author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN BROWNSON, Defendant-Appellant.
    Second District
    No. 80-952
    Opinion filed February 3, 1982.
    Mary Robinson and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Following a bench trial, defendant Kevin Brownson was convicted of rape (Ill. Rev. Stat. 1979, ch. 38, par. II—I) and thereafter sentenced to six years imprisonment. He appeals, contending the trial court erred in failing to suppress his confession as involuntary and the fruit of an illegal detention, and that he was not proved guilty beyond a reasonable doubt. We affirm.

In the early morning hours of July 23, 1977, Molly_ was asleep in her apartment at the West Chicago Lorlyn apartment complex in West Chicago, Illinois. She was awakened at approximately 2:30 a.m. by the presence of a male intruder who knocked her to the floor. Although it was dark within the apartment, some light filtered through the drapes. The intruder got on top of her and held her arms; he told her he would not hurt her but would kill her if she screamed. She was unable to breathe and managed to let the intruder know she wouldn’t fight or scream if he would allow her breath. He stood up and ordered her to undress him. She noted he wore a short-sleeved, striped rugby shirt and zippered ankle boots, was fairly heavy with a large stomach and fleshy chest and had a mole the size of a dime upon his upper left chest. Although the victim did not look directly at the intruder’s face, she had the impression he was three to four inches taller than she with dark wavy hair. He then removed her night clothes and directed her to put on a pair of pantyhose. He obtained scissors from the kitchen, blindfolded her and cut the crotch out of the hose as she wore them. He forced her to perform oral sex and had intercourse with her while she wore the hose, calling her Molly during the act. Afterwards, he violently ripped the hose from her body and said she would now have to die. The intruder then tore out the telephone, bound and gagged her and left the apartment. She heard the sound of a key turning the lock in her front door after he closed it. She was tied so tightly she had to struggle to breathe, but finally managed to free herself. She then drove to a friend’s home for help and thereafter to Central Du Page Hospital for an examination.

West Chicago police were informed of the rape and detectives George Hollow and Peter Dakuras obtained a list of residents and employees of the West Chicago Lorlyn apartment complex. They learned defendant worked there on an irregular basis as a maintenance man and painter. He had a pass key, had painted an apartment in the victim’s building within the last month and had a large mole on his left chest noted by other employees. The detectives visited defendant at his place of employment at the Batavia Lorlyn apartments on August 3,1977, at 11:30 a.m. and requested that he accompany them to the station stating they had a matter to discuss with him. Defendant advised them he first had to obtain permission to leave from his supervisor and, having obtained it, agreed to accompany the officers. In their car the detectives verbally gave defendant Miranda warnings and did so again in written form at the station where defendant signed a waiver of rights form. He was questioned about the rape for Bá to 2 hours and denied any knowledge of the offense. When the officers asked if he had any marks, moles or tattoos defendant replied he did not, whereupon they asked him to remove his shirt and observed a dime sized mole on his left chest. Photographs and fingerprints were taken of defendant and an appointment made for him to take a polygraph examination. He was then driven back to work. Later that day he telephoned the police and informed them he would not submit to the polygraph on advice of counsel. The following day, however, defendant came voluntarily to the station accompanied by his father who had advised him to submit to the polygraph to clear the matter up. While the time frame is in dispute, defendant apparently appeared at the station between 4 p.m. and 4:30 p.m. and waited approximately one-half hour for the polygraph examiner, Steven Theodore, to arrive. He then submitted to the test, which took about one hour, and Theodore told the officers there were signs of deception in the results. Defendant was then questioned until 6:55 p.m., at which time he admitted his guilt, telling his father he did it but did not know why. He then handwrote and Signed a confession and telephoned an attorney in the presence of the officers, saying, “I want you to represent me” and “I did it.”

After his indictment, defendant filed a motion to suppress his confession which the trial court considered at a number of hearings over a three-year period before it was denied.

In trial the victim, while unable to identify defendant as the rapist, did testify as to his height, build, hair, clothes, mole and the requirement of the rapist that she wear crotchless pantyhose.

Defendant contends his confession was involuntary and should have been suppressed. He asserts that Officers Hollow, and Dakuras used coercion, promises and intimidation upon him during questioning, causing his will to be overborne so that he falsely confessed. Defendant states the police used knowledge of his past suicide attempt and his breakup with his fiancée, whose name was also Molly, six days before the rape to improperly play upon his emotions and cause him to become confused and upset. He maintains the questioning was intensive and he was promised medical care, told he was mentally sick, had just blacked out and that he would not go to jail if he admitted guilt. Defendant states he requested an attorney during questioning, but one was denied. He asserts he was subjected to a three-hour interrogation which delved into private areas of his life, including his sex habits, past marital discord and prior emotional instability, all while denying defendant an attorney, thereby overcoming his will.

When the voluntary nature of a confession is called into question by a motion to suppress the State has the burden of proving the statement was voluntarily given by producing all material witnesses to it or explaining their absence. (People v. Lopez (1981), 93 Ill. App. 3d 152, 416 N.E.2d 1127.) Whether a statement is voluntarily given depends upon the totality of the circumstances; that it was freely and voluntarily given without compulsion or inducement of any sort and that defendant’s will was not overcome at the time he confessed. (People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840; People v. Boyd (1980), 88 Ill. App. 3d 825, 410 N.E.2d 931.) Factors to consider include the intensity of the interrogation, failure to warn of constitutional rights and defendant’s age, experience and education. (People v. Lopez (1981), 93 Ill. App. 3d 152, 416 N.E.2d 1127.) In making its determination, the trial court is not required to be convinced beyond a reasonable doubt but only by a preponderance of the evidence (People v. Alvarez (1981), 93 Ill. App. 3d 111, 416 N.E.2d 1217; People v. Lopez (1981), 93 Ill. App. 3d 152, 416 N.E.2d 1127), and such determination will not be disturbed on review unless contrary to the manifest weight of the evidence. People v. Fuller (1980), 91 Ill. App. 3d 922, 415 N.E.2d 502; People v. Smith (1980), 91 Ill. App. 3d 438, 414 N.E.2d 1281.

There is no evidence of record to sustain defendant’s contention his confession was forced from him other than his assertion to that effect. He admitted he agreed to cooperate with the officers and did not request that questioning cease; the prosecution witnesses testified defendant did not request an attorney at any time. Defendant acknowledges he came to the police station on August 4 contrary to his attorney’s advice. The record essentially discloses the officers merely confronted defendant with the evidence. He was not physically restrained or threatened, and questioning was limited to approximately Vii to 2 hours on each day. Both officers denied making any promises or threats to defendant. It is the function of the trier of fact to resolve disputed fact questions (People v. Sellars (1981), 93 Ill. App. 3d 744, 417 N.E.2d 877), and the voluntariness of his confession was, in the first instance, for the circuit court. People v. Payton (1980), 91 Ill. App. 3d 78, 414 N.E.2d 283; People v. Koesterer (1976), 44 Ill. App. 3d 468, 358 N.E.2d 295, appeal denied (1977), 65 Ill. 2d 583.

The trial judge noted defendant had voluntarily come to the police station, he could have left at any time, he was given his Miranda warnings on four occasions and he freely and understandingly signed the waiver of rights form. The judge found defendant to be an articulate 24-year-old man with three years of college, some military experience and police training, and, based upon the totality of the circumstances, concluded the confession was voluntary. We cannot say this decision was against the manifest weight of the evidence. People v. Smith (1981), 93 Ill. App. 3d 1133, 418 N.E.2d 172.

Defendant next argues that his confession of August 4, even if voluntary, was the poison fruit of an illegal custodial detention of him on August 3, unattenuated by intervening circumstances sufficient to remove the taint and, therefore, should have been suppressed.

Custodial interrogation as defined in Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612, consists of “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Defendant maintains he was in custody and went to the station on August 3 as he felt he had to and not merely in response to a police request. He cites Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, and its Illinois progeny (People v. Townes (1981), 94 Ill. App. 3d 850, 419 N.E.2d 604; People v. McMahon (1980), 83 Ill. App. 3d 137, 403 N.E.2d 781; People v. Dowdell (1980), 81 Ill. App. 3d 266, 401 N.E.2d 295), for the proposition that he was in fact illegally restrained by police on August 3 and in custody, asserting he was picked up without a warrant or sufficient probable cause to obtain one; transported by police to the station for questioning in their vehicle; and, not informed he was free to leave although he was not formally arrested until after he confessed on August 4.

In McMahon and Dowdell a key factor as to whether defendant was in custody was whether he realized he was free not to accompany the officers to the station if he so wished. While the officers here did not testify they advised defendant he need not go with them, that was implicit from the circumstances as they waited while defendant asked permission to leave his employment. It appears defendant believed he could have chosen not to accompany the officers if his supervisor had refused permission for him to leave. Distinguishing this case from those relied upon by defendant is the fact that here, after the 1/2 hours of questioning on August 3, defendant was allowed to leave and was driven back to his employment by an officer. Not all station house questioning is custodial. “Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.” (Oregon v. Mathiason (1977), 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719, 97 S. Ct. 711, 714.) We cannot conclude in these circumstances that defendant was improperly detained and questioned by the officers on August 3.

Defendant also argues he came to the police station with his father on August 4 as a result of the illegal detention of August 3. As we find there was no illegal detention on August 3, we need not address this contention.

Defendant’s final contention is that he was not proved guilty beyond a reasonable doubt as the victim was unable to identify him in court as the rapist. Further, defendant asserts her testimony was not clear and convincing and lacked corroboration in a number of details. Among the factors deféndant points to as raising a reasonable doubt are that the victim identified the rapist as two inches taller and heavier than defendant; that defendant had a mustache at the time of the rape which the victim did not mention; and, his alibi that he was at a birthday party at his sister’s home at the time of the rape was corroborated by his sister and brother-in-law.

These issues were for the trier of fact who was responsible for determining the credibility and the weight to be given the testimony. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733; People v. Younge (1980), 83 Ill. App. 3d 305, 404 N.E.2d 415, appeal denied (1980), 81 Ill. 2d 598.) The trial judge also considered evidence defendant worked at the complex and had a pass-key to the victim’s apartment; that he owned a blue and red striped rugby shirt and a pair of zippered boots and, according to his former girl friend, preferred sex while she wore crotchless pantyhose. He had a mole upon his left chest about the size of a dime and closely fit the description given by the victim, although she could not identify defendant in trial. Defendant had just six days before this offense been jilted by his fiancée, who was known as Molly, and during the rape the offender called the victim Molly. Finally, defendant admitted his guilt and wrote out a confession describing the offense which supported the version of events as related by the victim.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

LINDBERG and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE VAN DEUSEN

license: Public Domain

text:
      In re ESTATE OF FRANK RUDOLPH PETERSON.—(CAROL WILSON, Appellant, v. ILLINOIS NATIONAL BANK AND TRUST COMPANY, Conservator of the Estate of Frank Rudolph Peterson, Appellee.)
    Second District
    No. 81-80
    Opinion filed February 4,1982.

      Peter B. Nolte, of Rockford, for appellant.
    Frank P. Maggio, of Rockford (Pamela Fox, of counsel), for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

This is an appeal from a portion of an order closing a conservator’s estate. The trial court ruled that the beneficiary of three “Totten Trust” accounts was not entitled to the interest earned on these accounts during the period of the settlor’s incompetency where the interest was expended by the conservator for the upkeep and maintenance of the incompetent even though there were other cash assets of the incompetent from which those expenses might have been paid. Carol Wilson, the beneficiary of these accounts, has appealed.

During 1973, Frank Rudolph Peterson opened a savings account in each of the following Rockford, Illinois, institutions: Loves Park Savings & Loan Association, American National Bank & Trust Co., and First Federal Savings & Loan Association. All three accounts named Mr. Peterson as the trustee and his niece, Carol Wilson, as beneficiary of the accounts at his death.

On June 17, 1977, letters of office for conservator to collect for the estate of Frank Rudolph Peterson, incompetent, were issued to the Illinois National Bank & Trust Co. of Rockford (hereinafter Bank). On May 19, 1978, Mr. Peterson was adjudged incompetent and the Bank was named as conservator of his estate. The incompetent died on June 25, 1980. The conservatorship was continued until January 22,1981, when it was closed.

In its January 22,1981, order, the trial court authorized distribution of the balances in the trust accounts in question as of the date of the settlor’s death, along with interest earned on said accounts subsequent to the settlor’s death, to the appellant. The order authorized a similar distribution to the beneficiary of another Totten trust account. That beneficiary is not a party to this action. The remaining assets of the conservatorship, after payment of approved fees, were ordered transferred to the estate of Frank Rudolph Peterson, deceased.

During the administration of the conservatorship the Bank established a single checking account into which it deposited all of the income, the rents and the interest from all of the assets of the incompetent. All of the expenses for the maintenance and support of the incompetent and his estate were paid from this account. Although the Bank left undisturbed the principal of the three savings accounts in question, the Bank requested that the interest payments from the trust accounts be made to it as the conservator, and the accrued interest from these accounts was deposited in the single checking account.

There is no dispute that the conservator bank expended funds out of the single conservatorship checking account for the incompetent’s maintenance and support and costs of the administration of the incompetent’s estate. It is clear that these expenses exceeded the interest and other income of the estate during the period of incompetency so that it was necessary for the conservator to expend some principal (other than that of the three savings account trusts) for these purposes. It is also apparent from the evidence that the incompetent’s assets, excluding the trust accounts in question (including interest), were at all times sufficient to pay the expenses of the incompetent’s estate.

On December 16,1980, the trial court ruled that the conservator bank had properly collected the income from the trust accounts in question, deposited that income into the conservatorship checking account and paid the expenses for the settlor out of that account. The trial court did grant the trust beneficiary, Carol Wilson, the balance of the three accounts as of the date of Peterson’s death, which included the unimpaired principal. The court also granted Carol Wilson interest earned subsequent to the settlor’s death, but did not grant her the interest which had accrued during the settlor’s incompetency and had been withdrawn by the conservator and expended for the care and maintenance of the incompetent-settlor.

The single issue posed in this appeal is whether the interest earned on a Totten trust, during the settlor’s incompetency, is entitled to a priority which would require the conservator to expend all other assets of the incompetent’s estate before expending this interest.

The Illinois Supreme Court has addressed the nature and validity of Totten trusts and accepted the position adopted by the American Law Institute in section 58 of the Restatement (Second) of Trusts (1959):

“ ‘Where a person makes a deposit in a savings account in a bank or other savings organization in his own name as trustee for another person intending to reserve a power to withdraw the whole or any part of the deposit at any time during his lifetime and use as his own whatever he may withdraw, or otherwise to revoke the trust, the intended trust is enforceable by the beneficiary upon the death of the depositor as to any part remaining on deposit on his death if he has not revoked the trust.’ ” (In re Estate of Petralia (1965), 32 Ill. 2d 134, 138.)

The declaration of trust immediately creates an equitable interest in the beneficiaries although the enjoyment of that interest is postponed until the death of the settlor regardless of the fact that the interest is highly destructible because the settlor retains power of revocation. (32 Ill. 2d 134, 137-38.) The beneficiary of a Totten trust holds a present, although defeasible, interest therein contemporaneous with the settlor’s superior rights; the settlor’s death, however, terminates his right and renders the beneficiary’s indefeasible. (In re Estate of Wright (1974), 17 Ill. App. 3d 894, 900.) Because Carol Wilson became entitled to the trust accounts by reason of having survived Frank Rudolph Peterson, who held a superior interest in the accounts during his lifetime, her interest as Totten trust beneficiary may properly be characterized as a survivorship interest. See Black’s Law Dictionary 1297 (5th ed. 1979); Ill. Rev. Stat. 1979, ch. 32, par. 770(d).

Appellant cites In re Estate of Lastick (1975), 28 Ill. App. 3d 303, to support the position that her survivorship interest in the Totten trust accounts could not be destroyed or altered by the conservator in the absence of a showing that Peterson’s other assets were insufficient to provide for his support and maintenance. The appellant insists that interest on Totten trusts may be expended for the settlor’s support and maintenance, but only after other assets of the estate are depleted.

In Lastick, the incompetent owned a two-thirds interest in a land trust; her son owned the other one-third interest. By the terms of the land trust, the two-thirds beneficial interest of the incompetent would pass to her son on the incompetent’s death if no other disposition had been made of the interest. No other disposition of the beneficial interest was made during the incompetent’s life. After her death, her daughter, who was the sole devisee under her will, petitioned the court to cause the two-thirds beneficial interest owned by the incompetent in her lifetime to be sold to defray a pro rata share of the incompetent’s expenses, which apparently remained unpaid. The liquid assets in the incompetent’s estate had a value of $56,000; the land in the trust had a value of $50,000. The trial court denied the petition and directed that the probatable assets of the estate had to be first exhausted before charging the incompetent’s interest in the land trust with such expenses. The appellate court agreed and found that, under the circumstances, the survivorship interest of the son in the land trust should prevail over the other assets of the incompetent.

Lastick is distinguishable from the instant case for several reasons. Most important, unlike the case at bar, Lastick does not deal with expenditures made by the conservator in good faith for the support and maintenance of the incompetent, which expenditures the trial court had reviewed and approved. Also, Lastick, concerned a request to expend a portion of the principal of the trust, rather than the expenditure of income therefrom.

We have examined the other cases cited by the appellant and find them to be distinguishable from the case at bar. Appellant cites no cases that squarely deal with the issue of whether the interest on Totten trust accounts is entitled to the priority asserted so that the conservator bank’s actions in expending these funds would be improper. Nor do the cases cited by appellant, taken singly or together, adequately support the asserted priority. Independent research has also failed to reveal any cases directly on point.

However, Illinois statutes and cases do establish the proper function and duties of the conservator under the law, and we find that the conservator bank acted properly in this case.

At the time the bank was appointed as conservator, the Illinois Probate Act set forth the duties of the conservator. (Ill. Rev. Stat. 1977, ch. 110/2, par. 11—13.) The statute subjects the conservator to the direction of the court and vests him with responsibility for the care and management of the estate and requires the conservator to “manage the estate frugally and * * ° apply the income and principal of the estate so far as necessary for the comfort and suitable support ‘ 8 “of the ward * * Ill. Rev. Stat. 1977, ch. 1101/2, par. 11—13(b).

This court has described the relationship between the incompetent, the conservator and the court as follows:

“An incompetent person or a person alleged to be incompetent is a ward of the court and entitled to the special protection of the court whenever the rights of such incompetent may be affected. The paramount duty of the conservator is, as the name implies, to conserve and protect the assets of an incompetent person and to see that such assets and the income therefrom are properly applied to the use, enjoyment and benefit of such incompetent. The duties and responsibilities of a conservator are those as set forth in the statute and the supervisory function of the court assures compliance therewith.” (Proehl v. Leadley (1967), 86 Ill. App. 2d 472, 477-78.)

Under the direction of the court, the conservator performs his statutory obligation to preserve the estate of the incompetent and manage the assets so as to provide for the incompetent’s care and support.

After adjudication of incompetency, Mr. Peterson was no longer competent to tend to his own affairs. (In re Estate of Hirsh (1960), 27 Ill. App. 2d 228, 235-36.) Pursuant to court authority, the conservator bank then took over management of the incompetent’s assets.

The Illinois Supreme Court has described the proper management of a conservatorship estate as follows:

“The governing principle in the management of property belonging to a person of unsound mind is the furtherance of his interest. * * * The court considers only the situation of the ward and does nothing wantonly or unnecessarily to alter the ward’s property, but on the contrary takes care, for his sake, that if he recovers he shall find his estate as nearly as possible in the same condition as he left it. [Citations.]” (Lewis v. Hill (1944), 387 Ill. 542, 546.)

The conservator in the instant case expended the current interest and income of the estate for the current expenses for care and maintenance of the settlor-incompetent and used estate principal to meet these expenses only insofar as estate income was insufficient. Had the incompetent recovered, he would have found his estate in as nearly the same configuration as before his incompetency.

Additionally, the acts of the conservator bank appear to comport with Peterson’s intentions regarding his assets prior to his incompetency. That the settlor chose to make the trusts in question revocable indicates his intention that these funds be available to him during his lifetime if needed. A court’s objective in construing a trust is to ascertain and give effect to the intent of the settlor. Ford v. Newman (1979), 77 Ill. 2d 335, 338.

In the last analysis, we must consider that it is the court which has control over the person and the estate of the ward. (Ill. Rev. Stat. 1977, ch. 1101/2, par. 11—13.) The conservator is under the general guidance and supervision of the probate court, and that court should hold him strictly accountable in the execution of his duties. (Burton v. Estate of McGeever (1916), 202 Ill. App. 606, 610.) Here, the trial court considered and approved the actions of the conservator and found them to be in the best interest of the incompetent and his estate. In so doing the court determined that, under the circumstances, the bank had properly expended the interest income from these Totten trusts along with other interest income from other assets of the settlor-incompetent for his support and maintenance. We conclude that, under the circumstances of this case, the survivorship interest which the appellant had in the interest income from the Totten trusts was not such as to prevent its expenditure by the conservator for the maintenance and support of the incompetent subject to the approval of the court.

Considering the relevant statutes under the Probate Act, the principles of trust construction, and the judicial interpretation of the obligations of a conservator in the management of an incompetent’s estate discussed above, we conclude that the conservator bank acted properly and that the trial court correctly refused to grant appellant the interest accrued on the Totten trust accounts during the period of Mr. Peterson’s incompetency. The accrued interest was not entitled to a priority vis a vis the other items of interest and income in this estate. Therefore, the bank properly expended these funds along with the other interest/income assets for the settlor-incompetent’s necessary support and maintenance.

For the reasons set forth above, the order of the circuit court of Winnebago County, Probate Division, dated January 22,1981, subject of this appeal, is hereby affirmed.

Affirmed.

HOPF and LINDBERG, JJ., concur.


author: JUSTICE JONES

text:
    RICHARD LEAHY, Plaintiff-Appellee, v. ILLINOIS POWER COMPANY, Defendant-Appellant.
    Fifth District
    No. 79-604
    Opinion filed November 17, 1981.

      Burton C. Bernard and Ronald D. Lowery, both of Bernard & Davidson, of Granite City, for appellant.
    Callis and Hartman, of Granite City (Lawrence T. Hartman, of counsel), for appellee.
   JUSTICE JONES

delivered the opinion of the court:

This is an appeal pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1979, ch. 110A, par. 306) from an order of the Circuit Court of Madison County granting plaintiff, Richard Leahy, a new trial in his action against defendant, Illinois Power, Company, for personal injuries. Following a jury verdict in favor of defendant, the trial court granted plaintiff’s motion for new trial on the ground that the court erred in denying plaintiff’s motion for mistrial made as a result of defendant’s interjecting the existence of another lawsuit for damages for injuries involving the plaintiff.

The following issues are raised on appeal: whether the cross-examination of plaintiff concerning a prior lawsuit involving the plaintiff was proper; and whether the trial court abused its discretion in granting plaintiff’s motion for new trial.

Plaintiff is a member of Asbestos Workers Local No. 1 and had approximately 15 years of experience as an asbestos worker. At the time of the accident, plaintiff was employed by Sprinkman and Sons Corporation, an independent contractor specializing in insulation work, which had contracted with defendant to replace the insulation at its Alton-Wood River power plant. The accident occurred while plaintiff was working at defendant’s power plant.

The area at which plaintiff worked at the power plant was referred to as the “penthouse,” an enclosed area containing tubes and piping and was located on the seventh floor directly above the boiler. Because of the heat inside the penthouse, the workers would go outside on the roof to take breaks. Approximately 40 to 50 feet from the work area was a door leading to the roof. Outside the door was a metal landing with two steps with handrails on both sides leading down to the roof. The accident in question occurred on these steps.

The record reveals that for approximately one week prior to the accident the weather had been quite severe with snow and ice sufficient to cancel work for one day.

On February 7, 1975, plaintiff took a work break. He proceeded to the door leading to the roof. Plaintiff testified that upon opening the door he observed some ice on the landing and proceeded slowly down the steps. He then slipped and fell, catching himself on the handrails by his arms, producing the injuries complained of to the rib cage. Plaintiff further testified that he did not know if there was ice on the steps and that it was the first time he had ever gone out on the roof.

Plaintiff testified that as a result of this accident he received injuries to the chest and ribs. There was also testimony that he had been injured in another work-related accident in which he injured only his low back and that it was not a significant injury; however, plaintiff had given prior inconsistent statements indicating that the same parts of the back and chest were injured in both accidents. Plaintiff had filed a lawsuit as a result of the injuries sustained in the previous accident, and during a deposition in this prior lawsuit, he stated that his chest, back and arms had been sore after the accident.

On cross-examination, defense counsel attempted to impeach plaintiff by use of the deposition from the prior lawsuit to contradict plaintiff’s testimony as to the insignificance of the prior injury. At this point in the cross-examination of plaintiff by defense counsel, the following exchange took place:

“Q. Now, do you remember that your deposition was taken on May 3rd. By the way, you testified that you did have a prior injury involving your low back; is that correct?
A. Yes, sir.
Q. And that was over with in a few days, is that correct?
A. Well, I had what they call adjustment by chiropractor with the back; but I didn’t lose any time, any work time.
Q. Wasn’t a major injury, was it?
A. Well, no, I wouldn’t say.
Q. But you filed a suit concerning it, did you not?
A. Yes.
PLAINTIFF'S COUNSEL: I am going to object. Every person has a right to sue when injured.
THE COURT: Objection sustained.”

Following this exchange, plaintiff’s counsel, in chambers, moved for a mistrial on the ground that the mentioning of the prior lawsuit was improper in that it was highly inflammatory and prejudicial. The trial court denied the motion, although it stated that the comment referring to another lawsuit was inappropriate.

Upon a verdict being returned for the defendant, plaintiff filed a motion for new trial based on the reference to the prior lawsuit. The trial court granted the motion solely on that basis. Thereafter, we granted defendant’s petition for leave to appeal from the trial court’s order granting plaintiff a new trial.

Before reaching the ultimate issue of whether the trial court abused its discretion in granting plaintiff a new trial, it is first necessary to examine the propriety of the cross-examination in question. As stated, the objected to cross-examination contains a reference to a prior injury and a prior lawsuit based on that injury.

Generally, a plaintiff may be cross-examined as to his previous physical condition or injuries when they are of a nature similar to those involved in the immediate litigation. (Saputo v. Fatla (1975), 25 Ill. App. 3d 775, 324 N.E.2d 34; Palsir v. McCorkle (1966), 70 Ill. App. 2d 425, 216 N.E.2d 682.) Such cross-examination is proper to show causation or to lay the foundation for impeachment. Inasmuch as the fact of such prior injuries is both material and probative, it follows that impeachment thereon is proper as well. Plaintiff does not dispute that the evidence of prior injuries was relevant to the issues of causation and damages. He claims, however, that the reference to the prior lawsuit was improper and prejudicial, depriving plaintiff of a fair trial.

Defendant asserts that the cross-examination in question was not only proper cross-examination for the purpose of impeachment, but that the evidence adduced was independently relevant to the issues in the case. Both parties principally rely on the same two cases in support of their respective positions.

In Gordon v. Checker Taxi Co. (1948), 334 Ill. App. 313, 79 N.E.2d 632, plaintiff, in a personal injury action, claimed that conduct on the part of defense counsel during cross-examination created such a prejudicial effect upon the jury as to result in a wholly inadequate verdict. The objected to cross-examination involved a reference to a medical examination indicating a prior injury. After the reference to the prior injury, the following questions v/ere put to plaintiff on cross-examination:

“Q. I will ask you if it isn’t true that on or about the 24th day of April, 1935, you were examined by Doctor Serlin, or Doctor Van Dorf, and Van Dorf?
A. No, sir.
Q. In connection with the claim you had against the Motor Coach Company, then pending?
A. No, sir.
Q. Then pending in the Circuit Court of Cook County?
A. No, sir.” (334 Ill. App. 313, 317, 79 N.E.2d 632, 634.)

In Gordon, the court stated that these questions propounded on cross-examination would be proper if asked in good faith for the purpose of impeachment in the event of denial. The problem in Gordon was that no impeaching evidence was offered and this, combined with other errors, required reversal and remandment.

The second case relied on by the parties is Collister v. Kroblin, Inc. (1961), 30 Ill. App. 2d 288, 174 N.E.2d 911. In Collister, an action arising out of an automobile accident, the plaintiff contended that a new trial should be granted because of prejudicial conduct on the part of defendant’s counsel. During cross-examination of plaintiff with reference to a prior accident 15 years earlier, defendant’s counsel asked the following questions:

“Q. And that was after the fall you had over in Peoria wasn’t it?
A. That is right.
Q. And you filed a lawsuit over in Peoria as a result of that fall didn’t you?” (30 Ill. App. 2d 288, 293, 174 N.E.2d 911, 913.)

At this point the trial court sustained plaintiff’s objection to the question and instructed the jury to disregard it. The court in Collister, in affirming the judgment for defendant, did not determine the propriety of this questioning. The court stated that inasmuch as objection was made and sustained and plaintiff was not required to answer, there was no denial upon which impeachment would be required. The court went on to state that “[t]he Gordon case condemns only the practice of asking questions which by innuendo could affect a plaintiff’s claim and then failing to lay the impeaching facts before the jury.” (30 Ill. App. 2d 288, 295, 174 N.E.2d 911, 914.) The court in Collister emphasized that the error would be in asking such questions on cross-examination with a subsequent failure to offer impeaching evidence in the event of a denial.

The defendant asserts on appeal that the cross-examination in question was proper in that it was used in good faith for purposes of impeachment. We agree. The instant case is distinguishable from Gordon. In Gordon, there was no impeaching evidence offered after the reference to the prior lawsuit whereas in the instant case the evidence of the prior lawsuit was itself offered to impeach the testimony of the plaintiff as to the claimed insignificance of the prior injury. The extent and nature of the prior injury were put into issue by plaintiff’s direct testimony and by the deposition from the prior lawsuit. In reviewing plaintiff’s entire testimony, direct and cross-examination, we find no innuendo of impropriety created by the complained of question. Defense counsel offered the question in good faith for purposes of impeachment. We believe this to be proper cross-examination.

Defendant also asserts that the reference to the prior lawsuit on cross-examination was proper in that it was relevant to the issues of causation and damages. As stated, previous injuries of a similar nature would be relevant. (Saputo v. Fatla (1975), 25 Ill. App. 3d 775, 324 N.E.2d 34.) Although there may be merit to the independent relevancy of the prior lawsuit (see, e.g., Sisti v. Barker (1979), 70 Ill. App. 3d 734, 388 N.E.2d 1117), it is unnecessary to decide this issue because the cross-examination in question is proper for the reasons stated.

Defendant asserts that the trial court abused its discretion in granting plaintiff’s motion for new trial. The trial court has broad discretion in granting a new trial. (Kitsch v. Goode (1977), 48 Ill. App. 3d 260, 362 N.E.2d 446.) But such action is nevertheless reviewable for abuse. (Dobson v. Rosencranz (1967), 81 Ill. App. 2d 439, 226 N.E.2d 296.) This court has recognized the great respect and consideration that is due a jury verdict. Thus, the standard to be applied is that a jury verdict should not be reversed by the trial court unless it is unreasonable, arbitrary and unsupported by the evidence. Stringer v. McHugh (1975), 31 Ill. App. 3d 720, 334 N.E.2d 311.

In the instant case the verdict was supported by the evidence. The sole reason for granting plaintiff’s motion for new trial was the impropriety of the cross-examination in question and the resultant prejudice. We have found the cross-examination to be proper; furthermore, the evidence fully supports the jury’s determination that the defendant was not negligent and that the accident was caused by plaintiff’s contributory negligence. The trial court awarded a new trial solely on evidence that related to damages and plaintiff’s credibility as it related to the cause and extent of his injuries. We find that the defendant has met the burden of establishing that the trial court abused its discretion in granting plaintiff’s motion for new trial.

We reverse the decision of the Circuit Court of Madison County granting plaintiff a new trial and remand the cause with directions to enter judgment on the verdict of the jury.

Reversed and remanded with directions.

KASSERMAN, P. J., and KARNS, J., concur.


author: PRESIDING JUSTICE KARNS

text:
    FAIRFAX FAMILY FUND, INC., Plaintiff-Appellee, v. EDWARD COUCH et al., Defendants-Appellants.—In re MARRIAGE OF ROSLYN ANN NEWELL, Plaintiff-Appellee, and THERON HENRY NEWELL, Defendant-Appellant.
    Fifth District
    Nos. 81-32, 81-182 cons.
    Opinion filed February 2, 1982.

      Stephen Davis, of Charleston, for appellant Theron Henry Newell.
    James Eric Tohtz, of Paducah, Kentucky, for appellants Edward Couch etal.

    Ryan, Grabb, Cini & Bennett, of Mattoon (Laurence W. Grabb and Kevin H. Kahl, of counsel), for appellee Roslyn Ann Newell.
    John Speroni, of Garrison & Garrison, of Marion, for appellee Fairfax Family Fund, Inc.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

The instant appeals, consolidated for opinion, present the issue of whether papers filed in the trial court by mail are deemed to be filed when mailed or only when received by the circuit clerk.

In Fairfax Family Fund, Inc. v. Couch (Couch), an action for the balance allegedly due on a promissory note, plaintiff filed a motion for summary judgment which was granted in defendant’s absence on July 25, 1980. Defendants then filed a motion to vacate summary judgment pursuant to sections 50(5) and 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 50(5), 68.3). The last day of the 30-day period allowed for filing such a motion was August 24, 1980, a Sunday. Defendants’ motion was mailed on August 25, with a postmark of that date, but was not received and filed-stamped by the circuit clerk until August 26. The circuit court ruled that August 26 was the date of filing and denied defendants’ motion as not being timely filed.

In the second case before us in this appeal, In re Marriage of Newell (Newell), plaintiff sought a modification of defendant’s child-support obligation which the circuit court granted after an evidentiary hearing. Defendant petitioned for and received a rehearing on March 31,1981. On that date, the court affirmed its previous order increasing child support. Defendant filed a notice of appeál on May 1,1981, the 31st day after entry of the March 31 order. This court, on its own motion, issued a rule to show cause why the appeal should not be dismissed pursuant to Supreme Court Rule 303(a) (73 Ill. 2d R. 303(a)). At oral argument, defendant stated that the notice of appeal was mailed within the 30-day period and urged this court to consider it filed as of the date of mailing.

The Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 1 et seq.), which controls all aspects of a civil proceeding, does not address the filing of papers in the trial court by mail so as to define what constitutes “filing” in such a case. Likewise, the Supreme Court Rules (73 Ill. 2d R. 1 et seq.; 79 Ill. 2d R. 11 etseq.; 81 Ill. 2d R. 10 etseq.) adopted pursuant to the Act contain no provision for filing by mail in the trial court; although Rule 373 (81 Ill. 2d R. 373) provides for constructive filing as of the date of mailing for papers filed in a reviewing court. Absent a rule to the contrary, uniform practice in the trial court has been to require actual receipt by the circuit clerk, as evidenced by a file stamp, before a paper is considered “filed.” (Hamilton v. Beardslee (1869), 51 Ill. 478; see Radloff v. Haase (1902), 197 Ill. 98, 64 N.E. 557; 1 Nichols Illinois Civil Practice §380, at 406 (1976).) Under this standard, it is not sufficient for filing to show that a pleading was mailed to the clerk within the applicable time period; rather, the paper must be delivered to the clerk to be made part of the court records. Okumura v. Nisei Bowlium, Inc. (1976), 43 Ill. App. 3d 753, 357 N.E.2d 187.

In the instant appeals, however, appellants request this court to find the general statute providing for constructive receipt of papers and payments mailed to the State and its political subdivisions (Ill. Rev. Stat. 1979, ch. 1, par. 1026) applicable to the filing of papers in a legal proceeding. Section 1.25 of “An Act to revise the law in relation to the construction of the statutes” states in pertinent part:

“Unless An Act otherwise specifically provides, any writing of any kind or description required or authorized to be filed with, and any payment of any kind or description required or authorized to be paid to, the State or any political subdivision thereof, by the laws of this State:
(1) if transmitted through the United States mail, shall be deemed filed with or received by the State or political subdivision on the date shown by the post office cancellation mark stamped upon the envelope or other wrapper containing it; * # (Ill. Rev. Stat. 1979, ch. 1, par. 1026.)

The applicability of section 1.25 to the filing of papers in the trial court is an issue of first impression, as we know of no instance where it has been so construed. (Cf. Alton v. Byerly Aviation, Inc. (1977), 68 Ill. 2d 19, 368 N.E.2d 922, where section 1.25 was applied to define effective date of filing for notice mailed to the Illinois Industrial Commission; In re Application of Du Page County Treasurer (1980), 84 Ill. App. 3d 506, 405 N.E.2d 869, where counties were held to be “political subdivisions” within meaning of this section so that redemption payments mailed to the county treasurer were deemed to be received as of date of mailing.) Appellants argue that because the Civil Practice Act does not “otherwise specifically provide” for filing papers in the trial court by mail, section 1.25 applies by its terms to define the effective date of filing for such papers. After due consideration of the scope and purpose of the rules governing civil procedure (i.e., the Civil Practice Act and the Supreme Court Rules) and the potential effect of incorporating section 1.25 to define “filing” under these provisions, we find appellants’ arguments to be without merit and accordingly hold that section 1.25 is inapplicable to the situation of filing by mail in the trial court.

The broad scope of the Civil Practice Act is defined in section 1 of the Act (Ill. Rev. Stat. 1979, ch. 110, par. 1), which states that its provisions apply to all civil proceedings not regulated by separate statutes (e.g., proceedings in attachment, ejectment, etc.). As to matters not so regulated, “the practice at common law and in equity prevails.” Section 4 of the Act (Ill. Rev. Stat. 1979, ch. 110, par. 4) further provides:

“No statute hereafter enacted shall be construed to limit or affect the provisions of this Act or the rules adopted in accordance herewith, unless expressly declared to supersede or take precedence of designated provisions thereof or designated rules adopted pursuant thereto.”

Section 1.25, which was enacted in 1969, contains no reference to the Civil Practice Act which would indicate that it was intended to qualify the provisions of the Act. Although the Civil Practice Act does not specifically define what, constitutes “filing” under the Act, the application of section 1.25 to its terms would have the effect of modifying the common law rule of actual filing incorporated by reference in section 1 of the Civil Practice Act. Such an exception would logically extend to the filing of all pleadings in the trial court, including complaints constructively “filed” by mailing within the applicable statute of limitations. We find this to be untenable in light of the language of section 4 of the Civil Practice Act, which limits the effect of subsequent statutes on the provisions of the Civil Practice Act and the Supreme Court Rules.

A consideration of the constructive filing rule for papers mailed to a reviewing court (81 Ill. 2d R. 373) provides support for our conclusion that section 1.25 is inapplicable to papers filed in a trial court. The original Committee Comments accompanying Rule 373 indicate that it constitutes an exception to the rule of actual filing required in the case of notices of appeal or other papers filed in the trial court. (See Ill. Ann. Stat., ch. 110A, par. 373, Committee Comments, at 501 (Smith-Hurd 1976).) Rule 373 was designed to allow attorneys located at a distance from the reviewing court to file papers within the appropriate time period without having to ensure that the papers actually reach the court on time (Committee Comments). While it may be possible to justify a similar rule for papers filed in the trial court, we feel this is a matter more appropriately dealt with by means of Supreme Court Rule.

Finally, the difficulty of proof of mailing under section 1.25 leads us to reject its application to civil proceedings on policy grounds. Section 1.25(2) provides a special procedure by which time of mailing may be proved if a paper is mailed but not received by the State or political subdivision, or if it is received without a cancellation mark or with an illegible or erroneous cancellation mark. In such a case, the sender may

“[establish] by competent evidence that the writing or payment was deposited, properly addressed, in the United States mail on or before the date on which it was required or authorized to be filed or was due.” (Ill. Rev. Stat. 1979, ch. 1, par. 1026(2).)

In these situations, then, a factual finding would be necessary to determine when or whether a pleading had been “filed.” To require such an evidentiary hearing would, we feel, subject the court system to abuse by creating disorder and delay.

It is significant that Rule 373 (as amended effective February 1,1981) provides for no such procedure, but states only that:

“[p]roof of mailing shall be made by filing with the clerk a certificate of the attorney, or affidavit of a person other than the attorney, who deposited the paper in the mail, stating the date and place of mailing and the fact that proper postage was prepaid, or a United States Postal Service certificate of mailing.” (81 Ill. 2d R. 373.)

The Committee Comments accompanying the Rule as amended note that this provision was necessary to remedy the problem of legibility of postmarks for papers filed by mail with the reviewing court.

This relatively simple and efficient method of proof serves to highlight the inappropriateness of the section 1.25 procedure for papers filed in a trial court. For this reason and those stated above, we hold that section 1.25 is inapplicable to abrogate the common law rule of actual filing for papers filed in the trial court by mail.

Pursuant to this holding, we affirm the trial court’s order in Couch denying defendant’s motion to vacate summary judgment. Because a trial court’s jurisdiction over a cause terminates upon passage of 30 days after entry of a final order (see Weilmuenster v. H.H. Hall Construction Co. (1979), 72 Ill. App. 3d 101, 390 N.E.2d 579), the court in Couch had no jurisdiction to consider defendant’s motion filed more than 30 days after final judgment.

Likewise, this court’s jurisdiction over the appeal in Newell depends upon the filing of a notice of appeal in the trial court within 30 days after entry of judgment or entry of an order disposing of a post-trial motion. (73 Ill. 2d R. 303(a).) It has been consistently held that the timely filing of a notice of appeal is “mandatory and jurisdictional.” (Portock v. Freeman (1977), 53 Ill. App. 3d 1027, 369 N.E.2d 201; Norris v. Board of Fire & Police Commissioners (1975), 30 Ill. App. 3d 224, 332 N.E.2d 553.) We have found section 1.25 to be inapplicable to modify the mandatory language of Rule 303(a). (Cf. Schneider v. Vine Street Clinic (1979), 77 Ill. App. 3d 946, 397 N.E.2d 194, where the court declined jurisdiction of an appeal filed by mailing notice of appeal which was not received until 33 days after judgment.) Defendant’s notice of appeal filed in the trial court more than 30 days after final judgment is insufficient to vest this court with jurisdiction, and we accordingly dismiss the appeal for lack of jurisdiction pursuant to Supreme Court Rule 303(a) (73 Ill. 2d R. 303(a)).

Judgment in No. 81—32 affirmed.

Appeal in No. 81—182 dismissed.

KASSERMAN and HARRISON, JJ., concur.

       Section 1.25 was added to “An Act to revise the law in relation to the construction of statutes” by Public Act 76-1111, effective August 28,1969, as paragraph 1.25 of chapter 131 of the Illinois Revised Statutes. In 1979, it was renumbered and transferred to chapter 1 as paragraph 1026.


author: PRESIDING JUSTICE GREEN

text:
    GARY T. HAYES, Petitioner-Appellee, v. BOARD OF EDUCATION OF AUBURN COMMUNITY UNIT SCHOOL DISTRICT, Respondent-Appellant.
    Fourth District
    No. 17037
    Opinion filed December 18, 1981.
    Modified on denial of rehearing March 1, 1982.
    Richard A. Hollis, of Springfield, for appellant.
    Drach, Terrell & Deffenbaugh, P. C., of Springfield, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

We confront here troublesome problems arising in the application of the tenure provisions of section 24—12 of The School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24—12) when, as is increasingly the case, a school district reduces its teaching staff because of declining enrollments. At issue is the meaning of that portion of section 24—12 which requires the district to “remove or dismiss” téachers of lower seniority before dismissing a tenured teacher of higher seniority “who is legally qualified to hold a position” currently held by a teacher of less seniority.

On August 18, 1980, petitioner Gary T. Hayes, a tenured teacher in the employment of respondent, Board of Education of Auburn Community Unit School District No. 10 of Sangamon County (Board of Education), filed suit in the circuit court of Sangamon County seeking a writ of mandamus compelling respondent to assign him to a full-time schedule of courses which he was qualified to teach. The petition alleged petitioner had been employed as a full-time tenured teacher for the 1979-80 school year but had been reduced to part-time teaching for the 1980-81 school year, while teachers of less seniority were assigned to teach courses he was qualified to teach. After a bench trial, the court entered an order on February 10, 1981, directing the writ to issue. The order did not set forth which courses petitioner was qualified to teach. We affirm.

The facts involved were largely undisputed. During the 1976-77 school year, petitioner was a full-time high school industrial arts teacher for the district. He asked to be assigned to teach driver’s education for the 1977-78 school year and was given an assignment for that year which included mostly those courses. A substantially similar assignment continued through the 1979-80 year when he taught driver’s education for five hours one semester and for four the other, and taught leathermaking one hour each semester. He was also assigned two study halls and a preparation period each semester. During March of 1980, respondent decided to reduce its teaching staff and to eliminate some classes. It decided to eliminate the position of a full-time driver’s education teacher. Action was commenced to discharge petitioner, but pursuant to his rights under section 24—12, he elected to take the assignment of an industrial arts teacher of less seniority who had been teaching that course on a full-time basis. Because of lessened demand, respondent then reduced the offering of industrial arts courses to the point that petitioner’s employment was reduced to a 5/8-time workload. In further planning for the 1980-81 year, a Mr. Cerveny who had been teaching health courses exclusively was assigned to teach those driver’s education courses which remained in the curriculum. In addition, he was assigned to a reduced number of health classes. The assignment was apparently made for administrative convenience. Under the plan, students taking driver’s training from Mr. Cerveny one semester could take driver’s education courses from him the other semester.

Defendant demanded a full-time assignment which was denied. The instant litigation followed.

The pertinent parts of section 24—12 state:

“If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service * * * in all such cases the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has entered upon contractual continued service and who is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service. As between teachers who have entered upon contractual continued service, the teacher or teachers with the shorter length of continuing service with the district shall be dismissed first 0 * (Emphasis added.) Ill. Rev. Stat. 1979, ch. 122, par. 24—12.

The parties do not dispute that the last quoted sentence prohibits the dismissal of a tenured teacher qualified “to hold a position” then held by a tenured teacher of less seniority.

The heart of petitioner’s claim is that when a tenured teacher is discharged or assigned to less than full-time employment, and other teachers of less seniority are teaching classes the senior teacher is qualified to teach, section 24—12 requires a public school district to assign a sufficient number of those classes to the senior teacher to enable him to remain in full-time employment if he so desires. Respondent notes that section 24—12 refers only to the senior teacher taking the “position” of the junior teacher if qualified to do so. Respondent maintains the word “position” means the total course assignment of the teacher to be replaced, and that, accordingly, the senior teacher must be qualified to teach the entire caseload of the teacher whose “position” is to be taken.

The difference in the parties’ interpretation is illustrated by their positions concerning petitioner’s proposed solution to his problem. He had seniority over Mr. Cerveny and claims one way his rights under section 24—12 could have been satisfied would have been for him to have retained sufficient driver’s education classes for him to have had a full schedule. However, petitioner was not qualified to teach health, and for that reason respondent maintains he was not entitled to the position assigned to Cerveny,

We find no indication the question has ever been considered by a court of review in this State. In struggling with the question, the parties have cited several cases.- In People ex rel. Brown v. Board of Education (1978), 66 Ill. App. 3d 169, 383 N.E.2d 711, a tenured teacher had been improperly dismissed. The court held that upon her return to the faculty of the district, it was not required to assign her to the courses she formerly taught but could assign her to any courses she was qualified to teach. The court relied upon the provision of section 24—11 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24—11) authorizing the district to transfer a tenured teacher to “a position which the teacher is qualified to fill * * In Herbach v. Board of Education (1981), 94 Ill. App. 3d 889, 894, 419 N.E.2d 456, 460, the rule was pronounced that, in making staff reductions, a school district was not required to rearrange the schedule of other teachers “to create a position” which a senior tenured teacher would be qualified to hold. In Caviness v. Board of Education (1978), 59 Ill. App. 3d 28, 30, 375 N.E.2d 157, 158, we determined that a reduction of the assignments of a tenured teacher to a less than full-time schedule amounted to a dismissal within the meaning of section 24—12 and entitled her to replace one of two nontenured teachers in “full-time positions for which [she] was qualified.”

We cannot accept petitioner’s contention that a tenured teacher to be discharged has a right to be assigned to portions of another’s teaching assignment rather than to a “position” held by a teacher with less seniority. In the context used in section 24—12, the word “position” has been defined as follows:

“(2) The group of tasks and responsibilities making up the duties of an employee.” (Webster’s Third New International Dictionary 1769 (1961).
“1. A post of employment; office; job.” (Webster’s New World Dictionary 1111 (2d ed. 1972).)

The term “position” refers to the totality of a job and not to part of it. Had the legislature intended for the tenured teachers’ rights to have extended to a portion of the teaching assignment of another, the legislature would have so stated. The interpretation of section 24—12 in the manner requested by petitioner could create much of the difficulty that could have resulted in Herbach had the other teachers’ assignments been required to be readjusted to accommodate a tenured teacher. A chain reaction would likely start with senior teachers in turn preempting portions of the teaching assignments of those with less seniority.

Despite our unwillingness to accept petitioner’s interpretation of section 24—12, we are impressed with the following statement:

“The statutory term ‘position’ becomes complicated because of the practice of self-contained classrooms for some grades, and departmentalization to some extent in the middle grades, and subject matter segregation for majors and minors in high school. School districts may exercise wide latitude and autonomy in determining which grades will be clustered and which subjects will be grouped under one teacher and which departmentalized. The courts cannot allow school boards, whether in good or bad faith, to rearrange teaching assignments (positions) in ways which defeat the rights of tenured teachers and circumvent the purpose and spirit of the tenure laws.” Hagopian v. Board of Education (1978), 56 Ill. App. 3d 940, 944, 372 N.E.2d 990, 994.

We conclude that section 24—12 prohibits a bad faith alignment of teaching assignments to avoid the existence of a “position” which could be filled by a tenured teacher for whom dismissal was sought. Such conduct by a school district would entitle the teacher to retention. Bad faith was not shown here. However, we also agree with the statement in Hagopian that teaching assignments made in good faith may also be improper. That was done here. The proceedings to dismiss petitioner, his request to teach industrial arts, the district’s decision to reduce the offering of classes in that subject, and the decision to combine the driver’s education and health classes within the assignment of Cerveny, were all part of the planning for the 1979-80 school year. At the time petitioner’s teaching employment was reduced to part-time, no “position” existed in which a teacher taught the health and driver’s education courses. Evidence was presented that respondent had originally planned to eliminate driver’s education but upon being advised certain State funds would be lost thereby, decided to offer some courses in that subject. As petitioner had held the position to which those courses had been assigned, no longer had a full assignment and could have taught all of those classes in addition to his present assignment, we deem him to have been entitled under section 24—12 to have been assigned to those classes. As happened, the good faith rearrangement of assignments by respondent operated to “circumvent the purpose and spirit of the tenure laws.”

Petitioner’s right to teach the driver’s training course was sufficient, of itself, to justify the issuance of the writ of mandamus.

Petitioner also maintained he was qualified to and had a right to teach welding and electricity taught by teachers of less tenure. A substantial question was presented as to his qualifications and because the problem with reference to his qualification to a “position” involving the teaching of those subjects is in a different posture than that covering his right to teach driver education, we choose not to pass upon that question. As the alignment of teaching assignments in the district are not likely to be the same upon our decision becoming effective, we do not deem a decision necessary.

For the reasons stated the order for issuance of the writ of mandamus is affirmed.

Affirmed.

TRAPP and MILLS, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS LEE BAILEY, Defendant-Appellant.
    Fourth District
    No. 17129
    Opinion filed January 29, 1982.
    Modified on denial of rehearing March 5, 1982.
    Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, and Sam Kalen, law student, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Defendant, Curtis Lee Bailey, was charged with burglary and theft not exceeding $150. After a bench trial in the circuit court of Sangamon County, he was found guilty of both offenses. Defendant was sentenced to two years’ probation for the former offense, with a condition that he serve six months in prison, and to a three-month consecutive sentence for the latter offense. Defendant has appealed only from his conviction and sentence for burglary.

On March 21, 1980, Brenda Williams left her home at approximately 9 p.m. When she returned between 1 and 1:30 a.m., she found her door open and a knife on her third step. Upon searching her home, she found that two televisions were missing.

On March 22, 1980, Special Agent Jack Johnson was working in an undercover capacity at “Operation JJ,” a secondhand store established for the purpose of obtaining stolen property. Agent Johnson testified that defendant came into the store at approximately 1:20 p.m. and identified himself as “James.” Accompanied by a companion, who may have carried one television, defendant offered two sets for sale. Agent Johnson testified that when asked if the televisions were stolen, defendant replied that they “may be warm but he did not know.” The parties agreed upon a price of $30, and the sale was consummated. The entire transaction was videotaped, and, at trial, Williams identified the two televisions as those removed from her home.

Defendant testified that he had never entered Williams’ home and had not been in the store on March 22,1980. On cross-examination, he was asked about an alleged conversation he had with Agent Johnson and another officer on October 24,1980. Defendant did not recall the conversation.

In rebuttal, Agent Johnson testified that on the date in question, after advising defendant of his Miranda rights, he had asked where defendant had obtained the television sets. After defendant said that he did not know what the agent was talking about, Agent Johnson explained that the transaction had been videotaped, and that Williams had reported the sets stolen. Defendant then stated that Williams had given him the televisions and asked that he sell them for her.

The first of the two issues defendant raises is whether his guilt of burglary was established beyond a reasonable doubt. Defendant contends that the People presented no evidence corroborating his perpetration of the crime. Such corroborating evidence is necessary under County Court v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213, and People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.

Sufficient corroboration of participation in a burglary is presented when a defendant presents an explanation of possession which a jury reasonably finds to be false. (Housby.) After defendant testified that he was not the individual who had been videotaped on March 22, 1980, and that he had never- entered the home of Brenda Williams, Agent Johnson repeated defendant’s earlier explanation that Williams had given him the televisions to sell. Under these circumstances, we find the trial court could easily have found defendant’s explanation of possession to be false. Sufficient corroborating evidence having thus been presented, the challenge to the sufficiency of the evidence must fall.

The second issue presented by defendant is whether it was reversible error for the trial court to admit the rebuttal evidence of his prior explanation of possession. Defendant contends the People’s failure to disclose the statement during discovery rendered it inadmissible.

Supreme Court Rule 412(a) (ii) (Ill. Rev. Stat. 1979, ch. 110A, par. 412(a) (ii)) requires the People to disclose the substance of any oral statement made by a defendant, as well as a list of witnesses to the making and acknowledgment of such statements. The purpose of this rule is to afford an accused protection against surprise, unfairness, and inadequate preparation (People v. Ingram (1980), 91 Ill. App. 3d 1074, 415 N.E.2d 569; People v. Kradenych (1980), 83 Ill. App. 3d 547, 404 N.E.2d 488, appeal denied (1980), 81 Ill. 2d 596; People v. Miles (1980), 82 Ill. App. 3d 922, 403 N.E.2d 587), as well as to eliminate the tactical advantage of surprise (People v. Caliendo (1980), 84 Ill. App. 3d 987, 405 N.E.2d 1133, appeal denied (1980), 81 Ill. 2d 594; People v. Rayford (1976), 43 Ill. App. 3d 283, 356 N.E.2d 1274, appeal denied (1977), 65 Ill. 2d 579; cf. People v. Mahdi (1980), 89 Ill. App. 3d 947, 412 N.E.2d 669; supreme court rule 413 (73 Ill. 2d R. 413)). Noncompliance with the rule is excused only if the prosecutor was unaware of the existence of the statement prior to trial and could not have become aware of it in the exercise of due diligence. (Ingram; Kradenych; Miles.) Disclosure of a statement immediately before trial (People v. Young (1978), 59 Ill. App. 3d 254, 375 N.E.2d 442) or the day before trial (Ingram) can be considered a lack of diligence.

In the case at bar, the statement was made to the People’s principal witness almost three months before trial; however, it was never disclosed during discovery. The morning of trial, in an apparently casual conversation, the prosecuting attorney mentioned the statement for the first time. No indication was made that the People intended to introduce the statement, and defense counsel may have assumed they would not for failure to comply with the discovery rule. At trial, the prosecutor claimed he had only become aware of the statement that morning, but it is no excuse to say the police did not advise the People of the statement. (Young.) Such an omission must be chargeable to the People. (Miles.) While we shall not speculate as to why the statement was withheld, such action was clearly prejudicial to defendant as it provided the necessary corroboration for his burglary conviction. Considering this impact and the fact the statement was known to Agent Johnson for almost three months before trial, indicating at least a lack of due diligence on the part of the People, we find the trial court abused its discretion in admitting it. In so holding, we express no opinion on the statement’s admissibility in another proceeding.

Accordingly, the judgments of conviction for burglary and theft entered by the circuit court of Sangamon County are reversed and remanded with directions defendant be granted a new trial.

Reversed and remanded.

ALLOY and BARRY, JJ., concur.


author: JUSTICE WEBBER

text:
      In re ESTATE OF LILLIAN BROWNELL LYNCH, Deceased.—(VIRGINIA LUCILE MISSAVAGE et al., Plaintiffs-Appellants, v. MONMOUTH TRUST AND SAVINGS BANK, Ex’r of the Estate of Lillian Brownell Lynch, DefendantAppellee.)
    Third District
    No. 81-274
    Opinion filed January 29, 1982.
    Robert L. Ellison, of Klockau, McCarthy, Lousberg, Ellison & Rinden, of Rock Island, for appellants.

      Richard L. Whitman, Sr., of Kritzer, Stansell, Critser & Whitman, of Monmouth, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal lies from orders of the circuit court of Warren County, which admitted to probate and afterwards confirmed admission of the will of Lillian Brownell Lynch. Plaintiff, Virginia Missavage, is a pretermitted heir of the testator and plaintiff, David Missavage, is one of her children, likewise pretermitted in a distribution to certain ones, but not all, of the testator’s grandchildren. Defendant is the corporate executor nominated in the will.

The testator died on October 30, 1980, and on October 31, 1980, a daughter, Mary Lemoine, who together with her children received the bulk of the estate under the will, filed a petition to probate the instrument dated February 4, 1980.

On the same day, October 31, 1980, the trial court took testimony regarding heirs left by the testator and found plaintiff Virginia Missavage and Mary Lemoine, her daughters, to be her sole heirs. The court also considered the affidavits of the subscribing witnesses and admitted the will to probate.

On November 3, 1980, notice of such admission was sent to all interested parties and on December 12, 1980, plaintiffs filed a petition for formal proof of the will pursuant to section 6—21 of the Probate Act (Ill. Rev. Stat. 1979, ch. 1101/2, par. 6—21). A hearing on the petition was held on May 6, 1981, and the trial court, after hearing the testimony offered, confirmed the order of October 31, 1980, which admitted the will to probate. It is from this order that plaintiffs appeal.

Plaintiffs, as their sole issue, raise the sufficiency of the evidence. However, the defendants have raised another issue which must be dealt with first, namely, the appealability of the order in question.

It has been generally accepted that an order admitting a will to probate is not a final order within the meaning of Supreme Court Rules 301 and 303(a) (73 Ill. 2d Rules 301, 303(a)), since the probate process represents a continuum of proceedings and an order of admission normally is among the first to be entered. However, most of the case law on the subject did not deal with it directly since some other action had intervened, generally to contest the will itself. For example, In re Estate of Kvasauskas (1972), 5 Ill. App. 3d 202, 282 N.E.2d 465; In re Estate of Ariola (1979), 69 Ill. App. 3d 158, 386 N.E.2d 862 (which included a summary judgment problem); Sternberg v. St. Louis Union Trust Co. (1946), 394 Ill. 452, 68 N.E.2d 892.

All of these cases, and others, laid down by way of dictum that an order admitting a will to probate was not a final order. In view of the fact that those courts were dealing with will contests, not admission orders, the statement may be taken as true but not necessary to the decision. The significance is that will contests by their nature include the same issues as are present in an admission proceeding, but the reverse is not likewise true. The admission proceeding is limited to a determination as to whether a prima facie showing of compliance with the statutory requirements set forth in section 6—4 of the Probate Act (Ill. Rev. Stat. 1979, ch. 1101/2, par. 6—4) has been made. In re Estate of Ketter (1978), 63 Ill. App. 3d 796, 380 N.E.2d 385.

The inquiry then must separate the question of finality from the question of appealability. Assuming that an admission order is not final, can it nonetheless be appealable? Supreme Court Rule 304(b)(1) (73 Ill. 2d R. 304(b)(1)) appears to make it so. That rule states in pertinent part:

“(b) Judgments and Orders Appealable Without Special Finding. The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:
(1) A judgment or order entered in the administration of an estate, guardianship, conservatorship, or similar proceeding which finally determines a right or status of a party.”

The Committee Comments (revised October 1969) to this Rule state in pertinent part:

“Subparagraph (1) applies to orders that are final in character although entered in comprehensive proceedings that include other matters. Examples are an order admitting or refusing to admit a will to probate, appointing or removing an executor, or allowing or disallowing a claim.” Ill. Ann. Stat., ch. 110A, par. 304, at 347 (Smith-Hurd Supp. 1981-1982).

In a number of decisions both the supreme and appellate courts of this State have considered orders admitting wills to probate on the merits. (In re Estate of Millsap (1979), 75 Ill. 2d 247, 388 N.E.2d 374; In re Estate of Marcucci (1973), 54 Ill. 2d 266, 296 N.E.2d 849; In re Estate of Netherton (1978), 62 Ill. App. 3d 55, 378 N.E.2d 800.) In none of these cases did the court hold that the order was not appealable.

Some doubt was cast upon the matter by the decision in In re Estate of Martino (1979), 72 Ill. App. 3d 867, 391 N.E.2d 412, wherein the appellate court held that an order admitting a lost will to probate was not appealable under Supreme Court Rule 304(b)(1). This decision was the subject of a lengthy comment in 68 Ill. B.J. 97 (1979). We believe that the statement was by way of dictum since a will contest under section 8—1 of the Probate Act (Ill. Rev. Stat. 1979, ch. 11052, par. 8—1) was underway at the time the notice of appeal from the admission order was filed. The court held that the will contest rendered moot the questions raised under the appeal of the admission order since the same issues would be litigated in that proceeding. It is true that the admission of a will to probate is not res judicata on issues raised in a will contest. (In re Estate of Carr (1970), 126 Ill. App. 2d 461, 262 N.E.2d 54.) Doubtless it was this aspect that led the Martino court to declare that the appeal from the admission order was moot. However, it does not follow that the order is unappealable.

If no contest proceeding had been filed, or if, as in the instant case, the 6-month limitation period for filing such a contest under section 8—1 has expired, there would be no remedy. It should be noted in this connection that a petition for formal proof under section 6—21 does not toll the limitation under section 8—1.

Obviously, the end result of a successful reversal of an admission order or of a successful will contest is the same, but the procedures and the quantum of proof are quite different in the two types of litigation. An admission proceeding only establishes that the statutory requirements of section 6—4 have been met and a prima facie showing of validity has been made. (Marcucci.) The purpose of a contest is to give the contestant a full opportunity, after admission, thoroughly to investigate all the circumstances affecting the validity of the instrument. (Sternberg; Carr.) If the opponent to admission believes that his better case is in that posture, he should not be forced into the position of a contestant. However, he should not be permitted, in the interests of judicial economy, to pursue both remedies simultaneously. In this sense, the Martino court was entirely correct, and the proper procedure in the event of a contest filed subsequently to a notice of appeal from an admission order would be a motion to dismiss in the reviewing court. The contest renders the appeal moot but does not enervate its original viability.

We hold that an order admitting a will to probate is appealable under Supreme Court Rule 304(b)(1).

One further comment concerning Martino is in order. That case, relying upon Ketter and Sternberg, held that once a will contest has been instituted, the order of admission has no further force and effect. We cannot agree. At a minimum, section 8—1(e) of the Probate Act (Ill. Rev. Stat. 1979, ch. 1101/2, par. 8—1(e)) requires the personal representative to defend a will contest. If his letters are of no force and effect, this would be impossible. Such an anomalous result could not have been intended by the legislature. Furthermore, if the administration of the estate were to grind to a halt during the contest proceedings, rents, dividends, interest, and other income items would remain uncollected and unaccounted for, depreciating assets could not be disposed of, debts could not be investigated and either resisted or paid, and the entire estate could become subject to waste. One of the purposes of the Probate Act is to expedite administration of the estate while permitting those who wish to question the validity of the will an adequate opportunity to do so. (Carr.) The same may be said of the pendency of an appeal from an admission order. Of course, if the opponent of admission is successful on appeal, or if the contestant is ultimately successful in his litigation, the power of the personal representative will be at an end upon making a proper accounting to his successor; but until such time, the admission order must necessarily stand.

We turn next to plaintiffs’ principal contention that the admission order was against the manifest weight of the evidence. As in all cases disputing the evidentiary record, the decision of the trial court is entitled to great deference. We find no basis here for disturbing its findings.

Much of the testimony taken at the formal proof hearing under section 6—21 of May 6,1981, would be more appropriate to a will contest. That section of the Probate Act requires oral testimony and forbids reliance upon an attestation clause or upon affidavits, but does not alter the three elements to be established under section 6—4(a).

Plaintiffs contend that the testator was of advanced age and poor eyesight and therefore could not observe the attestation of the witnesses. They rely on Quirk v. Pierson (1919), 287 Ill. 176, 122 N.E. 518, but the factual situation there was much different. In Quirk, the testator signed in the presence of the witnesses who then took the instrument into an adjoining room for signature. There was no evidence that the testator, who was bedridden, could see the signing. In the instant case, both attesting witnesses testified that all signatures were affixed in the presence of the testator and of each other. The essential thing is that the testator must have the opportunity of personal knowledge from his own vision and his actual position. It is not sufficient that he merely deduce from the circumstances what is happening. {Quirk.) Here all of the proof was that all persons were in the actual presence of each other at the time of signing and knew the purpose therefor. Even with her failing vision, there would be no necessity for the testator to deduce what was happening.

Plaintiffs also contend that the testator did not understand that the document was her will. Initially we note that there is no such requirement under section 6—4(a), but even so, there was testimony from one of the witnesses that she understood the nature of the document and used the word “will” with reference to it. There was further proof that the attending attorney read the instrument to the testator. There was no further proof of serious mental impairment, so it must follow that the testator knew what she was signing.

All of the three attesting witnesses testified that they believed the testator to be of sound mind and memory. One of them indicated some mild impairment in the past while the testator was reminiscing about childhood incidents. Nonetheless, all three (section 6—4(a) requires only two) testified specifically as to their beliefs that she was of sound mind. These witnesses had been associated with the testator over a long period of time.

An order admitting a will to probate will be set aside only on clear and satisfactory proof of some incapacity in the testator. (Pepe v. Caputo (1951), 408 Ill. 321, 97 N.E.2d 260.) Such has not been shown here.

The orders of the circuit court of Warren County are affirmed.

Affirmed.

GREEN, P. J., and LONDRIGAN, J., concur.


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    DARRELL PIERCE et al., Plaintiffs-Appellants, v. DR. D. DeGRACIA, Defendant-Appellee.
    Third District
    No. 81-360
    Opinion filed February 10, 1982.
    James N. DeWulf, of Moline, for appellants.
    Lyle W. Allen and David R. Sinn, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiffs, Darrell Pierce and Susan Pierce, filed suit against defendant, Dr. D. DeGracia, alleging breach of contract and negligence in the physician’s failure to properly perform a vasectomy on Darrell Pierce. The circuit court of Henry County dismissed certain allegations from the complaint, including those which sought damages for the expense of rearing the plaintiffs’ child born as a result of the failed vasectomy.

The plaintiffs made a mutual decision to limit the size of their family to two children. In order to effectuate their decision they agreed that the husband would have a vasectomy.

On February 4, 1977, the defendant performed a vasectomy on Darrell Pierce. Thereafter, five sperm tests were evaluated by the defendant, and in December of 1977 the defendant advised the plaintiffs that the vasectomy had been successful. On October 7,1979, a healthy male child was born to the plaintiffs.

The plaintiffs filed this action against the defendant for breach of contract and for medical negligence, requesting damages for the expenses incurred in the birth of the child, for the expense of subsequent tubal ligation performed on Susan Pierce, for the costs of raising the child to majority, for the spreading of the plaintiffs’ society, care, protection and support over a larger family group, for the loss of consortium while Susan Pierce carried the child, and for the loss of earnings by Susan Pierce during her pregnancy. In addition, the plaintiffs sought punitive damages for the wilful and/or reckless conduct of the defendant.

A motion to dismiss was filed by the defendant and on June 8, 1981, the trial court dismissed all allegations in the complaint which sought punitive damages, damages for the expenses relating to the subsequent tubal ligation, damages for the expense of raising the child to majority, and damages relating to spreading plaintiffs’ society, care, protection and support over a larger family group.

Leave to appeal was granted pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308).

The issue which has been raised for our review is whether the parents of a healthy child born subsequent to an unsuccessful sterilization operation may recover damages for the expense of rearing that child to majority.

The recent case of Cockrum v. Baumgartner (1981), 99 Ill. App. 3d 271, 425 N.E.2d 968, dealt with this same issue. In Cockrum the defendant physician attempted to perform a vasectomy on plaintiff, Leon Cockrum. One month later Mr. Cockrum was given a sperm test and was told by the defendant that the operation had been a success. Six weeks following the test, plaintiff, Donna Cockrum, learned she was pregnant. The plaintiffs subsequently became the parents of a healthy male child.

The court, in an opinion authored by Justice Jiganti, held that damages should not be limited to pregnancy and birth-related costs but should include the full measure of damages proximately caused by the physician’s negligence. Therefore, all expenses in raising the unplanned child to majority could be recoverable.

The court found that the case before them was indistinguishable from an ordinary medical malpractice action and applied the standard of damages in tort which attempts to place the injured parties in the position they would have been had no wrong occurred. Myers v. Arnold (1980), 83 Ill. App. 3d 1, 403 N.E.2d 316.

The view that the birth of an unplanned yet healthy child is always a benefit outweighing all costs of raising the child was rejected by Cock-rum. The court stated that the rewards of parenthood should not be allowed in mitigation of the financial loss in raising a child, for such benefits do not affect the same interest which is harmed. The right of parents to control their reproductivity is a fundamental right, and neither the individuals involved nor society is harmed by the decision to limit family size.

Justice Linn, in a special concurring opinion, agreed that the parents of the unplanned child should be allowed to seek recompense for the costs of rearing that child to majority; however, he argued that the benefits derived from the parent-child relationship should not be ignored completely in weighing damages. Any potential benefits as a result of this relationship are factors the jury should be allowed to consider in assessing damages. Family size, family income, age of parents and marital status are all elements in the determination of potential benefits.

Justice Romiti, specially concurring, joined with Justice Linn to the extent of finding that the offsetting benefits of unplanned children should neither be excluded as a matter of law from the calculation of damages nor should they be held to automatically outweigh all damages.

We agree with the reasoning of Justices Linn and Romiti in the Cockrum case. Their analysis would apply whether contract or tort damages are at issue.

Certainly the costs of rearing an unplanned child to majority are damages which proximately flow from either the tort of medical negligence or the breach of contract by a physician who fails to properly perform a vasectomy. In assessing damages, the jury should be allowed to consider the potential benefits of the unplanned child which may accrue to the family interests. Parental age, marital status, family income, family size and the health of all family members are factors in this consideration. The possible benefits do not automatically offset all damages nor are they to be completely ignored by the jury.

The only issue presented for our review relates to damages for the costs of raising the child to majority, the plaintiffs having abandoned any claim of error regarding other elements of damages stricken by the trial court. For the foregoing reasons we reverse the judgment of the trial court which disallows the recovery of all costs relating to the rearing of the plaintiffs’ child to majority and remand this case for further proceedings consistent with the views expressed herein. In all other respects, the judgment of the trial court is affirmed.

Affirmed in part, reversed in part and remanded.

SCOTT, P. J., and ALLOY, J., concur.