author: JUSTICE McMORROW PRESIDING JUSTICE JIGANTI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GILL O. BAILEY, Defendant-Appellant.
    First District (4th Division)
    No. 1—86—0866
    Opinion filed April 27, 1989.

      JIGANTI, P.J., dissenting.
    Randolph N. Stone, Public Defender, of Chicago (Kendall Hill, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Kenneth T. McCurry and Gael M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant was convicted of murder and attempted armed robbery and was sentenced to 40 years’ imprisonment on the murder conviction. On appeal, defendant argues that he should receive a new trial because: (1) the trial court should have granted him a separate trial from his codefendant, Henry Harris, on the grounds that the defendants would present antagonistic defenses and would be prejudiced by admission into evidence of their pretrial inculpatory statements; (2) the trial court accorded defendant only eight peremptory challenges even though defendant was allegedly entitled to 14 peremptory challenges; (3) the trial court improperly denied defendant’s pretrial motion to waive a sentencing jury and thereafter improperly permitted the State to death-qualify the jury; and (4) the trial court erroneously admitted into evidence an Olde English beer bottle found near the scene of the crime, and also permitted the arresting officer to testify regarding his prior “street stops” of defendant. Defendant also asserts that his attempted armed robbery conviction should be reversed because the evidence was insufficient to prove him guilty of this crime.

Because we conclude that antagonisms in the two defendants’ inculpatory statements and trial strategies deprived defendant of a fair trial, we reverse and remand.

Defendant was convicted of the murder and attempted armed robbery of Nathaniel Jakes on September 23, 1983, at approximately 9 p.m. in Chicago. Evidence produced at trial established that the victim had been shot twice, once in the head and once in the chest, and that he died as a result of his chest wound. At the time of the shooting, the victim had opened his garage door in order to park his automobile in the garage, which opened into an alley. An eyewitness to the shooting, who was in the alley at the time, identified defendant in a photographic array, a police showup, and at trial as the man whom the eyewitness saw shoot the victim twice while standing near the victim’s garage.

Chicago police officers arrested defendant a few days after the incident. In subsequent interrogation, defendant admitted that he and Henry Harris, his codefendant at trial, had planned to rob the victim. In his oral and court-reported confession, defendant placed blame for planning the crime upon Harris and stated that Harris had given him the gun prior to the incident and assured him the weapon was not loaded. Defendant stated that during the incident, the gun went off accidentally, firing one shot that hit the victim in the leg. Defendant said that he then dropped the weapon and fled. As he ran away, defendant heard the firing of a second gunshot.

The eyewitness to the shooting testified that he saw defendant fire two shots at the victim, hitting the victim both times. The eyewitness did not see a second assailant. The witness stated that defendant then fled the scene, falling in the alley as he fled. When arrested, defendant had cuts and bruises consistent with having recently fallen in the alley.

Henry Harris, the codefendant, told police in an oral inculpatory statement following his arrest that defendant had planned and initiated the robbery, that defendant shot the victim twice, and that both of them then fled the scene. Harris’ trial strategy was that defendant had wrongfully accused Harris of participation in the attempted armed robbery and that defendant had wrongfully implied that it was Harris, rather than defendant himself, who had shot and killed the victim. Defendant presented the defense of alibi at trial, claiming that he had been at a friend’s party during the entire period when the incident occurred.

Harris was acquitted of murder and attempted armed robbery. Defendant was convicted and sentenced as previously noted, and now appeals.

Defendant argues first that he should be granted a new trial because the trial judge should have severed his trial from that of Harris, his codefendant. Defendant asserts that severance was appropriate because: (1) he was prejudiced by Harris’ antagonistic defense and trial strategy; and (2) he was also prejudiced by the erroneous admission into evidence of Harris’ inculpatory statement, which defendant could not subject to cross-examination because Harris did not testify at trial. (See, e.g., People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247; People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349 (antagonistic defenses); Lee v. Illinois (1987), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056; People v. Duncan (1988), 124 Ill. 2d 400, 530 N.E.2d 423 (prejudicial inculpatory statements of a codefendant).) We agree. It is clear that the two defendants’ trial strategies were antagonistic, as were their inculpatory statements.

In his oral and written statements, defendant told authorities that the robbery had been Harris’ idea, that Harris had given the weapon to defendant to act as a lookout, and that Harris assured the defendant the gun was not loaded. Defendant stated that during Harris’ attempt to rob the victim, the gun defendant was holding went off accidentally, hitting the victim once in the leg. Defendant stated that he then dropped the weapon and ran away; while running, defendant heard a second shot fired. Thus, defendant’s statements clearly imply that it was Harris who, after defendant ran away, picked up the gun and fired the second shot that caused the victim’s death. Harris’ account was substantially different. Harris told police that it was defendant who planned the robbery idea and that it had been defendant who shot the victim twice.

In People v. Dixon (1988), 169 Ill. App. 3d 959, 523 N.E.2d 1160, as in the case at bar, the extrajudicial statement of defendant Moore, who did not testify at trial, shifted to his codefendant Dixon primary blame for the crime with which they were charged and jointly tried. The court held Moore’s statement inadmissible against Dixon under the confrontation clause, observing, “Just as in Lee [v. Illinois], it is possible that Moore implicated defendant to mitigate the appearance of his own culpability by spreading the blame and/or in retaliation for what he was told or might have believed defendant related to [authorities] regarding his (Moore’s) role in the shooting. In any case, we cannot say that Moore’s statement was sufficiently substantiated by defendant’s own statement to overcome the weighty presumption that a codefendant’s statement implicating a defendant is even less reliable than ordinary hearsay and that absent-the opportunity for cross-examination, its admission against the defendant violates the confrontation clause.” (People v. Dixon, 169 Ill. App. 3d at 975.) These observations are equally valid with respect to Harris’ statements in the case at bar and dictate the conclusion that Harris’ statement was not admissible against defendant at trial.

It is equally evident that defendant was prejudiced by the joint trial that permitted the proceeding to be infected by the antagonisms between the defendants’ trial strategies and their inculpatory statements. During opening statements, examination of witnesses, and closing argument, Harris’ attorney attempted to show that his client was not a participant in the murder by emphasizing that Harris was not identified by the eyewitness (who testified that he saw only the defendant), and that all evidence pointed to Bailey as the person who committed the crimes. The record here amply demonstrates that the “trial became more of a contest between the two defendants than between the People and each defendant; the record is replete with instances in which defense counsel attacked each other’s clients, as well as each other, and only a severance could have provided defendant a fair trial. [Citations.]” (People v. Byron, 116 Ill. 2d at 93.) Consequently, defendant is entitled to a new trial.

The State maintains that any error in the trial court’s failure to sever because of the two defendants’ mutually inculpatory statements was harmless beyond a reasonable doubt, citing People v. Smith (1988), 172 Ill. App. 3d 94, 526 N.E.2d 849, and People v. Parks (1988), 168 Ill. App. 3d 978, 523 N.E.2d 130. These cases are distinguishable, however, as neither involved the cumulative prejudice of both the erroneous admission of a codefendant’s statement implicating the defendant, and the antagonistic trial strategies of the defendant’s codefendant, as occurred in the case at bar. The jury at defendant’s trial was asked to weigh the conflicting accounts given in defendant’s post-arrest statements, Harris’ post-arrest statement, the eyewitness’ testimony, and defendant’s alibi defense. We cannot say beyond a reasonable doubt that the jury’s verdict, rejecting defendant’s alibi defense, was not influenced by the cumulative prejudice of the defendants’ conflicting inculpatory statements and their antagonistic strategies at trial. (See Harrington v. California (1969), 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726.) Accordingly, we cannot find that the failure to sever in the instant cause was harmless beyond a reasonable doubt.

In light of this disposition, we address only those arguments that pertain to matters likely to arise on retrial. Defendant maintains that the trial court erroneously admitted into evidence an Olde English beer bottle found near the scene a few days after the shooting. Defendant’s oral and written inculpatory statements indicated that he had been drinking beer with Harris in the alley before the shooting occurred; the testimony of a State witness indicated that defendant had purchased Olde English beer shortly before the victim was shot and that defendant had purchased the beer at a liquor store located a few blocks away from the shooting. (See People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218.) The State offered the beer bottle into evidence to corroborate defendant’s confession and to rebut defendant’s alibi defense. The evidence had probative value and was admissible for the stated purposes.

Defendant argues that the arresting officer should not have been permitted to testify to his prior “street stops” of the defendant and to explain in that testimony that a street stop occurs when police “stop [a person] and ask for identification of subjects who [police] believe might have criminal intentions.” We agree with defendant’s contention, since this testimony tended to show the defendant's propensity to commit crimes. See, e.g., People v. Pitts (1971), 1 Ill. App. 3d 120, 273 N.E.2d 667.

Defendant contends that his attempted armed robbery conviction should be reversed because his confession, standing alone, is insufficient to convict him of this crime and because the State produced no other evidence to corroborate his confession. Contrary to defendant’s assertion, however, the State did present evidence to corroborate defendant’s confession. Defendant stated in his oral and court-reported confession that he planned to rob the victim on the particular night in question because he knew that the victim would have collected rent monies during that day and that the victim would therefore have substantial money in his possession. Defendant also said in both statements that he planned to rob the victim while the victim was in the alley parking his automobile in the garage. The eyewitness saw defendant shoot the victim as the victim was placing his car in his garage, and the victim’s wife testified at trial that the decedent had collected rent monies from tenants earlier that day prior to the shooting. The testimony of the eyewitness and the decedent’s wife corroborated significant elements of the defendant’s confessions that he planned to rob the victim on the night and place in question. Given these consistencies in the sequence and location of the events concerning the attempted armed robbery, we find sufficient evidence corroborating defendant’s confessions to sustain the conviction for armed robbery. See, e.g., People v. Barkenlau (1982), 105 Ill. App. 3d 785, 434 N.E.2d 856; cf. People v. Lee (1986), 151 Ill. App. 3d 510, 531-32, 502 N.E.2d 399 (defendant likely to confabulate).

Defendant also contends that the trial court erroneously declined to accept his pretrial waiver of a sentencing jury and thereafter improperly permitted the State to question prospective jurors regarding their views with respect to the death penalty. Upon remand, these issues are governed by the Illinois Supreme Court’s decisions in People v. Erickson (1987), 117 Ill. 2d 271, 513 N.E.2d 367, and Daley v. Hett (1986), 113 Ill. 2d 75, 495 N.E.2d 513, in which the court held that the trial court must accept a defendant’s knowing and voluntary pretrial waiver of a sentencing jury and that the trial court may not thereafter permit the State to death-qualify the jury.

Defendant also asserts that he should be granted a new trial because the trial judge should have permitted him 14 peremptory challenges in his capital case. The State indicated prior to trial that it intended to seek the death penalty with respect to defendant, but not with respect to Harris. The trial judge allowed both defendant and Harris eight peremptory challenges each during voir dire. The relevant Illinois Supreme Court rule states that a “defendant tried alone shall be allowed 14 peremptory challenges in a capital case, *** [while] in a single trial of more than one defendant, each defendant shall be allowed 8 peremptory challenges in a capital case.” (107 Ill. 2d R. 434(d).) Because defendant will be tried alone upon remand and will therefore be entitled to 14 peremptory challenges under this rule if the State again seeks the death penalty against the defendant, we need not address the defendant’s argument that he was entitled to 14 peremptory challenges in his first, joint trial.

For the reasons stated, defendant’s convictions are reversed, and the matter remanded for a new trial consistent with the views expressed herein.

Reversed and remanded.

LINN, J., concurs.

PRESIDING JUSTICE JIGANTI,

dissenting:

I respectfully dissent from the opinion of the majority because I believe that any error which may have resulted from the failure to sever was harmless beyond a reasonable doubt,

Rafael Lopez, an eyewitness to the crime, positively identified the defendant as the offender both in a pretrial photographic array and again in court. His identification testimony was clear and unequivocal. He stated at trial that he described the offender to police at the scene as a white-skinned black man with blonde hair, approximately 5 feet 8 inches tall and 20 or 21 years old. Officer James Entress testified that the description in the police report was of an unusually light-skinned male black with light hair, 5 feet 7 inches tall and 20 to 22 years old. The defendant in fact fit the very unique physical description. The defendants’s appearance was so unique that no lineup was conducted because the police could not find anyone else who even remotely fit the description. The eyewitness also testified that the defendant fell in the alley as he fled the scene. At the time of his arrest two days later, the defendant had scrape marks on his elbows and the back of his arms and a cut on the palm of his left hand. The defense at trial was alibi. However, the defendant made a very detailed pretrial statement, properly admissible against him, which placed him at the scene of the offense and which essentially admitted all of the elements necessary to convict him of felony murder. In light of this evidence, I believe it can be said beyond a reasonable doubt that neither the pretrial statement nor the trial strategy of the codefendant in any way affected the jury’s verdict.


source: Caselaw Access Project

author: PRESIDING JUSTICE MURRAY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PRISCILLA EVANS, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—1968
    Opinion filed April 28, 1989.

      J. Kevin McCall and Evelyn G. Baniewicz, both of Chicago (Jenner & Block, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marie Quinlivan Czech, Special Assistant State’s Attorney, and Inge Fryklund and Michael Brown, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendant Priscilla Evans appeals from her murder conviction and sentence of 20 years. Defendant filed a 76-page brief with a 60-page appendix plus a reply brief of 55 pages, while the State filed a 93-page brief. It appears from the filing of these almost-tomes and a plethora of motions that the only issue conceded by the parties is that defendant shot and killed her husband, Joe Evans, on January 26, 1986. Although defendant raises 14 issues on appeal, the critical issue is whether the killing was justified as being in defense of self or others; or a voluntary manslaughter based either on provocation or an unreasonable belief of justification; or, as the jury found, a murder. Other issues raised range from alleged prosecutorial misconduct to improper evidentiary rulings.

Rather than examining the charges of error and misconduct made by defendant, we must reverse and remand this case for reasons that are now the law of this State in criminal trials relating to instructions given to the jury in a case of this nature.

Defendant’s entire defense was that she shot and killed her husband because of fear for her and her children’s safety after years of enduring Joe’s abuse. In support of this theory, defendant tendered 35 jury instructions to the court. The State objected to all non-Illinois Pattern Jury Instructions (IPI) that were submitted, and instead, the IPI instructions relating to murder, voluntary manslaughter, and self-defense were given.

There is no reason to recite in detail the facts underlying the killing since the trial court concluded that defendant had presented enough evidence to justify giving self-defense and voluntary manslaughter instructions, and the record amply supports such a determination. Defendant and other witnesses testified that Joe had physically abused both defendant and her children on many occasions prior to the shooting. It was also stated that Joe had verbally and physically abused her at a birthday party the couple had attended earlier in the evening. Evidence was presented that the victim had ingested large amounts of alcohol, marijuana, and PCP throughout the day of the shooting, and defendant and her children testified that he was in a rage that was worse than others they had previously observed. When defendant and her husband returned home from the party, witnesses saw him smash her head into a brick wall outside their home. Once inside the house, Joe used a meat cleaver to break into their bedroom. After putting the cleaver away, Joe allegedly verbally threatened both defendant and her children who were present and, as he advanced toward defendant, she shot him. Much of this testimony was unrebutted by the State.

After this case was tried, our supreme court in People v. Reddick (1988), 123 Ill. 2d 184, held that it was grave error to give IPI Criminal No. 7.02 (2d ed. 1981) (murder) in tandem with IPI Criminal 2d No. 7.04 (voluntary manslaughter — provocation) and/or IPI Criminal 2d No. 7.06 (voluntary manslaughter — belief of justification). The Reddick court concluded that when a defendant raises the defense that a killing was justified and presents sufficient evidence to raise issues which would, if believed by the jury, reduce the charge of murder to voluntary manslaughter, the relevant IPI instructions, given together fail to inform the jury that the State bears the burden of disproving the mitigating mental states necessary to reduce a murder charge to manslaughter. (Reddick, 123 Ill. 2d at 197.) Therefore, under Reddick, in order to sustain a murder conviction, the State must prove all of the elements of murder and, additionally, must prove the absence of an unreasonable belief of justification by defendant. The IPI instructions given in this case erroneously required defendant to prove self-defense and/or adequate provocation or an unreasonable belief that the killing was justified.

The State first argues that defendant’s non-IPI instructions were properly refused because there was absolutely no evidence that she acted in self-defense of herself or her children. Both the record in this case and the trial court’s conclusion that defendant had presented sufficient evidence to entitle her to voluntary manslaughter and self-defense instructions controvert this argument.

The State also claims that, if the evidence supported the instructions, Reddick should not be retroactively applied to this case because jury instructions regarding affirmative defenses and the burden of proof are procedural in nature and not of constitutional dimensions. It relies on a prospective/retroactive application test set forth in Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967, and adopted in People v. Laws (1981), 84 Ill. 2d 493. The test criteria are (1) the purpose of the new rule, especially whether it enhances the truth-seeking process; (2) the extent to which law enforcement officials relied upon a prior rule; and (3) the effect on the administration of justice. The State claims that truth seeking is not served by the Reddick rule since the mitigating facts are presented to the jury regardless of the phrasing of the instructions. It also notes that law enforcement officials have relied in good faith on the IPI instructions for 18 years, and that if the new rule is retroactively applied, it would have a devastating effect on the judicial system.

However, we disagree with the State’s “procedural only” argument. The Reddick court considered the giving of the IPI instructions to be “grave error.” (Reddick, 123 Ill. 2d at 198.) Moreover, the Illinois Supreme Court, in interpreting the retroactivity ruling of Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, held that retroactive application in criminal cases is required when “(1) the case to which the new rule is to be applied was not final or was pending on direct review when the rule was declared and (2) the rule to be applied retroactively is of constitutional dimension.” (People v. Erickson (1987), 117 Ill. 2d 271, 289.) We consider a grave error to be one of constitutional dimension. In so holding, we are following other recent first district court cases. See, e.g., People v. Brooks (1988), 175 Ill. App. 3d 136, appeal denied (1989), 124 Ill. 2d 557; People v. Fercsi (1989), 182 Ill. App. 3d 13; People v. Shields (1989), 181 Ill. App. 3d 260.

The Reddick decision did not change Illinois criminal law concerning the burden of proof in murder cases; it merely held that the IPI instructions concerning murder and voluntary manslaughter given together could erroneously mislead the jury. It is our opinion that such an error creates the possibility of denying a fair trial to a defendant. We must also note that the sole instruction given on self-defense (IPI Criminal 2d No. 24 — 25.06) made no mention that the State had the burden to prove beyond a reasonable doubt that the use of deadly force was not justified and, thus, was also reversible error. Reddick, 123 Ill. 2d at 201-02.

We must also mention defendant’s request that this court exercise its discretion pursuant to Supreme Court Rule 615(b)(3) (107 Ill. 2d R. 615(b)(3)) and reduce her conviction to the lesser included offense of voluntary manslaughter. However, this discretion should be exercised with great caution. (People v. Coleman (1979), 78 Ill. App. 3d 989.) We do not believe it would be appropriate or fair to either party to reduce a conviction where, so to speak, “the rules have been changed in the middle of the game” and, even more importantly, where the jury was erroneously instructed as to the burden of proof for self-defense exoneration.

Accordingly, we must reverse and remand this cause for a new trial.

Reversed and remanded.

PINCHAM and COCCIA, JJ., concur.


text:
    IRENE CARUSO, Special Adm’x of the Estate of Phillip Caruso, Deceased, Plaintiff-Appellee, v. PINE MANOR NURSING CENTER, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—0759
    Opinion filed April 28, 1989.
    Williams & Montgomery, Ltd., of Chicago (James K. Horstman, Barry L. Kroll, Thomas H. Neucranz, and Lloyd E. Williams, Jr., of counsel), for appellant.
    Donald A. Shapiro and Kristin M. Boyer, both of Donald A. Shapiro, Ltd., of Chicago, for appellee.
    Todd A. Smith, of Corboy & Demetrio, of Chicago, for amicus curiae Illinois Trial Lawyers Association.

      Steven M. Levin and Lynn Worley, both of Steven M. Levin & Associates, of Chicago, for amicus curiae Illinois Citizens for Better Care.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendant Pine Manor Nursing Center (Pine Manor) appeals from a jury verdict awarding $65,000 in damages to plaintiff Irene Caruso (Caruso), special administratrix of the estate of Phillip Caruso, deceased, which was increased to $195,000 by the trial court (three times her actual damages) pursuant to section 3 — 602 of the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1987, ch. 111½, par. 4153 — 602). On appeal, defendant contends: (1) judgment should have been entered in its favor as a matter of law because plaintiff failed to make a prima facie showing on the issue of causation; (2) the trial court committed reversible error in barring its expert from testifying; (3) the jury’s verdicts on counts I and II are inconsistent, requiring reversal of the judgment entered; (4) the court erred in excluding all evidence pertaining to its prepared nursing care plan; (5) the jury’s award of damages was grossly excessive; and (6) the court erred in awarding plaintiff treble damages and attorney fees. For the reasons set forth below, we reverse and remand the cause for a new trial.

Phillip Caruso (Phillip) was treated at Christ Hospital from October 22, 1981, to November 11, 1981, and again from December 2, 1981, to January 22, 1982, for Parkinson’s disease, dementia, organic brain syndrome, nephritis (kidney disease), periodontal disease, renal insufficiency, urinary tract infection, and a kidney infection. On January 22, 1982, he was released from Christ Hospital and admitted to Pine Manor, where he was seen by a nurse who took a history and prepared a nursing evaluation. On January 23, Dr. George Cromydas, a part-time employee of a medical group which provided doctors’ services to residents at Pine Manor, conducted an initial examination and assessment of Phillip. He found Phillip to be in a stable condition at that time; Phillip’s skin exhibited a normal turgor (an indication of adequate hydration) and he was responsive to commands during the examination. Dr. Cromydas ordered routine lab tests but did not put a “rush” on them. According to the Pine Manor nurses, during Phillip’s stay at the center he received three meals a day, three snacks which included juice or milk, medications four times a day with which he was given four ounces of water, and he was offered something to drink during the nighttime every two hours when the nurses would wake him to change bed clothing and to reposition him. Pine Manor did not keep a chart of Phillip’s intake or output of fluids, however.

On January 29, Phillip was taken to Christ Hospital. According to the emergency room records, he was weak, confused, suffering from tremors and his skin condition was dry with poor turgor. The emergency room doctor’s diagnosis was that Phillip was suffering from severe dehydration. On February 2, Dr. Kent Armbruster, a nephrologist, examined Phillip and diagnosed his condition as “renal insufficiency with superimposed dehydration.” Phillip was rehydrated with IV fluids. He also had to be catheterized, which caused a urinary tract infection as a result of which additional treatment was needed. He was released from Christ Hospital on February 19 and transferred to Oak Forest Hospital, where he died on May 14. No claim was made by Caruso that Phillip’s death was causally related to his dehydration period.

On June 18, 1982, Caruso filed a two-count complaint against Pine Manor. In count I, Caruso sought compensatory damages and alleged a cause of action based on common law negligence in the care and treatment of Phillip while he was a resident at Pine Manor, resulting in his becoming dehydrated. In count II, Caruso sought treble damages and alleged a cause of action under the Nursing Home Care Reform Act (Ill. Rev. Stat. 1981, ch. 111½, par. 4153 — 602) charging that Pine Manor abused and neglected Phillip by failing to give him sufficient water such that he became dehydrated, leading to a deterioration of his physical and mental condition. After trial, the jury found Pine Manor liable under count II, but not count I, the trial court tripled the jury’s damages verdict pursuant to section 3 — 602 of the Nursing Home Care Reform Act (Ill. Rev. Stat. 1987, ch. 111½, par. 4153 — 602) and awarded plaintiff attorney fees, and this appeal followed.

Under the Nursing Home Care Reform Act (the Act), “[t]he owner and licensee [of a nursing home] are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident.” (Ill. Rev. Stat. 1981, ch. 111½, par. 4153 — 601.) The Act defines “neglect” as “a failure in a facility to provide adequate medical or personal care or maintenance, which failure results in physical or mental injury to a resident or in the deterioration of a resident’s physical or mental condition.” (Ill. Rev. Stat. 1981, ch. 111½, par. 4151 — 117.) Personal care and maintenance in-elude providing food and water and assistance with meals necessary to sustain a healthy life. Ill. Rev. Stat. 1981, ch. 111½, pars. 4151— 116, 4151-120.

In the instant case, Pine Manor did not, prior to trial, move to dismiss either count I or II for failure to state a cause of action. On appeal, we reject this argument based on the manifest weight of the evidence presented. We first observe that Pine Manor concedes in its appellate brief that Caruso produced some evidence of negligence and of injury. Its argument is solely that Caruso failed to produce “testimony” to establish a causal link between the asserted negligence and the asserted injury. Contrary to its argument, however, there was evidence that Phillip’s stable physical and mental condition deteriorated after his 6V2 days’ stay in Pine Manor. When he entered Pine Manor on January 22 he could speak his name, he exhibited a significant degree of orientation, he had normal skin turgor and he was a “pleasant, smiling man.” By January 25 the Pine Manor chart described him as combative and, on January 28 and 29, his mouth appeared parched and cracked and his skin turgor was “poor.” When Phillip was taken to Christ Hospital from Pine Manor, the emergency room doctor diagnosed him as suffering from severe dehydration. Dr. Armbruster stated that Phillip was dehydrated and that “the most likely cause of the dehydration would be slightly inadequate intake of fluid.” Dr. Armbruster further testified that Phillip was apparently dependent upon Pine Manor staff for fluids because he had central nervous system problems and that dehydration played a role in Phillip’s “changing mental status” and that “it was one of the reasons that occasioned his admission back into *** [Christ] Hospital.” We further note that Pine Manor offered no alternative explanation for Phillip’s dehydrated condition and Pine Manor kept no chart of Phillip’s intake and output of fluid, which Caruso’s medical expert, Nurse Marcia Bregman, testified was a required, standard nursing home procedure that should have been followed, but was not, for a person in Phillip’s physical condition. Clearly, therefore, the evidence presented showed a proximate cause of Phillip’s dehydration as a result of his stay at Pine Manor; it was not unreasonable for the jury to conclude that Phillip did suffer dehydration and that Pine Manor’s treatment of him caused his dehydration.

Notwithstanding the foregoing, however, we must reverse and remand this cause for a new trial based on the trial court’s reversible error (see McCaffrey v. Illinois Central Gulf R.R. Co. (1979), 71 Ill. App. 3d 42, 388 N.E.2d 1062) in barring Pine Manor’s expert’s testimony as a sanction for introducing a basis for one of his opinions that Phillip was not dehydrated at the end of his stay at Pine Manor, which was different from the opinions expressed in his deposition. Pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), sanctions imposed for violations of discovery rules must be proportionate to the gravity of the violation. (Peoples Gas, Light & Coke Co. v. Chicago Black Improvement Association (1986), 148 Ill. App. 3d 1093, 502 N.E.2d 8.) The purpose of a sanction pursuant to Rule 220 is not to punish (Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 504 N.E.2d 772), but to insure fair discovery and a trial on the merits (Bell v. Board of Education (1978), 67 Ill. App. 3d 402, 385 N.E.2d 84). A trial court’s exercise of its broad discretion in imposing sanctions for discovery violations will not be disturbed absent a clear abuse. See Brzezinski v. Gajda (1972), 5 Ill. App. 3d 977, 284 N.E.2d 383.

Here, Pine Manor’s expert, Dr. David Petty, testified at great length, without objection by Caruso’s counsel, concerning Phillip’s BUN/creatinine ratios (two waste products produced by the human body). Subsequently the court recessed and found, in a conference outside the jury’s presence, that Dr. Petty’s testimony exceeded the scope of the matters developed in his deposition, and granted plaintiff’s motion to bar his testimony completely. The court, in stating to the parties that it was familiar with Dr. Petty’s deposition testimony, also refused to allow Pine Manor to make an offer of proof as to what Dr. Petty would testify to concerning Phillip’s alleged dehydrated condition and Pine Manor’s treatment of him.

The record further discloses that as another basis of the trial court’s sanction, it admonished Pine Manor’s counsel that Dr. Petty spent a considerable period of time in testifying to a matter not expressed in his deposition and that counsel for Pine Manor apparently had not sufficiently prepared for trial because he otherwise would have known that this testimony was outside the scope of Dr. Petty’s deposition. Pine Manor, in response, pointed out to the court that he believed that the testimony was within the scope of Dr. Petty’s deposition and that, in any event, plaintiff could and should have objected immediately to Dr. Petty’s testimony on BUN/creatinine ratios and, in failing to do so, Pine Manor should not be penalized. Plaintiff’s counsel stated to the court that he had failed to object to Dr. Petty’s testimony because of its complexity; while Dr. Petty was testifying, “plaintiff’s counsel was furiously trying to absorb Dr. Petty’s highly technical testimony while at the same time trying to quickly review his extensive deposition abstract to confirm if Dr. Petty had ever talked about this before.” We simply must reject this argument in light of the fact that plaintiff’s expert, Dr. Armbruster, had testified earlier concerning BUN/creatinine ratios and, according to plaintiff’s counsel, “had decimated the defense on the question of dehydration, giving a fantastic lecture to the jury on the way the kidneys worked and explaining how Mr. Caruso’s BUN/creatinine ratio, rather than isolated BUN readings or isolated creatinine readings, was the key factor in diagnosing dehydration.” Clearly, therefore, the subject of BUN/creatinine ratios was not so complex that plaintiff’s counsel needed time to absorb the nature and significance of Dr. Petty’s testimony concerning BUN/creatinine ratios. More importantly, however, Petty’s BUN/creatinine testimony was only one basis in support of his opinion that Phillip was not dehydrated. In his deposition, he also stated, in support of his opinion, that (1) Caruso had moist, clammy hands when he was returned to Christ Hospital, (2) that Phillip’s sodium levels were in the normal range, (3) Phillip was capable of producing urine when he was admitted to Christ Hospital on January 29, (4) the specific gravity of the urine sample, which reflects the concentration of waste products in the urine, did not indicate dehydration, (5) Phillip’s hemoglobin and hemacrit levels reflected that there was no hemoconcentration, which indicated that he was not dehydrated, (6) Phillip was not in shock, (7) by February 1 or 2, after a few days at Christ Hospital, Phillip actually became overly hydrated, such that a diuretic became necessary, and (8) throughout his stay at Pine Manor, Phillip was reported to have been wetting his bed, which indicated that his kidneys were not attempting to conserve water. Based on these facts, we find the trial court abused its discretion in completely barring Dr. Petty’s testimony because he merely stepped outside the scope of the basis of one of his opinions. The court’s action therefore constituted reversible error, requiring a new trial.

In light of the foregoing disposition, we find it unnecessary to address the remaining issues raised.

Reversed and remanded.

LORENZ and COCCIA, JJ., concur.

      The Illinois Citizens for Better Care and the Illinois Trial Lawyers Association were granted leave to file amicus curiae briefs relative to the issues raised under the Nursing Home Care Reform Act (Ill. Rev. Stat. 1987, ch. 111½, par. 4151 — 101 et seq.).


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KURT SZYMANOWSKI, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—1509
    Opinion filed April 28, 1989.
    Patrick A. Tuite and David S. Majia, both of Tuite, Majia & Giacchetti, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Anthony J. Carballo, and Pamela Hughes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendant, Kurt Szymanowski, was convicted of the attempted murder and aggravated battery of his girlfriend, Debra Guzy, and was sentenced to 12 years’ imprisonment.

For reasons which follow, we must now reverse.

In the early morning of April 16, 1986, police officers were summoned to defendant’s apartment at 2419 West Fullerton Avenue in Chicago, where they found Guzy, unconscious from apparent blows to the head, in a pool of blood on the kitchen floor. Guzy’s head injuries were extensive. She remained in a semi-comatose state for five to six days after the incident and received continued medical treatment for two months.

At trial, the State presented evidence to establish, circumstantially, that defendant had beaten Guzy.

Chicago police officer John Lyons testified that at approximately 12:50 a.m. on April 16, 1986, he received an assignment to investigate a disturbance at a gas station at 2401 West Fullerton Avenue. Lyons stated that, upon arriving at that address, he observed the defendant in blood-soaked clothes. Lyons asked defendant if anything was wrong, but defendant was unresponsive. When defendant “rushed” at Lyons, he was arrested. Lyons testified that the blood on defendant’s shirt was wet and that defendant appeared to be “under the influence of something.” Lyons and his partner proceeded to 2419 West Fullerton Avenue to look for a victim. When they could see nothing from outside of the apartment, they returned to the police station. Defendant was released from custody at 3:30 a.m.

At 4:15 a.m. Lyons, in response to a radio broadcast, returned to 2419 West Fullerton Avenue. There he found defendant, naked, standing in the doorway. Lyons stated he went over to assist another officer who was standing over the victim. The victim was lying on the kitchen floor near a broken kitchen table and appeared to have been brutally beaten about the head. Lyons stated the apartment doors had not been forced open.

The police found defendant’s clothes outside the apartment. Defendant’s shirt was in a tree, his pants were partially on a garage roof, and his boots and socks were in the yard. Lyons testified that the bloodstains on defendant’s shirt were as they appeared when defendant was earlier arrested.

Thomas Marquez, another police officer, testified that he and his partner were the first to arrive at defendant’s apartment at 4:15 a.m. on April 16, 1986. Marquez stated he tried to enter through the back door, but it was locked. He observed a body lying on the kitchen floor. As the officers were preparing to force their way through the rear door, defendant opened it. Defendant was naked. Defendant told Marquez, “[W]e don’t need the police in here, you can’t come into my apartment.” The officers arrested defendant.

Chicago police detective Michael Herigodt testified that there were no signs of forced entry at the apartment.

Herigodt also testified as to an interview he conducted of defendant later that morning. Defendant told Herigodt that, shortly after midnight, he and Guzy had argued and he had punched her twice. He then left the apartment, ran outside, and was arrested. At the detention center, he became frustrated and started banging his head against the cell bars. He was taken to a hospital for treatment and, later, was released by police. He returned to his apartment, where he saw the victim lying where he had left her. After seeing the victim, he ran outside and began screaming.

Defendant was again interviewed on April 17, 1988, and, at that time, signed a written statement which was read into the record. The statement indicated that both defendant and Guzy were taking the animal tranquilizer PGP and had argued over Guzy’s use of the drug. Defendant took the drug from Guzy. Guzy tried to get the drug back from defendant, scratching him in the process. Defendant struck Guzy with his fist and she fell on the table, breaking it. When defendant saw Guzy lying on the kitchen floor in a pool of blood, he went out to the street, “flipped out” and called for help.

Pamela Fish, a Chicago police department serologist, was qualified as an expert to testify to her analysis of blood samples collected from defendant’s clothing. Examination of defendant’s shirt showed that it contained heavy diffused stains indicating a concentration of blood which had soaked through, and spread out on, the material. She determined the blood was type 0; Guzy’s blood type. She determined blood present on the left leg area, near the knee, of defendant’s pants was type A; defendant’s own blood type. She also found type A blood present on the underside of defendant’s socks.

Guzy, testifying on behalf of the defendant, stated that Daniel Fla-hive, her estranged boyfriend and natural father of her two daughters, not the defendant, beat her. Guzy stated that from 1975 to 1985 she had lived with Flahive. However, in the spring of 1985 she began living with defendant at his apartment. She testified that, at approximately 11 p.m. on April 15, 1986, she and defendant had argued over defendant going out to a store. Guzy stated that as she was trying to keep defendant from going by “pulling him back,” she fell over one of her daughter’s toys and hit her nose on a door. Her nose began bleeding. Guzy stated that when defendant then hugged her, he got blood on his jacket. After defendant left, she laid down and fell asleep.

Guzy testified she awoke at the sound of someone pounding at the door. It was Flahive. Guzy testified Flahive kicked the door open. She stated Flahive was yelling that she owed him money and demanded to see one of his daughters. Guzy stated that Flahive slapped and hit her while continuing to demand money. When Guzy told him that she did not have any money, he hit her again in the face and in the back of the head. She stated that Flahive hit her four times; first with an open hand and then with a closed fist. The next thing she remembered was being in the hospital.

Guzy also testified as to several legal actions instituted against Flahive, including complaints for damage to property and for striking her and one of her daughters. The complaints were filed between January and March of 1986.

On cross-examination, Guzy stated she was presently living with the defendant and was involved in a custody dispute with Flahive over her two children. Guzy admitted that on the night of the incident, defendant was wearing the bloodied shirt admitted as evidence, but did not remember if he was wearing a jacket.

Cathy Ongley, a social worker at Schwab Rehabilitation Center where Guzy received treatment, testified that on May 9, 1986, Guzy stated in an interview that Flahive had injured her. Ongley admitted, however, that, at that time, Guzy did not know her own name, her children's names, where she was, or what day, month, or year it was. In fact, Guzy thought she was in the hospital because she was having a baby. Ongley stated that the report she prepared that day indicated Guzy had said “David,” not “Daniel,” injured her.

The parties stipulated that, if called to testify, Dr. Michael Rein-stein, a psychiatrist affiliated with Schwab Rehabilitation Center, would testify that during an interview conducted on May 28, 1986, Guzy stated that her boyfriend became violent and caused her injuries.

Daniel Flahive testified for the State as a rebuttal witness. He stated that between 3 and 10 p.m. on April 15, 1986, he was home at 3716 West Cullom Avenue in Chicago visiting with neighbors. From 10 p.m. until 8:30 a.m. of the next day he was with his wife, in bed.

Opinion

We are presented here with an unusual case in that defendant’s guilt was premised upon circumstantial evidence contrary to the victim’s own eyewitness testimony that someone other than the defendant was her assailant. Illinois courts have noted, generally, that circumstantial evidence to support a conviction must establish, to a reasonable and moral certainty, that defendant committed the offense charged, and must be inconsistent with any reasonable hypothesis of defendant’s innocence. (See People v. Weeks (1983), 115 Ill. App. 3d 524, 528, 450 N.E.2d 1351, 1354.) We acknowledge that evidence presented by the State suggests defendant could have been responsible for Guzy’s beating; however, we are unable to conclude, because of Guzy’s testimony, that the record of evidence is sufficient to establish defendant committed the offense to the requisite degree of certainty.

Guzy steadfastly maintained at trial that Flahive, not the defendant, beat her on the morning of April 16, 1986. In that regard, her testimony was not impeached or directly contradicted and, therefore, cannot be disregarded. (See People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 430 N.E.2d 1126.) While we are aware defendant’s post-arrest statement that, he struck Guzy was inconsistent with her own testimony, we must note that both statements pertained to purported events immediately preceding defendant’s exit from the apartment and his initial arrest. As such, that inconsistency provides no basis to disregard Guzy’s sworn testimony that Flahive entered the apartment, after defendant left, and beat her. And, much as it might be unlikely, we do not otherwise determine that testimony to be inherently improbable. (See Brown, 88 Ill. 2d 81, 430 N.E.2d 1126.) Because Guzy’s testimony established Flahive, not the defendant, beat her, we conclude the record of evidence is insufficient to sustain defendant’s guilt beyond a reasonable doubt. We therefore reverse defendant’s convictions and sentence.

Reversed.

MURRAY, P.J., and PINCHAM, J., concur.


author: JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOM JAKES, a/k/a Dwayne Blunt, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—2827
    Opinion filed May 1, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Stephanie L. Ellbogen, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Renee Goldfarb, and Andrew Lefevour, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant entered a plea of guilty to robbery and aggravated battery and was sentenced to 30 months’ probation with the first six months to be served in the Cook County Department of Corrections. (Ill. Rev. Stat. 1985, ch. 38, pars. 18 — 1, 12 — 4(b)(8).) On August 21, 1987, defendant was found in violation of his probation based on his commission of a burglary on October 30, 1986, his probation was revoked and he was sentenced to five years in the penitentiary. On appeal, defendant contends that the trial court erred in failing to order a new presentence investigation report when the presentence investigation utilized by the court had been filed on July 17, 1987, and the probation revocation hearing was held on August 21, 1987.

Defendant was placed on probation on August 6, 1986. On March 24, 1987, the State filed a petition for violation of probation alleging that defendant was arrested on February 16, 1987, for burglary and indicted on March 11, 1987. On April 21, 1987, the court issued a violation of probation warrant. On June 5, 1987, after two continuances, the court ordered a presentence investigation report which was received on July 17, 1987.

On August 21, 1987, the court conducted a hearing on the petition. Dave Stone, owner of a grocery and liquor store, testified that when he closed at 4 a.m. on October 30, 1986, he left a VCR unit on the bar inside the store. Michael King, who lived next door, testified that about 5:50 a.m., he heard glass shattering and saw defendant leave the store with a video recorder or player and run into the alley. The court found defendant in violation of his probation and said that it was going to order a presentence investigation. An assistant State’s Attorney then informed the court that the July 1987 presentence investigation report was quite current. At this point, defendant claimed the State had never proven that he was the same person placed on probation, but his argument was rejected by the court after taking additional evidence.

The court then asked if the parties wished to proceed to a sentencing hearing at this time. An assistant public defender then stated, “[W]e have a pre-sentence investigation, I don’t see any purpose to delaying hearing.” When the court subsequently asked if defendant had anything to offer in mitigation, the assistant public defender said, “We would rely on the presentence investigation.” Counsel then discussed defendant’s educational background and his slower-than-average rate of mental growth which defense counsel said indicated a lack of judgment.

The court stated that defendant presented an appealing picture for probation and acknowledged that defendant might have problems understanding what was going on around him. The court, however, concluded that its responsibility was to insure the safety of the public.

Defendant contends that section 5 — 3—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 3—1) requires a written presentence report, and the trial judge here failed to order a new presentence investigation before sentencing. The State maintains that the trial court complied with the statutory requirement, that the report was current and that defendant did not object to the report or attempt to supplement its information.

In People v. Youngbey (1980), 82 Ill. 2d 556, 561, 413 N.E.2d 416, the court construed section 5 — 3—1 to require a written presentence report whenever a defendant is sentenced for a felony and said that the requirement was usually mandatory. In People v. Harris (1985), 105 Ill. 2d 290, 299, 473 N.E.2d 1291, the court held that the mandatory requirement for a presentence investigation report also applied to a defendant being resentenced upon a finding that he had violated the terms of his probation. In Harris, the court rejected an argument by the State that an updated report satisfied the statutory requirements as the appellate court had concluded in the companion case of People v. Coleman (1983), 120 Ill. App. 3d 619, 624-25, 458 N.E.2d 634. The “updated” report in Coleman was prepared in connection with defendant’s admission to a burglary charge which also constituted the probation violation and which was considered by the court imposing sentence after revocation of probation; however, the report omitted certain important information required by statute such as defendant’s criminal record and a description of the impact on the victim of the original offense.

The record here reflects, contrary to the situation in Youngbey and Harris, that a presentence investigation report was filed and that the author of the investigation was present at the hearing and testified. The presentence investigation was ordered by the court on June 5, 1987, and filed on July 17, 1987, approximately five weeks prior to the hearing on the State’s petition to revoke probation. The record is clear that the parties understood the presentence investigation report had been filed previously on July 17, 1987. Moreover, defendant’s counsel utilized the presentence investigation report in his arguments to the court concerning the appropriate sentence. It is the duty of the parties to bring to the attention of the trial court any alleged deficiency or inaccuracy in the presentence report. (People v. Meeks (1980), 81 Ill. 2d 524, 535, 411 N.E.2d 9.) Unless there is a claim that there is some deficiency or inadequacy, or lack of an opportunity to update, no error occurs. (People v. Brady (1988), 172 Ill. App. 3d 1079, 527 N.E.2d 590.) Harris and Youngbey do not say that a presentence investigation report complying in all respects with the statute filed five weeks prior to the actual sentencing hearing and considered without objection does not comply with the statute. Certainly, a presentence investigation report could be filed so far in advance of sentencing that the information would be stale, but there is no information in the trial court record or the briefs on appeal to suggest the omission of any relevant evidence and no such suggestion was made in the trial court. (Cf. Brady, 172 Ill. App. 3d 1079, 527 N.E.2d 590.) We conclude that the trial court’s action in considering the presentence investigation under these circumstances complied with section 5 — 3—1.

Therefore, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

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


author: JUSTICE O’CONNOR

text:
    TRANSCONEX, INC., Plaintiff-Appellant, v. JEFFERSON INDUSTRIES, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1—88—0986
    Opinion filed May 1, 1989.

      Steven C. Weiss & Associates, of Chicago (Steven C. Weiss and Ronald M. Hill, of counsel), for appellant.
    Pitler & Mandell, of Chicago (Barry A. Pitler, Mark L. Spiegel, and Sigi M. Offenbach, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

The principal issue in this appeal is whether the trial court erred in failing to find that, as a matter of law, plaintiff, Transconex, Inc., was required to collect its full tariff charges for the transportation services rendered to defendant, Jefferson Industries, Inc., regardless of an alleged misquotation initially given. We reverse and remand.

The plaintiff, Transconex, Inc. (Transconex), is an interstate freight forwarder and non-vessel-operating common carrier which makes both interstate and international transportation arrangements on behalf of its customers. Defendant Jefferson Industries, Inc. (Jefferson), is a manufacturer of carpets and mats with plants located in Chicago, Illinois, and Chatsworth, Georgia.

In August of 1983, Jefferson sought to ship two quantities of carpets to a customer in Trinidad, West Indies. In arranging for the shipments, Jefferson used the services of I.EC. Corporation (IFC), a freight forwarder. On or about August 13, 1983, at the request of IFC, Transconex accepted two sealed 40-foot trailers, alternately described as containers of goods, for delivery to Trinidad. One shipment originated at Chicago, Illinois, and the other at Chatsworth, Georgia.

Prior to shipping the goods, Jefferson received a quotation for the freight charge. The bills of lading show that the freight charges from Chicago to Trinidad were $6,000 and the charges from Chatsworth to Trinidad were $6,300. The information on the bills of lading indicated that the containers held 800 cubic feet of goods, although one of the containers had a capacity of 2,686 cubic feet of freight and the other had a cubic capacity of 2,373 feet. According to Transconex, the freight charges were computed based upon the information received from IFC.

Subsequent to transporting the goods, Transconex discovered that the charges originally assessed and collected were erroneous. Although Jefferson had sealed up the containers, in effect using the entire capacity of the containers, Transconex testified that the original charges were based upon the use of only 800 cubic feet. Transconex then issued corrected bills of lading reflecting what it believed to be the correct tariff charges. The revised charges were approximately $13,319.25 greater than the charges initially assessed and collected.

Jefferson refused to pay the revised rates and Transconex filed suit on March 14, 1986. Following a bench trial, judgment was entered in favor of defendant and pláintiff now brings this appeal.

Plaintiff contends that the trial court’s decision was contrary to law in that plaintiff was required to assess and collect its full tariff charges regardless of any initial misquotations of the rate. Plaintiff points out that the decision of the trial court was not based upon the tariffs introduced at trial, but was based upon purported quotations given to defendant as to what the charges would be and that reversal is warranted as the trial court improperly decided the case based upon contract principles. We agree.

As an interstate freight forwarder and non-vessel-operating common carrier, Transconex was operating pursuant- to authority issued by the Interstate Commerce Commission (ICC) and Federal Maritime Commission (FMC). At the time Transconex agreed to transport the shipments in issue, both the ICC and FMC required that a party subject to the jurisdiction of the respective commissions publish tariffs and assess only those rates contained in said tariffs. See 49 U.S.C. § 10761(a) (1982); 46 U.S.C. §817 (1982).

Once the tariff is published, the rate is no longer merely the rate imposed by the carrier; it becomes the rate imposed by law. (Southern Pacific Co. v. Brown, Alcantar & Brown, Inc. (5th Cir. 1969), 409 F.2d 1331, 1332.) Tariffs have the force and effect of statutes (American Ry. Express Co. v. American Trust Co. (7th Cir. 1931), 47 F.2d 16, 18), and a shipper is conclusively presumed to know the tariff (Aero Trucking, Inc. v. Regal Tube Co. (7th Cir. 1979), 594 F.2d 619, 622).

It has long been held that a carrier has not only the right, but the duty to recover the correct charges under the applicable tariff. (See, e.g., Louisville & Nashville R.R. Co. v. Central Iron & Coal Co. (1924), 265 U.S. 59, 65, 68 L. Ed. 900, 902, 44 S. Ct. 441, 442.) Moreover, the carrier has the duty to collect and the shipper the obligation to pay the correct charges regardless of whether there was a misquotation of the rate through mistake or otherwise. Louisville & Nashville R.R. Co. v. Maxwell (1915), 237 U.S. 94, 97, 59 L. Ed. 853, 855, 35 S. Ct. 494, 495.

The schedule of rates and charges set forth in the tariff is both conclusive and exclusive; it may not be added to through reference to outside contracts, agreements, understandings or promises. Southern Ry. Co. v. Prescott (1916), 240 U.S. 632, 638, 60 L. Ed. 836, 839, 36 S. Ct. 469, 472.

While defendant Jefferson acknowledges the absolute rule generally imposed in tariff cases, it urges that, based upon equitable principles, it should not be applied here, because Jefferson had no alternative but to rely upon the carrier’s interpretation of its own tariff and had no way to check the quoted rates against the actual tariff.

In this regard, we note that it is well established that whether a deviation from the lawful tariff charges was intentional or not is wholly without significance. (F. Burkhart Manufacturing Co. v. Fort Worth & D.C. Ry. Co. (8th Cir. 1945), 149 F.2d 909, 910.) As the United States Supreme Court noted in Kansas City Southern Ry. Co. v. Carl (1913), 227 U.S. 639, 653, 57 L. Ed. 683, 688, 33 S. Ct. 391, 395, no action or omission of the carrier can estop or preclude it from enforcing payment of the full amount of the legally applicable tariff charges. Nor will equitable considerations serve to justify failure of a carrier to collect any part of lawful tariff charges. Baldwin v. Scott County Milling Co. (1939), 307 U.S. 478, 485, 83 L. Ed. 1409, 1414, 59 S. Ct. 943, 948.

The only defenses which can be asserted against a carrier’s suit for freight charges are that the services were paid for; that the services were not rendered; that the services were charged under an inapplicable tariff schedule; or that the rates were not reasonable. (In re Penn Central Transportation Co. (3d Cir. 1973), 477 F.2d 841, 844, affd sub nom. United States Steel Corp. v. Trustees of Penn Central Transportation Co. (1973), 414 U.S. 885, 38 L. Ed. 2d 137, 94 S. Ct. 231.) An estoppel defense is available only in the narrow situation where a consignee relies on the misrepresentation of the carrier and is asked to pay double the applicable tariff charges, once to the shipper and once to the carrier. (Inman Freight Systems, Inc. v. Olin Corp. (8th Cir. 1986), 807 F.2d 117, 121.) An estoppel defense is not available in a suit for undercharges when a carrier simply misquotes the rates. Seaboard System R.R., Inc. v. United States (11th Cir. 1986), 794 F.2d 635, 637-38.

Jefferson admits that the services were rendered and that it has not paid the amount sought by Transconex. Jefferson has not raised the issue of reasonableness and that issue cannot be considered by this court, as the issue of reasonableness is solely within the jurisdiction of the Interstate Commerce Commission and the Federal Maritime Commission. (See Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co. (1907), 204 U.S. 426, 51 L. Ed. 553, 27 S. Ct. 350.) Therefore, the only issue properly before the trial court was the applicable charges due under the tariff.

Jefferson’s contention that the tariff applied by Transconex either was inapplicable or ambiguous and should be construed against the drafter has no merit. The item questioned by Jefferson is Rule 110 of plaintiff’s Ocean Freight Tariff No. 7, entitled “Control and Exclusive Use of Trailer/Container.” Beneath the heading are three subparts which use only the word “trailer.” Because the word “container” was not carried forward, Jefferson contends that Rule 110 does not apply to the subject shipments, or, in the alternative, is ambiguous. This court does not find Rule 110 to be ambiguous for the following reasons.

First, according to Webster’s New Collegiate Dictionary 1536 (9th ed. 1983), the slash between the words trailer and container in the heading means “and/or.” Applying the common dictionary meaning to Rule 110, it is clear that the rule applies to the control and exclusive use of trailers and/or containers. That Transconex chose not to carry forward such a cumbersome format throughout each subpart of Rule 110 does not make the rule either inapplicable or ambiguous.

In addition, plaintiff’s witness Mr. Catinchi testified that based upon his 50 years of experience in the industry, the words “trailer and container” are more or less synonymous. This view is supported by Dealers Transit, Inc. Extension-Pennsylvania (1960), 83 MCC 779, 784-85, in which the ICC discussed the similarities between containers and trailers and defined containers as detachable trailer bodies. In light of Dealers Transit, we decline to find Rule 110 inapplicable on the basis of ambiguity.

We are also unpersuaded by Jefferson’s argument that it was not “fully and clearly informed” about the rates and rules agreed to and “had no way to check the quoted rates against the actual tariff.” As noted previously, Transconex was required to have tariffs on file with the ICC and the FMC and the tariffs are a matter of public record. Jefferson is conclusively presumed to know the tariff (see Aero Trucking, Inc. v. Regal Tube Co. (7th Cir. 1979), 594 F.2d 619, 622), and whether or not Jefferson actually checked with the ICC and FMC to determine the rates is irrelevant under the law.

Transconex has also raised the issue that it is entitled to prejudgment interest on the amounts due from the date of shipment. We note that prejudgment interest is generally awarded in claims for undercharges. (Norfolk & Western Ry. Co. v. North American Car Corp. (N.D. Ill. 1978), 455 F. Supp. 424, 426; Southern Pacific Transporta tion Co. v. San Antonio (5th Cir. 1984), 748 F.2d 266, 274.) We therefore remand this matter to the circuit court for a determination of the amount of prejudgment interest to be awarded to Transconex.

For the reasons stated above, the judgment entered in favor of defendant is reversed and the cause is remanded to the circuit court of Cook County with directions to determine the amount of prejudgment interest owed to plaintiff.

Judgment reversed and remanded "with directions.

BUCKLEY and QUINLAN, JJ., concur.


author: JUSTICE QUINLAN

text:
    ROCKFORD MUTUAL INSURANCE COMPANY et al., Plaintiffs-Appellants, v. STEVEN SCHUPPNER et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—2069
    Opinion filed May 1, 1989.

      Grossman, Solomon & Fielkow, P.C., of Lincolnwood, and Pretzel & Stouffer, Chartered, of Chicago (Arnold D. Fielkow and Robert Marc Cheniers, of counsel), for appellants.
    Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora (John R. Wienold and Donald C. Bevins, of counsel), for appellees.
   JUSTICE QUINLAN

delivered the opinion of the court:

Plaintiffs, the Rockford Mutual Insurance Company (Rockford) and the Kane County Mutual Insurance Company (Kane), filed a declaratory judgment action in the circuit court of Cook County, seeking a declaration that they were not liable under a farm tenant insurance policy issued to defendants Steven Schuppner and Paul Schuppner for the damages which arose from an automobile accident involving Steven Schuppner and Marc Eldridge. Defendants in the case include Steven and Paul Schuppner, the insureds, and Mitchell and Cheryl Eldridge, individually and as parents and next friends of Marc Eldridge, who were the plaintiffs in a separate suit against the Schuppners for the damages Marc Eldridge sustained in the accident on June 18, 1985. Plaintiffs here, Rockford and Kane, filed a motion for summary judgment asking that judgment be entered in their favor. The defendants countered by filing a cross-motion for summary judgment. The circuit court denied plaintiffs’ motion and granted defendants’ motion, ruling that plaintiffs were liable for the accident under their farm tenant policy. Plaintiffs have now appealed that decision to this court. We reverse.

The underlying accident in this case occurred on June 18, 1985. Steven Schuppner, who was driving a 1978 Chevrolet truck with a trailer attached, collided with Marc Eldridge, who was riding his bicycle. Thereafter, Mitchell and Cheryl Eldridge, individually and as parents and next friends of Marc Eldridge, a minor, filed suit against Paul Schuppner and against Steven Schuppner, individually and as the agent of Paul Schuppner. Steven Schuppner and Paul Schuppner, Steven’s father, were co-owners of the truck that was involved in the accident.

At the time of the accident, the truck was insured under an automobile insurance policy by the County Mutual Insurance Company (County Mutual). Paul Schuppner was the only named insured on the County Mutual policy, but the Schuppners also had a farm tenant insurance policy with the plaintiffs here, Rockford and Kane, in which both Paul and Steven were named. The farm tenant insurance policy contained an exclusion for “bodily injury or property damage *** arising from the ownership, maintenance, operation, use, loading or unloading of *** any motor vehicle or any recreational motor vehicle owned by, loaned to or operated by an Insured” (emphasis in original); however, the policy provided that it would cover a motor vehicle or recreational motor vehicle on the insured location if the vehicle was not licensed for road use or was used exclusively on the insured location. The policy defined motor vehicle as a “motorized land vehicle, trailer or semi-trailer (including any attached machinery or apparatus), designed principally for travel on public roads.” And, noteworthy for purposes of the contentions in this case, the policy then excluded farm implements or farm machinery from its definition of a motor vehicle, unless they were towed by or carried on a motor vehicle.

After the accident of June 18, 1985, the Schuppners tendered the defense and indemnity of the Eldridge accident to County Mutual, under the terms of the automobile policy that Paul Schuppner maintained with County Mutual and, subsequently, County Mutual undertook the defense of the Eldridge lawsuit. Approximately 11 months after tendering the lawsuit to County Mutual, the Schuppners also tendered the defense and indemnity of the Eldridge suit to Rockford and Kane, claiming coverage under their farm tenant insurance policy with Rockford and Kane.

After receipt of the request for coverage, Rockford and Kane filed this complaint for declaratory judgment in the circuit court of Cook County, seeking a determination of their obligations under the policy. Rockford and Kane asserted that the accident between Steven Schuppner and Marc Eldridge fell within the motorized vehicle exclusion of its farm tenant policy and, accordingly, asked the court to enter a declaratory judgment finding that they had no obligations under the policy. The Schuppners filed an answer in which they claimed that the motor vehicle exclusion did not apply to the Eldridge accident and requested the court to deny plaintiffs’ request.

Later, at the request of Rockford and Kane, Steven Schuppner and Paul Schuppner both gave depositions in connection with the declaratory judgment case. In Steven Schuppner’s deposition, Steven said that he obtained the farm tenant insurance policy through an insurance broker, David Werdin, but had never discussed with Werdin whether the farm tenant policy would cover an accident involving his truck and trailer. He also stated that he never read the section of the policy dealing with motor vehicle exclusions. Concerning the accident, Steven testified that it occurred on a public road as he was driving a 1978 Chevrolet truck, which properly displayed Illinois license plates. Steven asserted that the truck was generally used for farming, but he also estimated that it was used approximately once a week for non-farming purposes. The trailer, which was attached to the truck, was borrowed from a neighbor and did not have a license on it, but it did display a “slow moving vehicle” sign. At the time of the accident, Steven said he was driving the truck and trailer home from baling hay on some property that he and Paul Schuppner rented. Steven stated that he guessed the distance between his home and the rented property was about one-half a mile.

In Paul Schuppner’s deposition, Paul also said that the farm tenant insurance policy was obtained through David Werdin and further stated that he, like Steven, did not remember ever discussing with Werdin whether an accident involving his truck and trailer would be covered by the farm policy. Paul testified that he never used the truck for non-farming purposes, nor did he remember his family ever using the truck for non-farming purposes. However, Paul did recall that the truck had been used in the past to move furniture.

Rockford and Kane then filed their motion for summary judgment contending, on the basis of those depositions and the language of their policy, that there was no genuine issue of material fact and that it was clear that the Eldridge accident fell within the motor vehicle exclusion in their insurance policy. The defendants responded by filing a cross-motion for summary judgment asserting that while there was no genuine issue of fact, the evidence established that the Eldridge accident was in fact a covered occurrence under the policy. The trial court, as noted above, denied plaintiffs’ motion for summary judgment and granted defendants’ cross-motion. The trial court ruled that the accident was a covered occurrence, and that the determining factor in finding that the occurrence was covered was, in its judgment, the purpose for which the vehicle had been used, which the court found here to be a farm purpose. Also, in denying Rockford and Kane’s motion for summary judgment, the court said, “The fact that the vehicle has four wheels and travels on a public road does not make it a motor vehicle *** within the meaning of this insurance policy ***.” Following the court’s ruling, Rockford and Kane filed a motion for rehearing, which the trial court denied. This appeal followed.

On appeal, Rockford and Kane again contend that the Schuppner’s truck fell within the motor vehicle exclusion in their insurance policy and that, therefore, the trial court erroneously ruled that the truck was covered by their policy. In addition, Rockford and Kane assert that the Schuppners’ truck could not properly fall within any exception to the motor vehicle exclusion, and the trial court’s ruling that it did was erroneous. The Schuppners argue, on the other hand, that their truck was a farm implement and that, consequently, the trial court’s application of the policy exception was proper, as was its entry of summary judgment in their favor.

The construction of an exclusionary provision in an insurance contract is a question of law for the courts. (Rusk Aviation, Inc. v. Northcott (1986), 151 Ill. App. 3d 126, 129-30, 502 N.E.2d 1309, 1312.) In an action to construe an insurance policy, as in other actions, summary judgment is appropriate when there is no genuine issue of material fact and the court can decide the issue as a matter of law. (Rusk Aviation, 151 Ill. App. 3d at 129, 502 N.E.2d at 1312.) Moreover, if an insurance policy is not ambiguous, a court must construe the policy as written. Rusk Aviation, 151 Ill. App. 3d at 129, 502 N.E.2d at 1312.

On appeal, both sides concede that the insurance policy here is not ambiguous, but, nonetheless, present their own interpretation of the policy. As the parties observe, this appears to be a case of first impression in Illinois. Plaintiffs and defendants both cite cases from other jurisdictions which have considered this issue, in support of their position that the Schuppners’ truck was or was not a farm implement. Accordingly, we will briefly discuss those cases.

In North Star Mutual Insurance Co. v. Holty (Iowa 1987), 402 N.W.2d 452, cited by the plaintiffs, the Iowa Supreme Court held that a farmer’s truck, which had been involved in a highway accident, was a motor vehicle excluded from coverage under a farm liability policy rather than a farm implement which would have been covered under the policy. In holding that the truck was a motor vehicle and not a farm implement, the court found it important that the truck there had a windshield, rear view mirror and lights, was used on public roads, had been licensed and insured as a motor vehicle in the past (even though at the time of the accident the license and insurance had both lapsed), and finally, that the truck had clearly been designed for highway use, although it was primarily used for farming by the claimant. North Star, 402 N.W.2d at 456.

The Iowa Supreme Court’s decision in North Star was based in part on an earlier Iowa Supreme Court decision, Farm Bureau Mutual Insurance Co. v. Sandbulte (Iowa 1981), 302 N.W.2d 104. In the Sandbulte case, the Iowa Supreme Court had reversed a trial jury’s finding that a pickup truck was covered under a farm liability policy. In that case, the insured had argued in the trial court and on appeal that the truck there was a farm implement because it had been mainly used on farm premises to haul hay, feed and fuel. (,Sandbulte, 302 N.W.2d at 114.) However, the Iowa Supreme Court on review disagreed and said:

The *** pickup [truck] was clearly ‘designed’ for highway use under the policy definition, regardless of the actual use made of it. And the fact it was being driven on the highway at the time of the accident attests to the fact it was, at least occasionally, being used as a highway vehicle. It was licensed as a motor vehicle and was insured as such. The policy definition was not ambiguous and the court should have so concluded as a matter of law.” (Sandbulte, 302 N.W.2d at 114-15.)

Thus, the Sandbulte court ruled .that the pickup truck could not be covered by the farm tenant insurance policy as a farm implement.

Another case supporting Rockford and Kane’s position is O’Quinn v. Wedlock (La. App. 1983), 428 So. 2d 873. In O’Quinn, the argument made there was that a Honda ATC “three-wheeler” was a farm implement covered by a homeowner’s insurance policy because the three-wheeler had been mainly used to check farm fence lines and farm animals. (O’Quinn, 428 So. 2d at 874.) The Louisiana Appellate Court disagreed and held that even if the vehicle was used primarily for farming purposes, it was not an implement in the usual sense of the word. (O’Quinn, 428 So. 2d at 874.) The O’Quinn court adopted the Webster’s Third New International Dictionary’s definition of “implement” as “an article to equip, a tool or utensil forming part of equipment for work, or one that serves as an instrument or tool,” and held that a self-propelled motor vehicle could not be classified under that definition as a farm implement. O’Quinn, 428 So. 2d at 874.

The Schuppners, however, cite cases in which they contend that courts reached an opposite result, and assert that these cases are more persuasive. In Utah Farm Bureau Mutual Insurance Co. v. Orville Andrews & Sons (Utah 1983), 665 P.2d 1308, the Utah Supreme Court affirmed a trial court’s ruling that a truck which had been involved in a traffic accident was a farm implement and not a motor vehicle, and, hence, was covered by the farm liability policy there. That court ruled that even though the term “farm implement” was not defined in the insurance policy, the term “farm implement” was synonymous with “implement of husbandry,” which was defined in Utah’s Motor Vehicle Act as a vehicle designed for agricultural purposes and used by the owner exclusively for agricultural purposes. (Utah Farm Bureau, 665 P.2d at 1310.) The Utah Supreme Court found that the truck there was an implement of husbandry because a feeder box had been welded to the truck so that the truck could be used for agricultural purposes and that the truck was, in fact, used exclusively for agricultural purposes for a decade. (Utah Farm Bureau, 665 P.2d at 1310.) Additionally, the Utah court noted in its decision that the feeder truck had never been registered as a motor vehicle and had never been listed on the vehicle schedule of its owner’s automobile insurance policy, even though the owner had registered and insured his other trucks. Utah Farm Bureau, 665 P.2d at 1309.

In a North Dakota Supreme Court case cited by the Schuppners, the court there affirmed a jury’s finding that an accident involving a pickup truck was covered by the owner’s farm liability policy. (Heitkamp v. Milbank Mutual Insurance Co. (N.D. 1986), 383 N.W.2d 834.) In that case, the pickup truck was purchased for use on a farm and was depreciated on the owner’s income tax return as an expense of farming, although it was also used for non-farming purposes. (Heitkamp, 383 N.W.2d at 836.) The Heitkamp court held that the farm liability policy was ambiguous, and the court said under such circumstances a jury could properly resolve the ambiguity against the insurer. Heitkamp, 383 N.W.2d at 837.

Despite this holding in Heitkamp, the North Dakota Supreme Court in Walle Mutual Insurance Co. v. Sweeney (N.D. 1988), 419 N.W.2d 176, later affirmed another trial court’s finding that a pickup truck used solely for farming purposes was in fact a motor vehicle and excluded from coverage under a farm liability policy. The Walle Mutual court said that while the insurance contract there was also ambiguous, a court need not always construe an ambiguous contract in favor of the insured, if there was evidence to support a contrary interpretation. (Walle Mutual, 419 N.W.2d 176.) The court in Walle Mutual noted that the evidence there showed that neither the insured nor the insurer intended the farm policy to cover a pickup truck; the insurance agent had said he normally told insurance applicants that a motor vehicle was not covered by farm policies; the application for the farm policy contained no questions concerning motor vehicles; and the cost of the farm policy there was much less than the cost of the insured’s automobile insurance. (Watte Mutual, 419 N.W.2d at 181.) Under those circumstances, the Watte Mutual court concluded that the insured must have known that his farm policy would not cover his pickup truck and, thus, it was not erroneous in that case for the trial court to construe the policy against the insured. Watte Mutual, 419 N.W.2d at 181.

Rockford and Kane claim that their insurance policy here should be construed in accordance with the cases they cite which hold that a vehicle is not a farm implement. They contend that this is the proper construction since the Schuppners’ truck clearly fits the definition of a motor vehicle. The truck is, they argue, a motorized vehicle designed principally for travel on public roads and was licensed and registered with the State as a motor vehicle, used on the public roads, not modified in any way by the Schuppners for any particular farm usage, and also had all the basic features of every motor vehicle, such as seat belts, turn signals and bumpers.

Moreover, Rockford and Kane assert that the truck could not properly be construed to be a farm implement because the terms “motor vehicle” and “farm implement” are mutually exclusive and a “farm implement” should be defined consistently with the Dlinois Vehicle Code’s definition of an “implement of husbandry,” which is a vehicle “designed and adapted exclusively for agricultural, horticultural, or livestock raising operations.” (See Ill. Rev. Stat. 1987, ch. 95½, par. 1 — 130.) The Schuppners’ truck does not, they argue, fit this definition and the Schuppners’ own actions here in registering the truck and insuring the truck under their automobile policy demonstrates that even the Schuppners did not believe that their farm policy covered their truck.

Conversely, the Schuppners submit that the terms “motor vehicle” and “farm implement” are not mutually exclusive and, although their truck may be a motorized vehicle, it is also a farm implement. The Schuppners argue that it is the purpose for which the vehicle is used that determines whether the vehicle is a farm implement or not.

The Schuppners assert that this court should not use the Dlinois Vehicle Code’s definition of “implement of husbandry” to define “farm implement,” but instead should use the ordinary, dictionary definition, which they claim defines implement as “any article or device used or needed in a given activity.” (See Webster’s New World Dictionary 705 (2d ed. 1980).) Applying this definition, the Schuppners contend, establishes that the truck was clearly a farm implement since it was used in farming activity. Most importantly, the Schuppners observe, is the fact that the underlying accident here occurred while Steven Schuppner was returning from a farm field and, thus, was actually engaged in farming operations at the time of the accident.

As noted previously, the construction of an exclusionary provision in an insurance contract is a question of law. (Rusk Aviation, 151 Ill. App. 3d at 129-30, 502 N.E.2d at 1312.) When a question of law is presented to a reviewing court, the reviewing court need not defer to' the trial court’s reasoning or findings regarding questions of law, but may conduct its own independent review. (In re Marriage of Skinner (1986), 149 Ill. App. 3d 788, 791, 501 N.E.2d 311, 313.) Therefore, the trial court’s finding here that the Schuppners’ truck was mainly used for farming purposes has no effect on whether, as a matter of law, the truck was a motor vehicle or a farm implement within the policy.

After considering the arguments of both parties, we must agree with Rockford and Kane that the Schuppners’ truck was a motor vehicle and not a farm implement. We specifically disagree with the trial court that the determinative factor here was the purpose for which the vehicle was used. If this court were to simply employ that test, the definition of farm implement could conceivably cover anything used on a farm. Consequently, many vehicles clearly not actually intended for farm use could be considered farm implements if we were to use this definition. We believe such a definition is too broad and not reasonably intended under the contract. We believe that the determinative factor more appropriately is whether the vehicle was designed for use on public roads or intended as a farm implement. Such an interpretation is, in our opinion, more consistent with the insurance policy’s intended coverage.

Applying this test to the vehicle here, it is clear that the Schuppners’ truck was a motor vehicle. The trial record established that the Schuppners’ truck was registered and licensed as an automobile, was insured under an automobile policy, and was, in fact, an ordinary, basic 1978 Chevrolet truck. Moreover, the Schuppners never claimed that the truck had been modified or adapted in any way specifically for use for farm purposes. Furthermore, we believe that the cases more analogous to our case are those cited by the plaintiffs which hold that a motor vehicle is not a farm implement. The cases cited by the defendants are distinguishable from this case. For example, the court in the Heitkamp case cited by defendants acknowledged that while there were good arguments for either including or excluding a truck from the category of farm implement, since the policy there was ambiguous, the jury could have, as it did, properly construed the policy there against the insurer. (See Heitkamp, 383 N.W.2d at 837.) Here, both sides conceded that the policy was not ambiguous, and a policy that is not ambiguous must, as noted earlier, be construed as written. Rusk Aviation, 151 Ill. App. 3d at 129, 502 N.E.2d at 1312.

The Utah Farm Bureau case cited by the Schuppners is also distinguishable from the present case. There, the truck had never been registered as a motor vehicle, had never been insured as a motor vehicle, and had actually been specifically adapted for agricultural use. (Utah Farm Bureau, 665 P.2d at 1309-10.) Here, as stated, the Schuppners’ truck was registered and insured as a motor vehicle and was not adapted for agricultural use in any way.

We find this case to be most similar to the cases decided by the Iowa Supreme Court in North Star and Sandbulte. In those cases, as in this case, the farm tenant policies were found not to be ambiguous (see North Star, 402 N.W.2d at 456; Sandbulte, 302 N.W.2d at 115); the pickup trucks, although mainly used for farming, were also registered and insured as motor vehicles (see North Star, 402 N.W.2d at 456; Sandbulte, 302 N.W.2d at 115); and as here, the trucks were designed for use on public roads (see North Star, 402 N.W.2d at 456; Sandbulte, 302 N.W.2d at 114-15). Under those circumstances, the court found that the pickup trucks were motor vehicles and not farm implements. We find the factual situation here to be similar and the reasoning of the Iowa court to be persuasive.

Alternatively, the Schuppners argue that if this court reverses the summary judgment entered in their favor, we should not automatically enter summary judgment for plaintiffs, but should remand the case for a determination of whether the pickup truck here was principally designed for use on public roads. This is necessary, the Schuppners say, because they claim that it was never determined that the truck was designed principally for use on the public roads.

We disagree. The record here more than adequately demonstrates that the Schuppners’ truck was principally designed for use on public roads and was, therefore, a motor vehicle within the meaning of the policy and, accordingly, should have been excluded from coverage under the plaintiffs’ farm tenant policy. As such, Rockford and Kane were entitled to summary judgment on their behalf in their declaratory judgment suit.

For all of the foregoing reasons, we reverse this case and remand the case to the Cook County circuit court with directions to the trial court to enter summary judgment for Rockford and Kane upon remand.

Judgment reversed and remanded with directions.

MANNING, P.J., and CAMPBELL, J., concur.

       Justice Quinlan participated in this decision prior to his assignment to the sixth division.