author: JUSTICE KARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY HOLMAN, Defendant-Appellant.
    Fifth District
    No. 81—177
    Opinion filed May 24, 1983.

      James Hackett, of Edwardsville, and J. Ray Wood, of Benton, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and David J. Mullett, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Following a joint trial in the circuit court of Madison County, defendant Ricky Holman and Girvies Davis were convicted of the July 13, 1979, murder of Esther Sepmeyer. Davis was tried and sentenced by the court. Defendant was tried by a jury and was sentenced by the court to life imprisonment. Defendant appeals, contending that he was denied his statutory right to a speedy trial, that the trial should have been severed, that he was denied effective assistance of counsel and that the court should have inquired into his competency to stand trial. We affirm.

Esther Sepmeyer, 83, lived in a rural Madison County farmhouse with her grandson, Rodney Sepmeyer. When Mr. Sepmeyer returned from work on July 13 he found his grandmother lying up against her bed with a bullet wound on the right side of her face. The bedroom and kitchen were in disarray. A new Remington semi-automatic .22-caliber rifle had been taken from its case and a television, stereo turntable, lawn mower and radio were missing.

Investigation by police revealed that the bullet removed from Sepmeyer’s body was fired from a .22-caliber weapon. A lawn mower and radio, identified by relatives as belonging to Sepmeyer, were found in the home of Girvies Davis. Fingerprints taken from a mirror in Sepmeyer’s home and from the metal cabinet where the rifle was stored were matched to defendant.

Both defendant and Davis made statements to the police. The statements, which were consistent with the results of the investigation, revealed the approximate location of the farmhouse and identified the items stolen. Both statements related that Sepmeyer was shot with her own rifle. Davis admitted that he loaded the gun and claimed that defendant actually shot Sepmeyer while defendant claimed Davis was responsible for the shooting.

Defendant first argues that he was denied his statutory right to a speedy trial. The relevant portion of section 103 — 5(a) of the Code of Criminal Procedure of 1963 provides: “Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a).) Section 103 — 5(d) requires that defendant be discharged from custody if he is not tried in accordance with subsection (a). Ill. Rev. Stat. 1981, ch. 38, par. 103-5(d).

Defendant was charged by information on January 8, 1980. At that time he was being held in St. Clair County on several unrelated charges. Pursuant to a writ of habeas corpus ad prosequendum, defendant was brought to Madison County on January 18 for preliminary hearing and arraignment. Defendant was then returned to St. Clair County authorities and was eventually tried and convicted on three charges. The last charge pending in St. Clair was dismissed on November 18, 1980. Defendant’s Madison County trial commenced March 9,1981.

Defendant claims the statutory 120-day period began to run in January of 1980 when he was originally placed in the custody of Madison County authorities. As a result, the March 1981 trial date was well beyond the 120-day limit and the charges should have been dismissed. The State argues that the 120-day period began to run at the termination of all proceedings in St. Clair County on November 18, 1980.

We find no violation of defendant’s statutory right to a speedy trial. The question of when the 120-day period begins to run in cases where defendant is charged with unrelated crimes in two counties has been addressed by the courts. The court in People v. Clark (1968), 104 Ill. App. 2d 12, 244 N.E.2d 842, held that where defendant is in custody awaiting trial in one county and there is a charge pending against him in another county, he is not in custody for the latter offense until the proceedings against him in the first county are terminated and he is either returned to, or held in custody for, the second county.

Recently we have applied the rule in Clark to a case with circumstances very similar to those in the present case. In People v. Gardner (1982), 105 Ill. App. 3d 103, 433 N.E.2d 1318, defendant was arrested and held in Jackson County on a possessory weapon charge. During this time, a Williamson County arrest warrant was served on defendant, and he later appeared in Williamson County on those charges. He was returned to Jackson County where several months later the prosecution was concluded. We held that the 120-day period did not begin to run on the Williamson County charge until the termination of proceedings in Jackson County at which time defendant was held for Williamson County. (105 Ill. App. 3d 103, 112, 433 N.E.2d 1318, 1324.) The fact that defendant was temporarily brought to the noncustodial county for an appearance did riot commence the running of the 120-day period. People v. Gardner (1982), 105 Ill. App. 3d 103, 433 N.E.2d 1318; accord, People v. Hatch (1982), 110 Ill. App. 3d 531, 442 N.E.2d 655.

Defendant’s reliance on People v. Vaughn (1972), 4 Ill. App. 3d 51, 280 N.E.2d 253, and People v. Gray (1967), 83 Ill. App. 2d 262, 227 N.E.2d 159, is misplaced. In each of those cases, proceedings in the first custodial county had terminated and defendant was serving his sentence when arrest warrants were issued by a second county. Apparently as a matter of cooperation between county officials, the arrest warrants were not served on defendant but were held by prison officials for the second county until defendant was released from prison. The court in each case held that since defendant was subject to the jurisdiction of the second county, although incarcerated, the State had a duty to prosecute within 120 days of discovering defendant’s whereabouts and the issuance of the arrest warrant. In the present case, charges against defendant were still pending in the first county so that defendant was unavailable for prosecution in Madison County until termination of those proceedings. Thus, the 120-day period began to run on November 18, 1980, the day proceedings in St. Clair County were concluded and as a result, the State has complied with section 103 — 5(a). Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a).

Defendant also argues that the trial court erred in denying his motion to sever. Defendant relies on the fact that a confession by one codefendant which incriminates another is generally grounds for severance. The United States Supreme Court so held in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. Because of the substantial risk that the jury, despite instructions to the contrary, looks to the incriminating statement of a codefendant in determining guilt, the conviction of defendant where the statement is admitted must be reversed. (391 U.S. 123, 126, 20 L. Ed. 2d 476, 479, 88 S. Ct. 1620, 1622.) Defendant points to Davis’ statements which claimed defendant was responsible for shooting Sepmeyer. While defendant acknowledges that Davis’ statement was not admitted before the jury, he believes the court, by reading the entire statement, may have been prejudiced in making evidentiary rulings and in ruling on pretrial and post-trial motions.

We conclude that no Bruton problem arose in this case because the jury was unaware of Davis’ statement. Neither do we find any evidence of prejudice by the court. Defendant has failed to prove specifically how he was prejudiced or that the outcome of the trial would have differed if the causes were severed. Mere allegations of prejudice are insufficient. People v. Rhodes (1969), 41 Ill. 2d 494, 497, 244 N.E.2d 145, 147.

Defendant next contends he was denied effective assistance of counsel. He asks us to consider trial counsel’s failure to question his competency to make a voluntary confession and to stand trial and counsel’s failure to present a defense in his behalf.

In connection with an earlier, unrelated charge, defendant was examined by a court-appointed psychiatrist and was later referred to a psychologist for evaluation of possible neurological problems. Both doctors reported borderline mental retardation and there was evidence of neurological damage. The psychiatrist made a later evaluation based on the neurological tests and information from a children’s home in which defendant had been placed in 1976. It was the doctor’s opinion that although defendant was severely handicapped in intellectual ability, he was able to tell the difference between right and wrong.

Defendant argues that competent counsel would have demanded a competency hearing on the basis of the extremely low intelligence scores and the evidence of neurological problems. We disagree.

Although defendant tested in the borderline mentally retarded range, evidence of limited intellectual ability does not in itself make one incompetent to stand trial. (People v. Willis (1978), 64 Ill. App. 3d 737, 741, 381 N.E.2d 799, 803.) The psychiatrist did find that defendant had the capacity to exercise judgment, and our review of the record leads us to conclude that defendant understood the nature of the proceedings.

Neither are we persuaded by the claim that defendant’s counsel presented no defense. Although no witnesses testified for defendant, nor did defendant take the stand, counsel is not required to manufacture a defense where none exists. (People v. Elder (1979), 73 Ill. App. 3d 192, 203, 391 N.E.2d 403, 411.) Defendant does not suggest what more trial counsel could have done. We note that counsel consistently maintained in motions and in argument that defendant’s confession should be suppressed, that severance should have been allowed and that the fingerprint identification of defendant was questionable. Thorough cross-examination of the State’s witnesses was conducted. In light of the State’s evidence and these efforts by counsel, we find no error.

Finally, defendant believes the court had a duty to inquire into his competence to stand trial.

Whenever it becomes apparent during the proceedings that a bona fide doubt of defendant’s competence exists, it is the court’s duty to stop the proceedings and determine competency before continuing. (People v. Lewis (1979), 75 Ill. App. 3d 560, 565, 393 N.E.2d 1380, 1383-84.) However, we find nothing in the record to suggest that defendant was unable to understand the proceedings below and while the court may have reviewed the intellectual and neurological evaluation of defendant, we have already stated that low intelligence is not conclusive of incompetence. The trial court is in the best position to evaluate defendant’s behavior, and its decision in that regard will not be reversed on appeal absent an abuse of discretion. People v. Lewis (1979), 75 Ill. App. 3d 560, 565, 393 N.E.2d 1380, 1383-84.

For the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.

Affirmed.

HARRISON, P.J., and JONES, J., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ODELL HITE, Defendant-Appellant.
    Fifth District
    No. 81—536
    Opinion filed May 12, 1983.

      Randy E. Blue and Daniel M. Kirwan, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Stephen E. Norris and Mark A. LaRose, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Following a jury trial in the circuit court of St. Clair County, the defendant was convicted of armed robbery and was sentenced to 10 years’ imprisonment. He appeals from his conviction and presents a single assignment of error. He contends that the record does not show that he effectively waived counsel prior to his pro se trial in which he was assisted by the public defender.

On January 20, 1981, the defendant was charged with having committed an armed robbery the previous day, and, at that time, public defender James Donovan was appointed to represent him. Donovan appeared on the defendant’s behalf at his January 30, 1981, preliminary hearing. When the defendant was arraigned on March 20, 1981, however, he informed the court that he was represented by attorney Clyde Kuehn. On April 24, 1981, the court was apprised that Kuehn had withdrawn from the case. The public defender was again appointed.

The law firm of Martin, Bahn and Cervantes filed an entry of appearance in this case on April 29, 1981. This law firm filed various suppression and discovery motions in the defendant’s cause and represented him at an evidentiary hearing on one of those suppression motions. On July 15, attorney Mark Bahn filed a motion to withdraw as defense counsel, along with an affidavit explaining that this action was taken at the request of the defendant. The court granted this motion, and, for the third time, appointed public defender Donovan to represent the defendant. At that time, the court explained to the defendant that his trial was scheduled for July 27, 1981. The following exchange then took place:

“THE DEFENDANT: Your Honor, excuse me. Do I have to go with the Public Defender?
THE COURT: You sure do. You fooled around too much.
THE DEFENDANT: It’s not my fault, Your Honor. It’s the fault of the lawyer and I’m getting another attorney. I don’t want to go with the Public Defender.
THE COURT: If he can be ready by the 27th, he can help Mr. Donovan. Otherwise he’s the Public Defender.”

On July 27, the defendant appeared in court and requested that his case be continued. The court allowed him a continuance to August 24, but admonished him that there would be no further continuances “because of lawyer problems.”

The defendant’s case was called for trial on August 24, 1981. The court heard the defendant’s testimony in support of his request for a change of venue, and denied the motion. Action was taken on other motions, and then a recess was called. After that recess, the following discussion occurred between the court and the defendant:

“THE COURT: I understand that you want to try the case yourself.
THE DEFENDANT: My people say [sic] that they would get an attorney for me.
THE COURT: They told me that six weeks ago, or two months ago, I believe, but they didn’t do it. And so we are going to have to go today. So you have a right to try your case yourself, but he has to sit there as an advisor. If you want to make use of his services, that’s fine. If you want to ignore them, you’re fine. But you will be held to the same laws of evidence that a lawyer would be held to.
THE DEFENDANT: Yes, sir.
THE COURT: And in other words, it won’t be just a big argument in the court. I will expect you to conduct yourself just like a lawyer would, ask the same questions, because that’s why we have lawyers, to eliminate a lot of the confusion and things of that sort. But you have a right to do it if you wish, one is available, a good one, he is our Chief Public Defender.
THE DEFENDANT: I had a chance to get some information that my peoples [sic] had got an attorney. He is supposed to have been over here today.
THE COURT: He can come over today and start to trial today, if you like.
THE DEFENDANT: Yes, sir.
THE COURT: But it’s going today. ***”

The case was then tried, with the defendant, assisted by standby counsel Donovan, representing himself. The defendant delivered opening and closing arguments to the jury and conducted the direct and cross-examination of witnesses. However, the public defender offered advice to the defendant on numerous occasions, assisted in the selection of the jury, occasionally posed objections to testimony or exhibits, and also conducted the instruction conference for the defendant.

First, it should be made plain what the defendant is not arguing. He does not contend that the court should have allowed him to be represented by counsel other than the public defender, or that he should have been granted a continuance to permit him to seek the services of other counsel. Nor does he assert that he was not properly admonished pursuant to Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)), because he was so advised. His position is instead that he is entitled to a new trial because his remarks at trial in response to the court’s inquiry do not indicate an unequivocal rejection of counsel. The People reply that the court offered the defendant a choice between the services of the public defender and proceeding pro se with the advice of standby counsel, and his election of the second alternative was in effect a rejection of the first. They further argue that inasmuch as the defendant conducted his defense with the assistance of standby counsel, he did not in fact proceed pro se, and the record need not show an explicit waiver of counsel. Because we agree that the defendant did not waive counsel in this case, we need not consider whether the record shows that the defendant knowingly and understandingly rejected the representation of appointed counsel at trial. People v. Hessenauer (1970), 45 Ill. 2d 63, 256 N.E.2d 791.

A number of authorities in this State have held (People v. Nieves (1982), 92 Ill. 2d 452, 442 N.E.2d 228; People v. Dorsey (1982), 109 Ill. App. 3d 218, 440 N.E.2d 394; People v. Pittman (1979), 75 Ill. App. 3d 683, 394 N.E.2d 702; People v. McKinney (1978), 62 Ill. App. 3d 61, 378 N.E.2d 1125; People v. Lindsey (1974), 17 Ill. App. 3d 137, 308 N.E.2d 111) or noted in dicta (People v. Black (1979), 68 Ill. App. 3d 309, 385 N.E.2d 899; People v. Heath (1976), 35 Ill. App. 3d 880, 342 N.E.2d 452) that where a defendant proceeds to trial with the “technical assistance” of an attorney, he has not waived counsel. In such a situation, the defendant need not be given the full admonishments of Supreme Court Rule 401(a), nor need the record reflect an unequivocal waiver of counsel. (People v. Nieves; In re Boswell (1978), 62 Ill. App. 3d 1033, 379 N.E.2d 658.) The reason for these decisions is that a defendant who seeks to conduct his own defense with the advice of counsel partakes of the freedom of defending himself in addition to the expertise of an advisor with legal training. A defendant who wishes to act pro se desires to stand alone, but this does not occur if a lawyer assists him at trial. In this instance, a defendant receiving such legal advice should not be heard to complain on appeal of improprieties pertaining to admonishments about proceeding pro se or of deficiencies apparent of record relating to a waiver of legal assistance.

Other decisions have held that, in certain circumstances, defendants who have conducted their own defenses with a court-appointed lawyer acting as standby counsel were entitled to a new trial where the record failed to show compliance with Supreme Court Rule 401(a). (People v. Derra (1981), 92 Ill. App. 3d 1106, 416 N.E.2d 688; People v. Brown (1980), 80 Ill. App. 3d 616, 399 N.E.2d 1374.) But in these cases, the participation of the public defender was minimal. In Derra, the court described appointed counsel as “virtually silent,” engaging in only one brief discussion of record with the defendant, while in Brown, the public defender initiated no action in the defendants’ case until he moved for a mistrial following the State’s case in chief. The conscientious assistance furnished the defendant by public defender Donovan at all stages of this trial stands in contrast to the services of standby counsel in Derra and Brown.

In the case at bar, then, the defendant cannot be considered as having waived counsel, and is thus not entitled to assert as error that the record is ambiguous concerning a waiver of counsel. The actions of the public defender secured a fair trial for the defendant, and accordingly we affirm the judgment of the circuit court of St. Clair County.

Affirmed.

JONES and EARNS, JJ., concur.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD MATZKER, Defendant-Appellant.
    Fifth District
    No. 81—614
    Opinion filed May 11, 1983.

      Randy E. Blue and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William A. Schuwerk, State’s Attorney, of Chester (Stephen E. Norris and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The record in the instant appeal indicates that defendant, a resident of the honor farm at Menard Correctional Center, walked away with two other residents on August 10, 1980. A memorandum from Ron Umbdenstock, captain in charge of internal affairs at Menard, to Jim Buch, assistant warden, recited that defendant was apprehended in St. Louis, Missouri, on March 11, 1981, and was held in the St. Louis County jail on a fugitive warrant until April 1, 1981, when he was released on bond; the St. Louis court received the Missouri governor’s extradition warrant on May 21, 1981; when defendant appeared before that court on May 28, 1981, he was arrested and jailed; and defendant was returned to Menard on June 11, 1981, upon his release from a hospital.

Subsequently, defendant was convicted of escape and sentenced to 12 years’ imprisonment, to be served consecutively to the term defendant was serving for burglary when he escaped. The trial court refused to credit defendant upon the escape sentence for time served in St. Louis County, stating that defendant was entitled to no credit because all of his custody in St. Louis County was a result of the burglary conviction. Defendant appeals, contending that he was entitled to credit for time served in St. Louis County prior to his return to Illinois.

Defendant relies on the plain language of the credit-for-time-served statute, which provides that the offender shall be given credit for “time spent in custody as a result of the offense for which the sentence was imposed.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 7(b).) However, section 5 — 8—4(g) of the Unified Code of Corrections provides that a sentence for escape “shall be served consecutive to the terms under which the offender is held by the Department of Corrections.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(g).) In the instant case, defendant was returned to Menard to complete his burglary sentence, which he was serving when he escaped. If defendant were to be given credit against his escape sentence for the time he served in Missouri, he would, in effect, be serving part of his escape sentence prior to completion of his burglary sentence, rather than consecutively to it as required by section 5 — 8—4(g). It appears, therefore, that section 5 — 8—7(b) and section 5 — 8—4(g) cannot both apply to the instant facts.

Since it may be argued that both sections apply to the instant facts and our legislature’s intent as to which section should apply is not readily apparent from the express language of those sections, we turn to the maxims of statutory construction. One well-established principle is that a specific statutory provision controls as against the general provision on the same subject. (People ex rel. Siekmann v. Pennsylvania R.R. Co. (1944), 385 Ill. 350, 356, 52 N.E.2d 796, 798-99.) Since section 5 — 8—7(b) applies to any offense, while section 5 — 8—4(g) applies only to the offense of escape, we conclude that section 5 — 8—4(g) rather than section 5 — 8—7(b) applies to the facts of this case. Therefore, the trial court did not err in denying credit against defendant’s escape sentence for the time defendant was incarcerated in St. Louis County.

We find our conclusion in this regard to be in accord with authority in those jurisdictions with statutes similar to ours on the subjects of credit for time served and consecutive sentencing for escape. In People v. Bachman (1973), 50 Mich. App. 682, 213 N.W.2d 800, the court concluded that the Michigan statute which provided that a sentence for escape not commence until the sentence pending at the time of the escape was completed constituted an exception to Michigan’s statute requiring credit to be given for time served for all offenses. In Gasque v. State (1980), 45 Md. App. 471, 413 A.2d 1351, the court relied upon Bachman in reasoning that the Maryland escape consecutive-sentencing statute controlled the Maryland credit-for-time-served statute. In Danforth v. State (Fla. App. 1975), 316 So. 2d 304, also relied upon by the Gasque court, the court held that the Florida consecutive-sentencing statute for the offense of escape constituted an overriding exception to the Florida credit-for-time-served statute.

We note parenthetically that our analysis of the instant issue is not dependent upon whether defendant’s Missouri arrest was nominally for escape. The Missouri governor’s warrant does not appear of record; however, the record does include copies of an information filed August 18, 1980, in the circuit court of Randolph County, Illinois, and an Illinois arrest warrant, issued August 28, 1980. Both recite a charge of escape against defendant. Based on those documents, we assume without deciding that the fugitive warrant also was based on the charge of escape. Regardless of the wording of the extradition warrant, it does not affect our conclusion that the legislature did not intend that a defendant be given credit on his consecutive sentence for escape where a prior sentence being served at the time of the escape has not been completed.

Defendant suggests that it is somehow significant that the State failed to show that defendant had been credited, against his burglary sentence, for the time served in St. Louis County. Assuming that defendant should have received credit against his burglary sentence, we do not perceive the record’s silence on the subject as requiring the presumption that defendant received no credit on the burglary sentence. In any event, it was defendant’s escape conviction and sentence, not computation of the burglary sentence, which was before the trial court and is now before this court.

Next, defendant contends that the 12-year sentence for escape was excessive. Defendant urges that the court failed to consider that “there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense.” Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.1(a)(4).

At trial, defendant presented evidence tending to show that he left the honor farm because he needed medical treatment for an injured nose and a lump on his chest. An honor farm dormitory officer testified that defendant had mentioned the lump to him. Defendant’s mother testified that she saw defendant at Menard on the day of his escape; that his nose was broken and stopped up; and that she told him to see a doctor about the chest lump because cancer runs in the family. Defendant testified that he was attacked while in St. Clair County jail in March of 1980; that he lost some teeth, his eye was darkened, and his nose was smashed to the side so that he could not breathe through it; also, that he was frightened by the chest lump, which did not hurt but was the size of a half-dollar. Defendant testified that he received no medical treatment at Menard other than observation and stated: “It was worrying me to death ***. I had an uncle die of cancer and my mother got it and here I got a knot.” Defendant testified that when he left Menard he went to St. Louis City Hospital but was frightened away by the police officers present. He related that he called Barnes Hospital but realized that he could not innocently explain why he could not agree to pay them 10% of his wages. Defendant testified that he had since had surgery and that the lump had been removed and his nose had been straightened and rebuilt. On cross-examination, defendant admitted that he had received no medical treatment between the August 10, 1980, escape and his arrest in March of 1981. Defendant testified that he would not have left Menard if he had received proper treatment there. Dr. William Mohlenbrock, medical director at Menard, testified from his records that he saw defendant on June 24, 1980, and that defendant had been concerned about his eyes, not a chest lump or his nose. Dr. Mohlenbrock testified that a nasal septoplasty such as was done on defendant was not normally done for minor injuries and that such surgery was not done at Menard.

The “judgment order” in the common law record on appeal includes a “checklist” of the statutorily recognized mitigating and aggravating factors to be considered by the sentencing court (Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 5—3.1, 1005 — 5—3.2), which list indicates the factors found to be present by the trial court. The only mitigating factor checked by the sentencing court is that defendant’s criminal conduct neither caused nor threatened serious physical harm to another. Those unchecked include the factor urged by defendant on appeal. Aggravating factors checked by the trial court were (1) defendant has a history of prior delinquency or criminal activity, and (2) the sentence is necessary to deter others from committing the same crime. The court noted in support of the extended term imposed that defendant had been previously convicted in Illinois of the same or greater class felony within 10 years.

Escape from a penal institution by a convicted felon is a Class 2 felony (Ill. Rev. Stat. 1981, ch. 38, par. 31 — 6(a)) for which the offender may be sentenced to a fixed term of imprisonment of not less than three and not more than seven years. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(5).) Where the accused has been convicted of the same or greater class felony in Illinois within the previous 10 years, an extended sentence of not less than seven and not more than 14 years’ imprisonment may be imposed. Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 8—2(a), 1005-5-3.2(b).

We are authorized to reduce the sentence imposed by the trial court only if the court abused its discretion in imposing that sentence. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884; People v. Cox (1980), 82 Ill. 2d 268, 281, 412 N.E.2d 541, 548.) Although the instant sentence is very close to the maximum permissible under the statute, we are unable to find it lacking in support on the record. From defendant’s presentence report we glean the following prior convictions: 1955, petty larceny; 1966, stealing under $50; 1971, stealing $50 or over; 1972, mail theft; 1976, unlawful use of a weapon; 1977, common assault; 1977, stealing over $50 (three counts) and stealing under $50; 1978, escaping custody before conviction; and 1979, burglary, the offense for which he was imprisoned at the time of his escape. Regarding the 1978 offense, defendant denied the assertion in the presentence report that he pleaded guilty to that charge; however, he did not deny the conviction. We conclude that defendant’s prior convictions provided substantial support for the very severe sentence imposed.

Defendant argues, however, that the trial court erred in failing to accord “some weight” to defendant’s belief that he had to escape to obtain needed medical treatment. Since the sentencing judge also presided at trial and gave, over the State’s objection, a jury instruction regarding the defense of necessity, the judge’s failure to indicate that factor on the sentencing factor checklist suggests that the court was not convinced of the sincerity of defendant’s allegation that he escaped in order to obtain medical treatment. The sentencing court need not accept the defendant’s allegations regarding mitigating matters at face value in the presence of evidence to the contrary. (See People v. Lloyd (1981), 92 Ill. App. 3d 990, 995, 416 N.E.2d 371, 375.) Here, the trial court had heard defendant testify that he had not received medical treatment during the entire seven months he was at large. The court properly could have concluded that this evidence cast serious doubt on the significance of defendant’s medical needs as well as defendant’s perception of the significance of those needs. Under these facts, it was for the sentencing court to determine what weight, if any, should be accorded defendant’s allegation of necessity.

For the foregoing reasons, the judgment of the circuit court of Randolph County is affirmed.

Affirmed.

JONES and EARNS, JJ., concur.


author: JUSTICE SCOTT PRESIDING JUSTICE STOUDER,

text:
    JOSEPHINE FRANCES SCOTT, Plaintiff-Appellant, v. PERONA, PERONA & TONOZZI, a Partnership, et al., Defendants-Appellees.
    Third District
    No. 82—529
    Opinion filed June 3, 1983.
    STOUDER, P.J., dissenting.
    Arthur R. Kingery and James R. Carter, both of Law Offices of Strodel, Kingery & Durree, Assoc., of Peoria, for appellant.

      Paul M. Scoma and Watts C. Johnson, both of Johnson, Martin & Russell, P.C., of Princeton, for appellee First State Bank of Princeton.
    Lyle W. Allen and Judy A. Schieber, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee Frank M. Bettasso, Sr.
   JUSTICE SCOTT

delivered the opinion of the court:

Hazel Ware died on January 18, 1975. Less than a year before her death, on May 24, 1974, Mrs. Ware had executed a trust agreement and pour-over will which became the subject of subsequent litigation. Named as trustees of the 1974 trust agreement were Frank M. Bettasso, Sr., and the First State Bank of Princeton. Bettasso and other members of his family were beneficiaries of the 1974 trust, as was the plaintiff here, Josephine Frances Scott.

In litigation that was ultimately resolved by this court with its decision in Kelley v. First State Bank (1980), 81 Ill. App. 3d 402, 401 N. E.2d 247, James Kelley and Ruth Kelley, beneficiaries under a 1965 will executed by Mrs. Ware, challenged the 1974 will and trust agreement. During the course of the litigation stemming from that dispute, offers of compromise were made by the Kelleys, but were rejected by trustee Bettasso. In our prior decision, we determined that the 1974 instruments were void because at the time they were executed, Mrs. Ware lacked testamentary capacity and was subject to undue influence. Mrs. Scott, who was willing to accept the offers of compromise made by the Kelleys in the prior litigation, has now returned to court to sue both trustees of the 1974 trust agreement, Mr. Bettasso and the First State Bank of Princeton, alleging that both breached a fiduciary duty to the beneficiaries of the trust in failing to accept the Kelleys’ offers of compromise, which would have settled the prior dispute. Also named as a defendant in the action instituted by Mrs. Scott was the law firm of Perona, Perona and Tonozzi, attorneys for both Mrs. Scott and the co-trustees in the prior action. The circuit court of Bureau County, presented with motions to dismiss by the defendant co-trustees and the defendant attorneys, determined that in light of our prior decision finding Mrs. Ware lacked the capacity to create the 1974 trust, the purported trustees could not be charged with fiduciary responsibilities. Consequently, the circuit court dismissed the action against the defendant co-trustees, while denying the motion to dismiss of the defendant attorneys. Further, the circuit court found no just reason for delaying enforcement and appeal of its dismissal order. Mrs. Scott has elected to appeal.

In her brief filed before this court, Mrs. Scott has set forth numerous statutory and judicial authorities which, she asserts, support the cause of action set out in her complaint against the defendant co-trustees. Fundamental to her position, Mrs. Scott urges that pursuant to statute, at the time the Kelleys made their offer of settlement, the co-trustees were empowered “to compromise, contest, prosecute or abandon claims or other charges in favor of or against the trust estate.” (Ill. Rev. Stat. 1981, ch. 17, par. 1665.) According to Mrs. Scott, who relies on specific language in the Illinois Trust and Trustees Act, this power to compromise was extended to the trustees even "during any period in which any litigation [was] pending which [might] void or invalidate the trust in whole or in part or affect the rights, powers, duties or discretions of the trustee.” (Ill. Rev. Stat. 1981, ch. 17, par. 1672.) Further developing her argument from the premise that the co-trustees had the power to compromise the prior litigation which would have invalidated the trust, Mrs. Scott cites a rule of law which requires that

“A trustee must use care and diligence in the discharge of his powers and duties. He is held to a high standard of conduct and must exercise the utmost or highest good faith in the administration of the trust.” (In re Will of Hartzell (1963), 43 Ill. App. 2d 118, 134, 192 N.E.2d 697, 706.)

Finally, Mrs. Scott avers in her complaint that the co-trustees failed to use care and diligence and abused the discretion vested in them by reason of their position as fiduciaries when they refused to consider any offers of settlement or to negotiate a settlement. Had the proposed settlement been effected, Mrs. Scott would have become a beneficiary of the Hazel Ware trust. Because no settlement was reached, the dispute over the 1974 instruments proceeded to a judicial resolution which invalidated the trust, a decision which had an adverse impact on the economic interest of Mrs. Scott. Of course, Mrs. Scott concludes that these adverse consequences could have been avoided if the trustees had exercised their power to compromise with care and diligence.

It seems certain that had the co-trustees been successful in upholding the 1974 will and trust agreement contested in the prior litigation with the Kelleys, Mrs. Scott would not be before the court today. It also seems likely that if the interested parties had accurately divined the outcome of that earlier lawsuit a different attitude towards settlement would have existed. We question whether the rule of law posited by Mrs. Scott, which would impose liability on the co-trustees for failing to accurately foretell judicial decisions, is a correct statement of the law in Illinois. Even if such were the rule, however, the co-trustees are not liable for failing to exercise their discretion to compromise, that is, for failing to presage an adverse court decision and to forestall that decision’s consequences by compromise, where in fact there was no power or discretion to compromise in the first instance. After reviewing the authorities cited by the defendants, we must agree that the co-trustees were without the power to compromise or settle the prior litigation under the facts as pleaded in the plaintiff’s complaint.

In an early case, the Illinois Supreme Court considered the propriety of settlement agreements offered to resolve disputes over testamentary dispositions. (Stephens v. Collison (1916), 274 Ill. 389, 113 N.E. 691.) In the Stephens case, a dispute arose among the beneficiaries of a testamentary trust of the decedent, Josephus Martin. The dispute generated a substantial judicial history, coming before the Illinois High Court on two occasions prior to the instance which resulted in the decision cited above. When presented for review a third time, the issue decided was summarized as follows:

“The real question in this case for our decision is whether or not a court of equity has the power and the authority to entirely disregard the terms of a trust created by a will and to compel a party interested in the trust property to accept a compromise settlement of the trust estate against his will and against his interest where all the other interested parties are willing and desire the settlement.” (Stephen v. Collison (1916), 274 Ill. 389, 394, 113 N.E. 691, 693.)

In addition, the court considered these facts:

“It cannot be questioned that the effect of the compromise and approval thereof by the court, and its decree ordering the parties to execute the compromise settlement upon the terms proposed, is to change the terms of the will of the testator, or, rather, to abrogate it altogether, and to vest title to the property devised by the will in trust, in the heirs and devisees according to the court’s judgment of what is just and best for them. The only threatened calamity to the parties interested in the trust estate or to the property itself, so far as appears in this record, is that the validity of the will itself, and of certain deeds made by the testator just prior to the execution of the will, is being contested by the party proposing the settlement, and that the litigation has been long continued and expensive and is likely to be still continued.” (274 Ill. 389, 394-95, 113 N.E. 691, 693-94.)

In light of these facts, the Stephens court resolved the issue first posed in the following manner:

“Plaintiff in error has in no way caused the litigation and has appeared to be entirely indifferent as to its results. But if he had been a principal instigator of the suits and not disposed at all to settle them on any terms, we know of no rule of law or equity by which a court could compel him to accept terms of settlement proposed by the other parties to the suit, no matter how much more it might, in fact, be to his and to their interests to so settle than to pursue the litigation to any possible conclusion.” (274 Ill. 389, 395, 113 N.E. 691, 694.)

The holding to be gleaned from the Stephens case is that settlements of testamentary disputes which materially change the testamentary plan cannot be imposed, even where the settlement appears to be in the best interest of the parties, where one of those parties finds the settlement objectionable. This holding has been cited approvingly in subsequent decisions (Northern Trust Co. v. Thompson (1929), 336 Ill. 137, 168 N.E. 116; Hubbard v. Buddemeier (1927), 328 Ill. 76, 159 N.E. 229) and is to be distinguished from decisions ordering de minimis modifications of testamentary instruments to further the manifest intentions of the testator.

In the instant case, it is conceded in plaintiff’s complaint that trustee Bettasso, also a beneficiary of Hazel Ware’s 1974 testamentary trust, would have no part in the settlement which was proposed. That settlement would have resulted in material changes in the 1974 testamentary plan. Applying the rule of the Stephens case, it is apparent that the settlement of the prior litigation proposed by the Kelleys could not have been approved by the circuit court. The trustees cannot now be faulted for failing to accept a proposed settlement which could not have been approved and ratified by the circuit court. We believe this result attains even though Mr. Bettasso, the objecting beneficiary, also filled the additional role of trustee. The prerogative of each beneficiary to consent or to withhold consent is in no way diminished or surrendered simply because the beneficiary also serves as trustee. To conclude otherwise would disadvantage the trustee beneficiary in protecting his trust interest in any settlement which might be proposed.

Accordingly, we conclude that the circuit court correctly dismissed Mrs. Scott’s complaint against the co-trustees. For the reason set forth, we affirm the decision reached below.

Affirmed.

ALLOY, J., concurs.

PRESIDING JUSTICE STOUDER,

dissenting:

I differ with my colleagues as to the result of this appeal and, specifically, as to their application of Stephens v. Collison (1916), 274 Ill. 389, 113 N.E. 691, to the facts in this case.

The majority has chosen to affirm the trial court’s decision on the basis of the law stated in Stephens v. Collison (1916), 274 Ill. 389, 113 N.E. 691. The theory of law upon which the holding in Stephens is based was first advanced on appeal by the defendant, the First State Bank of Princeton. The trial court based its ruling upon an entirely different theory of law, one which I believe did not justify the result reached by the trial court, namely, that the trustees of a trust subsequently determined to be void, have no fiduciary duties to the trust beneficiaries.

The court in Stephens held that equity could not compel the beneficiaries under a testamentary trust to accept a compromise settlement of a lawsuit which would so alter the terms of the trust that its purposes would be entirely defeated. In that case, one of the beneficiaries of a trust had proposed the settlement in an attempt to compromise litigation she had commenced against the estate of the decedent involving the validity of the will, itself, and certain deeds executed by the decedent.

The factual situation in the case at hand is different from that of Stephens. Here we have a beneficiary of a testamentary trust who is also a co-trustee, declining to compromise litigation brought by third parties attacking the validity of the will. Such a compromise could have preserved the basic terms of the trust. The fact that the objecting beneficiary was also a trustee and by statute had the power to compromise litigation which could void or invalidate the trust (Ill. Rev. Stat. 1981, ch. 17, pars. 1665, 1672) required that he, along with his co-trustee, submit any possible settlement proposal to the court for approval, otherwise, his dual role could place him in a position of conflict of interest and possibly result in breach of his fiduciary duties to the trust beneficiaries.

Based upon my analysis of this case, I believe that the trial court’s order dismissing the action against the defendant co-trustees should be reversed.


text:
    EGO OIL COMPANY, INC., et al., Plaintiffs-Appellants and Cross-Appellees, v. L. D. GARNER et al., Defendants-Appellees and Cross-Appellants.
    Fifth District
    No. 82—241
    Opinion filed May 5, 1983.
    Craig R. Hedin, of Campbell, Furnall, Moore and Jacobsen, P.C., of Mt. Vernon, for appellants.
    Eric L. Terlizzi, of Pfaff, Garner and Terlizzi, of Salem, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiffs, Ego Oil Company and the other owners of certain oil and gas leases, brought an action seeking a declaratory judgment against defendants, L. D. Garner, William D. Luttrell and Linda L. Luttrel. The Luttrels were the current owners of the real property in question at the time this litigation began. Plaintiffs requested that the trial court declare their leases to be valid and in full force and effect as to all such real property, including all geological formations covered by the leases. Plaintiffs further requested that an oil and gas lease executed by the Luttrels to Mr. Garner be declared void. The trial court found that plaintiffs’ leases had terminated as to geological formations from the base of the Ste. Genevieve formation and below, and plaintiffs have perfected this appeal. Defendants have filed a cross-appeal attacking the trial court’s finding that under the continuous operations clauses of the leases, plaintiffs’ oil and gas leases were valid as to formations down to and including the Ste. Genevieve.

Prior to trial the parties stipulated that on February 18, 1965, the owners of certain described real estate executed oil and gas leases in favor of Ego Oil Company. These leases were for a primary term of two years and contained the following provision in the sixth paragraph:

“6. *** If, at the expiration of the primary term, oil, liquid hydrocarbons, gas or their respective constituent products, or any of them is not being produced on said land or land pooled therewith but lessee is then engaged in operations for drilling, mining or reworking of any well or wells thereon, this lease shall remain in force so long as such operations or said additional operations are commenced and prosecuted (whether on the same or successive wells) with no cessation of more than sixty (60) consecutive days, and, if they result in production, so long thereafter as oil, liquid hydrocarbons, gas or their constituent products, or any of them, is produced from said land or land pooled therewith ***.”

The parties stipulated that during September 1967, the then owners of the oil and gas underlying the real property executed and delivered a unitization agreement to plaintiffs. The unitization agreement created the “Slapout Field Unit,” which was defined as being all formations from the surface down to the base of the Ste. Genevieve geological formation underlying the property involved in the case at bar and other lands. The unitization agreement further provided, in part, as follows:

“6. The drilling, completion and continued operation of a well on any portion of the unit area shall be considered and construed as the drilling, completion and continued operation of a well under the terms of each lease, mineral deed, royalty conveyance or other instrument covering any portion of the unit area, and the production of oil from any separate tract in the unit shall be considered and construed as production under the terms of each lease, mineral deed, royalty conveyance or other instrument covering any portion of the unit area and shall continue each of said leases, deeds, conveyances and instruments in full force and effect as to all lands and formations covered thereby in the same manner and to the same extent as though produced from the land described in and covered by it.
* * *
13. [Plaintiffs’] oil and gas leases *** as herein amended and modified, are hereby adopted, ratified, approved and confirmed and shall be and remain in full force and effect.”

It was further stipulated that the Luttrells became the owners of the real estate in question in 1976 and that since the commencement date of the Slapout Field Unit, royalty proceeds attributable to the real property pursuant to production of oil from the unit area have been $4,184.11. It was also stipulated that the Luttrels have received and cashed royalty checks since some time in 1981.

Also part of the parties’ stipulation were the facts that production of oil from the Slapout Field Unit has been continuous from the date of the unitization agreement; that there has been no actual production of oil from the real estate now owned by the Luttrells, covered by the 1965 oil and gas leases; and that on April 23, 1981, the Luttrells executed an oil and gas lease to L. D. Garner.

On March 18, 1982, a bench trial was held, at which Robert J. Mitchell, the president of Ego Oil Company, testified that in January 1967, the company commenced drilling operations for an oil well on defendants’ property which was known as the Cullen-Todd well. Mr. Mitchell said that Ego Oil Company spent nearly $20,000 for drilling but these operations proved disappointing because mud was being recovered from the well. A report prepared by geologist John L. Lester, indicated that the well might be “closed off temporarily due to mud invasion.” Mr. Mitchell testified that based upon this report the well was first treated with mud acid and, after this treatment failed to produce results, the drilling equipment was removed from the property and a pressure gauge was then placed on the well which was monitored on a monthly basis to determine if the mud invasion had receded. Mr. Mitchell stated that on November 22, 1967, Ego Oil Company moved drilling equipment back to the well and attempted to produce oil. According to Mr. Mitchell, Ego Oil Company spent approximately $3,000 in this effort but was unsuccessful. On cross-examination, Mr. Mitchell indicated that he was not engaged in drilling, mining or reworking the Cullen-Todd well between March and November.

Walter C. Jenneman, a petroleum engineer, testified for plaintiffs. Mr. Jenneman said that in his opinion the procedures Ego Oil Company followed because of the possibility of mud invasion were an acceptable practice in the petroleum engineering field. He stated that the mud invasion could remedy itself in time and that Ego Oil Company’s monitoring of the pressure in the Cullen-Todd well was an acceptable and reasonable practice under the circumstances. Mr. Jenneman further testified that monitoring the pressure in the well could be considered part of the process of reworking the well.

Marlin Crieg, also a petroleum engineer, testified for defendants. He said that merely watching the pressure in the Cullen-Todd well over a nine-month period as Ego Oil Company did would not indicate whether the well could produce oil. On cross-examination, Mr. Crieg indicated that Ego Oil Company’s decision to monitor the pressure in the Cullen-Todd well and wait for the mud invasion to recede was a proper method of responding to the problem presented.

The trial court made the following findings:

“1. The oil and gas leases executed by Luttrells [sic\ in 1965 were extended under the ‘continuous operations’ clauses of said leases to January 1, 1968, and thereafter as to all oil and gas covered by and included within the Slapout Field ‘unit area’ (meaning all formations down to the base of the Ste. Genevieve Formation), and defendants are barred by laches, ratification, waiver and estoppel from asserting the invalidity of said leases as to all formations within the ‘unit area’ as defined in the unitization agreement.
2. As to all formations not included within the unit area (those below the base of the Ste. Genevieve Formation) the leases of Plaintiffs have expired and are terminated. Defendant Garner’s lease is valid as to all formations not included in the unit are of Slapout Field.”

Defendants, in their cross-appeal, urge that the 1965 oil and gas leases owned by plaintiffs expired prior to their inclusion in the Slapout Field Unit. They maintain that the conduct of Ego Oil Company relative to the mud invasion did not amount to “continuous operations” under the leases. It is argued that Ego Oil Company for more than 60 consecutive days after the expiration of the primary terms of the leases was not “engaged in operations for drilling, mining or reworking” without cessation as required by paragraph 6 of the leases. We find, however, that we need not consider defendant’s contention. First we observe that the unitization agreement executed by defendants’ predecessors expressly stated that the 1965 oil and gas leases were “adopted, ratified, approved and confirmed and shall be and remain in full force and effect.” By virtue of this clause we find that if the leases had expired, they were expressly ratified and extended by the owners of the oil and gas in the unitization agreement. Defendants cannot now contend that a default by plaintiffs terminated the leases prior to this agreement. Additionally, we conclude that defendants’ continual acceptance of royalties under the leases after the leases allegedly expired estops defendants from asserting that the lease had terminated. See Walter v. Ashland Oil & Refining Co. (1945), 300 Ky. 43, 44-49, 187 S.W.2d 425, 426-28.

The remaining issue, raised by plaintiffs, is whether continued unit oil production at the Slapout Field Unit perpetuated the 1965 oil and gas leases as to formations not included in the unitization agreement. We hold that it does.

A unitization agreement has the effect of creating a single leasehold ownership for the unitized tract. (Ragsdale v. Superior Oil Co. (1968), 40 Ill. 2d 68, 70, 237 N.E.2d 492, 494.) Unitization agreements are economical because they allow petroleum engineers more exhaustively to produce reservoirs of oil and gas as a natural unit without the constraints imposed by artificial property lines drawn by man. See 5 W. Summers, Law of Oil & Gas sec. 951, at 55-56 (1966).

Plaintiffs argue that both the express language in the unitization agreement and the weight of judicial authority dictates a finding that the 1965 oil and gas leases were perpetuated as to all lands and formations covered by the lease, including those outside of the unitized area. We agree.

While the unit area in this case was limited to geological formations underlying the real property from the surface down to the base of the Ste. Genevieve formation, the sixth paragraph of the unitization agreement stated that the “continued operation of a well on any portion of the unit area, and the production of oil from any separate tract in the unit *** shall continue each of said leases *** in full force and effect as to all lands and formations covered thereby in the same manner and to the same extent as though produced from the land described in and covered by it.” It is undisputed that there has been production of oil from the Slapout Field Unit without cessation from its inception. By application of the sixth paragraph of the unitization agreement, the production of oil from any location in the unit was tantamount, in law and in fact, to production from defendants’ leases themselves and would perpetuate the 1965 oil and gas leases as to all the described lands and all geological formations thereunder, including all formations below the base of the Ste. Genevieve formation. The language and meaning of the sixth paragraph of the unitization agreement is unambiguous and should be given effect. See Trawick v. Castleberry (Okla. 1953), 275 P.2d 292, 293-94; Bruner v. Gulf Oil Corp. (Tex. Civ. App. 1962), 359 S.W.2d 210, 211.

Furthermore, a majority of courts which have had occasion to consider the question here presented have held that production of oil within a unit extends the lease beyond its primary term as to the lands covered by the lease but not included in the unitized area. (See, e.g., Clovis v. Pacific Northwest Pipeline Corp. (1959), 140 Colo. 552, 555-56, 345 P.2d 729, 730-31; Trawick v. Castleberry; Le Blanc v. Danciger Oil & Refining Co. (1950), 218 La. 463, 470, 49 So. 2d 855, 857; Somers v. Harris Trust & Savings Bank (1977), 1 Kan. App. 2d 397, 400-03, 566 P.2d 775, 777-79.) The rationale behind the majority rule is that since unitization provides an efficient and less expensive method of oil and gas recovery, allowing lease termination as to outside acreage would discourage unitization and this would be contrary to public policy. (Somers v. Harris Trust & Savings Bank.) We conclude that the majority rule is a sound one and should be followed in Illinois.

Defendants urge that we should not follow the majority rule and suggest that we distinguish between vertical and horizontal divisions of land. That is, defendants maintain that most of the cases applying the majority rule concern vertical divisions of the land based upon surface boundaries and not horizontal divisions based upon geographical formations below the surface. (See generally Nation Oil Co. v. R. C. Davoust Co. (1964), 51 Ill. App. 2d 225, 231-32, 201 N.E.2d 260, 263.) However, we fail to perceive the importance of the distinction which defendants attempt to draw. The public policy favoring economical use of our limited resources of oil and gas remains the same whether the lands are divided vertically or horizontally. Therefore, we conclude that production in the unitized area extended the term of the entire lease regardless of the fact that the division may be described as being horizontal.

For the foregoing reasons, we affirm the judgment of the circuit court of Marion County insofar as it finds that the 1965 oil and gas leases were not terminated as to all geological formations from the surface down to the base of the Ste. Genevieve formation; however, we reverse the court’s finding that these leases had terminated as to oil and gas formations from the base of the Ste. Genevieve formation and below.

Affirmed in part; reversed in part.

JONES and KARNS, JJ., concur.


author: JUSTICE JONES

text:
    LYLE J. REYNOLDS, Plaintiff-Appellee, v. ALTON & SOUTHERN RAILWAY COMPANY, a Corporation, Defendant-Appellant.
    Fifth District
    No. 82—330
    Opinion filed May 11, 1983.

      Donald J. Dahlmann and James C. Cook, both of Walker and Williams, P.C., of Belleville, for appellant.
    Edward J. Kionka, of Carbondale, and Jon G. Carlson, of Chapman and Carlson, of Granite City, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff, Lyle Reynolds, brought this action to recover damages for an alleged violation of the Federal Safety Appliance Act (45 U.S.C. sec. 1 et seq. (1970)) which resulted in injury to the plaintiff during the course of his employment as a switchman for the defendant, Alton & Southern Railway Company. The trial court directed a verdict for the plaintiff on the issue of liability and entered judgment on the jury’s verdict for damages in the amount of $89,200. The defendant contends on appeal (1) that the trial court erred in directing a verdict under the automatic coupling provision of the Safety Appliance Act (45 U.S.C. sec. 2 (1970)) where the plaintiff’s injury occurred while he was aligning a drawbar prior to an attempt at coupling; (2) that the court erred in excluding evidence of a heart attack suffered by the plaintiff during the period in which he was allegedly disabled due to the injury in question; and (3) that the jury’s verdict was excessive as a result of trial errors which prejudiced the defendant’s right to a fair trial. We affirm.

Plaintiff Reynolds suffered an injury diagnosed as tendinitis or “tennis elbow” on October 27, 1977, when he attempted to realign a drawbar on one of the railroad cars in the defendant’s “bowl” yard. His family doctor, Dr. Walter Zielonko, injected the elbow and saw him five or six times before referring him to Dr. Earl Holt, an orthopedic specialist. Dr. Holt saw the plaintiff on December 1, 1977, on December 15, 1977, and on January 12, 1978. Thereafter the defendant’s safety and claims superintendent, G. J. Miller, referred the plaintiff to another specialist, Dr. Elliott O’Reilly, who treated the plaintiff until August 1978. At that time Dr. O’Reilly released the plaintiff to go back to work, and Mr. Miller arranged to have the plaintiff “cleared” by Sutter Clinic before he returned to work on August 13, 1978.

Prior to trial on January 21, 1982, plaintiff’s counsel made an oral motion in limine requesting the court to exclude any evidence that the plaintiff had suffered a heart attack in December 1977. It was contended that such evidence would be irrelevant to the issue of when the plaintiff was able to go back to work since the plaintiff was disabled due to his elbow injury during the period of time he was recovering from the heart attack. The defendant opposed the motion, alleging that Dr. Holt had released the plaintiff to go back to work on December 1, 1977, three weeks before the plaintiff suffered his heart attack on December 24, 1977. The defendant contended that since the plaintiff was under care for the heart problem until April 15, 1978, the fact of the heart attack was relevant to the issue of when the plaintiff was sufficiently recovered from the elbow injury to resume work.

The court granted the motion in limine, stating,

“*** I don’t feel the heart attack in question is relevant to the issues in the case[. I]f he had a disability from his elbow and was unable to be back to work, which is the subject matter of the lawsuit, he would not have been able to go back to work regardless of the heart attack, and that’s the issue of disability resulting from the injury, and on the other hand, if his elbow had healed and got better, it would seem to me that that is the issue involved in the case. The — I think to some extent this is similar to an accident or injury to an unrelated portion of the body involved in a tort, and I don’t think that this is relevant ***.”

The cause proceeded to trial, and plaintiff Reynolds, testifying in his own behalf, stated that at the time of his injury he was working in the defendant’s “bowl” or “hump” yard where railroad cars are transferred from one track to another and classified in order to make up trains. The cars are pushed by an engine onto a small hill or hump and then are released without brakes to travel down into the bowl yard where they are to couple together on impact. When the track is full it is “locked out” so that no more cars will be put on the track, and a switchman checks the track to make sure the cars have coupled. In order for the cars to couple, the couplers must be open and the draw-bars to which the couplers are attached must be in line with each other. When cars fails to couple because of a misaligned drawbar, it is the switchman’s responsibility to realign the drawbar so that coupling may be completed.

On the night of the plaintiff’s injury, he was checking a track of about 20 cars which had already come down the hump. When he was approximately 10 to 12 cars from the engine, he noticed that the coupling between two cars had not been made because of a drawbar that was out of line. He had the engine pull the two cars apart and then stepped between them in order to pull and lift the drawbar toward the center to straighten it. With this action he injured his left elbow.

The plaintiff testified that he had his arm X-rayed that evening and then consulted his family doctor the next day. His arm was stiff, swollen and sore, and after five or six visits with Dr. Zielonko, he was referred to Dr. Holt on December 1, 1977. Dr. Holt examined his elbow and told him he thought surgery was necessary. The plaintiff stated that after he told Dr. Holt he did not want surgery, Dr. Holt became “cool” toward him and gave up interest in him. Because his arm was still bothering him, he talked to Mr. Miller, the defendant’s safety and claims agent, and Miller set up an appointment for him with Dr. O’Reilly, who recommended ultrasound treatments. The plaintiff testified that his arm continued to be sore through the winter, spring, and summer of 1978. It would get stiff and would “flare up” when he engaged in various activities. He had no strength in the arm and felt he was unable to go back to work as a switchman at that time.

After he returned to work in August 1978, the plaintiff continued to have difficulties with his arm. It would get stiff and sore, and he would have to stay home from work until the soreness went away. In the fall of 1979 he consulted Dr. Max Goldenberg, who had been recommended by his attorneys. In the year prior to trial in January 1982, the plaintiff had not missed any work because of his arm.

On cross-examination the plaintiff stated that during his first appointment with Dr. Holt on December 1, 1977, Dr. Holt injected his elbow and advised him to rest it. Dr. Holt told the plaintiff at his last appointment on January 12, 1978, that he was able to go back to work. The plaintiff went to see Mr. Miller sometime after he saw Dr. Holt because he was still having some soreness in his arm and wanted to see another doctor. The plaintiff denied that Dr. O’Reilly told him shortly after his first visit that he was able to go back to work.

G. J. Miller, the defendant’s safety and claims superintendent, was called as an adverse witness for the plaintiff. He testified that he had arranged for the plaintiff to see Dr. O’Reilly in the spring of 1978. The plaintiff was still complaining of problems with his arm at that time and wanted another doctor to examine him. Dr. O’Reilly reported to Miller that surgery on the plaintiff’s elbow might be a possibility but that he (Dr. O’Reilly) did not feel it was necessary. After the plaintiff’s condition improved, Miller arranged for him to be examined by Sutter Clinic because of the defendant’s medical rules that any time an employee is absent from work and is examined by another doctor, the employee must be re-examined by Sutter Clinic before returning to work.

Dr. Goldenberg testified finally that he first saw the plaintiff on October 15, 1979. In relating the history the plaintiff had given him, Dr. Goldenberg stated:

“Christmas Eve of 1977 he had a heart attack, was in the hospital about two weeks. In January of 1978 he was released as far as his heart was concerned, but he was not released as far as his elbow was concerned.”

In his examination of the plaintiff, Dr. Goldenberg found that the plaintiff’s left forearm was measurably smaller than his right forearm, indicating atrophy of the muscles of that arm due to lack of use or exercise.

Dr. Goldenberg treated the plaintiff with medication and ultrasound therapy, which provided temporary relief. Dr. Goldenberg stated, however, that injuries of the type the plaintiff had could “come and go, being worse at times and then completely calmed down for awhile.” He was of the opinion that the plaintiff’s condition constituted a permanent disability in that he could have recurrences for the rest of his life. He further testified that assuming the plaintiff was no longer employed by the defendant in the future, he would be declared “unemployable for certain classes of employment” such as those requiring heavy lifting or even light overhand or “dead-hand” lifting.

On cross-examination Dr. Goldenberg stated that the plaintiff has full function of his arm as far as extending and flexing are concerned, that he can lift overhead, and that the sensation in his arm is normal. He could continue to work as a switchman assuming that if he were required to do something on a given day when he was in pain, he would not do it.

Following Dr. Goldenberg’s testimony, the defendant renewed its offer of proof concerning the fact of the plaintiff’s heart attack on December 24, 1977, and his continued disability from the heart attack until April 15, 1978. The defendant argued that Dr. Goldenberg’s reference to the heart attack had “opened the door” to testimony by Dr. Holt that the plaintiff was able to go back to work despite the elbow injury before suffering his heart attack. The court again denied the offer of proof and ruled that Dr. Holt’s testimony regarding the heart attack would be inadmissible.

An evidence deposition of Dr. Holt’s testimony was read to the jury as part of the defendant’s case. According to Dr. Holt, he first saw the plaintiff on December 1, 1977, at which time he diagnosed his injury as “tennis elbow or radiohumeral bursitis on the left.” He injected the plaintiff’s elbow with a small amount of local anesthetic and hydrocortisone, which, he stated, “reduces local inflammation and sometimes effects a rather prompt cure in mild cases.” Dr. Holt was then asked:

“Q. Following the treatment on that occasion, did you make some medical recommendations to the patient with respect to his work activity with reference to his left arm?
[DR. HOLT]: Yes.
Q. And what were the recommendations you made on December 1,1977, to Mr. Reynolds?
A. I thought he could get on back to work. I was there on Thursday. I am always there on Thursdays. I don’t have any exact record of how or when. But generally, when I do a tennis elbow on a Thursday, I think that it may sting a little bit Friday. But they are ready to go back to work Monday. So that would be what I think he might have done.”

Dr. Holt saw the plaintiff again on December 15, 1977, at which time he found the plaintiff “still had some tenderness at the lateral epicondyle,” although he could straighten his arm out better. Both Dr. Holt and the plaintiff thought his condition had improved since the first visit. On the plaintiff’s third and final visit on January 12, 1978, the elbow “seemed all right,” and Dr. Holt discharged the plaintiff. Dr. Holt’s diagnosis as of January 1978 was that the plaintiff had “gotten over the radiohumeral bursitis of his left elbow.” He was of the opinion that the plaintiff could perform the usual and customary duties of a railroad switchman and did not feel that the plaintiff’s elbow condition was permanently disabling or even totally disabling on a temporary basis.

Following Dr. Holt’s testimony the plaintiff moved for a directed verdict on the issue of the defendant’s liability under the Safety Appliance Act. The court granted the motion for directed verdict, and after closing arguments, the cause went to the jury for determination of the plaintiff’s damages. The jury returned a verdict for the plaintiff, assessing damages in the amount of $89,200. Judgment was entered on the verdict, and the defendant has appealed from that judgment.

The defendant contends initially that the trial court erred in directing a verdict for the plaintiff on the basis of the defendant’s violation of section 2 of the Safety Appliance Act (45 U.S.C. sec. 2 (1970)). That section provides:

“It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.”

The defendant argues that the coupling process had not yet begun when the plaintiff was injured, as the purpose of “humping” the cars onto the tracks in the bowl yard was to classify them on a certain track before “coupling” was actually effected by the switchmen. Thus, the defendant maintains, where the plaintiff was merely aligning a draw-bar in anticipation of eventual coupling, there was insufficient evidence of a failed coupling to support the court’s directed verdict for violation of the Act.

A review of the record in the instant case as well as a consideration of pertinent case law leads us to conclude, however, that this argument is without merit. Testimony concerning the humping process indicated that coupling of the cars was an integral part of the humping process. The plaintiff testified that the cars were to couple automatically on impact as they came down the hump, and the switchman’s job was merely supplemental in that he would check the track to “couple up” or “couple back” any cars that had failed to couple properly. In order to accomplish this task, it was necessary for the switchman to straighten any misaligned drawbars that had prevented automatic coupling. Thus, the evidence established that the plaintiff was engaged in the coupling process when he suffered the injury in question. The plaintiff’s testimony regarding the humping and coupling process was uncontradicted by the defendant and, indeed, was corroborated by one of its witnesses. We therefore find no basis in the record for the defendant’s contention that its alleged violation of the Act constituted a jury question. See also Smiley v. St. Louis-San Francisco Ry. Co. (1949), 359 Mo. 474, 222 S.W.2d 481 (section 2 does not require that a car be moved with an intention or purpose to couple it by impact if it is nonetheless kicked onto the track with sufficient impact to make an automatic coupling).

The case law pertaining to the question of liability under the Act for a misaligned drawbar is to the same effect. In this court's recent decision, Buskirk v. Burlington Northern, Inc. (1982), 103 Ill. App. 3d 414, 431 N.E.2d 410, we held under similar facts that the failure of cars to couple automatically upon impact because of a misaligned draw-bar constituted a violation of section 2 of the Act. In that case the cars in question were “kicked” (pushed by an engine) rather than “humped” onto tracks in the defendant’s classification yard for eventual connection with outgoing trains. The plaintiff Buskirk, a railroad switchman, noticed that two cars had failed to couple after being kicked onto the switch track because their drawbars had skewed in opposite directions. He went between the cars to straighten the drawbars and injured his back in the process. This court, noting that the Act imposes absolute liability for operating a car on which the drawbar is so far out of line as to prevent automatic coupling (see Kansas City Southern Ry. Co. v. Cagle (10th Cir. 1955), 229 F.2d 12, cert. denied (1956), 351 U.S. 908, 100 L. Ed. 1443, 76 S. Ct. 697), held the defendant railroad liable as a matter of law. “It [was] sufficient [the court stated] for the plaintiff to have shown that, after a failure of the cars to couple automatically, he went between them and was injured while trying to straighten the misaligned bar.” 103 Ill. App. 3d 414, 415, 431 N.E.2d 410, 412.

In the instant case where the plaintiff has made a similar showing, we find the Buskirk decision controlling on the issue of the defendant’s liability under the Act. (Cf. Schaaf v. Chesapeake & Ohio Ry. Co. (1982), 114 Mich. App. 171, 317 N.W.2d 679 (trial judge erred in instructing the jury that railroad car drawbars had to be aligned before a violation of the Safety Appliance Act could occur through failure of the cars to couple automatically on impact).) The evidence in the instant case was sufficient as a matter of law to constitute cause in fact, and there was no question of fact in the issue of proximate cause to be resolved by the jury.

While, as the defendant points out, there are circumstances in the railroad industry where workers may be between cars without giving rise to liability under the Act, the instant situation does not come within that exception. In Smiley v. St. Louis-San Francisco Ry. Co., the court distinguished cases in which employees had gone between cars, not to effect a coupling, but to repair a coupler needing repairs. Since the employees were not thus engaged in a coupling process when they were injured, the Act, which provides against the risk of coupling cars rather than repairing them, was not invoked.

In the instant case the track was “locked out” so as to prevent further coupling by impact when the plaintiff went between the cars. The plaintiff’s objective, however, was to couple, and he was thus “engaged in a coupling effort” (see Smiley v. St. Louis-San Francisco Ry. Co. (1949), 359 Mo. 474, 481, 222 S.W.2d 481, 484-85) at the time of his injury. Section 2 of the Act was specifically designed to protect parties who are injured while going between cars to effect a coupling that did not take place automatically. (Buskirk v. Burlington Northern, Inc., Southern Pacific Co. v. Mahl (5th Cir. 1969), 406 F.2d 1201.) This section encompasses the plaintiffs actions in the instant case, and we find no error in the trial court’s directed verdict for the plaintiff on the issue of liability.

The defendant next contends that the trial court erred in excluding evidence of the heart attack suffered by the plaintiff on December 24, 1977. The defendant asserts that since Dr. Holt had released the plaintiff to return to work on December 1, 1977, evidence that the plaintiff suffered a heart attack over three weeks later should have been admitted to show why the plaintiff did not return to work at that time.

In support of its argument, the defendant cites the general rule that evidence as to the general health or physical condition of an injured person both before and after the injury is admissible to show the extent, nature and probable effect of the injury and the cause of the subsequent physical condition. (15 Ill. L. & Prac. Damages sec. 234 (1968); see Parnham v. Carl W. Linder Co. (1962), 36 Ill. App. 2d 224, 183 N.E.2d 744.) As the plaintiff points out, however, this rule is limited by the requirement that such evidence be sufficiently connected with the injury in question or be material to the issue of damages. (15 Ill. L. & Prac. Damages sec. 234 (1968); see Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 388 N.E.2d 770.) The defendant in the instant cause makes no claim that the plaintiff’s subsequent heart attack was related to the elbow injury for which he sought recovery. It contends, rather, that evidence of the heart attack was relevant to the issue of when the plaintiff was sufficiently recovered from the injury to resume work.

While we are aware of no case involving this precise issue, in similar cases where the question was whether the plaintiff was unable to work because of an alleged injury, courts have held that the defendant may present evidence to disprove that proposition but may not go further and inject into the case an issue collateral to the alleged injury. (Cf. Jordan v. Morrissey (1970), 130 Ill. App. 2d 418, 264 N.E.2d 734 (defendant could introduce evidence that plaintiff did not leave his job for health reasons but would not be allowed to introduce evidence that plaintiff had been fired for dishonesty); Schmitt v. Chicago Transit Authority (1962), 34 Ill. App. 2d 67, 179 N.E.2d 838 (defendant could rebut claim that plaintiff was forced to retire because of an alleged injury but could not offer evidence that plaintiff’s real motive related to marital difficulty).) It is within the trial court’s discretion to exclude evidence not directly related to the matter at hand where the confusion of issues resulting from its admission would not be compensated for by its usefulness in the trial. See Veer v. Hagemann (1929), 334 Ill. 23, 165 N.E. 175; Hunter, Trial Handbook for Illinois Lawyers sec. 33:11 (4th ed. 1972); 34 Ill. L. & Prac. Trial sec. 47 (1958).

In the instant case evidence of the plaintiff’s heart attack, offered to rebut the plaintiff’s claim that he was disabled for almost a year from the injury to his elbow, was collateral in that it was not otherwise connected to the injury for which recovery was sought. (See E. Cleary and M. Graham, Handbook of Illinois Evidence sec. 607.2, at 263 (3d ed. 1979) (a matter is collateral if not relevant for some purpose other than to contradict the in-court testimony of a witness).) The matter at issue in the litigation was how long the plaintiff was disabled because of his elbow injury. The defendant was properly allowed to present testimony by Dr. Holt that he thought the plaintiff could “get on back to work” on December 1, 1977, and that he discharged the . plaintiff on January 12, 1978, when he felt the plaintiff had recovered from his injury. It was for the jury to evaluate this testimony along with the plaintiff’s testimony that he continued to be disabled by the injury and sought further medical treatment by Dr. O’Reilly, who released him in August 1978. Evidence of the heart attack suffered by the plaintiff in the meantime did not relate to the issue of the plaintiff’s disability from his injury, as there was no indication that it delayed or affected the plaintiff’s recovery from the elbow injury. Thus, the trial court properly excluded this evidence to prevent speculation and confusion on the part of the jury as to the nature and extent of the plaintiff’s disability.

The cases relied upon by the defendant in this regard are distinguishable from the case at bar. In Parnham v. Carl W. Linder Co. the court allowed the plaintiff, who was seeking damages for an eye injury, to introduce evidence that his other eye was not in perfect condition, since it “tend[ed] to show, the probable effect of the injury received, upon the plaintiff.” (36 Ill. App. 2d 224, 236, 183 N.E.2d 744, 750.) In the instant case, the plaintiff’s subsequent heart attack was unrelated to the injury in question and could not be said to show the effect of the injury on the plaintiff. Two other cases cited by the defendant, McKasson v. Zimmer Manufacturing Co. (1973), 12 Ill. App. 3d 429, 299 N.E.2d 38, and Noncek v. Ram Tool Corp. (1970), 129 Ill. App. 2d 320, 264 N.E.2d 440, likewise involve the special effect of injuries upon plaintiffs who suffered from disabilities prior to the injuries in question. The defendant's reliance upon Olson v. Hayes (1978), 37 Or. App. 583, 588 P.2d 68, is also misplaced because that case involved the apportionment of damages for injuries sustained in successive automobile collisions where the injuries were similar and affected the same part of the body. The plaintiff here sought to recover only for his elbow injury, and since it was unrelated to his cardiac problem, there was no question of apportionment of damages. In light of these distinctions, we find no error in the trial court’s exercise of discretion in excluding evidence of the plaintiff’s heart attack.

The defendant contends finally that its right to a fair trial was prejudiced by the cumulative effect of erroneous rulings by the trial court and improper statements by the plaintiff’s counsel before the jury. The first of these alleged errors was the court’s admission of the plaintiff’s testimony with regard to his conversations with Dr. O’Reilly concerning the possible need for surgery on his elbow. While the defendant contends that this constituted inadmissible hearsay testimony, we believe the testimony was properly admitted for the nonhearsay purpose of showing why the plaintiff had not returned to work prior to August 1978. When an out-of-court statement is used not as evidence of the fact asserted but as circumstantial evidence for another purpose, the hearsay rule does not apply. (Goshey v. Dunlap (1973), 16 Ill. App. 3d 29, 305 N.E.2d 648.) At most, the defendant would have been entitled to a limiting instruction as to this testimony but did not request one and has therefore waived any objection it may have had. See Eizerman v. Behn (1956), 9 Ill. App. 2d 263, 132 N.E.2d 788.

The defendant additionally asserts that the court erred in admitting testimony concerning coupling operations on its property which had no relationship to the instant occurrence. Whether or not this testimony was inadmissible on grounds of irrelevancy, the record is such that the defendant could not have been prejudiced by its admission. Where, as here, the trial court has directed a verdict and its action in doing so is justified by competent evidence in the case, any error in this regard is harmless and does not require reversal. See 3 Ill. L. & Prac. Appeal & Error sec. 818, at 41 (1953).

The defendant further contends that the court erred in permitting the plaintiff to examine G. J. Miller, the defendant’s superintendent of safety and claims, as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 60) after Miller was called to testify as a witness for the plaintiff. The defendant has cited no authority for its argument, and we have found none addressing this issue. The defendant does not claim, however, that Miller was unqualified for section 60 examination by the plaintiff, and the record fails to show that the defendant was prejudiced in any way by the plaintiff’s delayed announcement that Miller had been called as a section 60 witness. Moreover, the defendant made no objection at trial as to the leading nature of the questions propounded prior to the section 60 announcement. Under these circumstances the trial court properly allowed Miller to be examined as an adverse witness under section 60, and its ruling did not constitute error.

Finally, upon a review of the record we cannot say that the defendant was so prejudiced by remarks and conduct of plaintiff’s counsel before the jury as to warrant reversal. The defendant failed to object at trial to many of the statements now complained of and thus has waived its right to object upon appeal. (Clemons v. Alton & Southern R.R. Co. (1977), 56 Ill. App. 3d 328, 370 N.E.2d 679.) In other instances where an objection was promptly made and sustained by the trial court, any prejudice resulting from the allegedly improper remarks was rendered harmless. (Nakis v. Amabile (1981), 103 Ill. App. 3d 840, 431 N.E.2d 1255.) Because of the trial court’s superior opportunity to observe the impact of plaintiff’s counsel’s comments on the jury, it was within the court’s sound discretion to determine whether such arguments were inflammatory or whether the allegedly prejudicial statements interfered with the defendant’s right to a fair trial. (Walters v. Taylor (1976), 36 Ill. App. 3d 934, 344 N.E.2d 765.) We find no abuse of discretion here and accordingly will not disturb the court’s ruling in this regard.

For the reasons set forth in this opinion, we hereby affirm the judgment of the circuit court of Madison County.

Affirmed.

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


text:
    DAVID COLLINS, Plaintiff-Appellant, v. SCHOOL DISTRICT NO. 189, ST. CLAIR COUNTY, Defendant-Appellee.
    Fifth District
    No. 82—469
    Opinion filed May 9, 1983.
    Gomric & Kurowski, of Belleville (John J. Kurowski and Kevin Boyne, of counsel), for appellant.
    Vincent J. Hatch, of Donovan, Hatch & Constance, of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff David Collins filed suit on September 10, 1980, against School District No. 189, St. Clair County, Illinois, and Roy Mosley, an employee of the school district. Plaintiff’s complaint alleged that on July 31, 1980, at Martin Luther King Junior High School, East St. Louis, Illinois, defendant Mosley struck, kicked and bit the plaintiff, causing bruises, contusions and the loss of teeth. Count I of the complaint sought actual and exemplary damages from defendant Mosley. Count II sought actual and exemplary damages from the school district, alleging that the district was reckless in employing Mosley. The district subsequently filed a motion for summary judgment as to the plaintiff’s count II request for exemplary damages. The motion was based on section 2 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 2— 102), which prevented recovery of exemplary damages against a local public entity such as School District No. 189. The trial court granted defendant’s motion in an order entered on February 17, 1981.

On October 1, 1981, plaintiff filed a motion to reconsider the trial court’s order granting summary judgment on count II of his complaint. In support of his motion, the plaintiff filed a memorandum and attached a copy of the school district’s insurance policy, which showed liability coverage to a maximum of $300,000. Plaintiff reasoned that by procuring liability insurance, the district waived any right to deny liability by reason of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 9 — 103). After hearing arguments on the motion to reconsider, the trial court entered an order on May 21, 1982, setting aside its February 17, 1981, order granting defendant school district summary judgment as to count II of the plaintiff’s complaint.

On June 4, 1982, the defendant school district filed a motion to reconsider the order of May 21. The district noted in an accompanying memorandum that its insurance policy excluded liability for punitive damages; therefore, the district is uninsured with respect to the punitive damages sought by the plaintiff. Accordingly, the district reasoned, citing Beckus v. Chicago Board of Education (1979), 78 Ill. App. 3d 558, 397 N.E.2d 175, there was no waiver of immunity for punitive damages. Again, the trial court heard arguments of counsel and on August 3, 1982, it entered an order setting aside its May 21, 1982, order and again allowed defendant’s motion for summary judgment on count II of the complaint.

The trial court subsequently entered an order finding that there was no just reason to delay enforcement of its August 3, 1982, order. Plaintiff, therefore, appeals pursuant to Illinois Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)).

On appeal, the plaintiff’s sole argument is that the trial court erred in granting the defendant school district’s motion for summary judgment based upon the Local Governmental and Governmental Employees Tort Immunity Act since the district had purchased a liability insurance policy. The plaintiff asserts that while section 2 — 102 (Ill. Rev. Stat. 1981, ch. 85, par. 2 — 102) provides local public entities with immunity from exemplary damages, section 9 — 103(c) (Ill. Rev. Stat. 1981, ch. 85, par. 9 — 103(c)) specifies that acquisition of liability insuranee waives any tort immunity defense. Holda v. County of Kane (1980), 88 Ill. App. 3d 522, 410 N.E.2d 552, is cited as authority for the position that the district waived any immunity by purchasing liability insurance and thus cannot rely on section 2 — 102 (Ill. Rev. Stat. 1981, ch. 85, par. 2 — 102) as a defense.

The defendant, on the other hand, draws our attention to Beckus v. Chicago Board of Education, which stated:

“Because of the absence of any insurance coverage for plaintiffs injury, there was no waiver of the Tort Immunity Act. The purpose of section 9 — 103(b) of the Act is to require that when a local public entity is immune from suit, its insurance carrier cannot avoid liability by invoking the entity’s immunity. [Citations.] In this case the insurance carrier’s policy did not cover plaintiff’s claim, and plaintiff’s claim is also barred against defendant pursuant to the Tort Immunity Act.” (Beckus v. Chicago Board of Education (1979), 78 Ill. App. 3d 558, 561, 397 N.E.2d 175, 178.)

We agree with the defendant that because the district was uninsured with respect to punitive damages, Beckus mandates that there is no waiver of tort immunity for punitive damages. However, the defendant concedes that under Holda, actual, compensatory damages could be recovered if liability were found. Count II of plaintiff’s complaint sought both actual and exemplary damages from the school district.

A summary judgment should be entered “if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict.” (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.) In the case at bar, although the issue of punitive damages, as pleaded in count II, could not go to a jury, the issue of whether the defendant school district’s conduct caused actual damages remains, and could rightfully withstand a motion for summary judgment. Accordingly, the trial court’s order allowing summary judgment as to count II of plaintiff’s complaint must be reversed.

For the foregoing reasons, the order of the circuit court of St. Clair County allowing summary judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

HARRISON, P.J., and KASSERMAN, J., concur.