author: PRESIDING JUSTICE SEIDENFELD

text:
    CHRIS A. COLEMAN, Plaintiff-Appellant, v. DAVID J. HERMANN, Defendant-Appellee.
    Second District
    No. 82—740
    Opinion filed July 21, 1983.

      Gail A. Moreland, of Abbamonto, Szura & Binder, of Woodstock, for appellant.
    Carolyn A. Brown, of Myron J. Hall, Ltd., of Waukegan, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The principal issue in this appeal is whether the failure to submit a general verdict form to the jury in a comparative negligence case invalidates its verdict. Plaintiff additionally urges that the verdict is against the manifest weight of the evidence and claims error in the direction of a verdict for the defendant on a count of wilful and wanton misconduct.

The Verdict

The plaintiff tendered Illinois IPI general verdict forms (Illinois Pattern Jury Instruction (IPI), Civil, No. A45.09 (Supp. 1981)). The court refused these verdict forms and over a general objection by the plaintiff gave the following non-IPI verdict form tendered by the defendant:

“We, the Jury, find the following special verdict on the issues submitted to us:
Issue No. 1. Was the defendant negligent?
Answer ‘yes’ or ‘no’ by placing a mark in the appropriate box.
Answer: □ Yes □ No
If you have answered Issue 1 ‘yes’, then answer the next issue.
Issue No. 2. Was the negligence of the Defendant a proximate cause of injury to the Plaintiff?
Answer ‘yes’ or ‘no’ by placing a mark in the appropriate box.
Answer: □ Yes □ No
If you have answered both Issue No. 1 and Issue No. 2 ‘yes’, also answer the next issue.
Issue No. 3. Was the plaintiff negligent?
Answer ‘yes’ or ‘no’ by placing a mark in the appropriate box.
Answer: □ Yes □ No
If you have answered Issue No. 3 ‘yes’, then answer the next issue.
Issue No. 4. Did the negligence of the Plaintiff contribute as a proximate cause to his injury?
Answer ‘yes’ or ‘no’ by placing a mark in the appropriate box.
Answer: □ Yes □ No
If you have answered both Issue No. 1 and Issue No. 2 ‘yes’, then answer the next issue.
Issue No. 5. Without taking into consideration the question of reduction of damages due to the negligence of the Plaintiff, if any, what is the total amount of damages suffered by the Plaintiff as a proximate result of the occurrence in question? Answer: $_
If you have answered Issues 1, 2, 3 and 4 ‘yes’, then answer the next issue.
Issue No. 6. Assuming that 100% represents the total combined negligence of the Plaintiff and of the Defendant whose negligence contributed as a proximate cause to Plaintiff’s injury, what proportion of such combined negligence is attributable to the Plaintiff on the one hand and what proportion is attributable to the Defendant on the other hand?
Answer: To Plaintiff (0% to 100%)_%
To Defendant (0% to 100%)_%
(Signatures).”

The jury answeréd “No” to the first question and the trial court entered judgment for the defendant. It appears from the legend on the copy of the instruction in the record that it had been adapted from Michigan and California pattern jury forms.

Section 2—108 of the Code of Civil Procedure, formerly section 65 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 65), provides that “[ujnless the nature of the case requires otherwise, the jury shall render a general verdict.” Ill. Rev. Stat. 1981, ch. 110, par. 2—1108.

Plaintiff argues that the form submitted to the jury was a special verdict, that this violated section 2—1108, and thus that the court’s entry of judgment on this verdict cannot stand. We agree that the form employed was a special verdict form. In rendering a general verdict the jury determines the ultimate result of the case. (Smith v. Gizzi (Okla. 1977), 564 P.2d 1009, 1013; Thorne v. Thorne (Mo. 1961), 350 S.W.2d 754, 757.) By a special verdict, the jury, instead of finding for either party, finds and states all the facts at issue, and concludes conditionally that if, upon the whole matter thus found the court should be of the opinion that the plaintiff has a good cause of action, it then finds for the plaintiff and assesses damages, thus limiting itself to finding ultimate facts and leaving the law to the court. (Crooks v. Sayles (1963), 39 Ill. App. 2d 22, 28; Chicago & Northwestern Ry. Co. v. Dunleavy (1889), 129 Ill. 132, 142.) The verdict form here consists of a series of questions and ultimate fact issues without any opportunity for the jury to declare a holding one way or the other and thus at least in form the jury rendered a special and not a general verdict. Plaintiff contends, however, that the language, “[ujnless the nature of the case requires otherwise,” applies to comparative negligence cases because by their nature they require juries to estimate the relative negligence of the parties and reduce plaintiff’s damages accordingly, thus necessitating a special verdict.

It appears that the quoted language was added to the former section 65 because the provision in the Civil Practice Act of 1907 for a special verdict was deleted from the 1933 Civil Practice Act. This was viewed as having abolished the special verdict in Illinois. (Ill. Ann. Stat., ch. 110, par. 65, Committee Comments, at 251-52 (Smith-Hurd 1968).) The argument that the qualifying language, which was added in 1955, applies to all comparative negligence cases where plaintiff’s negligence is in issue has been rejected by several recent appellate court opinions which found no error in the submission of a general verdict (IPI Civil No. A45.09) or a modified general verdict (IPI Civil Nos. A45.07, A45.08). See Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 709; Stromquist v. Burlington Northern, Inc. (1983), 112 Ill. App. 3d 37, 45; Hunter v. Sukkar (1982), 111 Ill. App. 3d 169, 177.

We have found no Illinois cases, however, which decide the issue before us: whether the refusal to submit a general verdict or a modified general verdict form in a comparative negligence case is error. Nor have we found any Illinois case explaining the import of the language “[u]nless the nature of the case requires otherwise.”

The defendant argues that Alvis v. Ribar (1981), 85 Ill. 2d 1, 28, impliedly fit comparative negligence within the qualifying language of section 2—1108 when it stated that “the use of special verdicts and special interrogatories will serve as a guide to assist the jury in its deliberations.” The court in Alvis, in our view, was merely responding to the arguments that the doctrine of comparative negligence was unworkable because juries are incapable of apportioning fault scientifically. It is not authority that comparative negligence requires dispensing with otherwise mandatory general verdicts. Generally, the availability of special interrogatories and modified general verdicts would appear to sufficiently supplement the use of a general verdict in a comparative negligence case, without dispensing with the general verdict. Any ambiguity in the jury’s apportionment of fault and consequential reduction of damage can be avoided by the submission of special interrogatories and/or the modified general verdict form. (See, e.g., Hunter v. Sukkar (1982), 111 Ill. App. 3d 169, 178.) Moreover, the supreme court in Alvis, if it had intended to require special verdicts in comparative negligence cases, presumably would have said so directly as it had before it the examples of opinions in Michigan and Florida to follow in which the form of verdict was provided in the opinion. See Placek v. City of Sterling Heights (1979), 405 Mich. 638, 663-64, 275 N.W.2d 511, 520; Hoffman v. Jones (Fla. 1973), 280 So. 2d 431, 439.

We would agree that the qualifying language of section 2 — 1108 must be given some meaning and does not entirely rule out special verdicts if the nature of the particular case, whether sounding in comparative negligence or otherwise, requires something other than a general verdict to achieve just results.

The qualifying language appears to be unique to Illinois. Other jurisdictions, however, have dealt with the general problem of verdicts in unusually complicated cases. Essentially, cases from jurisdictions which allow special verdicts explain that special verdicts are preferable, although not necessarily mandatory, in cases that are unusually complex factually or require application of difficult or especially subtle legal principles to the facts. Under such circumstances a general verdict might well amount to an invitation to an arbitrary or unsoundly based decision because the jury would simply have too much to handie. Thus, in a case involving complex principles of indemnity law as well as negligence of various sorts, a Federal district court gave a special verdict form to the jury, rather than go through a long series of involved instructions on the applicable legal principles which it would have had to do if it had submitted a general verdict. On post-trial review this procedure was upheld, the court commenting:

“Faced with all these principles which would have to be explained to the jury, were general verdicts to be asked of them in both these cases, the court concluded that any such complex general charge would inevitably give the jurors such an attack of intellectual indigestion that their verdicts could not possibly be based understandingly on the principles of law involved, and that injustice was accordingly only too apt to result.” Flush v. Erie R. Co. (D.N.J. 1953), 110 F. Supp. 118, 121.

(See also Thibault v. Sears, Roebuck & Co. (1978), 118 N.H. 802, 813, 395 A.2d 843, 850; Harless v. First National Bank (W. Va. 1882), 289 S.E.2d 692, 698; Envirex, Inc. v. Ecological Recovery Associates, Inc. (M.D. Pa. 1978), 454 F. Supp. 1329, 1339-40; Dixon v. Stewart (Utah 1982), 658 P.2d 591, 593-94.) We view the import of the qualifying language to give the trial judge some measure of discretion to use a special verdict form in an appropriate case, but we do not believe that it supports the position of the defendant in this case. The case before us is not complex, legally subtle or multipartied so as to require a special verdict; it involves one plaintiff, one defendant, one theory of liability and it appears from the facts to be the usual negligence case.

We conclude that the trial court erred in giving the special verdict form to the jury, but this does not end our inquiry. Whether there is reversible error in submitting the case to the jury on the form used must also be considered.

In a number of cases decided in other jurisdictions which require a general verdict by statute or rule, circumstances have been found to sustain judgments founded on special verdicts when they are substantially equivalent to general verdicts.

Thus, although Oklahoma requires a general verdict by statute and constitution, nonetheless several cases have held that reversal is not required because the case is submitted to the jury on a special verdict. (First National Bank v. Jones (1925), 111 Okla. 116, 119, 238 P. 488, 490.) In Jones, the trial court refused to submit a general verdict. The case went to the jury on an interrogatory which in substance asked whether the bank had paid the plaintiff all the rent money due her on the cotton in controversy and if any balance was due, if so how much. The answer of the jury was “No; $162.” The Oklahoma Supreme Court held that the interrogatory was “so nearly equivalent” to the jury saying that they find for the plaintiff and fix the amount of his recovery at a figure that it was in substantial compliance with the law which required a general verdict. The court also noted that if the jury had answered the part of the interrogatory in the affirmative it would have been equivalent to saying that the jury finds for the defendant, thus that the interrogatory had the effect of submitting to the jury the general issue of which party was entitled to recover. See also American Employers’ Insurance Co. v. McGeehee (Okla. 1971), 485 P.2d 754, 756 (interrogatory amounted to general verdict form since it contained the only issue of fact to be determined and its answer was equivalent to a general verdict); similarly, see Batting v. Siddons (1937), 179 Okla. 582, 583, 66 P.2d 923, 924; Edwards v. Rutland Savings Bank (1938), 181 Okla. 643, 644, 75 P.2d 1152, 1153; Vaught v. Holland (Okla. 1976), 554 P.2d 1174, 1176-77.

Dessauer v. Memorial General Hospital (N.M. App. 1981), 96 N.M. 92, 96, 628 P.2d 337, 341, has some factual similarity to the case before us. In Dessauer, general verdict forms submitted by the doctor and nurse in connection with their indemnity suit against a doctor were refused because not in the proper form. Interrogatories went to the jury including one which asked whether the doctor was negligent and which the jury answered “No.” Although the New Mexico rules of civil procedure require general verdicts, a judgment was upheld, the court noting that findings of fact and answers to interrogatories do not dispense with a general verdict in the usual case. If they affirmatively show the existence of every fact necessary to entitle plaintiff to recovery and the nonexistence of every defense or if they show as a matter of law that a valid defense has been established by the evidence they may constitute a general verdict. See also Kath v. Kath (1952), 238 Minn. 120, 123, 55 N.W.2d 691, 693.

Here, what was designated as a “special verdict” asked as issue No. 1 “[w]as the defendant negligent?” and the jury answered “No.” The other issues submitted on the “verdict” form were not required to be answered unless the first issue had been answered “Yes.” We conclude that the answer to the first interrogatory constituted, in substance, a general verdict that the defendant was not negligent, which essentially was a general verdict finding on an issue dis-positive of the case.

In addition, although the trial court submitted what was plainly a special verdict form to the jury, it also gave the jury several instructions which would normally go with a general verdict since they instructed the jury how to apply the law to the ultimate fact findings and thus return a verdict “for the plaintiff” or “for the defendant.” Plaintiff’s instruction No. 2 (IPI Civil No. 21.02) instructed the jury as to the burden of proof and the elements to be proved, and told it that if proved the verdict should be for the plaintiff or if not proved the verdict should be for the defendant. The jury was similarly instructed by plaintiff’s instruction No. 11 (IPI Civil No. A21.02). By plaintiff’s instruction No. 16 the jury was also told how to apportion damages if the plaintiff’s injury was proximately caused by a combination of negligence of the defendant and contributory negligence of the plaintiff. (IPI Civil No. A45.05.) Defendant’s instruction No. 3 also instructed on the theory of comparative negligence (IPI Civil No. A10.03). By these instructions the jury knew the legal effect of its answers as it was informed as to what the result would be if it found certain ultimate facts or combinations of facts. At a minimum it was clear that the jury knew, because it was told, that a finding that defendant was not negligent would mean no recovery for the plaintiff. Cf. Sangster v. Van Hecke (1977), 67 Ill. 2d 96, 101 (citing Oklahoma and Minnesota cases holding that submissions on special interrogatories which called upon the jury to dispose of the fact issues necessary for judgment were in substance general verdicts upon which judgments could be entered, and also emphasizing the role of instructions in making the intent of the jury clear).

Plaintiff alleges no prejudice from the use of the special verdict form. His speculative argument that the jury may be tempted to forego the difficult balancing of negligence and simply find the defendant not negligent, ending the matter there, appears to be no less true with a general verdict. Since the jury was extensively instructed on applying the law to the facts to reach its ultimate result we find no deprivation of a right to a jury trial in the submission of what was, in form, a special verdict but in substance, a general verdict.

Manifest Weight

On November 3, 1978, at 7 or 7:30 p.m., plaintiff was driving eastbound on Route 20 in McHenry County. Route 20 is a flat rural two-lane solid blacktop highway with gravel shoulders. As plaintiff drove east on Route 20 the car in front of him collided with a deer that had started to cross the road. The deer came over the top of that car and landed in the middle of the road, lying, according to plaintiff, north-south across the center line. Plaintiff braked and stopped his car some 15 feet east of the deer. Plaintiff started to walk to the center of the road, saw defendant’s car when it was about 15 feet away, and was struck in the leg and injured. The jury could have found from the evidence that the scene of the accident was very dark, that plaintiff was wearing dark clothing, that defendant had good reason to be focusing on his own lane of traffic seeking to get around a deer and around an individual who had come from the other side of the road and was pulling the deer off, that plaintiff darted into the roadway suddenly, almost as defendant came upon the deer, that the defendant did not swerve substantially over the center line, and that, in general, defendant was not negligent because he failed to see or look for a pedestrian who suddenly and unexpectedly darted into the roadway. (See Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 145; McCullough v. McTavish (1978), 62 Ill. App. 3d 1041, 1047.) The jury could conclude that defendant could not necessarily be expected to anticipate the actions of the plaintiff and therefore should not be held negligent. (Piechalak v. Liberty Trucking Co. (1965), 58 Ill. App. 2d 289, 296-97.) The jury’s fact determination will be reversed only if against the manifest weight of the evidence, that is, only if an opposite conclusion is clearly evident. (Gettemy v. Grgula (1975), 25 Ill. App. 3d 625, 628.) We conclude from the whole record that the jury’s fact determination was not against the manifest weight of the evidence.

Directed Verdict, Wilful and Wanton Count

Plaintiff’s final argument is that the trial court should not have directed a verdict on the wilful and wanton misconduct count of the complaint. He argues that the jury could have reached a supportable verdict in his favor on this issue because there was evidence that the defendant was reckless in not discovering or anticipating the danger that arose from his swerving into the eastbound lane and in failing to keep a lookout for pedestrians or other automobiles. Wilful and wanton conduct has been defined as “an intentional or reckless disregard for the safety of others.” (Mantia v. Kaminski (1980), 89 Ill. App. 3d 932, 936.) It may include a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. (Hering v. Hilton (1958), 12 Ill. 2d 559, 562.) Failure to keep a proper lookout may amount to wilful and wanton misconduct under certain circumstances. (Koch v. Lemmerman (1956), 12 Ill. App. 2d 237, 241.) A verdict, however, should be directed only when all of the evidence, viewed in the light most favorable to the party against whom the verdict is to be directed, so overwhelmingly favors the moving party that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.

The evidence, seen most favorably for plaintiff, indicates that plaintiff was wearing light clothing and was visible to defendant, who, upon sighting the dead deer, swerved several feet into the eastbound lane after reducing his speed somewhat in attempting to brake. Defendant did not see plaintiff until very shortly before the accident; it is unclear how long before the accident plaintiff was in the roadway, but plaintiff himself stated that he was only about five feet from the side of the road when he saw the lights from defendant’s car, that he took only a couple of rapid strides into the roadway before the collision, that the deer was hit at most about a minute and a half before the defendant drove along, and that the defendant had to consider the presence of the deer and a second pedestrian as well as the plaintiff.

We conclude that the directed verdict was proper. Defendant’s speed was not grossly excessive, and he did not act in heedless disregard of the danger of excessive speed. See Thomas v. Price (1980), 81 Ill. App. 3d 542, 544-45.

The judgement is affirmed.

Affirmed.

UNVERZAGT and HOPF, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KASSERMAN

license: Public Domain

text:
      In re MARRIAGE OF HERMAN WAYNE PRESSON, Petitioner-Appellee, and PAMELA S. PRESSON, a/k/a Pamela S. Kelley, Respondent-Appellant.
    Fifth District
    No. 82—513
    Opinion filed July 7, 1983.
    Rehearing denied August 3, 1983.

      Paul H. Vallandigham, of Winkelmann & Winkelmann, of Urbana, for appellant.
    Fred W. Potter, of Princeton, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Petitioner, Herman Wayne Presson, filed a petition for modification of a judgment for dissolution of marriage and for injunctive relief. Petitioner prayed that respondent, his former wife, “and her agents and servants be permanently enjoined from instituting or proceeding with any proceeding in any court to change the name of Gregory Wayne Presson (the parties’ minor son), and from using any name other than Gregory Wayne Presson in the child’s school records or in any other context.” The trial court granted the injunction as a part of an order for modification of the original order for dissolution of marriage. Respondent appeals only that part of the order relating to the injunction.

On July 29, 1982, a hearing was conducted. The first to testify was Gregory Wayne Presson, who was examined by the trial court. When asked his name, the boy answered “Greg Kelley.” He stated that he was seven years old. Gregory told the court that he was a little bit “upset” about his name and wished to be called both “Greg Presson” and “Greg Kelley.” He explained that he wished to be referred to by both names because he did not want to hurt either his father’s feelings or the feelings of his stepfather, Frederick A. Kelley. Gregory stated that his friends at school called him both “Greg Kelley” and “Greg Presson” and that he had no preference which name his friends used. Gregory said “I just love both names, I like both Kelley and Presson” and asked the trial court why he couldn’t use both names if he so desired. The trial court responded, “you’re not old enough to do that.”

Petitioner testified that he initiated his action for injunctive relief regarding Gregory’s surname after he received a letter from respondent’s new husband, Mr. Kelley, which informed petitioner that Gregory would be using the surname “Kelley.” Petitioner stated that after receiving Mr. Kelley’s letter, he telephoned Mr. Kelley and Mr. Kelley informed him that no formal change of name proceedings had been filed and such proceedings were not contemplated. Petitioner was also told that it was Gregory’s idea to use the name “Kelley.” Petitioner stated that his son is his only male child and the only male grandchild of his parents and that he was concerned that if his son Gregory used the name “Kelley,” that when he gets older his son might choose to keep that name rather than “Presson.” Petitioner further stated that his son wishes to be called “Kelley” when he is with his mother and “Presson” when he is with petitioner.

Respondent testified that soon after she married Mr.Kelley, her son Gregory came to her and questioned her about the change in her surname from “Presson” to “Kelley.” Later, during a discussion with respondent and Mr. Kelley, Gregory asked if he could be referred to by the surname “Kelley.” After consulting with her attorney and a child psychologist, respondent and Mr. Kelley contacted school officials and informed them that Gregory wanted to be called “Kelley” and that they had decided to allow him to be called what he wanted to be called. Gregory’s teachers agreed to abide by his wishes and changed his report card to reflect both the names of “Presson” and “Kelley.” Respondent said she made no attempt to change Gregory’s name on other school records.

While the record fails to reflect it, the briefs of both parties state that the parties stipulated in the trial court that no change of name proceeding under “An Act to revise the law in relation to names” (Ill. Rev. Stat. 1981, ch. 96, par. 1 et seq.) had been or would be filed by respondent to officially change Gregory’s surname.

On August 16, 1982, the trial court entered an order which, inter alia, provided:

“It is hereby ordered that the minor child of the parties shall use the name Gregory Wayne Presson until he is old enough to change it legally himself, and both parties and the child are ordered to use no other name for the child until further order of court.”

Initially, we must consider whether the trial court had jurisdiction to enter the above-stated order. We conclude that it did not.

First, we note that the trial court lacked personal jurisdiction over Gregory. A child is not a party to action involving a petition to modify a judgment of dissolution of marriage. (See Robin v. Robin (1977), 45 Ill. App. 3d 365, 374, 359 N.E .2d 809, 815; In re Marriage of Garrison (1981), 99 Ill. App. 3d 717, 720-21, 425 N.E.2d 518, 521.) It has long been recognized that any person who may be materially affected by a decree in equity is a necessary party and that “[w]hen-ever a party has been omitted whose presence is so indispensable to a decision of the case upon its merits that a final decree cannot be made without materially affecting his interests, the court should not proceed to a decision of the case upon the merits.” (Gaumer v. Snedeker (1928), 330 Ill. 511, 515, 162 N.E. 137, 138.) Since Gregory Wayne Presson was not made a party to the instant proceedings; we conclude that the trial court lacked in personam jurisdiction over him and, therefore, lacked jurisdiction to order him to refer to himself only by his legal name.

Additionally, we conclude that the trial court also lacked subject matter jurisdiction to enter the order it did regarding Gregory’s name. While we agree with respondent that a trial court has subject matter jurisdiction to order parents not to institute legal proceedings to change a minor child’s surname (Solomon v. Solomon (1955), 5 Ill. App. 2d 297, 300-02, 125 N.E.2d 675, 678; see also Lawrence v. Lawrence (1980), 86 Ill. App. 3d 810, 816, 408 N.E .2d 330, 334-35; and In re Marriage of Omelson (1983), 112 Ill. App. 3d 725, 727-29, 445 N.E.2d 951, 953-54), we find the instant case distinguishable. Here the trial court’s order is directed against the minor, a fact which the court in Solomon observed might have dictated a different result in that case. (5 Ill. App. 2d 297, 301, 125 N.E.2d 675, 678.) We find that Gregory has the right to insist that others, including his parents, call him what he desires to be called and that the trial court was without jurisdiction to require that a minor utilize any particular name informally. To hold otherwise would, we believe, give a trial court unwarranted authority to interfere with the informal relationships within a family. We reiterate that while the trial court does have jurisdiction to prevent a parent from legally changing the surname of a minor child, a trial court lacks jurisdiction to order a minor child to refer to himself only by a particular name in his informal relationships with others.

Finally, assuming that the trial court had proper jurisdiction in this matter, we find that the circumstances in the instant case, nevertheless, warrant reversal of the trial court’s order concerning Gregory’s name. The standard applied in cases involving a minor child’s change of surname is whether, considering the welfare of the child, the trial court abused its discretion in arriving at its decision. (Solomon v. Solomon; Lawrence v. Lawrence; In re Marriage of Omelson.) We find that the trial court abused its discretion in the case at bar. The court virtually ignored the testimony of Gregory regarding his reasons for using both the surnames “Presson” and “Kelley.” From the transcript of Gregory’s testimony it appears that he is an intelligent boy who gave a great deal of thought to his decision to utilize both the surnames of his natural father and his stepfather. Gregory chose to use both surnames out of respect for the feelings of both petitioner and his stepfather. We view Gregory’s testimony to be a compelling factor in support of his decision to informally be known as both “Presson” and “Kelley”; and we conclude that the trial court’s apparent disregard of Gregory’s ideas due to his youth constituted an abuse of discretion. We further conclude that it is in the best interests of Gregory that he be allowed to make up his own mind as to what he wishes others to call him informally.

For the foregoing reasons, the judgment of the circuit court of Saline County issuing the instant injunction is reversed.

Reversed.

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


author: JUSTICE LINN

text:
    JAMES PRICE, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 82—1687
    Opinion filed June 30, 1983.

      Burton I. Weinstein & Associates, Ltd., of Chicago (Burton I. Weinstein and Robert L. Miller, of counsel), for appellant.
    Victor J. Piekarski and Susan E Swick, both of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, James Price, filed a declaratory judgment action in the circuit court of Cook County against defendant, State Farm Mutual Automobile Insurance Company (State Farm). Price was seeking a declaration of his rights under the underinsured motorist provision of a policy issued by State Farm to Price’s stepfather, Theodore Alferes. Because none of the facts was in controversy and the only issue involved interpretation of statutes and their application to the contested policy provision, both plaintiff and defendant filed cross motions for summary judgment. The trial court granted defendant’s motion to deny plaintiff any recovery under the underinsured motorist clause in the automobile insurance policy.

Plaintiff now appeals, contending that the trial court erred in holding that an exclusion included in the Alferes policy was valid and enforceable on the date of the plaintiff’s accident. We agree with plaintiff, and we reverse and remand.

Facts

On March 1, 1980, all automobile insurers in the State of Illinois became obligated by statute to offer, in addition to the long-standing uninsured motorist coverage, underinsured motorist coverage. The statute provided that, for an additional premium, legally recoverable damages incurred in excess of the applicable limits of the at-fault driver’s insurance coverage could now be recoverable under the injured party’s own insurance policy. Alferes, who had purchased automobile insurance from State Farm for several years, renewed his basic policy on or about March 11, 1980; in addition, he contracted for both uninsured and underinsured coverage in newly authorized amounts equal to his bodily liability limit, $100,000 per person/ $300,000 per occurrence. For this increased coverage, Alferes paid two premiums, one for the higher level of uninsured motorist coverage and one for the new underinsured motorist coverage. State Farm issued him an acknowledgement and an endorsement to the policy that verified the limits of both uninsured and underinsured coverages and contained the following exclusion:

“When Coverage W [underinsured motorist coverage] does not apply.
There is no coverage:
* * *
3. If the uninsured motor vehicle coverage applies to the accident.”

The policy, still containing the same exclusion, was renewed on September 11, 1980.

Meanwhile, during the six-month period between issuance of the new coverage to Alferes and its renewal, the Illinois legislature amended the underinsured motorist statute. Effective September 3, 1980, not only were insurers permitted to limit total recovery to either uninsured or underinsured coverage if both were applicable, but also the definition of “underinsured motorist coverage” changed. Instead of being obligated to make up any deficiency between the liability coverage limits of the at-fault vehicle and the uncompensated damages of the insured (up to the limits of the policy), insurance companies were now allowed to restrict recovery to only that deficiency between the total sum recoverable under the policy of the at-fault driver and the maximum limit of the injured party’s underinsured motorist coverage provided that the injured party carried higher amounts of underinsured motorist coverage than did the at-fault driver. If the two policies provided the same limits of coverage, nothing could be recovered from the injured party’s own insurer no matter how extensive his legally recoverable damages.

On October 4, 1980, James Price, a passenger in a car driven by an uninsured motorist, was severely injured when the car in which he was riding was struck by another car in an intersection. The driver of the at-fault vehicle carried insurance with maximum liability coverage of $25,000. Price, who has undergone brain surgery twice and continues to suffer physical impairment, collected the $25,000 from the insurer of the at-fault driver and $75,000 from State Farm; the $75,000 represented the difference between the $25,000 and the $100,000 maximum limit of the uninsured motorist coverage in the Alferes policy, coverage which both parties agree properly applied to Price because he had been riding with an uninsured driver.

However, when Price sought to recover an additional $100,000 under his underinsured motorist coverage, State Farm declined to pay, maintaining that the exclusion in the endorsement to the policy limited Price’s recovery to the uninsured motorist coverage if both provisions arguably applied to the same accident, as here. Following State Farm’s denial of his claim, Price filed his declaratory judgment action. At the time the trial judge ruled on the cross-motions for summary judgment, he specifically stated,

“The only question in the Court’s mind involved is whether or not the Court should apply an interpretation of the law as it existed at the time of the issuance of the policy, or whether it should interpret the law as it existed at the time of the issuance of the renewal.
*** [W]here statutory regulations are written into contracts, *** when a statute is amended and certain language is deleted, I think it is a settled rule that the effect of the amendment is to render the original statute as if it no longer existed or, if it ever existed.
So it seems to the Court that I have to interpret this case in accordance with the law that existed at the time of the occurrence and at the time of the policy, which would indicate that there was nothing against Illinois public policy that restricted this claim or made void this [clause], an unequivocal provision of the policy.”

As a consequence of his application of the law as it existed at the time of the occurrence instead of at the time the policy was issued, the trial judge entered summary judgment in favor of State Farm.

Opinion

The sole issue before the appellate court is whether the exclusion denying James Price’s simultaneous recovery under both the uninsured and underinsured motorist provisions “conflicts with provisions of the Illinois Insurance Code, thus rendering said exclusion null and void.” (Doxtater v. State Farm Mutual Automobile Insurance Co. (1972), 8 Ill. App. 3d 547, 549, 290 N.E.2d 284, 286.) A determination of the exclusion’s validity must begin with an examination of two pertinent sections of the Illinois Insurance Code, section 143a—1(3) (Ill. Rev. Stat., 1979 Supp., ch. 73, par. 755a —1(3), replaced by Ill. Rev. Stat. 1981, ch. 73, par. 755a—2(3)) and section 442 (Ill. Rev. Stat. 1979, ch. 73, par. 1054), as they were worded when the Alferes policy was issued:

“Sec. 143a — 1. No policy *** shall be renewed or delivered or issued for delivery in this State *** unless underinsured motorist coverage is offered in an amount equal to the insured’s uninsured motor coverage limits. *** Under underinsured motorist coverage the insurer agrees to pay damages the insured would be legally entitled to recover, but which are uncompensated because the total damages exceed the liability coverage limits of the owner of the at-fault vehicle.”
“Sec. 442. *** [W]hen any provision in such contract, *** endorsement or rider is in conflict with any provision of this Code, the rights and obligations of the company thereunder shall not be less favorable to the holder of the contract and the beneficiary *** thereunder than is required by the provisions of this Code applicable thereto.”

Effective September 3, 1980, amended section 143a — 2 replaced the earlier version and read as follows:

“Sec. 143a — 2.
(3) *** For the purpose of this Act the term ‘underinsured motor vehicle’ means a motor vehicle whose ownership, maintenance or use has resulted in bodily injury *** and for which the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security required *** is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident. ***
* * *
(5) Scope. Nothing herein shall prohibit an insurer from setting forth policy terms and conditions which provide that if the insured has coverage available under the Section under more than one policy or provision of coverage, any recovery of benefits may be equal to, but may not exceed, the higher of the applicable limits of the respective coverage ***.”

As clearly stated in the original version of the statute, the purpose of underinsured motorist coverage was to provide protection against the risk of sustaining damages exceeding the liability limits of insurance carried by the owner of an at-fault vehicle. The original statute focused on the excess damages and defined “underinsured motorist” as an insured, at-fault driver whose liability coverage limits were insufficient to compensate the injured insured for all damages he was legally entitled to recover. After the statute was amended, however, “underinsured motor vehicle” was defined as one “for which the sum of the limits of liability *** is less than the limits for underinsured coverage provided the insured ***.” The meaning of “underinsured” had been changed from “insured for less than the legally recoverable damages” to “insured for less than the insured’s underinsured coverage.” Last, the amended statute permitted insurance companies to limit recovery to the higher of two applicable provisions of coverage; no such limitation was contemplated by the original statute.

It is clear from the above distinctions that the differences between the two statutes reflected a fundamental change in the purpose of underinsured motorist coverage. No longer were uncompensated damages regarded as the risk insured against; under the revised statute, underinsured motorist coverage protected the insured against the risk of a lesser recovery if injured by an insured driver rather than by an uninsured driver.

State Farm maintained, and the trial court agreed, that the statute in effect at the time of Price’s accident governed the amount of recovery. That version of the statute permitted the exclusion, so the limiting language in the endorsement effectively prevented Price from recovering any additional benefits under his underinsured motorist coverage. On the other hand, Price argued that the statute in effect at the time the policy was issued controlled his ability to recover underinsured motorist benefits. Because the policy was never amended, Price contended that the earlier statutory provisions allowing the additional recovery carried through the policy’s renewal and were in effect at the time of his accident. Initially, therefore, we must ascertain which statute controls the interpretation of the contested policy provisions.

“[T]he laws which exist at the time and place *** [a contract is made] enter into and form a part of the contract as fully as if they were expressly referred to or incorporated into its terms.” (Board of Regents v. Wilson (1975), 27 Ill. App. 3d 26, 31, 326 N.E.2d 216, 219.) “[W]hile generally the parties are free to make their own contract [citations], statutes which are in force at the time the policy was issued are controlling, and policy provisions in conflict with the statute are void.” (Bertini v. State Farm Mutual Automobile Insurance Co. (1977), 48 Ill. App. 3d 851, 854, 362 N.E.2d 1355, 1358.) We agree with Price that the exclusion contained in the March 11 endorsement to the Alferes policy was not authorized by the statute in effect at the time the underinsured motorist coverage was offered and accepted. Consequently, section 442 of the Code (Ill. Rev. Stat. 1979, ch. 73, par. 1054) requires that State Farm’s obligations “shall not be less favorable to the holder of the contract and the beneficiary *** thereunder than is required by the provisions of this Code.”

Even though the exclusion was not authorized by the applicable statute, State Farm argues that only the offer of underinsured motorist coverage was mandated by the statute; any restrictions not violative of the purpose of the coverage, therefore, were permissible because no specific level of coverage was ordered. While we agree that restrictions are permissible if they do not conflict with the public policy underlying a statute, we cannot agree that the exclusion at issue is in harmony with the public policy reflected in the language of the first, applicable version of the statute.

As noted above, the original statute authorized insurance companies to offer protection against the risk of injury by an at-fault driver carrying insufficient insurance to cover the injured party’s legally recoverable damages; all such uncompensated damages were to be recoverable under the insured’s own policy, up to the bodily liability limit.

“[T]o the extent that the policy *** [restriction] conflicted with the breadth of coverage envisioned by the statute [i.e., section 143a of the Insurance Code], it could be of no force and effect.
* * *
[A]s the intermediate court of review in Illinois, we are obligated to adhere to the statutory constructions applied by our Supreme Court and to decide issues in conformity with the logical extensions of such constructions.” (Doxtater v. State Farm Mutual Automobile Insurance Co. (1972), 8 Ill. App. 3d 547, 552, 290 N.E.2d 284, 288-89.)

We conclude that during the period before the statute was amended, the legislative intent behind the newly added underinsured motorist coverage was to be interpreted in the same expansive manner as had been the parent statute requiring uninsured motorist coverage. Just as the courts allowed few restrictions to limit recovery under the uninsured motorist statute, we find no support in either the language of the statute or in the clear legislative intent behind the original version of the statute for the restriction at issue in this case.

Defendant’s only examples of exclusions or restrictions on uninsured motorist coverage that the courts have approved are those providing for a set-off of any amounts already recovered under worker’s compensation law. (Stryker v. State Farm Mutual Automobile Insurance Co. (1978), 74 Ill. 2d 507, 386 N.E.2d 36; Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, 269 N.E.2d 295.) The reasoning behind these allowances is that any benefits thus recovered would have to be returned to the employer upon recovery of benefits from the automobile insurer, so the insured would be in no worse financial position because of the set-off.

On the other hand, exclusions restricting (1) the location of the insured when injured (Jenkins v. State Security Insurance Co. (1978) , 56 Ill. App. 3d 737, 371 N.E.2d 1203), (2) applicability of coverage from more than one policy to the same accident (Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 370 N.E.2d 1044), and (3) recovery under a policy when salary payments have continued (Pearson v. State Farm Mutual Automobile Insurance Co. (1982), 109 Ill. App. 3d 649, 440 N.E.2d 1070) have all been declared void as contrary to the legislative intent behind uninsured motorist coverage. Given this expansive interpretation of the statutory language authorizing uninsured motorist coverage, we agree with Price that when language is added to the same statute authorizing underinsured motorist coverage for all legally recoverable damages uncompensated by the at-fault driver’s insurance, the legislative intent is to provide protection against just that risk; any restrictions on recovery of all uncompensated damages, up to the limit of the policy, are therefore void.

“[W]here a private agreement between the parties is in fundamental conflict with public policy as established by the legislature, the private agreement must fall.” (People ex rel. Callahan v. Marshall Field & Co. (1980), 83 Ill. App. 3d 811, 818, 404 N.E.2d 368, 373.) The intention of the legislature should be sought primarily from the language employed. (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 256 N.E.2d 758.) When statutory language is clear and unambiguous, the court’s only function is to enforce the law as enacted by the legislature. (Harvey Firemen’s Association v. City of Harvey (1979) , 75 Ill. 2d 358, 389 N.E.2d 151.) The fact that the legislature later amended the statute to permit the exclusion does not affect Price’s rights; “absent express language imposing a retroactive application, a legislative amendment must be construed as prospective. [Citations.] *** [Amendments which pertain to substantive rights must be applied prospectively.” Swanberg v. Mutual Benefit Life Insurance Co. (1979), 79 Ill. App. 3d 81, 88, 398 N.E.2d 299, 304.

The exclusion limiting Price’s recovery under the underinsured motorist provision was void under the statute in effect when the policy offer was made and accepted. Because the policy’s renewal in September 1980 extended only those terms and conditions of insurance previously in effect (Economy Fire & Casualty Co. v. Pearce (1979), 79 Ill. App. 3d 559, 399 N.E.2d 151), the void provision was not renewed-. After the September 3, 1980, amendment of the statute, State Farm did not attempt to amend the policy terms in accordance with the procedure outlined in the policy.

Accordingly, for the reasons noted, we reverse the decision of the trial court and remand the case for hearings and arbitration to establish Price’s legally recoverable but uncompensated damages.

Reversed and remanded.

JOHNSON and JIGANTI, JJ., concur.


author: PRESIDING JUSTICE WILSON

text:
    CHRISTINE DORAN, Plaintiff-Appellant, v. THE DEPARTMENT OF LABOR et al., Defendants-Appellees.
    First District (5th Division)
    No. 81—2717
    Opinion filed July 15, 1983.

      Lawrence A. Poltrock and Stephen G. Daday, both of Chicago (DeJong, Poltrock & Giampietro, of counsel), for appellant.
    Patricia J. Whitten and Christine Holtz, both of Chicago, for appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Plaintiff, a teacher employed by the Board of Education of the City of . Chicago (Board of Education), filed a complaint in the circuit court of Cook County pursuant to the provisions of the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 264 et seq.), seeking judicial review of a decision rendered by the Illinois Department of Labor Board of Review (Board of Review) which affirmed the denial of unemployment compensation benefits to plaintiff on the ground that she did not satisfy the eligibility requirements of section 612 of the Unemployment Insurance Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 442). The circuit court affirmed the Board of Review’s decision. On appeal, plaintiff contends that the court’s decision was against the manifest weight of the evidence, and, thus, should be reversed. For the reasons that follow, we affirm.

From 1970 until June 1980, plaintiff taught at the Simpson Alternative School for Girls (Simpson) on a 47-week schedule, i.e., the “regular 39-week year, plus eight weeks during the summer.” On June 26, 1980, plaintiff was informed by the Board of Education that due to budgetary considerations, Simpson would not be offering an eight-week summer session. Thus, her services would terminate at the end of the 39-week term and would not be needed again until the following September. As a result, plaintiff filed a claim for unemployment insurance benefits with the Division of Unemployment Insurance for the eight-week period and subsequently received benefits in the amount of $540.

Shortly thereafter, the claims adjudicator issued a redetermination stating that, pursuant to section 612 of the Act, plaintiff was not eligible for benefits and the amount paid to her must be recouped. Plaintiff then filed an application for reconsideration with the Department of Labor, and, at the subsequent hearing, argued that the period from June 26, 1980 (layoff date), to August 22, 1980 (date her 47-week term had been scheduled to end), constituted a portion of her regular 47-week academic term and was not a period between academic terms. Therefore, plaintiff stated, section 612 of the Act was inapplicable and should not operate as a bar to her eligibility to receive unemployment benefits. The referee concluded that during the period in question, plaintiff was a teacher between academic terms with a reasonable assurance of returning to work at the start of the successive term. Therefore, pursuant to section 612, plaintiff was ineligible for unemployment benefits and that amount received by plaintiff constituted overpayment and must be recouped. As a result, plaintiff appealed to the Board of Review which, in turn, affirmed the referee’s decision.

Opinion

The issue for our consideration is whether the eight-week period following the end of the 39-week regular term constitutes a period of unemployment for which the Act was intended to supply benefits or was a period between two successive academic years within the meaning of section 612(B)(1) of the Act. Plaintiff contends that the defendants, the hearing officer, the referee and the trial court all made “one basic fundamental error” in arriving at their determination of plaintiff’s ineligibility. All assumed that plaintiff’s 47-week employment period consisted of two distinct time periods: a 39-week regular term and an eight-week summer term. Plaintiff, on the other hand, argues that she was employed to work one 47-week term, commencing September 5 and terminating August 22. Therefore, when she was laid off at the end of the 39th week of that term, her originally prescribed 47-week term was prematurely terminated and she was not between academic terms. In distinguishing her status from that of a 39-week teacher, plaintiff testified that she received different benefits and that her wages were subject to different pension deductions.

As support for her position, plaintiff relies on Chicago Teachers Union v. Johnson (7th Cir. 1980), 639 F.2d 353. Plaintiff’s reliance, however, is misplaced. As shall be discussed, Chicago Teachers Union is more supportive of defendants’ position. In Chicago Teachers Union, the Board of Education informed the teachers that their services were terminated as of June 7, 1976, rather than June 29, 1976, as scheduled. As a result, the teachers sought unemployment benefits. The question for the court was whether the three-week period prior to the originally prescribed end of the school year, in which the teachers did not work, constituted a period of unemployment for which the Federal Special Unemployment Assistance Program (26 U.S.C.A. sec. 3304, Historical Note, Part A, sec. 201, at 359 (1979)) was intended to supply benefits or was a period between two successive academic years. The court held that the teachers were entitled to benefits on the ground that the teachers were separated from their employment three weeks “prior to the originally prescribed end of the school year.” (639 F.2d 353, 355.) In determining what constitutes the academic school year, the court looked to the annual calendar prepared and adopted by the Board of Education which specifically stated that the schools were to close for summer vacation on June 29, 1975.

At the outset of our legal analysis, we note that in an administrative review case, it is not the court’s duty to weigh evidence. Rather, the court’s function is to ascertain whether the findings and decision of the agency are against the manifest weight of the evidence. (Peterson v. Board of Trustees (1973), 54 Ill. 2d 260, 262-63, 296 N.E.2d 721, 723.) In this regard, an administrative decision may not be adjudged to be against the manifest weight of the evidence unless it appears that the opposite conclusion is clearly evident. Petraitis v. Board of Fire & Police Commissioners (1975), 31 Ill. App. 3d 864, 867, 335 N.E.2d 126, 129.

With the scope of review thus defined, we direct our attention to section 612(B)(1) of the Act upon which defendants rely for their argument that the period of time at issue was between academic terms. Pursuant to section 612(B)(1), plaintiff is ineligible for benefits if: (1) the period in question is between two successive academic years or regular terms, whether or not successive; (2) plaintiff performed in an instructional capacity in the first academic year (or term); and (3) plaintiff has a contract or reasonable assurance that she will be reemployed in an instructional capacity in the second academic year (or term).

In the case at bar, the second and third criteria are not at issue. Plaintiff agrees that she was employed in an instructional capacity for the first term and that she had a reasonable assurance of being employed in the second term. Our focus, then, is on the first criterion, and, in particular, on the terms “academic years” and “academic terms.” Because the Act indicates that these terms are interchangeable, our analysis of one will be inclusive of the other.

It is a fundamental rule of statutory construction that the language of a statute must be given its plain, ordinary meaning. Courts do not have the power to legislate. Instead, they must interpret the law as announced by the legislature. (Chicago-Midwest Meat Association v. City of Evanston (1981), 96 Ill. App. 3d 966, 969, 422 N.E.2d 205.) As part of its lawmaking function, the legislature has the power to articulate reasonable definitions of any term within its enactments and such definitions for the purpose of its acts will be sustained to the exclusion of hypothetical indulgences. Heerey v. Zoning Board of Appeals (1980), 82 Ill. App. 3d 1088, 1092, 403 N.E.2d 617.

Although section 612(B)(1) of the Act does not specifically define “academic term,” guidance to ascertaining the legislature’s intent can be found in the basic rule of statutory construction that two statutes on the same subject matter and parts of a comprehensive statutory scheme should be read in pari materia in order to determine legislative intent and avoid injustice. (Clement v. O'Malley (1981), 95 Ill. App. 3d 824, 831, 420 N.E.2d 533.) Applying this rule, we look to the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 1—1 et seq.) (Code) for interpretative direction regarding section 612(B)(1), recognizing that the code and section 612(B)(1) are parts of a comprehensive statutory scheme to effectuate the efficient administration of the Chicago public school system. In this regard, section 10—19 of the Code states, in pertinent part:

“Each school board shall annually prepare a calendar for the school term, specifying the opening and closing dates ***.” (Ill. Rev. Stat. 1981, ch. 122, par. 10—19.)

Further, section 24 — 1 of the Code states, in pertinent part:

“The school term shall consist of at least the minimum number of pupil attendance days required by Section 10—19 ***.” Ill. Rev. Stat. 1981, ch. 122, par. 24—1.

Pursuant to the authority delegated to it by section 10 — 19 of the Code, the Board of Education prepared and adopted the 1979-80 school year calendar, as amended, which expressly provided that the opening and closing dates of Chicago public schools would be September 5, 1979, and June 26, 1980, respectively. Therefore, we conclude that the academic term intended by the legislature was the regular term of 39 weeks designated by the school calendar. The only exceptions to the 39-week schedule were those 47-week schools specifically designated as such on the calendar, i.e., Washbume Trade School and practical nursing programs. Simpson was not listed among these exceptions, and, in fact, the calendar expressly indicated that the Simpson summer session was a separate 8-week term. Therefore, we concur with the trial court that the period for which plaintiff seeks benefits is a period between academic terms, and, thus, pursuant to section 612(BX1) of the Act, she is ineligible for unemployment benefits.

Affirmed.

SULLIVAN and MEJDA, JJ., concur.

      Section 612(B)(1) of the Act states, in pertinent part:
      “1. An individual shall be ineligible for benefits, on the basis of wages for service in employment in an instructional *** capacity performed for an educational institution, for any week which begins after December 31, 1977, during a period between two successive academic years, or during a similar period between two regular terms, whether or not successive *** if the individual performed such service in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that the individual will perform service in any such capacity for any educational institution in the second of such academic years (or terms).”


author: PRESIDING JUSTICE HARRISON

text:
    PATRICIA WHITLEY, Plaintiff-Appellant, v. BOARD OF REVIEW, Illinois Department of Labor, et al., Defendants-Appellees.
    Fifth District
    No. 82—299
    Opinion filed July 6, 1983.

      Jack Ver Steegh, of Land of Lincoln Legal Assistance Foundation, Inc., of East St. Louis, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Georgene M. Wilson, Assistant Attorney General, of counsel), for appellees.
   PRESIDING JUSTICE HARRISON

delivered the opinion of. the court:

Patricia Whitley appeals from a judgment of the circuit court of St. Clair County which on administrative review affirmed a decision of the Department of Labor Board of Review which denied her unemployment insurance benefits. The plaintiff contends that she is not ineligible for benefits under section 612 of the Unemployment Insurance Act (hereinafter referred to as the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 442).

On July 8, 1981, a hearing was held before the referee. Whitley was the only witness and the employer, Lebanon High School, did not appear. Whitley testified that from November 17, 1980, until June 3, 1981, she was the Work Experience Career Education Program (WE-CEP) coordinator for the employer. Pursuant to her contract, she worked for six months for $4,800. Her work day consisted of four hours in the classroom and the rest of the day looking for work for the students. She also worked as a substitute teacher if the employer could not find someone else to act as a substitute. On June 3, the school year ended and the WECEP coordinator’s position was eliminated for the following year. Whitley testified that she did not sign up for the next year’s substitute list because months might pass between calls for work and she needed full-time employment. Whitley further testified that the employer did not indicate whether she would be hired for the coming school year but told her that she would be called if the employer needed her and if she did not have another job. The employer also gave her a letter of recommendation.

The referee found that the plaintiff had been gainfully employed by an academic institution during the 1980-1981 school year, that she is currently unemployed because the school is on vacation between academic years, and that the plaintiff had a reasonable assurance of being employed as a substitute teacher during the 1981-1982 academic year, as she was in the past. The referee concluded that the plaintiff was therefore ineligible for unemployment benefits for the period from June 7, 1981, through June 20, 1981, under section 612 of the Act. The Board of Review affirmed the decision of the referee. Petitioner filed a complaint for administrative review in the circuit court and that court affirmed the decision of the Board of Review.

On appeal, the plaintiff contends that section 612 of the Act did not disqualify her from receiving benefits. The findings and conclusions of an administrative agency on questions of fact are considered to be prima facie true and correct. (Ill. Rev. Stat. 1981, ch. 110, par. 3—110.) This standard has been construed to mean that an administrative agency’s decision on a matter of fact will not be reversed unless it is against the manifest weight of the evidence. (See, e.g., Foege v. Edgar (1982), 110 Ill. App. 3d 190, 196, 441 N.E.2d 1267.) Concerning matters of law, a court is not formally bound by administrative decisions interpreting the legal effect of statutory language, but it will give the administrative agency’s conclusion great weight in the court’s own construction of the statute. Ranquist v. Stackler (1977), 55 Ill. App. 3d 545, 550, 370 N.E.2d 1198.

Section 612(B)(2) of the Act states:

“An individual shall be ineligible for benefits, on the basis of wages for service in employment in any capacity other than those referred to in paragraph 1, performed for an educational institution (other than an institution of higher education), for any week which begins after December 31, 1977, during a period between two successive academic years or terms, if the individual performed such service in the first of such academic years or terms and there is a reasonable assurance that the individual will perform such service in the second of such academic years or terms.” (Ill. Rev. Stat. 1981, ch. 48, par. 442(B)(2).)

Section 800.657 of the Department of Labor Rules provides that:

“The claimant employed by an educational institution must establish by a preponderance of the evidence that he no longer possesses a reasonable assurance of continued employment in order to be eligible for benefits ***. Such evidence may include a written notice of dismissal from the employer or such other evidence which tends to show that the presumption provided by 56 Ill. Adm. Code 800.656 is without basis. In the event, however, that the educational institution files a protest to the claim and gives additional assurance that the claimant will continue to be employed in the same or substantially the same capacity during the next academic year or term, then the presumption of reasonable assurance of continued employment remains in effect unless and until it fails entirely when the educational institution either gives a definite notice of termination or does not receive him back to work, whichever comes first.” (Emphasis added.)

Whitley’s unrebutted testimony was that months could lapse between substitute calls. In 1980-1981, while she did perform some substitute work, her primary job was career counseling for over four hours per day, five days per week. We cannot equate the prospect of occasional substitute work with the full-time, daily, counseling work. Although she did substitute occasionally, that fact is not relevant to a determination of her eligibility for benefits due to her counseling work as these were essentially two separate jobs. Whitley did receive a definite notice of termination concerning the counseling work and thus, there is no “reasonable assurance” that Whitley would “continue to be employed in the same or substantially the same capacity” in the following academic year. Rather, the opposite conclusion is readily apparent, and the Board of Review’s decision is accordingly against the manifest weight of the evidence. See Comm v. Goodman (1972), 6 Ill. App. 3d 847, 853, 286 N.E.2d 758.

This conclusion is bolstered by an examination of cases from other jurisdictions. In Sulat v. Board of Review (1980), 176 N.J. Super. 584, 424 A.2d 451, the court construed a New Jersey statute similar to section 612(B)(2). The court observed that “[claimant here lost full-time employment; she should not be denied unemployment benefits because the school board relegated her to the uncertain status of a day-to-day substitute against her will, despite her clearly expressed desire to find full-time employment in education or, if necessary, elsewhere in the economy. This case is in vivid contrast to the many cases standing for the proposition that a substitute teacher has a disqualifying ‘reasonable assurance’ of employment if substitute teaching will be available in the succeeding year. See *** Milkowski v. Illinois Department of Labor, etc. [(1980), 82 Ill. App. 3d 220, 402 N.E.2d 646] ***.” (176 N.J. Super. 584, 589, 424 A.2d 451, 453.) The court concluded “that ‘services in any such capacity,’ in the circumstances, contemplates continuation of full-time services under an annual contract, not an offer of eligibility for day-to-day substitute services.” 176 N.J. Super. 584, 589, 424 A.2d 451, 454.

The Oregon Court of Appeals reached a similar conclusion in Motion v. Employment Division (1979), 41 Or. App. 479, 599 P.2d 1164. Mallon worked at two different educational institutions in two different capacities. One position was as a full-time research assistant and the second job was as a part-time instructor. The full-time position terminated while the part-time position continued for the succeeding year. The court utilized legislative history to determine that the Oregon legislature intended that “disqualification [from benefits] relates to the quantity of service, i.e., full-time or part-time, as well as the type of service that an individual has a reasonable assurance will continue in the succeeding term.” (41 Or. App. 479, 483, 599 P.2d 1164, 1166.) The court held that because his full-time work “will not continue he is entitled to benefits based on that service.” 41 Or. App. 479, 484, 599 P.2d 1164, 1167.

The instant case is distinguishable from Milkowski v. Illinois Department of Labor (1980), 82 Ill. App. 3d 220, on which defendants rely. Milkowski was decided under title II of the Emergency Jobs and Unemployment Assistance Act of 1974, 26 U.S.C. sec. 3304 (1976), rather than the Act. In Milkowski, the plaintiff testified that he had been a full-time teacher from October of 1974 until September of 1976. In June of 1976 his employer changed his position to that of a day-to-day substitute teacher as of the following September. As a day-to-day substitute teacher, he would teach at whatever school he was sent to on that particular day. The appellate court held that under the Emergency Jobs and Unemployment Assistance Act of 1974 benefits were unavailable where the teacher had a reasonable expectation of employment. (82 Ill. App. 3d 220, 224.) The court reasoned that since Milkowski had not resigned, retired, or been terminated, he had a reasonable assurance of an assignment as a day-to-day substitute when school resumed. In the case at bar, there is no dispute that plaintiff’s position had been terminated due to lack of funding and she, therefore, had no reasonable assurance of similar employment the following fall. Further, Milkowski’s testimony indicated that the day-to-day substitute was essentially a full-time position, while Whitley’s testimony in the instant case indicated that the substitute teachers list led to irregular employment.

The defendant also relies on Gaeta v. Ross (1980), 78 App. Div. 2d 742, 432 N.Y.S.2d 728, which we find inapposite to the instant case. Gaeta was employed as a regular substitute teacher from November 7, 1977, until June 23, 1978. On June 1, 1978, Gaeta was given a written notification by her employer that her service as a substitute would be terminated as of June 30, 1978. A subsequent letter dated June 7, 1978, advised her that she could “be reasonably assured of a position as a substitute teacher with the District” for the next school year. Gaeta applied for unemployment benefits which were denied by the New York Unemployment Insurance Appeal Board. The court affirmed the decision of the board. Gaeta, unlike Whitley had received a “reasonable assurance” of employment for the same type of work which she had performed the previous year. We therefore find the case distinguishable from the case at bar.

The defendants finally contend that the plaintiff was not a credible witness, because she attempted to evade the referee’s question whether she was on the substitute teachers list. Neither the referee nor the Board of Review found that plaintiff was not a credible witness, nor does a review of the transcript establish that she was not a credible witness.

For the foregoing reasons, the judgment of the circuit court denying plaintiff unemployment benefits is reversed and the cause is remanded to the Department of Labor Board of Review for further proceedings not inconsistent with this opinion.

Reversed and remanded.

WELCH and KASSERMAN, JJ., concur.


author: JUSTICE EARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROGER SOLOMAN, Defendant-Appellant.
    Fifth District
    No. 81—588
    Opinion filed July 7, 1983.

      Randy Blue, of State Appellate Defender’s Office, of Mt. Vernon, Robert E. Davison, of State Appellate Defender’s Office, of Springfield, and Brian T. Otwll, law student, for appellant.
    John R. Clemons, State’s Attorney, of Murphysboro (Stephen E. Norris and Mary W. Richardson, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE EARNS

delivered the opinion of the court:

Roger Soloman was convicted of burglary, theft and criminal damage to property after a jury trial in the circuit court of Jackson County. He was sentenced to terms of five years’ imprisonment for burglary, three years for theft and 364 days for criminal damage to property, to be served concurrently. On the same date he was sentenced to consecutive terms for four other offenses to which he had previously entered pleas of guilty.

Defendant raises numerous issues on appeal. The principal issues concern the claim that the court improperly restricted his impeachment of the principal State witness, an accomplice, who was allowed to plead guilty to a reduced charge; the State’s closing argument; and the imposition of consecutive sentences on the other charges to which he had pleaded guilty.

The instant proceeding grew out of the burglary of the Corner Tavern in Murphysboro. Two cases of Glen Fork whiskey, seven to nine cases of beer and a hand cart were taken from a storage shed behind the tavern. Officer Goforth of the Murphysboro Police first responded to a call about a disturbance in which a case of whiskey had been dropped in a residential yard, breaking some of the bottles. The officer then directed other police officers to the Corner Tavern where the burglary was discovered.

Before the burglary investigation could be completed, a call was received directing the officers to a trailer residence to render assistance because of a drug overdose. An ambulance was at the trailer; so were defendant and Robert Smith and a case of Glen Flork whiskey and six cases of Busch beer and the hand cart. These items were later determined to be the proceeds of the burglary of the Corner Tavern, after a search warrant was obtained and a search of the premises conducted.

The trailer was rented by Debbie Stowers, a friend of defendant and Smith and the victim of the drug overdose. Tommy Stowers, Debbie’s brother, called the ambulance. He testified that just before it arrived, defendant and Smith brought the whiskey and beer into the trailer.

Smith was jointly charged with Soloman, pleaded guilty to a reduced charge and testified for the prosecution. He testified in detail concerning the burglary and that it was committed by both of them acting in concert. He related how a case of whiskey was accidentally dropped off the hand cart at the residence and how they tried to hide the items at the trailer. The defense presented no evidence.

Defendant first contends he was denied statutory and constitutional rights when no arrest warrant was issued by the trial court upon the filing of the information on July 2, as required, he argues, under section 111—2(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. Ill—2(d)). He argues that this resulted in the denial of a prompt preliminary hearing to determine probable cause. We again reject this contention as we did in People v. Mitchell (1983), 116 Ill. App. 3d 44.

Section 111—2(d) states that upon the filing of an information, the court shall immediately issue a warrant for the arrest of the person named in the information. Here, defendant was already under arrest and in custody, having been arrested on probable cause, which he has never contested. We do not believe that section 111—2(d) requires the issuance of a warrant where a defendant has been properly arrested and taken into custody. In any event, the failure to issue a warrant would not require the dismissal of charges as it would have no relationship to Soloman’s actual complaint, that he was denied a prompt preliminary hearing.

Section 109—1 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 109—1) requires that a person arrested without a warrant shall be taken before a judge and a charge shall be filed; this was done here. The judge shall inform the defendant of the charge against him and provide him with a copy of the charge; this was also done. The judge also informed the defendant of his right to counsel, appointed the public defender to represent him and fixed bond, all as required under the statute.

Defendant’s complaint is that a preliminary hearing was not held until seven weeks later; however, we see no relationship between the failure to issue an arrest warrant and the failure to hold a prompt preliminary hearing. Soloman has never claimed any prejudice resulting from the delay. See People v. Dees (1981), 85 Ill. 2d 233, 422 N.E.2d 616.

Defendant was arrested on July 2, and an information charging him with burglary and theft was filed the same day. His preliminary hearing was set three weeks later and was continued at the request of counsel for his co-defendant, Smith, without objection on his part. See People v. Hickman (1973), 56 Ill. 2d 175, 179-80, 306 N.E.2d 32, 34-35.

The failure to hold a preliminary hearing for three or seven weeks, assuming this not to be “prompt,” gives no rise to any remedy for failure to do so, as the courts of the State have repeatedly held. (See, e.g., People v. Howell (1975), 60 Ill. 2d 117, 324 N.E.2d 403; People v. Meredith (1980), 86 Ill. App. 3d 1136, 409 N.E.2d 70.) We need not again repeat the basis for so holding. Furthermore, in Gerstein v. Pugh (1975), 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854, while the supreme court held that the fourth amendment required a judicial determination of probable cause before a person arrested might be subjected to extended restraint, it further held that dismissal of charges or reversal of conviction was not the proper remedy for violation of the right. The person arrested may contest his continued detention in custody by the traditional writ of habeas corpus. We would note further that the first examination procedure followed here may well satisfy the fourth amendment requirement of Gerstein; although, it would not be the adversarial type of preliminary hearing contemplated under section 109 of the Illinois Code of Criminal Procedure of 1963.

Defendant’s second assignment of error involves the alleged denial of defendant’s offer of evidence to impeach the State’s principal witness, Smith, by showing bias. The claimed bias was that Smith may have been motivated to testify falsely against Soloman in return for the State’s dismissal of an additional offense for which he had been arrested, but not charged.

A recent arrest would not be admissible if the purpose were to impeach the witness’ credibility by proof of the commission of a crime; only proof of conviction of a crime would be admissible for this purpose. (People v. Mason (1963), 28 Ill. 2d 396, 192 N.E.2d 835.) If, however, the purpose was to impeach by showing bias, or motive to testify falsely, a recent arrest might be admissible (People v. Kellas (1979), 72 Ill. App. 3d 445, 389 N.E.2d 1382), and the widest latitude is permitted the admission of such evidence on cross-examination. People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526.

Here, Smith’s motive to testify falsely was thoroughly explored. On direct examination, Smith testified that he acted in concert with Soloman in committing the instant crime, that in return for his testimony he was allowed to plead guilty to a reduced charge and was sentenced to probation. His general credibility was impeached by evidence of prior convictions of two felonies.

When defense counsel proposed to ask Smith about his recent arrest, it was not made clear to the court the purpose counsel was attempting to pursue, whether to attack Smith’s general credibility or to show an additional motive to testify falsely. Defense counsel asked the court if he might inquire about bad acts; the court made it clear that he could ask the witness about his convictions for theft, whether a felony or misdemeanor. When counsel further inquired if he could question Smith about a recent arrest for theft, the court stated he could not as the witness was not convicted following the arrest. Later on, counsel explained that he was attempting to find out if the prosecution had “made another deal” with Smith. The court ruled that counsel could ask the witness about this, but he declined to follow the matter up in front of the jury. In fact, on redirect examination, the prosecution inquired about any further promise of leniency the prosecution may have made, and Smith stated that none had been made. See People v. Snyder (1979), 72 Ill. App. 3d 82, 390 N.E.2d 598.

This case does not present the factual situation present in People v. Wilkerson or People v. Kellas. In Wilkerson, the court refused to allow the defense to present any evidence of possible bias on the part of a key State witness to a shooting. The witness had felony charges pending, and the prosecutor admitted he had not decided what to do about these charges pending the trial of the subject case. In Kellas, the court likewise refused to allow the defense to make any inquiry into a pending felony charge.

Here, defense counsel had only seen Smith in the sheriff’s office the previous night. It is not clear from the record why he was there. No offer of proof was made. It is clear that no additional charge of any kind has been filed against him. In People v. O’Dell (1980), 84 Ill. App. 3d 359, 369, 405 N.E.2d 809, 818, the State’s principal witness was impeached both by his extensive prior criminal record and by showing a promise by the authorities to inform the parole board of his cooperation and the assurance of nonprosecution in the crimes about which he testified in favor of the State. Defense counsel then asked in an exploratory manner if the witness “had been given a pass” in return for his testimony in other cases. An objection to this questioning was sustained. In affirming the conviction, the court stated that it was improper to cross-examine about uncharged crimes and that the -witness had already been examined about promises of leniency he had received in return for his testimony. The same reasoning applies here.

We find that the excluded nebulous evidence would at best have been merely cumulative. Its exclusion was, in any event, harmless beyond a reasonable doubt.

Defendant next complains about improper prosecution closing argument. No objection was made to the argument, nor was it assigned as error in defendant’s post-trial motion. The claimed error is accordingly waived. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Furthermore, we find that the argument that the burglary must have been a “two-man job” was not improper. Considering the number of items taken, the weight of the items and the distance from the tavern to trailer, it was proper for the prosecution to draw the inference that two persons committed the burglary. Defendant’s complaint of other argument need not be addressed. The remarks were in response to argument made by defendant and were invited and could not be considered harmful in any event as they clearly did not contribute to the jury’s verdict.

Defendant next complains that he was denied his constitutional right to effective assistance of counsel. Our careful examination of the record does not reveal that counsel was incompetent in the performance of his duties, or that anything he did resulted in such substantial prejudice to defendant that the outcome of the trial was probably affected under the standard set forth in People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.

Lastly, defendant argues that the court violated section 5—8— 4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—4(b)) in sentencing him to consecutive sentences. At the sentencing hearing at which the instant sentences were imposed, defendant was sentenced to one year on an unrelated theft charge and two concurrent five-year terms on unrelated burglary charges. He had pleaded guilty to these latter charges as well as a bail bond violation charge. The one-year sentence for theft was ordered to be served consecutive to the instant terms, and the concurrent five-year terms for the unrelated burglaries were imposed consecutive to all the other charges, except 18 months for bail bond violation which was to be served concurrently with all the other sentences. Section 5 — 8—4(b) provides:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—4(b).

This section does not require that the court simply repeat on the record that it is of the opinion that consecutive sentences are required to protect the public; such a recital would be meaningless. What is required is that the record establish the justification for consecutive sen-fences. Obviously, the court was of the opinion that consecutive sentences were required; otherwise, they would not have been imposed. People v. Pittman (1982), 93 Ill. 2d 169, 442 N.E.2d 836.

Defendant, although only 19 years of age, had an extensive juvenile and adult record. His juvenile record includes two adjudications of delinquency in two different counties. He was placed on probation for three months for retail theft in Jackson County. He had convictions for driving while his license was suspended and consumption of alcohol by a minor. He pleaded guilty to five other felony charges, burglary, theft and violation of bail bond for which he was sentenced to prison terms at the same time as the instant sentences were imposed. In addition, he had pending a charge of incest and a charge of reckless homicide. As in Pittman, the reasons set forth in the record show that the trial court was of the opinion that consecutive sentences were necessary to protect the public, and we are not authorized to substitute our judgment for that of the trial court. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Furthermore, the defendant never requested that the court explicate its reasoning. The right being personal, it may be waived. See People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855.

Defendant further argues that it was improper to impose consecutive sentences on the residential burglary and theft charges as these offenses were committed as part of a single course of conduct. (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—4(a); People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) These charges, however, are not the subject of the instant appeal. Defendant entered pleas of guilty and although properly admonished, never moved to withdraw his pleas of guilty or for a reduction or reconsideration of sentences. (87 Ill. 2d Rules 604(d), 605.) Whatever merit there may be to defendant’s contention, the matter is simply not before us on this appeal. Nor are we permitted to recognize the matter as plain error under Supreme Court Rule 615(b)(2) (87 Ill. 2d R. 615(b)(2)) or under the authority of the holding in People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180, where all the offenses charged were considered properly before the court for consideration, as all were “dependent upon” the judgment from which the appeal was taken within the meaning of Supreme Court Rule 615(b)(2).

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

Affirmed.

JONES and WELCH, JJ., concurring.