author: JUSTICE KARNS PRESIDING JUSTICE HARRISON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v JOEL WARREN, Defendant-Appellant.
    Fifth District
    No. 82—180
    Opinion filed March 8, 1983.

      HARRISON, P.J., dissenting.
    Mark A. Hamrock, of Murphysboro, for appellant.
    John A. Clemons, State’s Attorney, of Murphysboro (Stephen E. Norris and Frank J. Bieszczat, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Defendant, Joel F. Warren, was charged by information with two counts of deviate sexual assault. Following a bench trial, defendant was convicted on both counts and was sentenced to a term of six years in prison.

On appeal, defendant contends that the State did not prove him guilty of deviate sexual assault beyond a reasonable doubt. Specifically, defendant argues that the State failed to prove that the acts complained of were committed by force or threat of force or against the will of the complainant. Defendant further contends that he was denied due process of law when the court convicted him on the basis of an improper standard of guilt.

At the time of the incident, defendant, Joel Warren, was 30 years of age and was a student at Southern Illinois University. Complainant was 32 years of age and worked as a volunteer at Synergy, an organization located in Carbondale, Illinois.

Complainant testified that on the afternoon of July 1, 1980, she rode her bicycle to Horstman’s Point, which overlooks the Carbondale City Reservoir in Carbondale. While complainant was standing alone at Horstman’s Point, defendant approached her and initiated and engaged in a conversation with her. Although complainant did not know defendant, she responded to his conversation which was general in nature.

Complainant started to walk away from the lake in the direction of her bicycle which was at the top of the hill. While she walked up the hill, defendant continued talking as he walked alongside of her. Complainant testified that when she got on her bicycle defendant placed his hand on her shoulder. At this time, complainant stated, “No, I have to go now,” to which defendant responded, “This will only take a minute. My girlfriend doesn’t meet my needs.” Defendant also told her that “I don’t want to hurt you.”

According to complainant, defendant then lifted her off the ground and carried her into a wooded area adjacent to the reservoir. Upon entering the woods, defendant placed complainant on the ground and told her to put her head on his backpack. Defendant then told her to take her pants down which she did part way. Defendant pulled her pants completely off and placed them underneath her. He then proceeded to pull up complainant’s tank top shirt and began kissing her breasts and vaginal area. After he finished kissing complainant, defendant sat up and unzipped his pants and complainant performed an act of fellatio upon him.

At the completion of this second act, defendant gave complainant an article of clothing to wipe her mouth. Complainant then dressed and defendant picked her up again and carried her back to her bicycle. Defendant testified that complainant asked him, “Is that all?” to which he answered, “Yes.”

Complainant got on her bicycle and rode to Synergy, where she spoke to a volunteer worker who referred her to the Women’s Center in Carbondale. At the Women’s Center, she spoke with Mary Kay Bachman, with whom she went to the Carbondale Police Department. Complainant related the incident to Officer William Kilquist, who testified that complainant appeared to be very upset. Officer Kilquist further testified that no formal report was prepared at the request of complainant.

On February 15, 1981, complainant saw defendant while she was jogging and reported him to the police as the man with whom she had sexual relations. Defendant was arrested at his home later that day by Officers Hunziker and Hawk of the Southern Illinois Police Department and charged with deviate sexual assault.

At the outset, we note that there are no significant inconsistencies in the testimony of the two parties. Instead, we are faced with facts which are susceptible of more than one reading. Defendant admits that he performed the acts upon which the deviate sex charges are based. He contends, however, that the acts complained of were performed without force or threat of force.

Reviewing courts are especially charged with the duty of carefully examining the evidence in rape or deviate sexual assault cases and it is the duty of the reviewing court to reverse the judgment unless the evidence is sufficient to remove all reasonable doubt of defendant’s guilt and create an abiding conviction that he is guilty of the crime charged. (People v. Anderson (1974), 20 Ill. App. 3d 840, 847, 314 N.E.2d 651, 656.) The ultimate issue presented for review in the instant case is whether the State satisfactorily proved that the acts complained of were committed by force or threat of force as required to constitute deviate sexual assault.

To sustain a conviction for deviate sexual assault, there must be evidence that defendant, by force or threat, compelled another to perform or submit to any act of deviate sexual conduct. (People v. Comes (1980), 80 Ill. App. 3d 166, 172, 399 N.E.2d 1346, 1350.) There is, however, no definite standard which fixes the amount of force which is required to sustain the charge of rape or deviate sexual assault. Each case must be examined on the basis of its own particular facts. People v. Smith (1965), 32 Ill. 2d 88, 203 N.E.2d 879.

In the present case, the State contends that defendant coerced complainant into engaging in deviate sexual acts by threatening to use physical force. The State maintains that this threat was conveyed by defendant’s statement that “I don’t want to hurt you,” the implication being that he would hurt her if she did not comply. Although this interpretation has some merit, we do not believe that it is the most reasonable conclusion drawn from the facts. Defendant did not make the above statement while brandishing a weapon or applying physical force, a circumstance which would support the State’s construction. Instead, we find that the record is devoid of any attendant circumstances which suggest that complainant was compelled to submit to defendant.

In addition, the State argues that the threat of force was conveyed by the disparity of size and strength between the parties. The record shows that at the time of the incident complainant was 5’2” tall weighing 100 to 105 pounds, whereas defendant was 6’3” and 185 pounds. The State further maintains that the seclusion of the woods contributed to this threat of force. Although it is proper to consider such factors in weighing the evidence, we do not believe that the evidence taken as a whole supports the State’s conclusion. Aside from picking up complainant and carrying her into and out of the woods, defendant did not employ his superior size and strength. Furthermore, complainant did not attempt to flee or in any meaningful way resist the sexual advances of defendant.

Much of the State’s case rests upon its contention that complainant’s absence of effort in thwarting defendant’s advances was motivated by her overwhelming fear. In support of this position, the State offers complainant’s statement that she did not attempt to flee because, “it was in the middle of the woods and I didn’t feel like I could get away from him and I thought he’d kill me.” Moreover, complainant stated that she did not yell or scream because the people she had seen in the area were too far away and that under the circumstances she felt that screaming “*** would be bad for me.”

Despite professing fear for her safety, complainant concedes that defendant did not strike her or threaten to strike her or use a weapon. When defendant picked up complainant and carried her into the wooded area, she did not protest but merely stated, “I can walk.” Although she maintained that she stiffened up to make it harder for him to carry her, defendant did not recall any resistance. At no time did complainant tell defendant to leave her alone or put her down. Furthermore, complainant did not object when defendant instructed her to take off her pants, but instead she complied with his request by pulling down her pants part way.

Facts similar to those presented here prompted the court to reverse a conviction for rape in People v. Taylor (1971), 48 Ill. 2d 91, 268 N.E.2d 865. In that case, the complaining witness testified that defendant coerced her into his automobile by threatening to shoot her. Although she never saw the gun, complainant entered defendant’s car. She further testified that while driving they engaged in conversation concerning various topics. During this time complainant did not cry for help or attempt to flee even though they were driving on well traveled roads and stopped at numerous stop signs. The reviewing court considered that complainant did not object to defendant’s request that she undress nor did she resist his sexual advances. The court also noted that complainant kissed defendant goodbye before leaving him. In reversing the conviction, the court stated that these facts did not create an abiding conviction of defendant’s guilt.

In the case before us, defendant maintains that once complainant became aware that defendant intended to engage in sexual relations it was incumbent upon her to resist. This resistance would have the effect of giving defendant notice that his acts were being performed without her consent. It is well settled that if complainant had the use of her faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against her will. If the circumstances show resistance to be futile or life endangering or if the complainant is overcome by superior strength or paralyzed by fear, useless or foolhardy acts of resistance are not required. (People v. Faulisi (1962), 25 Ill. 2d 457, 185 N.E.2d 211.) We cannot say that any of the above factors are present here. Complainant’s failure to resist when it was within her power to do so conveys the impression of consent regardless of her mental state, amounts to consent and removes from the act performed an essential element of the crime. (People v. Borak (1973), 13 Ill. App. 3d 815, 301 N.E.2d 1.) We do not mean to suggest, however, that the complainant did in fact consent; however, she must communicate in some objective manner her lack of consent.

Defendant’s second contention is that the trial court violated his due process by applying an erroneous standard of guilt. Defendant maintains that the trial court created a new standard of guilt in determining that defendant used “psychological force” to overcome the will of complainant.

In denying defendant’s post-trial motion for a new trial, the trial court recited the facts and circumstances surrounding the incident and stated:

“The Court has considered the evidence as a whole, *** in making its determination that the actions of the defendant in this case amounted to force *** because in my opinion the combination of the physical actions and the verbal abuse, the whole atmosphere that was created by this defendant, which amounts to psychological force in a criminal act in this state.”

Although the trial court employed a new term in entering its judgment, we believe it is clear that the court applied the statutory standard of guilt. We believe, however, that the State has not proved that defendant committed deviate sexual acts by force or threat of force as required by statute. Consequently, the judgment of conviction for deviate sexual assault is reversed.

Reversed.

KASSERMAN, J., concurs.

PRESIDING JUSTICE HARRISON,

dissenting:

I respectfully dissent.

It is well settled that a victim need not resist when to do so would be futile or life endangering, or where she is overcome by superior strength or paralyzed by fear. (People v. Clarke (1971), 50 Ill. 2d 104, 109, 277 N.E.2d 866.) Such was the case here. The victim testified that she did not scream because there was no one in the vicinity to hear her screams. She considered escaping but decided that an attempt would be futile because she could not outrun the defendant in the woods. She testified that she resisted when he carried her into the woods, although she did not strike or otherwise physically assault him because of the likelihood that such behavior would anger him. She was overpowered by him physically (compare 5 ft. 2 in., 100 lbs., to 6 ft. 3 in., 185 lbs.) and felt extremely vulnerable in such an isolated area where no one was around to help her. Under these circumstances, where violent resistance might only have provoked the defendant, her acquiescence was reasonable and did not constitute consent. People v. Schmitt (1981), 99 Ill. App. 3d 184, 188, 424 N.E.2d 1267.

In addition, the victim made an immediate complaint to a counseling center and to the police. A prompt complaint to authorities has been held sufficient corroboration. (People v. Graham (1978), 60 Ill. App. 3d 1034, 1045, 377 N.E.2d 179.) And even if uncorroborated, the testimony of the witness alone can be sufficient to justify the conviction if that testimony is clear and convincing. (People v. Hine (1980), 88 Ill. App. 3d 671, 677, 410 N.E.2d 1017.) In my view, her account of the episode and the reasons explaining her behavior were clear and convincing. Therefore, I would affirm the defendant’s conviction for deviate sexual assault.


source: Caselaw Access Project

author: JUSTICE JONES JUSTICE KARNS,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SHARON L. McNAIR, Defendant-Appellee.
    Fifth District
    No. 81—495
    Opinion filed March 8, 1983.

      EARNS, J., dissenting.
    William A. Schuwerk, Jr., State’s Attorney, of Chester (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Steven Clark and Scott Graham, both of State Appellate Defender’s Office, of Chicago, and Sheva Rifkind, law student, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

The State appeals an order of the trial court granting the motion of defendant, Sharon McNair, to quash her arrest and to suppress evidence. The defendant was charged with the unlawful possession of cannabis and with bringing contraband into a penal institution. Following a hearing the trial court found that police lacked probable cause to arrest the defendant and quashed the arrest. Because the arrest was ruled illegal, the trial court ordered all evidence obtained following the arrest suppressed. The State raises five issues: (1) whether the police officers’ summoning the defendant to the door of her motel room constituted an arrest; (2) whether there was probable cause to arrest the defendant prior to her identification at the door of her motel room; (3) whether there was an independent basis for the in-court identification of the defendant; (4) whether the court erred in quashing the warrant to search the defendant’s cars; (5) whether the court erred in suppressing evidence seized from the defendant’s motel room.

At the hearing on the motion to quash and to suppress, the State called four witnesses, the four police officers who had gone to the door of defendant’s motel room. Defendant presented no evidence.

The first witness to testify at the hearing was Lieutenant Tins-man, employed by the Menard Correctional Center and assigned on the night the incident occurred to watch a certain area of that facility. The witness had been told that an “object” was to be thrown over the fence located there. Watching with binoculars from a second-floor balcony at about 10:08 p.m. on July 1, 1981, he saw an automobile come into the Center along the fence in “close proximity” to the area he had been assigned to watch. Having parked the car, a woman leaned briefly out of the window on the passenger side of the automobile and waved in the direction of the South Cell House. Three to four minutes later, during which time the witness observed movement within the vehicle, she leaned “from about the waist up” out of the same window and threw an object that landed “approximately eighteen feet from the fireplug where I was told the individual would drop the package.” The package landed in an area accessible to inmates. The witness testified that he was about 180 feet from the car as he watched and that he had described the woman, the only person he saw in the car, as being in her early thirties, “a female, white, petite in form, had long dark hair, large rounded type prescription glasses, not the sun type.” He said she was wearing “a paisley type dark print blouse.” On cross-examination he denied that the person he had seen could have been a “light-skinned Negroid female.” He stated that the area was well lit by a double mercury vapor light and that he had been able to view the woman for a total of about 45 to 60 seconds. He had been unable, however, to obtain a license plate number or to determine the precise make and model of the car, which he described as late-model and dark. The lights of the car had been turned off after it had been backed between two cars parked in the parking lot and were not turned on again until after the vehicle had begun to leave the parking lot. The witness stated that he could not see the license number because “with the binoculars, when the lights came on it blurred the plate number.” He stated further that the vehicles between which the car had been parked had obscured his view of the lower part of the vehicle.

The contents of the package that had been thrown over the fence were tested shortly thereafter and proved to be cannabis. The witness said that he had described the car and its driver to Captain Umbdenstock, another security officer at the correctional facility, who “notified District about Sharon McNair, a description of her car and so forth.” He stated that the Captain had asked that a blue Cadillac be sought and that the Captain had given a license number for that vehicle. Later the witness learned that officers of the Chester Police Department had located a car of that description bearing the license number in question in the parking lot of a local motel. At about 12:10 a.m. on July 12, 1981, approximately two hours after the package was thrown over the fence, the witness went with Captain Umbdenstock to the parking lot of the motel and met Officers Ciasen and Hogrefe of the Chester Police Department. In the parking lot the witness saw a Cadillac as well as the car he though he had observed at Menard, an Oldsmobile. Having ascertained which room at the motel was defendant’s, they went to it. The testimony of the witness continued as follows:

“I think Officer Hogrefe knocked on the door. Ciasen presented himself as Chester Police Department, requesting the occupants come to the door; they wished to talk to them.
[State’s Attorney]: Then what happened?
[Lieutenant Tinsman]: At first the person that answered from inside said she was not dressed and there was a delay. Officer Ciasen knocked again. The door opened shortly after that. Officer Hogrefe, I think it was Officer Hogrefe, called me forward and asked if I could identify any of the persons that was [sic] in the room. It was at that time that I identified a person that turned out to be Sharon McNair.”

The witness testified that defendant had opened the door and was standing about a foot and a half or two feet from the door when he identified her.

On cross-examination the following colloquy took place between the witness and defendant’s attorney:

“Q But you remember him knocking on the door the second time after it was not opened the first time?
A He knocked on the door the second time after the door was not opened and what I guess he considered the appropriate time length.
Q And he at that point indicated something as he knocked on the door. Is that correct?
A He reannounced himself.
Q And directed the people to open the door. Is that correct?
A That’s correct.
Q So they opened the door pursuant to his direction?
A Yes.”

The witness said that when the door of the motel room was opened, two women, one black and the other white, were inside.

The next witness was Captain Umbdenstock, who testified that he had been called to the correctional facility between 10 and 11 p.m. on July 1, 1981, because of the package that had been thrown over the fence. He stated that he had put out a call for the police to watch for a 1978 Cadillac owned by Sharon McNair with a license number of EQ3892. The witness had seen defendant at the institution prior to this time. Asked why he had put out a “pick-up” on that particular car, the witness answered that he had “had reason to believe that that person was to drop a package of what I thought to be cannabis, possibly that evening.” He said he had had information that “there might possibly be a drop over the fence by the fireplug” and that “based on the fact that she had been at the institution that day and had another person in the car with her, I told [security personnel at Menard] there might possibly be a black female or a white female, I didn’t know, but I had reason to believe that there would be a drop.”

Upon arriving at Menard, the witness received Lieutenant Tins-man’s description of the person who had thrown the package. Asked whether he had had “any idea who this individual might be,” with the description he had received, he answered that he “couldn’t say it was Sharon McNair.” When they arrived at the motel parking lot they saw the Cadillac in question parked next to the Oldsmobile. He described the events that took place at the door of the motel room as follows:

“City Police knocked on the door and identified thereselves [sic]; said they wanted to talk to her, for her to come to the door. And I kind of stood back from the door there a couple feet. I didn’t get in anybody’s way or anything. And then after two, maybe three minutes she come [sic] to the door, opened the door and City Police Officer, Tinsman stepped up behind him and he stepped to the side and said is this the lady and Tinsman says that’s her.”

Asked on cross-examination whether a remark had been made to the effect that “they would break the door down or kick it in if the door wasn’t open [s-ic],” the witness answered, “I can honestly say I didn’t hear it said, but I can’t say that it was or wasn’t [made].”

The third witness called by the State was Officer Ciasen of the Chester Police Department. He indicated that investigation undertaken after finding the Cadillac in the parking lot of the motel showed it belonged to Sharon McNair. He stated that he and the other three officers had gone to the door of defendant’s motel room and described what had happened at the door as follows:

“Officer Hogrefe knocked on the door and I yelled out it’s Chester Police and we would like to talk to the subject for a minute.
[State’s Attorney]: What happened then?
[Officer Ciasen]: She said she had to get some clothes on and I waited about twenty seconds, approximately, and knocked again and said we wanted to talk to her, we had to talk to her for a minute. I said we might have to knock the door down. That was just a statement.
Q: Okay. Then what happened.
A: She came to the door and opened the door.
Q: You say she. Who is she?
A: Sharon McNair.”

He testified that when the defendant opened the door “we turned around and asked Lieutenant Tinsman if this was the lady that he was talking about and he said yes, positive ID.” He said that they then arrested defendant. On cross-examination the following exchange took place between the witness and defendant’s attorney:

“Q: And after the door didn’t open you knocked on it again?
A: Yes, sir.
Q: At that time you directed her to open the door?
A: I asked her to open the door.
Q: You indicated you might have to knock it down if she wouldn’t open it.
A: Yes, sir.”

The fourth and final witness to be called was Officer Hogrefe, a patrolman for the city of Chester. He testified that after he and the other three officers had gone to the door of defendant’s motel room, the following events took place:

“[W]e *** knocked on the door, told the subject we were the Chester Police and we were investigating a complaint we had signed on her. She stated wait until I get dressed. A few minutes later she opened the door. Upon opening the door, both Officer Ciasen and myself entered and asked Mr. Tinsman to step forward and identify the subject. He did so, identifying Sharon McNair as the subject who threw some cannabis over the fence as [sic] Menard.”

He stated that after defendant was arrested the officers searched the immediate area around her, finding nine or 10 grams of cannabis in her purse, which was open on the floor at the end of the dresser near the door. The cannabis was visible, he said, from a standing position. In a box, the top of which was open, they found scales. The box was next to the wall close to the door. Several rolls of tape were on the dresser. Both the Cadillac, which belonged to defendant, and the Oldsmobile, which she had rented, were impounded and subsequently searched pursuant to a search warrant.

In making his ruling the trial court said,

“Well, this is a very close case, I think. I think it does hinge on what happened outside the door of the motel room. It also hinges somewhat on the effect Captain Umbdenstock stated that he could not say it was Sharon McNair who was described to him so that there was really some doubt as to who they were really looking for in the first place.”

The trial court determined that everything should be suppressed, including both the out-of-court and in-court identifications of defendant, as well as the evidence taken from the motel room and the two automobiles. The court stated further:

“The ID is, I think, that’s the crucial part of this whole case. I think when the officer said that he was going to maybe knock the door down, I think that was sufficient for her to open the door and I think that’s a crucial part of the case or he might have to knock it down; whatever was said. There seems to be a little variance as to what was actually said.”

We consider first the issue the State raises with respect to probable cause, that there was probable cause to arrest the defendant prior to her identification by Lieutenant Tinsman at the door of her motel room. As was said in People v. Creach (1980), 79 Ill. 2d 96, 402 N.E.2d 228, cert. denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564, probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in the belief that an offense has been committed and that the person arrested has committed the offense. Existence of probable cause depends upon the totality of the circumstances as viewed under practical considerations of everyday life from the point of view of reasonable men. People v. Green (1980), 88 Ill. App. 3d 929, 410 N.E.2d 1003.

In the case at bar, security officers at the correctional facility had received information that possibly on the date in question the defendant, who was known to security personnel and, therefore, known to be white, would drop a package apparently containing cannabis over the fence of the facility near a certain fireplug. Because the defendant had been seen at the institution that day accompanied by a black woman, security personnel thought the black woman might make such a drop instead of defendant. On the evening in question a white woman, who appeared to be alone, was observed throwing a package, which later proved to contain cannabis, over the fence so that it landed about 18 feet from the fireplug in question. Although Captain Umbdenstock apparently could not say with certainty from the description given by Lieutenant Tinsman that the woman who had thrown the package was, in fact, Sharon McNair, he appears to have thought she might well be, in view of the subsequent search undertaken at his request for defendant’s automobile, which was found in the parking lot of a local motel and determined to belong to her. The subsequent viewing of defendant by Lieutenant Tinsman in order to identify her lends credence to the idea that the officers believed defendant might well be the person who had thrown the package over the fence. We think that such knowledge would be sufficient to warrant a man of reasonable caution in the belief that an offense had been committed and that the defendant had committed it. Given the totality of the circumstances as viewed under the practical considerations of everyday life from the point of view of reasonable men, probable cause existed to arrest defendant when the officers went to the door of her motel room although they apparently intended to arrest her only if Lieutenant Tinsman’s identification of her was positive.

In People v. Bean (1981), 84 Ill. 2d 64, 69, 417 N.E.2d 608, 611, cert. denied (1981), 454 U.S. 821, 70 L. Ed. 2d 93, 102 S. Ct. 106, the supreme court discussed entry by police into a residence to make an arrest based upon probable cause:

“We agree that generally an arrest warrant is the desired means by which an individual’s right to privacy is protected. (Payton v. New York (1980), 445 U.S. 573, 590, 63 L. Ed. 2d 639, 653, 100 S. Ct. 1371, 1381-82; McDonald v. United States (1948), 335 U.S. 451, 453, 93 L. Ed. 153, 157, 69 S. Ct. 191, 192.) However, when voluntary consent is given to enter one's residence and an arrest is effected based on probable cause, the suspect’s rights under the fourth amendment are not violated, even in the absence of exigent circumstances. That standard for valid consent applied by the Supreme Court in a variety of circumstances is whether that consent is voluntarily given. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2058-59; Bumper v. North Carolina (1968), 391 U.S. 543, 548, 20 L. Ed. 2d 797, 802, 88 S. Ct. 1788, 1791. See Johnson v. United States (1948), 333 U.S. 10, 13, 92 L. Ed. 436, 440, 68 S. Ct. 367, 368-69.)”

Defendant contends that her consent was not voluntarily given, that she did not consent to the entry by opening the door but, rather, merely acquiesced to the inevitable entry by police into the room.

In a motion to suppress evidence unlawfully seized, the burden of proving that the search and seizure were unlawful is on the defendant. (111. Rev. Stat. 1981, ch. 38, par. 114 — 12(b).) At the hearing on the motion to suppress, defendant put on no evidence at all. However, in Bumper v. North Carolina (1968), 391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788, the Supreme Court stated that a prosecutor, when he seeks to rely upon consent to justify the lawfulness of a search, has the burden of proving that the consent was, in fact, freely and voluntarily given. The question whether a consent to a search was, in fact, voluntary rather than the product of duress or coercion, either express or implied, is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.

On review, a ruling of the circuit court on a defendant’s motion to suppress should not be set aside unless it is found to be “clearly” erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.) In the instant case, Officer Ciasen testified to having said “[w]e might have to knock the door down.” Whether the remark was directed to the defendant is not made clear in the record. The remark could have been directed to one or more of the other three officers standing at the door with him and is, for that reason, ambiguous. There is no evidence in the record that the remark was heard by any of the other officers present or either of the two occupants of the motel room, including the defendant. One of the officers present testified that he had not heard such a remark, though he could not say it had not, in fact, been made, and the other two officers did not testify at all regarding the remark during either direct or cross-examination. The black woman in the room at the time defendant opened the door did not testify at all. It is not known whether the remark was even audible to this person or to the defendant. There is no evidence that the police addressed the occupants of the room unduly loudly. There is no evidence of violent conduct of any kind, such as a pounding on the door. There is no evidence that the defendant knew that more than two officers were at the door, so that she might have felt intimidated by the presence of several officers outside her door. Although the hour was late, there is no evidence that defendant was sleeping or that she had already retired for the night.

According to the testimony, Officer Hogrefe seems to have knocked on the door, and Officer Ciasen appears to have identified himself as a policeman and asked the occupants of the room to come to the door, saying the police wished to talk to them. Defendant said she had to dress. Police waited and knocked again, indicating again that they wanted to talk to her. Officer Ciasen thereupon made the remark in question, and defendant came to the door. Under the totality of all the circumstances presented here, we think that the defendant opened the door, not under duress or coercion, but voluntarily. Since defendant’s consent was voluntary and police had probable cause to arrest her at the time she opened the door, the arrest was lawful. For that reason, evidence of Lieutenant Tinsman’s subsequent identification of her, both in and out of court, ought not to have been suppressed. For the same reason the evidence in plain view observed in the motel room and seized by the police ought not to have been suppressed. Nor should the evidence taken from the two automobiles pursuant to a search warrant have been suppressed in view of the lawfulness of the arrest.

Reversed.

KASSERMAN, J., concurs.

JUSTICE KARNS,

dissenting:

The problem here, as I see it, is that no one had ever identified defendant, prior to the time she was forced to come to the door of the motel room, as the person who threw the package over the fence. When Lieutenant Tinsman related to Captain Umbdenstock what he had seen, and it was Umbdenstock who had received the tip and directed Tinsman to view the area in question, he could not relate the description given to defendant, nor the car described by Tinsman, to defendant. The local police were notified to be on the lookout not for an Oldsmobile but a blue Cadillac, which was obviously not the car that Tinsman had seen, as Tinsman confirmed in his testimony.

Umbdenstock testified that after talking to Tinsman he could not say that the driver was defendant, whom he knew and could describe. I do not believe that the police had probable cause to arrest defendant at the time they arrived at her motel room. The information known to Umbdenstock and Tinsman and related to the local police was obviously based on a tip from an anonymous informant whose reliability was never established. (Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509.) The only corroboration here was of the kind rejected in People v. Greer (1981), 87 Ill. 2d 89, 429 N.E.2d 505, and People v. Gates (1981), 85 Ill. 2d 376, 423 N.E.2d 887, as “self verifying.”

Additionally, I consider the warrantless viewing of defendant at her motel room to be equivalent to a warrantless entry to effectuate her arrest. She did not just voluntarily come to the door to be viewed by Lieutenant Tinsman. The police stated that the door would be “knocked down” if she didn’t come to the door. What was done here was the equivalent of a warrantless entry into her room, absent exigent circumstances, of a kind condemned in Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.

As to consent, the able trial judge found defendant did not consent. His determination of this fact question, as well as others, is not to be ignored unless clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.) Here the majority has apparently found the resolution of factual disputes, and matters of credibility, by the trial court, to be “clearly erroneous”; however, it seems obvious that the trial court found that the statement that the door would be “knocked down” was directed to the occupants of the room. I do not believe that the testimony is ambiguous.

The trial court gave thoughtful consideration to a resolution of the factual questions here. His decision should be affirmed.


author: PRESIDING JUSTICE HARRISON

text:
    FREEMAN UNITED COAL MINING COMPANY, Plaintiff-Appellee and Cross-Appellant, v. THE FAIR EMPLOYMENT PRACTICES COMMISSION et al., Defendants-Appellants and Cross-Appellees.
    Fifth District
    No. 82—32
    Opinion filed March 2, 1983.

      Don E. Prosser, of Kimmel, Huffman, Prosser & Kimmel, Ltd., of Carbondale, for appellants LaDonna Young and Linda Simpkins.
    Tyrone C. Fahner, Attorney General, of Springfield (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellant State of Illinois Fair Employment Practices Commission.
    Don A. Banta and J. Kevin Hennessy, both of Naphin, Banta & Cox, of Chicago, for appellee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

The defendants, LaDonna Young, Linda Simpkins, and the Illinois Fair Employment Practices Commission (hereinafter referred to as the Commission) appeal from a final judgment of the circuit court of Franklin County affirming in part and reversing in part the Commission’s order awarding backpay to the individual defendants. The plaintiff, Freeman United Coal Mining Company (hereinafter referred to as Freeman) has filed a cross-appeal asserting that the circuit court erred in affirming any portion of the Commission’s order. We affirm in part and reverse in part.

On January 29, 1975, LaDonna Young and Linda Simpkins, both females, applied to Freeman for positions as miner trainees. At the time of their application it was Freeman’s policy to exclude females from underground work, and consequently their applications were not considered at the time they were submitted. In January 1975 Freeman had no openings for miner trainees. In March and April of that year Freeman hired 12 male trainees, four of whom had applied before Young and Simpkins had. The remaining eight male applicants applied after the complainants had applied. Four of these possessed certain trade or craft skills which had proved to be of use in underground mining, and these applicants were therefore entitled to preferential consideration pursuant to Freeman’s hiring policies. The remaining four males hired did not possess such trade or craft skills. When Young and Simpkins applied for mining positions, section 9.01 of the Coal Mining Act (111. Rev. Stat. 1973, ch. 93, par. 9.01) provided that “No boy under the age of 18 years, and no woman or girl of any age, shall be permitted to do any manual labor in or about any mine.” (Current version at 111. Rev. Stat. 1981, ch. 961/2, par. 901.) In 1974, the Attorney General for the State of Illinois issued an opinion stating that coal companies could no longer rely on section 9.01 to exclude women from employment in or around the coal mines. In May of 1974 Freeman received written notice of the Attorney General’s opinion from the director of the Department of Illinois Mines and Minerals. Freeman, however, adhered to its policy of excluding women from underground mine work. In August of 1975 Young and Simpkins were hired for underground word. In September 1975, section 9.01 was amended to delete the reference to disparate treatment according to sex. In October of 1975 Young and Simpkins began work as miner trainees.

Pursuant to charges filed by Young and Simpkins the Commission issued a complaint of unfair employment practices under section 3(a) of the Fair Employment Practices Act (111. Rev. Stat. 1973, ch. 48, par. 853(a), repealed 1980; current version at 111. Rev. Stat. 1981, ch. 68, par. 2 — 102(A)) (hereinafter referred to as the FEPA). In 1975, at the time of the occurrences in question, the FEPA provided that:

“It is an unfair labor practice:
(a) For any employer, because of the race, color, religion, sex, national origin or ancestry of an individual to refuse to hire, to segregate, or otherwise to discriminate against such individual with respect to hire, selection and training for apprenticeship in any trade or craft, tenure, terms or conditions of employment.” (111. Rev. Stat. 1973, ch. 48, par. 853(a).)

The individual defendants alleged that Freeman had violated the FEPA. The hearing examiner agreed, made specific factual findings, and recommended an award of backpay. The Commission adopted the hearing examiner’s findings and recommendation. On administrative review the circuit court affirmed the Commission’s finding of discrimination but reversed the backpay award on the grounds that Freeman had demonstrated good faith reliance on the protective statute and that there was no evidence that that reliance was a pretext. Young, Simpkins, and the Commission appeal from the reversal of the back-pay award, and Freeman appeals from the affirmance of the Commission’s findings that Freeman had violated the FEPA.

The analysis of a discrimination claim under the FEPA is similar to the analysis employed under title VII of the Civil Rights Act of 1964 (42 U.S.C. sec. 2000a et seq. (1976)). (Board of Education v. Fair Employment Practices Com. (1979), 79 Ill. App. 3d 446, 452, 398 N.E.2d 619; see City of Cairo v. Fair Employment Practices Com. (1974), 21 Ill. App. 3d 358, 363, 315 N.E.2d 344.) Under title VII, a three-step analysis of the allocation of the burden of proof was formulated by the United States Supreme Court in Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089. “That analysis may be summarized as follows: (1) the plaintiff must make out a prima facie case of discrimination; (2) at this point, the defendant assumes the burden of producing (as distinct from proving) a reason for its actions which is, on its face, legitimate and non-discriminatory; (3) it is then incumbent on the plaintiff to carry her continuing burden of proof that she was, in fact, a victim of sex discrimination.” (Emphasis in original.) Miller v. WFLI Radio Inc. (6th Cir. 1982), 687 F.2d 136, 138.

In its cross-appeal Freeman contends that the circuit court erred in affirming the Commission’s finding of discrimination on Freeman’s part in that the Commission applied an incorrect evidentiary standard and in that the finding of discrimination is not supported by the evidence. In a previous order the circuit court had reversed the Commission’s findings of fact in this case because the Commission had applied a “clear and convincing” evidentiary standard. The Commission’s order after remand applied the same “clear and convincing” evidentiary standard to the facts of the case. In an extended discussion in its written order, the Commission relied on many Federal cases as support for its position, despite the circuit court’s reversal of its original order on this precise ground. We note initially that “ ‘[a]fter a judgment is reversed and the cause is remanded the inferior tribunal can take only such further proceedings as conform to the judgment of the appellate tribunal.’ ” (People v. Webb (1982), 109 Ill. App. 3d 328, 331, 440 N.E.2d 406, quoting Roggenbuck v. Breuhaus (1928), 330 Ill. 294, 297-98, 161 N.E. 780.) We see no valid reason not to apply this principle to an administrative proceeding. Hence, the Commission’s discussion of what it perceived as valid reasons for application of the “clear and convincing” standard was inappropriate. Moreover, the Commission erroneously placed on Freeman the burden of proving lack of discrimination. See Board of Education v. Fair Employment Practices Com. (1979), 79 Ill. App. 3d 446, 452-53.

A claim of employment discrimination can be brought under either the “disparate treatment” theory enunciated in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817, or under the “disparate impact” theory of Griggs v. Duke Power Co. (1971), 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849. (See International Brotherhood of Teamsters v. United States (1977), 431 U.S. 324, 335 n.15, 52 L. Ed. 2d 396, 415 n.15, 97 S. Ct. 1843, 1854 n.15.) Because Freeman’s employment policy applied only to females, this case should be analyzed under the former rather than the latter theory. See Furnco Construction Corp. v. Waters (1978), 438 U.S. 567, 575 n.7, 57 L. Ed. 2d 957, 966 n.7, 98 S. Ct. 2943, 2948 n.7.

Two distinct lines of subanalysis have been formulated under the disparate treatment rubric. Discrimination may be proved by establishing that the employer engaged in a “pattern or practice” of disparate treatment which was premised on unlawful considerations (see International Brotherhood of Teamsters v. United States (1977), 431 U.S. 324, 334-35, 52 L. Ed. 2d 396, 415, 97 S. Ct. 1843, 1854) or by showing individual acts of discrimination (McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802, 36 L. Ed. 2d 668, 677, 93 S. Ct. 1817, 1824). In the instant case Freeman’s policy admittedly precluded women from obtaining mining jobs; we therefore need not engage in either of the subanalyses as the existence of the policy of discrimination was established. In Franks v. Bowman Transportation Co. (1976), 424 U.S. 747, 772, 47 L. Ed. 2d 444, 466, 96 S. Ct. 1251, 1267-68, the court held that proof of a policy of discrimination against a class creates a rebuttable presumption that individual class members were discriminated against.

“The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy. The Government need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination. As in Franks, the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.” (International Brotherhood of Teamsters v. United States (1977), 431 U.S. 324, 362, 52 S. Ed. 2d 396, 431-32, 97 S. Ct. 1843, 1868.)

Young and Simpkins applied for jobs without success. Coupled with the discriminatory policy, this establishes a prima facie case of discrimination.

Proceeding to the second level of analysis under Burdine, Freeman contends that section 9.01 of the Coal Mining Act provides a legitimate and nondiscriminatory basis for failing to hire Young and Simpkins. In their appeal the defendants assert that the circuit court erred in that (1) the record supports the Commission’s finding that Freeman did not rely in good faith on section 9.01; (2) section 9.01 was not a valid law; (3) there was no real threat of prosecution under the statute; (4) an award of backpay is warranted despite good faith reliance on section 9.01; and (5) the record supports the Commission’s finding that Freeman’s alleged reliance was a pretext.

The defendants contend that the record supports the Commission’s finding that Freeman did not rely on section 9.01 in good faith. The Commission raises the threshhold question of whether good faith reliance on a State protective statute can constitute a legitimate and nondiscriminatory reason for failing to hire the defendants. Where a Federal statute creates the right claimed to have been violated, reliance on a State protective statute has been held to be no defense. (Stryker v. Register Publishing Co. (D.C. Conn. 1976), 423 F. Supp. 476, 479-80, but see Albermarle Paper Co. v. Moody (1975), 422 U.S. 405, 448, 45 L. Ed. 2d 280, 315-16, 95 S. Ct. 2362, 2389 (Blackmun, J., concurring).) The rationale behind this rule apparently is the doctrine of Federal preemption, rooted in the supremacy clause of the United States Constitution. (See Stryker v. Register Publishing Co. (D.C. Conn. 1976), 423 F. Supp. 476, 479.) This doctrine is appropriately applied to resolve conflicts between a Federal statute and a State enactment. (See Hutchcraft Van Service, Inc. v. City of Urbana Human Relations Com. (1982), 104 Ill. App. 3d 817, 823, 433 N.E.2d 329.) Where two State statutes are in conflict, as in the case sub judice, the constitutional underpinning of the doctrine is absent and it is therefore inapplicable. In this situation Justice Blackmun’s comments in a title VII case are all the more relevant.

«*** j believe that the employer’s good faith may be a very relevant factor for a court to consider in exercising its discretionary power to fashion an appropriate affirmative action order. Thus, to take a not uncommon example, an employer charged with sex discrimination may defend on the ground that the challenged conduct was required by a State’s ‘female protective’ labor statute. [Citations.] In such a case, the employer may be thrust onto the horns of a dilemma: either he must violate Title VII or he must violate a presumptively valid state law. Even though good-faith reliance on the state statute may not exonerate an employer from a finding that he has intentionally violated Title VII, [citation] surely the employer’s good-faith effort to comply with Title VII to the extent possible under state law is a relevant consideration in considering whether to award backpay. Although backpay in such a case would serve the statutory purpose of making the discriminatee whole, it would do so at the expense of an employer who had no alternative under state law and who derived no economic benefit from the challenged conduct.” (Albermarle Paper Co. v. Moody 422 U.S. 405, 448, 45 L. Ed. 2d 280, 315-16, 95 S. Ct. 2362, 2389 (Blackmun, J., concurring).)

In light of the inapplicability of the preemption doctrine this rationale can be applied validly to the second step in the Burdine analysis. We find the rationale persuasive and consequently we hold that good faith reliance on a State protective statute can be a “legitimate and nondiscriminatory” reason for failing to hire female mine workers.

To rebut the prima facie case of discrimination under title VII the employer need only set forth a legitimate, nondiscriminatory reason for rejecting the alleged discriminatee. (Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 254-55, 67 L. Ed. 2d 207, 216, 101 S. Ct. 1089, 1094.) The employer need not persuade the trier of fact that it was actually motivated by the proffered reasons, but need only produce evidence raising “a genuine issue of fact as to whether it discriminated against the plaintiff.” (450 U.S. 248, 254-55, 67 L. Ed. 2d 207, 216, 101 S. Ct. 1089, 1094.) The rationale for this rule is that under title VII a “prima facie case” establishes a legal presumption of discrimination (450 U.S. 248, 254 n.7, 67 L. Ed. 2d 207, 216 n.7, 101 S. Ct. 1089, 1094 n.7); when the employer has produced a satisfactory explanation, the presumption, but not the evidence giving rise to it, “drops from the case” (450 U.S. 248, 255 & n.10, 67 L. Ed. 2d 207, 216 & n.10, 101 S. Ct. 1089, 1095 & n.10). This rule accords with the Illinois rule of “bursting bubble” presumptions (see generally Franciscan Sisters Health Care Corp. v. Dean (1981), 102 Ill. App. 3d 61, 68-70, 429 N.E.2d 914), and we therefore find this analysis to be appropriate under the FEPA. Freeman’s director of employee relations testified to Freeman’s reliance on the statute. This satisfies the burden of production imposed by McDonnell Douglas and rebuts the prima facie case. See Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 254-55 & n.9, 67 L. Ed. 2d 207, 216-17 & n.9, 101 S. Ct. 1089, 1094 & n.9.

At the third level of inquiry under Burdine, after rebuttal of the prima facie case, the burden of persuasion is retained by the alleged discrimination victim. (450 U.S. 248, 256, 67 L. Ed. 2d 207, 217, 101 S. Ct. 1089, 1095.) “This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” (450 U.S. 248, 256, 67 L. Ed. 2d 207, 217, 101 S. Ct. 1089, 1095.) We interpret this as affording the alleged discriminatee two distinct methods by which she may prove that the employer’s articulated reason was a pretext. (450 U.S. 248, 255-56, 67 L. Ed. 2d 207, 216-17, 101 S. Ct. 1089, 1094-95; see Miller v. WFLI Radio Inc. (6th Cir. 1982), 687 F.2d 136, 138.) Under the first she may produce affirmative evidence of discrimination which would tend “directly” to establish the identity of the employer’s actual motivation. The second method attacks the reasonableness (“good faith”) of the employer’s articulated explanation. This contemplates “indirect” proof; i.e., showing that the employer’s excuse is improbable tends to prove that the employer was motivated by another goal. Because it chose to articulate an unbelievable explanation for its actions, an inference that the real goal was unlawful arises indirectly. These two issues will be discussed separately.

The defendants contend that the record supports the Commission’s finding that Freeman did not rely on section 9.01 in good faith. The hearing officer’s written opinion tested Freeman’s assertion of good-faith reliance on section 9.01 by determining the reasonableness of Freeman’s belief in the statute’s validity and enforceability, relying on Schaeffer v. San Diego Yellow Cabs, Inc. (9th Cir. 1972), 462 F.2d 1002, 1007. The hearing officer concluded that Freeman “disregarded the directive of its regulating agency and did so without countervailing authority from any other source. In view of the above I cannot find that [Freeman] relied upon §9.01 in good faith, and the company’s affirmative defense based upon such reliance must fail.” The perceived legal infirmity of the statute does not directly identify Freeman’s “real” motivation but rather tends to suggest that a different reason is more likely because no one could reasonably have relied on the statute in the face of the Attorney General’s opinion. This represents a finding that Freeman’s reliance is “unworthy of credence” because it indirectly supports an inference of impermissible motivation.

In determining whether Freeman’s reliance was reasonable, and therefore in good faith, the hearing officer focused on the Attorney General’s opinion and the position of the Department of Mines and Minerals, and the absence of countervailing authority produced by Freeman to support its position. Based on these factors the hearing officer concluded, and the Commission agreed, that Freeman’s reliance was not in “good faith.” Were we required to decide whether section 9.01 was unconstitutional or impliedly repealed by the FEPA wé might agree with the Commission. The question, however, is not whether section 9.01 could have been declared invalid by a court, but whether Freeman’s reliance on the statute was so unreasonable as to be deemed not in good faith. A statute enjoys a presumption of validity and all reasonable doubts must be resolved in its favor. (North Shore Post No. 21 v. Korzen (1967), 38 Ill. 2d 231, 233, 230 N.E.2d 833.) “Prior to being held unconstitutional, a statute is an operative fact with consequences, (or potential consequences) which cannot be ignored.” (Emphasis added.) (Reich v. Board of Fire & Police Commissioners (1973), 13 Ill. App. 3d 1031, 1035, 301 N.E.2d 492.) An opinion of the Attorney General does not constitute a judicial construction of the statute. (See Rogers Park Post No. 108 v. Brenza (1956), 8 Ill. 2d 286, 292, 134 N.E.2d 292.) Production of “countervailing authority” is unnecessary as the statute is itself authority enough to warrant reliance upon it. The Commission asserts that the Attorney General’s opinion eliminated any real threat of prosecution (see Ill. Rev. Stat. 1973, ch. 93, par. 36.01) under the act and therefore Freeman’s reliance was unreasonable. While the Commission’s premise might be tenable, its conclusion does not follow from the premise as the argument overlooks the civil consequences of violating a statute. (See Marquette Third Vein Coal Co. v. Dielie (1904), 208 Ill. 116, 70 N.E. 17; Ill. Rev. Stat. 1973, ch. 93, par. 10.07; see generally Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 221, 384 N.E.2d 323; Loschiavo v. Greco Contractors, Inc. (1981), 106 Ill. App. 3d 556, 558, 435 N.E .2d 702.) We conclude that the Attorney General’s opinion does not constitute a ground upon which Freeman’s reliance on section 9.01 may be deemed unreasonable, and we therefore hold, as a matter of law, that there was insufficient evidence to support the Commission’s finding.

The Commission also contends that the record demonstrates a direct showing of discrimination with affirmative evidence. The order adopted by the Commission did not reach this issue as it had concluded that Freeman’s asserted reliance was not in “good faith.” We will therefore examine the record to determine whether any evidence was introduced in support of the Commission’s contention. Compare Miller v. WFLI Radio Inc. (6th Cir. 1982), 687 F.2d 136, 139.

Freeman’s director of employee relations testified that Freeman did not hire females for underground work because this practice was prohibited by the Coal Mining Act. As evidence tending to refute that statement, the defendants call attention to Freeman’s hiring them before the repeal of the prohibition against female miners became effective in September of 1975. This overlooks the fact that Young and Simpkins did not actually begin work in the mines until October 1975 — after the prohibition was repealed. The Commission’s brief argues that Freeman’s agreement to a labor contract containing a prohibition against sex discrimination indicates that Freeman’s reliance on section 9.01 was a pretext. This agreement does not pertain to hiring practices but only to “the terms or availability of classified employment” to those already employed and consequently we deem it irrelevant to the instant inquiry. Similarly, we fail to perceive the relevance of the Commission’s assertion that testimony established that Freeman’s president was an attorney. The relevant evidence allows only one rational conclusion: that Freeman actually relied on section 9.01 in failing to hire Young and Simpkins in early 1975. Therefore, a remandment on this issue is unnecessary as Young and Simpkins failed to satisfy their burden of proof. We need not address the issue of whether Young and Simpkins proved that those hired before them were not better qualified (see Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 258-59, 67 L. Ed. 2d 207, 218-19, 101 S. Ct. 1089, 1096-97) because our conclusion that Freeman’s reliance on the statute is a legitimate, nondiscriminatory reason for failing to hire Young and Simpkins constitutes a finding that Freeman did not violate the FEPA. This also obviates a discussion of the backpay issue. We therefore affirm the portion of the circuit court’s order reversing the Commission’s order of backpay and reverse that portion of the order affirming the Commission’s finding of discrimination.

Affirmed in part and reversed in part.

EARNS and EASSERMAN, JJ., concur.


author: JUSTICE SULLIVAN

text:
    RAYMOND D. BALDI, Plaintiff-Appellant, v. CHICAGO TITLE & TRUST CO., Trustee, et al., Defendant-Appellee.
    First District (5th Division)
    No. 81—2701
    Opinion filed February 25, 1983.

      Sheldon Belofsky, of Chicago, for appellant.
    Hogan, McNulty & Meyer, of Chicago, for appellee Alfred W. Israelstam.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from an order denying plaintiff the right to foreclose a junior mortgage prior to redeeming from an earlier foreclosure of a senior encumbrance. Plaintiff contends that the trial court erred in (1) ruling that he had no right to foreclose; and (2) failing to determine the precise amount necessary to redeem from the senior encumbrance.

A promissory note which plaintiff holds is secured by a trust deed to Chicago Title and Trust Co., as trustee (the junior mortgage). At the time the junior mortgage was executed and recorded in 1977, the real estate was encumbered by a prior trust deed, also naming Chicago Title and Trust Co., as trustee (the senior mortgage), which secured a promissory note ultimately held by Alfred W. Israelstam (defendant).

Thereafter, defendant’s predecessor in interest commenced an action to foreclose the senior mortgage. Neither plaintiff nor Chicago Title and Trust Co., as trustee, were made parties defendant in that action, although Chicago Title and Trust Co. was named as a defendant and served with process in its corporate capacity. A decree of sale was entered in that proceeding, and defendant herein purchased the property, receiving a sheriff’s deed in May 1979.

Subsequently, plaintiff brought the present action, seeking to foreclose his trust deed or, in the alternative, to equitably redeem from defendant.

Plaintiff, the sole witness at trial, testified that he was the holder of a promissory note secured by a junior trust deed, and that he was neither served with summons in the prior foreclosure proceeding nor notified by Chicago Title and Trust Co. that it was a defendant therein. The trial court, taking judicial notice of the pleadings in the prior proceeding which disclosed that plaintiff had not been a party thereto, found that “plaintiff does not have the right to foreclose his mortgage” and “that plaintiff be and hereby is given within 90 days *** to equitably redeem title.” This appeal followed.

Opinion

We first consider the contention of plaintiff that the court erred in ruling that he may not foreclose his trust deed before redeeming from the prior foreclosure.

A junior mortgage conveys to the mortgagee a lien on the mortgagor’s equity of redemption (Gregory v. Suburban Realty Co. (1920), 292 Ill. 568, 127 N.E. 119), and in a foreclosure of the senior encumbrance, the junior mortgagee is a proper party to the action, but his presence is not necessary to a valid decree (Chandler v. O’Neil (1895), 62 Ill. App. 418); however, a foreclosure proceeding to which a junior mortgagee is not a party is not binding on him and he retains his right to redeem in equity but may not foreclose his mortgage prior to redemption (Rose v. Walk (1894), 149 Ill. 60, 36 N.E. 555; Hamalle v. Kimmel (1922), 224 Ill. App. 9), although after redeeming, he may foreclose and have the land sold for satisfaction of his mortgage debt as well as the amount paid in redemption (Harper v. Sallee (1941), 376 Ill. 540, 34 N.E.2d 860).

Plaintiff acknowledges the continued validity of these long-established principles, but argues that, under exceptional circumstances this court should allow, as an additional remedy, the right to foreclose without redeeming. He maintains, relying solely upon Callner v. Greenberg (1941), 376 Ill. 212, 33 N.E.2d 437, that when a junior mortgagee has been omitted through fraudulent conduct from an action to foreclose a senior encumbrance, he may elect any equitable remedy, including foreclosure.

In Callner, senior mortgagees fraudulently prevented the junior mortgagee from learning of their foreclosure proceeding and bidding at the sale. The mortgage debt under the senior mortgage was $50,000, but the purchaser at foreclosure, in collusion with the senior mortgagees, paid only $8,500 for the property. The junior mortgagee learned of the foreclosure after the statutory redemption period had expired, and sought to redeem from the sale rather than from the mortgage debt. The senior mortgagees argued that, since the junior mortgagee was not a party to the foreclosure, he had only his equitable right to redeem by paying the mortgage debt of $50,000, and had no statutory right to redeem from the sale for $8,500.

The court held that, because of the senior mortgagees’ fraud, the junior mortgagee had a right to redeem from the sale rather than from the senior encumbrance. The court reasoned that “[ejquity gives him the right, as against the fraudulent conduct of appellees, of electing to select any remedy available. A court of equity has power to decree that a wrongdoer shall not enjoy an inequitable advantage by taking away the benefit obtained by fraud, [citation] and, as against parties participating, void the fraud by placing the parties in status quo.” 376 Ill. 212, 218, 33 N.E.2d 437, 440.

It is the position of plaintiff here, as it was in the trial court, that a misrepresentation in the petition filed by defendant in the prior foreclosure proceeding “amounted to a fraud upon the rights of plaintiff” and thus, under Callner, he should have been permitted to foreclose without first redeeming from defendant.

In order to establish misrepresentation, plaintiff must show (1) that there has been a false statement of material fact made by defendant; (2) that defendant knew or believed the statement to be false; (3) that defendant intended to induce action by another party; (4) that action in justifiable reliance on that statement occurred; and (5) that injury resulted from reliance thereon. Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 402 N.E.2d 599.

In pertinent part, the petition in question asked the court to recognize that the Chicago Title and Trust Co., as trustee of the trust deed plaintiff was seeking to foreclose, and other persons had certain redemption rights that had expired and should be barred. The court entered an order in accordance with the request of petitioner and directed the issuance of a deed conveying the premises in question to defendant. While plaintiff argues that in his petition defendant misrepresented to the court that it had jurisdiction over plaintiff’s trust deed, he points to no specific false statement in the petition, and even assuming that there was such a false statement, he makes no showing that any injury resulted from it. Additionally, it would appear that such misrepresentation is negated by the fact that Chicago Title and Trust Co., in its corporate capacity, was a party defendant and presumably had notice that plaintiff’s petition asked the court to bar redemption rights it had under plaintiff’s trust deed.

Moreover, even if plaintiff had been able to establish a misrepresentation, the remedy he seeks is not within the purview of Callner, which was concerned only with the amount to be paid in redemption. There, the court noted that the aggrieved party could select any remedy available, with a view to voiding the fraud by restoring the status quo. Here, even if plaintiff had been a party to the prior foreclosure proceeding, the remedy of foreclosure without redemption would not have been available to him. Thus, if plaintiff were afforded the remedy he seeks, the status quo would not be restored; rather, he would receive a benefit to which he was not entitled as a junior mortgagee — priority of his lien over the senior encumbrance.

Plaintiff further contends, however, that even in the absence of misrepresentation, the better rule would require that a junior mortgagee be made a party to the foreclosure of a senior mortgage. To do otherwise, he maintains, gives inadequate protection to junior mortgagees and purchasers at judicial sales. Plaintiff has not cited, nor has our own research discovered, any cases indicative of such a trend toward a rule contrary to those stated herein; in fact, those rules appear to be generally accepted. (See 59 C.J.S. Mortgages secs. 627d, 704b, 813c, 834g (1949 & Supp. 1982).) Moreover, while the doctrine of stare decisis is not an inflexible rule prohibiting the reexamination of legal concepts (Williams v. Crickman (1980), 81 Ill. 2d 105, 405 N.E.2d 799), a rule of law, once settled, should be followed unless it can be shown that it is likely to give rise to serious detriment prejudicial to the public interest (Maki v. Frelk (1968), 40 Ill. 2d 193, 239 N.E.2d 445). Under the cases cited herein, the rights of junior mortgagees are protected from any inequitable conduct on the part of a senior mortgagee. Furthermore, innocent purchasers are protected by statute (111. Rev. Stat. 1979, ch. 77, par. 35a; Uptown Federal Savings & Loan Association v. Vasavid (1981), 94 Ill. App. 3d 531, 418 N.E.2d 831) and by Supreme Court Rule 305(i) (73 Ill. 2d R. 305(i)); Glen Ellyn Savings & Loan Association v. State Bank (1978), 65 Ill. App. 3d 916, 382 N.E.2d 1267).

Plaintiff also contends that the order as written precludes him from foreclosing his mortgage even after he has equitably redeemed from the senior mortgage. He maintains that the portion of the order which states “[t]hat Plaintiff does not have the right to foreclose its mortgage” should be modified by adding “until he has equitably redeemed from defendant.”

As noted previously, plaintiff may foreclose his mortgage once he has redeemed, and recover not only the mortgage debt but also the amount paid in redemption. (Harper v. Sallee (1941), 376 Ill. 540, 34 N.E.2d 860.) However, we do not agree that the order here precludes that right, since “[a] judgment or decree like any other written instrument is to be construed reasonably and as a whole so as to give effect to the apparent intention of the court” (Pope v. Pope (1972), 7 Ill. App. 3d 935, 937, 289 N.E.2d 9, 11), and it must be read and construed in connection with the pleadings (Rice v. Dougherty (1909), 148 Ill. App. 368) just as, in an analogous situation, orders are interpreted within the context of the motions which accompany them (Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 424 N.E.2d 911).

In the instant action, it appears from plaintiff’s amended complaint that defendant’s mortgage was superior to his own, and that he had not redeemed therefrom following foreclosure of the senior mortgage. He asked therein that he be allowed to foreclose; or, alternatively, that he be allowed to equitably redeem. The trial court’s order, then, can refer only to the alternatives for relief prior to redemption. Plaintiff’s right to foreclose after redemption was never in issue between the parties, for it was not raised in the pleadings; therefore, we do not believe that the present order can be interpreted to preclude a remedy which plaintiff has not sought.

Finally, plaintiff contends that the court erred in failing to determine the amount he was required to pay in redemption. He does not dispute that when a junior mortgagee excluded from foreclosure proceedings exercises his equitable right of redemption, the amount to be paid includes the amount of the debt, interest thereon to the time of redemption, taxes paid to preserve title, and the cost of necessary repairs, but does not include costs and attorney fees in the prior action. (Rodman v. Quick (1904), 211 Ill. 546, 71 N.E. 1087.) Rather, he maintains that the necessity and value of repairs allegedly performed by defendant are in dispute, and he argues that, in the absence of a determination of the amount to be paid, he is unable to exercise his right to redeem.

A decree for redemption should include the terms and conditions of redemption, including the amount to be paid and a time period within which redemption is to occur. (Carpenter v. Plagge (1901), 192 Ill. 82, 61 N.E. 530.) Here, plaintiff asked in his amended complaint that he be allowed to redeem “after a full and complete hearing with respect to the amount which may be due ***” and he alleged that repairs made by defendants were unnecessary. However, at trial he neither presented evidence on the amount to be paid in redemption nor sought a ruling from the trial court on this question. Therefore, the issue is not properly before us, since the failure to request a ruling (Dial v. City of O’Fallon (1980), 81 Ill. 2d 548, 411 N.E.2d 217) or present evidence on an issue (In re Estate of Cohan (1978), 59 Ill. App. 3d 963, 376 N.E.2d 628; Pannett v. Schnitz (1977), 50 Ill. App. 3d 128, 365 N.E.2d 191) waives the question for purposes of review.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

WILSON, P.J., and O’CONNOR, J., concur.


author: JUSTICE WELCH

text:
    THE COUNTY OF MASSAC, Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY CO. et al., Defendants-Appellees.
    Fifth District
    No. 81-677
    Opinion filed March 8, 1983.

      Garrison & Garrison, of Marion, for appellant.
    Mitchell & Armstrong, Ltd., of Marion (J. C. Mitchell, of counsel), for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

On September 5, 1978, suit was filed in the circuit court of Mas-sac County against Superior Structures Co. and the County of Mas-sac. As ultimately amended, the complaint alleged that on August 27, 1977, plaintiff Mark Krueger was driving south on Old Marion Road in Massac County. His car struck a partially completed bridge being constructed over Mud Creek by Superior Structures and fell into the creek. According to the complaint, Superior Structures acted negligently and in violation of a portion of the road construction injuries act (111. Rev. Stat. 1977, ch. 121, par. 314.4) by failing to provide adequate warning signs, barricades or lighting to alert motorists that the Mud Creek bridge was under construction and by failing to replace suitable barriers, signs or barricades which Superior knew or should have known had been removed by vandals. Similar allegations were made against the county, but instead of listing a violation of the road construction injuries act, the complaint asserted that the county had failed to erect suitable barriers or signs or arrange a suitable detour, contrary to section 9 — 102 of the Illinois Highway Code (111. Rev. Stat. 1977, ch. 121, par. 9 — 102). This action was dismissed on March 17, 1981, pursuant to stipulation, because the plaintiff’s claim had been settled.

At the time of Krueger’s accident, the county was covered by a policy of “manufacturers’ and contractors’ liability insurance” issued by U.S. Fidelity and Guaranty Co. and Fidelity and Guaranty Insurance Underwriters, Inc. (collectively referred to here as USF&G). The county forwarded a copy of Krueger’s complaint to USF&G, and its Marion, Illinois, office responded by letter dated September 14, 1978. In that letter, USF&G’s personnel stated that its policy did not cover the incident described in the complaint, and it would therefore not defend the county in that action.

The county then filed a complaint for a declaratory judgment against USF&G on September 26, 1980, two years after Krueger filed suit against the county, and six months before that action was dismissed. In that pleading, the county averred that USF&G’s policy provided coverage for the Krueger accident and that due to USF&G’s refusal to defend it, the county had incurred substantial costs and attorney fees. It was requested that the court declare the rights and liabilities of the parties to the contract of insurance, that USF&G be ordered to defend the county in the Krueger action and that the county be awarded its costs and attorney fees previously expended in defense of that action. This complaint was amended on March 30, 1981. The amended complaint, which requested money damages rather than a declaratory judgment, alleged that the county had paid Mark Krueger $10,000 to settle the action against it and that its attorney fees incurred in connection with that suit totalled $1,267.50. Both of these amounts, which the county contended had resulted from USF&G’s refusal to defend it, were sought in the complaint.

After a brief evidentiary hearing, the court entered a written judgment in which it was noted that USF&G’s policy did not apply “to any construction or repair operations during suspension thereof” or “to omissions or supervisory acts of the insured in connection with work performed for the named insured by independent contractors.” The court stated that evidence presented by USF&G at that hearing showed that the Krueger accident fell within those two exclusions. It was found that had USF&G assumed the defense of the Krueger action, a conflict of interest between USF&G and the county would have been created, and thus USF&G’s failure to defend the county did not estop it from asserting those exclusions in the county’s action against it. (Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24.) According to the principles of Thornton and Peppers, the court held USF&G responsible for the costs of the county’s independent counsel, and entered judgment in favor of the county for $1,267.50. From that portion of the judgment denying it relief in the amount of its settlement with Mark Krueger, the county appeals.

The position taken by the county is that the Krueger complaint shows that that incident was potentially covered by USF&G’s policy, and no conflict would have been presented had USF&G defended the county in that action. Consequently, the county asserts that USF&G should be estopped from raising policy exclusions against it. USF&G responds: (1) that its duty to defend the county was discharged when the county filed a declaratory judgment against it, (2) that the county waived the estoppel argument by failing to raise it in its complaint for declaratory judgment, (3) that equitable principles should preclude the county from asserting an estoppel against it, and (4) that a conflict of interest prevented it from defending the county in the Krueger action, as the trial court held.

The insurance policy between USF&G and the county provided that the insurer would defend any suit against the county seeking damages on account of bodily injury or property damage, “even if any of the allegations of the suit are groundless, false or fraudulent.” The legal principles applicable to such a clause are not in dispute. If a complaint is filed against the insured which alleges facts giving rise to potential coverage by the policy, the insurer must defend the suit under a reservation of rights or seek a declaratory judgment that there is no coverage. Otherwise, the insurer is estopped from raising policy defenses and exclusions from coverage. Murphy v. Urso (1981), 88 Ill. 2d 444, 430 N.E.2d 1079.

In the case at bar, the county states that the trial court found that Krueger’s complaint created potential coverage under USF&G’s policy. USF&G insists that no such finding was made and argues that the only reason that the court awarded the county its attorney fees was because the court found that a conflict existed between USF&G and the county. However, if the court had found that Krueger’s complaint did not give rise to potential coverage under USF&G’s policy, USF&G would have been entitled to judgment in its favor in all respects (see Tapp v. Wrightsman-Musso Insurance Agency (1982), 109 Ill. App. 3d 928, 441 N.E.2d 145; Graman v. Continental Casualty Co. (1980), 87 Ill. App. 3d 896, 409 N.E.2d 387), and the court would not have had to consider the possibility of a conflict of interest nor would the county have been awarded its attorney fees. As a result, even though the judgment did not state, in so many words, that Krueger’s complaint presented potential coverage, such a finding was necessary to the ultimate conclusions of the court. A comparison of that complaint with USF&G’s policy indicates that this implied finding is correct, because the complaint alleged that Mark Krueger’s injuries resulted from the negligence of the county’s agents or employees and nothing in that complaint placed the occurrence within one of the stated exclusions.

USF&G further argues that, even if Krueger’s complaint gave rise to potential coverage, it did not breach its duty to defend the county. It notes that that duty would have been satisfied had it filed a declaratory judgment action to construe the policy, and contends that, since the county filed a declaratory judgment action to construe the policy, it should not have been required to file a duplicate action in order to preserve its policy defenses. The existence of a declaratory judgment complaint on file, USF&G asserts, is significant, while the identity of the plaintiff is not.

USF&G’s argument was rejected by this court in Consoli dated Rail Corp. v. Liberty Mutual Insurance Co. (1981), 92 Ill. App. 3d 1066, 416 N.E.2d 758. In that case, the insured was sued by six employees of a subsidiary who claimed that they had been injured on the job. The insured tendered the defense of these cases to the insurer, which accepted the defense of two claims but refused to defend the remaining four claims. The insured then filed a declaratory judgment complaint to determine its rights under the policy. While that action was pending, five more employees sued the insured, the insurer declined to defend those actions, and those claims were added to the declaratory judgment action. This court held that the insurer was es-topped to deny coverage under the policy in each of the nine claims, even though the insured had filed a declaratory judgment action covering all nine claims which the insurer had refused to defend. As we noted, “An insurance company who suspects that it has no duty to defend cannot remain immobile and refuse to participate in the litigation.” (92 Ill. App. 3d 1066, 1072-73, 416 N.E.2d 758, 764.) In this case, the insurer has done exactly that, and cannot now rely upon the insured’s action in filing suit to discharge its own duty to the insured. The clause requiring USF&G to defend the county gave rise to an obligation by USF&G in return for the county’s payment of premiums. It would destroy the mutuality of this clause to hold that the county itself had discharged USF&G’s obligations by filing its own declaratory judgment action.

We recognize, as USF&G points out, that another district of the appellate court has reached a different result. In Ayers v. Bituminous Insurance Co. (1981), 100 Ill. App. 3d 33, 424 N.E.2d 1316, the insurer refused to defend the named insured, Ayers, who then brought a declaratory judgment action against the insurer. The insurer filed an answer and third-party complaint joining the plaintiff in the original tort action against Ayers. In both of these pleadings, the insurer sought the issuance of a favorable declaratory judgment. The court held that the insurer was not estopped to assert policy defenses because it had requested a judicial determination of its rights under the policy. In a footnote, the court observed, “We do not see any significance in the fact that Ayers first sought a declaratory judgment. It is the fact of the proceeding itself, and not the identity of the party initiating the proceeding, that is of legal import.” 100 Ill. App. 3d 33, 35 n.1, 424 N.E.2d 1316, 1318 n.1.

In the case at bar, USF&G never indicated to the trial court that it desired a determination of rights under the policy. Its answer to the county’s declaratory judgment complaint sought only a dismissal of the county’s action. Unlike the insurer in Ayers, USF&G thus remained immobile after refusing to defend the county, and, in fact, even contested the county’s efforts to determine the rights and obligations of the parties to the policy. It is the duty of an insurer to secure a declaratory judgment determination of its obligations and rights under the policy (Country Mutual Insurance Co. v. Murray (1968), 97 Ill. App. 2d 61, 73, 239 N.E.2d 498, 505), not to take action to prevent such a conclusive and binding determination from being obtained. Under these facts, we continue to adhere to our position in Consolidated Rail and hold that the county’s declaratory judgment action did not discharge USF&G’s duty to defend it, thereby preventing the county from arguing that USF&G was estopped from asserting policy defenses.

Auto-Owners Insurance Co. v. Corrie (1981), 102 Ill. App. 3d 93, 429 N.E.2d 883, also cited by USF&G does not support its argument. Although the court in Corrie cited Ayers for the proposition that the identity of the plaintiff in a declaratory judgment action is not significant, Corrie presented the situation in which two insurance companies contested the coverage of the insured. All that Corrie stands for is that a declaratory judgment brought by one of two insurers contesting coverage inures to the benefit of the other insurer so as to satisfy the second insurer’s duty to defend its insured.

Next, USF&G insists that the county waived its estoppel argument by not presenting it in its original complaint for a declaratory judgment. It directs our attention to Ayers. However, the waiver of the estoppel argument in Ayers was based upon the plaintiff’s failure to present that argument to the trial court at any time. This is not the case here, for the record indicates that the county’s request for damages, which was substituted for the declaratory judgment complaint, was based upon the estoppel of USF&G to raise police defenses. That argument cannot be considered waived as not having been presented at trial.

Estoppel, USF&G maintains, is an equitable doctrine which should be invoked “to insure fair play between parties regarding a dispute between them.” It is asserted that estoppel should not arise against the insurer in this case, essentially because the county settled the suit against it before the declaratory judgment action could be determined. The record sheet in Krueger’s action against the county shows that that suit and the county’s declaratory judgment action were assigned to the same judge, who indicated, in a docket entry on January 8, 1981, that the declaratory judgment action should be heard before Krueger’s action. It would be inequitable, according to USF&G, to allow the county to rely upon estoppel when it failed to see its declaratory judgment action through to completion before Krueger’s suit was settled.

But, USF&G’s contention is based upon a misapprehension of the nature of the estoppel which arises when an insurer fails to defend its insured. That estoppel is not the product of an analysis of all the circumstances surrounding that failure to defend, as is an equitable estoppel. It is instead derived from the insurer’s breach of contract. The theory to support this type of estoppel is that once the insurer has not complied with those portions of the policy which benefit the insured, it may not rely upon those clauses which favor the insurer. (Consolidated Rail Corf. v. Liberty Mutual Insurance Co.; Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 193 N.E.2d 123.) Thus, the relevant factor in determining if the insurer may be said to be estopped is whether the insurer breached its duty to defend, not whether the insured continued to deal fairly with the insurer after that breach. The county’s settlement with Mark Krueger before the resolution of its declaratory judgment action does not negate the estoppel of USF&G based upon its breach of contract.

The ultimate issue presented by this case is whether USF&G is excused from defending the county due to a conflict of interest between USF&G and the county. Several Illinois cases have decided that a conflict has been presented between the insurer and the insured under certain facts. Those fact situations may be classified in one of two categories.

In Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335, Thornton sued Paul to recover damages for injuries which resulted when Paul struck Thornton on the head in Paul’s place of business, Ben’s Den. Paul was convicted of battery because of this incident. Thornton’s amended complaint alleged that Paul had negligently struck him on the head with a wooden cane. Paul tendered defense of this action to his insurer, which declined to defend him, stating that Paul’s conduct fell under a policy exclusion for assault and battery. Thornton obtained a default judgment and then filed a garnishment action against the insurer. The supreme court held that the insurer should not be es-topped from raising policy defenses in Thornton’s garnishment action, because a conflict of interest would have impaired the insurer’s presentation of a defense for Paul. It was concluded that, had the insurer assumed that defense, its interests would have been equally served by a finding that Paul was not guilty or by a finding that he had committed a battery upon Thornton. See also Home Insurance Co. v. Lorelei Restaurant Co. (1980), 83 Ill. App. 3d 1083, 404 N.E.2d 895; Aetna Casualty & Surety Co. v. Dichtl (1979), 78 Ill. App. 3d 970, 398 N.E.2d 582.

A different type of conflict was presented in the recent case of Murphy v. Urso (1981), 88 Ill. 2d 444, 430 N.E.2d 1079. The plaintiff, Murphy, was injured while riding in a van driven by Clancey and owned by Urso, who operated a preschool. Murphy sued Clancey and Urso, alleging that Clancey was acting as Urso’s agent and that Urso negligently or wilfully and wantonly entrusted the van to Clancey. A default judgment was obtained against Clancey, and Murphy filed a garnishment action against Urso’s business insurer. 'Lie insurer denied that it was obligated to furnish coverage, contending that Clancey was not a permissive user of the van. The circuit court held that by reason of the insurer’s failure to defend Clancey in the original action, it was estopped to assert that exclusion. The supreme court disagreed with this conclusion, and reasoned that to best serve the preschool, the insurer should attempt to show that Clancey was not a permissive user of the van, while to facilitate the interests of Clancey, the insurer would be encouraged to show that Clancey had such permission. Additionally, Clancey’s objective of attempting to prove the existence of that permission would be in conflict with the goal of the insurer in negating the permission, thereby shifting responsibility to Clancey, away from its insured.

Thornton and Murphy are examples of what has been called a limited exception to the insurer’s duty to defend its insured. (Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 478, 430 N.E.2d 1104, 1109.) In both cases, the insurer’s fidelity to its insured was hampered by its obligations to another party to the suit, or by its own interests. The significant question in determining if such a situation is created is whether, in comparing the allegations of the complaint to the terms of the policy, the interests of the insurer or a codefendant would be furthered by providing a less than vigorous defense to those allegations. An analysis of these principles reveals that, had USF&G assumed the defense of Krueger’s suit against the county, no conflict of interest would have arisen.

The case at bar is, of course, unlike Thornton because the Krueger complaint does not on its face reveal any facts which indicate that the incident fell under any of the named exclusions in the county’s policy. It is also dissimilar to Murphy, inasmuch as the allegations of that complaint do not include a fact, proof of which would be crucial to the assignment of responsibility to one of the two defendants. Krueger’s theory of recovery was based upon the failure of the county, or of Superior Structures, to place adequate warning devices at the Mud Creek bridge. As such, the status of Superior Structures as an independent contractor would have no bearing on the dereliction of either the county or Superior Structures. USF&G would have no motivation to provide an inadequate defense to Krueger’s claim, because the facts necessary to establish the existence of an independent contractor relationship between Superior Structures and the county would not aid Krueger’s cause of action against either defendant. Thus, prior to the final adjudication of that suit, the interests of USF&G would lie with the county and Superior Structures in showing that the precautions observed at the bridge did not constitute negligence or a statutory violation on the part of the codefendants.

Similarly, whether Krueger’s accident took place during the suspension of construction activities is a matter which would not affect Krueger’s tort claim. Like the existence of an independent contractor relationship, resolution of this issue could turn upon facts which are adduced in the tort action, but those facts would only be determinative in a subsequent suit between the county and USF&G. Consequently, neither exclusion asserted by USF&G, and deemed applicable by the trial court, would have prevented USF&G from offering a full defense to Krueger’s action against the county. USF&G cannot therefore be excused from its failure to defend the county in that suit.

The county’s remedy for USF&G’s breach of contract consists of the costs of its defense plus the amount of a reasonable settlement of that action. The cost of the county’s independent counsel has previously been established, and judgment in favor of the county for that cost is affirmed. Judgment in favor of the defendant on the rest of the county’s complaint for damages is hereby reversed, and this cause is remanded to the circuit court of Massac County to determine whether the county’s settlement with Mark Krueger was in a reasonable amount. If that finding is made, the court is directed to enter judgment in favor of the county for that additional amount.

Affirmed in part, reversed in part, remanded with directions.

JONES and KARNS, JJ., concur.