author: PRESIDING JUSTICE McCULLOUGH

text:
    MITCHELL WHEELER, Plaintiff-Appellant and Cross-Appellee, v. SUNBELT TOOL COMPANY, INC., et al., Defendants-Appellees and Cross-Appellants (Evans Implement Company, Defendant).
    Fourth District
    No. 4—88—0263
    Opinion filed March 17, 1989.
    — Modified on denial of rehearing May 18, 1989.

      James Walker, Ltd., of Bloomington, for appellant.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stephen R. Swofford, David E. Jones, and Kathryn A. Spalding, of counsel), for ap-pellees.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Mitchell Wheeler, plaintiff, was injured while using a “Chain-APart” tool to break a gathering chain on his employer’s combine. A fragment of metal entered plaintiff’s left eye after the punch on the tool broke. Plaintiff sued defendants, alleging the tool was unreasonably dangerous and alleging defendants had breached a warranty that the punch would not break. The jury returned a verdict for defendants on the products liability count and returned a verdict for plaintiff and against Sunbelt Tool Company, Inc. (Sunbelt), and Smith Tool Company, Inc. (Smith Tool), on the warranty count. However, the jury reduced plaintiff’s damages award by 80% due to a finding that he misused the product.

Plaintiff appeals, arguing: (1) misuse is not an affirmative defense in a products liability action based upon breach of warranty; (2) a product cannot be misused when it is used for the purpose intended by the manufacturer; (3) the trial court erred in its rulings on instructions concerning misuse; (4) the trial court committed prejudicial error in failing to give a form of the verdict which required itemization of damages; (5) the trial court erred in restricting examination of a witness to show bias; (6) the trial court erred in allowing Smith Tool to amend its answer; (7) plaintiff was entitled to judgment notwithstanding the verdict on count VII; and (8) the trial court erred in finding no jury trial was available on count VII.

Defendants cross-appeal, arguing they are entitled to judgment notwithstanding the verdict on the warranty count and alternatively arguing the trial court erred in refusing their special interrogatory.

We affirm.

Sunbelt and its successor corporation, Smith Tool, manufactured the tool involved in the instant case. Lloyd Smith, the retired chief executive officer of Smith Tool, stated Rains Manufacturing Company (Rains) developed a rivet tool. Rains became S/V Tool Company (S/V Tool), which modified the Rains tool into the Chain-A-Part. S/V Tool Company was incorporated as Sunbelt. Smith Tool had assumed the assets and liabilities of Sunbelt. Subsequently, Smith sold his stock in Smith Tool to Center Industries.

The purpose of the Chain-A-Part tool is to break apart old and new roller chain. Roller chain consists of a series of outer and inner plates with cylinders at each end of the link. Bicycle chain is roller chain. The links are held together by chain pins, rivets, running through the holes in the cylinders, which are pressed against the outer plates, but are free on the inner plate. The chain pin protrudes over the outer plate. The size of roller chain is measured by the distance between the pins. Size 50 chain has five-eighths of an inch from the center of the first pin to the center of the next. Size 60 chain measures six-eighths of an inch between chain pins. Size 80 chain measures one inch between the centers of the chain pins. Pin size is standard for each dimension of chain. Size 80 chain would have a larger pin than size 60 chain. New roller chain is tight with very little lateral movement as no spaces exist between the parts. As the chain wears, spaces develop and the chain loosens. Roller chain will not function correctly if it is too loose. Therefore, it is necessary to remove links to ensure a proper fit.

The Chain-A-Part was designed to remove the chain pins. The body is iron. The top of each end of the tool contains a bolt screw, punch, and cylinder. The bottom of each end has a hole through which the broken chain pin falls, when punched out of the chain. One end of the tool is stamped 50/60; the other end of the tool is stamped 80.

Terry Michael Bender testified plaintiff was repairing a chain on a cornhead of a combine and needed to remove a section of the chain to shorten it. Plaintiff placed the chain in between the tool slot and centered the punch over the top of the chain pin. Plaintiff used a crescent wrench to screw the punch down to break the rivet. He had turned the top bolt six times when the injury occurred.

Bender stated no noise preceded the incident. He saw the chain tool fall to the ground and saw plaintiff grab his eye. Bender observed the tool the following morning and noticed the punch was broken. The punch was not broken when he and plaintiff started to use the tool the preceding day. Bender did not remember seeing any instructions for the tool’s use. He never saw anyone show plaintiff how to use the tool. Bender stated he never saw plaintiff turn the sleeve (cylinder) down to the chain. However, he was sure plaintiff did so. Bender examined a chain which he believed was the chain involved in the incident. One chain pin had been partially pushed through the links, tightening the loose spaces. Bender stated the chain appeared to be larger than size 80 chain. Plaintiff was using the 50/60 end of the tool.

Dale Evans, plaintiff’s employer, stated he saved the chain involved in the incident, but forgot it until an employee reminded him of it. Evans and his father own Evans Implement Company (Evans Implement). The tool belonged to the company. Evans stated to the best of his knowledge, the company had an open house in January, February, or March 1980. He believed the tool was a gift from one of the representatives who participated, Fesco Equipment Company (Fesco). Evans could not verify the date of the open house. He did not show plaintiff how to use the tool, which was packaged when received. He had not read any instructions associated with the tool. Evans further stated that he had no idea at which open house the tool was given to the implement company. There was no way to be sure which year the open house was held in.

Plaintiff testified he worked for Evans Implement setting up and repairing farm machinery. Prior to the instant incident, he had used the Chain-A-Part tool two or three times. No one had demonstrated for him how to use the tool. He did not see any instructions. At approximately 11:30 a.m., he and Bender were repairing a combine with a cornhead. The gathering chain on the cornhead was too loose for proper adjustment. He thought it would be a good chance to show Bender how to use the tool. Plaintiff put the chain in the tool and ran the punch out of the barrel (cylinder) approximately one-eighth of an inch. Then, he lowered the cylinder until the punch touched the chain pin. He started to push the chain pin through. After three, one-quarter turns he felt something hit him in the eye. Plaintiff stated he used the 50/60 end of the tool. He did not know the sleeve’s (cylinder’s) purpose was to protect and support the punch. Plaintiff admitted that he may have made a contrary statement during a deposition. Plaintiff agreed that if the 50/60 end was used to break size 80 chain, and if the size 80 chain pin was bigger than the hole in the tool, the chain pin would have no place to go. Plaintiff never saw anything which said to tighten the cylinder to prevent injury if the punch broke.

Dennis Lockhart, an ophthalmologist, treated plaintiff after the injury to his left eye. The piece of metal could not be removed from the eye without causing greater injury. The metal had passed completely through plaintiff’s eye, which was now nonfunctional. The eye is deteriorating, and eventually, plaintiff may elect to have the eye removed, with a prosthesis implanted.

Lloyd Smith, retired president of Smith Tool, testified that he had a financial interest in tools sold by Center Industries. In buying Smith Tool, Center Industries was paying him a percentage of the gross sales price of the tools. The trial court sustained defendants’ objection to questions asking how much per month Smith was receiving from Center Industries.

Smith stated the punch size on a newer tool handles sizes 50 to 80 chain. It is the same size punch as that on the tool plaintiff used. In 1970, Smith was the chief executive of S/V Tool. Plaintiff’s exhibit 19 was printed in 1970 and used as a package insert through 1984. Smith never ordered it redrafted or changed. The package insert stated the tool was designed for size 50, 60, and 80 chains. S/V Tool always knew the tool would be used on old chain. They sold the tool to dealers and to those who repaired machinery. The sleeve, cylinder, holds the chain still while pressure is applied to the top of the chain pin. The punch pushes the chain pin through the link in the chain. There will be no movement between the chain pin and the top plate until all slack is taken out of the chain. Smith agreed the promotional material stated the punch would not break.

Smith believed that before any pressure is put on the punch, the clamping sleeve, cylinder, should be turned down to the chain. If done with new chain, the cylinder would remain in contact with the top plate of the chain even as the pin is driven through the chain. If done with old chain, as soon as the punch starts moving the chain pin through the bottom plate, it would move the top plate away from the cylinder until all slack is out of the link. Smith stated that S/V Tool tested old and new chain.

Smith did not draft the material provided in the package but believed the sales manager did so. The “won’t break” language was inserted out of enthusiasm. In comparison with other tools, breakage did not happen. However, he believed the drafters of the promotional literature were “carried away” with enthusiasm. However, when the tool was properly used in his tests, the punch did not break. When punches broke, the company assumed the tool was used improperly. Punches broke occasionally. The instructions and promotional literature were not changed as a result. The manufacturer knew that some people were not placing the cylinder all the way down to the chain, because when they received returned tools, the punches looked as if this had occurred.

Smith stated the manufacturer did not warn of the possible consequences of improper use. It should have been obvious to an experienced person that the sleeve (cylinder) served as a clamping device and a protective device. When the manufacturer first sold the tool, it knew a broken fragment could go anywhere if the cylinder were not down. However, the punch would bend before it broke. Smith knew of another case where a person alleged the Chain-A-Part punch had fractured and a piece had entered his eye. The instructions with the package say to bring the sleeve all the way down to the chain.

On cross-examination, Smith stated he designed the rivet tool and the Chain-A-Part tool. The punch on the instant tool bent before it broke. This was consistent with the way it was supposed to perform. Each package contained a promotional-instruction page. The back part of the page contained instructions for the use of the tool. Smith believed that if used properly, the punch would not have broken in the instant case.

Lyle Jacobs, a metallurgical engineer, testified for defendants. He examined the tool in question, performing nondestructive and destructive tests. The bent punch indicates the sleeve was not in place when the tool was used. He believed after his first, nondestructive test, the punch broke as the result of bending force. The sleeve’s purpose was to support the punch. Since the sleeve was not in position, the punch broke because of improper use.

Jacobs was asked to assume the 50/60 end was used to break size 80 chain. He stated if that occurred, the tool was misused because the diameter of the chain pin appeared to be larger than the diameter of the hole in the casting. After destructive testing, he found no evidence of defect in the punch.

Initially, defendants argue the trial court erred in failing to grant their motion for judgment notwithstanding the verdict on the warranty count because plaintiff’s complaint wholly failed to state a cause of action for breach of express warranty. They contend no sale occurred and plaintiff was not a third-party beneficiary of any sale which did occur. Plaintiff argues defendants have waived review of these matters by failing to raise them in a timely, post-trial motion. Defendants respond that the motion was timely and even if untimely, this court should consider their arguments because the plaintiff’s failure to plead and prove his cause of action is a defect which may be raised for the first time on appeal. For clarity, we will first address defendants’ cross-appeal issue.

In the instant case, the jury trial on products liability and warranty counts and the bench trial on the consumer fraud count were held concurrently. On November 3, 1987, the trial court entered judgment on the jury verdict. It noted count VII was still undecided. No notice of the entry of judgment was sent to the parties. Plaintiff filed his first post-trial motion on December 1, 1987. On December 22, 1987, a hearing was held to argue count VIL At that time, defendants learned judgment had been entered on the jury verdicts. Defendants orally moved to vacate the judgment or for an extension of time to file motions. This was followed by a written motion. The trial court, on its own motion, granted an extension of time to file post-trial motions. Plaintiff did not object to the extension of time, and plaintiff filed an amended post-trial motion.

Section 2 — 1202(c) of the Code of Civil Procedure states a post-trial motion must be filed within 30 days after entry of judgment or within any further time the court may allow upon a motion made within the 30 days. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1202(c).) If a post-trial motion is filed within the 30 days after judgment, the trial court retains jurisdiction over the cause until the disposition of any pending motion. It may act on any points raised in the motion and on any error which the court feels must be remedied to do justice between the parties. Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103, 210 N.E.2d 191; Minfield v. Bernardi (1984), 122 Ill. App. 3d 97, 100, 460 N.E.2d 766, 768; Welch v. Ro-Mark, Inc. (1979), 79 Ill. App. 3d 652, 657, 398 N.E.2d 901, 904.

In Minfield, the plaintiff filed a timely post-trial motion from a trial court decision determining eligibility for unemployment compensation. At the time of the hearing on plaintiff’s motion, more than 30 days after judgment, the defendant filed a post-trial motion in response to plaintiff’s motion. The trial court granted in part the relief prayed for in defendant’s motion. On review, the appellate court held the timely filing of the post-trial motion by plaintiff prevented the judgment from becoming final after the expiration of 30 days. The timely motion gave the court complete jurisdiction over the entire matter until its disposition. The court noted that the fact that defendant’s motion was not timely did not affect the power of the trial court to modify its judgment to do substantial justice between the parties. See also Welch, 79 Ill. App. 3d 652, 398 N.E.2d 901; but see contra Putz v. Schulte (1982), 104 Ill. App. 3d 128, 432 N.E.2d 1070.

Plaintiff argues Mau v. Unarco Industries, Inc. (1985), 135 Ill. App. 3d 736, 481 N.E.2d 1207, controls the instant case. Mau is distinguishable from the instant case. In Mau, the only post-trial motion filed was untimely. Here, plaintiff’s timely post-trial motion preserved the trial court’s authority to reconsider the issues concerning the jury trial as specifically raised by plaintiff or in any other fashion affecting substantial justice between the parties. (Freeman, 33 Ill. 2d 103, 210 N.E.2d 191; Minfield, 122 Ill. App. 3d 97, 460 N.E.2d 766; Welch, 79 Ill. App. 3d 652, 398 N.E.2d 901.) Additionally, one of the issues raised by defendant challenges the sufficiency of the complaint as a matter of law. An objection may be made to a complaint for the first time on appeal if it appears as a matter of law that the complaint wholly fails to state a cause of action. Naiditch v. Shaf Home Builders, Inc. (1987), 160 Ill. App. 3d 245, 512 N.E.2d 1027.

Initially, defendants argue the warranty provisions of the Uniform Commercial Code—Sales (UCC) (Ill. Rev. Stat. 1987, ch. 26, par. 2—101 et seq.) require a sale of goods. In the instant case, the tool was a “gift.” Therefore, defendants contend no warranty applies and the trial court erred in denying their motion for judgment notwithstanding the verdict. Judgment notwithstanding the verdict should be granted only in those cases in which all of the evidence, viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based upon it could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504; Cherry v. McDonald (1988), 176 Ill. App. 3d 471, 531 N.E.2d 78; In re Estate of Wrigley (1982), 104 Ill. App. 3d 1008, 433 N.E.2d 995.

Defendants did not raise this issue below or contest that a sale of the Chain-A-Part tool to plaintiff’s employer had occurred. In fact, in all of their arguments and in their motion for judgment notwithstanding the verdict, defendants refer to plaintiffs employer as the “buyer.” Failure to raise an issue in the trial court waives review of the issue. (Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 488 N.E.2d 548.) We note that defendants conceded this issue during the trial of the cause. Generally, where a party concedes an issue below, he cannot dispute the issue on appeal. See generally Bohnen International, Inc. v. Liberty Mutual Insurance Co. (1983), 120 Ill. App. 3d 657, 458 N.E.2d 644.

On the merits, the warranty sections do refer to warranties in connection with the sale of goods. (Ill. Rev. Stat. 1987, ch. 26, pars. 2—313, 2—314, 2—315, 2—318.) A sale is a transfer of title in exchange for consideration. (Burrus v. Itek Corp. (1977), 46 Ill. App. 3d 350, 360 N.E.2d 1168.) Here, the witnesses stated Fesco gave the tool to Evans Implement because the company allowed Fesco to show tools at an open house. The parties’ characterization of a transaction as a gift is not controlling. The price may be barter, an exchange, trading in other goods, or rendering of service. (1 R. Anderson, Sales §2 — 106:7, at 600-01 (3d ed. 1981).) If this issue would have been contested below, plaintiff could arguably have proved an exchange of consideration for the tool. Defendants have waived review of this contention.

Defendants next argue plaintiff, as an employee of the purchaser of the tool, is not a person included within the class of third-party beneficiaries entitled to bring a breach of warranty action against a remote manufacturer. They assert Boddie v. Litton Unit Handling Systems (1983), 118 Ill. App. 3d 520, 455 N.E.2d 142, Knox v. North American Car Corp. (1980), 80 Ill. App. 3d 683, 399 N.E.2d 1355, and Whitaker v. Lian Feng Machine Co. (1987), 156 Ill. App. 3d 316, 509 N.E.2d 591, were wrongly decided. They argue Berry v. G.D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550, is inapplicable to the instant situation as Berry deals with vertical, not horizontal, privity.

Section 2 — 318 of the UCC states:

“A seller’s warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty.” (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 318.)

Illinois has adopted the first alternative section 2 — 318. In Berry, a vertical privity case, the court found the section did not require privity between a purchaser and remote manufacturer. The court held privity was not required when a buyer who has sustained personal injuries predicates recovery against a remote manufacturer for a breach of implied warranty.

In Szajna v. General Motors Corp. (1986), 115 Ill. 2d 294, 503 N.E.2d 760, an economic injury case, the court refused to extend Berry to cases involving solely economic injury. However, the Szajna court noted the law recognizes horizontal privity, which refers to those who are not in the distributive chain of a product but who use the product and retain a relationship with the purchaser, such as a member of his family. (Szajna, 115 Ill. 2d 294, 503 N.E.2d 760; see also Collins Co. v. Carboline Co. (1988), 125 Ill. 2d 498, 532 N.E.2d 830.) In Collins, the court noted in dicta that section 2 — 318 of the UCC and the comments leave “a door at least slightly ajar for future extension of some warranties in appropriate circumstances to nonprivity plaintiffs.” (Collins, 125 Ill. 2d at 516, 532 N.E.2d at 842.) Collins cited Whitaker as an example of such a case.

In Whitaker, a personal injury case, the court held a warranty extends to any employee of a purchaser who is injured in the use of the goods, as long as the safety of the employee and the use of the goods were either implicitly or explicitly part of the basis of the bargain when the employer purchased the goods. (Whitaker, 156 Ill. App. 3d 316, 509 N.E.2d 591.) Whitaker applies in the instant case. See also Knox, 80 Ill. App. 3d 683, 399 N.E.2d 1355; Boddie, 118 Ill. App. 3d 520, 455 N.E.2d 142; but see contra Hemphill v. Sayers (S.D. Ill. 1982), 552 F. Supp. 685; In re Johns-Manville Asbestosis Cases (N.D. Ill. 1981), 511 F. Supp. 1235, 1239-40.

Defendants next argue they should have been granted judgment as a matter of law because plaintiff failed to plead and prove an express warranty action. Defendants contend plaintiff neither pleaded nor proved the express warranty was the basis of the bargain between Evans Implement and Fesco. The warranty counts of plaintiffs complaint alleged defendants sold or manufactured the tool, which was advertised as suitable for taking apart agricultural chains, and sold it to Fesco. Plaintiffs employer eventually owned the tool. Defendants “expressly warranted” the “high carbon, tool steel, heat treated punch won’t break.” Plaintiff was using the tool when it broke. Therefore, defendants breached their warranty. The jury was instructed that plaintiff had alleged defendants breached their warranty which was stated in the instructional material. The jury was not specifically instructed on implied warranty theories, such as merchantability or fitness for a particular purpose. On appeal, plaintiff assumes the position that he pleaded and proved breach of an express warranty.

Section 2—313 of the UCC provides for express warranties by affirmations of fact made by the seller to the buyer which become a part of the basis of the bargain between them. (Ill. Rev. Stat. 1987, ch. 26, par. 2—313.) A warranty of merchantability is implied into a sale if the seller is a merchant. To be merchantable, goods must be fit for their ordinary purpose and conform to any promises made on the label. Ill. Rev. Stat. 1987, ch. 26, par. 2 — 314.

In an express warranty action, plaintiff must show breach of an affirmation of fact or promise which was made part of the basis of the bargain. (Redmac, Inc. v. Computerland of Peoria (1986), 140 Ill. App. 3d 741, 489 N.E.2d 380; Stamm v. Wilder Travel Trailers (1976), 44 Ill. App. 3d 530, 358 N.E.2d 382.) Express warranties are contractual in nature. (Alan Wood Steel Co. v. Capital Equipment Enterprises, Inc. (1976), 39 Ill. App. 3d 48, 349 N.E.2d 627.) Documents, brochures, and advertisements may constitute express warranties. (Crest Container Corp. v. R.H. Bishop Co. (1982), 111 Ill. App. 3d 1068, 445 N.E.2d 19; Ill. Ann. Stat., ch. 26, par. 2—313, Uniform Commercial Code Comment, comment 5, at 220 (Smith-Hurd 1963); Annot., 75 A.L.R.2d 112, 128-33 (1961).) Such affirmations made during the bargain are presumed to be a part of it unless clear, affirmative proof shows otherwise. (Crest, 111 Ill. App. 3d 1068, 445 N.E.2d 19; Ill. Ann. Stat., ch. 26, par. 2—313, Uniform Commercial Code Comment, comment 3, at 219 (Smith-Hurd 1963).) In Crest, the court noted that the burden was on the manufacturer, defendant, to establish the affirmations contained in a brochure did not become a basis of the bargain.

The complaint here did not make any allegation relating to reliance or that the warranty was part of the basis of the transaction between Evans Implement and Fesco. Affirmative proof existed at trial which established a warranty was not the basis of the bargain. Plaintiff stated he never saw the instruction-warranty pamphlet prior to the accident. Plaintiff’s employer could not remember ever seeing the package insert, did not know if the tool came with the literature, and could not remember precisely when Evans Implement acquired the tool. Plaintiff’s complaint failed to state a cause of action for breach of express warranty, and the evidence presented did not cure the defect.

However, plaintiff’s complaint did not refer to a specific statutory section. It is the allegations that define the cause of action, and not how plaintiff describes his cause of action. (Lovgren v. Citizens First National Bank (1989), 126 Ill. 2d 411, 415.) Under section 2 — 314 of the UCC, a product must conform to affirmations of fact about it on labels or on the container and be fit for the ordinary purpose for which such goods are used. In an action based upon breach of implied warranty under section 2 — 314 of the UCC, it is necessary to show the existence of the warranty, its breach, and proximate cause. (Ill. Ann. Stat., ch. 26, par. 2 — 314, Uniform Commercial Code Comment, comment 13, at 234 (Smith-Hurd 1963).) Implied warranties arise as a matter of law. A description of the product may create an implied warranty of merchantability. (Overland Bond & Investment Corp. v. Howard (1972), 9 Ill. App. 3d 348, 292 N.E.2d 168.) Plaintiff sufficiently alleged a breach of implied warranty under section 2— 314(2)(c) of the UCC.

Plaintiff argues misuse is not an affirmative defense in a products liability action based on breach of warranty. In Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 119, 454 N.E.2d 197, 203-04, the court held that equitable principles require total damages for a strict liability plaintiff’s injuries be apportioned on the basis of the relative degree to which the defective product and plaintiff’s conduct proximately caused the injuries. The court held comparative fault principles based upon more than mere negligence were applicable to strict liability actions. The court noted that once a defendant’s liability is established and where both the product and plaintiff’s misconduct contribute to the cause of the damages, the comparative fault principle will operate to reduce plaintiff’s recovery by that amount which the trier of fact finds him at fault. (Coney, 97 Ill. 2d at 119, 454 N.E.2d at 204; see also Simpson v. General Motors Corp. (1985), 108 Ill. 2d 146, 483 N.E.2d 1.) The Coney court referred to misuse as a “defense,” stating it would act to reduce a plaintiff’s damages, rather than bar the action. Since Coney, other courts have referred to misuse as a damages-reducing factor which may be raised by defendant. Simpson, 108 Ill. 2d 146, 483 N.E.2d 1; Dukes v. J.I. Case Co. (1985), 137 Ill. App. 3d 562, 483 N.E.2d 1345.

In drafting proposed jury instructions after Coney, the Illinois Supreme Court Committee on Jury Instructions (Committee) stated it believed Coney did not intend to change existing law with respect to misuse in products liability actions. Therefore, the use of comparative fault concepts in strict liability did not require any change in jury instructions regarding misuse. Illinois Pattern Jury Instructions, Civil, Introduction to series 400.00, at 400-10 (2d ed. Supp. 1986) (IPI Civil).

The issue of misuse traditionally arises in Illinois in conjunction with plaintiff’s duty to prove an unreasonably defective product or proximate causation of the injury. (See Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.) Prior to Coney, misuse was a complete defense to astrict liability action (Coney, 97 Ill. 2d at 119, 454 N.E.2d at 203-04), although it was not technically considered an affirmative defense. (Illinois State Trust Co. v. Walker Manufacturing Co. (1979), 73 Ill. App. 3d 585, 392 N.E.2d 70.) However, some courts recognized misuse as an affirmative defense under certain circumstances. Genteman v. Saunders Archery Co. (1976), 42 Ill. App. 3d 294, 355 N.E.2d 647.

Plaintiff argues that if misuse is not an affirmative defense to strict liability, relying on the committee comments, and the UCC does not list it as a defense in warranty actions, it is not an affirmative defense to breach of warranty. An affirmative defense is a new matter which, assuming the complaint to be true, constitutes a defense to it. (Black’s Law Dictionary 55 (5th ed. 1979).) Misuse as an affirmative defense, thus, concedes plaintiff’s injuries were in part proximately caused by the defective product or breach of warranty. However, under Coney, the defense alleges plaintiff’s conduct should act to reduce damages. The Coney court’s language saying misuse is a defense which may be used to reduce damages after defendant’s liability is established is consistent with the reasoning that an affirmative defense must in part concede the viability of plaintiff’s allegations. Additionally, Coney was addressing the viability of contributory negligence as an affirmative defense to strict liability. The court found mere contributory negligence was not an affirmative defense, but noted misuse could be a defense. Coney did not, however, address warranty actions.

A plaintiff in a breach of warranty action may recover both incidental and consequential damages, including damages for any personal injury caused by the breach of warranty. (Ill. Rev. Stat. 1987, ch. 26, pars. 2—714(3), 2—715(2)(b).) Plaintiff must establish the injury was proximately caused by the breach of warranty. (Ill. Rev. Stat. 1987, ch. 26, par. 2—715(2)(b).) A plaintiff’s conduct, similar to the traditional strict liability analysis, is relevant to consequential damages. (See Ill. Ann. Stat., ch. 26, par. 2 — 715, Uniform Commercial Code Comments, comment 5, at 588 (Smith-Hurd 1963).) Misuse arises as an issue which may defeat the action in whole or in part by contesting proximate cause. In Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 269-70, 527 N.E.2d 1248, 1258, the court noted the plaintiff’s conduct mitigates the damages he may recover. Under section 2 — 715 of the UCC, a buyer may recover consequential damages which are proximately caused by the breach of warranty. He may not recover for damages caused by his own conduct. Ill. Rev. Stat. 1987, ch. 26, par. 2-715.

In Blommer Chocolate Co. v. Bongards Creameries, Inc. (N.D. Ill. 1986), 644 F. Supp. 234, the court found the reasoning of Coney was equally applicable to actions based upon breach of express and implied warranty. The Blommer court held mere negligence would not be a damages-reducing factor. Blommer is consistent with decisions in several other States holding misuse is a damages-reducing factor in warranty actions. (Duncan v. Cessna Aircraft Co. (Tex. 1984), 665 S.W.2d 414; Hiigel v. General Motors Corp. (1974), 34 Colo. App. 145, 525 P.2d 1198; Hawkins Construction Co. v. Matthews Co. (1973), 190 Neb. 546, 209 N.W.2d 643.) In some jurisdictions, misuse is regarded as an affirmative defense. (Westerman v. Sears, Roebuck & Co. (5th Cir. 1978), 577 F.2d 873; Belfry v. Anthony Pools, Inc. (1977), 80 Mich. App. 118, 262 N.W.2d 909 (implied warranty).) Other jurisdictions agree that misuse arises as a part of plaintiff’s proof that he was using the product in a foreseeable manner or that the breach of the warranty proximately caused the injury. (See Allen v. Chance Manufacturing Co. (1986), 398 Mass. 32, 494 N.E.2d 1324 (implied warranty); Guaranteed Construction Co. v. Gold Bond Products (1986), 153 Mich. App. 385, 395 N.W.2d 332 (implied warranty); Brickman-Joy Corp. v. National Annealing Box Co. (2d Cir. 1972), 459 F.2d 133 (implied warranty); Construction, Inc. v. Unit Crane & Shovel Corp. (6th Cir. 1970), 428 F.2d 770.) We conclude that misuse is a defense which may be raised as an affirmative matter to reduce plaintiff’s damage award in a breach of warranty action.

Plaintiff next argues the evidence did not establish he misused the tool as he used it for its intended purpose. Misuse of a product is use for a purpose neither intended nor foreseeable, not use in a manner which is neither intended nor foreseeable. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305; Dukes v. J.I. Case Co. (1985), 137 Ill. App. 3d 562, 581, 483 N.E.2d 1345, 1358, aff’d in part sub nom. J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 516 N,E.2d 260; King v. American Food Equipment Co. (1987), 160 Ill. App. 3d 898, 909, 513 N.E.2d 958, 965.) However, a manufacturer is entitled to have its instructions for the use of a product followed by the user. (Curry v. Louis Allis Co. (1981), 100 Ill. App. 3d 910, 915, 427 N.E.2d 254, 258.) A failure to follow instructions for the use of an object can be a use which is neither reasonably foreseeable nor intended by the manufacturer. (Stephenson v. Dreis & Krump Manufacturing Co. (1981), 101 Ill. App. 3d 380, 384, 428 N.E.2d 190, 193; Stewart v. The Von Solbrig Hospital, Inc. (1974), 24 Ill. App. 3d 599, 604, 321 N.E.2d 428, 432; Watson v. Uniden Corp. (11th Cir. 1985), 775 F.2d 1514.) In a breach of warranty action, the seller is entitled to have his instructions for use followed. Whether misuse has occurred is ordinarily a jury question. Nelson v. Hydraulic Press Manufacturing Co. (1980), 84 Ill. App. 3d 41, 404 N.E.2d 1013.

The Chain-A-Part tool in question had two ends. One end was stamped 50/60; the other end was stamped 80. Evidence indicated plaintiff broke size 80 chain (one inch) with the 50/60 (five-eighths- to six-eighths-inch) end of the tool. Plaintiff also testified he did not fully cover the punch with the cylinder prior to breaking the chain pin. Testimony indicated the protective nature of the cylinder was self-evident. Plaintiff, at trial, stated he did not know the purpose of the cylinder but during his deposition stated otherwise. Evidence supported the use of misuse as a defense.

Plaintiff next argues the trial court made several errors in its instructional rulings concerning misuse. Initially, plaintiff contends the trial court erred in allowing defendants’ motion to amend their affirmative defenses by specifically stating the alleged misuse of the tool. Plaintiff asserts defendants failed to plead misuse of the tool by breaking size 80 chain with the 50/60 end of the tool. Section 2— 613(d) of the Code of Civil Procedure states that facts concerning any defense which, if not expressly stated, would take the opponent by surprise must be set out in the answer or reply. (Ill. Rev. Stat. 1987, ch. 110, par. 2—613(d).) Section 2—616(a) of the Code of Civil Procedure provides for liberal amendment of pleadings if the motion to amend is made prior to final judgment. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(a).

In the instant case, defendants filed a misuse affirmative defense on March 16, 1987. Trial started on October 27, 1987. The affirmative defenses alleged failure to tighten the clamping cylinder and failure to follow the instructions for the use of the tool. Immediately prior to trial, the chain which had been used during the incident was discovered. It was not contested that the 50/60 end of the tool had been used to break the chain, which was size 80. The effect of using the wrong end of the tool was disputed at trial. At the instruction conference, defendants moved to amend their affirmative defense to specifically state that plaintiff had misused the tool by using the 50/60 end to break size 80 chain. The trial court allowed the amendment over plaintiff’s objection.

Allowing amendments to pleadings is within the trial court’s discretion. (McCastle v. Mitchell B. Sheinkop, M.D., Ltd. (1987), 121 Ill. 2d 188, 520 N.E.2d 293.) The decision to permit or refuse the filing of amendments will not be reversed absent a clear abuse of discretion. (American Pharmaseal v. TEC Systems (1987), 162 Ill. App. 3d 351, 515 N.E.2d 432.) Factors considered include the timeliness of the motion and prejudice to the opposing party. (American Pharmaseal, 162 Ill. App. 3d 351, 515 N.E.2d 432.) However, courts are liberal in allowing amendment of the pleadings to conform to the proof at trial. Plaintiff’s argument that misuse was a “new” affirmative defense is misplaced. Defendants had pleaded misuse by failure to follow instructions well prior to trial. At trial, specific information was developed as to precisely how plaintiff had failed to follow the instructions stamped on the tool. In such a case, allowing amendment to clarify the defense and conform to the proof is not an abuse of discretion. Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 85, 392 N.E.2d 628, 635-36.

Plaintiff next argues the trial court erred in instructing on misuse because Fesco never filed the affirmative defense of misuse and Smith Tool and Sunbelt abandoned it. Defendants respond that they did not abandon the defense. Initially, it should be noted that plaintiff’s contention as to Fesco is not valid. Plaintiff never filed a warranty claim against Fesco, and Fesco is not a defendant in this appeal. A party may abandon a pleading or defense. The withdrawal of an earlier pleading leaves the issues in the same status as if the abandoned pleading had not been filed. (Guebard v. Jabaay (1983), 117 Ill. App. 3d 1, 452 N.E.2d 751.) A party may also abandon an affirmative defense by not pursuing it. (First Federal Savings & Loan Association v. Chapman (1983), 116 Ill. App. 3d 950, 452 N.E.2d 600.) Plaintiff maintains defendants abandoned their affirmative defenses when they amended their answers on the day of trial but did not refile their affirmative defenses. The record in the instant case shows defendants did not abandon their affirmative defenses.

Plaintiff next argues the trial court erred in failing to sua sponte instruct the jury on the definition of the term “misuse.” Plaintiff notes the term was used in eight instructions and was a technical one. Plaintiff tendered an instruction combining a definition of misuse with a paragraph telling the jury the effect of misuse. The trial court refused to give the instruction. Plaintiff does not argue the trial court erred in refusing his instruction as offered. Plaintiff argues misuse is a technical term which must be defined for the jury.

The trial court correctly refused to give plaintiff’s instruction. Non-IPI instructions should be brief, impartial, and free from argument. (107 Ill. 2d R. 239(a); Fravel v. Morenz (1986), 151 Ill. App. 3d 42, 502 N.E.2d 480; Zieger v. Manhattan Coffee Co. (1983), 112 Ill. App. 3d 518, 532-33, 445 N.E.2d 844, 855.) Although the first sentence of plaintiff’s instruction followed the language of Williams and Dukes and was a correct statement of the law, the latter paragraph mixed issues instructions with a definition and was phrased in an argumentative fashion. Since the second half told the jury the effect of foreseeable misuse, it argued plaintiff’s case. (Fornoff v. Parke Davis & Co. (1982), 105 Ill. App. 3d 681, 434 N.E.2d 793; Zieger, 112 Ill. App. 3d 518, 445 N.E.2d 844.) A party may not complain that the trial court failed to tender a jury instruction as to a particular aspect of the ease if the party failed to tender a proper instruction. (West Chicago State Bank v. Rogers (1987), 162 Ill. App. 3d 838, 515 N.E.2d 1261.) Plaintiff did not amend his instruction or offer a new definitional instruction and may not argue error occurred in failing to give such an instruction.

Plaintiff next argues the trial court violated section 2 — 1109 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1109) when it gave a form of the verdict which did not differentiate between economic and noneconomic loss. The court refused plaintiff’s verdict form, which did differentiate between economic and noneco-nomic loss. Section 2 — 1109 of the Code of Civil Procedure states itemized verdict forms shall be given to the jury in personal injury actions. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1109.) In Henderson v. Hudson (1984), 121 Ill. App. 3d 780, 785, 460 N.E.2d 10, 13, the trial court held the statute was mandatory. It noted the legislative history supported a finding that the word “shall” be interpreted as mandatory. In the instant case, plaintiff does not argue that the damages award was insufficient. The trial court correctly refused plaintiff’s verdict forms and instruction. The complaint contained two counts and three defendants. The verdict forms did not provide for separate verdicts on each count, did not allow for different findings among the defendants, and did not provide for a comparison of plaintiffs conduct as a damages-reducing factor.

Verdicts should cover all possible findings by the jury. (In re Estate of Payton (1979), 79 Ill. App. 3d 732, 739, 398 N.E.2d 977, 982.) Plaintiff did not offer amended verdict forms to correct the defect. Failing to tender a proper itemized verdict to the trial court waives review of the issue. Robinson v. Greeley & Hansen (1983), 114 Ill. App. 3d 720, 449 N.E.2d 250.

Plaintiff next argues the trial court abused its discretion in limiting his examination of a witness to show bias. Plaintiff maintains examination of Smith was necessary to show the nature and extent of his interest in the litigation. Plaintiff called Lloyd Smith as an adverse witness. Smith had incorporated Sunbelt and was its chief executive officer. Smith had also been chief executive officer of S/V Tool. Smith Tool bought Sunbelt’s interests, and Smith became the chief executive officer of Smith Tool. Center Industries, dismissed from the cause, bought Lloyd Smith’s shares in Smith Tool. Smith testified Center Industries paid him a percentage of the gross sales price for all tools sold, as a method of purchasing his shares. The trial court sustained defendants’ objection to a question concerning how much money this amounted to on a monthly basis.

A witness may properly be questioned to establish his interest, bias, or motive to testify falsely. (Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 477-78, 473 N.E.2d 1322, 1337.) A witness’ financial interest in a litigation is a proper subject for questioning. (DiBenedetto v. County of DuPage (1986), 141 Ill. App. 3d 675, 682-83, 491 N.E.2d 13, 19.) Limitation of the scope of such questioning is within the trial court’s discretion. Its discretion will only be reversed where a clear abuse is shown. (Lebrecht, 130 Ill. App. 3d 457, 473 N.E.2d 1322.) No abuse of discretion occurred in limiting examination on bias in the instant case.

Plaintiff next argues the trial court erred in failing to admit into evidence a list of allegations admitted by Smith Tool in its answer. In count III of plaintiff’s amended complaint, plaintiff alleged: (1) plaintiff was using the tool to take apart a combine chain; (2) while plaintiff was using the tool, the 50/60 end of it fractured; and (3) a piece of the punch entered plaintiff’s eye. Smith Tool filed an answer neither admitting nor denying the allegations. However, an affidavit in compliance with section 2 — 610(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 610(b)) was not attached to the answer. On the day of trial, plaintiff moved for admission of the assertions contained in the allegations. The trial court denied plaintiff’s motion and granted defendant leave to file an amended answer, in which it denied the allegations. Section 2 — 610(b) of the Code of Civil Procedure provides that an allegation of a complaint, except as to damages, which is not explicitly denied is admitted unless the party states, he has insufficient knowledge to admit or deny the allegation and attaches an affidavit so stating his lack of knowledge. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 610(b).) When a fact has been admitted in a pleading, it is a judicial admission. The opposing party need not present evidence in support of the issue. DiBenedetto v. County of DuPage (1986), 141 Ill. App. 3d 675, 491 N.E.2d 13.

However, it is within the discretion of the trial court to permit amendment to pleadings at any time before judgment. The decision of the trial court will not be reversed absent an abuse of discretion. (McCastle, 121 Ill. 2d 188, 520 N.E.2d 293; American Pharmaseal, 162 Ill. App. 3d 351, 515 N.E.2d 432.) The test as to whether that discretion has been properly exercised is whether the amendment furthers the ends of justice.

In the instant case, the other defendants did not admit the facts stated in the complaint. Plaintiff would have had to prove up his allegations as to those defendants. The motion to amend was made during trial, and under the facts presented here, allowing the amendment did not prejudice the plaintiff. No abuse of discretion occurred.

Next, plaintiff argues the trial court should have granted him judgment as a matter of law on count VII, which alleged violations of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1987, ch. 121V2, pars. 261 through 272) and violations of the Uniform Deceptive Trade Practices Act (Deceptive Practices Act) (Ill. Rev. Stat. 1987, ch. I2IV2, pars. 311 through 317). The trial court found in defendants’ favor as to the allegations concerning a violation of the Consumer Fraud Act. He noted plaintiff had not established the misrepresentation as to the punch was a proximate cause of his injury. The court noted no one saw the promise prior to the injury and in the trial judge’s opinion, the evidence did not indicate anything different would have occurred had the representation not been made. The trial court further noted plaintiff’s conduct in using the tool was a factor in his decision. The court held the Deceptive Practices Act did not apply.

Plaintiff refers to Pedrick and argues judgment notwithstanding the verdict should be entered as all of the evidence is in his favor. The more correct question on appeal is whether the trial court’s verdict is contrary to the manifest weight of the evidence. In count VII, plaintiff alleged Smith Tool and Sunbelt were engaged in the manufacture, sale, or distribution of the tool, which could be used to take apart chains on agricultural equipment. Plaintiff further alleged the tool contained a punch, which defendants represented would not break. Plaintiff alleged the punch broke, a piece entered his left eye, and he lost the sight of his left eye. Defendants admitted the factual allegations of the complaint except that a piece of the punch entered plaintiffs eye. They denied knowledge of the falsity of the representation and denied a violation of the statutes.

In order to establish a violation of the Consumer Fraud Act, plaintiff must show: (1) a deceptive act or practice; (2) an intent by defendants that plaintiff rely on the deception; and (3) the deception must have occurred in the course of conduct involving a trade or commerce. (Crowder v. Bob Oberling Enterprises, Inc. (1986), 148 Ill. App. 3d 313, 316, 499 N.E.2d 115, 117.) In order to recover individual damages, plaintiff must show his injury proximately resulted from the violation. (Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.) In the instant case, the trial judge stated the question of plaintiff’s conduct concerned him. He did not believe the misrepresentation caused the injury. The trial court’s determination that plaintiff had not established proximate causation of his injury is supported by the evidence.

The Deceptive Practices Act (Ill. Rev. Stat. 1987, ch. 1211/2, pars. 311 through 317) does not provide for individual damages for an injury. It provides for the granting of injunctive relief. (Ill. Rev. Stat. 1987, ch. 1211/2, par. 313.) Plaintiff requested individual damages for his injury. The trial court’s finding that the Deceptive Practices Act did not directly apply appears correct. An individual plaintiff may recover damages for violations of the Deceptive Practices Act because they are incorporated into the Consumer Fraud Act. (See Ill. Rev. Stat. 1987, ch. 1211/2, par. 262; Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433.) Since plaintiff could only recover individual damages pursuant to the Consumer Fraud Act, the trial court correctly determined that the Deceptive Practices Act per se did not apply.

Plaintiff next argues the trial court erred in holding a bench trial on count VII contrary to his request for a jury trial. Plaintiff contends that since he incorporated a Deceptive Practices Act violation into a Consumer Fraud Act claim, he is entitled to a jury trial on the issues. Plaintiff does not contend he would be entitled to a jury trial under the Consumer Fraud Act alone.

In Richard/Allen/Winter, Ltd. v. Waldorf (1987), 156 Ill. App. 3d 717, 509 N.E.2d 1078, the court noted the Consumer Fraud Act provided a new cause of action which was unknown at common law. The court analyzed the language of the Consumer Fraud Act, its legislative history, and cases decided pursuant to it. It held no jury trial is available to plaintiffs seeking damages under the Act. All of the courts which have addressed the issue agree that the Consumer Fraud Act provides broader protection for a consumer than common law fraud. It also establishes a new action based upon innocent misrepresentation. (See generally Waldorf, 156 Ill. App. 3d 717, 509 N.E.2d 1078; First Security Bank v. Bachleda (1987), 165 Ill. App. 3d 725, 731, 520 N.E.2d 660, 664; People ex rel. Fahner v. American Buyers Club, Inc. (1983), 115 Ill. App. 3d 759, 761, 450 N.E.2d 904, 906.) Section 10a of the Consumer Fraud Act states the “court” may award damages. (Ill. Rev. Stat. 1987, ch. 1211/2, par. 270a.) The trial court did not err in determining plaintiff was not entitled to a jury trial on count VII.

The Deceptive Practices Act (Ill. Rev. Stat. 1987, ch. 1211/2, pars. 311 through 317) does codify some common law actions for unfair competition. (Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 274, 361 N.E.2d 815, 821.) However, no individual damages are available under that act. Individual damages are only available inasmuch as the Deceptive Practices Act is incorporated into the Consumer Fraud Act. Since this is so, a plaintiff would not have a right to a jury trial on his individual damages claim pursuant to the Consumer Fraud Act.

Defendants argue in the alternative that the trial court erred in denying their special interrogatory. In light of our disposition, we need not address this issue.

For the above reasons, we affirm the trial court.

Affirmed.

SPITZ and GREEN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MURRAY JUSTICE PINCHAM,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NICHOLAS DEVALLE, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—1034
    Opinion filed March 17, 1989.
    Rehearing denied May 8, 1989.

      PINCHAM, J., dissenting.
    Randolph N. Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Following a joint bench trial, defendant was found guilty of attempted murder and sentenced to 14 years in prison. On appeal, defendant contends that the trial court erred in considering facts not in evidence and that the State’s evidence was flawed.

At the trial there was testimony from Jesus Rodriguez, the victim, defendant and defendant’s girlfriend, Annette Muniz. Rodriguez testified that on August 28, 1986, he saw a black Oldsmobile Delta 88 drive past while he was standing on the corner of California and Hirsh in Chicago. Rodriguez stated that there were four men in the car, and he identified the driver of the car as defendant. He also identified one of the passengers in the back seat as codefendant Arturo Delfi.

After the car drove away, Rodriguez returned to 1437 North California to wait for his mother. Approximately one-half hour later, while standing outside waiting, Rodriguez saw the black Delta 88 driving down California Avenue. The car came to a stop about 25 feet from Rodriguez, whereupon the person in the front passenger’s seat made a sign with his hand and shouted “Latin Kings.” Rodriguez responded by saying “[f]uck you.” At that point, the front-seat passenger took a gun from the glove compartment and fired three or four shots, striking Rodriguez once in the chest. Rodriguez was taken to the Cook County Hospital, where he received treatment.

Annette Muniz testified for the defendant. Muniz stated that she and defendant were dating and that she had known him for about one year. According to Muniz, she and defendant were sleeping at their friend’s house when this incident occurred.

Defendant also testified at the trial. He stated that he was no longer a “Latin King” and that he owned a black Delta 88, but he did not have it on the day of the incident. According to defendant, he was arrested on August 23, 1986, for driving without a license. The next morning he discovered his car had been stolen. Defendant, however, did not report the theft to the police. He claimed that he did not make out a police report because he did not have a title to the car. Defendant denied being involved with the murder attempt.

Following the trial, defendant was found guilty as charged. Codefendant was found not guilty.

On appeal, defendant contends that the trial court erred in considering facts not in evidence. Defendant maintains that the trial court’s comments that defendant did not surrender and that defendant made certain comments to the police about the shooting were facts not in evidence. Defendant, therefore, claims that he was entitled to a new trial. We disagree.

While it is true that in a bench trial it will be presumed that the trial judge considered only competent evidence (People v. Robinson (1964), 30 Ill. 2d 437, 197 N.E.2d 45), this presumption is overcome if it affirmatively appears from the record that the improper evidence was considered by the court. (People v. Cepolski (1979), 79 Ill. App. 3d 230, 398 N.E.2d 351; People v. Grodkiewicz (1959), 16 Ill. 2d 192, 157 N.E.2d 16.) In this case, we find that it is not affirmatively apparent from the record that the trial court considered incompetent evidence. Clearly, there was sufficient evidence outside of the court’s comments to convict defendant. Moreover, it does not affirmatively appear from the record that the trial court considered improper evidence, especially when defendant was found guilty on January 27, 1987, and the comments in question were made on April 2, 1987. Therefore, for the above reasons, we see no reason to disturb the trial court’s judgment.

Defendant further maintains that his conviction should be reversed because the circumstantial evidence against him was flawed. Defendant argues that the State did not present sufficient evidence to prove him guilty by accountability. Ill. Rev. Stat. 1987, ch. 38, par. 5— 2(c).

In People v. Cawley (1979), 77 Ill. App. 3d 780, 396 N.E.2d 865, this court held that although a defendant does not directly and personally murder the victim, he could be held accountable for such murder where he solicited, aided, abetted or attempted to aid codefendant in planning the commission of the offense. Moreover, defendant’s participation must occur before or during the commission of the offense with concurrent specific intent to promote or facilitate commission of the offense. People v. Cawley (1979), 77 Ill. App. 3d 780, 396 N.E.2d 865.

In People v. Daniels (1977), 51 Ill. App. 3d 545, 366 N.E.2d 1085, the court found the driver of a getaway car accountable. Also, in People v. Jones (1980), 86 Ill. App. 3d 278, 407 N.E.2d 1121, the court stated that when the plan, express or implicit, calls for a person to sit in a car while the crime is being committed and then spirit the others away from the scene, the driver’s participation is deemed to occur during the commission of the crime, not after. In addition, proving defendant’s specific intent to promote or facilitate the commission of the crime may be inferred from the circumstances surrounding the commission of the act. See People v. Tate (1976), 63 Ill. 2d 105, 345 N.E.2d 480.

We note that a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) When presented with a challenge to the sufficiency of the evidence, it is not the function of the reviewing court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The relevant inquiry is whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill. 2d at 261, citing Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.

After viewing the evidence in a light most favorable to the prosecution, we see no reason to disturb the judgment of the trial court.

Accordingly, the judgment of the circuit court is affirmed. As part of our judgment, we grant the State’s request and assess defendant $50 as costs for this appeal.

Judgment affirmed.

COCCIA, J., concurs.

JUSTICE PINCHAM,

dissenting:

I dissent. It clearly and affirmatively appears from the record before us on appeal that in finding the defendant guilty and in overruling the defendant’s motion for a new trial, the trial court wrongly relied on and considered highly improper facts and circumstances which were not in evidence. The defendant’s conviction and 14 years’ imprisonment sentence should therefore be reversed and the cause should be remanded for a new trial. A brief summary of the facts of the case, the trial court’s comments and the procedural posture in which the comments were made permit no other valid conclusion.

The defendant was charged with attempted murder. The State’s evidence was that in a street gang confrontation and retaliation, the defendant drove his car to a location at which a passenger in the defendant’s car fired shots which struck the pedestrian-victim and the defendant drove off. The shooting victim at trial identified the defendant as the driver of the car.

The defendant testified at trial and denied any involvement in the shooting and denied being at the crime scene. He related that at the time the offense was committed he was asleep with his girlfriend, Annette Muniz, in the home of friends, at which he was momentarily residing, some distance from the crime scene. Annette Muniz likewise so testified. The trial court rejected the defendant’s defense and found the defendant guilty on January 27,1987.

The defendant’s motion for a new trial was filed on February 27, 1987, and each of its five paragraphs, in varying forms, asserted that the evidence failed to prove the defendant guilty beyond a reasonable doubt. At the hearing of the defendant’s motion for a new trial on April 2, 1987, the defendant’s attorney reviewed the evidence in detail and vociferously argued that the evidence did not prove the defendant’s guilt beyond a reasonable doubt. In responding to the defense attorney’s argument that the evidence was insufficient to sustain the trial court’s guilty finding, and in denying the motion for a new trial, the trial court stated:

“THE COURT: I’m going to deny your motion, Mr. Stanton. In this case the defendant is connected with the car in question. The car comes around at least two times. The car stops according to the victim here. Gang slogans are thrown back and forth. The victim yells an epitaph. A gun is pulled out of the glove compartment of the car that the defendant is connected with. In fact I think he’s shown to be the owner of the car. Shots are fired.
The defendant and occupants flee in that car. The defendant does not stop and aid the victim in any manner, shape and form which is one of the factors that are being taken into consideration for assessing accountability and whether there’s sufficient evidence in the record to show intent and accountability.
The defendant does not surrender. The defendant when he’s arrested does not testify, does not state to the police, yes, I was the driver hut I never knew that the shooting was going to take place. I never knew that the passenger was going to shoot. He doesn’t get on the witness stand and state the same thing.
* * *
He denies ever being involved in this ***. So I will deny the post-trial motion.” (Emphasis added.)

First, it appears that the trial court was in error when it stated that “The defendant does not surrender.” The defense attorney promptly corrected the trial court, stating:

“Judge, I just want to correct before I go in mitigation one thing that Your Honor said. You said that Mr. Devalle did not turn himself in but *** he called the police and they met at an appropriate spot and he did turn himself in.”

The trial court responded that the defendant turned himself in to the police “after the word went on the street that the police officers were looking for him.” This statement by the trial court is totally unsupported by the record on appeal before us.

Second, the trial court’s statements that when the defendant was arrested he did not “state to the police, yes, I was the driver but I never knew that the shooting was going to take place. I never knew that the passenger was going to shoot” are also totally unsupported by the evidence. There is no evidence in the record of what the defendant told the police when he was arrested. The record is completely silent on whether the defendant told the officers anything when he was arrested. It is elementary that “the court erred in considering matters which were not properly in the record,” that, “the deliberations of the trial judge are limited to the record made before him during the course of the trial,” and that “[a] determination made by the trial judge based upon *** private knowledge of the court, untested by cross-examination, or any of the rules of evidence constitutes a denial of due process of law.” People v. Wallenberg (1962), 24 Ill. 2d 350, 353-54; People v. Yarbrough (1982), 93 Ill. 2d 421, 428-30; People v. Harris (1974), 57 Ill. 2d 228, 231-32.

Third, there can be no rational doubt and it is glaringly clear from the trial court’s foregoing comments and the posture of the trial proceedings in which the comments were made that in finding the defendant guilty and in denying his motion for a new trial, the trial court improperly relied on and considered that when the defendant was arrested, he did not tell the police that (1) he was the'driver of the car; (2) he did not know that the shooting was going to take place; and (3) he did not know that the passenger was going to shoot.

Fourth, what the defendant refused to tell the officers, just as the defendant’s silence upon his arrest, is inadmissible as evidence against the defendant as violative of constitutional due process and his privilege against self-incrimination. A fortiori, a trial court’s consideration of and reliance on what the defendant refused to tell his arresting officer in finding a defendant guilty and/or in denying a defendant’s motion for a new trial, which was not in evidence, violate constitutional due process and the defendant’s privilege against self-incrimination. Most assuredly, the trial court’s reliance on and consideration of what the defendant did not tell his arresting officer when he was arrested, of which there was no evidence, in finding the defendant guilty and/or in overruling the defendant’s motion for a new trial clearly violated constitutional due process, the defendant’s privilege against self-incrimination, as well as the expressed landmark holdings of the Supreme Court of the United States in United, States v. Hale (1975), 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133, Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, and Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.

As a prophylactic means of safeguarding fifth amendment rights, Miranda requires that a person taken into custody be immediately informed of his right to remain silent and that anything he says may be used against him, of his right to counsel and to confer with counsel before answering any questions and to have his counsel present during any interrogation of him. Thus, the defendant’s silence or his refusal to tell the arresting officer that he was the driver of the car but that he did not know the shooting was going to take place or that the passenger was going to shoot, as stated by the trial court in the case at bar, may have been occasioned by the defendant’s exercise of his Miranda rights. The trial court’s reliance on or consideration of the defendant’s declination to reveal to his arresting officers the information demanded by the learned trial judge clearly violates the mandates, holdings, meaning and spirit of Miranda.

The defendant in United States v. Hale (1975), 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133, was identified on the street by a robbery victim as one of the persons who had just robbed him of $96. The defendant fled, the police gave chase, arrested him and gave him his Miranda warnings. The defendant had $158 in his possession, and in response to the arresting officers’ question of where did he get the money, the defendant remained silent. At trial, the defendant testified that he had received the money which was in his possession when he was arrested earlier that day from his estranged wife. The prosecutor asked the defendant on cross-examination if he told the arresting officers his source of the money, to which the defendant negatively responded. When asked by the prosecutor why not, the defendant stated that he didn’t feel that it was necessary at the time. The trial court instructed the jury to disregard that cross-examination but refused to declare a mistrial. The defendant was convicted. The court of appeals reversed, holding that the prosecutor’s questions of the defendant about his foregoing silence when he was arrested impermissibly prejudiced the defendant’s defense and infringed upon his right to remain silent under Miranda.

The Supreme Court granted certiorari in Hale and found that the probative value of the defendant’s pretrial silence was outweighed by the prejudicial impact of admitting it into evidence. The Supreme Court concluded and held in Hale:

“We now conclude that the respondent’s silence during police interrogation lacked significant probative value and that any reference to his silence under such circumstances carried with it an intolerably prejudicial impact.
Accordingly, we hold that *** it was prejudicial error for the trial court to permit cross-examination of respondent concerning his silence during police interrogation, and we conclude, in the exercise of our supervisory authority over the lower federal courts, that Hale is entitled to a new trial.” 422 U.S. at 180-81, 45 L. Ed. 2d at 107, 95 S. Ct. at 2138-39.

Justice Douglas concurred in the judgment in Hale, stating:

“ T can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it.’ [Citation.] *** I do not accept the idea that Miranda loses its force in the context of impeaching the testimony of a witness. [Citation.] In my opinion Miranda should be given full effect.
I also believe, as does my Brother White, that given the existence of Miranda due process is violated when the prosecution calls attention to the silence of the accused at the time of arrest.” 422 U.S. at 182, 45 L. Ed. 2d at 108, 95 S. Ct. at 2139 (Douglas, J., concurring).

Justice White also concurred in Hale, on Miranda grounds, expressing his views as follows:

“[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. *** Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case. I would affirm on this ground.” (Emphasis added.) 422 U.S. at 182-83, 45 L. Ed. 2d at 108, 95 S. Ct. 2139-40 (White, J., concurring).

Having affirmed the judgment of the court of appeals which reversed the defendant’s conviction and remanded for a new trial in Hale on the probative value — prejudicial impact ground, the Supreme Court did not reach the broader Miranda constitutional due process and self-incrimination issue also presented in Hale. It reached these constitutional grounds, however, in Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.

In Doyle, the defendants, Doyle and Wood, were charged with the sale of marijuana to a narcotics bureau informant. At their trial they testified that they were framed by the informant, that they were engaged in an unsuccessful purchase of marijuana from the informant, who, the defendants also testified, supplied the marijuana the agents recovered from the informant. The prosecutor cross-examined the defendants on their failure to tell the arresting agents the frame-up story and their trial version of the transaction when the agents arrested them. The defendants were convicted, and before the State appellate tribunal they contended that the trial court erred in allowing the prosecutor to cross-examine them on their post-arrest silence. The State appellate tribunal affirmed the defendants’ convictions and, in rejecting the defendants’ contention, in specious language similar to that used by the majority herein, stated: “This was not evidence offered by the state in its case in chief as a confession by silence or as substantive evidence of guilt but rather cross examination of a witness as to why he had not told the same story earlier at his first opportunity. We find no error in this. It goes to credibility of the witness.” 426 U.S. at 615-16, 49 L. Ed. 2d at 96, 96 S. Ct. 2243.

In the case at bar, it is impossible to discern on what legal theory or basis the trial judge relied and considered the defendant’s refusal to tell the arresting officers that he was the driver of the car but that he did not know that the passenger was going to shoot the victim. Under the Supreme Court’s holding in Doyle, the basis of the trial court’s reliance theréon is irrelevant. Under Doyle, it was the trial court’s reliance on the defendant’s refusal to reveal anything to the arresting officer, i.e., the defendant’s silence, that violates constitutional due process.

In Doyle, the Supreme Court stated, “We granted certiorari to decide whether impeachment use of a defendant’s post-arrest silence violates any provision of the Constitution, a question left open last term in United States v. Hale (1975), 422 U.S. 171 ***.” (426 U.S. at 616, 49 L. Ed. 2d at 96, 96 S. Ct. at 2244.) The Court in Doyle identified the question before it for review and its decision on that question, as follows:

“The question in these consolidated cases is whether a state prosecutor may seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest. We conclude that use of the defendant’s post-arrest silence in this manner violates due process, and therefore reverse the convictions of both petitioners.” 426 U.S. at 611, 49 L. Ed. 2d at 94, 96 S. Ct. at 2241.

The Supreme Court additionally pointed out and held in Doyle:

“[Wjhile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial * * *
We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.

The officers who arrested the defendant in the case at bar did not testify at the defendant’s trial, or, so far as I am able to determine from the record before us on appeal, at any other pretrial or post-trial proceedings. There were none. The defendant was not called upon during his trial testimony to relate any facts or circumstances of his arrest. An exhaustive search of the record before us on appeal does not reveal that the defendant turned himself in “after the word went on the street that the police officers were looking for him,” as the trial court stated. This statement, too, by the trial court is evidentially baseless.

It is reasonable to assume that the defendant was arrested, and that in compliance with Miranda, the arresting officers advised the defendant of his Miranda warnings. Moreover, the trial court stated in denying the defendant’s motion for a new trial, as previously set forth, that the defendant was arrested, and that at the time of the defendant’s arrest, he did not state to the police that he was the driver of the car but did not know that the passenger was going to shoot. Thus, having premised its statement on the logical and practical assumption that the defendant was arrested, and then predicated its ruling, denying the defendant’s motion for a new trial, on this assumed premise, it is therefore appropriate for me to likewise review same and pass judgment thereon, as though the defendant was arrested and properly admonished of his Miranda rights.

From the above and foregoing, it is clear to me that in finding the defendant guilty and in overruling the defendant’s motion for a new trial, the trial court improperly relied on and considered the inappropriate facts and circumstances of the defendant’s refusal to tell the officers when he was arrested that he was the driver of the car but did not know that the shooting was going to take place, or that the passenger was going to shoot. This violated the defendant’s Federal and State constitutional rights to due process and his privilege against self-incrimination, and the spirit, purpose, letter, language and holdings of the United States Supreme Court noted decisions in Miranda, Hale and Doyle.

The majority’s assessment of the trial court’s foregoing comments “that it is not affirmatively apparent from the record that the trial court considered incompetent evidence” (182 Ill. App. 3d at 3) is simply the epitome of intellectual ostrichism. Moreover, the majority’s statement, that the presumption that a trial judge considered only competent evidence is overcome if it affirmatively appears from the record that the improper evidence was considered by the trial judge, in the case at bar is a meaningless shibboleth. (Jackson v. Virginia (1979), 443 U.S. 307, 327, 61 L. Ed. 2d 560, 579, 99 S. Ct. 2781, 2793.) The majority fallaciously concludes that because the trial court had found the defendant guilty when it uttered its comments, which reveals that the trial court wrongly considered the improper facts and circumstances that were not in evidence in finding the defendant guilty, such post-finding comments cannot be relied upon to establish that the trial judge considered what he therein said he considered in finding the defendant guilty. This reasoning is nonsensical. The majority’s comment that “there was sufficient evidence outside of the court’s comments to convict defendant” (182 Ill. App. 3d at 4) is totally irrelevant.

Each of these aforementioned contentions on which the majority relies in the case at bar were rejected by the supreme court in People v. Wallenberg (1962), 24 Ill. 2d 350, 354, in the following language, clearly and uniquely applicable to the case at bar:

“While the evidence appearing in the record may be sufficient to establish the guilt of the defendant, the credibility of defendant and the defense of alibi were minimized and, in fact, entirely negated by the trial court’s resort to personal beliefs.
The rule is clear that when the trial court is the trier of the facts every presumption will be accorded that the judge considered only admissible evidence and disregarded inadmissible evidence in reaching his conclusion. [Citations.] Nevertheless the trial Judge’s statement, incorporated in the record, that he had considered matters which were not in evidence necessarily rebuts this presumption. Under the circumstances there is no alternative but to reverse and remand for a new trial.”

Regarding the sufficiency of the evidence, the prosecutor’s complete case against the defendant was the uncorroborated single identification testimony of the victim. Although an uncorroborated single identification may be sufficient to convict, in the case at bar, however, the trial court apparently concluded that it was not, for the trial court also relied on the defendant’s silence and refusal to state to the arresting officers that he was the driver but did not know that the passenger was going to shoot the victim in finding the defendant guilty and in denying the defendant’s motion for a new trial. The trial court erroneously and unconstitutionally did so.

For the reasons I have stated, the defendant’s conviction should be reversed and the cause should be remanded for a new trial. Accordingly, I dissent.


author: PRESIDING JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOZSEF FERCSI, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 86—3592
    Opinion filed March 31, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Richard E. Gade, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Initially, defendant Jozsef Fercsi appealed his jury conviction of murder on the ground that he was improperly sentenced to 30 years’ imprisonment when the trial court allegedly considered evidence establishing his intent to kill as a sentencing factor. While the appeal was pending, the Illinois Supreme Court filed an opinion in People v. Reddick (1988), 123 Ill. 2d 184, after which both defendant and the State filed supplemental briefs. Relying on Reddick, defendant now argues that he is entitled to a new trial because the trial court erroneously instructed the jury as to the burden of proof related to voluntary manslaughter.

The facts underlying this case need only be mentioned briefly. In September 1985, defendant, Robert Flowers, and Tiberiu Paretei, all of whom lived in the same rooming house, were drinking together in Flowers’ room. After Flowers displayed a photograph of his daughter, Tiberiu made sexually orientated remarks about the daughter. Defendant insisted that Tiberiu apologize. After about a half-hour of argument in English and Hungarian between defendant and Tiberiu, Tiberiu eventually apologized. Flowers then left the room and returned to find defendant standing over Tiberiu, who was lying on the floor; defendant was hitting him in the head with a hammer. Defendant claimed that he went to his own room after Flowers left the room. Tiberiu followed him and kicked in his door, whereupon defendant hit the victim with a pipe and then got a hammer and hit him several more times. Investigating officers stated that defendant’s door showed no signs of damage, but that there was blood in the hallway leading to Flowers’ room, where the victim was found. Defendant also stated that he had seen Tiberiu “cut” another man prior to these events and that Tiberiu had pulled a knife on defendant about a year earlier.

In addition to a murder instruction and at defendant’s request, the jury was also instructed on voluntary manslaughter based on an unreasonable belief that defendant’s actions were justified. After receiving the Illinois Pattern Jury Instructions (IPI) on these crimes, the jury found defendant guilty of murder.

We must reverse and remand for a new trial.

In People v. Reddick (1988), 123 Ill. 2d 184, the court held that it was grave error to give IPI Criminal, No. 7.02 (2d ed. 1981) (hereinafter IPI Criminal 2d) (murder) in tandem with IPI Criminal 2d No. 7.04 (voluntary manslaughter — provocation) and/or IPI Criminal 2d No. 7.06 (voluntary manslaughter — belief of justification). The error occurs because the voluntary manslaughter instruction in conjunction with the murder instruction fails to inform the jury that the State bears the burden of disproving the mitigating mental states necessary to reduce a murder charge to manslaughter. According to the Reddick court, such a combination of instructions, if followed by a jury, eliminates the possibility of a defendant being convicted of voluntary manslaughter since the only way a mitigating mental state can be proved is by the defendant, rather than by the State. (Reddick, 123 Ill. 2d at 194-95.) Since this is precisely the situation here, defendant’s conviction must be reversed.

The State concedes that the present law is as enunciated by Reddick but that it is inapplicable to our case because (1) defendant waived or is estopped from now raising the instructions issue since he tendered the voluntary manslaughter instruction, and (2) the Reddick decision should not be applied retroactively. We disagree as to both arguments.

There are several reasons for dismissing the State’s first argument. The Reddick opinion involved two consolidated appeals. The defendant in one of them did not challenge the instructions, even on appeal; however, the court considered the issue, even though not raised, because of the gravity of the error involved, i.e., denial of a fair trial. We also note that defendant in the present case was convicted approximately V-k years before Reddick was decided (June 20, 1988). Therefore, at the time he proffered the IPI voluntary manslaughter instruction, there, was no way he could know that 18 months later the supreme court would find the instruction improper when given with the IPI murder instruction. The very basis of waiver in American jurisprudence is the giving up of a known right. (People v. Johnson (1979), 75 Ill. 2d 180.) Defendant did not know of the right and, thus, could not waive it.

We must also dismiss the State’s contention that Reddick should not be applied retroactively. It argues that retroactive application conflicts with decisions in Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (burden of proof regarding murder and manslaughter is matter of statutory interpretation, not constitutional law), and Engle v. Isaac (1982), 456 U.S. 107, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (constitutional for defendant to bear burden of proof regarding mitigation needed to reduce murder to manslaughter). The State also points out that in Engle, it was held that changes in State case law relating to the burden of proof in murder cases need not be applied retroactively, at least when a defendant failed to raise the issue at the trial level.

However, we note that Patterson merely held that a State legislature may choose to require a defendant to establish the required mitigating circumstances in order to reduce murder to manslaughter. (Engle was in accord with Patterson on this issue.) The Illinois legislature has subsequently placed the burden of proof for mitigating mental states on the defendant, but only in cases involving homicides occurring after December 31, 1986. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2.) But at the time defendant was convicted, the burden of proof was on the State. (See Reddick, 123 Ill. 2d at 195-97; Ill. Rev. Stat. 1985, ch. 38, par. 3 — 2.) Therefore, under the law in existence then, the State was required to prove the absence of an unreasonable belief of justification by defendant, in addition to proving all the elements of murder, in order to obtain a murder conviction. However, the instructions informed the jury that it could render a finding of murder without even considering the mitigation evidence.

All of this discussion leads us to agree with the opinion expressed in People v. Brooks (1988), 175 Ill. App. 3d 136, that where given jury instructions do not require the State to prove all of the essential elements of the crime charged, including the disproving of a mitigating mental state, the resultant error is of constitutional dimension and should be retroactively applied. The court in Brooks relied on the retroactive test delineated in People v. Erickson (1987), 117 Ill. 2d 271. The Erickson court held that new constitutional rules set forth in judicial opinions will be applied retroactively when “(1) the case to which the new rule is to be applied was not final or was pending on direct review when the rule was declared and (2) the rule to be applied retroactively is of constitutional dimension.” Erickson, 117 Ill. 2d at 289.

We briefly note that on February 1, 1989, the Illinois Supreme Court denied the State’s petition for leave to appeal in People v. Brooks (1989), 124 Ill. 2d 557. Furthermore, the court in People v. Flowers (1989), 192 Ill. App. 3d 292, has held that the Reddick rule applies also to cases pending on collateral review. Inasmuch as our supreme court, by denying leave to appeal in the Brooks case, has tacitly approved retroactive application of the Reddick rule, at least to cases pending on direct review, it may be advantageous for personnel in the offices of the State’s Attorney and the public defender to review their appellate caseloads and take appropriate action.

In conclusion, defendant’s conviction for murder is reversed and the cause is remanded for a new trial.

Reversed and remanded.

LORENZ and COCCIA, JJ., concur.


text:
    MOSTARDI-PLATT ASSOCIATES, INC., Plaintiff-Appellee, v. AMERICAN TOXIC DISPOSAL, INC., Defendant-Appellant.
    First District (5th Division)
    No. 1—87—3255
    Opinion filed March 31, 1989.

      John O. Tuohy, of Chicago, for appellant.
    John R. Doyle and James R. Pranger, both of McDermott, Will & Emery, of Chicago, for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

American Toxic Disposal, Inc. (A.T.D.), defendant, appeals from three orders of the circuit court of Cook County in a case involving a settlement agreement and an installment note. Mostardi-Platt Associates, Inc. (M-P), plaintiff, was the recipient of the installment note and party to the settlement agreement. The matter still pends in the trial court on A.TD.’s counterclaim against M-P. The three orders appealed from are (1) a January 16, 1987, order granting M-P’s motion for summary judgment; (2) an April 8, 1987, order denying A.TD.’s motion to reconsider the order of January 16, 1987, granting M-P’s motion for summary judgment; and (3) an October 19, 1987, order denying A.TD.’s motion to stay enforcement of the January 16, 1987, order granting M-P’s summary judgment.

A.T.D.’s notice of appeal was not filed until October 26, 1987, more than six months after the April 8, 1987, order denying A.T.D.’s motion to reconsider the January 16, 1987, order granting M-P’s summary judgment, but eight days after the trial court’s order of October 19, 1987, denying A.TJX’s motion to stay enforcement of the summary judgment M-P obtained on January 16,1987.

We are, initially, met with M-P’s .charge that the court has no jurisdiction of the cause because of the lateness of A.T.D.’s notice of appeal.

Previously, we denied M-P’s motion to dismiss A.T.D.’s appeal based on the modification of the supreme court’s opinion in Elg v. Whittington (1988), 119 Ill. 2d 344, 518 N.E.2d 1232. In that case the Illinois Supreme Court held that a timely filed motion to reconsider does not toll the time (30 days) to appeal from an order made appealable pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) by inclusion of the language “there is no just reason to delay the enforcement and appeal of this order.” Under that supreme court rule, an order like the trial court’s order in this case of January 16, 1987, granting M-P’s motion for summary judgment, became appealable by inclusion of the language “there is no just reason to delay the enforcement and appeal of this order.” (107 Ill. 2d R. 304(a).) As a general rule of appellate law, an order like the trial court's of January 16, 1987, that disposed of only part of a controversy between parties is not final or appealable until the entire controversy is disposed of. Supreme Court Rule 304(a) creates an exception to this general rule of appellate procedural law by permitting appeals from trial court orders that only dispose of a portion of the controversy between parties. That exception arises when a trial judge (as in the present case) makes an express finding that there is no just reason to delay the enforcement or appeal of the otherwise nonfinal order. (107 Ill. 2d R. 304(a).) Prior to Elg v. Whittington (1988), 119 Ill. 2d 344, 518 N.E.2d 1232, there appeared to be some confusion in appellate procedure as to whether a motion to reconsider an otherwise nonfinal order made appealable by Supreme Court Rule 304(a) tolled the time for an appeal from the order until the motion to reconsider was ruled on. In Elg, the supreme court clarified the effect of a motion to reconsider such an order that did not dispose of the entire controversy between parties, but did contain the language of Supreme Court Rule 304(a) that there is no just reason to delay the enforcement or appeal of the otherwise nonappealable order. The court in its original opinion filed November 16, 1987, held that a timely filed motion to reconsider such an order did not toll the time for appealing the order. In a modified opinion issued on February 11, 1988, denying a petition for rehearing, the court held that its ruling was to be applied only to cases in which the notice of appeal was to be filed or due to be filed on or after its decision was first announced (November 16, 1987).

In this case the January 16, 1987, order granting M-P’s motion for summary judgment did contain the language “there is no just reason to delay the enforcement or appeal” of the order. If the rule announced in the supreme court’s original opinion in Elg v. Whittington (1987), 119 Ill. 2d 344, 518 N.E.2d 1232, were applied here, A.TJX’s notice of appeal would have to have been filed 30 days after its issuance on January 16, 1987, and A.T.D.’s timely motion to reconsider would not toll the time to appeal. However, under the supreme court’s modified opinion in Elg, the rule was made prospective only from the date of November 16, 1987. Thus, A.TD.’s motion to reconsider tolled the time for appeal until the time the trial court ruled on the motion. The trial court did rule on A.TD.’s motion to reconsider by denying it on April 8, 1987. A.T.D. now seeks to have this court hold that the prospective application of the Elg decision should be extended until October 19, 1987, the date the court denied A.TD.’s motion to stay enforcement of its January 16, 1987, order granting summary judgment to M-P, pending the resolution of A.TD.’s still pending counterclaim.

To adopt A.TD.’s novel argument would be contrary to the reasoning in Elg v. Whittington (1987), 119 Ill. 2d 344, 518 N.E.2d 1232, and contrary to settled law on the subject. For example, our supreme court has held that successive post-trial motions are not allowed and would not extend the time for filing a notice of appeal. (Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610.) As the court stated in Sears:

“A motion not filed within 30 days after the judgment (or any extension allowed) is not ‘timely’ within the meaning of that word as used in Rule 303(a); and an untimely motion, or one not directed against the judgment, neither stays the judgment nor extends the time for appeal.” Sears v. Sears (1981), 85 Ill. 2d 253, 259, 422 N.E.2d 610.

The motion seeking to stay the enforcement of the January 16, 1987, judgment was neither a timely motion nor did it attack either the January 16, 1987, summary judgment or the April 8, 1987, order denying A.T.D.’s motion to reconsider. Thus, even under the Elg case, the motion to stay enforcement of the January 16, 1987, motion filed in October 1987, did not have the effect of tolling the time requirements of the supreme court rule relating to appeals from trial court orders. 107 Ill. 2d R. 303(a).

Accordingly, A.TD.’s appeal from the orders of January 16, 1987, and April 8, 1987, are dismissed as untimely, no notice of appeal having been filed from those orders within the 30 days required by Supreme Court Rules 303 and 304. 107 Ill. 2d Rules 303, 304.

The order of October 19, 1987, denying A.TJD.’s motion to stay enforcement of the January 16, 1987, order until the counterclaim is disposed of is properly before this court since the notice of appeal from that order was filed on October 26, 1987, within 30 days of its entry.

The Illinois Code of Civil Procedure authorizes a trial court to set off judgments between the same parties, one against the other. (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 176.) These set-off provisions are derived, not only from the State, but the inherent powers of a court over the enforcement of its judgments. (Adam Martin Construction Co. v. Brandon Partnership (1985), 135 Ill. App. 3d 324, 481 N.E.2d 962.) Although A.T.D. moved to stay the enforcement of M-P’s summary judgment pending a resolution of its counterclaim, it suggests no legal reason or record as to why the trial judge erred in denying its motion. With no record or suggestion by the defendant, A.T.D., as to terms of its requested stay that are just as to both A.T.D. and M-P, this court cannot conclude on this record that the trial judge improperly refused to exercise its inherent power to stay the judgment. Accordingly, we affirm the trial court’s order of October 19,1987, denying a stay of enforcement.

For the above reasons, the appeals from the order granting M-P’s summary judgment (the January 16, 1987, order and the order denying reconsideration, April 8, 1987) are dismissed as untimely, no notice of appeal having been filed within 30 days as required by the rules of the supreme court. The order of October 19, 1987, denying a stay of enforcement is affirmed.

Dismissed in part, and affirmed in part.

PINCHAM and COCCIA, JJ., concur.