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    VIOLA M. HAIGHT, as Plenary Guardian of the Estate and Person of Michael M. Kraemer, a Disabled Person, Plaintiff-Appellant, v. ALDRIDGE ELECTRIC COMPANY, INC., et al., Defendants-Appellees.
    Second District
    No. 2—90—0829
    Opinion filed June 18, 1991.
    Rehearing denied August 5, 1991.

      Philip H. Corboy, Thomas A. Demetrio, and Todd A. Smith, all of Cor-boy & Demetrio, P.C., and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, Russell P. Veldenz, of French, Rogers, Kezelis & Kominiarek, P.C., and James P. DeNardo and Stephen B. Novy, both of McKenna, Storer, Rowe, White & Farrug, all of Chicago, and Kathryn C. Jones, of McKenna, Storer, Rowe, White & Farrug, of Waukegan (Richard C. Palmer, Michael J. Ross, and Christine L. Olson, of counsel), for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Viola Haight, as plenary guardian of the estate and person of Michael Kraemer, brought a negligence action against defendants, Aldridge Electric Company, Inc. (Aldridge), Robert Trujillo (Trujillo), and Ald-Cass Electric, Inc. (Ald-Cass), for damages Kraemer allegedly sustained in an automobile accident with Trujillo. The case proceeded to trial before a jury. At the close of plaintiff’s case, the trial court entered a directed verdict in favor of Ald-Cass. At the conelusion of all the evidence, the jury returned a verdict in favor of Trujillo and Aldridge and against plaintiff. On appeal, plaintiff contends that the trial court erred in denying her post-trial motion for judgment notwithstanding the verdict and a new trial on the issue of damages only, or alternatively, for a new trial on all issues. Plaintiff also challenges the propriety of certain trial court rulings which plaintiff contends denied her a fair trial. We reverse and remand for a new trial.

The following facts are relevant to our consideration of the numerous issues presented for review. This case arose out of a two-car accident which occurred on September 9, 1986, at 8:30 p.m., at the intersection of Route 45 and Winchester Road in Lake County, Illinois. At the time of the accident, Trujillo had worked as an equipment operator for Ald-Cass for five years. Several days prior to the date of the accident, Ald-Cass had contracted Trujillo’s labor to Aldridge for work at the Winchester Estates Subdivision in Libertyville, Elinois. Eugene Temple, an employee of Aldridge, was Trujillo’s foreman at the jobsite. At the time of the accident, Trujillo was driving a truck, owned by Aldridge, eastbound on Winchester Road. Temple was a passenger in the Aldridge truck. Delores Kennedy was driving south on Route 45 with her boyfriend, Kraemer, and their son, Adam Kennedy. Route 45 was a two-lane State highway with a 55-mile-per-hour speed limit. Traffic on Route 45, the preferential highway, was governed by a yeUow flashing light. Traffic on Winchester Road was governed by a stop sign and a flashing red light. All of the known occurrence witnesses testified that it was dark at the time of the accident. Since it had rained earlier in the evening, the roads were damp.

Kennedy testified that she was driving, with Kraemer in the front passenger seat and their son Adam in the backseat. She turned her headlights on at the beginning of the trip, 5 to 10 minutes before the accident. After passing a van, Kennedy approached the Winchester Road intersection at 50 to 55 miles per hour. Kennedy stated that she put her high beams on after she passed the van, and that she was talking to Kraemer at the time. Kennedy saw the headlights from the Aldridge truck as it crossed a set of railroad tracks prior to the intersection. The truck then continued to roll toward the intersection, but did not stop at the stop sign. Kennedy then stated that she flashed her lights to low beam, applied her brakes and swerved to avoid the Aldridge truck in the intersection. Kennedy’s vehicle then struck the Aldridge truck behind the cab. Kraemer did not have any recollection of the accident, and Adam was sleeping in the backseat at the time of the accident.

Trujillo testified that he approached the intersection of Winchester Road at Route 45, crossed a set of railroad tracks and proceeded toward the stop sign. Once at the intersection, Trujillo stopped and looked in both directions along Route 45. Trujillo saw the headlights of a vehicle approaching from the south, but did not see any vehicles approaching from the north. Trujillo then entered the intersection and was struck by Kennedy’s vehicle.

Temple also testified that, as they approached the intersection, he saw the headlights of a vehicle approaching from the south. After entering the intersection, their truck was then struck in the side by the Kennedy vehicle.

The vehicle approaching from the south, which was observed by Trujillo and Temple, was driven by Donald Stroot. Stroot testified that he approached the intersection at approximately 45 to 50 miles per hour. Stroot stated that he was looking straight ahead prior to the collision and could see a traffic signal at Peterson Avenue, one-half mile away. As he approached the intersection, Stroot saw the headlights from the Aldridge truck. Stroot then recalled that the Aldridge vehicle stopped at the intersection. Stroot did not see any vehicles or headlights of vehicles approaching from the north.

Libertyville police officer Paul Jennings arrived at the scene of the accident at 8:44 p.m. Jennings described the lighting conditions at that time as “legally dark, twilight.” Jennings interviewed Trujillo, Temple and Stroot. While taking Trujillo’s statement, Jennings noticed a mild odor of alcohol. Jennings inspected the Kennedy vehicle, and stated that it appeared to him that the headlight switch was in the “on” position.

Gerald Kennedy, Delores Kennedy’s brother, testified that, while at the hospital after the accident, he heard Trujillo state that Kennedy did not have her lights on.

Plaintiff initially filed her complaint against Aldridge, Trujillo and Kennedy in the circuit court of Cook County. On July 15, 1987, the court granted defendants’ motion to transfer the case to Lake County under the doctrine of forum non conveniens. Plaintiff then filed her amended complaint in the circuit court of Lake County, adding Ald-Cass as a defendant. Plaintiff settled with Kennedy prior to trial. The case then proceeded to trial in Lake County. After plaintiff rested, the trial court granted a directed verdict in favor of Ald-Cass. After the close of all the evidence, the jury returned a verdict in favor of Trujillo and Aldridge and against plaintiff. The trial court then entered judgment on the jury verdict.

Plaintiff filed a post-trial motion requesting judgment notwithstanding the verdict on the issue of damages only or, in the alternative, a new trial on all issues. Attached as an exhibit to plaintiff’s motion was an affidavit of juror Jeanie Klein. Klein’s affidavit stated that during the course of jury deliberations, another juror informed the jurors that he had looked at an almanac which indicated that sunset on the day of the accident occurred at “six something p.m.” The trial court subsequently denied plaintiff’s post-trial motion, and plaintiff filed her timely notice of appeal.

Plaintiff raises the following issues on appeal: (1) whether the trial court erred in denying plaintiff’s motions for a directed verdict and for judgment notwithstanding the verdict; (2) whether the verdict in favor of Trujillo and Aldridge was against the manifest weight of the evidence; (3) whether the introduction of certain extraneous evidence by a juror during deliberations requires a new trial; (4) whether plaintiff was denied a fair trial by the introduction of certain allegedly prejudicial evidence; (5) whether the trial court erred in directing a verdict in favor of Ald-Cass; and (6) whether the circuit court of Cook County erred by transferring this case to Lake County under the doctrine of forum non conveniens.

We first consider plaintiff’s contention that the circuit court of Cook County erred when it transferred this case to Lake County under the doctrine of forum non conveniens. Plaintiff argues that, based on the recent supreme court case Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, defendants failed to prove that certain relevant factors strongly favored a transfer to Lake County. We disagree.

Under the doctrine of forum non conveniens, a court may decline to exercise jurisdiction of a case whenever it appears that there is another forum with jurisdiction of the parties in which trial can be more conveniently had. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 223.) In Torres v. Walsh (1983), 98 Ill. 2d 338, the supreme court outlined the factors to be taken into consideration in deciding whether to apply the doctrine:

“[T]he availability of an alternate forum, the access to sources of proof, the accessibility of witnesses, the relative advantages and obstacles to obtaining a fair trial, the congestion of the court dockets, and the convenience of the parties. We also caution our trial courts that unless those factors strongly favor the defendant, then the plaintiff should be allowed to exercise his choice in deciding in what forum to bring the case when venue is proper.
If there are sufficient factors that favor the plaintiff’s choice of forum, then the defendant’s inconvenience should not be considered, provided venue is proper. For unless the balance strongly favors the defendant, then the plaintiff should be able to exercise his statutory right to choose his forum.” (Torres, 98 Ill. 2d at 351.)

Plaintiff’s choice deserves less deference, however, where the plaintiff is not a resident of the chosen forum. Griffith, 136 Ill. 2d at 106.

In the present case, the plaintiff’s complaint arose out of an automobile accident which occurred in Lake County. All of the parties to the action, including plaintiff, were living and working in Lake County at the time of the accident. All of the occurrence witnesses to the accident resided in Lake County at the time of the accident. Aldridge’s principal place of business and only office was located in Lake County. The Aldridge truck involved in the accident and any records pertaining to the truck were located in Lake County. The Libertyville police and fire departments, Mundelein fire department, and Grayslake fire department, all located in Lake County, responded to and investigated the accident. Kraemer was initially treated at Con-dell Memorial Hospital in Lake County. Apparently, the only connection plaintiff was able to establish with Cook County was the fact that Kraemer received subsequent medical treatment at Loyola Hospital and the Rehabilitation Institute of Chicago. Thus, several of Kraemer’s medical witnesses were from Cook County.

We find the facts of the instant case to be clearly distinguishable from those in Griffith, relied on by plaintiff. Griffith arose out of an airplane crash that occurred in Du Page County. The flight originated from Meigs Field in Chicago and was en route to Du Page County airport when the crash occurred. In concluding that the relevant factors did not weigh strongly in favor of transfer of venue from Cook to Du Page County, the supreme court noted, inter alia, that both pre-occurrence and post-occurrence witnesses were dispersed fairly evenly among Cook, Du Page and Kane counties. Moreover, the court found that Cook County’s interest in resolving the litigation was at least as strong as that of Du Page County, in that Cook County had an interest in insuring the safety of the flights that emanated from its airports. Such factors, which weighed against transfer in Griffith, are not present in the instant case.

A circuit court has broad discretion in determining whether to grant a motion to transfer a cause of action to another jurisdiction based on forum non conveniens. (Bland, 116 Ill. 2d at 223.) Such a decision will not be reversed on appeal unless the circuit court abused its discretion. (Bland, 116 Ill. 2d at 223.) As stated by the court in Griffith, it is not the role of a reviewing court to substitute its judgment for that of the trial court, or to decide whether the reviewing court would have weighed the factors differently, or even to determine whether the trial court exercised its discretion wisely. (Griffith, 136 Ill. 2d at 115.) Based on the foregoing, we cannot conclude that the circuit court of Cook County abused its discretion in granting defendants’ forum non conveniens motion.

Next, we address plaintiff’s contention that she was denied a fair trial by the introduction of certain allegedly prejudicial evidence. Specifically, plaintiff argues that the probative value, if any, of evidence relating to Kraemer’s religious activities and beliefs, Kraemer’s mother’s prior divorces and their effect on Kraemer, and Kennedy’s paternity actions pending against Kraemer, is outweighed by the prejudicial effect such evidence must have had on the jury. We conclude that plaintiff’s arguments in this regard are without merit.

First, plaintiff argues that the trial court erroneously failed to adhere to its ruling on plaintiff’s motion in limine regarding references to Kraemer’s religion. Plaintiff contends that defendants were improperly allowed to question Kraemer and other witnesses regarding Kraemer’s religious beliefs. We disagree. At the hearing on plaintiff’s motion in limine, the trial court ruled that defendants were not to mention the name of Kraemer’s religion, Jehovah’s Witnesses; the name of the church publication, “Watch Tower”; or the phrase “servicing.” The court ruled that defendants could question Kraemer regarding religious meetings he attended, whether he was involved in community activities for his church, and whether he read the Bible. In fact, plaintiff’s attorney stated at the hearing on the motion that he had “no trouble” with questions about reading the Bible.

In her brief, plaintiff refers this court to several points in the record wherein the allegedly prejudicial questions were asked. We have reviewed the record and find that the complained-of questions, and answers thereto, revealed that when Kraemer was in high school he spent some time “knocking on doors”; that he attended religious services three times a week; and that he read the Bible. Defendants never mentioned the name of Kraemer’s religion; never used the phrase “servicing”; and never mentioned the church paper “Watch Tower.” Contrary to plaintiff’s assertions, these innocuous questions did not inquire into Kraemer’s religious beliefs. Rather, they inquired into his physical and mental capabilities before and after the accident. We agree with the trial court when, in ruling on plaintiff’s post-trial motion, it stated:

“[A]s to the discussion of Mr. Kraemer’s religious postulatizing [sic] activities before and after the accident, that was brought up by the defendants for the purpose of comparing what he was able to do before the accident compared to what he was able to do after the accident. The testimony did not violate my ruling on the motion in limine. That ruling was that his religion, Jehovah’s Witness religion, could not be specifically mentioned because it might create prejudice. The fact that he was a Jehovah’s Witness was never brought up during the testimony, and the attorneys adhered to my ruling. As to the postulatizing [sic] activity, I think it was fair comment to show what he was or was not able to do after the occurrence compared to what he was able to do before.”

Plaintiff also argues that the trial court erroneously allowed defendants to inquire into certain paternity actions brought against Kraemer by Kennedy. In this regard, plaintiff fails to provide citation either to pertinent authority in support of her position or to the record wherein the allegedly prejudicial material is to be found, and we find her argument to be without merit. Rather, we agree with the trial court and defendants that Kennedy, who was a central witness on the issue of liability, may have had a financial interest in the outcome of this lawsuit. As such, inquiry into this area was both relevant and probative of her credibility. It was not unduly prejudicial.

Plaintiff also argues that the trial court erroneously allowed defendants to inquire into the effect of plaintiff’s prior divorces on Kraemer and into the fact that Kraemer was treated for depression in high school. Plaintiff argues that, based on Karsten v. McCray (1987), 157 Ill. App. 3d 1, this case must be reversed and remanded for a new trial in the absence of medical proof of a connection between any alleged preexisting condition and the injury complained of. Once again, plaintiff has failed to provide us with citations to the record wherein the alleged trial court errors occurred, and we must rely on defendants’ citations thereto for guidance. Defendants argue, inter alia, that, based on Elliott v. Koch (1990), 200 Ill. App. 3d 1, medical testimony was unnecessary to connect Kraemer’s prior and present condition.

In Elliott, the court stated that, “evidence of a prior injury is admissible if a causal relationship between the injuries is shown or where the injury involved the same area of the body.” (Emphasis in original.) (Elliott, 200 Ill. App. 3d at 14.) On the other hand, no medical testimony is needed to introduce the existence of a prior injury to the same area of the body. (200 Ill. App. 3d at 14.) A causal connection is required only where the injuries do not involve the same area of the body. (200 Ill. App. 3d at 14.) In Karsten, relied on by plaintiff, the alleged preexisting injuries were not to the same area of the body. (Karsten, 157 Ill. App. 3d at 9.) Here, the questions regarding Kraemer’s depression in high school and his mother’s divorces were an attempt to inquire into the same or similar emotional and personality conditions that allegedly afflict Kraemer at the present time. Moreover, as the trial court noted in ruling on plaintiff’s post-trial motion, defendants’ brief questions in this area were “simply a part of the background of the young man as to what his general conditions were to establish or disestablish promise for his entering into the work field and having various employment.” The trial court did not err in allowing such brief testimony.

In reviewing the record, we also note that plaintiff’s counsel questioned plaintiff on the same issues during direct and redirect examination. We agree with defendants that, under Millette v. Radosta (1980), 84 Ill. App. 3d 5, the questions and subsequent testimony in this area could not have been prejudicial since the same evidence was discussed by plaintiff’s witnesses. “A case will not be reversed for an alleged error in admitting evidence where the same kind of evidence or evidence to the same effect is introduced by the complaining party.” Millette, 84 Ill. App. 3d at 23.

To briefly summarize, plaintiff has alleged that the trial court erred in admitting testimony regarding Kraemer’s religious activities, paternity actions, and general emotional condition. The arguments are grounded in the claim that the court erroneously weighed probativeness and prejudice. It is the function of the trial court to weigh the probative value and prejudicial effect of evidence in determining whether it should be admitted, and such rulings will not be overturned on appeal unless a clear abuse of discretion is shown. (People v. Gonzalez (1991), 142 Ill. 2d 481, 489.) Here, we believe the trial judge balanced the probative value of the evidence against the prejudice it might engender and determined that the evidence was admissible. Under the circumstances, we cannot say that the court abused its discretion.

Plaintiff also contends that the jury was improperly instructed. Although this argument is contained in the portion of plaintiff’s brief which contends that the jury’s verdict was against the manifest weight of the evidence, we agree with defendant Aldridge that the issue is more properly one of alleged trial court error. Plaintiff argues that instructing the jury on the statutory obligation of drivers to exercise caution at a flashing yellow light and to maintain a proper speed was improper in light of the facts of this case and Illinois law. Trujillo argues that plaintiff has effectively waived objection to the instruction regarding speed restrictions by failing to raise the objection in her post-trial motion and that, nevertheless, both instructions were properly received by the jury. The following are the complained-of instructions:

“There was in force in the State of Illinois at the time of the occurrence in question, a certain statute which provided that:
When a red lens is illuminated with rapid intermittent flashes, drivers of vehicles shall stop at a point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection and the right to proceed shall be subject to the rules applicable after making a stop at a stop sign.
When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through the intersection or past such signal only with caution.
If you decide that defendants violated the statute on the occasion in question, then you may consider that fact together with all other facts and circumstances in evidence in determining whether that the defendants were negligent before and at the time of the occurrence. If you find that the defendants were negligent and that their negligence was a proximate cause of injury to the plaintiff, then it is not a defense that some third person may also have violated the statute and may also have been to blame.
On the other hand, if you find some third, person violated this statute and that her violation was the sole proximate cause of the occurrence, and that no negligence of the defendants was a proximate cause of the occurrence, then your verdict should be for the defendants.”

(Ill. Rev. Stat. 1987, ch. 95x/2, par. 11 — 309; Illinois Pattern Jury Instructions, Civil, No. 60.02 (2d ed. 1971).)

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
No vehicle may be driven upon any highway of this state at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway or endangers the safety of any person or property. The fact that the speed of the vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection or when special hazard exists with respect to other traffic or by reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.
If you find some third person violated this statute and that her violation was the sole proximate cause of the occurrence, and that no negligence of a defendant or defendants was a proximate cause of the occurrence, then your verdict should be for the defendant.”

Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 601(a); Illinois Pattern Jury Instructions, Civil, No. 60.02 (2d ed. 1971).

We point out initially that plaintiff has not waived objection to the instruction regarding speed restrictions. In her post-trial motion, plaintiff argues that the trial court “erred in allowing specific jury instructions concerning the intervention of outside agencies and persons and the purported defense of the defendant on sole proximate cause.” We believe this objection is specific enough to encompass the complained-of instruction and preserve the issue for review.

The essence of plaintiff's argument in this regard is that requiring a driver on a preferential highway to decrease speed when approaching an intersection governed by a stop sign or flashing red light is contrary to Illinois law and common sense. In support of her argument, plaintiff refers us to Salo v. Singhurse (1989), 181 Ill. App. 3d 641, relying on the following language:

“For the jury to attribute 60% of the fault to Salo under such circumstances is not only contrary to the manifest weight of the evidence, but also beyond comprehension and reason. *** [Citation.] If we were to follow the jury’s apportionment in this case, every time a driver on a preferential highway saw an approaching car on an intersecting road or drive, he essentially would be required to stop to make sure the other car obeyed the stop sign and stayed there or else be found negligent. As the court in Hession v. Liberty Asphalt Products, Inc. (1968), 93 Ill. App. 2d 65, 235 N.E.2d 17 stated: ‘Stop signs are erected for the obvious purpose of requiring motorists to yield to vehicles on through highways. If the motorist on the through highway had to travel at such a speed that he could not stop his car in time to avoid collisions with vehicles which ignore stop signs on intersecting roads, the purpose of having a through highway in the first place would be entirely thwarted. The driver who has the stop sign cannot assume the car on the through highway will stop. It is the other way around.’ [Citation.] We therefore reverse the judgment apportioning 60% of the fault to Salo.” Salo, 181 Ill. App. 3d at 644.

However, plaintiff fails to note that the court in Salo also stated that the driver on the preferential road does not have an absolute right-of-way. “He too must keep a proper lookout, observe due care in approaching and crossing intersections and drive as a prudent person would to avoid a collision when danger is discovered or, by the exercise of reasonable care, should have been discovered.” (Salo, 181 Ill. App. 3d at 643.) Indeed, it is well settled that, contrary to plaintiff’s argument that the instructions placed a “nonexistent standard of care on Kennedy,” drivers on preferential highways do not have an absolute right-of-way. In Fincham v. Cooney (1976), 42 Ill. App. 3d 719, the court set out the standard of care required of a driver proceeding along a preferential highway, as follows:

“The authorities agree that a driver on a preferential highway does not have an absolute or unqualified right of way that can be asserted regardless of circumstances, distances or speed. Such a driver may not plunge blindly ahead in reliance upon an assumption that the other motorist will obey the law and yield the right of way, nor may he heedlessly proceed into obvious danger. Rather, there is a duty upon such driver to observe due care in approaching and crossing the intersection and to drive as a prudent person would to avoid a collision when the danger is discovered or, by the exercise of reasonable care, should have been discovered. [Citations.]
The Illinois decisions, in applying this rule, have consistently held that it is the function of the jury to determine whether the judgment of the driver on the preferential highway conformed to the standards of the reasonable and prudent man.” Fincham, 42 Ill. App. 3d at 721.

See also Nolan v. Elliott (1989), 179 Ill. App. 3d 1077, 1082.

Plaintiff also argues that the complained-of instructions were improperly given because there was no evidence to support their introduction. We disagree. Traffic on Route 45 at its intersection with Winchester Road was controlled by a flashing yellow signal, which Kennedy was therefore required to obey. It is also arguable that, if Kennedy was traveling without illuminated head lamps, she was not proceeding “with caution.” The speed limit on Route 45 was 55 miles per hour. As she approached the intersection, Kennedy was traveling at 50 to 55 miles per hour. At the time of the accident it was dark and the roads were damp. Under the circumstances of this case, we believe there was sufficient “evidence tending to show that a violation of a statute by a third person may have been the sole proximate cause of the occurrence.” (See Illinois Pattern Jury Instructions, Civil, No. 60.02, Notes on Use (2d ed. 1971); see also Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 121.) Thus, the trial court did not err in submitting the complained-of instructions to the jury.

Plaintiff next contends that the trial court erred in directing a verdict in favor of Ald-Cass on the issue of whether Trujillo was an agent of Ald-Cass at the time of the accident. The trial court granted the motion based upon Ald-Cass’ argument that Trujillo was a loaned servant and, therefore, no longer their agent. Plaintiff argues that the directed verdict was erroneous, in that, although Aldridge paid for Trujillo’s time, it also paid Ald-Cass “a bit of a premium.” Thus, plaintiff argues that a fact question existed as to whether Trujillo was actually Aldridge’s loaned servant, and that the trial court erred in taking the issue from the jury.

The law in this area is, of cotuse, well settled. Verdicts are properly directed when all the evidence, viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) Additionally, in personal injury actions where the plaintiff attempts to prove that the negligence of an employee is imputable to the employer, it is the burden of the plaintiff, who asserts that such a relationship exists, to show that the employee was acting as the agent of the employer when the injury was inflicted. (Bolwin v. El Kay Manufacturing Co. (1975), 32 Ill. App. 3d 138, 140.) In order to meet this burden, plaintiff must show not only that the alleged tort-feasor was an employee, but that the relationship of principal-agent was not suspended at the time of the injury and that this relationship existed with respect to the particular transaction from which the cause of action arose. Bolwin, 32 Ill. App. 3d at 140.

An employee in the general employment of one employer may be loaned to another for the performance of special work and become the employee of the employer to whom he is loaned while performing the special service. (A.J. Johnson Paving Co. v. Industrial Comm’n (1980), 82 Ill. 2d 341, 346-47.) Whether such a transfer of employment occurs depends on whether the borrowing employer has the right to control the employee with respect to the work performed. (A.J. Johnson, 82 Ill. 2d at 347.) In making this determination various factors, such as the manner of hiring, the mode of payment, the nature of the work, the manner of direction and supervision of the work, and the right to discharge are considered. (Mosley v. Northwestern Steel & Wire Co. (1979), 76 Ill. App. 3d 710, 719.) The dominant factor is the right to control the manner in which the work is to be done, and the most significant inquiry is the extent to which the first employer delegated or released to the second employer the right to control. (Mosley, 76 Ill. App. 3d at 719.) The fact that an employee does not receive his wages from the borrowing employer will not defeat the finding of a loaned employee situation. (A.J. Johnson Paving Co. v. Industrial Comm’n, 82 Ill. 2d at 349; Bituminous Casualty Corp. v. Wilson (1983), 119 Ill. App. 3d 454, 460.) Nor will the fact that the loaning employer receives some compensation or benefit from the borrowing employer necessarily defeat such a finding. (See American Stevedores Co. v. Industrial Comm’n (1951), 408 Ill. 449, 452; see also Highway Insurance Co. v. Sears, Roebuck & Co. (1968), 92 Ill. App. 2d 214, 216.) Although the existence of a loaned employee relationship is generally a question of fact, it may become a question of law where the undisputed facts are susceptible of but a single inference. M & M Electric Co. v. Industrial Comm’n (1974), 57 Ill. 2d 113, 117; American Stevedores Co. v. Industrial Comm’n (1951), 408 Ill. 449, 453.

Turning now to the facts of this case, the evidence, adduced during plaintiff’s case in chief, established the following. At the time of the accident, Trujillo had worked as an equipment operator for Ald-Cass for five years. Several days prior to the accident, Ald-Cass had contracted Trujillo’s labor to Aldridge for work on the “Red Seal Project,” a subdivision of homes known as Winchester Estates. The Ald-Cass supervisor who assigned Trujillo to work for Aldridge was George Pieracci. When Pieracci assigned an Ald-Cass employee to Aldridge, he would tell him to work for the foreman at the jobsite and to take directions and instructions from that foreman. Once an employee reported to Aldridge, he was under its supervision, and received no further instructions from Ald-Cass.

According to Pieracci and Richard Cardwell, the safety director for both Aldridge and Ald-Cass, Aldridge considered Trujillo to be its agent and employee and under its direction on the day of the accident. Aldridge employee Eugene Temple was Trujillo’s foreman at the “Red Seal Project” jobsite and issued directions to Trujillo. No one from Ald-Cass ever visited the jobsite or checked on Trujillo’s work. In fact, no one from Ald-Cass even knew of the “Red Seal Project” until after the accident. Trujillo operated Aldridge equipment at the jobsite and was driving an Aldridge truck at the time of the accident. Aldridge directed the number of hours Trujillo worked each day and approved his time sheets for payment of wages. Although Trujillo received his wages from Ald-Cass, Ald-Cass would then bill Aldridge for Trujillo’s time plus a bit of a premium.

On the day of the accident, Temple asked Trujillo to help him return some materials from the jobsite to the Aldridge shop. After unloading the equipment, they started back to the jobsite. On the way, they stopped at Temple’s house to pick up some mail. Trujillo then drove while Temple looked at his mail, and the accident occurred soon thereafter.

We conclude that plaintiff has failed to sustain her burden of proving that the principal-agent relationship between Ald-Cass and Trujillo had not been suspended on the day of the accident. Moreover, nothing in the evidence supports a finding that such a relationship existed with respect to the particular transaction from which the cause of action arose. (Bolwin v. El Kay Manufacturing Co. (1975), 32 Ill. App. 3d 138, 140.) Plaintiff’s attorney apparently conceded as much at the hearing on her post-trial motion, where the following colloquy took place:

“THE COURT: Was this an Ald-Cass job?
MR. SMITH: No, it was not.
THE COURT: Okay. So where was the scope of employment on behalf of Ald-Cass?
MR. SMITH: The other evidence in the case was, Mr. George — and I’ve always had trouble with his name, Pieracci, I believe it is. I’ll try and give you a spelling later. He directed Mr. Trujillo as to where to report. He directed Mr. Trujillo as to who he was to respond to in regard to the job.
THE COURT: But then once he did that—
MR. SMITH: Once he was on the job, per se, then Ald-Cass was not—
THE COURT: —the string was cut, and he no longer had any control. Mr. Trujillo then was completely subject to the other employer in the supervision of the job, as I recall the testimony.
MR. SMITH: You’re correct about that, Judge.”

In light of the above, we believe it may fairly be said that all of the evidence, viewed most favorably to plaintiff, so overwhelmingly favors Ald-Cass that no contrary verdict based on this evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) The trial court did not err in directing a verdict in favor of Ald-Cass.

We next address plaintiffs argument that she is entitled to a new trial because of the unauthorized production of evidence by a juror during deliberations. As noted previously, attached as an exhibit to plaintiff’s post-trial motion was an affidavit of juror Jeanie Klein. Juror Klein’s affidavit stated that, during the course of deliberations, juror Charles Plett informed the jury that he had looked at an almanac which “reflected a sunset time of six something p.m.” on the date of the accident. The affidavit further stated that juror Klein felt that her “fellow juror’s introduction of this Almanac evidence had a significant impact on our deliberations on an issue in this case.” Plaintiff, relying primarily on Heaver v. Ward (1979), 68 Ill. App. 3d 236, argues that the unauthorized evidence directly related to issues in this case and was presumptively prejudicial. Defendant Trujillo, relying on People v. Holmes (1978), 69 Ill. 2d 507, and Birch v. Township of Drummer (1985), 139 Ill. App. 3d 397, responds that this court should disregard juror Klein’s affidavit, and that, nevertheless, plaintiff was not prejudiced by the extraneous evidence.

We note initially that Trujillo’s argument, that the Holmes case requires this court to disregard the Klein affidavit, is without merit. Trujillo cites Holmes for the proposition that “a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions.” (Holmes, 69 Ill. 2d at 514-15, citing Fed. R. Evid. 606(b).) However, Trujillo fails to include the entire passage of the rule relied upon by the court. The complete passage, as noted by the court, is as follows:

“(b) Inquiry into validity of verdict or indictment^ — ] Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.” (Emphasis added.) (Holmes, 69 Ill. 2d at 514-15, citing Fed. R. Evid. 606(b).)

Thus, while we agree with Trujillo that testimony regarding the effect of the almanac evidence on the jury may not be considered, testimony as to the nature of such evidence may in fact be considered. See Holmes, 69 Ill. 2d at 514.

In Birch v. Township of Drummer (1985), 139 Ill. App. 3d 397, wherein the court refers to cases cited by both plaintiff and Trujillo, the court set out the following analysis, applicable in situations such as this.

“Generally, a jury’s verdict cannot be impeached by the testimony of the jurors. A juror, however, can testify as to whether extraneous, prejudicial information was brought to the jury’s attention or whether an outside influence was improperly brought to bear upon any jury. (People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656.) Not every instance in which extraneous or unauthorized information reaches the jury results in reversible error. Only when the losing party suffers prejudice is reversal required. (People v. Palmer (1984), 125 Ill. App. 3d 703, 466 N.E.2d 640.) On the other hand, the losing party need not prove actual prejudice. That party need only show that the unauthorized information relates directly to an issue in the case and may have improperly influenced the verdict. (Frede v. Downs (1981), 101 Ill. App. 3d 812, 428 N.E.2d 1035; Heaver v. Ward (1979), 68 Ill. App. 3d 236, 386 N.E.2d 134.) The burden is then placed on the prevailing party to demonstrate that ‘no injury or prejudice resulted.’ 68 Ill. App. 3d 236, 242, 386 N.E.2d 134, 139.” (Birch, 139 Ill. App. 3d at 408-09.)

“Because the actual effect of the conduct on the minds of the jury cannot be proved, *** the standard to be applied is whether the ‘conduct involved “such a probability that prejudice will result that it is [to be] deemed inherently lacking in due process.” ’ ” Holmes, 69 Ill. 2d at 514.

Here, it is obvious that the almanac evidence as to the time of sunset on the day of the accident related directly to a crucial issue in this case — visibility. The burden then shifted to defendants to demonstrate that no injury or prejudice resulted. We do not believe that this burden has clearly been met.

In this regard, Trujillo argues that any evidence derived from the almanac was merely cumulative evidence on the visibility issue and that, therefore, no prejudice resulted. In support of this argument, Trujillo refers us to Birch, wherein the court stated:

“A verdict in a civil case ordinarily need not be set aside because the jurors made an unauthorized visit to the scene of an accident where the visit disclosed nothing about the location not accurately depicted by photographs, maps, diagrams, or the like lawfully admitted into evidence. [Citation.] When maps and photographs lawfully admitted into evidence correctly depict the area, the prevailing party has met his burden of proving the lack of prejudice.” (Birch, 139 Ill. App. 3d at 409.)

Trujillo then argues that, as in Birch, the evidence as to the time of sunset disclosed nothing about the issue of visibility not already admitted into evidence. We disagree.

In Birch, the court noted that the parties did not dispute the physical characteristics of the accident scene, but merely disagreed on the conclusions to be drawn from the evidence. Such is not the case here. Although we agree with Trujillo that there was significant evidence presented at trial that it was “dark” at the time of the accident, there was also conflicting evidence in this regard. For example, although Delores Kennedy testified that it was dark at the time of the accident, she also testified that Trujillo’s vehicle, as it was crossing the railroad tracks, was identifiable as a truck. In addition, Donald Stroot, who testified that it was dark at the time of the accident, also testified that he was able to determine that Trujillo’s vehicle was a truck, even though at one point the vehicle was outside of his headlight range. Finally, although Officer Paul Jennings described the lighting conditions in his accident report as “darkness,” he also testified that visibility at the time he arrived at the accident scene was such that he could see an automobile or a deer or a sign or trees at a distance of two-tenths of a mile in either direction. Moreover, since none of the parties presented specific evidence as to the time of sunset on the evening of the accident, the almanac evidence is not properly described as merely “cumulative.” Defendants have therefore failed to demonstrate that “no injury or prejudice resulted.” Birch, 139 Ill. App. 3d at 409.

We believe that, if the jury was at all in doubt as to the visibility issue, this extraneous evidence could have tipped the scales in defendants’ favor, and thus may have improperly influenced the verdict. Given our conclusion that the extraneous information, improperly brought to the jury’s attention, was in the nature of evidence relating directly to a crucial issue in this case with which plaintiff had neither been confronted at trial nor had the opportunity to refute, we hold that the trial court should have granted plaintiff’s post-trial motion requesting a new trial.

For the foregoing reasons, we affirm the entry of a directed verdict in favor of Ald-Cass. As to Trujillo and Aldridge, we reverse the trial court’s judgment and remand the cause for a new trial consistent with this opinion. In light of the above, we need not consider plaintiff’s remaining contentions that the trial court erred in ruling on her motions for directed verdict and judgment notwithstanding the verdict and that the jury’s verdict was against the manifest weight of the evidence.

Affirmed in part; reversed in part and remanded.

NICKELS and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRENCE M. BERNOTAS, Defendant-Appellant.
    Fourth District
    No. 4—90—0782
    Opinion filed June 25, 1991.

      James M. Drake and Joseph S. Miller, both of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, Staff Attorney, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

After a bench trial, defendant, Terrence Bernotas, was convicted of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501(a)(2)) and improper lane usage (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 709). He was fined $450 plus costs on the two convictions. On appeal, defendant argues (1) he was not proved guilty beyond a reasonable doubt of DUI and improper lane usage, (2) his constitutional rights were violated when the State commented on defendant’s post-arrest silence during closing arguments, and (3) the trial court failed to consider supervision when fashioning defendant’s sentence.

We affirm.

Initially, defendant argues that he was not proved guilty beyond a reasonable doubt of either DUI or improper lane usage and that the innocent hypothesis standard should be adopted. We disagree.

The relevant question here is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) It is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733, 734.) A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or credibility of witnesses. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320.) The Collins standard applies in all criminal cases, whether the evidence is direct or circumstantial. (People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346.) When the evidence is circumstantial, the inferences to be drawn therefrom need not eliminate every reasonable hypothesis of the defendant’s innocence. Pintos, 133 Ill. 2d at 291, 549 N.E.2d at 346.

With respect to the DUI charge, the evidence at trial revealed that defendant wrecked his automobile on January 26, 1990, at approximately 1 a.m., after colliding with a parked car and a utility pole. The two-lane road he had been traveling was icy and packed with snow.

Officer Lloyd Swanson was the first to arrive at the scene of the accident. Defendant identified himself to Swanson as the driver of the car. Swanson then asked defendant what happened, and defendant replied that he did not know. Swanson testified that his findings showed that defendant had been traveling eastbound and slowly drifted off the road, covering a distance of about 40 feet before his car hit the utility pole. Swanson stated that this drifting was indicative of defendant’s drunkenness.

Upon being asked for his driver’s license, defendant produced his wallet, fumbled through it, and had to be reminded twice what he was looking for. Swanson testified that defendant’s breath had a “very strong odor” of alcohol, and he observed that defendant’s speech was mumbled and slurred. Swanson also stated that defendant appeared confused as to where he was.

As a result of the accident, defendant suffered injuries to his head and facial area. Swanson testified that defendant’s head injury was consistent with someone hitting a windshield or steering wheel. Defendant was taken to the hospital by an ambulance.

At the hospital, defendant refused to permit the hospital to draw blood to aid in his treatment. Swanson did not ask defendant to submit to a blood test. Later, defendant signed a release form which indicated that he was leaving the hospital against medical advice.

Swanson testified that while at the hospital he again questioned defendant about the accident. This time, defendant told him that he had been traveling eastbound on Wood Street when he slid into the intersection and was hit by a car. At the hospital, Swanson observed defendant swaying and staggering. Swanson stated he then formed the opinion that defendant was under the influence of alcohol and placed defendant under arrest. Defendant was taken by another officer to the police station.

Swanson testified that he and defendant were in the breath-testing room at the police station when Swanson asked defendant to submit to a breathalyzer test. Defendant refused. When requested by a second officer to submit to field sobriety tests, defendant refused again. While in the breath-testing room, defendant was videotaped. At trial, the court viewed this tape, and it became part of the record.

At the close of the State’s evidence, the parties stipulated that Officer Jerry Cunningham, who was a backup officer at the scene of the accident, would make the same observations as Swanson.

Defendant’s only witness was his friend, Kathleen Ann Maddox, who testified that she lived with defendant. Maddox stated that she photographed defendant on January 27, 1991, and that the photographs were an accurate depiction of defendant’s head and face on that date. She noted that defendant’s nose was off-line and crooked. The photographs were admitted into evidence.

The court found defendant guilty and stated the following:

“As to the improper lane usuage [sic], you really didn’t argue that. I think that’s one that the People have proven. As to the driving under the influence, based upon the evidence presented, there’s unrebutted testimony basically of two officers, since there is a stipulation of the officer’s testimony who was not here, that the officer would testify to the same thing that the other officer testified, as to the observations and strong odor of alcohol and observations as to speech patterns and the other matters stipulated to which were not rebutted by any testimony presented. And based upon the Defendant’s refusal to take the breathalizer [sic] exam and his other actions which basically can be introduced and were introduced to back up the observation of the officers. I am going to find that the Defendant has been proven guilty beyond a reasonable doubt of driving under the influence and the improper lane usuage [sic].”

On this record, we find that a rational trier of fact could have found the evidence sufficient to prove defendant guilty of DUI beyond a reasonable doubt.

Defendant also argues that he was not proved guilty beyond a reasonable doubt of improper lane usage. Specifically, defendant argues that he cannot be convicted of that offense because, on the date of his accident, the road was packed with ice and snow and the markers may not have been visible.

Section 11 — 709 of the Illinois Vehicle Code, in pertinent part, states:

“Whenever any roadway has been divided into 2 or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply.
(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 709.

While a defendant may not be convicted of failure to keep his vehicle within the boundaries of the lanes where the lanes are not marked (People v. McGovern (1970), 126 Ill. App. 2d 393, 398, 261 N.E.2d 689, 691), the street involved here was marked. Whether or not the markers were visible is irrelevant because defendant was charged with leaving the road on his own side.

Section 11 — 709 provides that a vehicle shall be driven as nearly as possible within a single lane and shall not be moved from that lane until the driver has first ascertained that the driver can so move with safety. The elements of this charge are (1) a roadway with two or more clearly marked lanes, (2) a driver moving a vehicle from the lane in which he was driving to another lane, and (3) that driver did not ascertain first whether that move could be made safely.

All of these elements were proved in the present case. First, the roadway was divided into two clearly marked lanes, even though they were not visible at the time of the accident. Second, defendant moved his vehicle from the lane in which he was driving when he hit a utility pole off the street. Third, defendant moved his vehicle without first ascertaining whether it was safe. This third element is apparent from the fact that defendant hit a utility pole once he left his lane of traffic.

Defendant next argues that he was denied due process because of the State’s comments in its closing argument concerning defendant’s post-arrest silence. Upon review of the record, we find that defendant waived this issue for purposes of appeal. He neither objected to the State’s comments at closing argument nor did he raise the issue in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Additionally, the State’s comments do not constitute plain error. The evidence in the instant case is not closely balanced. Further, the error, if any, was not of such magnitude as to deny defendant a fair trial. People v. Whitehead (1987), 116 Ill. 2d 425, 448, 508 N.E.2d 687, 695.

Last, defendant argues that because he was eligible for supervision and did not receive it, the trial court abused its discretion in sentencing him. Initially, we note that a sentence imposed upon a defendant will not be overturned absent an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 545; People v. Lautenschlager (1990), 205 Ill. App. 3d 530, 532, 563 N.E.2d 1213, 1215.) The court may consider all matters reflecting upon a defendant’s personality, propensities, purposes, tendencies, general moral character, mentality, and social environment. People v. Barrow (1989), 133 Ill. 2d 226, 281, 549 N.E.2d 240, 265; People v. Fisher (1989), 186 Ill. App. 3d 255, 265, 542 N.E.2d 1127, 1133.

Section 5 — 6—1 of the Unified Code of Corrections provides for the sentence of supervision and states in part the following:

“(c) The court may, upon a plea of guilty or a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision of the defendant if the defendant is not charged with a felony and having regard for the circumstances of the offense, and the history, character and condition of the offender, the court is of the opinion that:
(1) the offender is not likely to commit further crimes;
(2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and
(3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.
(d) The provisions of paragraph (c) shall not apply to a defendant charged with violating Section 11 — 501 of The Illinois Vehicle Code or a similar provision of a local ordinance *** if said defendant has within 5 years prior to the date of the current offense been:
(1) convicted for a violation of Section 11 — 501 of The Illinois Vehicle Code ***; or
(2) assigned supervision for a violation of Section 11 — 501 of The Illinois Vehicle Code ***.” Ill. Rev. Stat. 1989, ch. 38, pars. 1005-6-1(c), (d)(1), (dX2).

In the present case, we find that the court did not abuse its discretion in denying defendant supervision. The sentence is well within the statutory limits, and the court considered the appropriate factors. Specifically, the court noted that even though defendant had not been convicted of DUI since 1982, defendant was still not a good candidate for supervision:

“I also agree with your observation just because someone has had supervision in the past does not preclude them. In fact, the statute, the last time I read it, only precludes it if it is within the 5-year period, and I think that’s still the same period. However, we have to look at whether he is a good candidate for supervision. The program presented that he is going to take, or he’s actually retaken, is not substantially different than he took in ’82. There is a re-occurrence of the same offense. I think the factors of the DUI in fact are aggravated by the substantial property damage done in this particular case. It was probably luckily [sic] that Mr. Bemotas was not seriously injured or even luckier that he did not go to the left or go [into] an on-coming lane into another vehicle rather than into the power pole. I think that there is not good cause to grant him supervision in this particular case. Motion for supervision by the defendant is denied.”

Accordingly, defendant’s convictions and sentence are affirmed.

Affirmed.

LUND, P.J., and GREEN, J., concur.


author: JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF MICHAEL ALAN APPERSON, Petitioner-Appellee, and LINDA SUSAN APPERSON, Respondent-Appellant.
    Fourth District
    No. 4—90—0665
    Opinion filed June 26, 1991.

      Michael B. McClellan, of Dodd & McClellan, P.C., of Champaign, for appellant.
    Auler Law Offices, P.C., of Urbana, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Respondent Linda Susan Apperson appeals from an order granting permanent custody of her two minor sons, Timothy and Michael, to petitioner, Michael Alan Apperson. Respondent raises the following issues for our consideration: (1) whether the trial court abused its discretion in placing the two boys with petitioner; and (2) whether the trial court erred in finding one of the minors had no standing to challenge the role of the guardian ad litem in the proceedings. We affirm.

The record shows petitioner and respondent were granted a dissolution of marriage in Missouri on December 6, 1984. The judgment of dissolution granted the parties joint custody of Timothy, then age 7, and Michael, then age 10, with respondent having “primary possession of the children.” After respondent moved to Illinois, the Missouri judgment of dissolution was established in the Champaign County circuit court, and the circuit court assumed jurisdiction over the custody of the two minors on March 7,1989.

Both parties filed a separate petition to modify the custody order, with each requesting sole custody of the minors. After the petitions were filed, the parties agreed to allow the minors to live with petitioner in Missouri beginning in August 1989. Dr. Jean Gillespie, a school psychologist who had counseled the minors, had previously recommended the minors be allowed to live with petitioner in Missouri. A written order evidencing the parties’ agreement was entered on November 2, 1989. The order stated in pertinent part that (1) the minors shall live with petitioner in Missouri from August 21, 1989, until the issue of permanent custody is decided at a court hearing held no later than June 30, 1990; (2) the minors shall be interviewed twice during the 1989-1990 school year by Dr. Gillespie and three times by the guardian ad litem; (3) petitioner shall provide respondent with complete access to information regarding the minors’ schooling and medical care in Missouri; (4) each party shall provide opportunities and not discourage the minors’ interest in religious training or activities; and (5) each party shall supervise the minors’ school work and discourage the use of alcohol or tobacco.

Hearings on the petitions to modify custody were held in July 1990. Respondent testified the minors were not properly supervised while living with petitioner as evidenced by poor grades, Timothy’s loss of weight, the lack of religious experiences, and the lack of appropriate social acquaintances. Respondent explained that Timothy’s grades dropped because he was playing basketball too much and associating with the wrong group of children, which she characterized as “juvies” or juvenile delinquents. Respondent further testified Timothy lost 20 pounds while he lived with petitioner. Respondent also testified her sons enjoyed going to church and they did not go while they lived in Missouri because petitioner was not interested in church. Respondent stated she did not force her children to go to church but she did have to get them up on Sunday mornings.

Respondent testified that while she worked the 3 p.m. to 11 p.m. shift at a local company in Champaign, if her sons lived with her on a permanent basis, they would be supervised by her sister and mother. Further, respondent stated both minors had friends in Champaign as well as relatives and they would be exposed to religious activities as desired.

Petitioner testified Timothy’s poor grades were due to his interest in a girl, the fact he was playing too much basketball, and his failure to bring his homework home. Petitioner stated he planned on supervising Timothy’s school work more closely by denying him the opportunity to engage in extracurricular activities, like basketball, until his grades improved. Petitioner attributed Timothy’s weight loss to his son’s playing basketball and stated it was not unusual for a 12-year-old to grow a great deal in a short time. Petitioner testified he did not take the minors to church on a regular basis because they had no desire to go to church and he was not going to force them to go as respondent did.

Both Timothy and Michael expressed a strong desire to live with their father before August 1989. Their reasons for not wanting to live with respondent included her violent behavior toward them, abusive language, and their dislike for respondent’s then new husband, David Jordan. Both minors also reported respondent and Jordan often exhibited violent behavior toward each other in their presence. After their school year in Missouri, Michael continued to state he wanted to live with his father, while Timothy stated he wanted to live in Illinois with respondent, whom he described as “a lot nicer.” Timothy told the trial judge he wanted to live in Illinois because all of his friends and cousins were here. Timothy admitted that three to four days before the hearing, he had stated he wanted to live with his father but changed his mind because his mother had “gotten a lot nicer.” He also stated his mother told him she would buy him new Reeboks, a basketball hoop for the driveway, and a dog if he stayed in Illinois.

Dr. Gillespie testified she interviewed the two minors on many occasions, including two weeks before the hearing and on the day of the hearing. At the meeting two weeks before the hearing, both children told Gillespie they wanted to live with their father. On the day of the hearing, Timothy told Gillespie he wanted to live in Illinois even if Michael wanted to live in Missouri. Gillespie described the minors’ relationship as unusually close. Gillespie stated Timothy wanted to live with his mother “strictly because of his friends.” Timothy told Gillespie his mother “would probably bribe him” to stay with her but he did not decide to stay with her because of her actions. Gillespie stated she would like to see the children live together. Gillespie explained the children had negative feelings toward their mother because of her violent behavior toward them during and after the divorce proceedings. Michael told Gillespie his mother would not hit him now because he would hit her back. Michael also told Gillespie he wanted to see his mother on occasion but it would have to be at his request. Gillespie stated Timothy did not see respondent’s promise to buy him Reeboks, a basketball hoop, and a dog as a bribe because respondent had previously promised him she would buy these things for him. Gillespie stated the incidents of physical violence between respondent and her sons were not recent but occurred in the past.

At the time of the hearing, respondent was separated from David Jordan and stated she was going to get a divorce from him.

The trial judge considered all of the evidence presented and the counseling reports on file from various agencies and individuals. At the close of the evidence, the guardian ad litem for the minors recommended the custody of both minors be placed with petitioner. The trial judge adopted the guardian ad litem’s recommendations, ordered petitioner be given permanent custody of the two minors, but noted Timothy may require more supervision in Missouri. The trial judge also noted Dr. Gillespie’s opinion that the minors should be placed together and the fact that respondent’s home situation was unstable.

Prior to the entry of a written order regarding the change of custody, a motion for reconsideration of the order was filed on behalf of Timothy by an independent attorney. The motion alleged that because the two minors’ interests in the proceedings were adverse to each other, the court-appointed guardian ad litem could not and did not adequately represent each minor and, therefore, requested reconsideration and a stay of the order transferring custody of the minors to petitioner. The trial court found Timothy had no standing to file a motion for reconsideration of the custody order. A written order consistent with the trial judge’s findings following the hearings on change of custody was entered on August 27, 1990.

Respondent first argues the trial court abused its discretion by placing both minors with petitioner because each minor should have been placed with the parent of his choosing. According to respondent, separate custody is the only way to improve contact between the parents and the two children. Respondent contends the evidence established the minors would be content living apart from each other. Respondent also suggests more consideration should have been given to Timothy’s desire to stay in Illinois with his mother.

Modification of child custody orders are governed by section 610 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 610). (In re Marriage of Gibbons (1987), 158 Ill. App. 3d 998, 512 N.E.2d 52.) Section 610(b) provides in part:

“The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment *** in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child. In the case of joint custody, if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child’s best interest. The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination.” (Ill. Rev. Stat. 1989, ch. 40, par. 610(b).)

Where both parties petition for custody, it is readily apparent the parties desire a termination of the joint custody arrangement. Under these circumstances, section 610(b) directs the trial court “shall so terminate the joint custody and make any modification which is in the child’s best interest.” Ill. Rev. Stat. 1989, ch. 40, par. 610(b).

In making a custody determination, the court has a duty to consider all relevant factors, including:

“ ‘(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved; and
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person but witnessed by the child.’ Ill. Rev. Stat. 1985, ch. 40, par. 602(a).” (In re Marriage of Lovejoy (1987), 158 Ill. App. 3d 1, 4, 510 N.E.2d 636, 637.)

The determination of child custody rests largely within the broad discretion of the trial court, and its decision at trial will not be disturbed on appeal unless it is against the manifest weight of the evidence or unless the court has abused its discretion. (In re Marriage of Siegel (1984), 123 Ill. App. 3d 710, 463 N.E.2d 773.) In custody cases, seldom is either parent shown to be perfect. There is no guarantee that parents will continue their devotion to caring for children after they leave the courtroom. Trial courts have the unenviable task of determining the best interests of the child after considering the section 602(a) factors. (Ill. Rev. Stat. 1989, ch. 40, par. 602(a).) Great deference must be accorded that decision since the trial court is in a superior position to judge the credibility of witnesses and determine the needs of the child. In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 485 N.E.2d 367.

The evidence established that since the first custody order was entered in 1984, respondent moved to Illinois and remarried. Her relationship with her new husband was at times abusive and violent. Both minors also reported respondent was physically and verbally abusive toward them. Respondent works full time on the third shift at a local company while her husband, David Jordan, has sporadic employment. Petitioner is also remarried and the minors reported getting along well with him and their stepmother. While the custody of the minors was shared by the parties under a joint-custody order prior to the initiation of these proceedings, the evidence showed the parties have never been able to directly communicate regarding their children. Instead, they use their children to gain information about each other. We conclude from this evidence that it is in the best interests of both minors that the permanent custody be placed with petitioner.

As noted, respondent suggests Timothy’s desire to remain in Illinois with his mother should have been given more weight by the trial judge. We disagree. If children are of sufficient maturity, their choice in custody matters is an important element to be taken into account, but is not controlling or binding upon the court. (Filipello v. Filipello (1971), 130 Ill. App. 2d 1089, 1096, 268 N.E.2d 478, 483.) Here, Timothy, now age 13, changed his mind about wanting to live with his mother just prior to the hearing and his reasons for wanting to stay with her were not related to his feelings for her but had more to do with his desire to stay near his friends, a fact noted by both the guardian ad litem and Dr. Gillespie. The trial judge considered Timothy and Michael’s wishes regarding custody, but determined that it was in Timothy’s best interests that he go with his brother and live in his father’s home, which is more stable. The stability of the child’s environment is an important factor in determining the child’s best interests. (In re Marriage of Pease (1982), 106 Ill. App. 3d 617, 435 N.E.2d 1361.) We will not disturb the trial court’s findings on this issue.

Respondent also argues the trial court erred in finding Timothy had no standing to request a reconsideration of the order granting petitioner permanent custody of the two minors. Respondent argues minors in custody proceedings should be given the same status as minors in abuse or neglect proceedings. Further, respondent contends Timothy’s position in these proceedings was like that of an intervenor. She argues that because of inadequate representation by the guardian ad litem for Timothy and the fact that he (Timothy) will be bound by the decision, Timothy should have been allowed to challenge the trial court’s order.

We find no error in the trial court’s decision regarding Timothy’s motion for reconsideration. We note respondent provides no authority for her argument that the minors in custody proceedings are similar to minors in abuse proceedings and, thus, this argument will not be considered. The record shows a guardian ad litem was appointed for both minors as provided by section 506 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 506). Timothy was a witness in an in-chambers hearing before the trial court. The guardian ad litem, as Timothy’s representative, was a party to the action and, thus, the one to present in the trial court a motion for reconsideration of the judgment. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203.) Further, Timothy could not challenge the quality of the guardian ad litem’s representation for the first time after the judgment was rendered. Moreover, from our reading of the record, we find the guardian ad litem’s representation of both minors was adequate.

For the foregoing reasons, the order of the trial court awarding permanent custody of the minors to petitioner is affirmed.

Affirmed.

LUND, P.J., and KNECHT, J., concur.


text:
      In re FRED TALLY, a Person Subject to Involuntary Commitment (The People of the State of Illinois, Petitioner-Appellee, v. Fred Tally, Respondent-Appellant).
    Fourth District
    No. 4—90—0727
    Opinion filed June 26, 1991.

      James W. Ackerman, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On October 10, 1990, respondent Fred Tally was found to be a person subject to involuntary admission (Ill. Rev. Stat. 1989, ch. 911/2, par. 3 — 700) following a jury trial in Sangamon County. Defendant was ordered to remain hospitalized at Memorial Medical Center (Memorial). A notice of appeal was filed on October 18, 1990, pursuant to section 3 — 816 of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1989, ch. 911/2, par. 3 — 816). We affirm.

On appeal, the respondent argues that the trial court abused its discretion in denying the respondent’s motion to continue, and exceeded its authority by granting a motion to amend Dr. Shea’s certificate; and erred in entering the judgment herein in that (1) the petition had only one certificate and, because of that, the complaint must be dismissed, and (2) the State produced insufficient evidence to find the respondent subject to involuntary commitment.

Eugene Stormer, a social worker for the SIU School of Medicine and director of Community Support Network (an organization which provides support services for mental patients living in the community), was called by the emergency room at Memorial on September 26, 1990, to come and help the respondent, who had been brought to the emergency room by a friend. Stormer testified respondent appeared disheveled and wore dirty clothes. He spoke with respondent for approximately 20 minutes. Stormer further testified he had observed respondent the previous day attempting to hail a bus by standing in the middle of the street. Stormer asked respondent if this was a safe thing to do and respondent replied that it did not matter. Finally, after leaving the emergency room, Stormer went to lock up respondent’s apartment. Stormer testified the apartment was bug-infested, contained rotting food in the kitchen, and there were dirty dishes strewn about the kitchen as well. Furthermore, Stormer stated there were clothes thrown about the apartment and several pairs of shoes lined up in the middle of the room “as if to make some kind of wall down the center of the room.” Stormer indicated a few weeks earlier, respondent had left a pot on his stove which caught on fire and, but for Stormer’s intervention with respondent’s landlord, respondent would have been evicted. Finally, Stormer offered a lay opinion that respondent was likely to hurt himself either through eating contaminated food or careless cooking. On cross-examination, Stormer stated he knew respondent was employed by McDonald’s and also attended Lincoln Land Community College.

Dr. Laura Shea testified she was a board-eligible psychiatrist and a licensed physician and was respondent’s treating physician at Memorial. Dr. Shea testified respondent suffered from chronic paranoid schizophrenia. She stated respondent was delusional and believed he was the owner of all McDonald’s restaurants. She further testified respondent believed he was a doctor and a lawyer and that he often laughed for no apparent reason. When asked if she had an opinion, within a reasonable degree of medical certainty, whether because of his mental illness respondent was unable to provide for his basic physical needs or to guard himself from harm from the outside world if released, she replied:

“I’m really concerned that he would not be able to do that at this point. I think that he’s not aware that he’s having a problem right now. That’s a problem in itself because he doesn’t think that he needs to see the doctor for anything. He doesn’t think he needs medication.”

On cross-examination, Dr. Shea testified she probably had only spent a total of one hour with respondent.

Lisa Kowalski, a third-year medical student under the guidance of Dr. Shea, testified she had also observed respondent while he was at Memorial. She testified respondent was agitated and displayed violent propensities. She further stated respondent made several delusional statements to her, including a statement that he was shot through his soul, which was his appendix. Respondent also told Kowalski he was a lawyer, a doctor, and that he owned 103 McDonald’s restaurants. Respondent stated he earned all of Jesus Christ’s money and that Jesus Christ was a very rich man. According to respondent, a scar on his abdomen was a stab wound inflicted by his mother when she marked him one of Christ’s disciples. Respondent became agitated while watching television and told Kowalski he could no longer watch the baseball game on television because they kept changing the instant replays. Finally, Kowalski stated she believed respondent was unable to take care of himself without taking his medication.

The State called respondent as an adverse witness. Respondent testified he had suffered a gunshot wound six years earlier. Respondent stated he was different colors in the past, including white, and that he was Ronald McDonald. He further stated, although he had not actually claimed them yet, he owned all McDonald’s restaurants. He planned to claim the restaurants as his own by working at them and showing others how he liked his food prepared. Respondent also testified he was a breakfast cook at McDonald’s and goes to Lincoln Land Community College on a city bus. He denied stepping in front of the bus to stop it but rather contended he merely waved at it to cause it to stop.

Arthur Borders, a friend of respondent’s, testified on his behalf. Borders stated respondent was capable of dressing and feeding himself. Borders stated he would go by respondent’s house and watch television with respondent. He also testified he often had to repeat himself and it appeared as though respondent was not listening when Borders spoke to him.

Respondent made a motion for directed verdict at the close of the State’s case in chief. That motion was denied and not renewed at the close of his case. The jury returned a unanimous verdict that respondent was subject to involuntary commitment. The trial court informed respondent of his right to appeal and respondent immediately indicated he wished to exercise that right.

The first argument raised by respondent is the trial court abused its discretion in denying respondent’s motion for a continuance on the first day of trial. When the petition was filed, a hearing date was set for October 5, 1990, and Bob Hall was appointed to represent respondent. On October 5, 1990, respondent requested a different attorney and the court appointed James Ackerman. The court granted a continuance until October 9, 1990. On that day, respondent expressed a desire for yet another attorney; however, after inquiry from the trial court, respondent agreed to continue with Ackerman as his attorney.

Thereafter, Ackerman moved for a continuance, alleging that the previous day respondent had indicated he did not wish to be represented by Ackerman and, because of that, Ackerman did not have sufficient time to discuss the case with the respondent. Ackerman also based his motion to continue on the fact respondent appeared to be uncertain as to whether he wished to retain Ackerman as counsel.

The trial court denied the motion for a continuance but indicated it would allow counsel time to speak with the respondent before the trial began. Ackerman then thanked the court and asked for five minutes to consult with respondent. The court granted that request and further indicated it would allow both parties the opportunity to speak with Dr. Shea.

Granting a continuance based upon defense counsel’s lack of preparation rests within the trial court’s discretion. On review, the trial court’s decision will only be reversed where an abuse of discretion is shown. (People v. Thomas (1988), 176 Ill. App. 3d 514, 531 N.E.2d 84.) Where a continuance is requested to permit preparation of the case, all surrounding facts and circumstances must be evaluated. If the trial transcript indicates that the trial counsel competently represented the defendant by filing pretrial motions to suppress, cross-examining prosecution witnesses, interposing objections throughout the trial, and offering a closing argument, there is no abuse of discretion in denying a continuance. (People v. Finklea (1989), 187 Ill. App. 3d 610, 543 N.E.2d 536.) It is well settled that a continuance for purposes of allowing counsel to prepare is not erroneously denied unless defendant is prejudiced by the denial. People v. Sayles (1985), 130 Ill. App. 3d 882, 474 N.E.2d 870.

The trial transcript indicates defense counsel competently represented respondent. Counsel effectively cross-examined the State’s medical expert, objected to testimony during the trial, and gave a closing argument. The transcript indicates counsel impeached the medical expert (by making her admit she only spent a total of one hour with respondent), moved for a directed verdict at the close of the State’s case, and also presented a witness on behalf of respondent. Moreover, the court itself indicated counsel had previously represented other defendants in mental health proceedings and on numerous occasions had been successful. Finally, counsel was appointed on October 5, 1990, and the trial was continued until October 9, 1990. Presumably, counsel had those four days in which to prepare. Respondent incurred no prejudice as the result of a denial of a continuance. No abuse of discretion occurred.

For his second argument, respondent contends the trial court exceeded its authority by granting a motion to amend Dr. Shea’s certificate. Initially, we note defendant has waived this issue. Supreme Court Rule 341(e)(7) provides arguments of appellants must contain their contentions and reasons therefor, including citations of authority, and that points not argued are waived. (134 Ill. 2d R. 341(e)(7).) Mere contentions, without argument or citations of authority, do not merit consideration on appeal. (Fuller v. Justice (1983), 117 Ill. App. 3d 933, 453 N.E.2d 1133.) The contentions supported by some argument but by absolutely no authority do not meet the requirements of Supreme Court Rule 341(e)(7). (In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 509 N.E.2d 707.) Defendant’s two paragraphs, which contain no citation to authority and minimal argument, do not meet these requirements; therefore, defendant has waived this issue.

Moreover, respondent’s argument is without merit. The petition for the involuntary commitment of respondent and the two certificates were filed on September 27, 1990. The petition alleged respondent was unable to care for himself. The first certificate was executed on September 26, 1990, and stated the doctor examined defendant on September 26, 1990, at Memorial Medical Center emergency room. Respondent was found to be delusional, fearful, paranoid, and unable to take care of himself. The second certificate was executed on September 27, 1990, by Dr. Shea. She stated respondent was well-known to have chronic paranoid schizophrenia, was not taking his medication, and was abusing marijuana. Respondent was found to be delusional and in need of treatment. On the first certificate, the examiner checked the box which stated in his opinion “[respondent is] [a] person who is mentally ill and who because of his/her illness is unable to provide for his/her basic physical needs so as to guard himself/herself from serious harm.” On the second certificate, Dr. Shea checked the box which indicated in her opinion “[respondent is] [a] person who is mentally ill and because of his/her illness is reasonably expected to inflict serious physical harm upon himself/herself or another in the near future.” Prior to the commencement of the trial, but after the jury was sworn, the trial court, over respondent’s objection, granted the State’s motion to amend the certificate of Dr. Shea. Her certificate was amended so that the box alleging respondent was unable to provide for his basic physical needs was checked.

The State indicated it would proceed on the grounds that respondent was unable to provide for his basic physical needs and the jury had also been told this would be the grounds for the involuntary commitment. Dr. Shea testified at trial that it was her belief respondent was unable to provide for his basic physical needs and she did not object to the amendment of her certificate. Clearly, the amendment of Dr. Shea’s certificate was correct.

Respondent next argues the trial court’s order of commitment should be reversed because there was noncompliance with the statutory provisions requiring two certificates of physicians agreeing on the same diagnosis and prognosis of respondent. However, since we have determined the amendment of Dr. Shea’s certificate was correct, there were in fact two certificates on file with the same diagnosis and prognosis of respondent. Therefore, there was compliance with the relevant statutes.

Respondent’s final argument is that there was insufficient evidence for the jury to find he was subject to involuntary commitment because he was unable to provide for his basic physical needs.

Section 1 — 119 of the Code states in part:

“ ‘Person subject to involuntary admission’ or ‘subject to involuntary admission’ means:
(1) A person who is mentally ill and who because of his illness is reasonably expected to inflict serious physical harm upon himself or another in the near future; or
(2) A person who is mentally ill and who because of his illness is unable to provide for his basic physical needs so as to guard himself from serious harm.” Ill. Rev. Stat. 1989, ch. 9IV2, par. 1 — 119.

Dr. Shea testified, as respondent’s treating physician, respondent suffered from chronic paranoid schizophrenia. Her determination was based on respondent’s medical history and her own examination and observations of respondent. There was clear and convincing evidence to establish respondent suffered from a mental disorder.

Respondent contends the evidence was insufficient to establish he could not provide for his basic needs. We disagree. Dr. Shea testified she was concerned that respondent would be unable to provide for his basic physical needs. She stated respondent was unaware he was having a problem and that his continual refusal to take his medication could lead him to harm himself. Lisa Kowalski testified to specific instances of respondent’s delusions and agitated behavior. Moreover, Eugene Stormer testified respondent’s apartment contained bug-infested and rotten food and generally was disheveled. Stormer also testified respondent left his job when he was supposed to be working and left his stove unattended, causing a pot to catch on fire. Respondent was observed standing in front of a bus in an attempt to hail the bus. Most importantly, the jury heard respondent testify he used to be white, was Ronald McDonald, and was merely waiting to claim ownership to all McDonald’s restaurants. Throughout the trial, respondent orally agreed with the witnesses who testified that he had stated earlier that he owned all McDonald’s restaurants and was Ronald McDonald.

There was clear and convincing evidence that respondent was unable to care for his basic physical needs. The verdict of the jury was not against the manifest weight of the evidence, and the trial court properly entered the order finding respondent was subject to involuntary admission. The trial court is affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LINDA J. PETTIGREW, Defendant-Appellee.
    Fourth District
    No. 4—90—0866
    Opinion filed June 26, 1991.

      Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Linda Pettigrew was indicted on two counts of prostitution. (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 14(a).) The indictments alleged that on May 11, 1990, defendant committed the offense of prostitution by knowingly offering and agreeing to perform an act of sexual penetration with Jeffrey Munds for the sum of $40. Prior to trial, defendant made a motion to dismiss the indictments alleging they failed to state an offense. The trial court granted defendant’s motion, finding the State was required to allege the acts of sexual penetration were for the purpose of sexual arousal or gratification. The State appeals the dismissal of the indictments. We reverse the trial court.

The current prostitution statute has been in effect since January 1, 1986 (see Ill. Rev. Stat. 1985, ch. 38, par. 11 — 14(a)), and reads as follows:

“Any person who performs, offers or agrees to perform any act of sexual penetration as defined in Section 12 — 12 of this Code for money, or any touching or fondling of the sex organs of one person by another person, for money or anything of value, for the purpose of sexual arousal or gratification commits an act of prostitution.” (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 14(a).)

Section 12 — 12 of the Criminal Code of 1961 defines sexual penetration as:

“[A]ny contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.” (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(f).)

In 1984, the prostitution statute read:

“Any person who performs, offers or agrees to perform any act of sexual penetration as defined in Section 12 — 12 of this Code for money commits an act of prostitution.” Ill. Rev. Stat., 1984 Supp., ch. 38, par. 11 — 14(a).

Under the 1984 statute, only the act of sexual penetration for money constituted prostitution. The statute did not include the terminology “for the purpose of sexual arousal or gratification.” This language was never included in the offense until prostitution was enlarged to include any touching or fondling of the sex organs of one person by another person. From the House and Senate debates, the prostitution statute was amended in 1985 to enlarge the offense of prostitution to include conduct allegedly occurring at that time in health spas and not to alter the already existing offense of sexual penetration for money. 84th Ill. Gen. Assem., Senate Proceedings, May 23,1985, at 127-33; June 27, 1985, at 94-95.

Moreover, it is a basic canon of statutory construction that relative or qualifying words, phrases, or clauses are to be applied to words or phrases immediately preceding, and not as extending to or including other words, phrases or clauses more remote, unless the intent of the legislature and a reading of the entire statute require such an extension or inclusion. (People v. Thomas (1970), 45 Ill. 2d 68, 256 N.E.2d 794.) Here, the phrase concerning arousal or gratification follows the phrase “touching or fondling of the sex organs of one person by another.” It qualifies this latter phrase and does not apply to the earlier phrase regarding sexual penetration.

Contrary to defendant’s assertions, this reading of the statute does not result in the prosecution of medical personnel who may perform an act of penetration during the course of a medical examination. A simple reading of the statute provides that the prosecutable offense is any act of sexual penetration done for money. In a medical examination, any money or value given is for the purpose of treatment and not for the purpose of penetration.

Reversed and remanded.

GREEN and STEIGMANN, JJ., concur.