author: JUSTICE EARNS

text:
      In re PAULA EATHERTON, a Minor — (The People of the State of Illinois, Petitioner-Appellant, v. Paula Eatherton, Respondent-Appellee (Melvin Eatherton, Appellee)).
    Fifth District
    No. 82—733
    Opinion filed November 9, 1983.

      K. Rick Keller, State’s Attorney, of Effingham (Stephen E. Norris and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Steven P. Seymour, of Effingham, for appellee.
   JUSTICE EARNS

delivered the opinion of the court:

The State of Illinois appeals from the judgment of the circuit court of Effingham County assessing $1,100 in attorney fees against the Department of Children and Family Services in favor of the father of a child made a ward of the State. The fees were awarded under the provisions of section 41 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 41), now section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611).

The Department of Children and Family Services (DCFS) sought to remove a 15-year-old girl from her father’s home. She had chosen to live with her father, although the mother had legal custody. On February 19, 1981, the girl made a voluntary statement to the police accusing her father of sexual abuse. The “Petition for Adjudication of Wardship” filed on February 20, 1981, described the girl as “neglected or dependent” because her “[environment is injurous [sic] to the child’s welfare in that the father is sexually abusing said child.” At a hearing on February 20, 1981, the girl repeated under oath her accusations against her father, saying that he had forced her into intercourse three days before. When asked if he wished to question her, the father said only, “All I want is to put an end to it.” He was not then represented by counsel. Having been admonished by the court as to the seriousness of the allegations and his right to say nothing more, the father remained silent. The court found probable cause that the girl was “neglected and dependent” and that it was necessary for her to be placed temporarily in the State’s care.

On March 18, 1981, the father retained counsel and the next day his attorney was granted a continuance to undertake discovery in view of the seriousness of the charges. Discovery raised significant questions about the girl’s credibility. Her mother indicated that DCFS had known in 1978 of one incident in which the girl had accused her father of sexual abuse but had later said the accusation was “a joke.”

Responding to the State’s original petition, the father denied that he had ever had sexual relations with his daughter or that her environment was injurious to her. He admitted that she was “beyond the control of her parents and *** in need of supervision, pursuant to Chapter 37, §702 — 3 of the Illinois Revised Statutes.” On June 17, 1981, at the hearing on final adjudication of wardship, the parties agreed to an amended petition which omitted the reference to sexual abuse. The father’s attorney voiced no objection to this emendation. He expressed to the court his client’s wish to reserve his right to see the girl in public but not to be alone with her “because of the original allegations.” The court adopted the terms of the amended petition in its placement order of June 17, 1981. Both parents were permitted monitored visits with their daughter. No further trial of the sexual abuse issue was made.

On July 17, 1981, the father asked the court to assess $1,100 in attorney fees against the DCFS for his expenses in defending against the allegations of sexual abuse. Citing to depositions of the girl and her mother made in June 1981 and affidavits signed by the State’s witnesses in June and July of 1981, the father argued that the DCFS had reason to question the girl’s credibility and therefore had a duty to investigate before bringing the charge of sexual abuse against him. On the basis of these allegations about the State’s case, he argued that the charge had been found “untrue upon proper investigation” and had been “made without reasonable cause.” At the continuation of the hearing on the motion on January 6, 1982, the girl’s guardian ad litem testified that although he knew of false accusations made by her against other men, he believed her accusations against her father could have been substantiated. He viewed the negotiations prior to the striking of the reference to sexual abuse from the petition as an effort to prevent the emotional strain of trying the issue in open court. As guardian ad litem, he felt the welfare of the child was his primary concern.

On September 22, 1982, the court ordered DCFS to pay $1,100 in attorney fees because “reasonable care and proper investigation would have revealed a history of similar unreliability on the part of the accuser here *** prior to the charges being filed.” In a minute entry on the court record sheet, the court stated that the deposition testimony supported his finding.

The only question is whether the trial court abused its discretion under section 41 of the Civil Practice Act in assessing the father’s attorney fees against DCFS.

Section 41 provided that:

“Allegations *** made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.
The State of Illinois or any agency thereof shall be subject to the provisions of this Section in the same manner as any other party.” Ill. Rev. Stat. 1981, ch. 110, par. 41.

This statutory provision was intended to discourage frivolous lawsuits by penalizing those who act unreasonably in making allegations later shown to be untrue. (King v. King (1978), 57 Ill. App. 3d 423, 373 N.E.2d 313; Ready v. Ready (1961), 33 Ill. App. 2d 145, 178 N.E.2d 650.) Because of its penal nature, the statute must be strictly construed. (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 394 N.E.2d 1273.) Each of its requirements must be proved (Dulin, Thienpont, Potthast & Snyder, Ltd. v. Packaging Personified, Inc. (1980), 89 Ill. App. 3d 647, 411 N.E.2d 1173), and the burden of proof is on the party seeking the remedy offered by section 41. Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 370 N.E.2d 119; Murczek v. Powers Label Co. (1975), 31 Ill. App. 3d 939, 335 N.E.2d 172.

The assessment of fees under this section is discretionary with the court, and absent clear abuse of the court’s discretion, the award of attorney fees will not be reversed. (DeGraff v. Kaplan (1982), 109 Ill. App. 3d 711, 440 N.E.2d 930.) But the court may exercise its discretion to award fees only when the record discloses both that the allegations are untrue and not put forward in good faith. (Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 383 N.E.2d 185; Village of Evergreen Park v. Spangler (1976), 40 Ill. App. 3d 947, 353 N.E.2d 257.) Findings “that the facts pleaded by the plaintiff were untrue, or that the plaintiff *** knew them to be untrue *** are requisite to relief under Section 41.” (Greengard v. Cooper (1966), 78 Ill. App. 2d 86, 89-90, 221 N.E.2d 775, 777.) In determining whether the plaintiff had reasonable cause, the court must consider what information was available or discoverable at the time the action was initiated. (Couri v. Home Insurance Co. (1977), 53 Ill. App. 3d 593, 368 N.E.2d 1029.) “The facts and circumstances disclosed, motive, intent or purpose may *** be material in determining whether allegations are made upon reasonable cause.” In re Estate of Knutson (1980), 83 Ill. App. 3d 907, 912, 404 N.E.2d 1003, 1006.

The accused father had the burden of proving to the trial court that the allegations of sexual abuse had been found untrue. He has denied the truth of the allegation. He has created doubt concerning his daughter’s truthfulness. But he has pointed to no evidence or argument that established the allegation as untrue. At the first hearing on the removal of the child from his home, he chose not to question her account of threats made to force her into intercourse with him. After obtaining counsel, he consented to amending the petition for wardship by striking the allegation, thus preventing a test of the issue.

Even if his failure to prove the accusation untrue were not a mortal blow to his cause, the record does not support the father’s contention that DCFS acted “without reasonable cause.” At the time it first alleged the father’s sexual abuse, DCFS had in its custody a child who had declared in the presence of witnesses, including a police officer, that she had been regularly abused and recently threatened if she did not continue in the sexual relationship with her father. It is not clear from the record whether the caseworker immediately involved in the case had any knowledge of the girl’s retraction in 1978 of a similar accusation. The child’s mother, whose deposition later detailed the girl’s history of lying, was living in Michigan. DCFS had a potential witness who had contacted the authorities on the girl’s behalf because he believed her, although he later questioned the truth of her allegations. The trial court at the hearing for temporary custody found that there was reasonable cause to place the child in the care of the State. Under these circumstances, the DCFS does not appear to have acted unreasonably in going forward with the petition. At the hearing on June 17, 1981, the petition offered to the court no longer alleged sexual abuse. Both parents had consented to its recital that their daughter was neglected and dependent and should be made a ward of the court.

The order assessing the father’s attorney fees against DCFS based the award on the single finding that proper investigation would have discovered the child’s history of invention. We are aware that the record is replete with accounts of the girl’s past untruthfulness and wish to emphasize that we express no opinion as to the truth of her accusations in this instance. However, the father’s right to statutory relief depends on proof that the charge was found untrue. There is no finding in the order or in the minute record of this matter that the allegation had been found untrue. In the absence of such a finding, we find that the trial court abused its discretion in awarding attorney fees to the father under section 41. Because of our conviction that the statutory requirements were not satisfied, we do not reach the questions of the reasonableness of the attorney fees or the purposes for which they were incurred.

For the reasons cited above the judgment of the circuit court of Effingham County is reversed.

Reversed.

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


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN WHITMAN RAY, Defendant-Appellant.
    First District (1st Division)
    No. 81—1706
    Opinion filed October 24, 1983.
    David C. Thomas, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello and Louis F. Stalzer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, John Whitman Ray, appeals from his conviction for violating section 24 of the Medical Practice Act (Ill. Rev. Stat. 1979, ch. 111, par. 4459), which prohibits the practice of medicine without a license. After a jury trial, defendant was found guilty, placed on one year misdemeanor probation and fined $880. The sole issue on appeal is the constitutionality of section 24.

Defendant’s conviction resulted from an undercover investigation by reporter Ann Little. Little posed as a patient and went to consult defendant at a motel in Countryside, Illinois, on December 7, 1979. Little testified that when she arrived at the motel she observed signs with defendant’s name on them posted in the entranceways and corridors indicating the direction to defendant’s room. Little testified that upon entering the room she noticed that there was a single bed and two large portable metal tables with wheels. There were about 10 people in the room. A woman was lying on one of the tables, and defendant was looking into her eyes with a lighted magnifying glass. Another woman was sitting down and a man was pressing her foot with his finger. Defendant told the man, “your brown-eyed wife will have blué eyes when her body is cleansed.” The woman told Little that the pressure on her foot was for her pancreas. When Little asked the woman what was wrong with her, the woman replied, ‘ T didn’t know there was anything wrong until now.”

Little was given two forms to complete. One form requested biographical information and the other stated that defendant did not diagnose or prescribe. Little also listened to a 10-minute tape recording about naturopathy or the natural healing of the body. When it was Little’s turn, defendant asked her what problems she was having. Little stated that she had headaches and an upset stomach. Defendant felt her head and stated that the bones of her skull did not fit together properly. Defendant told her that she needed cranial manipulation which could occur only after her body was cleansed. Defendant then looked into Little’s mouth and stated that the roof of her mouth was too low, which was a common cause of headaches. Defendant told her she would have therapy of the fingers, but not for nine months. Defendant looked into Little’s eyes using the lighted magnifying glass. He started to list glands and organs of the body and named an herb for each. A woman assisting him took notes on a clip board.

Defendant next pinched Little’s arms and she indicated where it hurt. Defendant told her she had poor circulation and degenerated nerves. Defendant then felt the back of her neck and told her she had several vertebrae out of alignment. Defendant told her she needed a back adjustment and began to twist her shoulder but she asked him to stop. After additional examination by defendant, Little was given a sheet of paper with the various herbs checked. Little paid $20 to the woman assisting defendant.

On April 1, 1980, Little brought John Green, an investigator from the Department of Registration and Education, to see defendant at the same motel in Countryside, Illinois. They posed as husband and wife. When they entered the room, they observed 10 or 15 people were sitting or lying on the tables with another person at their head or foot applying pressure to their body with their fingers. They heard defendant tell one woman that she had diarticularitus and a degenerative nerve disease while looking into her eyes. The woman then asked if someone would apply pressure to her neck with their fingers. Defendant told another woman that she had carcinogenic growths. After looking into the woman’s eyes, defendant told the people in the room that the woman was diabetic and should decrease her insulin by five units a day until she was completely off insulin. The State presented evidence that defendant was not licensed to practice medicine in Illinois.

Section 24 of the Medical Practice Act provides:

“If any person holds himself out to the public as being engaged in the diagnosis or treatment of ailments of human beings; or suggests, recommends or prescribes any form of treatment for the palliation, relief or cure of any physical or mental ailment of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever; or diagnosticates or attempts to diagnosticate, operate upon, profess to heal, prescribe for, or otherwise treat any ailment, or supposed ailment, of another; or maintains an office for examination or treatment of persons afflicted, or alleged or supposed to be afflicted, by any ailment; or attaches the title Doctor, Physician, Surgeon, M.D., or any other word or abbreviation to his name, indicating that he is engaged in the treatment of human ailments as a business; and does not possess a valid license issued by the authority of this State to practice the treatment of human ailments in any manner, he shall be sentenced as provided in Section 35.1.” Ill. Rev. Stat. 1979, ch. 111, par. 4459.

On appeal, defendant contends that section 24 is unconstitutional because of vagueness and overbreadth. Section 24 has been held to list five separate offenses. (People v. Shokunbi (1967), 89 Ill. App. 2d 53, 232 N.E.2d 226.) Defendant challenges two provisions: the second, which prohibits the prescription of any form of treatment with the intention of receiving compensation without a license and, the third, which prohibits attempts to diagnosticate or operate upon another without a license.

First, defendant contends that these prohibitory clauses attempt to regulate conduct in such vague, ambiguous and uncertain terms that due process is offended. Defendant argues that although the words of the statute, when taken alone, are not imprecise, when read as a whole they comprise such a broad ban on activity that the common person is unable to discern what the statute actually makes illegal. Because of this ambiguity, defendant argues that people of common intelligence are not given any discernable standard to which they can conform their conduct to avoid criminal prosecution.

Defendant has given a number of examples which he contends demonstrate that the statute is unconstitutionally vague. Defendant contends that advertisements promoting medicine are illegal under the statute. Defendant claims that the statute prohibits a parent from applying first aid to his child and prohibits an athletic trainer from taping up a player’s injured knee or suggesting that the player take aspirin for pain. Defendant also contends that the statute prohibits someone who is not a licensed doctor from giving a paid lecture on the treatment of a medical ailment.

Defendant contends that this case is analogous to a series of cases in the United States Supreme Court which have held that statutes requiring State employees to take an oath of allegiance were unconstitutionally vague because the activities forsworn by the oaths were described in terms so vague and subject to so many innocent applications that people of common intelligence must guess at their meaning. Cramp v. Board of Public Instruction (1961), 368 U.S. 278, 7 L. Ed. 2d 285, 82 S. Ct. 275; Baggett v. Bullitt (1964), 377 U.S. 360, 12 L. Ed. 2d 377, 84 S. Ct. 1316.

Defendant has posed a number of hypotheticals allegedly showing the unconstitutionality of section 24. None of these hypotheticals, however, resemble the facts in defendant’s case. It is established that a constitutional challenge to a statute’s provisions will be considered only where a party is directly affected by the unconstitutional feature unless the unconstitutional feature is so pervasive as to render the entire act invalid. People v. Vandiver (1971), 51 Ill. 2d 525, 283 N.E.2d 681.

In Vandiver the supreme court refused to consider the contention that potential applications of a criminal statute to innocent conduct rendered the statute unconstitutionally vague. The court stated, “[w]e need not be concerned with the hypothetical situations posed by the defendant or the many other situations which may present questions as to the applicability of the statute. These borderline facts are not involved in this case.” (51 Ill. 2d 525, 529, 283 N.E.2d 681, 683.) The court recognized that due process requires that a criminal statute give adequate notice of what activity will subject one to criminal sanctions. The court held, however, that “the fact that there may be borderline cases wherein a degree of uncertainty exists as to the applicability of a statute does not render the statute unconstitutional as to conduct about which no uncertainty exists.” 51 Ill. 2d 525, 530, 283 N.E.2d 681, 684.

Defendant’s conduct falls within the evil the statute seeks to avoid. The evidence at trial showed that defendant, who was not licensed as a medical doctor, was diagnosing and treating people for diabetes, cancer, spinal defects and nerve diseases. Such activity could cause great bodily harm to the people involved. Defendant’s conduct is clearly within the prescription of the statute and as applied to him the statute is not vague. As the Vandiver court stated, “[w]e will not *** conjecture as to the statute’s application to situations less clear.” 51 Ill. 2d 525, 530, 283 N.E.2d 681, 684.

The State’s inherent police power gives it the right to enact reasonable legislation to secure the public’s health and safety by licensing physicians. (Rios v. Jones (1976), 63 Ill. 2d 488, 348 N.E.2d 825.) The Medical Practice Act has been in effect since 1923. Since that time the supreme court has repeatedly affirmed the validity of section 24 and found that it does not violate due process. (People v. Handzik (1951), 410 Ill. 295, 305, 102 N.E.2d 340, 345, cert, denied (1952), 343 U.S. 927, 96 L. Ed. 1337, 72 S. Ct. 760.) “[T]his test of time, though not conclusive, diminishes the force of the contention that the statute is unconstitutionally vague.” People v. Vandiver (1971), 51 Ill. 2d 525, 530, 283 N.E.2d 681, 684.

Moreover, defendant’s contention that section 24 prohibits one from applying simple home remedies to minor ailments is not persuasive. In People v. Zimmerman (1945), 391 Ill. 621, 623, 63 N.E.2d 850, 851, the court considered a similar challenge to the constitutionality of this provision and concluded that when the provisions against the unlicensed practice of medicine are considered in light of the other sections of the act and the purposes sought to be accomplished by the enactment of the statute, defendant’s contention is without merit. The court stated that the elements of the offense include:

“a holding out to the public as being engaged in the diagnosis or treatment of ailments of human beings, the suggesting, recommending or prescribing treatment for relief of ailments, all with the intention of receiving either directly or indirectly a fee or reward therefor. It is clear the act is not subject to the criticism directed against it.” 391 Ill. 621, 623, 63 N.E.2d 850, 851.

Defendant further argues that this alleged ambiguity in the statute has a chilling effect on free speech. When faced with the potential of criminal prosecution anyone advocating new or alternative methods of treating human illness will be dissuaded from discussing their methods publicly.

A statute is overly broad if it may reasonably be interpreted to prohibit conduct which is constitutionally protected. (People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 209, 414 N.E.2d 731, 739.) Defendant concedes that section 24 does not explicitly regulate speech. Rather, he claims that the statute may be interpreted to prohibit speech. We find, however, that the statute when read as a whole is not reasonably subject to the interpretation that defendant suggests.

Section 24, by its terms, applies to those who “practice the treatment of human ailments.” (Ill. Rev. Stat. 1981, ch. 111, par. 4459; Zimmerman.) The practice of medicine has been defined as follows:

“To practice is to exercise a calling or profession. It is the application of science or knowledge to the wants of men in the recurring incidents of life ***. [Citation.] The practice of medicine includes the application of the knowledge of medicine, of disease and of the laws of health.” (People v. Blue Mountain Joe (1889), 129 Ill. 370, 377, 21 N.E. 923, 925.)

The section, by its terms and as interpreted, applies to the practice of medicine in the treatment of ailments. When interpreted as a whole, section 24 does not regulate free speech. The hypothetical application of the statute suggested by defendant does not involve the practice of medicine in the treatment of ailments of a person. The State has a compelling interest in the regulation of the practice of medicine within its boundaries in order to protect the health, safety and welfare of its citizens. (Goldfarb v. Virginia State Bar (1975), 421 U.S. 773, 792, 44 L. Ed. 2d 572, 588, 95 S. Ct. 2004, 2016.) Furthermore, even if the statute did infringe on rights of expression, section 24 is reasonably drawn to meet the State’s compelling interest in regulation of the practice of medicine. It has been held that a facial challenge for over-breadth will fail when the enactment at issue does not reach a substantial amount of constitutionally protected conduct. (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 71 L. Ed. 2d 362, 102 S. Ct. 1186.) In light of these considerations we determine that section 24 is not overly broad.

For the foregoing reasons, we find that section 24 is constitutionally valid and affirm defendant’s conviction thereunder.

Affirmed.

McGLOON and GOLDBERG, JJ., concur.


author: PRESIDING JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CYNTHIA L. ALLEN, Defendant-Appellant.
    Fourth District
    No. 4—83—0136
    Opinion filed November 9, 1983.
    Rehearing denied December 9, 1983.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant, together with Denise Suggs, Anthony Long, and Daniel Davis, was charged by information in the circuit court of Vermilion County with the offenses of burglary, felony retail theft, and felony theft in violations of sections 19 — 1(a), 16A — 3(a), and 16 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 19 — 1(a), 16A— 3(a), 16 — 1(a)). Long entered a plea of guilty to an amended charge; the information was dismissed as to Davis with leave to reinstate; Suggs’ case was severed; and defendant was found guilty by a jury of felony retail theft and felony theft, but not guilty of burglary. She was sentenced to 30 months of probation, two conditions of which were that she make restitution in the amount of $2,867 and serve six months’ imprisonment in the county jail. Sentence was entered on the felony theft charge, the trial court holding that the retail theft charge had merged into it. This appeal followed.

On appeal defendant raises three issues: (1) error in refusal by the trial court to give the tendered instruction on accomplice testimony; (2) error by the trial court in permitting Long to testify over objection as to statements made by Suggs, a codefendant; and (3) error in the computation of restitution.

Some recapitulation of the facts is necessary to the understanding of the issues. Defendant and the other three persons involved were residents of Terre Haute, Indiana. On December 22, 1981, they drove from that city to Danville, Illinois. Long testified that they used a car belonging to another person and that he was the driver, Davis rode in the passenger seat in the front, and defendant and Suggs rode in the rear seat. On arriving at Danville they went to the area of the Meis Department Store and parked. Defendant and Suggs went into the store and the men remained in the car.

Michael Chumley, an employee of the Meis Department Store, testified that on December 22, 1981, he observed two large black women in the coat department, identifying them as Suggs and the defendant. He stated that the defendant went into a fitting room while Suggs engaged him in conversation about putting a number of dresses on layaway. About 15 minutes later defendant left the fitting room and handed a pantsuit to Nancy Gilbreath, another employee of Meis; she then went directly out the front door of the store. Chumley did not see her carrying anything. At about the time defendant left the fitting room, Suggs decided that she was no longer interested in dresses on layaway, broke off the conversation, and left the store.

Ms. Gilbreath then entered the fitting room and found an empty hanger with a fur coat tag on it. A second hanger with a broken chain was found among the fur coats. Chumley then explained the store’s procedures for tagging coats and other clothing. With coats a three-part tag is used, one part of which is removed at the time of sale; with dresses and other items, the entire tag is removed when the item is sold. He then identified various exhibits as being blouses and dresses and two fur coats, all of which he stated were the property of the Meis Department Store, except one of the coats which was a brand not carried by Meis. He was able to do this by reason of the presence of tags on the various items of merchandise.

When the defendant left the fitting room and the empty hangars were discovered, David Haley, the store security officer, was told to follow her and Suggs and obtain the license number of any car which they might enter. Haley testified that he followed Suggs and saw her meet the defendant next to a 1976 cream-colored Oldsmobile; there were two white males in the front seat of this automobile; and there was no one else in or near the car. After he had been told by Ms. Gilbreath about the missing coat, he notified the police and gave them á description of the car, its occupants, and the license number.

All of the foregoing events occurred at about 12:30 p.m. About 12:57 p.m. on the same day the car was stopped in a Danville merchant’s parking lot by Officer Dicken of the Danville police. He testified that Long was the driver, and Suggs, Davis and the defendant were passengers. He observed two fur coats and numerous other items of clothing lying on the back seat of the car and then placed all four persons under arrest. He identified various exhibits as items of clothing taken from the car.

Anthony Long testified for the State. The record is somewhat deficient in demonstrating his exact status. He stated that he had entered into a plea agreement regarding the charges which grew out of the incident at bar. However, he appeared unsure as to some of the particulars of that agreement; he did not know whether it was to a reduced charge; however, the docket sheet indicates that he pleaded to an amended information, the nature of which is not shown. Both the docket sheet and Long’s testimony are confirmatory of the fact that part of the agreement was that he testify against the defendant in the instant case. Also, the record does not reveal that any preliminary hearing was held in Long’s case.

Long stated that the defendant had asked him to take her shopping at. the Village Mall in Danville and that he and the others then proceeded from Terre Haute to Danville as has been recounted. He was asked on cross-examination about conversation during that trip as follows:

“Q. [by defense counsel] And at that time in the car on the ride from Terre Haute to Danville, did anyone mention taking any merchandise from Meis; is that correct?
A. No, they didn’t.
Q. Did you talk about shopping at Meis; is that correct?
A. We had conversation going on, but it was just stuff, you know, about the weather, and you know, the radio stations, what not.”

He then stated that they arrived at the mall and the two women went into Meis’ while he and Davis remained in the car. After a short time, the defendant and Suggs came out of the store with two shopping bags which they placed in the car and then re-entered the store. At this juncture Long stated that he and Davis left the car to purchase cigarettes at a nearby drugstore. When they returned to the car, the defendant was seated in it with the two shopping bags. Shortly afterwards Suggs came out of the store and at that time someone was writing something down. Long\stated that he believed the person was writing the license number of the car.

Long’s testimony continued: after Suggs and the defendant were in the car he turned to the back to ask directions out of Danville and saw Suggs pulling “some stuff,” “some clothes,” out from under her coat; he also saw a brown fur coat. He started toward Terre Haute but the icy conditions of the road caused him to turn back into Dan-ville, where the car was stopped by the police about one-half hour later. He was asked about conversations between the defendant and Suggs during this time interval. Objection was interposed by defense counsel but overruled by the trial court. Long answered:

“Neese [Suggs] had been taking to Cynthia [defendant] about selling the merchandise, and Cynthia was kin da just going along with her. She hadn’t said much about it. And that’s about all the conversation was about, was how they were going to sell it when they returned back to Indiana.”

On cross-examination this statement was further elaborated as follows:

“Q. [by defense counsel] When you say she was going along with Denise [Suggs], what do you mean?
A. Well, like Neese would say, do you think we could get this out of this, or what not; and Cynthia would say yes or maybe not.”

Long also stated that when he saw Suggs take the clothing out from under her coat, he suspected she had not paid for it; and that he did not want to help her elude the police, but also he did not want to get into any trouble.

That was the State’s case. For the defense a witness testified in impeachment of Long by stating that he was present at a prior conversation between Long and the defendant wherein Long stated that the defendant did not converse with Suggs about selling the clothing.

The defendant took the stand in her own behalf and testified to a general denial of taking anything from the Meis store or helping anyone else to do so. She maintained that when she returned to the car, she saw a lot of sacks containing clothing but did not know how they got there. She also claimed that Suggs met a friend named Kathy at the Meis store and that Kathy was about defendant’s build and was wearing similar clothing, especially a similar coat.

At the instruction conference defense counsel tendered Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.17 (2d ed. 1981) concerning the testimony of an accomplice. The trial court refused the instruction. During argument on it, the prosecutor stated that Long, the alleged accomplice, had pleaded guilty to the offense of theft, but had originally been charged as a codefendant with Allen. The specific charge to which he pleaded was not indicated.

At the sentencing hearing a letter was received from Meis’ manager, Chumley, in which he stated that the value of the merchandise taken was $2,867, but if it were returned, a 50% mark-down would be allowed in order to sell wares which had been out of stock for more than 11 months. The trial court set restitution in the full amount of $2,867.

Defendant’s principal contention on appeal concerns the refusal of the trial court to give IPI Criminal No. 3.17. She maintains that Long was an accomplice and therefore it was reversible error for the trial court to refuse to instruct the jury as to how to deal with his testimony. She further asserts that the error is of greater magnitude in this case where she testified and thus her credibility versus Long’s credibility is crucial.

IPI Criminal No. 3.17 provides:

“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.”

The trial court offered no specific reason for its refusal other than to comment that there was no testimony in the' case fitting the precise words of the instruction; i.e., the witness saying that he was involved in the commission of the crime.

A series of supreme court cases have dealt with the question of determining who is an accomplice for the purpose of the instruction. The earlier case of People v. Hrdlicka (1931), 344 Ill. 211, 221-22, 176 N.E. 308, 313, stated the doctrine as follows:

“An accomplice is defined as one who knowingly, voluntarily and with common intent with the principal offender unites in the commission of a crime. (1 Wharton on Crim. Evidence,10th ed.-sec. 440; Jones on Evidence,-2d ed.-sec. 768; People v. Sapp, 282 Ill. 51; Hoyt v. People, 140 id. 588.) The generally accepted test as to whether a witness is an accomplice is whether he himself could have been indicted for the offense, either as principal or accessory. If he could not then he is not an accomplice. The term ‘accomplice’ cannot be used in a loose or popular sense so as to embrace one who has guilty knowledge or is morally delinquent or who was even an admitted participant in a related but distinct offense. To constitute one an accomplice he must take some part, perform some act or owe some duty to the person in danger that makes it incumbent on him to prevent the commission of the crime.”

The Hrdlicka court then went on to examine the evidence in the case and concluded that the witness was not an accomplice within the stated definition.

The next principal authority came in People v. Robinson (1974), 59 Ill. 2d 184, 319 N.E.2d 772. In that case the court quoted the language above from Hrdlicka, and, after examining the evidence, concluded that the witness was not an accomplice.

The supreme court’s most recent statement came in People v. Cobb (1983), 97 Ill. 2d 465. The court cited both Hrdlicka and Robinson, holding that the test is whether there is probable cause to believe that the witness is guilty, either as principal or on a theory of accountability. The court then went on to say:

“Although Santini professes not to have known about the planned armed robbery of Mel’s restaurant, there is, nonetheless, sufficient evidence in the record to justify her indictment either as a principal or on the theory of accountability.” (97 Ill. 2d 465, 476.)

The evidence which appeared to persuade the court was that in addition to driving the get-away car, the witness failed to report the crimes to the police for three weeks. The court also commented on an admission by the witness in a prior out-of-court statement that she was a participant in the crimes, although the statement was not admissible for lack of foundation.

In our opinion one significant lesson to be learned from these authorities is that the reviewing court in each instance surveyed the evidence in the record and made its own determination as to whether probable cause existed to charge the witness. The supreme court did not appear to be bound by the determination of the police or the State’s Attorney. The “test” was applied by the court itself.

Standing in contradistinction to these cases are two appellate court decisions, People v. Barker (1979), 78 Ill. App. 3d 686, 397 N.E.2d 552, which was followed in People v. Hall (1980), 81 Ill. App. 3d 322, 401 N.E.2d 635.

In Barker the court acknowledged the test of indictment set forth in Hrdlicka and Robinson, but then went on:

“There was no basis in the evidence at trial for determining Mrs. Barker to be an accomplice. However, the record showed that she had been originally named as a codefendant and at a preliminary hearing a probable cause to charge her had been found to exist. She admitted that the charges had been dropped upon her agreement to testify for the prosection. Although no case has been called to our attention where the determination that a witness was an accomplice has been made in this way, the record places Mrs. Barker squarely within the accepted definition of the term.” (78 Ill. App. 3d 686, 688-89, 397 N.E.2d 552.)

It is thus apparent that the Barker court fashioned a sort of per se rule; i.e., a co-indictee is automatically an accomplice without more. Such a rule is quite at odds with the rule set forth in the supreme court opinions. Since the Barker court cited no authority for its position nor offered any logical explication for it, we believe that it is not in the mainstream of authority, particularly in view of the supreme court’s reiteration in Cobb of the proper manner of applying the test. We therefore decline to follow Barker on this subject now or in the future.

In applying the test to Long in the instant case, we find that the trial court was correct in refusing the instruction. While it is true that he was originally charged along with the defendant and others, yet for reasons not apparent no preliminary hearing was held following the filing of the information in which to determine probable cause. The record does show that he entered a plea of guilty, but it was not to the original information; rather it was to an amended information of whose allegations we remain ignorant.

In examining the evidence in our case, we find no firm indication that Long knew anything of the planned activities of the defendant and Suggs beforehand. The conversation in the car during the ride to Danville, as recited above, is equivocal at best. It was not until after the thefts when the women placed the loot in the car did he become suspicious. To be accountable, he must have (1) the mental state required for the offense, and (2) before or during the offense aid in its commission. (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2.) It is insufficient that his aid comes afterwards.

In Hrdlicka the defendant was an election judge charged with fraudulently changing ballots. The alleged accomplice witness was also an election judge and did not know of the planned fraud until he saw it occur. He then made a false return which concealed the fraud. The court concluded that even if the witness were an accessory after the fact, he could not be indicted as a principal and thus the accomplice instruction need not be given. In People v. Coddington (1970), 123 Ill. App. 2d 351, 259 N.E.2d 382, the defendant was tried for murder. The court found that a witness who knew nothing of the murder until after the fact, but helped the defendant hide the body, was not an accessory. In People v. Turner (1980), 92 Ill. App. 3d 265, 415 N.E.2d 1114, the record showed that the witness’ only connection to the case was his coincidental presence near the scene of the crime and his assisting the defendant to get medical treatment. The court concluded that the accomplice instruction was not required.

Under our view of the evidence in the instant case, Long was an accessory after the fact and thus the accomplice instruction was not required.

Defendant’s second issue concerns the testimony of Long, set forth above, as to the conversations between defendant and Suggs after the offense. She maintains that the statements of a codefendant implicating the other are not admissible and constitute reversible error under the rule of Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. She further cites People v. Brown (1972), 7 Ill. App. 3d 748, 289 N.E.2d 452, and People v. Hopkins (1970), 124 Ill. App. 2d 415, 259 N.E.2d 577. The statements were not a confession; therefore, they are not within the ambit of the Bruton rule.

In both Brown and Hopkins the statements were made by the co-defendant outside the presence of the defendant. That was not the case here. The full statement of the law is found in Brown as follows:

“ ‘***[T]he law is well settled that confessions or admissions of a co-defendant, or those of a witness against an accused, are not admissible in evidence against such accused unless made in Ms presence and assented to by him.’ [Citation.]” (Emphasis added.) 7 Ill. App. 3d 748, 752, 289 N.E.2d 452, 455.

Such an assent may be manifested by silence (People v. Norman (1963), 28 Ill. 2d 77, 190 N.E.2d 819) or by an evasive, equivocal or unresponsive reply. (People v. Wallace (1982), 106 Ill. App. 3d 567, 435 N.E.2d 960.) We find such an assent in the instant case. The conversations were admissible.

Defendant lastly contends that the amount of restitution ordered as a condition of probation is erroneous and the State in its brief confesses error in this regard. The trial court ordered the defendant to make restitution in the amount of $2,867, the full retail value of the merchandise. The docket sheet reflects that the identical amount of restitution was imposed on Suggs as a part of her sentence of imprisonment. It will also be remembered that Meis’ manager wrote to the trial court that $1,434 might be realized from the late sale of the merchandise.

Under the statute (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—6(b)) restitution is limited to the actual loss to the victim. This can only be determined after an actual sale has taken place. In any event, it cannot be twice $2,867.

Therefore the order of restitution is vacated and the cause is remanded to the circuit court of Vermilion County with directions to determine the actual loss to Meis Department Store and to apportion that loss between the defendant here and Suggs based upon what the court believes to be the relative culpability of those two.

The conviction of the defendant is affirmed; that portion of her sentence relating to restitution is vacated but the sentence otherwise affirmed; and the cause is remanded for further proceedings relating to restitution.

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

MILLS and MILLER, JJ., concur.


author: JUSTICE SULLIVAN

text:
    NATIONAL TEA COMPANY et al., Plaintiffs-Appellees, v. COMMERCE AND INDUSTRY INSURANCE COMPANY, Defendant-Appellant.
    First District (5th Division)
    No. 82 — 2978
    Opinion filed October 28, 1983.
    Rehearing denied November 30, 1983.

      Epton, Mullin, Segan & Druth, Ltd., of Chicago (Roger A. Bixby, Mary F. Stafford, and William G. Potratz, of counsel), for appellant.
    Mayer, Brown & Platt, of Chicago (Alan N. Salpeter and Michael J. O’Rourke, of counsel), for appellee National Tea Company.
    Rabens, Formusa & Glassman, Ltd., of Chicago (George C. Rabens, of counsel), for appellee Central National Bank in Chicago.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from a judgment for plaintiffs in an action seeking a declaration of the rights and liabilities of the parties under a fire insurance policy providing coverage for property damage and loss of rents. Defendant contends that (1) the trial court erroneously interpreted the general change endorsement of the policy; (2) the trial court erred in (a) excluding evidence of depreciation and of payments tendered by defendant, (b) striking an affirmative defense based on plaintiffs’ failure to preserve and protect the property, and (c) instructing the jury with regard to the elements to be considered in determining the amount of rental loss; and (3) the trial court abused its discretion in awarding attorney fees and a penalty pursuant to section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 767).

On May 20, 1978, a commercial building owned by Central National Bank,, as trustee (owners) and leased to National Tea Company (National), was substantially damaged by fire. The property was the subject of a policy of fire insurance issued by defendant to National and naming the owners as additional insureds. It is undisputed that the loss in question is covered by the policy; however, the parties disagree as to the extent of defendant’s liability thereunder. Two policy provisions are pertinent to this question. The first, a general change endorsement providing coverage for property damage, states in relevant part:

“(a) This Company’s liability for loss hereunder shall not exceed the smallest of the following amounts: (1) The amount of this policy applicable to the damaged or destroyed property (2) the cost to repair; (3) the replacement cost, defined as the cost to rebuild or replace, all as of the date of loss, on the same site or within five miles thereof, with new materials of like size, kind and quality (4) the actual expenditure incurred in rebuilding, repairing or replacing on the same or another site. [Hereinafter referred to as section (a).] * * *
(c) If the property damaged or destroyed *** is not repaired, rebuilt or replaced on the same or another site within a reasonable time after the loss or damage, this Company shall not be liable for more than the actual cash value (ascertained with proper deduction for depreciation) of such property. [Hereinafter referred to as section (c).]”

The second provision, relating to rental loss,' states:

“It is hereby provided that if said premises or any part thereof, whether rented at the time or not, shall be rendered untenantable by fire or lightning occurring during the continuance of this policy, this Company shall thereupon become liable for the rental value of such untenantable portions. Loss to be computed from the date of fire or damage by lightning, until such time as the building could, with reasonable diligence and dispatch, be rendered again tenantable, although the period may extend beyond the termination of this policy.”

Testimony established that the property was inspected by an adjuster on behalf of defendant shortly after the fire occurred. On June 7, 1978, he indicated in a memo that the “preliminary replacement cost” of the structure was $600,000 to $650,000, and that the building was .an 80-to-85% loss, resulting in a possible liability of approximately $500,000. The memo also contained a “preliminary estimate” of $100,000 in rental loss. Subsequently, M. L. Ensminger & Co. (Ens-minger) prepared an estimate at defendant’s request, submitted August 4, 1978, which stated that the “reconstruction value” of the building was $523,291.86, and the cost of repair was $321,571.43. The document purported to be a firm offer to perform the repairs at the latter price; however, the offer was not transmitted to plaintiffs.

The owners received several estimates on the cost of repairing the building, ranging from a low of $421,275 to a high of $732,200. After several extensions of the time for filing, a proof of loss was submitted on April 3, 1979, based on the highest bid received. This proof of loss was rejected as excessive on May 1, 1979, in a letter expressly reserving the right to assert any other rights or defenses “which may exist or later become known to exist.” A partial proof of loss of rents in the amount of $45,000 was submitted by National on February 23, 1979, but similarly rejected by defendant as excessive, as was a subsequent proof of loss in the amount of $109,722.96, submitted March 13, 1980. The instant action was filed on May 17, 1979, and in its answer defendant admitted liability but denied the amount of damages alleged. Subsequently, a “sound value offer” of $239,261.33 was made, based on the estimated cost of repair received from Ensminger, $321,571.43, less defendant’s calculation of depreciation. This sum was deposited with the court on April 7, 1980, without prejudice to the rights and claims of any party.

After hearing testimony with regard to the amount of loss, a jury found that the owners’ damages for building loss were $500,000, and National’s damages for rental loss were $100,000. In response to a special interrogatory, the jury found that 83% of the building was destroyed by the fire. On August 17, 1982, the trial court reduced the building loss verdict to $260,739.57 and the rental loss verdict to $63,133.88 to reflect adjustments previously agreed to by the parties. The trial court also assessed attorney fees in the amount of $99,139.55 and a $5,000 penalty against defendant based on a finding that its delay in settling the claims was vexatious and unreasonable. Defendant’s post-trial motion was denied on December 6, 1982, and this appeal followed.

Opinion

Defendant first contends that the trial court erroneously interpreted the policy provision covering liability for property damage. As a result, it asserts, the jury was not properly instructed with regard to the measure of damages.

Throughout trial, defendant argued that the only applicable provision of the policy was section (c), since it was undisputed that the building had not been repaired or replaced. The owners, however, maintained that only section (a) was applicable, contending that it was sufficient that they intended to rebuild or repair but were prevented from doing so by defendant’s rejection of their proof of loss and consequent refusal to pay any amount in excess of actual cash value.

While it appears that the trial court tended to agree with the owners’ interpretation, the real problem here is not that the trial court misconstrued the policy, but that it failed to construe it. During the instruction conference, it refused the owners’ instruction on damages, based on section (a), because it did not incorporate section (c). Similarly, it refused defendant’s damage instruction, based on section (c), because it failed to incorporate section (a). Conforming instructions were not tendered and, as a result, although the trial court apparently intended to leave the construction of the contract to the jury by simply placing before it the relevant language without explanation, it in fact gave no instruction at all on the proper measure of damages. The court’s rulings prevent us from determining the basis for the jury’s verdict, as we are unable to ascertain whether the $500,000 verdict represents either the cost of repair or the cost of replacement under section (a) or actual cash value under section (c). Moreover, there is nothing in the policy provisions before us which requires interpretation by a jury. As we noted in Sherbrooke Homes, Ltd. v. Krawczyk (1980), 82 Ill. App. 3d 990, 992, 403 N.E.2d 622, 623-24:

“As a general rule, the interpretation, construction or legal effect of a contract is a matter to be determined by the courts as a question of law. [Citations.] This rule has been applied (1) when the contract is in writing [citation]; (2) when there is no ambiguity or uncertainty in the terms of the contract [citations]; and (3) when there is no question involving proof of the parties’ construction which is dependent upon disputed extrinsic facts.”

Thus, only if the contract is ambiguous and the extrinsic facts necessary to determine the parties’ interpretation thereof are in controversy should the question of interpretation be left to a jury. (Sherbrooke Homes, Ltd. v. Krawczyk; Nerone v. Boehler (1976), 34 Ill. App. 3d 888, 340 N.E.2d 534.) In any event, a jury should not be asked to make even that determination without guidance from the court in the form of an instruction stating what conclusion must be reached if the jury finds certain facts to exist.

In the instant case, the trial court noted several times that the language was clear and that there was no conflict between the two sections of the policy relating to liability for property damage. Furthermore, its exclusion of testimony regarding the parties’ interpretation of section (c) reinforces our belief that the trial court did not perceive any ambiguity in the contract and therefore should have accepted one of the proffered instructions. Ordinarily, in the absence of a necessary ruling, we would simply remand the issue to the trial court for further consideration. Here, however, we are presented with a question of law, not a question of fact, and we are not precluded from making our own determination thereon. (See, e.g., Rymer v. Kendall College (1978), 64 Ill. App. 3d 355, 380 N.E.2d 1089.) It is appropriate to do so in the instant action because defendant did not contest the court’s failure to give any instruction on this issue; rather, it alleged error only in the failure to give its proffered instruction. Therefore, reversal is not required unless we determine that the trial court should have accepted that instruction, for there is no error in failure to give an incorrect instruction. Kinka v. Harley-Davidson Motor Co. (1976), 36 Ill. App. 3d 752, 344 N.E.2d 655.

We agree with the trial court that the language of the policy is clear and unambiguous. It provides that if the property is not repaired or replaced within a reasonable time, defendant’s liability thereunder is limited to actual case value with appropriate deductions for depreciation. It is undisputed that the building in question has not been repaired or replaced, and we see nothing in the language which indicates that it is sufficient that- the owners intended to repair or replace the structure; therefore, defendant’s instruction was proper and should have been given. Our interpretation is in accord with the ruling in Lerer Realty Corp. v. MFB Mutual Insurance Co. (5th Cir. 1973), 474 F.2d 410, wherein the court, confronted with a policy provision identical to the one in question here, noted that its language “discloses a clear and unambiguous undertaking to pay the insured the actual cash value of the damaged property at the time of loss, less depreciation, unless the insured actually repaired, rebuilt or replaced within a reasonable time. If restoration is made, then, and only then, the liability of [defendant] would be calculated under the endorsement.” (474 F.2d 410, 413.) Thus, repair or replacement is a condition precedent to recovery under this policy of any amount in excess of actual cash value.

The owners argue, however, that defendant’s proffered instruction, which simply states that “[t]he policy provides that building damage shall be determined on the basis of actual cash value if the building is not replaced or repaired within a reasonable time,” is improper because it fails to state that compliance with this condition may be excused if defendant’s conduct has rendered performance impossible. They assert that defendant’s actions were deliberately calculated to evade payment of the higher cost of repair or replacement by offering only the actual cash value in settlement when it knew the owners intended to repair or replace the building, thus precluding any possibility of repairing, rebuilding, or replacing.

Our courts have held in actions involving other types of contracts, particularly those for the sale of real estate (Yale Development Co. v. Oak Park Trust & Savings Bank (1975), 26 Ill. App. 3d 1015, 325 N.E.2d 418), and for payment of a salesman’s commissions (Barrows v. Maco, Inc. (1981), 94 Ill. App. 3d 959, 419 N.E.2d 634), that a party to a contract may not avail itself of a condition precedent where by its own conduct it has rendered compliance therewith impossible. We have never considered the applicability of this principle to a condition precedent in a fire insurance policy; however, in Zaitchick v. American Motorist Insurance Co. (S.D.N.Y. 1982), 554 E Supp. 209, the court, after considering impossibility of compliance with an express condition precedent, held that under the circumstances before it equitable principles mandated that compliance be excused, and the insureds therefore were entitled to recover the cost of repair or replacement although they had not in fact repaired or replaced. There, the insurer denied all liability, claiming that the insureds’ residence was destroyed by arson. The insureds brought suit, and the trial court found that there was insufficient evidence of arson or of any fault on the part of the insureds in regard to the destruction of their home and its contents. On the issue of damages, the insurer then argued that because the building had not been repaired or replaced, it was liable only for actual cash value under a policy providing that the insureds could not recover the cost of repair or replacement “unless and until repair or replacement [was] completed.” The trial court noted that because the insurer had denied all liability, the insureds had received nothing on their loss, and that because of their age and limited income, and the nature of the property (residential rather than commercial), outside financing for repair or replacement was not a realistic alternative. The court then found that the insurer, by denying all liability and not providing even actual cash value, had prevented compliance with the condition precedent and, under the circumstances, it was therefore precluded from relying on that condition to prevent recovery of the cost of repair or replacement.

We need not decide here whether we agree with the reasoning of the court in Zaitchick. The owners never tendered a proper instruction on this issue, insisting instead that the trial court rule as a matter of law on what is essentially a question of fact, and instruct the jury that they were entitled to recover the cost of repair or replacement. Furthermore, if such an instruction had been offered, it should have been rejected under the facts presented at this trial, even accepting the Zaitchick reasoning, and defendant’s instruction was therefore proper. Initially, we note that there is an important difference between the policy in the instant action and the one before the court in Zaitchick. That policy specifically provided that the insureds had the option of accepting actual cash value without prejudice to their right to seek recovery of the cost of repair or replacement within 180 days thereafter, in effect insuring that at least a portion of the funds necessary to repair or replace would be financed by the insurer rather than forcing the insureds to rely totally on their own resources or the unlikely prospect of other financing. It was the exercise of this option which the court found had been frustrated by the insurer’s conduct in denying all liability. The court did not find that the insurer should have provided the full cost of repair or replacement initially; rather, it believed that the insureds should have been allowed to exercise their option to receive actual cash value and partially finance replacement. Here, the policy contains no such provision, and we are not confronted with a contract between an insurer and an individual homeowner, but a multimillion dollar blanket policy entered into between defendant and National and covering numerous buildings. The parties could have included an option such as that in Zaitchick if they wished to insure that the owners would receive at least a portion of the necessary funding from defendant. In the absence of such a provision, we would hesitate to impose upon defendant a duty to partially fund repair or replacement under the facts of this case. (Cf. Felbinger & Co. v. Traiforos (1979), 76 Ill. App. 3d 725, 394 N.E.2d 1283 (doctrine of impossibility of performance does not apply where event causing the impossibility can be foreseen and guarded against in the contract).) Moreover, we note that the uncontroverted testimony at trial established that under the terms of the lease between the owners and National, it was National that had the responsibility to repair or replace the structure if it was damaged by fire. Unlike the situation in Zaitchick, there was simply no competent evidence that National had no other source for the necessary funds and therefore was unable to comply with the condition precedent of this policy.

Since we believe that retrial of the building loss issue is necessary, we need address only such further issues related thereto which might arise in a new trial. In this regard, defendant contends that the trial court erred in excluding evidence of depreciation. While we find no error in some of the rulings challenged by defendant, we do not wish to restrict unduly the trial court’s discretion in ruling on the admissibility of evidence upon retrial of this matter. Therefore, we will state merely that, given our determination that the policy provides only for the payment of actual cash value, evidence of depreciation is material, and testimony relevant thereto and otherwise admissible should be received.

Defendant further contends that the trial court erred in striking its affirmative defense that the owners failed to preserve and maintain the damaged building after the fire. We note initially that defendant was not prejudiced by the trial court’s ruling, since it was permitted to elicit extensive evidence on this issue, and the jury was instructed both that the owners had the burden of proving that the damages alleged were the result of the fire and that defendant was not liable for any damages caused by the owners’ neglect in preserving and protecting the property after the fire. Therefore, any error below would not require reversal on appeal (Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 392 N.E.2d 628), and defendant’s arguments thereon had no part in our decision to reverse and remand for a new trial. Moreover, it is our view that the trial court’s decision actually helped defendant, since the entire burden of persuasion was placed on the owners. Assertion of the affirmative defense in question could only have served to confuse the jury because it would have been necessary to instruct it that defendant had the burden of proving that some of the damage was caused by the owners’ neglect (see, e.g., Capitol Plumbing & Heating Supply, Inc. v. Van’s Plumbing & Heating (1978), 58 Ill. App. 3d 173, 373 N.E.2d 1089 (party asserting affirmative defense has burden of proof on that issue)), while simultaneously instructing it that the owners had the burden of proving that all of the damage was caused by the fire.

Nevertheless, the question now is not whether the trial court committed reversible error, nor is it our function to pass on the wisdom of a party’s choice of strategy; rather, we must determine whether the defense may be raised on retrial. In this regard, we must agree that defendant’s affirmative defense is not barred by waiver or estoppel, as the owners contend.

Waiver has been defined as “either an express or implied voluntary and intentional relinquishment of a known and existing right.” (Ames v. Crown Life Insurance Co. of Toronto, Canada (1980), 85 Ill. App. 3d 203, 204, 406 N.E.2d 222, 224.) Thus, “[t]o constitute a waiver, the words or conduct of an insurer must be inconsistent with the intention to rely on the requirements of the policy.” (85 Ill. App. 3d 203, 204-05, 406 N.E.2d 222, 224.) The owners maintain that because defendant did not specify failure to preserve and protect the premises after the fire as grounds for rejecting the proof of loss, it has waived that defense. In effect, they argue that waiver may be implied from defendant’s conduct; however, where waiver is implied from conduct, the act relied upon must be clear, unequivocal and decisive. (Kane v. American National Bank & Trust Co. (1974), 21 Ill. App. 3d 1046, 316 N.E.2d 177.) Here, it is impossible to imply waiver from the letter rejecting the proof of loss as excessive, since defendant expressly stated therein that the letter was not intended as a waiver and that it reserved the right to assert any other rights or defenses “which may exist or later become known to exist.” Furthermore, defendant’s rejection of the proof of loss as excessive is not inconsistent with the defense that some of the damage was caused by the owners’ neglect; a proof of loss would be deemed excessive if the owners were attempting to recover for damages not caused by the fire.

Unlike waiver, estoppel does not focus on the conduct or the intent of the insurer, but on the effect of its conduct on the insured. As we noted in National Discount Shoes, Inc. v. Royal Globe Insurance Co. (1981), 99 Ill. App. 3d 54, 59, 424 N.E.2d 1166,1170:

“Estoppel refers to an abatement, raised by law, of rights and privileges of the insurer where it would be inequitable to permit their assertion; such relinquishment need not be voluntary, intended or desired by the insurer, but it necessarily requires some prejudicial reliance of the insured upon some act, conduct or non-action of the insurer.”

Thus, the owners must show that they relied to their detriment upon defendant’s failure to assert this defense in its letter rejecting their proof of loss. (Tibbs v. Great Central Insurance Co. (1978), 57 Ill. App. 3d 866, 373 N.E.2d 492.) At trial, the owners did not assert any detriment other than surprise when the defense was raised only five days before trial. Similarly, in their brief before this court, they state merely that they were “lulled *** into a sense of security with regard to the issues to be anticipated in this action.” If the only detriment asserted is insufficient time to prepare to meet the defense, the owners could have requested a continuance; moreover, the question here is whether the defense may be asserted upon retrial. Since the owners are now fully aware of this defense and defendant’s position thereon, there will be no surprise.

The record before us simply does not reveal any other detrimental reliance by the owners. They had been aware since the occurrence that, under the contract, defendant would not be liable for any damages caused by their neglect, and that they were required to prove the damages claimed were the result of thé fire. Moreover, the owners do not claim here, nor did they before the trial court, that no steps were taken by them to preserve the property in reliance on defendant’s failure to assert that defense; in fact, they have always maintained that no such neglect occurred. Any suggestion that the owners’ conduct in preserving the property was in any way related to the rejection letter is further negated by the fact that the structure had already become the subject of a court-ordered demolition months before the proof of loss was filed, and demolition actually occurred within the month after receipt of that letter. Any conduct of the owners with regard to preservation of the premises must necessarily have occurred long before defendant rejected the proof of loss. For these reasons, we believe that the owners have failed to show any detrimental reliance on their part, and defendant therefore is not estopped from asserting this defense upon retrial.

Turning to the jury’s verdict for National in the amount of $100,000 for loss of rents, we note defendant’s assertion that the jury was improperly instructed with regard to the elements to be considered in determining a reasonable length of time within which the building could have been rendered tenantable. It does not argue that the jury should not have been instructed on the factors it could consider in assessing damages; rather, it contends first, that the instruction given was not “impartial and free from argument” as required by Supreme Court Rule 239 (87 Ill. 2d R. 239) whenever a non-IPI instruction is given, and second, that inclusion of the time for fixturing work necessary prior to reopening the store as a factor which might be considered by the jury was erroneous as a matter of law.

With regard to defendant’s first contention, it has been held that instructions are argumentative where they constitute “adversarial statements highlighting favorable and unfavorable evidence with partisan overtones.” (Lay v. Knapp (1981), 93 Ill. App. 3d 855, 858-59, 417 N.E.2d 1099, 1101-02.) Defendant maintains that the instruction in question improperly highlighted and emphasized the testimony of an expert witness for National who testified that he considered each of the elements set forth in the instruction in arriving at an estimate of 23 to 24 months as the reasonable length of time necessary to render the building tenantable. While the witness in question did testify to each of the factors set forth, it appears also that an expert witness for defendant, when specifically questioned on cross-examination with regard to all but one of the elements set forth in the instruction, stated that he too had considered each of them in arriving at his estimate of seven months to render the building tenantable. Since experts for both sides agreed on all but one of the factors, we do not believe that the instruction in question was partisan in tone or highlighted one witness’ testimony. In any event, since defendant’s own witness considered all but one of the elements, it is our view that defendant was not prejudiced by the instruction.

With regard to the sole difference between the testimony of the experts concerning the “reasonable time required for any fixturing work needed to be done prior to reopening the store,” defendant contends that its inclusion in the instruction was improper. Its position is that a building is “rendered tenantable” as required by the policy when “the walls are up, the ceiling is up, [and] the heat is available”; that is, exclusive of any fixtures which a tenant might wish to install in order to operate its particular business. National, however, maintains that “tenantable” means restored to the condition in which it was operating at the time of the fire. Therefore, it asserts, since the building was leased to a subtenant under a continuing lease, the building will not be tenantable until such time as it is prepared for that subtenant; in this case, until it is equipped for operation as a supermarket, which would include necessary fixturing.

The trial court, apparently relying on language in the policy which refers to “the same tenantable condition as before the fire,” concluded that the question of when a building is “tenantable” must be determined on a case-by-case basis, looking to the facts as they existed at the time of the fire. Since the building was sublet to a tenant required to operate a particular business who was actually operating that business at the time of the fire, the trial court reasoned that the building would be tenantable when prepared for that subtenant to continue under the lease.

Defendant presents two arguments on this issue. In the first, it appears to accept the trial court’s reasoning, but argues that, looking at the situation at the time of the fire, it is clear that National did not own any of the fixtures and therefore would have no obligation to replace them. That being the case, it reasons, the building was tenant-able when the subtenant could return and begin installing its own. fixtures. Assuming arguendo the validity of this reasoning, which we note was not presented to the trial court, we believe that the facts relied upon by defendant are not supported by the record before us. It directs us to the sublease between National and Nationwide Food & Liquors, Inc., entered into after the insurance policy in question was written, which recites that “[i]n the event of *** default and termination of this Sublease *** the Sublessor shall have the right *** of repurchasing the store fixtures and equipment sold by Sublessor to Tenant this date as set out in the Bill of Sale *** for the sum of $500.00 ***.” (Emphasis added.) Defendant argues that the above clause proves that the fixtures and equipment were sold to the subtenant; however, the bill of sale referred to in the sublease does not appear in this record. Therefore, we are unable to determine whether, as defendant contends, all of the equipment and fixtures were sold, or whether ownership of some was retained. If the latter is the case, then under defendant’s own argument the time for restoring those fixtures which National still owned should be considered in computing the time in which the premises could be restored to the same tenant-able condition as before the fire. It is unclear why defendant did not raise this argument before the trial court, or why it does not argue here that once the trial court determined that “tenantable” must be construed on a case-by-case basis, it should have submitted the question to the jury with appropriate instructions. In any event, this is a factual question, and since defendant does not purport to question the propriety of the trial court acting as trier of fact on this issue, we have no choice but to hold that its decision was not against the manifest weight of the evidence.

Defendant also takes the somewhat inconsistent position that, as a matter of law, the term “tenantable” does not include the time for fixturing. This argument is precisely contrary to the position it presented at trial; it did not object when the testimony offered by National included the time for fixturing, and it argued during the instruction conference that inclusion of the time for fixturing could not be determined as a matter of law but must be submitted to the jury as a question of fact. Ordinarily, issues and theories not presented to or considered by the trial court cannot be raised for the first time on review. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417.) Furthermore, we do not agree, as defendant now asserts, that the term “tenantable” is clear and unambiguous. It is reasonably susceptible to more than one meaning, which necessitates reliance on extrinsic facts to determine the intention of the parties. (Sherbrooke Homes, Ltd. v. Krawczyk (1980), 82 Ill. App. 3d 990, 403 N.E.2d 622.) Despite the ambiguity which it apparently recognized at trial, defendant did not attempt to bring in any evidence concerning surrounding circumstances at the time of agreément or of any interpretation the parties themselves placed on the policy which both we and the trial court would need to determine the intention of the parties. (See Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, 405 N.E.2d 1051.) In addition, it does not cite, nor has our own research discovered, any case, regulation, treatise, or other secondary authority which would aid in defining the word. Therefore, we believe that the trial court, presented with defendant’s argument, would have found the term ambiguous and, in the absence of any evidence from which it could have ascertained the intention of the parties, and in the absence of any other authority which might aid in its interpretation, the only remaining alternative before the court would have been to apply what is admittedly a secondary rule of construction and construe the term most strongly against the drafter — in this case, defendant. (Farwell Construction Co. v. Ticktin; Ricke v. Ricke (1980), 83 Ill. App. 3d 1115, 405 N.E.2d 351.) For these reasons, we believe that the instruction in question was not improper, and the judgment for National in the amount of $100,000 for loss of rents should be affirmed.

The final question we must consider is whether the trial court abused its discretion in awarding attorney fees and a $5,000 penalty against defendant, pursuant to section 155 of the Illinois Insurance Code. (Ill. Rev. Stat. 1981, ch. 73, par. 767.) The allowance of fees and penalties under this provision is a matter resting within the judgment and discretion of the trial court in the first instance (Songer v. State Farm Fire & Casualty Co. (1980), 91 Ill. App. 3d 248, 414 N.E.2d 768), and its determination thereon is essentially a question of fact which will not be disturbed unless the record demonstrates that the court’s discretion has been abused (Fassola v. Montgomery Ward Insurance Co. (1982), 104 Ill. App. 3d 825, 433 N.E.2d 378). Of course, a refusal to settle is not vexatious per se, and this section is not to be applied merely because an insurer has been unsuccessful in supporting its position at trial (Deverman v. Country Mutual Insurance Co. (1977), 56 Ill. App. 3d 122, 371 N.E.2d 1147); that is, where there is a bona fide dispute between the insurer and the insured. However, where the trial court has based its determination “upon an assessment of the totality of the circumstances” (Fassola v. Montgomery Ward Insurance Co. (1982), 104 Ill. App. 3d 825, 832, 433 N.E.2d 378, 383) and it is supported by instances of conduct by the insurer appearing in the record, its finding should be affirmed (see Deverman v. Country Mutual Insurance Co. (1977), 56 Ill. App. 3d 122, 371 N.E.2d 1147).

Because of the different dispositions on review of the two claims presented in this action, it is necessary to consider the attorney fees based thereon separately. With regard to the property loss claim, the trial court awarded the owners’ attorney fees of $63,500 based on a finding the defendant’s conduct was vexatious and unreasonable. Defendant argues that this award was improper because its refusal to settle was based on a bona fide dispute between the parties over the proper measure of damages to be assessed in the instant case. However, we note that, initially, in the relevant period prior to filing this action, the dispute between the parties was over the base figure; i.e., the cost of repair, upon which defendant relied in making its offer. In discussing this issue at the hearing on plaintiffs’ motion for attorney fees, the trial court expressed doubts about the bona fides of defendant’s reliance on the Ensminger proposal, noting that this supposedly “firm offer” to do the work for the price quoted was never transmitted to the owners; that the proposal itself was made without consulting plans for the building and, as a result, the proposal did not take into account several items which should have been included; and that defendant generally had failed to undertake a reasonable investigation of the claim, despite the extreme difference between the Ensminger proposal and, not only the insured’s proof of loss, but also the estimates of one of defendant’s own adjusters. Although the court gave numerous reasons for its determination, each is based on the premise that the jury’s verdict reflected an accurate appraisal of the owners’ loss. However, as we noted in discussing that verdict, the jury was not properly instructed with regard to the appropriate measure of damages, and because the court’s finding is so intimately related to the jury’s verdict, it is our view that the question of attorney fees for prosecution of the property loss claim must await resolution of that claim upon retrial. Therefore, that portion of the court’s order awarding the owners’ attorney fees will be vacated with directions that the court reconsider the motion upon termination of the retrial.

However, we believe the trial court’s award of $35,638.55 to National, based on the rental loss claim, is supported by the record. Shortly after the loss, on May 31, 1978, the site was inspected on defendant’s behalf by Bruce Elliott, an insurance adjuster with Toplis & Harding, who estimated rental loss to be $75,000 and recommended that a reserve be established in that amount. Subsequently, the site was inspected by Elliott and Donald Mason, an adjuster for American International Underwriters, a group to which defendant belonged. In a June 7, 1978, memo, Mason estimated a rental loss of $100,000 and recommended establishment of reserves in that amount. While the two adjusters insisted at trial that these figures were merely rough estimates, and that it is common for an insurance company to “overre-serve,” these were the only figures that defendant had when it rejected National’s partial proof of loss in the amount of $45,000 as excessive. Thus, based on the information it had at that time, the partial proof of loss was not excessive, as defendant asserted in its letter of March 7, 1979. Moreover, several other reasons for rejection are set forth in that letter, yet defendant did not argue at trial, at the hearing on the motion for attorney fees, or in its appeal before this court that any of the other reasons advanced had any merit. Its sole argument that the proof of loss was rejected in good faith is an estimate by Elliott that the reasonable time required to render the building tenant-able was seven months and a supposed agreement to hold the rental claim in abeyance until the property claim could be settled (an agreement which a witness for defendant at first denied making in testimony at trial, then stated that he could not recall entering into such an agreement). However, the estimate was not communicated to defendant until the end of February 1980, almost one year after the initial proof of loss was rejected and several months after National had engaged an attorney and filed this action in order to protect its rights. The agreement, too, did not arise, if one existed, until after defendant rejected the proof of loss. Moreover, while further negotiations might have been held in abeyance, the time for filing suit was not. Therefore, because of the initial denial, made at a time when defendant appears not to have had any reason to believe that it was excessive, National was required to engage legal counsel and file this action. Based on this evidence, we believe that the trial court’s finding of vexatious and unreasonable conduct was not an abuse of discretion.

One problem remains which the parties have not addressed. In addition to attorney fees, the trial court assessed a penalty of $5,000 against defendant, and the judgment was granted jointly to the owners and National. Defendant has not contested the court’s action in awarding a penalty in addition to attorney fees; however, because we have determined that the award is to be reversed and remanded as to the owners but affirmed as to National, we believe that the trial court should have the opportunity of reconsidering assessment of the penalty; the statute allows the assessment of an amount “not to exceed *** $5,000” (Ill. Rev. Stat. 1981, ch. 73, par. 767), which we interpret to mean that the trial court may assess less than that amount. In the instant case, the trial court did not apportion the penalty, and we therefore have no way of determining what portion thereof it attributed to defendant’s conduct in relation to National.

For the reasons stated, the portions of the judgment awarding rental loss and attorney fees to National Tea are affirmed; the portions of the judgment awarding building loss and attorney fees to the owners is reversed; that portion of the judgment assessing a $5,000 penalty against defendant is also reversed, and this matter is remanded with directions to conduct further proceedings consistent with the views expressed herein.

Affirmed in part.

Reversed in part and remanded with directions.

WILSON, RJ., and MEJDA, J., concur.

      At the time of the fire the property was sublet to Nationwide Food & Liquor Store, not a party to this action.

      National points out that under the terms of the lease, it is in fact the owners who must repair or replace, contrary to the testimony of a representative of the owners at trial. However, that lease was not admitted into evidence, and we are concerned here only with what instruction the evidence before the court would have supported.

      defendant suggests that we enter judgment n.o.v. for it in the amount of admitted liability. However, the basis for that figure is still a matter of controversy to be tried by a jury. While we do not know the jury’s rationale in arriving at its verdict in the former trial, it appears to have found defendant’s figure, based on the Ensminger proposal, too low. We do not know what a properly instructed jury would find based on the evidence contained in this record.

      For example, defendant attempted to present testimony with regard to the parties’ interpretation of the contract; since the contract is unambiguous, such testimony was properly excluded.


author: JUSTICE GOLDBERG

text:
      In re APPLICATION OF THE COOK COUNTY TREASURER AND EX-OFFICIO COLLECTOR—(Joyce Viso, Petitioner-Appellee, v. Edward J. Rosewell, Cook County Treasurer, Respondent-Appellant).
    First District (1st Division)
    No. 83—0415
    Opinion filed October 31, 1983.
    Rehearing denied December 5, 1983.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and James McVane, Jr., Assistant State’s Attorneys, of counsel), for appellant.
    Bruce M. Buyer, of Chicago, for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Joyce Viso (petitioner) was evicted from her home after issuance of a tax deed. Petitioner filed an amended petition for indemnity from the County Treasurer of Cook County as Trustee of the Indemnity Fund (respondent), which the trial court allowed. (Ill. Rev. Stat. 1981, ch. 120, par. 728a(4).) The respondent has appealed.

Petitioner failed to pay a special assessment for 1976. As a result, petitioner’s property was sold at a January 1978 tax sale. The period of redemption was extended to July 25,1980.

In July of 1979, the Madison Bank and Trust Company of Chicago, which held the mortgage on petitioner’s property, received notice of the tax sale. The bank immediately forwarded a cashier’s check to the county clerk and attempted to redeem the property.

The check was returned by the county clerk with a letter stating the property had already been redeemed on July 23, 1979. The clerk’s letter was based on an entry in his judgment records which was later discovered to be in error. A redemption intended for a different parcel of property had been credited to petitioner’s property. Although the error was subsequently discovered and corrected, no notice of this action was given to the bank, or to petitioner.

In March of 1980, petitioner received a “Take Notice” from the tax purchaser informing her that the property had been sold for the 1976 special assessment and that petitioner had until July 25, 1980, to redeem. In June of 1980, petitioner attempted to redeem. Petitioner went to the county clerk’s office and tendered her personal check. She was told to return with cash or a cashier’s check. The notice received by petitioner in March 1980 made no mention of the necessity of paying only with cash or a cashier’s check. There is no evidence that petitioner was told to return by July 25,1980.

On August 8, 1980, petitioner returned to the county clerk’s office with the necessary cash. The money petitioner paid was credited to the delinquent 1977 special assessment. The 1976 special assessment remained unredeemed. Accordingly, a tax deed was issued on November 14,1980.

After a hearing, the trial court entered an order finding petitioner to be equitably entitled to just compensation pursuant to section 247a of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 728a).

Respondent contends petitioner did not prove she was equitably entitled to compensation; the finding by the trial court regarding value of the property is not supported by the evidence; and the trial court erred in refusing to deduct the unpaid mortgage on the property from the amount awarded to petitioner. Petitioner contends the finding of the trial court awarding compensation is in accordance with the evidence; the evidence of value of the property is sufficient; and the order appealed from did in fact deduct the amount of the mortgage from the award in accordance with the pertinent statute.

I

The relevant statute provides in pertinent part (Ill. Rev. Stat. 1981, ch. 120, par. 728a):

“(4) Any owner of real estate sold pursuant to any provision of this Act at a sale held subsequent to September 1, 1970, who without fault or negligence of his own sustains loss or damage by reason of the issuance of a tax deed pursuant to Sections 266 or 266a, and who is barred or in any way precluded from bringing an action for the recovery of such real estate or any cmmer of property containing four or less dwelling units who resided thereon the last day of the period of redemption who, in the opinion of the Court which issued the tax deed order, is equitably entitled to just compensation, has the right to indemnity for the loss or damage sustained. Indemnity shall be limited to the fair cash value of the real estate as of the date that the tax deed was issued, less any mortgages or liens thereon. (5) ***. The Court shall liberally construe this Section to provide compensation wherever in the discretion of the Court the equities warrant such action. ***” (Emphasis added.)

The italicized portions of the statute were added by Public Act 81 — 512, which became effective on January 1, 1980. In the case at bar, the property was sold during January of 1978. However, the tax sale and the issuance of the tax deed both occurred long after the effective date originally set out in the balance of the statute. The statute clearly provides for liberal construction by this court in order that compensation may be awarded in the discretion of the trial court. Although as a general matter statutes have only prospective rather than retroactive effect, we interpret the remedial aspect of the statute added by amendment as simply adding an additional remedy to another class of persons. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390, 415 N.E.2d 1034, cert, denied (1981), 451 U.S. 921, 68 L. Ed. 2d 312, 101 S. Ct. 2000.) Consequently, the statute in this regard should be applied to petitioner in the instant case. The same result was reached by this court in In re Application of Kane County Collector (1981), 102 Ill. App. 3d 43, 45-46, 429 N.E.2d 590.

We will add alternatively that in view of the facts presented by this record, where unfortunate and virtually unavoidable administrative errors were made in connection with attempted redemption of the property by petitioner and by the Madison Bank, all without the fault of petitioner or the bank, we would be constrained to hold petitioner was not guilty of fault or negligence in this regard. We also expressly approve of the ruling by the trial court that petitioner “is equitably entitled to just compensation ***.” This result is strongly supported by the clear and manifest weight of the evidence. As regards the application of legal principles, we find this case governed by In re Application of Kane County Collector (1981), 102 Ill. App. 3d 43.

II

Petitioner called a duly qualified real estate appraiser. He testified the fair cash value of petitioner’s property on the date of issuance of the tax deed was $56,000. But, no evidence to the contrary was offered by respondent. It is correct, as respondent urges, that the appraiser did not inspect the interior of the property. Also, respondent states the appraisal was too quickly done and it was based on sales prices of comparison properties rather than on fair cash values. However, at best, all of respondent’s contentions go only to the weight of the evidence.

In view of the absence of contrary evidence, the trial court properly concluded that the value of the property, constituting “just compensation” to petitioner, was $56,000. In addition, we agree with petitioner that the point of sufficiency of the evidence of value of the property was not raised by respondent in the trial court. Consequently, this issue has been waived. Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541, 550, 449 N.E.2d 65.

Ill

We reject the argument of respondent that the trial court failed to deduct the outstanding mortgage on the property. The trial court found petitioner was personally liable to the Madison Bank on the note in question in the amount of $17,126.56. Consequently, the court awarded judgment in favor of petitioner for $56,000, but specifically ordered petitioner to pay the entire amount due the bank upon the mortgage. Petitioner was also ordered, promptly to submit proof of this payment to the trial court.

Respondent urges this court should simply order payment to petitioner of $38,873.44, which is the total value of the property less the outstanding mortgage. The statute does direct payment of the “fair cash value” of the property “less any mortgages or liens thereon.” (Ill. Rev. Stat. 1981, ch. 120, par. 728a.) However, this statute is to be “liberally” construed. (See Ill. Rev. Stat. 1981, ch. 120, par. 728a(5).) Thus, if we required petitioner herself to pay the mortgage balance out of her own funds, she would receive only $38,873.44 less the mortgage balance ($17,126.56), or a net recovery of $21,746.88. This result would be manifestly inequitable and contrary to the spirit of the statute. The trial court thus properly arranged the result so that petitioner would receive the net amount of $38,873.44; precisely the amount of her equity.

Consequently, we find the judgment order appealed from properly protected the rights of all parties. The judgment appealed from is therefore affirmed.

Judgment affirmed.

McGLOON and CAMPBELL, JJ., concur.