author: JUSTICE WILSON

text:
    THE CITY OF CHICAGO et al., Plaintiffs-Appellants, v. MELODY HANSON et al., Defendants-Appellees.
    First District (5th Division)
    No. 80-0482
    Opinion filed December 31, 1981.
    Modified on denial of rehearing May 21, 1982.

      Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr and Joel A. Stein, Assistant State’s Attorneys, of counsel), for appellants.
    Patrick A. Tuite, of Chicago, for appellees.
   JUSTICE WILSON

delivered the opinion of the court:

The State appeals from an order of the trial court suppressing all evidence in the pending matter in which defendants were charged with public indecency, obscenity, and keeping a disorderly house. (Ill. Rev. Stat. 1977, ch. 38, pars. 11 — 9(a)(2), 11 — 20, and Municipal Ordinance 193(2).) On appeal, pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1977, ch. 110A, par. 604(a)(1)), the issue for review is whether the trial court erred in suppressing the evidence in this matter, as the alleged misconduct was not entitled to first amendment constitutional protections. The pertinent facts follow.

Defendants Hanson, Gomez and Bowman were charged by complaint with obscenity and public indecency. Defendants Liang and Howard were charged by complaint with keeping a disorderly house, and Liang was additionally charged with obscenity. Hanson, Gomez, Liang and Owens were arrested on July 26, 1978, after Hanson and Gomez were observed performing cunnilingus on each other, and Hanson, Bowman and Howard were arrested on August 23, 1978, after Hanson was observed performing an act of fellatio on Bowman. Defendants moved to suppress evidence in the case on the grounds their arrests were effected without a warrant. They alleged their conduct was protected by the first amendment of the United States Constitution and could not be restrained without a warrant or prior judicial determination.

On February 9, 1979, a hearing was held on defendants’ motion to suppress. The stipulated facts indicate that on August 23, 1978, Officer George Carey paid a $5 admission fee to enter the Festival Theatre. Hanson appeared on stage, talked with the audience for approximately five minutes, began to dance to music while simultaneously removing her clothes. A short time later, Carey observed her lying nude on a rug with her genitals exposed to the audience and “simulating” the touching of her organs.

Hanson was then joined by Bowman, who was dressed in briefs, a T-shirt and a cape. He “simulated” sexual intercourse and oral sex upon her. Carey would testify that he observed Hanson “simulate” fellatio on Bowman.

A further “simulated” intercourse took place between Hanson and Bowman; thereafter, Hanson got dressed, talked to the audience and asked them to sign her petition for the freedom to observe particular live performances. Carey then arrested Hanson, Bowman and-Howard. It was further stipulated that there had been no arrest warrant issued for the arrest of any of the performers, nor had there been prior judicial scrutiny of any of the performances.

Defendants argued that their arrest was illegal as nude dancing is protected by the first amendment and the question of whether the dance was obscene is a constitutional question requiring a judicial determination and an arrest warrant.

The court found that a live performance is entitled to identical protection of the first amendment as a film and as such there should have been an application for an arrest warrant. This appeal follows.

Opinion

We are asked to consider whether the trial court properly suppressed all evidence of defendants’ conduct. The State argues that defendants were arrested only after a Chicago police officer observed Hanson and Bowman engaged in sexual intercourse, cunnilingus and fellatio. Further, the arrest of defendants is not equivalent to a seizure of film.

It is well settled that a police officer may effect an arrest without a warrant if the officer has probable cause (Ill. Rev. Stat. 1979, ch. 38, par. 107 — 2); where he believes that a criminal offense has been committed in his presence and the person arrested committed it (People v. Schwing (1971), 133 Ill. App. 2d 100, 272 N.E.2d 779; People v. Accardi (1965), 58 Ill. App. 2d 364, 208 N.E.2d 43). Whether reasonable cause exists depends upon the “factual and practical considerations of everyday life upon which reasonable men, rather than legal technicians, act.” (People v. Johnson (1979), 71 Ill. App. 3d 143, 148, 388 N.E.2d 1320.) We believe a resolution of this matter requires an analysis of the basis of the charges involved here.

Defendants were charged with public indecency proscribed by section 11 — 9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 9). They were arrested only after Officer Carey observed Hanson and Bowman “simulating” sexual intercourse and oral sex in his presence at the theatre. These acts are specifically proscribed by the statute. Under these facts defendants were properly arrested and testimony as to this charge should not have been suppressed.

With regard to the obscenity charge, defendants argue that live shows, even those including nude dancing, are protected by the first amendment. Nude dancing is a form of expression which is protected by the first amendment. (Jamaica Inn, Inc. v. Daley (1977), 53 Ill. App. 3d 257, 368 N.E.2d 589, rev’d on other grounds (1978), 72 Ill. 2d 415, 381 N.E.2d 694.) However, whether the conduct in question here is entitled to this protection is not a determination we need to make now as the issue on appeal is suppression of all evidence relating to this charge. The issue of whether the conduct involved here is obscene must be tested by the standards of People v. Ridens (1972), 51 Ill. 2d 410, 282 N.E.2d 691, aff'd on remand (1974), 59 Ill. 2d 362, 321 N.E.2d 264; People v. Gould (1978), 60 Ill. 2d 159, 324 N.E.2d 412.) Those standards require that the material be regarded as a whole (City of Chicago v. Festival Theatre Corp. (1980), 88 Ill. App. 3d 216, 410 N.E.2d 341, appeal pending) with the view that expression that is sexually oriented, but not obscene, is entitled to first amendment protection. (City of Rolling Meadows v. Kohlberg (1980), 83 Ill. App. 3d 10, 403 N.E.2d 1040.) The Supreme Court has stated in Southeastern Promotions, Ltd. v. Conrad (1975), 420 U.S. 546, 557, 43 L. Ed. 2d 448, 458, 95 S. Ct. 1239, 1246, that “[e]ach medium of expression, of course, must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.” (420 U.S. 546, 557, 43 L. Ed. 2d 448, 95 S. Ct. 1239, 1246.) Ultimately, a determination of what constitutes obscenity is a matter within the province of the court. People v. Better (1975), 33 Ill. App. 3d 58, 337 N.E.2d 272.

In the pending matter, the police officer arrested defendants and charged them with obscenity after he observed an “obscene” performance presented and defendants participating therein. He reasonably believed he witnessed a violation of our criminal statute at that particular time. Live performances present particularly difficult problems as they may be altered from day to day from legitimate to illegitimate expressions. (City of Chicago v. Festival Theatre Corp.) As such, an evaluation of a live performance’s contents can only be made at the time of the particular instance in question, since we cannot predict what conduct will be legally obscene or presume that future expressions are obscene. (City of Chicago v. Festival Theatre Corp. (1980), 88 Ill. App. 3d 216, 410 N.E.2d 341, appeal pending.) The police officer’s evaluation of this situation is by no means determinative of a conviction, and cannot be solely relied on by a judicial officer in making a determination as to its obscenity. (Piepenburg v. Cutler (10th Cir. 1981), 649 F. 2d 783.) It is but a factor in the evidence as the conduct must be regarded as a whole applying contemporary standards by the trier of fact to determine (a) whether the average person would find that the work taken as a whole, appeals to the prurient interest; (b) whether the work depicts or described, in a patently offensive way, sexual conduct specifically defined by the applicable statute or ordinance; and (c) whether the work is utterly without redeeming social value. (People v. Ridens; People v. Gould.) We again reiterate, a determination of whether this conduct is obscene is really not the issue before us. We are only concerned as to whether the police officer’s observations before the arrests can be suppressed and we hold they cannot, as his observations are not conclusive on any obscenity issue here. Defendants still are entitled to their day in court on this charge and can present whatever evidence they have to refute this charge.

The trial court’s rationale in sustaining defendants’ motion, and defendants’ attempted analogy of their conduct to film entitled to constitutional protections confuses the real issue in question. The trial court found that defendants’ acts were “a continuing type of thing” a “live performance” entitled to first amendment protection as a film and concluded that a warrantless arrest of defendants amounted to prior restraint. However, some evaluation of a live performance must be made at each instance because of its capacity to change, unlike the permanent qualities of celluloid. This evaluation by a police officer is only related to charge a violation, as any other criminal activity is evaluated. It is not conclusive or a final determination of the matter.

Moreover, no prior restraint issue is involved as arrests can only be made after an observation of criminal activity takes place, and thus again each live performance must be evaluated for its content. There is no conclusive evidence in this case that future performances or the operation of the theatre was impeded. Our hostility to an imposition of a prior restraint in this instance would militate against its constitutional validity under these circumstances.

We believe the situation in this instance is analogous to the situation in People v. Better (1975), 33 Ill. App. 3d 58, 337 N.E.2d 272, where defendants were charged with obscenity after State witnesses observed them fondling their breasts and vaginal area while dancing. We held that the mere arrest and prosecution of those charged with obscenity did not necessitate a prior judicial determination of obscenity. (People v. Ridens.) In Better, as in the instant case, there was no interruption with the post-arrest operation of the facility, thus no suppression of possibly protected speech.

Defendants rely on a number of cases involving seizure of film, or other materials, i.e., Roaden v. Kentucky (1973), 413 U.S. 496, 37 L. Ed. 2d 757, 93 S. Ct. 2796; Marcus v. Search Warrant (1961), 367 U.S. 717, 6 L. Ed. 2d 1127, 81 S. Ct. 1708; A Quantity of Copies of Books v. Kansas (1964), 378 U.S. 205, 12 L. Ed. 2d 809, 84 S. Ct. 1723; Walter v. United States (1980), 447 U.S. 649, 65 L. Ed. 2d 410, 100 S. Ct. 2395; City of Rolling Meadows v. Kohlberg; People v. Sparks (1974), 24 Ill. App. 3d 247, 321 N.E.2d 22. However, the permanent nature of celluloid and other written materials facilitates a prior judicial determination of obscenity, unlike a live performance with a capacity to be altered continuously and thus can move in and out the realm of illegitimacy. No authority is cited nor can we surmise that a warrantless arrest of a person after he is observed committing a crime amounts to prior restraint. The extension of defendants’ position would seem untenable.

Finally, defendants’ reliance on Southeastern Promotions, Ltd. v. Conrad is also inapplicable in the present case. In Southeastern Promotions, Ltd., petitioner, a promotor of theatrical productions, applied to members of a municipal board charged with managing a city auditorium and a city-leased theatre, to present the musical production “HAIR” at the theatre. The board rejected the application upon the basis of outside reports which concluded that the production would not be “in the best interest of the community.” Petitioner sought injunctive relief, and after several months the board filed its first responsive pleading. After a bearing on the content of the musical, the District Court concluded that the production contained obscene conduct not entitled to first amendment protection. The Supreme Court concluded that a system of prior restraint “ ‘avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.’ Freedman v. Maryland, 380 U.S. 51, 58 (1965).” (420 U.S. 546, 559, 43 L. Ed. 2d 448, 459-60, 95 S. Ct. 1239, 1247.) Safeguards included judicial review proving the material is unprotected with the burden on the censor; any restraint can only be for a specified brief period and only to preserve the status quo; and a prompt judicial determination must be assured. The safeguards were lacking here since the denial of the use of the municipal facilities for the production were based on the board members’ judgment of its content and they relied on outside reports. Thus, the denial constituted an unconstitutional prior restraint. Unlike Southeastern Promotions, Ltd., in the pending case a police officer personally observed the performances, and further, the operation of the theatre has continuned uninterrupted pending a judicial outcome of the criminal violations.

As defendants’ arguments relating their conduct to prior restraints on films, books and other material must falter, so must their contention that the conduct of police officers was a restraint upon the future performances of the Festival Theatre. As we indicated earlier, an evaluation of criminal activity is by no means conclusive as to its final determination on the trier of fact, for it is only one factor to consider among all the evidence. As such, we are not denying defendants their first amendment rights, we are in fact championing their rights because we will not allow a system of prior restraint without procedural safeguards. Our determination here as to the impropriety of the trial court’s order suppressing the police officer’s observations prior to the arrests should not be construed as a judgment on the legitimacy or illegitimacy of defendants’ conduct. A judicial determination must still be made on the performances in question and is not conclusive as to future live performances.

For the foregoing reasons, we reverse the order of the trial court suppressing the evidence, and remand this matter for a hearing and a determination on the charges and for such other proceedings consistent with this opinion.

Reversed and remanded.

SULLIVAN, P. J., and LORENZ, J., concur.

       Although reference is made to the conduct involved here as “simulated,” our review of the record demonstrates actual intercourse occurred and defendants performed actual oral sex.

       We note that City of Rolling Meadows v. Kohlberg recites the criteria expressed in Miller v. California (1973), 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607. This case is at variance with the criteria enumerated in People v. Ridens and People v. Gould.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE L. SAVORY, Defendant-Appellant.
    Second District
    No. 81-465
    Opinion filed May 5, 1982.
    Rehearing denied May 28, 1982.

      Mary Robinson and Theodore A. Gottfried, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Johnnie Lee Savory, was convicted following a jury trial in the circuit court of Lake County of two offenses of murder and was thereafter sentenced to concurrent terms of 40 to 80 years imprisonment. He appeals, contending (1) his statements to police were elicited in violation of his Miranda rights; (2) the State was improperly allowed to introduce evidence and comment upon defendant’s exercise of his right not to make a statement to police; (3) evidence suggesting defendant had previously committed another crime was admitted; and (4) defendant’s trial attorney failed to provide him effective assistance of counsel.

Defendant’s first conviction of the January 18, 1977, murders of James Robinson, Jr., and Connie Cooper in Peoria County was reversed on appeal and remanded for a new trial (People v. Savory (1980), 82 Ill. App. 3d 767, 403 N.E.2d 118). The Illinois Supreme Court denied leave to appeal ((1980), 81 Ill. 2d 598), the United States Supreme Court denied certiorari ((1981), 449 U.S. 1101, 66 L. Ed. 2d 827, 101 S. Ct. 896) and the cause was transferred to Lake County for retrial.

Defendant was 14 years of age at the time of these offenses. On January 25, 1977, one week after the victims’ bodies were discovered (they had been killed by stabbing between 8 and 9 a.m. on January 18), two police officers met with defendant at 3:30 p.m. at his school in a room adjacent to the principal’s office. The officers told defendant they wished to speak to him in regard to the deaths of Connie Cooper and James Robinson, and defendant first responded he did not want to talk to them or give any statements. The officers persisted and advised defendant he may have been one of the last persons to see the victims while they were still alive and might give the police some leads as to the perpetrator of the murders. He then agreed to give an account of his activities on the day prior to the murders.

Defendant informed the officers he had met James Robinson at school on January 17 around 3:30 p.m.; the pair had gone to the Robinson residence arriving at 7 p.m.; they had taken some corn and hot dogs out of the refrigerator, prepared and ate this meal and after finishing they placed a television set on the floor and practiced Kung Fu in the living room. The two left the Robinson residence for a few hours but returned to practice Kung Fu and defendant told the officers he left at 11 p.m., walked home and later spoke to Robinson on the telephone until around 1:30 a.m. Defendant said Robinson asked him to return at 8 the next morning but that he did not do so. Defendant also indicated to the police that he and Robinson were close friends and he had known him and Miss Cooper for many years.

At approximately 4 p.m. at the school, the officers asked defendant to return with them to the police station for a meeting with other officers working on the case, and he agreed. Defendant was not placed under arrest or handcuffed, nor was there a show of weapons or force at this or any later time. On the drive to the station, defendant suggested they stop at his father’s house so he could show them a knife that was similar to one owned by Robinson and the officers agreed. Defendant was allowed to enter the home alone, and he returned without the knife saying his father must have it with him and was not at home. At 5 p.m. defendant was brought into an interrogation room at the police station and he repeated his previous story in the presence of four officers until about 5:30 p.m.

Following this second interrogation defendant was given two sodas and ate part of a candy bar and was allowed to go to the restroom unaccompanied. One of the officers returned to defendant’s home and retrieved a knife from defendant’s father, who told the officers that it was his knife and that defendant had commited no crime. The officers noted certain discrepancies between other information received relating to the case and defendant’s story; one officer testified he knew at this time that defendant was not being truthful with them. At 6 p.m. defendant was again interviewed by officers in the police station. In this 45-minute session the officers called to defendant’s attention certain discrepancies between known facts and defendant’s statement to them: (1) that defendant had stated he and Robinson were very close friends and he had known Robinson and Cooper for years; (2) that he and Robinson had cooked a meal on the evening of January 17; and (3) that he had telephoned Robinson and talked to him until 1:30 a.m. on January 18. When confronted with information challenging these portions of his story, defendant admitted he had been lying to the officers during some parts of the earlier interview. Thereafter, from 10 p.m. until 11 p.m., defendant was questioned by a polygraph examiner and, after the results were made known to the police, they arrested him for murder and first advised him of his Miranda rights.

At defendant’s first trial his motion to suppress the statements made by him on January 25, and a confession given by him on the following day, was denied. On his first appeal defendant sought review of the denial of his motion to suppress, but only as to the confession given on the second day of his interrogation, and the appellate court reversed on grounds it should have been excluded as involuntary. On retrial, defense counsel urged that evidence of the first, day’s conflicting statements should also be suppressed, but the trial court declined to do so, finding defendant was not in custody when those statements were made.

At trial, in addition to the January 25 statements to the officers, three acquaintances of defendant testified that he had told them on the day of the murders that he had stabbed the victims and they were dead. These admissions by defendant were made at a time when the bodies had not yet been discovered and included descriptions of the victims’ multiple stab wounds consistent with those depicted in photographic and other evidence of the crime scene. Evidence was also presented that defendant had a knife (which he had with him when he admitted his complicity to one of the witnesses), and that type A blood matching that of one of the victims, but not defendant, was found on a pair of pants from defendant’s residence. Defendant did not testify in trial but presented evidence of an alibi and sought to blame the victims’ step-father for the murders.

We consider first defendant’s contention that his motion to suppress his statements to the police on January 25 should have been granted because the officers failed to comply with the requirements of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.

The State initially points out that defendant’s similar motion was denied in his first trial and, as he did not seek review of that portion of the order of the trial court, it became res judicata and the law of the case and he has waived or is collaterally estopped from doing so now. We must disagree. It is true that these doctrines bar relitigation of an unappealed order denying a motion to suppress, but they only do so in the absence of exceptional circumstances. (People v. Armstrong (1973), 56 Ill. 2d 159, 161, 306 N.E.2d 14, 15; People v. Eckmann (1978), 60 Ill. App. 3d 300, 302, 376 N.E.2d 751, 752.) Here such circumstances were present inasmuch as the January 25 statements which defendant sought to suppress in the second trial were not relied upon by the prosecution in the first trial and, necessarily, the issue of suppression of evidence which could not have contributed to his first conviction would have been considered moot on review in the first appeal. See People v. Hopkins (1972), 52 Ill. 2d 1, 284 N.E.2d 283.

The trial judge, in denying defendant’s motion to suppress in his second trial, determined Miranda was inapplicable to defendant’s January 25 statements because he was not in custody when they were given. Custodial interrogation, which the Miranda decision governs, means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612; People v. Brownson (1982), 103 Ill. App. 3d 476, 431 N.E.2d 744.) In determining whether a statement was made in a custodial setting, the court must look to all of the circumstances surrounding the questioning, with no single factor deemed controlling, and then objectively evaluate whether a reasonable, innocent person would have believed he was free to leave or was expressly or impliedly bound to remain in the presence of police. People v. Wipfler (1977), 68 Ill. 2d 158, 166, 368 N.E.2d 870, 873; People v. Cart (1981), 102 Ill. App. 3d 173, 183, 429 N.E.2d 553, 562; see also People v. Kennedy (1978), 66 Ill. App. 3d 267, 383 N.E.2d 713.

Numerous factors are to be considered in this inquiry: the location (e.g., People v. Hentz (1979), 75 Ill. App. 3d 526, 394 N.E.2d 586), time (Cummings v. State (1975), 27 Md. App. 361, 341 A.2d 294), length (State v. Skiffer (1969), 253 La. 405, 218 So. 2d 313), mood and mode (People v. Bailey (1973), 15 Ill. App. 3d 558, 304 N.E.2d 668 (including extent of knowledge of facts possessed by police)) of the interrogation; the number of police officers present (United States v. Kennedy (9th Cir. 1978), 573 F.2d 657; People v. Szerletich (1980), 86 Ill. App. 3d 1121, 408 N.E.2d 1098) and the presence or absence of friends or family of the accused (People v. Bryant (1967), 87 Ill. App. 2d 238, 231 N.E.2d 4); any indicia of formal arrest of the subject including physical restraint, show of weapons or force, booking, fingerprinting or informing the person he is under arrest (see People v. Burris (1971), 49 Ill. 2d 98, 273 N.E.2d 605); the manner in which the person questioned got to the place of interrogation, i.e., voluntarily on his own, in response to a police request, or on a verbal command indicating compulsion (see State v. Cassell (Alas. 1979), 602 P.2d 410); whether he voluntarily assists police in their investigation (see People v. Cart (1981), 102 Ill. App. 3d 173, 429 N.E.2d 553); whether the subject is allowed to walk within and from the location of the interrogation unaccompanied by police (People v. Mrozek (1977), 52 Ill. App. 3d 500, 367 N.E.2d 783); and the age, intelligence and mental makeup of the accused (People v. Szerletich (1980), 86 Ill. App. 3d 1121, 408 N.E.2d 1098). We must then apply the objective test and these factors to defendant’s interviews by the officers.

Defendant was first questioned at his school in a room adjacent to the principal’s office, a less coercive environment than a police station, in the daytime and for about one-half hour; the questioning appeared to be inquisitory rather than accusatory. Two officers and defendant were present and there was no indicia of arrest. He may not be considered to be in custody at his school. (See People v. Shipp (1968), 96 Ill. App. 2d 364, 239 N.E.2d 296.) Thereafter, he responded to a police request to come down to the police station to give his information to other officers. On the way, he volunteered to go to his house to look for a knife, and he was allowed to do so while the officers remained in their vehicle. His second half-hour interview with the four officers at the police station again appears to be of an inquisitory nature on their part seeking information which might assist in their investigation, but not focusing on defendant as the offender. We conclude defendant was still not in custody during this period.

The third interview commencing at 6 p.m. presents different circumstances. Like the second it occurred in a small interrogation room in the police station and lasted about three-quarters of an hour. Defendant had by then been with the police for over 2Yz hours. The officers, however, became accusatory as they began doubting defendant’s account and they suggested they had reliable information discounting his version of the events. (See State v. Menne (La. 1980), 380 So. 2d 14, cert denied (1980), 449 U.S. 833, 66 L. Ed. 2d 39, 101 S. Ct. 104.) Although defendant had not been formally arrested, physically restrained, booked, or fingerprinted, a reasonable person might well have believed at the third interview, when his story was being discounted, that he was in police custody. While not determinative, the fact that the officers testified defendant was not free to leave the police station (although they did not so inform him) is of some relevance to our inquiry. (People v. Szerletich (1980), 86 Ill. App. 3d 1121, 1128, 408 N.E.2d 1098, 1103.) Similarly, that defendant was but 14 years of age at this time must be considered.

We conclude that at the third session when the officers, who testified they then knew defendant was not being truthful with them, so informed him and pointed out discrepancies between defendant’s version and their own information, he was in custody and should have been given Miranda warnings. See People v. Townes (1982), 91 Ill. 2d 32.

The State argues that when the officers confronted defendant with the discrepancies in his story this did not constitute interrogation and Miranda is inapplicable. However, interrogation includes express questioning and “any words or actions on the part of the police * * * that [they] should know are reasonably likely to elicit an incriminating response.” (Rhode Island v. Innis (1980), 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308, 100 S. Ct. 1682, 1689.) Confronting defendant with the discrepancies in his story was, in our view, the functional equivalent of express questioning under Innis. See People v. Burson (1980), 90 Ill. App. 3d 206, 412 N.E.2d 1160.

The State does not expressly argue that any error in admitting defendant’s first day statements was harmless, but points out he made no inculpatory statements prior to receiving the Miranda warnings. The reviewing court on defendant’s first appeal also noted he made no incriminating statements until the second day of his interrogation. (See People v. Savory (1980), 82 Ill. App. 3d 767, 770, 403 N.E.2d 118, 121, cert. denied (1981), 449 U.S. 1101, 66 L. Ed. 2d 827, 101 S. Ct. 896.) We have reviewed defendant’s statements to police on the first day of questioning prior to being advised of his rights and find he gave an exculpatory narrative of events of the day prior to the murders and subsequently admitted he had lied regarding three collateral facts: who had cooked the evening meal, whether the defendant and Robinson were very good friends who had known each other for years and whether defendant telephoned Robinson later the evening before the latter’s death. In view df the testimony of the three witnesses who related defendant’s admissions to them of his presence and complicity in the killings, we consider the admission of these statements in trial to be harmless error beyond a reasonable doubt. See People v. Gan (1979), 75 Ill. App. 3d 72, 394 N.E.2d 611.

Defendant next contends error occurred when the State offered testimony that defendant, after being asked at school if he knew anything in regards to the victim, James Robinson, stated “he didn’t want to talk about it, he didn’t want to make any statements” and the prosecutor commented in closing argument:

“I believe you heard that on that date of January 25th, 1977, Officers George Pinkney and Edgar Hanes went to the Late Afternoon School to talk to Johnnie Savory, who they thought might have some information regarding the case. They asked him that afternoon about 3:30, they wanted to talk to him about [Robinson], what he might know. The Defendant, what did he say at that time, ladies and gentlemen? 1 don’t want to talk about it. I won’t make any statements.’ This, ladies and gentlemen, the apparent good friend of his, he doesn’t want to talk about it, doesn’t want to help the police at that time.”

Defendant raises both constitutional and general evidentiary grounds in contending the evidence and argument combined to deprive him of a fair trial.

We note initially that this case involves more than impeachment with and comment upon defendant’s silence; rather, his express statement he did not wish to talk to the officers was offered as direct evidence of his guilt. Furthermore, defendant made this statement prior to being either arrested or under custodial detention and before he was advised of his Miranda rights. These circumstances distinguish the case from Jenkins v. Anderson (1980), 447 U.S. 231, 65 L. Ed. 2d 86, 100 S. Ct. 2124, Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, and the many Illinois cases considering pre and post-custodial detention silence used for purposes of impeaching a defendant’s trial testimony (see People v. Adams (1981), 102 Ill. App. 3d 1129, 430 N.E.2d 267; People v. Malkiewicz (1980), 86 Ill. App. 3d 417, 408 N.E.2d 47). We have been directed to or discovered only three cases which have considered the constitutional aspects of the introduction of evidence and comment thereon drawing an inference of guilt from silence or from a refusal to speak with police prior to the accused being warned of Miranda rights, arrested or otherwise held in custody. Compare United States v. Henderson (5th Cir. 1978), 565 F.2d 900 (applying post-arrest cases and principles to find reversible error) with Jenkins v. Anderson (1980), 447 U.S. 231, 65 L. Ed. 2d 86, 100 S. Ct. 2124 (no constitutional issue is presented; instead, question is purely an evidentiary one of relevancy) and United States v. Robinson (E.D. N.Y. 1981), 523 F. Supp. 1006 (no constitutional issue presented).

There is no need here to address the constitutional question as under general evidentiary principles the evidence and argument was erroneous. In People v. Wright (1975), 32 Ill. App. 3d 736, 741, 336 N.E.2d 18, 22, where evidence a defendant in similar circumstances had refused to answer questions was admitted, the appellate court reversed, noting:

“Long before the United States Supreme Court held, in Miranda v. Arizona (1966), 384 U.S. 436,16 L. Ed. 2d 694, 86 S. Ct. 1602, that defendants have a right to remain silent in the face of police interrogation, the Illinois Supreme Court held it was error for the State to offer testimony as to defendant’s refusal to make a statement. In People v. Rothe (1934), 358 Ill. 52, 57, 192 N.E. 777, this refusal had been offered, as here, by the testimony of an officer. As clarification for its reversal, the court stated ‘the fact that [the defendants] refused to make a statement had no tendency to either prove or disprove the charge against them. The admission of this evidence was prejudicial, and since it was neither material nor relevant to the issue being tried it should have been excluded.’ This rule was reaffirmed by the court in People v. Lewerenz (1962), 24 Ill. 2d 295, 299, 181 N.E.2d 99.”

Later in People v. Rehbein (1977), 54 Ill. App. 3d 93, 369 N.E.2d 190, aff’d (1978), 74 Ill. 2d 435, 386 N.E.2d 39, cert. denied (1979), 442 U.S. 919, 61 L. Ed. 2d 287, 99 S. Ct. 2843, the court noted the rule set forth in Rothe and Wright did not depend upon whether the defendant’s silence, which the State utilized, occurred prior in time to the point when he became entitled by his custody to receive Miranda warnings.

The State’s reliance upon People v. LaSumba (1980), 92 Ill. App. 3d 621, 414 N.E.2d 1318, is misplaced as that court noted that the prosecution did not draw an inference of guilt from defendant’s behavior when he walked into a police station, said he had killed his wife, but then remained silent when an officer asked if there was anything else he could tell them. The prosecutor in closing argument had briefly mentioned the defendant’s failure to respond but did not, as here, also offer to the jury an inference that defendant did not wish to make a statement because he was guilty of the offense.

The use by the State of defendant’s statement that he did not want to talk to the police from which to draw a direct inference of guilt was improper. However, we have considered the State’s closing argument as a whole and conclude this portion to be harmless error beyond a reasonable doubt in view of the other clear evidence of defendant’s guilt. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824; People v. Hairston (1980), 86 Ill. App. 3d 295, 299-300, 408 N.E.2d 382, 386.

Defendant also contends he was not afforded effective assistance of counsel in trial asserting his attorney was actually incompetent in carrying out his duty to him to his substantial prejudice. See People v. Lovitz (1981), 101 Ill. App. 3d 704, 710, 428 N.E.2d 727, 731.

At trial, evidence was introduced that a pair of pants found in defendant’s house had type A blood stains on them matching the blood type of one of the victims, but not defendant. Defendant’s father testified the pants were his and the blood stains were made by him. Defense counsel did not produce evidence or a stipulation, as had been done in the first trial, that the father’s blood was type A. The State also introduced in evidence the knife defendant’s father had given to police and argued it was defendant’s knife. Defense counsel did not elicit from the officer who received the knife the fact the father had told the police the knife was his rather than defendant’s. Also, it is asserted defense counsel did not seek a trial court ruling on whether the reviewing court’s opinion in the first appeal was based upon the involuntariness of defendant’s statements or merely a Miranda violation which would allow the State to offer them to impeach defendant. The appellate defender now suggests defendant was not called to testify on his own behalf because of the uncertainty of this possible basis for impeachment.

We conclude each of these matters involved trial tactics and strategy, requiring the exercise of professional judgment, and are insufficient to support a claim of ineffective representation of counsel. (People v. Haywood (1980), 82 Ill. 2d 540, 543-44, 413 N.E.2d 410, 412; People v. Greer (1980), 79 Ill. 2d 103, 122, 402 N.E.2d 203, 212.) The State did not rebut defendant’s father’s testimony that the pants and blood were his, not defendant’s, and further proof was unnecessary. As to the impeachment of witnesses we will not second-guess trial counsel who may have considered their testimony was not credible as given and did not want to risk permitting them to cure any deficiencies on further cross-examination. Moreover, defendant may well have decided not to testify because of factors unrelated to his potential impeachment.

We turn finally to defendant’s contentions related to the admission of evidence of other offenses and his attorney’s failure to object thereto or to impeach the witness.

Tina Ivy testified that she was with defendant on the day of the murders and that when they separated he was going to see his probation officer. Defense counsel did not object nor did he raise this matter in the written post-trial motion. Further, defendant’s probation officer was not then called to impeach Tina Ivy’s testimony as to the time of day defendant arrived to see him. Defendant suggests the admission of this testimony was improper as other-crimes evidence, but we note this matter was waived and find it is not plain error on this record. Furthermore, counsel’s failure to object or to then impeach by calling defendant’s probation officer appears to have been designed to avoid highlighting the inadvertent disclosure defendant was on probation.

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

Affirmed.

REINHARD and UNVERZAGT, JJ., concur.


author: JUSTICE LONDRIGAN

text:
    CHARLOTTE HAMMOND, Plaintiff-Appellee, v. NORTH AMERICAN ASBESTOS CORPORATION, Defendant-Appellant.
    Fourth District
    No. 17360
    Opinion filed May 6, 1982.
    Rehearing denied June 3, 1982.

      Heyl, Royster, Voelker & Allen, of Peoria (William J. Voelker, Jr., Frederick P. Velde, and Judy A. Schieber, of counsel), for appellant.
    James Walker, Ltd., of Bloomington, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Plaintiff, the wife of an asbestos worker who contracted asbestosis, sued defendant, North American Asbestos Corporation, for loss of consortium on theories of strict liability and wilful and wanton negligence. Judgment was entered on the jury’s verdict awarding plaintiff $125,000 in compensatory and $375,000 in punitive damages, and defendant appeals.

Plaintiff’s husband, Charles Hammond, was employed by Union Asbestos and Rubber Company (UNARCO) from 1953 until 1971. During this time Hammond contracted respiratory diseases and asbestosis, which is a chronic, degenerative condition caused by inhaling asbestos fiber and dust. Defendant existed from 1953 until 1978 and was a wholly owned subsidiary of Cape Industries, Ltd., a British corporation, which mines and sells raw asbestos. Plaintiff alleged that defendant supplied raw asbestos directly to UNARCO, which in turn produced various asbestos insulation products. Defendant also sold raw asbestos to Calabrian Industries, a New York barter corporation, which bartered the asbestos to the Federal government for its critical materials stockpile. When the stockpile was reduced by the government, portions of defendant’s asbestos were sold to UNARCO for its manufacturing enterprise. Plaintiff’s count in strict liability alleges that defendant sold an unreasonably dangerous product without providing warnings of its danger; plaintiff’s other count alleges that defendant wilfully and wantonly failed to provide warnings.

Defendant first contends that plaintiff has no cause of action in strict liability because the raw asbestos is not a product within the meaning of section 402A of the Restatement (Second) of Torts. Section 402A provides:

“ ‘(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
‘(a) the seller is engaged in the business of selling such a product, and
‘(b) it is expected to reach the user or consumer in the condition in which it is sold.
‘(2) The rule stated in subsection (1) applies although
‘(a) the seller has exercised all possible care in the preparation and sale of his product, and
‘(b) the user or consumer has not brought the product from or entered into any contractual relation with the seller.’ ” (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 621, 210 N.E.2d 182, 187.)

Defendant argues that because raw asbestos fiber must be processed or refined and has no marketable value unless such processing occurs, raw asbestos should not be considered a product because it is not sold in substantially the same condition in which it is expected to reach the ultimate user or consumer.

The Restatement does not define the term “product.” Illinois cases that have faced the question whether an article or substance is a product within the meaning of the Restatement have concluded that a particular item will be considered a product if to do so will effectuate the policy basis for imposing strict liability in tort. (Lowrie v. City of Evanston (1977), 50 Ill. App. 3d 376, 365 N.E.2d 923.) The public policy concern at issue is whether the loss caused by a defective article should be borne by those who have created the risk or reaped the profit by placing the item in the stream of commerce. Suvada.

As the court in Lowrie noted, products are not simply something resulting from a production or manufacturing process. Such a definition would exclude water, wood, all living things, and anything else that remains in a natural state at the time it is supplied and distributed. In Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 266 N.E.2d 897, the supreme court concluded that although whole blood may be viable human tissue and thus not manufactured as an article of commerce, it is a product in much the same way as other articles that are distributed for human consumption in their natural state. Thus, that raw asbestos must undergo processing does not automatically preclude a determination that it is a product.

Significantly, the drafters of section 402A did not rule out consideration of whether raw materials, in their natural state, should be considered products. Comment p of section 402A indicates that the drafters only refrained from taking any position concerning the possible liability of a seller when the product is expected to, and does, undergo further processing or other substantial change after it leaves his hands but before it reaches those of the ultimate user or consumer. The following examples are instructive:

“It seems reasonably clear that the mere fact that the product is to undergo processing, or other substantial change, will not in all cases relieve the seller of liability under the rule stated in this Section. If, for example, raw coffee beans are sold to a buyer who roasts and packs them for sale to the ultimate consumer, it cannot be supposed that the seller will be relieved of all liability when the raw beans are contaminated with arsenic, or some other poison. * * * On the other hand, the manufacturer of pigiron, which is capable of a wide variety of uses, is not so likely to be held to strict liability when it turns out to be unsuitable for the child’s tricycle into which it is finally made by a remote buyer. The question is essentially one of whether the responsibility for discovery and prevention of the dangerous defect is shifted to the intermediate party who is to make the changes. # ” *” Restatement (Second) of Torts sec. 402A, Comment p, at 357 (1965).

Based upon the foregoing, we conclude that raw asbestos is a product within the meaning of the Restatement. Although raw asbestos is processed before it is ultimately sold to consumers, raw asbestos and not some manufactured article caused the harm in this case. There was no change in the condition of the asbestos from the time it was sold until it reached the “ultimate user,” Charles Hammond. Moreover, the argument that but for the manufacturing process the asbestos would not have been altered begs the question.

The evidence showed clearly that handling asbestos in any form produces dust. Liability may be imposed in a products case if the injury results from a condition of the product and the condition is unreasonably dangerous and existed when the product left the defendant’s control. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) The proclivity of raw asbestos to give off dust was certainly a condition that existed when the product left defendant’s control.

The next issue is whether this inherent property of raw asbestos is unreasonably dangerous. A product can be inherently dangerous and yet not defective. If unaccompanied by sufficient warnings, a product that contains inherent dangers is defective when it is sold and therefore unreasonably dangerous. Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 412 N.E.2d 959.

Although no court has ever held that raw asbestos is unreasonably dangerous, the weight of authority has held that a jury question exists whether products containing asbestos are defective and unreasonably dangerous. (Borel v. Fibreboard Paper Products Corp. (5th Cir. 1973), 493 F.2d 1076; Migues v. Fibreboard Corp. (Dec. 7, 1981), 50 U.S.L.W. 2365.) It has also been held as a matter of law that asbestos products are defective and unreasonably dangerous. Flatt v. Johns Manville Sales Corp. (E.D. Tex. 1980), 488 F. Supp. 836.

These results are applicable here, for asbestos products are harmful because of the asbestos they contain. Thus, if products containing asbestos can be unreasonably dangerous, it follows that asbestos itself can be unreasonably dangerous. Furthermore, there was sufficient evidence for the jury to conclude that raw asbestos is inherently dangerous and was unreasonably dangerous when sold when not accompanied by sufficient warnings.

Defendant next contends that the strict liability count of the complaint must fail because defendant did not sell anything, arguing that it was only a broker, facilitating the sale of asbestos between customers and the parent corporation, Cape Industries, Ltd. Irrespective of defendant’s role in the marketing of asbestos in its normal course of business, this argument ignores the evidence adduced concerning the government contract sales. The testimony and documents disclose that Calabrian directly negotiated contracts between defendant and itself to supply asbestos for the Federal government’s stockpile of critical materials. Thus, insofar as the government contract sales are concerned, defendant became a seller within the meaning of the Restatement for which liability attaches. A seller who circulates a defective product — even though he has not created the defect — may be held liable in strict liability to an injured user; the nature of the commercial transaction by which the product is placed in the stream of commerce is irrelevant to the policy considerations that underlie strict liability. Crowe v. Public Building Com. (1978), 74 Ill. 2d 10, 383 N.E.2d 951.

Illustrative is a letter from Robert Cryor, president of North American, to Commodity Credit Corporation concerning these transactions. Cryor represented to Commodity Credit:

“No other firm or individual is authorized to offer any Amosite or Blue Crocidolite asbestos produced by our parent organization, The Cape Asbestos Co. Ltd., London, or by any of its affiliated companies.
* “ “.For your guidance, we wish to mention that The Cape Asbestos Co. Ltd., and its affiliates, while producing approximately 90% of the world’s supply of all grades of amosite asbestos, are virtually the sole producers of the “ “ “ fiber grades meeting the Stockpile specifications.”

Defendant nevertheless argues that plaintiff could directly trace only 12,500 pounds of defendant’s asbestos to UNARCO from the stockpile sold by the government. Defendant concludes that because this amount represents only 2!i days’ production out of the 16 years that plaintiff’s husband worked at the Bloomington plant, plaintiff did not demonstrate either that any of this stockpile asbestos was used at a time when her husband was present in the plant or that his exposure to asbestos from defendant was anything more than de minimis during that time.

Defendant’s argument is without merit. Documentary evidence in the record demonstrates that over the period of years when asbestos was sold to the government stockpile millions of pounds of the substance changed hands. Furthermore, Government Services Administration records indicate that millions of pounds of amosite asbestos of South African origin were subsequently sold to UNARCO when the stockpile was reduced. Because Cape produced 90% of the world’s supply of amosite asbestos and was virtually the sole producer of the grade of asbestos meeting the government specifications, it defies credibility to believe that a large portion of the South African amosite asbestos sold by the government to UNARCO did not originate in defendant’s barter sales. A jury could reasonably conclude that defendant’s role in marketing asbestos was sufficient to establish plaintiff’s theory of strict liability. See Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401.

Defendant next contends that it was relieved of a duty to warn of the dangers of asbestos by its compliance with government specifications in the Calabrian barter sales. The evidence indicated that as part of the specifications for the sales, certain identifying marks were required to be placed on the bags of raw asbestos. Defendant argued at trial that the government requirements precluded them from placing any other marks, including warnings, on the bags. One of the defendant’s corporate witnesses, however, admitted that defendant never asked the government whether warnings could be placed on the bags.

Defendant cites Hunt v. Blasius (1977), 55 Ill. App. 3d 14, 370 N.E.2d 617, for the proposition that compliance with government standards and specifications precludes liability with respect to any product that complies with those specifications. We find defendant’s position untenable. In affirming this court’s conclusion that the manufacturer of a highway sign was not liable for injuries sustained in a fatal automobile collision with a highway sign, the supreme court held that an independent contractor owes no duty to third persons to judge the plans, specifications, or instructions that he has merely contracted to follow. If the contractor carefully carries out the specifications provided him, he is justified in relying upon the adequacy of the specifications unless they are so obviously dangerous that no competent contractor would follow them. Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.

Under this rule liability will be precluded unless it is foreseeable or obvious that the plans or specifications were defective or that the material or product, while inherently dangerous, was not generally known to be so. (See Littlehale v. E. I. du Pont de Nemours & Co. (2d Cir. 1967), 380 F.2d 274.) Here, although defendant was aware of the dangerous conditon of the asbestos, it never sought to inform the government of that condition or inquired whether the government was aware of the danger or whether it could place warnings in addition to the government-specified markings on the bags. Under these circumstances, defendant cannot rely as a matter of law on the theory that government specifications preclude liability. The issue was a question of fact for the jury to determine. Simien v. S.S. Kresge Co. (5th Cir. 1978), 566 F.2d551; Raymond v. Riegel Textile Corp. (1st Cir. 1973), 484 F.2d 1025.

Defendant also argues that it was relieved of the duty to warn UNARCO and the government because they had the same or greater degree of sophistication and knowledge of the dangers of asbestos as did defendant. The cases cited by defendant stand for the proposition that a duty to warn exists when there is unequal knowledge, actual or constructive, and the defendant possessed of such knowledge knows or should know that harm might occur if no warning is given. In the absence of unequal knowledge there is no duty to warn. See Robinson v. Deck (1975), 33 Ill. App. 3d 71, 337 N.E.2d 316.

The rule cited by defendant does not apply in this case. It cannot be said that asbestos workers had equal knowledge of the dangers attributable to the handling of asbestos. Defendant, however, was aware of an industry-wide history of asbestos-related diseases in insulation workers. It was also established that as early as 1949 a comprehensive study of South African mine workers, including those at one of Cape’s mines, produced findings that all the workers had contracted some form of asbestos-related disease. There was no proof that Charles Hammond or his fellow workers knew of these dangers. Thus, there was unequal knowledge that required defendant to warn of the known dangers. See Restatement (Second) of Torts secs. 388, 389 (1965).

Defendant next attacks the award of punitive damages and argues first that punitive damages may not be recovered in an action for loss of consortium. Loss of consortium, a common law action, is based on injury to the spousal relationship. (Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881.) The customary reason for denying punitive damages in an action for loss of consortium is that the action is derivative. For example Hughey v. Ausborn (1967), 249 S.C. 470, 154 S.E.2d 839, refused to allow recovery of punitive damages and quoted with approval Golden v. R.L. Greene Paper Co. (1922), 44 R.I. 231, 233, 116 A. 577, 580:

“ ‘When a wife has been injured by the negligent act of another, there has not been an intentional wrong committed against the husband. There cannot be said to be a direct injury to other than the practical and material elements of his right of consortium.’ ” (249 S.C. 470, 477, 154 S.E.2d 839, 842.)

See also People’s Home Telephone Co. v. Cockrum (1913), 182 Ala. 547, 62 So. 86.

Other courts have reached the opposite result and have permitted claims for punitive damages by construing injury to the spousal relationship as a direct harm to the plaintiffs spouse. For example, in Sheats v. Bowen (D. Del. 1970), 318 F. Supp. 640, the plaintiffs wife was injured in an automobile collision; the plaintiff sought punitive damages in his loss of consortium count. Citing Hughey, Peoples Home Telephone, and Golden, the defendant argued that punitive damages were not recoverable under Delaware law for loss of consortium. Because the Delaware Supreme Court had never considered the question, the district court analyzed the components of the cause of action to determine what Delaware law would require. The court noted that Delaware law (1) permits the recovery of punitives in addition to compensatories when an act is done maliciously, wantonly, or recklessly, (2) does not distinguish between direct and indirect injuries, (3) treats a claim for loss of consortium as separate from and independent of the other spouse’s claim for injuries, and (4) allows punitive damages in suits alleging the wanton alienation of affections. Sheats concluded:

“In view of the settled Delaware law that a husband has a distinct claim for a tort against a third person when his wife is injured and he is thereby deprived of her society or services or put to other expense or loss as a result of the wrong and that punitive damages may be awarded by way of punishment when a right is invaded by a malicious, wanton or reckless act, the authorities from other jurisdictions are not convincing.” (318 F. Supp. 640, 648.)

See also Kohl v. Graham (D. Colo. 1962), 202 F. Supp. 895.

Actions for loss of consortium are derivative or indirect in the sense that an injury to the spousal relationship is generally established by proof that the other spouse has suffered harm. The plaintiff spouse brings the action in his or her own name for his or her own benefit, however, and in that sense the action is not derivative.

No Illinois court has decided whether punitive damages may be awarded in an action for loss of consortium. Punitive damages are imposed to punish defendants and to deter them and others from engaging in similar conduct in the future; as punishment meted out in civil actions, however, they are disfavored. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) Although plaintiff herein sought punitive damages under the theory of wilful and wanton misconduct and not under the theory of strict liability, the problems described in Moore v. Remington Arms Co. (1981), 100 Ill. App. 3d 1102, 1113-15, 427 N.E.2d 608, 616-17 (punitive damages and products liability), are also relevant here. Given the dual nature of plaintiff’s action — plaintiff sues in her own name and in her own behalf but depends in large part on evidence concerning her husband’s employment and his resulting injuries — we are reluctant to extend punitive damages to actions for loss of consortium. Even if we were to interpret plaintiff’s request for unspecified damages in her products liability count as including punitive damages (Kimes v. Trapp (1964), 52 Ill. App. 2d 442, 448, 202 N.E.2d 42, 45), our reasoning would preclude recovery of them under that theory. Allowing recovery of punitive damages in actions for loss of consortium would involve important considerations of public policy, and such an extension should be made by the supreme court.

We therefore conclude that the trial court erred in submitting to the jury the question of punitive damages; given this decision, we need not address defendant’s alternative arguments against the award.

Finally, the award of compensatory damages is supported by the evidence. Both counts requested compensatory damages, and plaintiff’s proof was sufficient to establish liability under either theory. The award of compensatory damages was not excessive. Plaintiff presented evidence of medical expenses in the amount of $33,000. At the time of the suit, Charles Hammond was 54 years old and in declining health. The evidence clearly indicated that his health would continue to deteriorate and that additional and substantial medical expenses would be incurred. The deterioration of his health would, likewise, have an influence on those other elements of the marital relationship compensable in a consortium action. The jury’s award of $125,000 in compensatory damages is a fair and just amount, intended as it is to compensate for measurable as well as immeasurable losses. We have carefully examined defendant’s other assertions of error and upon due consideration of the record conclude that they are without merit.

We therefore affirm all portions of the circuit court’s judgment except the award of punitive damages.

Affirmed in part and reversed in part.

GREEN, P. J., and MILLS, J., concur.


author: JUSTICE HOPE

text:
    W. R. LATHOM TOOL & MACHINE COMPANY, INC., Plaintiff-Appellee, v. MUTUAL LEASING ASSOCIATES, INC., et al., Defendants.—(NORTHBROOK LEASING, Intervening Petitioner-Appellant.)
    Second District
    No. 81-604
    Opinion filed May 4, 1982.
    Richard R. Haldeman and Russell D. Anderson, both of Williams, McCarthy, Kinley, Rudy and Picha, of Rockford, for appellant.
    Peter S. Switzer, of Barrick, Jackson, Switzer, Long and Balsley, of Rockford, for appellee.
   JUSTICE HOPE

delivered the opinion of the court:

This case concerns the meaning of purchase options on two machine lathes leased by plaintiff Lathom Tool & Machine Company, Inc. (Lathom), from defendant Mutual Leasing Associates, Inc. (Mutual), predecessor to intervening petitioner Northbrook Leasing Company (Northbrook). The trial court found that the terms of the options entitled Lathom to set the value, and as its president, W. R. Lathom, had set the value at $1, it was entitled to each machine upon tender of this amount.

The lease for each machine ran seven years. The lease on one machine ran from February 27, 1974, and the other from December 27, 1974. On December 27,1974, as a part of the consideration for the second lease, purchase options for both machines were given to Lathom. Each purchase option stated that at the end of the lease Lathom had the option to purchase the machine leased for “the purchase option price of ° * ‘Fair Market Value’ determined by W. R. Lathom Tool & Machinery Co.”

After the leases terminated Lathom informed Northbrook, Mutual’s successor in interest, that it chose to purchase the machines, and tendered a check for $1. This was refused by Northbrook and Lathom brought this action, seeking a declaratory judgment that the purchase options provide a determination of fair market value by Lathom and by no other means of appraisal or setting. Lathom further prayed that the court order documents transferring title to it.

Evidence was adduced at trial about the leases and the negotiations and intentions that prompted the parties to agree to the options. Evidence depositions of three witnesses were also submitted to the trial court. W. R. Lathom testified that Mutual had executed and delivered to Lathom a written purchase option giving it the option to purchase the tool lathes for $1 each. Such option was not offered into evidence at trial. W. R. Lathom testified he had no idea of its whereabouts.

At the conclusion of the hearing Lathom amended its complaint, alleging in the alternative to its allegations of rights under the purchase options upon which it based the original complaint, that Mutual executed and delivered to Lathom a written purchase option for $1. The amendment to the complaint prayed for judgment as previously requested.

The trial court stated its findings in open court, consisting in pertinent part as follows:

“ [Representations made by Mutual salesman and Mutual’s president at the time Mutual leased the second lathe to Lathom] led the plaintiff, Mr. Lathom, to believe that the ‘fair market value as determined by the lessee’ meant that the lessee could place whatever value he wanted on the goods. Otherwise, it doesn’t have any meaning. If you say ‘fair market value’, fair market value would be fair market value. ° * The lease was prepared by the lessor.
I previously indicated that I didn’t think that [the $1 purchase option about which W. R. Lathom testified] existed. In other words, [the option] wasn’t a dollar. It was ‘fair market value as determined by lessee.’ There was testimony that a dollar figure did apply, but I can’t find that from the evidence.
I think that the plaintiff’s conduct is somewhat inconsistent when he went out and in fact got * * * some appraisals on the goods, but * * * most of the appraisals would indicate that the property had little or no value as far as for sale purposes. It was pretty much obsolete machinery that other people would normally not want to buy. However, there is no question that to the plaintiff it would have considerable value because he’s been using them for years and probably has stock or whatever that was used * * * with that equipment. And for him to have to replace it with something else or ones of like value, it would have * * * a relatively high market value.
And I’m going to find that the plaintiff did have the right to set the value and that by setting it at a dollar * * * the title of the machinery* * * should be turned over to the plaintiff * * *.”

In its written order the court found that pursuant to the purchase options Lathom had the right to set the value of the equipment. Lathom set the price at $1 and tendered that amount and was therefore entitled to both machines upon payment of $2 ($1 each).

Northbrook argues that the language of the purchase options is clear and unambiguous and the court’s construction of the contract was inconsistent with its meaning. Further, Northbrook argues that as the purchase options were unambiguous, the court erred in considering parol evidence of the intent of the parties.

Finally, Northbrook argues that assuming there is ambiguity in the language of the purchase options, the decision of the trial court is contrary to the manifest weight of the evidence, even considering the parol evidence adduced at trial and in the evidence depositions.

First to be decided is whether the purchase options are clear and unambiguous. It is obvious that the parties disagree as to the meaning of the purchase options. This does not necessarily mean that the contract is ambiguous, however. “[L]anguage is not rendered ambiguous simply because the parties do not agree, upon its meaning.” Spircoff v. Spircoff (1979), 74 Ill. App. 3d 119, 127, 392 N.E.2d 363.

The trial court obviously thought the term was ambiguous, for he commented on parol evidence, the testimony of witnesses who were former employees of the lessor which testimony indicated to Lathom that he could set any amount it wished.

We do not agree that the provision is ambiguous. Its meaning can be determined simply from its words. The two phrases “Fair Market Value” and “determined by W. R. Lathom Tool & Machinery Co.,” are not inconsistent, contradictory, or mutually exclusive. Therefore, parol evidence should not have been referred to to explain the meaning of the contract.

Interpretation of the contract must give weight to both phrases. “A contract is to be construed as a whole, giving meaning and effect to every provision thereof, if possible, since it is presumed that every clause in the contract was inserted deliberately and for a purpose.” (Spircoff v. Spircoff (1979), 74 Ill. App. 3d 119, 127.) “The intention of the parties is not to be gathered from detached portions of a contract or from any clause or provision standing by itself, but each part of the instrument should be viewed in the light of the other parts.” (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 283, 154 N.E.2d 683.) “[E]ffect must be given to each word, clause, or term employed by the parties, and none may be rejected for lack of meaning or as surplusage.” Reserve Insurance Co. v. General Insurance Co. of America (1979), 77 Ill. App. 3d 272, 280, 395 N.E.2d 933.

Fair market value means the “[p]rice at which a willing seller and a willing buyer will trade.” (Black’s Law Dictionary 716 (4th ed. 1951).) According to the purchase option this value is to be determined by Lathom, the lessee. Lathom must make a good-faith determination of what the fair market value is, and upon its tender of this amount the machines must be transferred to it for that price. If the clause provided that the lessee could choose any amount it wishes without regard to what the market for those machines is, this would ignore the words “fair market value.” Simply because the contract states that the value can be determined by Lathom, it cannot arbitrarily choose any amount. The price may not be nominal and may not be unrelated to the market value of the machines. Meaning must be given to the words “fair market value,” and Lathom can determine that value, but it must be based upon what Lathom knows or discovers through inquiry to be the fair market value.

Lathom seems to argue that if the option must be tied to the fair market value then no advantage comes to it from the additional language. It does seem true that there will be little difference in meaning between a term simply stating “fair market value” and the one here stating “ ‘fair market value’ as determined by W. R. Lathom Tool Company.” Lathom’s determination of value must be a reasonable reflection of the machinery’s value. It can arrive at a price on the basis of its own familiarity with the business of buying and selling such machines, if it has such experience, or from investigating into the matter to determine what value others in the business place on such machines. Such determination must be accepted by the lessor. Northbrook may counter Lathom’s determination of value with other estimates of the machines’ fair market value only to challenge Lathom’s good faith. This may not be. what Lathom intended, but we think that is what is shown by the words of the unambiguous contract to have been the intentions of both parties. National Acceptance Co. of America v. Exchange National Bank (1968), 101 Ill. App. 2d 396, 402, 243 N.E.2d 264.

Next to be considered is whether the ruling that Lathom can assign a $1 value to the machines is against the manifest weight of the evidence. If it is shown that the $1 amount was determined by a good-faith effort to discover the fair market value and not by reliance upon oral representations that Lathom can fix any amount it wants, then we should not disturb the judgment of the trial court, even if Northbrook can show that others estimate the value to be much higher.

W. R. Lathom testified that the controls on the machines are obsolete and that service for the machines is next to impossible. It would take, perhaps, six months to get repairs made. On cross-examination he testified that in his opinion the machines are worthless “to most everybody.” He also testified under cross-examination that he asked Behr Machinery Company to give him a value on the machines and was told by that company that the machines are worth their scrap value. Another company told him it would not be able to resell the machines.

We conclude that it is against the manifest weight of the evidence to find that Lathom determined the fair market value of the machines to be $1. The evidence shows that he was told they were worth their scrap value. The fair market value for scrap, at least, must be determined by Lathom. The fact that another company could not resell the machines does not mean they were completely valueless. Lathom’s $1 price was an arbitrary determination. We conclude the judgment that Lathom was entitled to the machines for $1 apiece is against the manifest weight of the evidence. See Elgin Lumber & Supply Co. v. Malenius (1967), 90 Ill. App. 2d 90, 97, 232 N.E.2d 319.

In its complaint Lathom only asks for a declaration of its rights. By this decision these rights are declared. There is no further controversy; therefore, there is no need for remand. We reverse the judgment of the Winnebago County Circuit Court.

Reversed.

LINDBERG and NASH, JJ., concur.


author: JUSTICE STOUDER

text:
    UNITED FIRE AND CASUALTY COMPANY, Plaintiff and CounterdefendantAppellant, v. JIM MALOOF REALTY, INC., et al., Defendants-Appellees.—(JIM MALOOF REALTY, INC., Counterplaintiff-Appellee.)
    Third District
    No. 81-453
    Opinion filed April 14, 1982.
    Rehearing denied June 7, 1982.
    Edward M. Wagner and Duncan B. Cooper, III, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.
    David L. Higgs and Dean B. Rhoads, both of Sutkowski & Washkuhn Associates, of Peoria, for appellee Marilou N. Putnam.
    Timothy J. Howard and Phillip B. Lenzini, both of Kavanagh, Scully, Sudow, White & Frederick, P. C., of Peoria, for appellee Jim Maloof Realty, Inc.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff, United Fire and Casualty Company, brought this declaratory judgment action in order to determine its duty under a “Real Estate Agents Errors and Omissions” insurance policy to provide a defense for its insureds in a lawsuit alleging fraudulent misrepresentation. The circuit court of Peoria County found that United was required to defend its insureds in the underlying tort action.

During 1979 and 1980, defendant, Jim Maloof Realty, Inc., was the named insured in a “Real Estate Agents Errors and Omissions” insurance policy with plaintiff, United Fire and Casualty Company. The policy provided coverage for any claim against the insured caused by any negligent act or omission of the insured or any other person for whose acts the insured was legally liable in the conduct of its business as a real estate agency. In addition, a defense would be provided the insured in a lawsuit for any such negligent act, error or omission even if the suit were groundless, false or fraudulent. The policy did not apply to any dishonesty, intentional fraud, criminal or malicious act, libel or slander.

During 1980, E. Neill Scott and Donna Scott brought suit against Maloof and a number of its agents relating to the sale of the Scott residence. The Scotts alleged that Maloof induced them to sell their home at a price grossly below its fair market value to a Maloof agent, Leo Sullivan, and his wife, for purposes of residential use. The Sullivans then immediately resold the property at a substantial profit. The Scotts contended that Maloof’s actions constituted knowing, wilful and wanton misrepresentation in breach of its fiduciary duty to them. The first count of the Scotts’ fourth amended complaint requested compensatory damages and the second count, after realleging the facts stated in count one, requested exemplary damages.

On April 16, 1980, after receiving the first amended complaint, Maloof demanded that United assume its defense and afford it coverage on its policy. United denied there was coverage and refused to undertake the defense of Maloof.

Subsequently, United filed its declaratory judgment action seeking a declaration concerning coverage and its duty to defend under the policy. Maloof counterclaimed, seeking a declaration relating to United’s duty to defend.

Both Maloof and United moved for summary judgment. The trial court allowed Maloof’s motion and denied United’s as to the duty to defend. The court found the issue of coverage to be premature and dismissed it without prejudice to permit refiling after disposition of the underlying suit.

The issue which has been presented for our review is whether the underlying tort complaint filed against Maloof and its agents gives rise to a duty to defend by United under the terms of its “Real Estate Agents Errors and Omissions” policy issued to Maloof.

The controlling statements of law on the issue of an insurance company’s duty to defend are set forth in Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24, and Grinnell Mutual Reinsurance Co. v. Frierdich (1979), 79 Ill. App. 3d 1146, 399 N.E.2d 252. InMaryland, the supreme court was asked to decide whether an insurance company was required to defend its insured under a homeowner’s insurance policy in a tort action alleging assault, negligence and wilful and wanton conduct in three separate counts. The insured had shot a person, thinking him to be a burglar. The policy excluded coverage for injuries intentionally inflicted and the court determined that count one, alleging assault, was the only definite claim of intentional conduct.

The court stated that the allegations of the complaint determine the duty to defend and that if the complaint alleges facts either within the coverage of the policy or potentially within that coverage, the insurance company’s duty to defend has been established. Therefore, in Maryland, where several theories of recovery against the insured were alleged, only one of which was conclusively excluded by the policy, the insurance company was obligated to defend its insured.

In Grinnell, an insurance company brought a declaratory judgment action in order to determine its duty to defend under a comprehensive personal liability insurance policy. The underlying complaint against the insureds contained two counts of intentional acts constituting battery and two counts alleging that those same acts were done wilfully, wantonly and maliciously. The lawsuit grew out of an argument and fight between the insureds and a third party. The insurance policy excluded coverage for injuries caused intentionally by or at the direction of the insureds.

The court found that although the complaint alleged intentional acts, it did not allege a specific intent to injure. Wilful, wanton or reckless conduct is not equivalent to a specific intent to cause injury and neither is an intentional act which results in an unintended outcome. The court cited Maryland in concluding that when a complaint alleges facts both within and without the coverage of an insurance policy, the insurance company has a duty to defend its insured.

In the case at hand, the underlying fourth amended complaint essentially states one cause of action, that of intentional fraud. The scheme which was described in the complaint was specifically designed to defraud the Scotts. Every allegation of misrepresentation is prefaced by the words knowingly, wilfully and wantonly. The inclusion of the words wilful and wanton in this context does not transform what is in essence a specific intent to deceive into an aggravated form of negligence. The complaint must be read as a whole in order to assess its true nature. Therefore, since the factual allegations of the complaint are premised upon only one theory of recovery, that of intentional fraud, and do not fall within the potential coverage of the insurance policy, United has no duty to defend its insureds.

As for the trial court’s decision that a ruling on the coverage of the insurance policy would be premature, we are in agreement based upon the holding on this point in Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24.

For the foregoing reasons the judgment of the trial court as to United’s duty to defend is reversed and its judgment as to the prematurity of the coverage issue is affirmed.

Reversed in part, affirmed in part.

BARRY, P. J., and HEIPLE, J., concur.


author: JUSTICE UNVERZAGT

text:
    BOBBY G. NORRIS, Plaintiff-Appellant, v. THE CITY OF AURORA et al., Defendants-Appellees.
    Second District
    No. 80-989
    Opinion filed December 31, 1981.
    Rehearing denied April 15, 1982.

      Norman R. Lawrence, of Aurora, for appellant.
    Peter K. Wilson, Jr., of Puckett, Barnett, Larson, Mickey, Wilson and Ochsenschlager, of Aurora, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Bobby G. Norris, appeals from the judgment of the circuit court of Kane County affirming the order of the Aurora Civil Service Commission discharging the plaintiff from his job as a bus driver for the City of Aurora.

The plaintiff was a bus driver for the City of Aurora for approximately nine years before he was discharged. On June 5,1975, he was involved in an altercation with another bus driver while on duty, and it is alleged that he threatened the other bus driver with a board. After an argument on the street along the bus route, he and the other driver agreed to meet at an empty lot after work to settle their differences. The plaintiff brought a gun to this meeting and discharged it at the feet of the other driver when he thought the other driver was advancing in a threatening manner. The incident was reported to Norris’ superior the day afterwards — June 6, 1975 — and Norris was notified on the same day that he was being suspended from work for 29 days and charges were being preferred against him. He was told in that letter that he was being discharged as of July 5,1975.

On June 14, 1975, Norris’ lawyer, Lawrence, wrote the Aurora Civil Service Commission demanding immediate reinstatement of Norris or, in the alternative, an immediate hearing, notice of charges and details thereof and a transcript of any hearing. It is indicated in the plaintiff’s brief that some preliminary questioning of the plaintiff was done by a city official immediately after the incident in question, although no formal record was made of such interrogation. As will be seen later, this memo of the initial investigation was not used at the hearing before the Civil Service Commission. No warnings or admonishment were given to Norris in such preliminary investigation as to the later use of the results of such investigation, as required by section 10 — 1—18 of the Municipal Code (Ill. Rev, Stat. 1975, ch. 24, par. 10 — 1—18).

On July 18 the Aurora Civil Service Commission acknowledged Attorney Lawrence’s letter and set the hearing on plaintiff’s discharge for August 5, 1975. When the hearing convened on August 5 Attorney Lawrence presented a motion to dismiss the proceedings with prejudice because of alleged deficiencies and irregularities in the procedure preceding the hearing, among these being that the charges were vague and inconsistent, that the plaintiff had never been properly notified of his rights as required by statute and that the commission had acquired a prejudice against the plaintiff before the hearing. The plaintiff’s motion prayed for dismissal of the charges “with prejudice” although no evidence at that time had been taken. The commission, upon presentation of this motion, dismissed the hearing orally and without any comment that appears in the record. We must assume that the commission, in granting the motion to dismiss the proceedings, was not sure it had proceeded correctly up to that point. While no order was entered by the commission at that time, a subsequent letter written by the corporation counsel to another city official, in referring to the dismissal of the August 5 hearing, mentioned “procedural difficulties” as the reason for dismissing the hearing at that time.

Following the dismissal of the hearing on August 5, Norris was reinstated and given his back pay from June 6 to September 11. However, on September 16 he was again advised by letter from the commission that he was being suspended effective September 15, and that there would be a hearing on his case. Detailed charges were set forth in that letter, which stated that Norris was being suspended for a period of 29 days effective September 15 and that charges were being preferred against him by the Aurora Civil Service Commission with a view to seeking his ultimate termination. On September 24 Attorney Lawrence demanded an immediate hearing for Norris. On October 6 Lawrence was informed there would be a hearing before the Civil Service Commission on October 21. The hearing set for that date was continued to October 28 — at whose instance is not clear from the record.

On October 28 the hearing proceeded, although it was not finished that day. At the next meeting, November 4, the commission finished its consideration of the case and decided against Norris. He was sent a letter advising him that after careful consideration the commission had ruled in favor of the City of Aurora as to all the charges brought against him. Norris then brought an action for administrative review of the commission’s decision which was heard and decided in the commission’s favor by the circuit court. This resulted in the present appeal.

In substance, the plaintiff contends in this appeal (1) that the commission violated the procedural rules set forth in section 10 — 1—18 of the Municipal Code pertaining to civil service employees (Ill. Rev. Stat. 1975, ch. 24, par. 10 — 1—18) in the following respects: (a) by failing to notify the employee of his rights during investigative interrogation; (b) in suspending the employee for two distinct periods for the same offense; (c) in failing to enter a written formal order of discharge; (d) in failing to make formal findings for a discharge and failing to certify the same to the employees appointing office and failing to provide the employee with a transcript of the discharge hearing; (2) that the commission erred in bringing a second proceeding for discharge against the employee after a dismissal of the first proceeding was granted on a motion asking for a dismissal of the hearing with prejudice; (3) that the commission erred in failing to provide a hearing within 30 days of the demand therefor by the employee; (4) that the decision was against the manifest weight of the evidence.

As to the first contention, while there were flaws in procedure in the initial handling of the case, these did not carry over so as to invalidate the second hearing. Indeed, the commission tacitly acknowledged these deficiencies in aborting the first hearing on the motion of the plaintiff. At the second hearing the commission ruled that no evidence taken at the preliminary interrogation should be presented before the Civil Service Commission at the second hearing. Thus the preliminary investigation did not affect the result of the second hearing.

The plaintiff complains of a failure to notify him of his rights during the preliminary investigation, but we disregard this contention since that evidence was not used. That evidence merely served as a preliminary determination as to whether or not there was cause for a hearing.

Plaintiff also complains that he was suspended twice for the same offense, but this resulted from the termination of the first hearing on the plaintiff’s motion. It should be noted that the City of Aurora reimbursed the plaintiff for the wages lost during the period of the first suspension. He was notified as to the detailed charges against him and then after the hearing was notified that the commission had found against him on all these charges. The contention that he was not notified as to the detailed charges against him is not substantiated. Section 10 — 1—18, governing removal and suspension of a civil service employee, provides that the charges must be in writing and also provides for a hearing and for other safeguards as to preliminary investigation, but it does not require that the discharge of an ordinary municipal employee be accompanied by formal written findings. The failure to make such formal written findings and notify the plaintiff as to such findings did not affect the validity of the proceedings. There is a further contention that the plaintiff was required to carry the burden of proof as to his right to be reinstated. However, the mere fact that the plaintiff was required to defend charges emanating from a preliminary investigation of an incident which the plaintiff admittedly was involved in does not shift the burden of proof. It merely requires him to answer the charges, as would be required even under the greater protection afforded a defendant in a criminal case. It is farfetched to say that the mere filing of charges, thus putting the employee on the defensive, shifts the burden of proof. It always is the administrative body’s burden to prove the charges by the manifest weight of the evidence. It was so in this case, and the trial court found that the commission had sustained that burden. As to the failure to certify a written order of discharge, while a written order of discharge is desirable, it is not required by the statute. The commission, by letter, advised the plaintiff’s attorney as to its decision, and the decision was thus made a matter of record, being General Order No. 10 (undated) of the Aurora Civil Service Commission. We do not find that the plaintiff was prejudiced by the lack of formal written findings.

The plaintiff also complains he was not furnished a transcript of the civil service hearing upon his discharge. Such a transcript was available at the city hall and the plaintiff was made aware of this. Upon motion during this appeal the transcript of the hearing was made a part of the record.

The transcript of the discharge hearing which terminated on November 4 was, of course, part of the record before the circuit court in the administrative review hearing and was available to the plaintiff at that time. The plaintiff has not pointed out any specific prejudice he suffered because the transcript of the hearing before the commission was not given to him following that hearing. The statute requires that a “complete record” of the hearing shall be made and a “complete transcript thereof made available to such officer or employee.” A complete transcript of the hearing was indeed made, and the transcript was made available to the plaintiff, who was informed that it was available to him at the city hall.

The transcript having been submitted to the trial court at the administrative review hearing and made a part of the record on appeal and no specific prejudice to the plaintiff having been cited with regard to the transcript, we disregard this contention.

We consider next the plaintiff’s second argument — that it was a violation of due process for the commission to bring a second discharge proceeding against him after the commission had granted his motion to dismiss the first proceeding, the motion being “with prejudice.” The plaintiff argues that where a motion is granted without an order following, which explains or construes the legal effect of the order, the effect of granting the motion is to be gleaned from the relief prayed for in the motion. In this case the plaintiff’s motion of August 5 asked that the charges against the plaintiff be dismissed “with prejudice” and the commission, upon presentation of that motion, terminated the hearing, without any consideration of the evidence or the merits of the case. In this sense the commission did thereby grant the plaintiff’s motion to dismiss the proceedings. The plaintiff cites the case of Ferracuti v. Ferracuti (1975), 27 Ill. App. 3d 495, in arguing that the granting of the motion should be construed as a granting of the relief prayed for in that motion. However, the Ferracuti case is not apposite to the case before us. There the motion was entitled “Motion for Change of Venue to Another Circuit.” After the motion was granted and the case decided by a judge of another circuit, the wife, whose motion it was, contended that the order “assigning” the case to another judge in a different circuit did not effect a change of venue to the other circuit but was a mere assignment of an out-of-county judge to hear the case in the original county. It was in this context that the appellate court commented: “The order should be construed within the context of the defendant’s motion which accompanied it.” (27 Ill. App. 3d 495, 498.) It should be noted that in the Ferracuti case it was the party making the motion and designating it as a “change of venue” who was trying to argue that the order granting the motion did not effect a change of venue. This was a procedural mátter, not involving the merits and not involving a question of res judicata. In any event, the doctrine of res judicata under any set of facts applies only where there has been a determination of the merits. The leading case on the doctrine of res judicata in Illinois, Charles E. Harding Co. v. Harding (1933), 351 Ill. 417, in discussing the doctrine, states that it applies to “a cause of action finally determined between the parties on the merits * e e ” (Emphasis added.) 352 Ill. 417, 426.) In Rotogravure Service, Inc. v. R. W. Borrowdale Co. (1979), 77 Ill. App. 3d 518, 524, the court in discussing the doctrine of res judicata said:

“Thus, before an adjudication can stand as a bar to a subsequent action, it must be determined whether the first action resulted in a final judgment on the merits # *

In its discussion of res judicata (46 Am. Jur. 2d Judgments §477 (1969)), it is stated:

“In stating the doctrine of res judicata, the courts usually refer to the fact that the judgment sought to be used as a basis of the doctrine was rendered upon the merits * 0

Since no evidence was heard in the case before us and no judgment rendered on any issue at the first hearing, due to the plaintiff’s motion to dismiss, there was no determination to which the doctrine of res judicata could apply in connection with the first hearing. The cases of Bernhardt v. Fritzshall (1973), 9 Ill. App. 3d 1041, and Keim v. Kalbfleisch (1978), 57 Ill. App. 3d 621, cited by the plaintiff, have no bearing on the case before us. Bernhardt involved a mortgage foreclosure where the “with prejudice” dismissal was for the convenience of the defendant and in any event a different issue was presented in the second suit, which had not been reached in the first suit. In Keim, the court held that a previous judgment interpreting a will barred a second suit on another aspect of the same will since it was a matter which could have been put in issue and decided in the first suit. Obviously neither of these cases are apposite here. The plaintiff invokes fundamental principles of fairness and due process under the fourteenth amendment in his discussion of this point, but we think it is clearly unfair for the plaintiff himself to assert res judicata merely because his motion reads “with prejudice” when the motion itself prevented the hearing from proceeding to hear evidence and to render a judgment on the merits.

The plaintiff further asserts that the failure of the commission to hold a hearing on his proposed discharge within 30 days of his request for such hearing ousted the commission of jurisdiction. In support of this contention the plaintiff invokes the case of Kahn v. Civil Service Com. (1976), 40 Ill. App. 3d 615. We also note the case of Bridges v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 190, bearing on the 30-day limitation. In both of these cases it was held that the commission’s discharge of the employee, when he had not been granted a preliminary hearing within the 30-day limitation, was contrary to law and the decision was reversed. However, in Kahn, the plaintiff was a civil service employee of the State of Illinois under the protection of the Illinois Personnel Code (Ill. Rev. Stat. 1971, ch. 127, par. 63blll), which provided that no employee protected thereunder should be discharged without a hearing and that such hearing should be granted within 30 days of the employee’s request for such hearing.

In Bridges, the employee, being a fireman, was protected under section 10 — 2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 10 — 2.1—17), which also provides that a hearing on a proposed discharge of the employee was to be commenced within 30 days of the filing of the charges against him. The court in both cases held these provisions to be mandatory and jurisdictional. In the case before us, however, the employee is not either a State employee under the Personnel Code or a fireman or policeman under that section of the Illinois Municipal Code which pertains specifically to firemen and policemen. He is a bus driver whose rights are defined under the section of the Illinois Municipal Code applying to municipal employees generally — section 10 — 1—18—and while that section provides for the filing of written charges and “an opportunity to be heard in his own defense”, there is no requirement that the discharge hearing be held within 30 days after the employee requests such opportunity to be heard. In this case, the plaintiff, after being notified on September 16, 1975, that charges were being preferred against him, requested on September 24 that he be granted a hearing. A hearing was set for October 21, then continued to October 28, at which time the hearing began and concluded during the next week, on November 4. While the hearing was not held within 30 days of Norris’ request, the hearing was held promptly thereafter and it is not apparent that he suffered any prejudice through undue delay, such as would violate due process standards.

Lastly, the plaintiff contends the decision of the commission to discharge him was against the manifest weight of the evidence. In reading the transcript of the hearing before the commission, we note the evidence was somewhat conflicting as to whether it was King or Norris who was the more aggressive in bringing about the confrontation in the municipal parking lot. Likewise there is some conflict as to whether Norris was menaced by King at the time Norris fired his revolver at King’s feet. There is substantial credible testimony, however, to establish the factual accuracy of the charges stated in the commission’s letter to Norris dated September 16, 1975. Whether there was provocation for Norris firing his revolver at the feet of a fellow employee, even while off duty, and whether his doing so as a part of a continuing quarrel with such employee which began earlier when both were on duty, is ground for discharging him is, we think, a matter of judgment for the commission. The question for us to decide is whether the decision of the commission was contrary to the manifest weight of the evidence as it was presented before the commission.,(See Fenyes v. State Employee’s Retirement System (1959), 17 Ill. 2d 106; Aarco American, Inc. v. Baylor (1974), 18 Ill. App. 3d 14; Cartwright v. Illinois Civil Service Com. (1980), 80 Ill. App. 3d 787.) We do not find that the commission’s decision was against the manifest weight of the evidence, and, accordingly, the judgment of the trial court is affirmed.

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

Judgment affirmed.

HOPE and VAN DEUSEN, JJ., concur.