author: PRESIDING JUSTICE WELCH

text:
    WILLIAM W. WARREN et al., d/b/a Hickory Shores Resort, Plaintiffs and Appellants and Counterdefendants and Cross-Appellees, v. DONALD J. BORGER et al., Defendants-Appellees (Eugene C. Ochs et al., Counterplaintiffs and Cross-Appellants).
    Fifth District
    No. 5—87—0056
    Opinion filed June 2, 1989.

      Patrick J. Hitpas and T. Fritz Levenhagen, both of Carlyle, for appellants.
    Hughie G. Craig, of Greenville, for appellees Lloyd G. Barnard and Virgil N. Thomas.
    R. Edward Veltman, Jr., and David M. Foreman, both of Crain, Cooksey & Veltman, Ltd., of Centraba, for appellees Donald J. Borger, Sabra J. Borger, Melvin N. Jennings, Dorothy J. Jennings, Joe C. Hill, Darlene M. Hill, Robert W. Wilke, Dana Wilke, Bob J. Redman, Dale 0. Cronkhite, Cecilia M. Cronkhite, Richard L. Steiner, Ann M. Steiner, David F. Cason, Diana G. Cason, Donald R. Cox, Patsy M. Cox, Stephen G. Mitchell, Toni E. Mitchell, Melvin L. Stacey, and Lois M. Stacey.

      Richard Briles Moriarty, of Shorewood, Wisconsin, for appellees Eugene C. Ochs and Maria S. Ochs.
    Michael J. Logan, of Calandrino, Logan & LaMarca, of Springfield, for appellees Donald Moor and Henry Selinger.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

In this case of first impression, we are asked to construe section 2B of the Illinois Consumer Fraud and Deceptive Business Practices Act (111. Rev. Stat. 1979, ch. 121V2, par. 262B). The appeal is brought by plaintiffs, William B. Warren and Halleck B. Warren, Jr., d/b/a Hickory Shores Resort, from summary judgments entered in the circuit court of Clinton County in favor of 31 different defendants in 16 different cases. Some of these cases were consolidated in the trial court; all have been consolidated for purposes of this appeal.

Also before us is a cross-appeal brought by defendants Eugene C. Ochs and Maria S. Ochs against plaintiffs, in which defendants argue that the contract of sale they entered into with plaintiffs violates the Federal Truth in Lending Act and Regulation Z thereunder. 15 U.S.C.S. §1601 et seq. (Law. Co-op. 1982).

In the latter part of the 1970’s, plaintiffs developed a camping resort near Carlyle Lake known as Hickory Shores Resort. The resort is not open to the public, but is restricted to members and their guests. In order to interest potential members in the resort, plaintiffs sent direct mail solicitations addressed to selected members of the general public, including defendants herein, inviting them to visit the resort for a guided tour. The mailing notified the recipients that they have definitely won a valuable prize which they will receive, along with a free gift, when they visit the resort.

Each of the defendants herein travelled to the resort and was given a guided tour of its facilities. During the tour, the guide explained to the defendants how they could purchase memberships in the resort. After the tour, each defendant entered into a contract to purchase a membership in the resort. In each case, the membership was purchased on an installment basis. The defendants were to make various installment payments at various rates of interest.

In each of the cases, defendants did not perform their payment obligations under the contracts and plaintiffs brought suit for breach of contract. The defendants filed motions for summary judgment, arguing that the sales of the resort memberships fell within the purview of section 2B of the Illinois Consumer Fraud and Deceptive Business Practices Act. (Ill. Rev. Stat. 1979, ch. 121V2, par. 262B.) That section provides that certain contracts may be rescinded by the purchaser within three business days of receipt of a “Notice of Cancellation” from the seller. As no such notices had been sent to defendants by plaintiffs, defendants sought rescission of the contracts. Plaintiffs have at all times maintained that section 2B does not apply to the sales in question.

The circuit court of Clinton County granted defendants’ motions for summary judgment, finding that, although the language of section 2B is ambiguous, the sales here involved do fall within its purview. Relying on People v. Beaulieu Realtors, Inc. (1986), 144 Ill. App. 3d 580, 494 N.E.2d 504, the trial court found that the mailing here involved was a solicitation and not mere advertising. The court found that, to fall within the purview of section 2B, the sale must occur “as a result of or in connection with a salesman’s direct contact with or call on the consumer at his residence.” (Ill. Rev. Stat. 1979, ch. 121½, par. 262B.) The court further found that the unrequested direct mail solicitations to defendants at their residences constituted such a “salesman’s direct contact with or call on the consumer at his residence,” and that the sales occurred as “a result of, or in connection” therewith.

A motion for summary judgment should be granted where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. (American Buyers Club of Mt. Vernon, Illinois, Inc. v. Zuber (1978), 57 Ill. App. 3d 899, 900, 373 N.E.2d 786, 788.) In the instant case, there are no disputed questions of fact. Rather, the trial court was presented with a disputed question of law regarding the construction of a statute. Questions regarding the construction of a statute are properly resolved by the trial court as questions of law. (In re Estate of Pirie (1986), 141 Ill. App. 3d 750, 766, 492 N.E.2d 884, 894.) We may review the trial court’s disposition of a question of law independently of the trial court’s judgment. (Illinois Valley Asphalt, Inc. v. La Salle National Bank (1977), 54 Ill. App. 3d 317, 320, 369 N.E.2d 525, 528.) We find that the trial court properly construed section 2B of the Consumer Fraud and Deceptive Business Practices Act and affirm the summary judgments entered in favor of defendants and against plaintiffs.

All of the sales contracts in issue were executed between February 2, 1980, and June 26, 1983. The statute in effect at that time provided:

“Where merchandise having a cash sales price of $25 or more is sold or contracted to be sold *** to a consumer as a result of or in connection with a salesman’s direct contact with or call on the consumer at his residence without the consumer’s soliciting the contact or call, that consumer may avoid the contract or sale by notifying the seller within 3 full business days. *** At the time the sale is made or the contract signed, the salesman shall furnish the buyer with a written receipt or contract containing a “Notice of Cancellation” informing the buyer that he may cancel the sale at any time within such 3 days. *** The 3 day period provided for in this section does not commence until the Notice of Cancellation ***.” (Ill. Rev. Stat. 1979, ch. 121½, par. 262B.)

The trial court found the language of section 2B to be ambiguous. We are unable to say that the language of section 2B is so clear that the trial court’s finding of ambiguity is error. We may, therefore, resort to extrinsic sources to aid us in our construction of section 2B. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 279, 469 N.E.2d 167, 172.) We look first, however, to the language of the statute itself, particularly the words, “salesman’s direct contact with or call on the consumer at his residence.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 121½, par. 262B.) Statutory terms which are not defined must be given their ordinary and popularly understood meaning. (Lake County Board of Review v. Property Tax Appeal Board (1988), 119 Ill. 2d 419, 423, 519 N.E.2d 459, 461.) Furthermore, terms must be given their full meaning, not the narrowest meaning of which they are susceptible. Lake County Board of Review, 119 Ill. 2d at 423, 519 N.E.2d at 461.

From the language of the statute, it is clear that the terms “direct contact” and “call on” are intended to have different meanings. As used in its ordinary sense, the word “or” marks an alternative indicating that the various terms which it connects are to be taken separately. (People v. Vraniak (1955), 5 Ill. 2d 384, 389, 125 N.E.2d 513, 517.) We think that the ordinary and popularly understood meaning of the words “call on” indicates a personal, face-to-face visit by a salesman on a consumer. It follows, then, that the words “direct contact” indicate something other than a personal face-to-face contact. To find otherwise would be to ignore the word “or.” It is well settled that statutes should be construed so that no word or phrase is rendered meaningless or superfluous. (People v. Chevalier (1987), 159 Ill. App. 3d 341, 347, 512 N.E.2d 1001, 1005.) The question we are presented with is whether the mailings in question constitute “direct contacts” within the meaning of section 2B.

The record indicates that the mailings here involved were sent to selected members of the general public, i.e., individuals who satisfied certain criteria established by plaintiffs. The mailings were personally addressed to the consumer and received at the consumer’s residence in a sealed envelope. They promised valuable prizes and gifts if the consumer would visit the plaintiffs’ camping resort and take a guided tour (sales presentation).

The trial court found that these mailings constituted solicitations and not mere advertising. We agree. Advertising entails giving general notice in order to attract public attention. (People v. Beaulieu Realtors, Inc. (1986), 144 Ill. App. 3d 580, 585, 494 N.E.2d 504, 508.) Solicitation, on the other hand, is addressed to a particular individual and entreats that individual to do a particular thing. (Beaulieu, 144 Ill. App. 3d at 585, 494 N.E.2d at 508.) The mailings here involved clearly constitute solicitations rather than mere advertisements. The distinction is important because we do not believe that mere advertising constitutes a direct contact within the meaning of section 2B. Statutes are to be construed so as to avoid an absurd result. (Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 341, 504 N.E.2d 84, 86.) To construe section 2B to apply to any sale resulting from mere advertising at a consumer’s residence would be absurd.

We are still left with the question whether the solicitations mailed to the defendants’ residences constitute direct contacts within the meaning of section 2B. In answering this question, we look to the objective sought to be accomplished and the evils desired to be remedied by the statute. (City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 341, 473 N.E.2d 1313, 1315.) The purpose of the Consumer Fraud and Deceptive Business Practices Act, as stated in its preamble, is to protect consumers, borrowers and businessmen against fraud and unfair or deceptive acts or practices in the conduct of any trade or commerce. (American Buyers Club of Mt. Vernon, Illinois, Inc. v. Honecker (1977), 46 Ill. App. 3d 252, 255, 361 N.E.2d 1370, 1372.) The Act is to be liberally construed to effect this purpose. (Ill. Rev. Stat. 1987, ch. 121½, par. 271a.) Thus, the Act is to be utilized to the utmost degree in eradicating all forms of deceptive and unfair business practices. Honecker, 46 Ill. App. 3d at 257, 361 N.E.2d at 1374.

The mailings here in question were private solicitations specifically targeted to defendants in order to lure them into a circumstance where plaintiffs could further persuade them to purchase a membership in the resort. The promise of a valuable prize and gift lures consumers, who otherwise might not be interested in purchasing a membership, to the camping resort, where they must listen to a sales presentation prior to receiving their prize and gift. The consumer in such a situation is as much a captive audience as he would be in his home with a door-to-door salesman. If not for the promise of a valuable prize and gift, many consumers would not travel to the resort. We think this situation falls within the intended purview of section 2B of the Consumer Fraud and Deceptive Business Practices Act.

For support of our construction of the statute, we look to the 1984 amendments to section 2B. The amended statute omits the word “direct” and refers to a “person’s contact with or call on the consumer.” The statute exempts from its purview those sales “conducted and consummated entirely by mail or telephone without any other contact between the consumer and the person or its representative prior to delivery of the goods or performance of the services.” (Ill. Rev. Stat. 1987, ch. 121½, par, 262B.) A subsequent amendment is an appropriate source of discerning legislative intent and, while an amendment of an unambiguous statute indicates a purpose to change the law, no such purpose is indicated by amendment of an ambiguous statute. (O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 271, 408 N.E.2d 204, 209.) We think the purpose of the 1984 amendments to section 2B was to clarify the ambiguity in, and refine, the original act. We further think the amendments reflect a legislative intent to include within the purview of section 2B those sales which result from a mailed solicitation. If a mailed solicitation did not constitute a contact for purposes of this statute, it would not have been necessary for the legislature to exempt from the purview of section 2B those sales which are conducted and consummated entirely by mail. Again, statutes should be construed so that no sentence, clause or word is rendered superfluous. Jones v. Municipal Officers Electoral Board (1983), 112 Ill. App. 3d 926, 930, 446 N.E.2d 256, 259.

Appellant asks us to review the legislative debates with respect to section 2B. The only available legislative debates concerning section 2B pertain to the 1971 and 1984 amendments thereto. In those legislative debates, section 2B is repeatedly referred to by various legislators as addressing itself to door-to-door sales, i.e., sales made by salesmen who knock on consumers’ doors and make face-to-face contact with the consumers in their homes. Because these legislative debates pertain to the enactment of amendments to section 2B as opposed to its original enactment, these debates cannot be accorded the weight of contemporaneous legislative history. (Old Ben Coal Co. v. Illinois Human Rights Comm’n (1986), 150 Ill. App. 3d 304, 307, 501 N.E.2d 920, 922.) Furthermore, statements of individual legislators made, as here, years after the legislation was passed, reflect only the viewpoints of those individuals and not necessarily the intent of the legislature as a whole when the bill was debated and passed. (Morel v. Coronet Insurance Co. (1987), 117 Ill. 2d 18, 24-25, 509 N.E.2d 996, 999.) Thus, the remarks of the individual legislators have little weight in our construction of section 2B.

We find that the private solicitations mailed to defendants did constitute direct contacts by a salesman at the consumers’ homes and that the sales of the resort memberships were a result of those contacts. Defendants had a statutory right to rescind those sales within three days of receipt of a notice of cancellation. The trial court properly granted summary judgment in favor of defendants and against plaintiffs on the complaints.

We turn now to defendants Ochs’ cross-appeal. On April 30, 1984, defendants Eugene C. Ochs and Maria S. Ochs filed an amended counterclaim against plaintiffs, William W. Warren and Halleck B. Warren, Jr., doing business as Hickory Shores Resort. Count I of the amended counterclaim alleges that the contract for sale of a resort membership entered into between plaintiffs and defendants on October 3, 1981, violates section 1638 of the Federal Truth in Lending Act (15 U.S.C.S. §1638 (Law. Co-op. 1982)), in that it fails to clearly disclose the number, amount and due dates or period of payments scheduled to repay the total amount due. Count I prays that defendants be granted an offset against any amount awarded plaintiffs on their complaint in an amount of $1,000, which is less than twice the total of all finance charges, together with reasonable attorney fees and costs. 15 U.S.C.S. §1640 (Law. Co-op. 1982).

Specifically, defendants argue that the contract for sale does not meet the disclosure requirements of the Federal Truth in Lending Act because it contains contradictory disclosures as to the due dates or periods of payment. The contract for sale is a printed form which includes the sentence:

“The finance charge is imposed as of the date of this Contract and the first due date of the payment shown in box 7 is -, 19_, with additional payments due the same day of each month thereafter ***.” (Emphasis added.)

The blank is filled in with the typewritten date, October 3, 1982. Just above this printed sentence are the typewritten words “YEARLY PAYMENTS.” The discrepancy arises because the printed portion calls for monthly payments, while the typewritten portion of the contract indicates that payments are to be made on a yearly basis.

Defendants also argue that the disclosure as to number and amount of payments is not clear. The contract contains a box number 7 which has printed in it the words “Amount of Payment” and a blank line preceded by a dollar sign ($). Typewritten in the box is the following: “8-800.00” and “1-547.17.”

On October 20, 1986, plaintiffs filed a motion for summary judgment on count I of the counterclaim and a supporting memorandum, arguing that the contract is in full compliance with the Federal Act. On December 22, 1986, the circuit court of Clinton County granted plaintiffs’ motion for summary judgment on count I of defendants’ counterclaim. The court found that the typewritten provision for yearly payments prevails over the printed provision for monthly payments and that defendants so understood. The court found that as a matter of law the contract did not violate the Federal Truth in Lending Act.

On January 5, 1987, defendants filed a motion to vacate the summary judgment order. This motion was denied by order of court filed February 3, 1987.

In deciding plaintiffs’ motion for summary judgment, the trial court was not presented with any disputed questions of fact. Rather, the trial court was presented with a question of law as to whether the contract in question complied with the Federal Truth in Lending Act. In such a case, summary judgment is properly granted where the movant is clearly entitled to judgment as a matter of law. (Kardolrac Industries Corp. v. Wang Laboratories, Inc. (1985), 135 Ill. App. 3d 919, 925, 482 N.E.2d 386, 391.) We may review the trial court’s disposition of this question of law independently of the trial court’s judgment. Kardolrac, 135 Ill. App. 3d at 925, 482 N.E.2d at 391.

The purpose of the Truth in Lending Act is “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” (15 U.S.C.S. §1601 (Law. Co-op. 1982).) Strict compliance with the technical provisions of the Act is required. Associates Finance, Inc. v. Cedillo (1980), 89 Ill. App. 3d 179, 183, 411 N.E.2d 1194, 1198.

Section 1638 of the Act requires that in each consumer credit sale not under an open end credit plan, as here, the creditor must disclose certain items, including the number, amount and due dates or periods of payments scheduled to repay the indebtedness. (15 U.S.C.S. § 1638(a)(8) (Law. Co-op. 1982).) Section 1631(a) requires that such disclosures be clearly and conspicuously made. 15 U.S.C.S. § 1631(a) (Law. Co-op. 1982).

Defendants argue that the periods of payments were not clearly and conspicuously disclosed because of the discrepancy between the printed portion of the contract and the typewritten portion of the contract, and that the number and amounts of payments were not clearly and conspicuously disclosed in box number 7. The trial court disagreed, as do we. The purpose of the disclosure is to disclose as precisely and accurately as possible the terms of the credit transaction. (Warren v. Darnell (1987), 164 Ill. App. 3d 273, 283, 517 N.E.2d 636, 642.) However, this court has held that a disclosure violates the Truth in Lending Act only to the extent that it unreasonably obscures, confuses or overstates the requisite information. Warren, 164 Ill. App. 3d at 283, 517 N.E.2d at 642.

We find that the number and amounts of payments are clearly and conspicuously disclosed in box number 7. We find no obscurity or confusion in this information. Admittedly, the provisions regarding the periods of payments are contradictory. However, we do not think that the discrepancy in the information, in this particular case, renders the information unreasonably confusing or obscure. The basis for liability under the Act is the failure to disclose information required to be disclosed. (Warren, 164 Ill. App. 3d at 279, 517 N.E.2d at 640.) There is no question but that plaintiffs disclosed all of the information required to be disclosed. There is, in this case, a contradiction in disclosures. However, we think it is clear from the contract that defendants were to make yearly payments on the third of October. We find no violation of the Federal Truth in Lending Act. We therefore affirm the summary judgment in favor of plaintiffs.

In their brief, defendants-cross-appellants ask that, in the event we reverse the summary judgment in favor of defendants on count II of defendants’ counterclaim, we also reverse the trial court’s granting of summary judgment in plaintiffs’ favor on count III of defendants’ counterclaim. Count II of defendants’ counterclaim alleges that the sale of the resort membership was in violation of section 2B of the Consumer Fraud and Deceptive Business Practices Act, that defendants had attempted to rescind the sale pursuant to that section, but that plaintiffs had refused to return to defendants the sums defendants had already paid under the contract for sale. Count II seeks the return of these sums as well as actual and punitive damages in excess of $5,000.

Count III of defendants’ counterclaim alleges that plaintiffs misrepresented to defendants that they had no right to rescind the contract for sale when, in fact, defendants had a right of rescission under the Consumer Fraud and Deceptive Business Practices Act. Count III further alleges that defendants relied on this misrepresentation to their damage in an amount in excess of $5,000. Count III seeks both actual and exemplary damages.

On October 20, 1986, plaintiffs filed a motion for summary judgment on counts II and III of the counterclaim for the reason that the Consumer Fraud and Deceptive Business Practices Act did not apply to the transaction in issue. Plaintiffs argued that defendants had no right of rescission under the Consumer Fraud and Deceptive Business Practices Act.

On December 22, 1986, the trial court found that the Consumer Fraud and Deceptive Business Practices Act did apply to the transaction in question. However, the court found that nothing in the evidence before it supported defendants’ prayers on counts II and III for damages in excess of $5,000, and for punitive damages. The court granted summary judgment in favor of plaintiffs on counts II and III of the counterclaim.

On January 5, 1987, defendants filed a motion to vacate the summary judgment order. On February 3, 1987, the trial court denied this motion as to count III of the counterclaim, but granted it as to count II, finding that defendants were entitled to a return of the monies they had paid pursuant to the contract for sale. The court found that defendants had made a down-payment of $995 and had made one annual payment under the contract in the amount of $800. The court entered judgment in favor of defendants and against plaintiffs in the amount of $1,795.

In their brief, plaintiffs did not ask us to reverse the summary judgment entered against them on count II of defendants’ counterclaim, nor do we see any reason to do so. Summary judgment on count II is appropriate where the contract for sale is rescinded. Defendants are entitled to a return of the monies paid thereunder. As defendants have asked us to review the propriety of the summary judgment on count III of their counterclaim only if we reverse the summary judgment on count II of their counterclaim, we need not do so.

In summary, we affirm the trial court’s grant of summary judgments in favor of defendants on plaintiffs’ complaints. We also affirm the summary judgment in favor of plaintiffs-cross-appellees on count I of defendants-cross-appellants’ counterclaim. Finally, we affirm the summary judgment in favor of defendants-cross-appellants on count II of their counterclaim.

For the foregoing reasons, the judgments of the circuit court of Clinton County are affirmed.

Affirmed.

HARRISON and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    GLEN A. MATTILA, Plaintiff-Appellant, v. THE CITY OF BELLEVILLE et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0134
    Opinion filed June 5, 1989.
    Joseph L. Bauer, Jr., and Kirby Palmer, both of Carr, Korein, Schlichter, Kunin & Montroy, of East St. Louis, for appellant.
    Russell K. Scott, of Dunham, Boman & Leskera, of East St. Louis, for appellee City of Belleville.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Glen Mattila, appeals the dismissal by the circuit court of St. Clair County of count I of his complaint. We reverse and remand.

Plaintiff brought suit against the City of Belleville (City) and its police chief, Barry Biehl (Biehl), for personal injuries he sustained from being shot by Biehl. Plaintiff’s second amended complaint alleged Biehl fired a shotgun through a door while executing a search warrant, thereby injuring him. Count I of his complaint was brought against the City on the theory of respondeat superior. Counts II and III were against Biehl on the theories of assault and willful and wanton conduct. The City moved to dismiss count I of plaintiff’s complaint on the ground it did not allege any wrongful conduct on the part of the City. The trial court allowed the City’s motion and, accordingly, dismissed with prejudice count I of plaintiff’s complaint.

Plaintiff argues on appeal that a municipality is liable in respondeat superior for an employee’s willful and wanton execution or enforcement of law and that the language of count I of his complaint clearly alleged such liability for the acts of Biehl. Specifically, plaintiff alleged in count I that Biehl committed a tort while acting within the scope and course of his employment (while executing a search warrant pursuant to the authority conferred upon him by the City) that was either intentional or with reckless disregard for the plaintiff’s safety. Count I further alleged the City was acting by and through Biehl. Plaintiff therefore believes count I of his complaint states a cause of action against the City. We agree.

Under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1981, ch. 85, par. 1 — 101 et seq.), a municipal corporation is immune from liability for the tortious acts of its employees committed in the execution or enforcement of any law unless the acts constitute willful and wanton misconduct. (Ill. Rev. Stat. 1981, ch. 85, pars. 2 — 109, 2 — 202; La-Monte v. City of Belleville (1976), 41 Ill. App. 3d 697, 705, 355 N.E.2d 70, 78. See also Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 31, 282 N.E.2d 144, 146; McCottrell v. City of Chicago (1985), 135 Ill. App. 3d 517, 518-19, 481 N.E.2d 1058, 1059; Firestone v. Fritz (1983), 119 Ill. App. 3d 685, 689, 456 N.E.2d 904, 908.) Willful and wanton conduct is that conduct which is intentional or committed under circumstances exhibiting a reckless disregard for the safety of others. (Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, 1074-75, 436 N.E.2d 623, 630.) Merely because plaintiff chose to use language which defines willful and wanton in his complaint instead of the terms themselves does not render plaintiff’s complaint incomplete or improper. We therefore fail to see how plaintiff failed to state a cause of action against the City under the Tort Immunity Act. (See Glover, 106 Ill. App. 3d at 1074, 436 N.E.2d at 630; LaMonte, 41 Ill. App. 3d at 705, 355 N.E.2d at 78.) While the City argues a public entity, under the holding of Monell v. Department of Social Services (1978), 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018, cannot be held in respondeat superior for a civil rights claim, the City fails to recognize plaintiff did not file a civil rights claim under 42 U.S.C. §1983. Plaintiff simply has not alleged a deprivation of civil or constitutional rights in this instance. Moreover, a municipality is not immunized from liability for the willful and wanton acts of its police officers merely because section 1 — 4—6 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 1 — 4—6) provides that a municipality need not indemnify a police officer for monetary judgments resulting from the officer’s willful misconduct. (See Arnolt, 52 Ill. 2d at 32, 282 N.E.2d at 147.) We therefore conclude the trial court improperly dismissed count I of plaintiff’s complaint.

For the aforementioned reasons, we reverse the order of the circuit court of St. Clair County dismissing count I of plaintiff’s second amended complaint and remand for further proceedings.

Reversed and remanded.

HARRISON and CHAPMAN, JJ., concur.


author: JUSTICE HARRISON

text:
    NANCY FEAR, Plaintiff-Appellee and Cross-Appellant, v. JAMIE SMITH, a Minor, Defendant-Appellant and Cross-Appellee (Karen Wallace et al., Defendants).
    Fifth District
    No. 5—88—0133
    Opinion filed June 5, 1989.
    — Rehearing denied July 12, 1989.

      Richard Briles Moriarty, of Shorewood, Wisconsin, for appellant.
    Brent D. Holmes, of Harlan Heller, Ltd., of Mattoon, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a bench trial in the circuit court of Jasper County, plaintiff, Nancy Fear, was awarded $5,000 for pain and suffering and $71.95 for medical expenses in her personal injury action against defendant Jamie Smith. In addition, the court ordered each party to pay one-half, or $1,296.40, of the costs and fees of the guardian ad litem who had been appointed to represent Smith, a minor. The court provided, however, that the share of the fees and costs owed by plaintiff would be assessed as costs which she was entitled to recover from Smith. Smith now appeals, arguing: (1) that the circuit court erred in denying his motion for a directed judgment; (2) that the circuit court’s judgment is contrary to the manifest weight of the evidence; (3) that the circuit court erred in denying his post-trial motion based on newly discovered evidence; and (4) that the circuit court should have required plaintiff to pay all of the guardian ad litem’s fees and should have made the fee award higher. Plaintiff cross-appeals, contending that it is Smith who should be responsible for the full amount of the guardian ad litem’s fees and costs. She also claims that the circuit court erred in refusing to award her damages for lost wages. For the reasons which follow, the judgment shall, with certain modifications, be affirmed.

The events which gave rise to this litigation took place on the morning of July 21, 1983. Smith, who was nine years old at the time, was in the yard of his home burning trash with a blow torch. Burning the trash had apparently become one of his regular jobs around the house. Although Smith was apparently supposed to use matches to start the fire and did not have permission to use the blow torch, he had learned how to use the torch by observing his stepfather and knew how it operated.

Plaintiff was a mail carrier with the United States Post Office, and her route included Smith’s house. Shortly before plaintiff reached the house on the morning of the 21st, Smith took the blow torch and heated the mailbox. The testimony, when viewed in the light most favorable to plaintiff, the prevailing party, indicates that Smith decided to heat the mailbox after he saw plaintiff approach. There was some indication that he did so to retaliate against plaintiff, who had once chastised him for obstructing her mail truck with a lawnmower. Plaintiff did not see what Smith had done, and by the time she reached the house he had run inside. Smith claims that he was not trying to run away, but that he went to ask the babysitter to warn plaintiff not to touch the mailbox and to get some ice with which to cool the mailbox down. In fact, the babysitter was not summoned or chose not to respond. No ice was used to cool the mailbox. The box was still hot when plaintiff reached the house. Because of the way the box was constructed, she had to reach inside to open the lid. When she realized how hot the box was, she tried to pull her hand out, but it got stuck and took about 30 seconds for her to free it. As a result, plaintiff’s hand was seriously burned.

Plaintiff sought medical treatment for her burns at the Weber Medical Clinic. There, a salve was applied and plaintiff’s fingers were bandaged. She returned to the clinic for treatment once a week for three weeks. Plaintiff testified that she suffered constant pain for the first few days following the injury. The pain gradually dissipated, but at least two months passed before her hand was completely healed.

Plaintiff’s medical expenses for the treatment she received at the clinic were $71.95. In addition, she missed slightly over three weeks of work. Her wages for that period would have been approximately $1,263. She did receive a payment in that amount, but that payment did not constitute part of her regular wages. It was made under “CAP,” a fringe benefit she had through her employer which provided for the continuation of pay when one could not continue to work because of a job-related injury.

In the spring of 1985, plaintiff filed suit in the circuit court of Jasper County to recover damages for the injuries she sustained in this incident. Named as defendants were Karen Wallace, Smith’s mother; Charles Wallace, Smith’s stepfather; and Smith himself. In 1986, plaintiff obtained a default judgment against them. Thereafter, a guardian ad litem (GAL) was appointed for Smith. The GAL then moved to set aside the default judgment as to Smith. That motion was granted and the case proceeded to trial on the merits against Smith alone. At the conclusion of the trial, the circuit court entered judgment in favor of plaintiff. It awarded her a total of $5,071.95. Of this, $5,000 was for “past and future pain and suffering” and $71.95 was for the cost of plaintiff’s medical treatment. Smith then filed a post-trial motion, and the GAL petitioned for an award of his reasonable fees, costs and expenses.

Following a hearing, the circuit court denied Smith’s post-trial motion, but awarded the GAL fees and costs in the amount of $2,592.80. In its order, the court specified that one-half of this amount, or $1,296.40, was to be paid by Smith and that the other half was to be paid by plaintiff. The court indicated, however, that “to the extent paid by Nancy Fear, her payment shall be recoverable as part of the court costs against Jamie Smith.” Smith now appeals. Plaintiff cross-appeals.

At the conclusion of plaintiff’s case, Smith requested that a directed judgment be entered in his favor pursuant to section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1110). That motion was denied, and Smith first argues on this appeal that the denial constituted reversible error. This argument is not well taken. After Smith’s motion was denied, he proceeded to adduce evidence in support of his defense. Section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1110) expressly provides, however, that if a defendant proceeds to adduce evidence in support of his defense after having his motion for a directed judgment denied, “the motion is waived.” This statute is clear, unambiguous, and contains no exceptions. Smith will therefore not now be heard to complain that the circuit court’s ruling on the motion was erroneous.

Smith next argues that the circuit court’s judgment is contrary to the manifest weight of the evidence because plaintiff failed to establish his liability. Because this argument is raised for the first time in Smith’s reply brief, plaintiff argues that it has also been waived. Smith has responded by arguing that because he is a minor, this court has a special obligation to protect his rights and that the rules on waiver should be relaxed. In our view, we need not reach the question of waiver, for this argument must fail on the merits.

Plaintiff’s recovery against Smith was based on willful and wanton misconduct. In contrast to an ordinary negligence claim, an action for willful and wanton misconduct requires a showing that injury was caused intentionally or under circumstances exhibiting a reckless disregard for the safety of others. (Hough v. Mooningham (1986), 139 Ill. App. 3d 1018, 1021, 487 N.E.2d 1281, 1284.) Smith was only nine years old at the time of the incident, but infants are generally liable for their intentional, malicious or willful acts or torts. (43 C.J.S. Infants §190, at 505 (1978).) McWethy v. Lee (1971), 1 Ill. App. 3d 80, 272 N.E.2d 663 notwithstanding, we find no merit to Smith’s claim that there was a rebuttable presumption that he. was incapable of willful and wanton misconduct. The presumption he seeks to invoke, applicable to children between 7 and 14 years of age, originated in cases involving contributory negligence. We do not think that it controls in cases where liability is premised on an intentional tort. Seaburg v. Williams (1958), 16 Ill. App. 2d 295, 299, 148 N.E.2d 49; Jorgensen v. Nudelman (1963), 45 Ill. App. 2d 350, 352-53, 195 N.E.2d 422.

The record here contains ample evidence from which one could conclude not only that Smith intentionally heated the mailbox, but that he also realized that, in so doing, he would subject plaintiff to injury. Smith was certainly familiar with heat and fire. After all, one of his jobs was to burn the trash. He understood that the blow torch could generate extreme heat, and in fact had used it on the day in question to burn debris. He specifically admitted that he understood that by using the blow torch on the mailbox the metal would get hot. Smith testified that he knew that plaintiff would be “coming around to deliver the mail in just a few moments,” and conceded that he knew “it was very likely the mailbox was still going to be extremely hot and she might be burned.” He actually asserted that he went into the house to get the babysitter to tell plaintiff not to touch the handle and to obtain some ice to cool the mailbox. The babysitter was either never really summoned or else chose not to respond, and the ice was never applied to the mailbox. In any case, it is clear that Smith knew exactly what he was doing and what consequences it would have. There is even evidence from which the trial court could have concluded why Smith did it, namely, to retaliate against plaintiff for her having previously told him to move his riding lawnmower out of the way as she was making her rounds in her mail truck. Under these circumstances, the circuit court’s determination that Smith had committed willful and wanton misconduct is not contrary to the manifest weight of the evidence.

Smith next argues the judgment should be reversed because the circuit court erred when it denied his post-trial motion. In the course of this litigation, plaintiff denied under oath that she had ever had any problems at all with her right hand prior to the injury for which she was suing Smith. In addition, Smith had propounded an interrogatory to plaintiff asking her to give the “names and addresses of all doctors and hospitals furnishing professional services to you within five years immediately preceding the date of the occurrence and furnish details as to the dates and duration of such services and the reasons for such services.” To this, plaintiff responded by giving the name Dr. Don Hatten and indicating that she had seen him for “yearly check-up.” After the trial, however, Smith learned for the first time that plaintiff had previously received medical treatment for her right hand from Dr. Lester Mason in Terre Haute, Indiana. In his post-trial motion, Smith asked that the judgment be vacated, that judgment be entered in his favor or, in the alternative, that a new trial be ordered on the grounds that this newly discovered evidence established that plaintiff’s testimony had been false and that she had failed to properly comply with discovery rules. That motion was denied by the circuit court. The basis for the circuit court’s decision was that the new evidence would not “have altered the outcome in any fashion with regard to this case.” Smith now argues that the circuit court’s decision constitutes reversible error. We disagree.

Motions after judgment in nonjury cases are addressed to the trial court’s sound discretion. (In re Marriage of Hopkins (1982), 106 Ill. App. 3d 135, 137, 435 N.E.2d 897, 899; In re Marriage of Rosen (1984), 126 Ill. App. 3d 766, 775, 467 N.E.2d 962, 968.) Likewise, the imposition of sanctions for noncompliance with discovery rules rests largely within the discretion of the trial court, and the exercise of such discretion will not be disturbed unless it is an obvious abuse of discretion. (Lubbers v. Norfolk & Western Ry. Co. (1986), 147 Ill. App. 3d 501, 518, 498 N.E.2d 357, 369.) In this case, the medical records of the previous treatment were submitted to the circuit court for its review. Those records showed that plaintiff obtained numerous treatments for her hands, and, apparently, other parts of her body, between 1976 and 1979. Those treatments ended approximately four years before the occurrence giving rise to this litigation, however, and Smith failed to establish how, if at all, plaintiff’s prior medical problems may have related to the injury she sustained here or affected the outcome of the case. At the conclusion of the hearing on the post-trial motion, the circuit court specifically held, as we have indicated, that “the court does not find this item would have altered the outcome in any fashion with regard to this case.” We have found nothing in the record which would support a contrary conclusion. Under these circumstances, we cannot say that denial of Smith’s post-trial motion constituted an abuse of discretion.

Smith further argues that plaintiff should have been required to pay all of the GAL’s fees and costs and that the circuit court therefore erred in requiring him to pay half. Plaintiff likewise takes issue with the circuit court’s apportionment of the GAL’s fees and costs. She argues, however, that they should be borne entirely by Smith and that she should be required to pay nothing. We believe that plaintiff’s position is the correct one. Guardian ad litem fees may be allowed as costs. (See Chamness v. Dawson (1964), 51 Ill. App. 2d 221, 224, 201 N.E.2d 257, 258.) Where, as here, a plaintiff has prevailed against a minor defendant, no part of the GAL’s fees may be taxed against the plaintiff. If allowed, they should be assessed against the minor defendant. (51 Ill. App. 2d at 224, 201 N.E.2d at 259.) To the extent that the circuit court purported to hold plaintiff liable for a portion of the GAL’s fees, its judgment must be modified to eliminate that obligation.

The next argument made is that the amount of fees awarded to the GAL was insufficient. The GAL sought compensation at the rate of $70 per hour, but the circuit court’s order provided for payment at the rate of only $40 per hour. In our view, this did not constitute reversible error. The $70-per-hour rate sought by the GAL was based on the services he performed in his capacity as attorney for Smith. Attorney fees, however, are not within the court’s power to tax as costs. The fees allowed to the GAL could only be allowed as reasonable guardian ad litem fees, not as attorney fees. (51 Ill. App. 2d at 224, 201 N.E.2d at 258-59.) When viewed as guardian ad litem fees, as opposed to attorney fees, the amount awarded by the circuit court is sufficient.

The final issue for our consideration, raised by plaintiff in her cross-appeal, is that the circuit court erred in refusing to award her damages for her lost wages. At trial, plaintiff established that during the period in which she missed work because of her injuries she would have earned approximately $1,263 in wages. The circuit court refused to award damages to plaintiff for these lost wages because, as we have previously indicated, plaintiff did end up receiving payments equal to this sum through her employer. The record shows, however, that the payments received by plaintiff were not wages, but were a fringe benefit offered by plaintiff’s employer to provide compensation to workers who were incapacitated due to work-related injuries. Under the collateral source rule, evidence that plaintiff received payments while disabled, due to an accident, in the form of workmen’s compensation or disability insurance payments or gratuitous payments from the employer are not admissible in a civil suit by plaintiff for damages (Wolfe v. Whipple (1969), 112 Ill. App. 2d 255, 266, 251 N.E.2d 77, 82), and the receipt of such payments should not preclude plaintiff from recovery of lost wages (112 Ill. App. 2d at 266, 251 N.E.2d at 82; Mineiko v. Rizzuto (1965), 65 Ill. App. 2d 35, 38, 212 N.E. 2d 712, 714). The decision by the circuit court here to deny plaintiff damages for her lost wages was therefore erroneous.

Correction of this error does not require that the cause be remanded. No jury was involved, and the proper amount to which plaintiff is entitled can be ascertained definitely from the record before us. (See Ginsburg v. Prudential Insurance Co. of America (1938), 294 Ill. App. 324, 341, 13 N.E .2d 792.) Pursuant to our authority under Supreme Court Rule 366(a)(5) (107 Ill. 2d R. 366(a)(5)), we shall therefore simply order that the circuit court’s judgment be modified to add an award to plaintiff of $1,263 for the wages she lost.

For the foregoing reasons, the judgment of the circuit court of Jasper County, as modified by this order, is affirmed.

Affirmed as modified.

WELCH, P.J., and RARICK, J., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAMELA DAHLIN, Defendant-Appellant.
    Fifth District
    No. 5—87—0586
    Opinion filed June 5, 1989.

      George H. Huber, of Vandalia, for appellant.
    Don Sheafor, State’s Attorney, of Vandalia (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant, Pamela Dahlin, was indicted for bringing contraband into a penal institution under section 31A — 1 of the Criminal Code of 1961 (111. Rev. Stat. 1983, ch. 38, par. 31A — 1). Following a jury trial in the circuit court of Fayette County, she was convicted. Defendant presents for our review the question whether the trial court erred in refusing to direct a verdict for the defendant. Defendant raises two other contentions on appeal: (1) that she is entitled to a new trial because one of the defense witnesses was not sworn; and (2) the jury deliberations were interrupted by an overnight recess.

A review of the record shows that the State called five witnesses. State witness Officer Swain testified that on the date of the alleged incident, while performing his duties as a correctional officer, he observed the defendant park her car in the visitor’s parking area and enter the main gate. This was at approximately 10 a.m. He was informed via radio dispatch that Pamela Dahlin was visiting Bruce Pagnoni. At approximately 12 noon Officer Swain observed the defendant come out of the prison, get into her car and drive to the south end of the parking lot. Once there, she got out of her car, put her dog on a leash and walked over to the prison yard fence. Officer Swain testified that from the defendant’s actions it appeared to him that the defendant pushed something through the fence. Swain testified that he then saw someone on the other side of the fence bend over and apparently retrieve the package.

Officer Swain’s observations were supported by the testimony of Charles Schilling, who was also called on behalf of the State. Officer Schilling was on duty as an outside security patrolman on the date in question. He testified that around noon he saw the defendant leave the prison, get into her car and drive to the south of the visitor’s parking area, where she stopped, got out and removed her dog. He observed the defendant then bend over at the waist and reach into the car. The defendant then walked the dog to the prison yard fence where she bent over and placed a small item through the chain-link fence. It was at that moment Officer Schilling saw Bruce Pagnoni, who was on the other side of the fence, bend over and retrieve a small package. He testified that Pagnoni headed back towards the prison and that when he reached the sidewalk in front of the prison, he attempted to throw the package into a trash bin, but missed. Pagnoni was apprehended by the prison patrolmen, and Officer Schilling directed Captain Gardner to pick up the package Pagnoni had thrown.

The testimony of State’s witnesses Lieutenant Ron Rosborough and Captain Garner, also correctional officers at the prison, corroborated Officer Schilling’s testimony that Bruce Pagnoni tossed an object toward the trash bin. Garner retrieved the object and handed it to Rosborough, who later took it to the crime lab in Springfield, Illinois, for processing. Forensic scientist Michael Cravens performed tests on the item at the crime lab. He testified that the package contained hand-rolled cigarettes and that his tests showed the contents of the cigarettes to be cannabis.

The defense presented Bruce Pagnoni, who testified that on the day in question his girlfriend, Pamela Dahlin, came to visit him. He stated that after their visit he was escorted to the prison yard and outside the fence he happened to see the defendant walking their dog. Pagnoni said that he and Dahlin had had the dog since it was six weeks old and he wanted to see it, so he ran over to the fence. It was his testimony that the dog was up next to the fence, and Pamela was standing in back of the dog about seven feet away, holding the dog by its leash. He stated that nothing was passed through the fence, and he did not see the defendant attempt to pass anything through the fence. Pagnoni said that at that moment he heard and saw a correctional officer’s vehicle approaching so he started to run back towards the prison yard. When he saw the officers approaching him, he reached into his pants to grab a package of cannabis and then threw it towards the trash bin to dispose of it. Pagnoni testified that cannabis is easily available in the prison, and an inmate can generally purchase a “joint” in exchange for two packs of cigarettes. He stated that this particular package of cannabis had been purchased by him a few days prior to the incident alleged herein.

Pamela Dahlin took the stand on her own behalf and testified that after her visit with Bruce Pagnoni she took her dog for a walk near the prison yard fence. The dog picked up a piece of paper that had some ants on it, so Ms. Dahlin bent over and removed the trash from the dog’s mouth. The defendant testified that she was never any closer than a foot and a half from the fence. When she saw Pagnoni come over to her, she pulled the dog back, got into her car and left almost immediately. When asked why she reacted the way she did when Pagnoni came to the fence, Dahlin testified that on an earlier occasion she had asked the prison personnel at the main gate whether it was possible for Bruce Pagnoni to see the dog, and they told her no. She said that because they told her it wasn’t possible for him to see the dog, she didn’t think it was a good idea for Brace to come over to the fence.

At the conclusion of the State’s evidence, the defense moved for a directed verdict arguing that the State’s witnesses’ testimony was based on assumptions and not on actual observations of what was alleged to have transpired between Pamela Dahlin and Brace Pagnoni. The defense argued that Officer Swain didn’t actually see an object being passed through the fence, but merely saw the defendant bend over at the fence. Counsel for the defendant challenges the observation of Officer Schilling, stating that Schilling did not actually see the defendant pass a package through the fence, but only observed Dahlin reach out her hand with a closed or clinched fist. The court denied defendant’s motion for directed verdict. At the close of all the evidence, defendant again moved for a directed verdict, arguing that the circumstantial evidence was insufficient to establish her guilt beyond a reasonable doubt.

A conviction may be sustained on circumstantial evidence, and the trier of fact is not required to disregard the inferences to be drawn from the evidence in order to find guilt beyond a reasonable doubt. (People v. Hall (1986), 114 Ill. 2d 376, 409, 499 N.E.2d 1335, 1348.) While circumstantial evidence must produce a reasonable and moral certainty that the defendant committed the crime, the jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but rather it is sufficient if all the evidence taken together satisfies the jury beyond a reasonable doubt of defendant’s guilt. (People v. Franklin (1985), 130 Ill. App. 3d 514, 521, 474 N.E.2d 776, 780; People v. Stewart (1985), 105 Ill. 2d 22, 66, 473 N.E.2d 840, 862.) It is for the trier of fact to determine the weight and sufficiency of the evidence, and that determination will not be reversed unless the evidence is so improbable as to create a reasonable doubt of the defendant’s guilt. (People v. Stewart (1985), 105 Ill. 2d 22, 66, 473 N.E.2d 840, 862; People v. Franklin (1985), 130 Ill. App. 3d 514, 521, 474 N.E.2d 776, 780.) We find no merit in the defendant’s claim that the circumstantial evidence was insufficient to prove her guilt beyond a reasonable doubt.

Defendant next argues that she should be granted a new trial since the evidence does not establish that the witness Brace Pagnoni was sworn. The defense called Brace Pagnoni as a witness at trial. At no time during the taking of the testimony did counsel object to Pagnoni’s apparent unsworn testimony. Defendant first raised the issue of whether Pagnoni had been sworn in her motion for a new trial. At the hearing on the post-trial motion, counsel for the defendant advised the court that it wasn’t until after the close of all the evidence that he was informed that Bruce Pagnoni believed he had given unsworn testimony.

Under the circumstances, even assuming that Bruce Pagnoni was not sworn, a reversal on such grounds would not be warranted. In People v. Krotz (1930), 341 Ill. 214, 172 N.E. 135, the defendant insisted that the prosecuting witness was not sworn before she testified, and therefore her testimony was of no force and effect and was not entitled to be considered by the court. The court refused to reverse on such grounds, reasoning that no objection was made at trial that the witness was not sworn and defendant was represented by counsel who examined the witness without reservation. Similarly it has been held that when an officer has not been sworn, the defendant should object to the irregularity at the time. (People v. Newsome (1919), 291 Ill. 11, 125 N.E. 735.) In Newsome, the court stated it is the duty of plaintiff in error and counsel to take notice of all the steps taken in the progress of the trial, and they have no right to stand by and permit irregular proceedings, to take place and then argue such irregularities to be error. With this in mind, we find that a reversal is not warranted in this case.

Defendant also seeks reversal on the ground that the trial court interrupted jury deliberations, permitted the jurors to retire to their homes for the night, and then resumed deliberations the following morning. Section 115 — 4(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4(1)) provides:

“When the jury retires to consider its verdict an officer of the court shall be appointed to keep them together and to prevent conversation between the jurors and others. *** Upon agreement between the State and defendant or his counsel the jury may seal and deliver its verdict to the clerk of the court, separate, and then return such verdict in open court at its next session.”

In the instant case the jury retired at 9:50 p.m. At 10:55 p.m. the jury was brought into the box, where the court ordered a recess and then instructed the jurors to return to their deliberations the following morning at 8:30 a.m. The court admonished the jurors:

“Please do not discuss this case with anyone. Don’t discuss it with your spouses or your family, your friends. You, of course, can tell them what your schedule is, but don’t talk about the substantive issues in the case.
If anyone attempts to talk to you about the case or influences you in any way, it is your obligation to tell me about that immediately or tell my bailiffs or the clerk so I can deal with that at the time.”

Defendant relies on People v. Ritzert (1974), 17 Ill. App. 3d 791, 308 N.E.2d 636, as authority for reversal of this cause. In Ritzert, defendant’s conviction of driving while intoxicated was reversed and a new trial granted as the jury was permitted to separate and retire to their homes for the night and return the next morning to resume deliberations. In Ritzert, prior to interrupting the jurors’ deliberations and sending them home for the evening, the court requested counsel to agree on a proper procedure to be taken. The State preferred to have the jurors return to deliberate in the morning. Defense counsel argued that a mistrial should be declared. Despite counsel’s disagreement, the court recessed the jurors until morning. The next morning when they returned to deliberate, the defense objected to the separation of the jurors and the court noted that no objection had been made at the time of the jury’s release. On appeal the second district reversed defendant’s conviction.

We choose not to follow the holding in Ritzert that the requirements of section 115 — 4(1) cannot be waived by agreement of the parties. Instead we adopt the holding of People v. Jackson (1982), 105 Ill. App. 3d 750, 433 N.E.2d 1385, which rejected the holding in Ritzert. The Jackson court held that waiver of section 115 — 4(1) requirements is recognized where such waiver is knowingly and intelligently made. (People v. Jackson (1982), 105 Ill. App. 3d 750, 758, 433 N.E.2d 1385, 1391.) In that case defense counsel agreed to allow the jury to retire to their homes for the evening. Defendant did not object the following morning when the jury returned and resumed deliberations. Defendant did not raise objection until his post-trial motion, and did not show evidence that the jurors were subjected to any improper influences during the period of their separation.

The facts in the case at bar very much parallel those in Jackson. In the instant case, defense counsel at no time prior to his post-trial motion questioned the court’s release of the jurors. Similarly, defendant was unable to present evidence that the jurors were subjected to any improper influences during their separation. For the conduct of the jury to constitute grounds for setting aside the verdict, it is necessary that a showing be made that the defendant was prejudiced by such separation. (People v. Allen (1952), 413 Ill. 69, 79, 107 N.E.2d 826, 831.) Where defendant, through her attorney, agreed to allow the jury to go home for the evening and made no objection to the procedure the following morning, defendant had knowingly and intelligently waived the statutory requirement of section 115 — 4(1). People v. Dungy (1984), 122 Ill. App. 3d 314, 323, 461 N.E.2d 485, 491; People v. Jackson, 105 Ill. App. 3d 750, 758, 433 N.E.2d 1385, 1391.

For the reasons herein stated, the judgment of the circuit court of Fayette County is affirmed.

Affirmed.

GOLDENHERSH and RARICK, JJ., concur.


text:
    PATSY JACK, Plaintiff-Appellant, v. FAUSTINO V. PUGEDA, DefendantAppellee.
    Fifth District
    No. 5—87—0551
    Opinion filed June 7, 1989.

      Harold B. Culley, Jr., of Raleigh, for appellant.
    William Kent Brandon, of Mitchell, Brandon & Schmidt, of Carbondale, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The questions before this court are relatively simple ones:

Did the trial court err in refusing the plaintiffs’ motion for continuance and did it err in denying the plaintiffs’ post-trial motion based upon its refusal to allow the continuance?

While the questions are simple, their resolution requires this court to balance the supreme court’s interests in the prompt disposition of cases with its equal interest in ensuring that the ends of justice are attained. In view of the circumstances presented in this appeal we reluctantly reverse and remand for a new trial. The use of the word reluctantly in the preceding sentence does not mean that this court is unsure of the rightness of its ruling. It does mean that this court is cognizant of both the intent of Supreme Court Rule 231(a) (107 111. 2d R. 231(a)) and of the difficulties inherent in implementing that rule under certain circumstances.

The intent of Supreme Court Rule 231(a) is to require the moving party to furnish the trial judge with adequate information upon which to make a reasonable decision. Courts are cautioned against granting continuances at the last minute, particularly after a case has been called for trial or after the trial is actually underway. Waltz v. Schlattman (1980), 81 Ill. App. 3d 971,401 N.E.2d 994; Montgomery v. Terminal R.R. Association (1979), 73 Ill. App. 3d 650, 392 N.E.2d 77.

What facts then justify our reversal of the trial court’s decision, reluctant though the reversal might be?

This is a medical malpractice suit brought against the defendant doctor, Faustino V. Pugeda, in which the plaintiff claimed that the sterilization procedure performed upon her was negligently done and that as a result she suffered an unwanted pregnancy. During the original sterilization procedure of January 12, 1983, the defendant made a small incision in the abdomen, inserted a laparoscope and visualized the Fallopian tubes. He then inserted an additional instrument, grasped the tube, made a loop in the tube approximately V-lz to 2 centimeters long and placed a ring around this loop and tightened it. This procedure was performed upon both the right and left Fallopian tubes. The theory behind this type of procedure is that within a few days or weeks the portions of the Fallopian tubes enclosed in the ring will become necrotic and they will fall apart, rendering the patient sterile.

The plaintiff became pregnant following this procedure and on February 17, 1984, gave birth to a son. The next day the defendant performed a second and different type of sterilization procedure. The question of whether the defendant removed all or only a small portion of the Fallopian tubes dining this second procedure was to become the subject of significant controversy at trial and indeed is the underlying basis for this appeal. Therefore the testimony concerning this procedure and the timing of that testimony will be discussed in some detail.

The first reference to the second surgery was contained in the defendant’s operative notes which described it as a bilateral salpingectomy, or removal of the entire right and left Fallopian tubes. Dr. Katubig, the pathologist who examined the sections of the tubes shortly after their removal, also described the procedure as a bilateral salpingectomy. In addition, Dr. Katubig’s original notes indicated that the portion of the right tube that was submitted to him measured one centimeter in length while the left tube specimen was seven centimeters long. His original notes also indicated that no scarring or other abnormality was observed on either specimen.

The lack of scarring and the seven-centimeter length of the left tube formed the basis of the plaintiff’s expert’s opinion of malpractice; that is, since the Fallopian tube is 7 to 10 centimeters long in its entirety, and since the seven-centimeter section of the left tube was described by Dr. Katubig as without scars or other abnormalities, the ring could not have been properly applied in the original surgery, for if it had been, there would have been scarring somewhere in the seven-centimeter section.

Returning to a chronological review of the references to the length of the removed tubes, the record reveals that the defendant’s deposition of October 17, 1985, implied that the tubes were removed in their entirety. In December of 1986, Dr. Katubig did indicate that his pathology report was in error and that only zero point seven (0.7) centimeters were submitted to him rather than the seven centimeters stated in his original report. However, following Dr. Katubig’s deposition in December of 1986 came the defendant’s expert’s discovery deposition in January of 1987 in which he stated that Dr. Pugeda had removed the entire tubes and formulated his opinion based on the removal of the entire tubes.

A summary of the pretrial information on the second surgery discloses the following:

(1.) Defendant’s operative notes of February 18, 1984 — bilateral salpingectomy, i.e., total removal of tubes.
(2.) Dr. Katubig’s pathology report approximately February 18, 1984 — removal of both tubes, one centimeter of the right, seven centimeters of the left.
(3.) Defendant’s deposition, October 17, 1985 — implies total removal of both tubes.
(4.) Dr. Katubig’s deposition of December 1986 — removal of one centimeter of right tube and zero point seven (0.7) centimeters of left tube.
(5.) Dr. Fischer’s (defendant’s expert’s) deposition of January 28, 1987 — relies upon total removal of tubes in formulating his opinion.

With this background we turn to the testimony at trial. On March 9, 1987, the first day of trial, the defendant was called under section 2 — 1102 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1102) as the plaintiff’s first witness. He testified: “I removed the tubes on both sides, left and right side.” This statement was essentially a reiteration of his earlier operative notes and of his testimony at the time of his deposition. The plaintiff’s expert then testified and relied upon the February 18, 1984, removal of an unscarred seven-centimeter section of the left Fallopian tube in formulating his opinion. That concluded the first day of trial.

On the next day the plaintiff testified on her own behalf and then rested her case. The defendant was then called in his own case and testified as follows:

“Q. How much of the tubes did you remove?
A. About a centimeter.
Q. On each side?
A. On the right side and I believe about a centimeter on the left side.”

On cross-examination the defendant acknowledged that bilateral salpingectomy meant the removal of the entire tubes, but explained the use of that term in his operative notes as a misnomer.

On the third and last day of trial the defendant’s expert, Dr. Fischer, testified and indicated that from reading Dr. Pugeda’s report you would think that he had taken out the entire tube, but that the pathology report revealed that he took out only a segment of the tube. Dr. Fischer admitted that he had known at the time of his deposition in January 1987 that Dr. Katubig had changed the seven-centimeter measurement of his report to zero point seven centimeters so that the change in the pathology report was not the basis of the change in his opinion. Rather, Dr. Fischer’s opinion changed because of the information furnished by defendant’s counsel to him the evening before: that is that Dr. Pugeda had changed his testimony as to what portion of the tubes had been removed during the course of trial.

Immediately following the testimony of Dr. Fischer, the plaintiff’s counsel requested a continuance, “hopefully until tomorrow.” The motion was denied and there was a verdict for the defendant.

Plaintiff’s post-trial motion was accompanied by affidavits and a medical report which indicated that both of the plaintiff’s Fallopian tubes were absent in their entirety when her abdomen was examined in a subsequent unrelated surgery and that the plaintiff had undergone no surgeries in that area other than the February 18, 1984, surgery which was the subject of the changed testimony. The trial court indicated that if the additional information that was presented in the post-trial motion had been available to him at the time that the motion for a continuance was made, he might have allowed it, but under the circumstances he felt that the motion for a continuance had been too vague and was therefore properly denied and he consequently denied the post-trial motion. This appeal followed.

Supreme Court Rule 231(a) (107 Ill. 2d R. 231(a)) requires an affidavit in support of a motion for continuance and that the affidavit set forth certain information:

“Absence of Material Evidence. If either party applies for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent. The affidavit shall show (1) that due diligence has been used to obtain the evidence, or the want of time to obtain it; (2) of what particular fact or facts the evidence consists; (3) if the evidence consists of the testimony of a witness, his place of residence, or if his place of residence is not known, that due diligence has been used to ascertain it; and (4) that if further time is given the evidence can be procured.”

The defendant originally contends that the denial of a motion for continuance cannot be regarded as an abuse of discretion when the affidavit requirement of Supreme Court Rule 231(a) has not been met. (Mikarovski v. Wesson (1986), 142 Ill. App. 3d 193, 491 N.E.2d 864.) The defendant cites the case of Mann v. People (1981), 98 Ill. App. 3d 448, 424 N.E.2d 883, for the proposition that a trial judge has no discretion to grant a motion for continuance absent the filing of an affidavit.

The potential harshness of such a rule and the ultimate restrictiveness of its application to trial courts suggests that the background of the rule deserves some examination. This will be done in a chronological order.

1958: An abstract of an opinion by the First District Appellate Court in Ellick v. Clayton Motor Co. (1958), 16 Ill. App. 2d 151, 147 N.E.2d 400, is published. One of the two headnotes reads: “Refusal to grant continuance because of illness of principal witness was within court’s discretion, where defendant did not comply with court rule requiring affidavit concerning availability of material witness and nature of his testimony.” 147 N.E.2d 400.

1964: In DeBolt v. Wallace (1964), 56 Ill. App. 2d 380, 206 N.E.2d 469, the plaintiff was injured when the motorcycle he was riding was struck by an automobile and the jury returned a verdict for the plaintiff for $36,000. On the final day of trial, defense counsel had orally moved for a continuance until the next day, to enable him to put on the testimony of an orthopedic surgeon. No written motion accompanied by affidavit was presented. The Third District Appellate Court held that “[ujnder the circumstances the ruling in this case cannot be regarded as an abuse of discretion.” (DeBolt, 56 Ill. App. 2d at 384, 206 N.E.2d at 472.) The only authority cited by the court was Supreme Court Rule 14 (7 Ill. 2d R. 14), which is now Supreme Court Rule 231(a).

1972: In People ex rel. Bucaro v. Johnson (1972), 8 Ill. App. 3d 618, 291 N.E.2d 9, a paternity proceeding, the defendant’s request for a continuance on the day of trial was denied. The First District Appellate Court, quoted Rule 231(a) and noted that the motion was made orally and there was no affidavit to indicate what testimony the witnesses would offer. The court stated: “The defendant did not comply with the rule, and we hold that denying the continuance was not an abuse of discretion.” Johnson, 8 Ill. App. 3d at 622, 291 N.E.2d at 12.

1973: In Parker v. Newman (1973), 10 Ill. App. 3d 1019, 295 N.E.2d 503, the Third District Appellate Court, after finding that the trial court did not abuse its discretion in denying a continuance because the plaintiff had failed to show a lack of due diligence, stated:

“Furthermore, it appears that the plaintiff’s motion for a continuance was not supported by an affidavit as required by Supreme Court Rule 231. In a number of cases it has been held that where no affidavit has been filed (Ellick v. Clayton Motor Co., 16 Ill. App. 2d 151[, 147 N.E.2d 400]; see DeBolt v. Wallace, 56 Ill. App. 2d 380, 384[, 206 N.E.2d 469]), or the affidavit does not meet the requirements of Rule 231 [citations], denial of a motion for continuance cannot be regarded as an abuse of discretion. Therefore we must hold, we believe, that denial of the plaintiff’s motion for continuance was within the discretion of the trial court in the case before us.” Parker, 10 Ill. App. 3d at 1021-22, 295 N.E.2d at 506.

This appears to be the first unequivocal statement of the rule that a denial of a motion for continuance cannot be regarded as an abuse of discretion where no affidavit has been filed. The court’s citations to Ellick and DeBolt do not, of course, offer significant support for its newly announced rule. While both Ellick and DeBolt held that it was not an abuse of discretion to deny a continuance where no affidavit had been filed, neither case suggested that the absence of an affidavit precludes a finding of an abuse of discretion.

1973: In Atlee Electric Co. v. Johnson Construction Co. (1973), 14 Ill. App. 3d 716, 303 N.E.2d 192, an action by an electrical subcontractor for foreclosure of a mechanic’s lien, the defendants argued that the trial court erred in denying their motion for continuance made on the date of trial so that the defendants could bring in an absent witness from Florida and to enable the filing of an amended answer. After disposing of the amendment question, the First District Appellate Court stated:

“As regards the absent witness, the rights of the parties are governed by Rule 231(a) of the Supreme Court. [Citation.] There was no compliance with this rule by defendants. No affidavit was submitted to the trial court in accordance with the rule. Thus, there was no abuse of discretion in denying the continuance. (People ex rel. Bucaro v. Johnson, 8 Ill. App. 3d 618, 622, 291 N.E.2d 9.) In addition, this argument by defendants is rendered nugatory by the fact that the witness in question actually appeared at the trial and testified in their behalf.” Atlee, 14 Ill. App. 3d at 722, 303 N.E.2d at 197.

While the statement for which the Mann v. People case cites Atlee is contained in the above-quoted portion of the opinion, the strength of the statement is certainly reduced by the last sentence of the quoted material.

1977: In Bullistron v. Augustana Hospital (1977), 52 Ill. App. 3d 66, 367 N.E.2d 88, a medical malpractice suit, the plaintiff made an oral motion for a continuance to permit additional time in which to obtain an expert. The First District Appellate Court noted that the plaintiff had failed to comply with the requirements of Supreme Court Rule 231 and stated: “Failure to comply with the relevant statutory provisions is, of itself, grounds for denial of a motion for continuance,” citing Parker v. Neuman (Bullistron, 52 Ill. App. 3d at 71, 367 N.E.2d at 92). The court went on to hold, however, that the denial of the continuance was proper because the plaintiff had failed to allege or establish diligence.

1977: In Kincl v. Hycel, Inc. (1977), 56 Ill. App. 3d 772, 372 N.E.2d 385, another medical malpractice case, the defendant claimed that the trial court erred in refusing to grant a continuance after the defendant was surprised by the evidence deposition testimony of a witness. The First District Appellate Court noted that defendant’s motion was made in the midst of trial, it was not supported by an affidavit showing how the defendant was surprised, and most significantly, the defendant had taken a discovery deposition of the witness. The court held that given those circumstances, the refusal of the motion for a continuance was not an abuse of discretion or a palpable injustice, citing, inter alia, Parker v. Newman.

Again, while the Kind court did not hold that an abuse of discretion can never occur where the affidavit requirement has not been met, it was cited as authority for that statement by the court in the next case.

1980: In Feder v. Hiera (1980), 85 Ill. App. 3d 1001, 407 N.E.2d 799, another first district case, a court-appointed receiver and his attorney petitioned the court for fees after completing a lien foreclosure. While the facts are somewhat confusing, it appears that after approximately 10 continuances the trial judge refused to continue the case any further. The appellate court appeared to base its decision affirming the denial of the continuance on this factor and also because no offer of proof or other information was provided to the trial court as to the evidence that the absent plaintiffs could have presented. The court also noted, however, that the motion was not supported by an affidavit and stated:

“It is established when no such supporting affidavit is filed the denial of the motion for a continuance cannot be regarded as abuse of discretion.” Feder, 85 Ill. App. 3d at 1003, 467 N.E.2d at 801.

The court cited Kind v. Hycel, Inc. and Parker v. Newman as authority for this statement. Kind provides little support for this statement, and while Parker does support it, the cases on which it relies do not themselves provide support.

1981: In Mann v. People (1981), 98 Ill. App. 3d 448, 424 N.E.2d 883, Judge Mills of the Fourth District Appellate Court held that it is an abuse of discretion for a court to grant a continuance in the absence of the affidavit required by Rule 231(a). In discussing Rule 231(a), the court stated that “a number of cases have held that if a motion for a continuance, on account of the absence of material evidence, is not accompanied by an affidavit, the trial court’s denial of the motion cannot be regarded as an abuse of its discretion,” citing Feder v. Hiera, Atlee Electric Co. v. Johnson Construction Co., and Parker v. Newman. (Mann, 98 Ill. App. 3d at 451, 424 N.E.2d at 885.) As discussed above, Atlee did not hold that a failure to file an affidavit precludes a finding of an abuse of discretion, while the holdings in Feder and Parker are not supported by the cases they cited as authority. The Mann court held, however, that a trial court has no discretion to grant a continuance unless an affidavit has been filed because of the language in Rule 231 that “the motion shall be supported” by affidavit (emphasis added) (107 Ill. 2d R. 231).

1986: In Mikarovski v. Wesson (1986), 142 Ill. App. 3d 193, 491 N.E.2d 864, the plaintiff’s father sued for the wrongful death of his daughter. On the day of trial the plaintiff’s expert witness failed to appear, either because of car trouble or because he was testifying in another case. The court recessed at 11:45 a.m. and resumed at approximately 1:30 p.m., at which time the plaintiff orally requested a continuance because the expert had not yet appeared. Plaintiff indicated that he was unable to make an offer of proof as to the substance of the proposed testimony and defense counsel objected to the continuance. The trial court denied the motion for a continuance, indicating there was no method of determining the nature of the expert’s proposed testimony, and then granted defendant’s motion for a directed verdict. On appeal the plaintiff contended that the trial court erred in denying the motion for a continuance. The Second District Appellate Court, noting that no affidavit had been filed as required by Supreme Court Rule 231(a), affirmed the denial of the continuance, stating: “A denial of a motion for continuance cannot be regarded as an abuse of discretion where the requirements of Supreme Court Rule 231(a) (87 Ill. 2d R. 231(a)) have not been met.” (Mikarovski, 142 Ill. App. 3d at 195, 491 N.E.2d at 865.) As authority, the court cited Mann v. People and Feder v. Hiera. See also Chakos v. Illinois State Toll Highway Authority (1988), 169 Ill. App. 3d 1018, 524 N.E.2d 615 (no abuse of discretion in denying continuance where affidavit was not filed, citing Feder); In re Marriage of Shalashnow (1987), 159 Ill. App. 3d 760, 512 N.E.2d 1076 (trial court abused discretion in granting continuance where no affidavit was filed, citing Mann); Wine v. Bauerfreund (1987), 155 Ill. App. 3d 19, 507 N.E.2d 155 (failure to file affidavit warrants exercise of court’s discretion in denying continuance, citing Feder); Spillers v. First National Bank (1982), 109 Ill. App. 3d 1100, 441 N.E.2d 872 (trial court erred in granting continuance without requiring affidavit, following Mann).

The Mann court, in announcing its new rule that a trial court cannot grant a continuance unless an affidavit is filed, reasoned that the use of the word “shall” in Rule 231 left the'court with no discretion. (Mann, 98 Ill. App. 3d at 452, 424 N.E.2d at 885.) While we agree that the use of the word “shall” usually indicates that a particular action is mandatory, we believe that such an inflexible rule is unwarranted and its application would, in some cases, be manifestly unfair. To use an extreme example, if a party’s only readily available expert witness should become incapacitated or die during trial, at which time the party’s attorney also becomes ill, one could not reasonably expect that party to be aware that Supreme Court Rule 231 requires an affidavit to support a motion for continuance. Moreover, we do not believe that the potentially harsh results inherent in the rule announced in Mann are in harmony with other, less exacting, rules promulgated by our supreme court governing extensions of time (107 Ill. 2d R. 183 (“This court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time”)) and continuances on the court’s own motion (107 Ill. 2d R. 231(e) (“The court may on its own motion, or with the consent of the adverse party, continue a cause for trial to a later day”)). This is particularly true in view of authorities which have approved trial courts granting continuances based upon oral motions. (See, e.g., Duran v. Chicago & North Western Ry. Co. (1975), 26 Ill. App. 3d 645, 325 N.E.2d 368; In re Estate of Adams (1952), 348 Ill. App. 115, 108 N.E.2d 32.) Furthermore, we note that the Second District Appellate Court, in Rutzen v. Pertile (1988), 172 Ill. App. 3d 968, 527 N.E.2d 603, held that the trial court abused its discretion in failing to grant a continuance even though no affidavit was filed. In view of the foregoing we decline to follow the rule of the court in Mann v. People and hold that under the circumstances of this case the trial court abused its discretion in refusing the continuance even though no affidavit was filed.

The plaintiff contends that the defendant waived his objection to the plaintiff’s failure to file an affidavit by failing to object at trial. While the failure to object to the lack of the affidavit may waive the formal requirement, the substantive requirements of the contents of the affidavit are not waived. Mikarovski v. Wesson (1986), 142 Ill. App. 3d 193, 491 N.E.2d 864; Westlake v. Moffitt (1975), 30 Ill. App. 3d 597, 334 N.E.2d 198.

The question then arises, did the oral statements of plaintiff’s counsel made to the court at the time of his motion for continuance constitute substantial compliance with the requirements of Supreme Court Rule 231? Plaintiff’s counsel’s statements to the court are set out below:

ATTORNEY GULLEY: “Your Honor, at this time I would like to make a motion for a continuance hopefully until tomorrow and I will immediately try to locate the physician that I expect to call. The basis for my continuance is this, is that on Monday of direct examination of an adverse witness I asked this Defendant if he removed the entire tube, both right and left, and he responded to that question yes. Yesterday on direct examination by Mr. Brandon he changed his testimony and said he only did a partial bilateral-salpingectomy, which is a big difference in this lawsuit. I reviewed my reports last night based upon that and came up with Dr. Jacob’s report that I have previously obtained. And that report shows that on May the 20th, 1985, that unequivocally both of these tubes are gone. I further documented that, Your Honor, at least one side because after I got this I then reviewed the pathology report of this young lady’s hysterectomy and in June of ‘86 that pathologist also informed me that the right tube was completely gone. She didn’t have any evidence on the left tube because they left in the left ovary. I have subpoenaed her but I am at a loss to the left tube. Based upon Dr. Fischer’s testimony here this morning I feel compelled to ask the Court’s indulgence to try to produce this man. My client is prepared to testify that there has been no surgical procedures that would in any way affect this report from February of 1984 until May of 1985. And, therefore, if both tubes were absent they would have been absent after this man left the abdomen on February the 18th, 1984.”

We agree with the plaintiff that the substantial compliance requirement was met. That the plaintiff exercised due diligence under the circumstances of this case cannot be argued. The defendant doctor testified one way on the first day of trial and another way on the second day of trial. The defense expert testified one way in his discovery deposition and another way on the third day of trial. Immediately after this last change the plaintiff moved for a continuance. Due diligence was established. We also note that the requirement of due diligence has often been mentioned as the most decisive factor in determining whether or not the continuance should be granted. Bethany Reformed Church v. Hager (1979), 68 Ill. App. 3d 509, 386 N.E.2d 514; Krupinski v. Denison (1956), 9 Ill. App. 2d 155,132 N.E.2d 451.

The second element of Supreme Court Rule 231, “of what particular fact or facts the evidence consists,” is important because its purpose is to advise the trial court of the materiality and significance of the evidence. This requirement was essentially met by the information contained in the plaintiff’s counsel’s statement in support of his motion. While counsel did not proffer a copy of Dr. Jacob’s report to the court at the time of the motion for continuance, he did at the time of the post-trial motion. In addition the most important element, the absence of both tubes, was presented at the time of the motion.

The third element, the address of the witness, was admittedly not furnished to the court in the plaintiff’s oral statement. However, defense counsel had a copy of Dr. Jacob’s report, was obviously aware of that, and in fact furnished the information on that point to the court.

The fourth requirement of Supreme Court Rule 231, that “if further time is given the evidence can be procured,” is the most troublesome omission in this case. The purpose of that requirement is to indicate to the court that if further time is allowed the witness or the evidence will be available. If a situation were presented in which all other requirements of Supreme Court Rule 231(a) were complied with, but the sought after witness was dying, and would in all likelihood die before even a deposition could be taken, it would not avail the movant or anyone for the court to grant a continuance.

In this case the plaintiff’s counsel requested a continuance “hopefully until tomorrow.” While this is admittedly vague, it is also apparent that plaintiff’s counsel was being honest with the court. Given the way the evidence developed during the trial and given the fact that plaintiff’s counsel made the motion immediately upon the completion of Dr. Fischer’s testimony, he could hardly have assured the court that Dr. Jacobs would be available the next day. If the trial court had granted a continuance until the next day and plaintiff’s counsel had been unable to secure the presence of Dr. Jacobs, then the court might well have ruled that the trial could not be extended indefinitely, a situation which Rule 231(a) is intended to avoid. To simply deny the motion in view of both the substantial change in testimony and its timing was, in our view, an abuse of discretion.

This abuse could and should have been corrected by the trial court when it ruled on the plaintiff’s post-trial motion. At that time any needed additional information was available. The importance of the witness to the plaintiff’s case, which should have been apparent at the time of the motion for continuance, was certainly obvious by the time of the post-trial motion and the relief sought by the plaintiff should have been granted.

The defendant also contends that the denial to the plaintiff of the opportunity to present the testimony of Dr. Jacobs does not rise to the level of the “specially grave reasons” required if the continuance is to be granted after the case has reached the trial stage (Montgomery v. Terminal R.R. Association (1979), 73 Ill. App. 3d 650, 392 N.E.2d 77).

The defendant’s argument against the gravity of the situation has two bases: (1) the testimony would have been used only for impeachment purposes and the plaintiff had already impeached the defendant with his prior inconsistent statement from his deposition; and (2) the testimony related only to the second surgery, which was not the subject of the malpractice claim, and did not go to the standard of care of the defendant.

The defendant is only partially correct in each of his contentions. With regard to the first, it is true that the plaintiff was able to impeach the defendant by the use of a prior inconsistent statement, but this would not preclude the plaintiff from presenting extrinsic evidence in rebuttal. (Gabrenas v. R.D. Werner Co. (1983), 116 Ill. App. 3d 276, 451 N.E.2d 1307; Brown v. Sexner (1980), 85 Ill. App. 3d 139, 405 N.E.2d 1082.) The presentation of an unbiased witness, Dr. Jacobs, who would testify to the complete absence of the plaintiff’s Fallopian tubes would have been devastating to the defendant’s position given the way the case had developed.

With regard to the second contention it is true that the evidence related only to the second surgery. This does not, however, preclude its consideration by the jury in reference to the question of the alleged deviation from the standard of care in the first surgery. The plaintiff’s entire case was based upon the unscarred portion of the tube. The plaintiff’s own expert had indicated that he could not testify that the defendant had deviated from the standard of care if only a small portion of the tube had been submitted to Dr. Katubig. Thus the testimony would have related to the original surgery and the standard of care issue.

In conclusion, this case must be reversed and remanded for a new trial. The significance of the change in testimony, when coupled with its timing, requires this result. The importance of the prompt disposition of cases and compliance with the dictates of Supreme Court Rule 231 cannot be allowed to overshadow the ultimate aim of all courts: the attainment of a just result.

Reversed and remanded.

GOLDENHERSH and RARICK, JJ., concur.