted to assist in determining whether motor vehicle drivers suspected of intoxication are in fact under the influence of alcohol (People v. Roflingsmeyer (1984), 101 Ill. 2d 137, 139, 461 N.E.2d 410), and should be liberally construed to accomplish its obvious purpose—to protect the citizens of the State upon the highways. (People v. Porretta (1984), 127 Ill. App. 3d 572, 576, 469 N.E.2d 314.) The fundamental in statutory construction is to ascertain the intention of the legislature and then to give effect to it. People v. Rink (1983), 97 Ill. 2d 533, 539, 455 N.E.2d 64.

The crux of Carlyle’s appellate argument is that there is no evidence that he in fact expressly refused to take the intoxication test. He contends that when his responses are viewed objectively, they clearly indicate his confusion about the requests to submit to the tests, and the trial court’s finding of his refusal to submit to the breathalyzer test was against the manifest weight of the evidence. In support of this contention, Carlyle cites numerous decisions from foreign jurisdictions which, he argues, require an express refusal to submit to an intoxication test under implied-consent statutes similar to ours. (See, e.g., Commonwealth v. Hayden (Ky. 1972), 484 S.W.2d 97; Hyde v. Dorius (Utah 1976), 549 P.2d 451; Commonwealth v. Guarino (1975), 19 Pa. Commw. 104, 339 A.2d 861; Mills v. Swanson (1969), 93 Idaho 279, 460 P.2d 704.) To the contrary, however, there is authority that the refusal to submit to an intoxication test need not be an express oral or physical refusal under circumstances where the defendant was intoxicated. Sweitzer v. Department of Transportation (1984), 140 Ariz. 536, 683 P.2d 335; State v. McElwain (1972), 80 Wash. 2d 624, 496 P.2d 963; Hoban v. Rice (1971), 25 Ohio St. 2d 111, 267 N.E.2d 311; Kaufman v. State (La. App. 1973), 286 So. 2d 723; see also In re Schuttler (S.D. 1978), 262 N.W.2d 61; State v. Normandin (1969), 284 Minn. 24, 169 N.W.2d 222.

In Illinois, no reviewing court has been presented with the precise factual question before us here, i.e., when the admonition as to the consequences of a refusal is given in the form prescribed by statute, and the motor vehicle operator, though conscious, does not expressly refuse to submit to an intoxication test due to his confusion or disorientation caused by his own intoxication, whether he may be deemed to have refused. However, in a somewhat analogous case, People v. Solzak (1984), 126 Ill. App. 3d 119, 466 N.E.2d 1201, the appellate court held that the refusal to take an intoxication test by a person under arrest for driving while under the influence of alcohol need not be a “knowing” refusal to be the basis for a suspension of driving privileges under section 11—501.1. (126 Ill. App. 3d 119, 123, 466 N.E.2d 1201.) In Solzak, the evidence was conflicting as to whether the defendant refused the intoxication test. An officer testified the defendant refused, while the defendant testified she did not recall any conversation with the officer. In reaching its decision that a “knowing” refusal was not required under Illinois law, the appellate court stated:

“It is clear to us that the purpose of Illinois’ implied consent statute is to make the streets and highways safer for its citizens by making prosecution of intoxicated drivers easier. Allowing an individual who is too intoxicated to knowingly refuse a blood test to escape the deterrent and retributive effects of the statute would not serve to further that purpose. Furthermore, such a result would circumvent the plain meaning of the statute, which calls for suspension of one’s driver’s license upon refusing to take the blood test. Noticeably absent from the statute is any exception to the rule for lack of knowing refusal, and we will not create such an exception by judicial fiat.” 126 Ill. App. 3d 119, 122-23, 466 N.E.2d 1201.

In the case at bar, the evidence established that Officer Wofford asked Carlyle several times to take the breathalyzer test. Carlyle’s responses were to the effect that he did not know what was going on and did not understand what Wofford was saying. Although there was no testimony of an express refusal to take the test, as there was in Solzak, Officer Wofford apparently concluded- Carlyle’s responses were tantamount to a refusal. Also, from this record it is clear that Carlyle was very intoxicated at the time. It is further apparent from the evidence that Carlyle’s responses to Wofford’s request to take the breathalyzer test resulted from his state of intoxication.

We conclude, as did the court in Solzak, that the purpose and meaning of the Illinois implied-consent statute, in assisting in the determination of whether motor vehicle drivers suspected of intoxication are in fact under the influence of alcohol, is to make the streets and highways of this State safer for its citizens by making prosecution of intoxicated drivers easier and by suspension of driver’s licenses upon refusals to submit to an intoxication test. See also People v. Rolfingsmeyer (1984), 101 Ill. 2d 137, 139, 461 N.E.2d 410.

One who operates a motor vehicle is deemed to have given his consent to an intoxication test (Ill. Rev. Stat., 1982 Supp., ch. 951/2, par. 11—501.1(a)), and any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn that consent (Ill. Rev. Stat., 1982 Supp., ch. 951/2, par. 11—501.1(b)). However, the statute also provides that an operator may refuse an intoxication test with the resultant suspension of his driver’s license (Ill. Rev. Stat., 1982 Supp., ch. 951/2, par. 11—501.1(c)). Here, Carlyle was not unconscious or otherwise in a condition rendering him incapable of refusal. Although it is readily apparent Carlyle was confused due to his own intoxication, he was able to communicate verbally and did answer other questions about where he had been and what he had eaten during the day. Thus, we do not believe Carlyle falls within the category of persons described in section 11—501.1(b) as unconscious or its equivalent, making him incapable of a refusal. See Sweitzer v. Department of Transportation (1984), 140 Ariz. 536, 683 P.2d 335.

Nevertheless, Carlyle argues that there is no evidence he refused the test. While it is true from this record that Carlyle never expressly refused the breathalyzer test, which we believe from the facts was due to his confusion caused by his own intoxication, we believe the statute does not require an express refusal under these circumstances. To require an express refusal under these facts would exempt from the statutory coverage the precise class of persons— the drunken drivers—whom the implied-consent statute was intended to determine and remove from our highways. (See State v. McElwain (1972), 80 Wash. 624, 496 P.2d 963.) Such a narrow construction of the implied-consent statute requiring an express refusal under these facts would lead to the absurd result of exempting the very intoxicated driver from the penalty provided for refusal to comply with the request that he submit to a test. It is presumed that the legislature in passing legislation did not intend absurdity, inconvenience or injustice (People v. Sansone (1981), 94 Ill. App. 3d 271, 273, 418 N.E.2d 862), and the implied-consent statute should be liberally construed to effectuate its purposes. People v. Porretta (1984), 127 Ill. App. 3d 572, 576, 469 N.E.2d 314.

We, therefore, hold that under our implied-consent statute when the admonition as to the consequences of a refusal is given in the form prescribed by statute, and the motor vehicle operator, though conscious, does not expressly refuse to submit to an intoxication test due to his confusion or disorientation caused by his own intoxication, he shall be deemed to have refused such test. Carlyle, under the facts here, shall be deemed to have refused the test after being repeatedly requested to submit to a test, and the trial court’s findings are not against the manifest weight of the evidence.

Affirmed.

UNVERZAGT and SCHNAKE, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE MAXWELL, Defendant-Appellant.
    Second District
    No. 83—1113
    Opinion filed January 28, 1985.

      G. Joseph Weller and Nicholas Kritikos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Eddie Maxwell, was found guilty after a jury trial of attempted murder, attempted armed robbery and aggravated battery. The trial court vacated the convictions of the latter two offenses and sentenced the defendant to an extended term of 40 years’ imprisonment for attempted murder. The defendant appeals, contending that the State failed to prove beyond a reasonable doubt the existence of the requisite mental state for the offense of attempted murder, challenging the admission of evidence that the victim suffered clinical death some 14 hours after the offense and asserting that the sentence must be reduced as disproportionate in severity to that received by a codefendant.

On March 28, 1983, 78-year-old Laurence J. Schmidt was working alone in the offices of the Rockford Civic League, where he was employed part-time. The offices were located on the sixth floor of an office building on North Main Street in Rockford. Sometime after Mr. Schmidt returned from lunch, the defendant and a companion, Nathaniel Ingram, entered the office. When Mr. Schmidt approached them, one of the individuals inquired about the location of a barbershop. At that point, Mr. Schmidt was struck repeatedly with the leg from a broken chair. He raised his left arm- in an effort to ward off the blows and his arm was broken as he endeavored to protect himself. In the course of the beating he suffered multiple blows to the head, causing no cracks or fractures but resulting in substantial internal bleeding to the left hemisphere of the brain.

After the defendant and Ingram fled, Mr. Schmidt was taken to St. Anthony Hospital where, during the night, his cardiovascular system progressively deteriorated. At 4:30 a.m. on March 29, his heart stopped beating and he stopped breathing, a condition which his doctor described as “the equivalent of a person dying.” Mr. Schmidt was revived following two hours of treatment. It was the doctor’s opinion that the injury sustained in the beating was directly responsible for the deterioration and eventual cessation of Mr. Schmidt’s heart and breathing.

Rockford police officers obtained a manila envelope bearing the defendant’s palm print and the chair leg from the office where the beating had occurred. Defendant was arrested on May 20, 1983, and interrogated concerning the offense. After being advised of his Miranda rights and executing a waiver, the defendant made a written statement in which he stated that he had gone to downtown Rockford on March 28 in the company of Nathaniel Ingram. They walked around the mall looking at stores, and admired the gold rings on display in a jeweler’s. As they continued to walk, Ingram said, “Man, I feel vicious. I feel vicious. I’m going to do something. I’m going to do something.” As they came to the office building where the offense occurred, Ingram indicated that he wished the defendant to serve as a lookout, and defendant watched for Ingram as they progressed along the halls from floor to floor.

When they arrived on the sixth floor, Ingram told the defendant, “Wait a minute. Wait a minute. I know where this man bees [sic] in his office all the time.” The pair walked along to an office where an old man was seated behind a desk, reading the newspaper. Ingram kept looking in and saying, “Man, oh man,” as the defendant was trying to see in. The pair then walked away from the office to a stairway, where Ingram told the defendant to wait and tell him if anyone came. Ingram said he was going back to the office. The defendant next heard a lot of noise and someone hollering. He ran to the door and told Ingram to come on. When the defendant looked in, the club was on the floor and Ingram was choking Mr. Schmidt and trying to get his coat off. The defendant again urged Ingram to come on and took off down the hall. Ingram caught up to the defendant, and the two men walked down to the street. There they started walking, playing like nothing had happened. Defendant denied that Ingram told him anything or gave him any money. “I was so scared about what he did that I never did ask him for any money.”

The defendant identified the chair leg which had been used in the beating. He denied having seen it before, or knowing where it had come from. Upon being advised that the police intended to search his home, the defendant advised them that they “would possibly find the rest of this chair underneath the back porch of his home.” Other pieces of the chair were in fact recovered from beneath the porch.

The defendant testified in his own behalf that he went window shopping with Nathaniel Ingram in downtown Rockford on March 28. When they passed the office building, Ingram suggested going inside and the defendant, who needed to use the bathroom, agreed. They progressed from floor to floor, but all the bathrooms were locked. On the sixth floor, they encountered a woman who told them that they would need to get a key from one of the offices in order to use the bathroom. Ingram led the defendant to the offices of the Rockford Civic League, where the defendant saw Mr. Schmidt through the open door. When the defendant approached to inquire about the bathroom, Ingram struck Mr. Schmidt with the stick. The defendant panicked, turned toward the door and told Ingram to get out of there. The defendant began running down the hall, hearing Schmidt hollering, and ran all the way down the stairs before hearing Ingram coming down after him. The defendant left the building before Ingram overtook him, and the two proceeded toward the mall. The defendant testified that he had related this version of events to the interrogating detectives, and that he had not read the written statement prepared during the interrogation before signing it. He denied having the wooden chair leg with him at any time on March 28, or having known that Ingram had it before the attack on Mr. Schmidt. Ingram had never told the defendant what he planned to do in the office or asked for the defendant’s help. He denied having agreed to serve as Ingram’s lookout, and as having recognized the chair leg as coming from his house. However, the defendant had a lot of sticks lying around in his yard and thought that if the police looked they might find something similar to the chair leg used on Mr. Schmidt. He had no idea how Ingram obtained the stick from under his porch. He had believed that Ingram’s statement about feeling vicious and going to do something was just a figure of speech.

The defendant initially asserts on appeal that there was insufficient evidence of his intent to kill the victim in this case to permit his conviction for attempted murder to stand. The defendant’s assertion is based upon his analysis of the number of blows struck, the relative suitability of the weapon employed for causing deadly injury and the nature and extent of the injuries inflicted, all of which he finds sufficiently indicative of an intent merely to rob as to fail to establish beyond a reasonable doubt that the defendant further intended to bring about his victim’s death.

A conviction for the offense of attempted murder (Ill. Rev. Stat. 1983, ch. 38, par. 8—4) must be supported by proof that the defendant had the specific intent to kill the victim. (People v. Myers (1981), 85 Ill. 2d 281, 289.) Intent is a state of mind which, if not admitted, can be established by proof of surrounding circumstances including the character of the assault, the use of a deadly weapon and other matters from which an intent to kill may be inferred. (People v. Anderson (1982), 108 Ill. App. 3d 563, 566.) Once the elements of an attempt are complete, abandonment of the criminal purpose is not a defense. People v. Myers (1981), 85 Ill. 2d 281.

The defendant asserts that the wooden chair leg chosen for use in the instant case “falls far short of being a weapon of choice for murder,” being less suitable for causing deadly injury than such possible alternates as a baseball bat or a length of pipe. Thus, he concludes that it was not an instrument of such deadly character that its use necessarily implies an intent to kill. He also notes that photographs of the scene reveal the presence of a large pair of dagger-like scissors, assertedly a weapon more suitable for inflicting a fatal injury, in plain view on the office desk. The defendant argues that the failure to employ so available a weapon negates the existence of an intent to kill. Furthermore, the defendant claims that the failure of the assailants to complete their alleged act, leaving the victim conscious, mobile and calling for help, demonstrates that there was no intent to kill in the present case.

In analyzing the defendant’s challenge to the sufficiency of the evidence, we conclude that there was sufficient proof of the requisite intent to establish guilt beyond a reasonable doubt. In arriving at this conclusion, we consider the body of circumstantial evidence marshalled by the State in its entirety, rather than as separate facts which, viewed alone, may be susceptible of innocent interpretations. We cannot agree with the defendant’s assertion that the selection of a chair leg for a weapon in itself tends to indicate a design other than that to inflict a fatal injury. Certainly, a solid length of wood when used as a bludgeon and swung against the head both violently and repeatedly is manifestly an implement capable of taking human life. That defendant and Ingram did not arm themselves with some more inherently deadly instrument or employ the scissors on the desk is immaterial. The jury, finding that the intent to kill had been proved, was not required to speculate as to whether some other potential weapon was as readily available or as easily concealable as the chair leg, or as to whether the two offenders were content that the weapon chosen was adequate for their purpose.

Further, while the defendant views the manner of the attack as indicating an absence of the intent to kill, the same facts give rise to a contrary conclusion. The victim was 78 years old and was confronted by two individuals whom the State has aptly characterized as “sturdy youths.” Not only had he offered no resistance, he had not been apprised that any type of offense was contemplated by his assailants at the time he was attacked. Mr. Schmidt’s purely defensive reaction to the assault constituted a demonstration of his inability to offer meaningful resistance, and the continuation of the attack thereafter, done with sufficient force to fracture the arm with which the victim sought to protect his head, was evidence from which the jury could reasonably conclude that the attackers sought to silence their victim by killing him. The fact that the defendant and Ingram broke off their attack before achieving their purpose may well have been viewed by the jury as indicating only that they had become frightened by the victim’s continued calls for help in an office building where potential rescuers were present. The fact that an assailant, armed with a deadly weapon, chooses to flee when his victim cries for help, rather than choosing to inflict a fatal injury, does not negate the existence of the intent to kill. (People v. Anderson (1982), 108 Ill. App. 3d 563.) Moreover, it is anomalous for the defendant to claim that the nature and extent of the victim’s injuries are inconsistent with an intent to kill when those injuries in fact resulted in his clinical death. While the lack of cracks or fractures on the skull must be considered, the fact that the blows struck caused a severe intercranial hemorrhage amply evidences the violence with which the blows were inflicted. Contrary to defendant’s position, this conclusion is not based upon consideration of the subsequent or collateral effect of injuries, but rather represents a deduction regarding the violence employed on the basis of the direct consequences of its infliction.

The defendant next contends that the trial court committed reversible error in allowing medical testimony that Mr. Schmidt experienced clinical death some 14 hours after the beating. The defendant construes this testimony as irrelevant to any issue in the case and extremely prejudicial in that it served solely to inflame the passions of the jury and focused their attention on an irrelevant factor. Defendant maintains that the medical testimony can be divided into two parts dealing with the nature and extent of the injuries and the subsequent effects of those injuries. The defendant concedes the admissibility of evidence in the first category (see People v. Chatman (1982), 110 Ill. App. 3d 19), but contends that evidence regarding Mr. Schmidt’s clinical death fell into the latter category and was improperly admitted.

In the cases upon which the defendant relies (People v. Nickolopoulos (1962), 25 Ill. 2d 451; People v. Johnson (1979), 76 Ill. App. 3d 147), the weapon in question was a firearm, a deadly weapon per se, so that the intent to kill can be found from its use irrespective of the extent of the injuries inflicted. In such a case, inflammatory evidence regarding the nature of the wounds or the consequences of the crime may not properly be admitted. However, in the instant case the weapon employed was not inherently deadly, and whether it was used with the intent to kill required an analysis of the manner in which it was employed. Specifically, the jury was required to evaluate whether the chair leg was swung with such force that the assailant necessarily intended to kill his victim. In such circumstances, the nature and seriousness of the injury are considered essential elements of the charge.r (People v. Chatman (1982), 110 Ill. App. 3d 19; People v. Goodwin (1980), 83 Ill. App. 3d 203.) Here, where an evaluation of the nature and extent of the injuries inflicted was critical to determining the intent with which the blows at issue were inflicted, and where descriptions of the injury as an intercranial hemorrhage with a large amount of bleeding inside the brain tissue may not have adequately explained the force with which the injury was inflicted, testimony that Mr. Schmidt’s essential life functions ceased as a direct result of the blow was properly admitted as relevant and explanatory of the nature and extent of the victim’s injuries.

The State further contends that evidence of the victim’s subsequent medical treatment was relevant because instructions on the lesser included offense of aggravated battery were tendered to the jury by defense counsel. The State argues that such evidence is relevant on the issue of bodily harm, an element of the lesser offense. (People v. Tiess (1981), 97 Ill. App. 3d 45.) Defendant counters the State’s argument by suggesting that defense counsel’s tendering of the instruction merely represented an attempt to minimize the negative impact of the disputed evidence and therefore cannot justify evidence of the victim’s clinical death. We disagree with this facet of defendant’s argument, for its acceptance would place attorneys and trial judges in a position where the propriety of admitting evidence was dependent upon the subsequent decision as to whether instructions on certain lesser offenses were to be given to the jury. Our view is that if the evidence is relevant upon a lesser offense properly included within the offense charged, evidence tending to bear on that offense may be admitted before the jury. In any event, we do not believe that the test for admissibility of evidence of the victim’s condition is markedly different in a prosecution for aggravated battery than in one for attempted murder where an implement other than a deadly weapon per se has been employed. Where the finder of fact is required to evaluate the nature and seriousness of the injury, the evidence in question should be admitted. (People v. Nard (1975), 32 Ill. App. 3d 634.) We find the trial court did not err in the admission of this evidence.

Finally, the defendant attacks the 40-year sentence imposed upon him as disproportionate in its severity to the sentence of 25 years given to Nathanial Ingram. Asserting that his degree of participation in the offense and personal background were less culpable than Ingram’s, defendant states that the sentence adjudged in his case reflects the fact that he contested the charges against him, while Ingram “was able to achieve a non-adversarial relationship with the State.”

Fundamental fairness and respect for the law require that defendants similarly situated not receive grossly disparate sentences, but a disparity in sentencing may be supported by a more serious criminal record or greater participation in the offense than the individual with whom the defendant’s conduct is compared. (People v. Godinez (1982), 91 Ill. 2d 47; People v. Cook (1983), 112 Ill. App. 3d 621; People v. Patterson (1981), 100 Ill. App. 3d 207.) An accused may not be punished for exercising his right to trial (People v. Sivels (1975), 60 Ill. 2d 102; People v. Peddicord (1980), 85 Ill. App. 3d 414), but if a disparity in sentencing is attributable to a codefendant’s plea of guilty to a lesser offense, the negotiated plea does not provide a valid basis of comparison. People v. Bennett (1980), 90 Ill. App. 3d 64; People v. Wagner (1979), 76 Ill. App. 3d 965.

In the instant case, the record indicated that the weapon used in the offense was obtained from beneath the defendant’s porch and this fact, coupled with the falsehoods in the defendant’s initial account of events and the subsequent contradictions between his written statement and his in-court testimony, provided a rational basis upon which the court could have concluded that the defendant’s degree of participation in the crime was more extensive and culpable than that of Ingram, who entered a negotiated plea of guilty. Accordingly, we reject the defendant’s attack upon the sentence imposed in his case.

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

Affirmed.

LINDBERG and STROUSE, JJ., concur.