author: JUSTICE STOUDER

text:
    NORMAND GOODRICK, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Albert Cioni, d/b/a Granville Motor Company, Appellee).
    Third District (Industrial Commission Division)
    No. 3—92—0024WC
    Opinion filed December 10, 1992.
    R.J. Lannon, Jr., of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle, and Karen C. Eiten, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of Ottawa, for appellant.
    George J. Picha, of Picha & Salisbury, of Rockford, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The appellant, Normand Goodrick (the claimant), filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) contending he sustained injuries on April 14, 1988, while in the employ of the appellee, Albert Cioni, d/b/a Granville Motor Company (the employer). Following a hearing, the arbitrator found there was an employer/employee relationship and awarded benefits. On review, the Industrial Commission (Commission) reversed, finding no such relationship and denied the claim. The circuit court confirmed and the claimant now appeals.

On April 13, 1988, the claimant was laid off from his job with Alverson Construction Company. The claimant was an ironworker and worked out of a local union hall. He had worked on a bridge project with Alverson for approximately 2xk months.

The claimant testified that on leaving work that day he went to the Town Club Tavern, where he called his wife to join him. After she arrived, Albert Cioni also entered the bar and sat next to the claimant. The claimant stated he had known Cioni for 17 or 18 years and that they had become close friends in recent years. According to the claimant, Cioni asked him if he was working and the claimant told him he had been laid off that day. Cioni then invited the claimant to accompany him to an automobile auction in Chicago the next day. The claimant’s wife in her testimony before the arbitrator confirmed this conversation.

The claimant had accompanied Cioni to one previous auction in 1986. The record shows that if Cioni bought vehicles at the auction, those who accompanied him would be asked to drive the vehicles back to Granville. There were times when no vehicles were purchased. The record shows that commercial transport of the vehicles from Chicago to Granville would cost $100 per vehicle.

The claimant testified he had his wife drop him off at the Town Club the next morning around 7 a.m. He met Cioni there, and the two went to Cioni’s business, where they were met by two other gentlemen who were also going to the auction. From there they proceeded to Cedar Point, Illinois, in Cioni’s van to pick up another individual. They picked up a sixth person in Peru, Illinois, and proceeded on to the auction in Chicago.

Cioni obtained complimentary breakfast tickets at the auction for all of the men. Cioni purchased four vehicles at the auction. Cioni asked the claimant to drive a Mercury Sable back to Granville. Three of the other gentlemen drove the other purchased vehicles. All of the drivers followed Cioni to Dunlap’s Supper Club, where Cioni purchased lunch and drinks for all the men. The claimant testified he had six or seven beers while at Dunlap’s.

The caravan proceeded to the Holiday Inn in Morris, Illinois, where the group stopped to use the rest room and have drinks. The claimant testified he had two beers while in Morris. The group proceeded to the Holiday Inn in Peru. After about 20 minutes at the bar, the other gentlemen left. Cioni and the claimant remained at the bar drinking. The claimant had five or six beers. Cioni and the claimant then went to the Cedar Lanes Motel in Cedar Point, where the claimant had approximately four more beers. The record shows that Cioni purchased almost all of the drinks, with one or two of the gentlemen purchasing a round of drinks along the way. The claimant did not pay for anything that day.

The claimant phoned home from Cedar Point and told his wife he would be home shortly. Cioni paid for the call. This was sometime between 8:30 p.m. and 9 p.m. The claimant was going to drive the Sable home and return it to Cioni in the morning. On his way home, the claimant was involved in a serious one-car accident in which he suffered a fractured neck. As a result, the claimant has lost the use of his legs and has only limited function in his upper extremities.

Cioni and the other witnesses at arbitration confirmed the basic series of events that day. However, Cioni testified that he did not recall speaking with the claimant on the evening of April 13, 1988. Cioni recalled that he went to the Town Club around 5 a.m. on April 14, 1988, and had some coffee. He then went to his dealership around 6:30 a.m. to put gas in his van. When he returned to the Town Club, he found the claimant sitting with two of the men who were going with him to Chicago. According to Cioni, the claimant asked him if he was going to Chicago and if he minded if the claimant went along. Pamela Grant, who was working that morning at the Town Club, testified she heard the claimant ask if Cioni was going to Chicago and whether he could go along.

The arbitrator found the claimant’s version of how the trip was initially agreed upon more credible and specifically relying on Ragler Motor Sales v. Industrial Comm’n (1982), 93 Ill. 2d 66, 442 N.E.2d 903, found an employer/employee relationship existed. Regarding earnings, the arbitrator noted the claimant and Cioni had been good friends for a number of years and that Cioni knew the claimant was an ironworker. The arbitrator found Cioni knew the claimant had just been laid off from his job and noted that the claimant had made $18.75 an hour at this job. Based on these facts and the claimant’s 1987 tax return, the arbitrator found the claimant’s average weekly wage was $750.

The Commission found that based on the testimony no payment or promise of payment was ever made, nor was one expected. The Commission concluded that a gratuitous relationship existed, and that the purchase of food and drink was a gratuity and not consideration establishing a contract for hire. The Commission also commented that the arbitrator had erred in finding the claimant was concurrently employed on April 14, 1988. The Commission found, given he was laid off on April 13, 1988, the claimant could not be concurrently employed on April 14, 1988. The Commission reversed the arbitrator’s decision and denied all compensation for claims. The circuit court subsequently confirmed.

On appeal, the claimant contends the evidence establishes the existence of an employer/employee relationship. The claimant contends that Cioni’s version of how the claimant came to accompany Cioni to the auction is not credible. The claimant asserts Cioni controlled all aspects of the trip and that the practice of buying all food and drink was established on previous trips. The claimant also argues he provided a valuable service in transporting the vehicle back to Granville. The claimant insists the evidence shows an implied contract for hire was formed.

The Act defines employee as “[e]very person in the service of another under any contract of hire, express or implied, oral or written.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.1(b)(2).) Consistent with the philosophy of the Act, which assumes that a worker is gainfully employed at the time of his injury, it is generally recognized that a true employer/employee relationship does not exist in the absence of the payment or expected payment of consideration in some form by the employer to the employee. (Board of Education v. Industrial Comm’n (1972), 53 Ill. 2d 167, 290 N.E.2d 247.) Although the definition of “employee” contained in the Act is to be broadly construed, there can be no employer/employee relationship and therefore no liability under the Act in the absence of a contract for hire, express or implied. Crepps v. Industrial Comm’n (1949), 402 Ill. 606, 85 N.E.2d 5.

No rigid rule of law governs the determination of whether an employer/employee relationship exists and that determination depends on the facts of the particular case. (Ragler Motor Sales v. Industrial Comm’n (1982), 93 Ill. 2d 66, 442 N.E.2d 903.) No single fact controls and such factors as the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required and work done, and the furnishing of tools, material and equipment must be considered. (Village of Creve Coeur v. Industrial Comm’n (1965), 32 Ill. 2d 430, 206 N.E.2d 706.) The existence of such a relationship is determined by an application of the principles governing the formation of other contracts and must reflect a meeting of the minds expressed by some offer on the part of one to employ or to work with another and an acceptance on the part of the other. Crepps v. Industrial Comm’n (1949), 402 Ill. 606, 85 N.E.2d 5.

When the evidence is conflicting and the facts are subject to diverse interpretations, it is within the province of the Industrial Commission to draw inferences from the evidence, ascertain the credibility of witnesses, evaluate conflicting testimony, and resolve whether the claimant has met his burden of proof. (Ragler Motor Sales v. Industrial Comm’n (1982), 93 Ill. 2d 66, 442 N.E.2d 903.) The findings of the Commission will not be disturbed on appeal unless they are contrary to the manifest weight of the evidence. Hebeler v. Industrial Comm’n (1991), 207 Ill. App. 3d 391, 565 N.E.2d 1035.

In the instant case, the only conflict in the underlying facts is the circumstances surrounding how the claimant came to accompany Cioni to the auction. The claimant insists Cioni invited him to the auction on the previous evening, while Cioni testified the claimant was present at the Town Club on April 14, 1988, and it was the claimant who asked to come along. The Commission made no specific finding either way on this conflict. However, viewing the entire series of events on the day of the incident, and Cioni’s apparent practice of taking a number of these trips each year accompanied by his friends and potential customers, we find the Commission could find there was no employer/employee relationship.

The claimant did not expect any payment; however, he knew from past experience that Cioni would pick up the food and drink tab for the day. There was no guarantee Cioni would purchase vehicles necessitating the claimant driving one back to Granville. The Commission could easily find the food and drink were simply gratuitous. There was no meeting of minds on an implied contract for hire.

The claimant’s reliance on Ragler Motor Sales v. Industrial Comm’n (1982), 93 Ill. 2d 66, 442 N.E.2d 903, is misplaced. In Rangier, among other facts, the claimant was paid $10 to accompany the employer to the auctions and give mechanical advice on potential purchases. In the instant case, the claimant went to the auction, looked at cars and watched the auction. He and Cioni had little if any contact during the auction. He was never asked his opinion on anything. It is clear he and the other gentlemen went along for a good time. In fact, after the others left the group the claimant and Cioni continued drinking together for a considerable period of time.

In sum, the Commission’s finding that no employer/employee relationship existed is not against the manifest weight of the evidence.

In that we agree with the Commission’s finding of no employer/ employee relationship, we need not address the other issues raised by the claimant.

Therefore, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI, WOODWARD and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    GRANVILLE NATIONAL BANK, Plaintiff-Appellant, v. JEANNE ALLEMAN, Defendant-Appellee.
    Third District
    No. 3-91-0824
    Opinion filed December 15, 1992.

      Charles W. Helmig III, of Helmig & Helmig, of Granville, for appellant.
    Gary Edward Orr, of Reardon, Orr & Dvorak, Ltd., of East Peoria, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, the Granville National Bank (Bank), sued defendant, Jeanne Alleman, on defendant’s guarantees on a note defaulted by her husband, Darrell Alleman. The trial court granted defendant’s motion for judgment on the pleadings. (Ill. Rev. Stat. 1991, ch. 110, par. 2—615(e).) Plaintiff’s motion to vacate the trial court’s order was denied. Plaintiff appeals, contending that judgment on the pleadings was improper because the allegations of plaintiff’s complaint establish that defendant’s guarantees applied to the note. We reverse and remand.

Plaintiff’s complaint alleged that it was the owner of a promissory note in the amount of $297,000 executed and delivered by Darrell Alleman on May 3, 1984. The complaint alleged that, after credits for various payments, $180,147.15 remained outstanding on the note as of July 8, 1987. The complaint further alleged that Darrell Alleman had filed a petition in bankruptcy and that $112,982.15 remained due after his property was converted to cash and this money was paid on the note. The complaint further alleged that defendant, Jeanne Alleman, had given her written guaranty of loans made by the Bank to Darrell Alleman. The complaint sought judgment against defendant in the sum of $112,982.15, plus costs and interest.

Attached to the complaint were copies of two guarantees and the May 3, 1984, note. The guarantees, dated February 21, 1970, and April 20, 1971, stated:

“GUARANTY
WHEREAS, some or all of the real estate owned by the undersigned is held as joint tenants; and
WHEREAS, it is advisable and necessary to borrow funds from time to time, and it may be inconvenient for both parties to sign at the time funds are borrowed;
NOW, THEREFORE, each of the undersigned hereby guarantees payment of all notes given to THE GRANVILLE NATIONAL BANK, Granville, Ill. 61326 signed by the other, and this Guaranty specifically coves all such obligations whether given heretofore or hereafter.
This Guaranty shall remain in full force and effect until revoked in writing by either party, and when revoked, this Guaranty shall remain in effect for any notes or obligations existing at that time.
* * *
1st Darrell Alleman
Isl Mrs. Jeanne L. Alleman”

The note, in relevant part, stated:

“I, five (5) years after date, for value received, promise to pay to the order of myself, the principal sum of Two Hundred Ninety Seven Thousand and no/100 ($297,000.00) Dollars, with interest thereon at the rate of twelve and .75 (12.75%) per cent per annum, after date, until paid, and payable as follows:
Interest only shall be due and payable on May 3, 1985. After May 3, 1985, the principal sum of $15,000.00 on or before the 3rd day of May, 1986, with interest at the rate of twelve and .75 (12.75%) per cent per annum, both principal and interest payable annually on the 3th [sic] day of May of each succeeding year, until four (4) such payments have been made and paid, the final payment being due and payable on May 3, 1989, and twelve and .75 (12.75%) per cent per annum interest after maturity until fully paid.
Both principal and interest are payable in legal tender of The United States of America at The Granville National Bank, Granville, Illinois, or such other place as the holder hereof may, from time to time, in writing appoint.
* * *
In consideration of the premises and further to secure payment of this note, the undersigned upon non-payment of this note when due, hereby irrevocably make any attorney at law their attorney for them and in their name or names, to appear in any Court of Record, to waive service of process, and in term time or vacation confess a judgment on this note in favor of the payee or holder hereof, against the undersigned, for such sum as shall at such time appear to be unpaid hereon, together with costs, reasonable attorney fees and collection expenses; and consent to the immediate issuing of execution upon such judgment when confessed. Presentment, demand, protest, notice of dishonor and extension of time without notice are hereby waived. If the holder deems itself insecure then at its option it may declare this note to be immediately due.
* * *
This note is given for actual loan of money and is secured by a Trust Deed bearing the date of the 3rd day of May, 1984, to The Granville National Bank, a national banking association with trust powers, Granville, Illinois, Trustee, conveying real estate in Putnam County, Illinois.
Isl Darrell F. Alleman (SEAL)”

Defendant filed a motion for judgment on the pleadings, contending, inter alia, that the guarantees did not cover the note. Specifically, defendant contended that, because the note was a promise paid to the order of Darrell Alleman, it was a promissory note to Darrell Alleman, not to the Bank. Defendant’s motion asserted that when the promissory note was signed by Darrell Alleman, it created no legal liability to anyone to which a guarantee could apply. The motion further asserted that the guarantees did not contain the breadth of language sufficient to cover endorsement liability as that contained in Darrell Alleman’s note.

The trial court granted defendant’s motion, ruling that any liability of defendant “must derive from the endorsement applied by Darrell F. Alleman of the subject promissory note” and that the scope of the guarantees was not blanket in nature but rather was limited to promissory notes executed by Darrell Alleman as maker, covering property held in joint ownership. The court further ruled that the guarantees were insufficiently worded to encompass liabilities set forth in plaintiff’s complaint.

The Bank filed a motion to vacate, alleging the guarantees covered all notes given by Darrell Alleman to the Bank, including bearer notes at the time of negotiation. The Bank asserted that the preamble to the guarantees regarding the real estate was for the Bank’s protection and not a limiting condition to the guarantors’ liability. The Bank also attached as evidence of the Allemans’ continuous debt to the Bank copies of 113 promissory notes endorsed by Darrell Alleman and given to the Bank since April 20, 1971.

Defendant filed a response to the Bank’s motion to vacate, alleging, inter alia, that each of the 113 additional promissory notes was different from the note at issue because they were each made payable to the Bank, rather than payable to bearer. Defendant argued that these 113 notes showed that the parties’ past practices were that the guarantees were to apply to these additional notes, and not to the May 3, 1984, note. Defendant further contended that any action on the guarantees was precluded by the 10-year statute of limitations in section 13—206 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13-206).

The trial court denied the Bank’s motion to vacate. This appeal followed.

“A motion for judgment on the pleadings tests the sufficiency of the pleadings by determining whether the plaintiff is entitled to the relief sought by his complaint or, alternatively, whether defendant by his answer has set up a defense which would entitle him to a hearing on the merits.” (Hartlett v. Dahm (1981), 94 Ill. App. 3d 1, 3, citing Pied Piper Yacht Charters Corp. v. Corbel (1974), 17 Ill. App. 3d 281, 283; Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill. App. 3d 115, 120-21.) The motion must be denied if there is any material issue of fact. Hartlett, 94 Ill. App. 3d at 3.

Here, the complaint alleges that Darrell Alleman executed and delivered his note on May 3, 1984. Inferring all facts favorable to the Bank, the court, for purposes of the motion, could only conclude that Darrell Alleman made the note on May 3, 1984, endorsed the note on that date, and negotiated the note to the Bank on that date by delivery. The complaint further set forth the guarantees signed by Darrell Alleman and defendant.

The trial court incorrectly construed the guarantees as applying only to jointly held real estate owned by Darrell Alleman and defendant. The initial paragraph of the guarantees states that “WHEREAS, some or all of the real estate owned by the undersigned is held by joint tenants.” The note made by Darrell Alleman contained the provision that the note was secured by a trust deed. The note was signed by Darrell Alleman alone, and thus it is inferred that Darrell Alleman was the sole owner of the real estate used to secure the note. However, the guarantees do not state that the guarantees apply only to real estate held in joint tenancy but rather that “some or all” of the real estate of both parties was held in joint tenancy. We do not interpret the guarantees as applying only to notes secured by property held in joint tenancy.

We also disagree with the trial court’s ruling that the guarantees were “insufficiently broad” to cover the liability as set forth in the complaint. The guarantees provided that “each of the undersigned hereby guarantees payment of all notes given to the [Bank] signed by the other.” (Emphasis added.) The note was negotiated on May 3, 1984, to the Bank by Darrell Alleman as set forth in the plaintiff’s complaint. The guarantees apply because the note was signed by Darrell Alleman as maker and signed by him as payee and then negotiated and delivered to the Bank. The note by negotiation and delivery to the Bank was given, i.e., transferred to the Bank, within the meaning of the guarantees. As such, the note is within the scope of the guarantees.

Nevertheless, defendant contends that the parties’ past practices prove that the note was not intended to be covered by the guarantees. This contention was raised in the defendant’s response to plaintiff’s motion to vacate, concerning the 113 notes attached to plaintiff’s motion to vacate. Defendant stresses that Darrell Alleman executed 113 promissory notes from February 1970 through 1984 and that each of these notes was made payable to the Bank rather than to bearer or maker, as is the case with the note at issue. According to defendant, these past practices establish that the guarantees were to apply to notes in the form of these 113 promissory notes made payable to the Bank, not to the single note sued upon which is made payable to Darrell Alleman.

We disagree. The guarantees do not restrict coverage to notes made solely payable to or in favor of the Bank. The guarantees merely state that each of the guarantors assumes responsibility for notes signed by either spouse, which are given to the Bank. By their clear terms, the guarantees apply to the note in question.

Defendant contends that the scope of the language used in Fannin State Bank v. Grossman (1961), 30 Ill. App. 2d 484, is required before the guarantees in this case would cover the note in question. The guarantee in Fannin stated that defendant:

“unconditionally guarantees prompt payment when due and at all times thereafter of any and all indebtedness and liability of every kind, nature and character and all renewals, extensions and modifications thereof now existing or which may hereafter exist from the Borrower to said Bank, howsoever and whensoever created, or arising or evidenced, or acquired.” (Emphasis omitted.) (Fannin, 30 Ill. App. 2d at 487.)

Such language was held sufficient to constitute a guarantee of liability by the principal by his endorsement of the promissory note.

We do not agree that the language used in Fannin is necessary here for liability of the defendant to arise. We find that the language of the guarantees sufficiently encompassed the note in question.

Alternatively, defendant contends that plaintiff’s cause of action is barred by the statute of limitations. The statute provides:

“Except as provided in Section 2—725 of the ‘Uniform Commercial Code’ [Ill. Rev. Stat. 1989, ch. 26, par. 2—725], actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within 10 years next after the cause of action accrued; but if any payment or new promise to pay has been made, in writing, on any bond, note, bill, lease, contract, or other written evidence of indebtedness, within or after the period of 10 years, then an action may be commenced thereon at any time within 10 years after the time of such payment or promise to pay.” (Ill. Rev. Stat. 1989, ch. 110, par. 13—206.)

Defendant relies on Boatmen’s Bank v. Dowell (1991), 208 Ill. App. 3d 994. In Boatmen’s, a second guarantee executed more than 10 years after an initial guarantee was held to have revived the initial guarantee, thereby precluding application of the statute of limitations. Defendant contends that since there were no guarantees entered after the final guarantee in 1971, actions based on that guarantee after 1981 are precluded by the statute of limitations.

We disagree. Where a guarantee is unequivocal in its terms, it must be interpreted according to the language used. (Bank of Naperville v. Holz (1980), 86 Ill. App. 3d 533, 537.) “It is not what one of the parties may have intended that is controlling, but what is shown by the contract to have been the intention of both parties.” (Bank of Naperville, 86 Ill. App. 3d at 537.) Here, the final paragraph of the guarantees states specifically that they shall remain in full force and effect until revoked in writing by either party and shall remain in effect for any notes or obligations existing at that time. Such language was not present in the guarantees in Boatmen’s. Moreover, such language establishes clearly that the guarantees were to continue and extend to all future notes until the guarantees were revoked in writing by either party. Being continuous guarantees, the guarantees extended to the May 3, 1984, note in issue here. Because plaintiff’s suit was filed on July 9, 1987, the suit is not barred by the 10-year statute of limitations.

For the foregoing reasons, the order of the circuit court of Putnam County granting defendant’s motion for judgment on the pleadings is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS, P.J., and BOWMAN, J., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARTANIAN D. HOSKINS, Defendant-Appellant.
    Third District
    No. 3—92—0118
    Opinion filed December 9, 1992.

      Sherri Carr, of Kankakee, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island, and Basil G. Greanias, of Decatur (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Dartanian D. Hoskins, pled guilty to two counts of unlawful possession of a controlled substance with intent to deliver. One count was based on possession of at least 15 to less than 100 grams of a substance containing cocaine. The other count was based on possession of at least 100 to less than 400 grams of a substance containing cocaine. (Ill. Rev. Stat. 1991, ch. 56½, pars. 1401(a)(2)(A), (a)(2)(B).) Hoskins was subsequently sentenced to 10- and 15-year concurrent prison terms. Thereafter, he filed a motion to withdraw his guilty pleas for the purpose of appealing his sentences. The trial court denied the motion. Hoskins appeals.

Hoskins first asserts that because his counsel was ineffective, his guilty pleas were not voluntary. The only facts necessary for our determination of this issue are as follows. Subsequent to the imposition of sentence, Hoskins filed a pleading titled “Motion to Withdraw Plea of Guilty for Purposes of Appealing Sentence.” However, his defense counsel did not file the requisite certificate required by Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)).

Supreme Court Rule 604(d) provides that a defendant’s attorney shall file with the trial court a certificate stating the attorney has consulted with the defendant to ascertain his contentions of error in the entry of the guilty plea, he has examined the trial court file and report of proceedings of the guilty plea, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings. (134 Ill. 2d R. 604(d).) Rule 604(d) must be strictly followed. The failure to comply with Rule 604(d) results in the dismissal of the action. People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218.

In the instant appeal, Hoskins’ attorney failed to comply with Rule 604(d). Accordingly, we cannot address Hoskins’ contentions of error concerning the voluntariness of his guilty pleas. Therefore, we dismiss this portion of his appeal.

Hoskins also argues that the 10- and 15-year sentences imposed by the trial court were excessive. We disagree.

Initially, we note that after Hoskins was sentenced, Rule 604(d) was amended by the Illinois Supreme Court (134 Ill. 2d R. 604(d), amended April 1, 1992, effective August 1, 1992). Amended Rule 604(d) specifically requires a defendant’s attorney to file a certificate which indicates that he has consulted with the defendant concerning his contentions of error in the sentence or the guilty plea hearing. However, at the time Hoskins was sentenced, a certificate was not required to preserve sentencing issues. Instead, a defendant who pled guilty could preserve his sentencing issues by filing a motion to reconsider sentence. (People v. Bullard (1992), 223 Ill. App. 3d 541, 585 N.E.2d 630.) Because we find Hoskins’ motion was essentially a motion to reconsider sentence, we will address his sentencing issues.

Hoskins specifically argues that his sentences were excessive because the trial court did not give adequate weight to mitigating factors such as his rehabilitative potential, his minimal criminal history, and his age. Hoskins also asserts the trial court improperly considered his profiting from the drug sales as a factor in aggravation.

Sentencing is a matter of judicial discretion, and, absent an abuse of that discretion by the trial court, a sentence may not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The defendant’s history, character, and rehabilitative potential, along with the seriousness of the offense, the need to protect society, and the need for deterrence and punishment, must be equally weighed. (People v. Darnell (1981), 94 Ill. App. 3d 830, 419 N.E.2d 384.) When mitigating evidence is before the trial court, it is presumed the court considered the evidence absent some indication, other than the sentence itself, to the contrary. (People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662.) Although age is a factor to be considered when imposing sentence, the youth of the defendant does not overcome other aggravating factors, such as the nature of the crime. (People v. Taylor (1980), 80 Ill. App. 3d 1109, 400 N.E.2d 1007.) When a reviewing court can determine from the record that the weight placed on an improperly considered factor did not lead to a greater sentence, remandment is not required. People v. Bourke (1983), 96 Ill. 2d 327, 449 N.E.2d 1338.

Here, Hoskins was eligible for a 6- to 30-year term of imprisonment for the count based on the lesser amount of cocaine. He was also eligible for a term of imprisonment of between 9 and 40 years for possessing the greater amount. (Ill. Rev. Stat. 1991, ch. 56½, pars. 1401(a)(2)(A), (a)(2)(B).) Therefore, we find that his 10- and 15-year prison sentences were well within the proper statutory range.

Additionally, before imposing sentence, the trial judge noted all of the mitigating factors which Hoskins now claims the judge did not sufficiently consider. However, the judge also stated that Hoskins had been selling substantial quantities of drugs on numerous occasions before he was charged in the instant case. The judge stressed that a prison sentence over the minimum was warranted in order to deter .others from this kind of conduct and to protect the public. The judge also found that this kind of offense causes and threatens to cause serious harm to others. The judge finally noted that Hoskins had to realize the harm that selling drugs causes to others. The judge reiterated most of these considerations at the hearing on Hoskins’ motion to reconsider his sentence.

Based upon our review of the record, we find that the trial judge properly addressed the aggravating and mitigating factors before sentencing Hoskins. We find nothing in the record which leads us to conclude that the mitigating evidence warranted lighter sentences.

Finally, we need not address the question of whether the trial judge improperly considered receipt of compensation as an aggravating factor. The judge’s reference to this factor was brief and made immediately before he imposed the sentences. It is clear from the trial judge’s remarks at the sentencing hearing that this factor did not weigh substantially in his determination of the appropriate sentences. Moreover, we note the trial judge did not even mention this factor at the hearing on the motion to reconsider sentence. Under these circumstances, we cannot say that consideration of this factor led the trial judge to impose a greater sentence. Accordingly, we find the sentences imposed upon Hoskins by the trial court were not an abuse of discretion.

The judgment of the circuit court of Rock Island County is affirmed in part and dismissed in part.

Affirmed in part; dismissed in part.

SLATER and STOUDER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD T. SMITH, Defendant-Appellant.
    Third District
    No. 3—91—0952
    Opinion filed November 18, 1992.
    Rehearing denied January 7, 1993.

      Harry M. Williams, of Peoria (Daniel J. Smith, of counsel), for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and J. Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

At the conclusion of a jury trial, the defendant, Gerald Smith, was found guilty of criminal trespass to real property (Ill. Rev. Stat. 1989, ch. 38, par. 21—3(a)) and sentenced to 20 days in the Peoria County jail. We affirm.

The record shows the defendant has been an active protester against abortion for a number of years. On November 14, 1990, the defendant entered the waiting room of National Health Care Services of Peoria, Inc. (hereinafter National Health). National Health is located in the Pioneer Square Shopping Center in Peoria. First trimester abortions and counseling are performed at the facility. Margaret VanDuyn, the director of National Health, testified that she had told the defendant on a number of occasions that he was not to come on the premises.

On the morning of November 14, 1990, VanDuyn was working at National Health, when an employee informed her that the defendant was in the waiting room. She testified she went immediately to the waiting room and asked the defendant to leave. He was talking to two people who were seated in the waiting room. He did not respond and she again asked him to leave. She then called to her secretary to call the police. VanDuyn retrieved a video camera in an attempt to record the incident. Believing that the video camera was not working properly, she lowered the camera to her side and went to the phone to notify the police that the defendant was in the waiting room. She testified that while she was on the phone the defendant left the premises.

A National Health employee, Marylynn Houlihan, testified she saw the defendant in the waiting room on November 14, 1990. At the time, she was in the receptionist’s office adjacent to the waiting room. From that vantage point she could hear little of what was said in the waiting room. She did see the defendant squatting near two people. Houlihan testified VanDuyn told the defendant to leave a number of times and that she observed him slowly rise and move toward the door. Houlihan also testified to witnessing on other occasions VanDuyn telling the defendant to stay off the premises.

Paul Still, a third witness, testified he was present in the waiting room when the defendant entered. He witnessed the confrontation between VanDuyn and the defendant. He testified VanDuyn told the defendant to leave three times and that the defendant did so after making statements to those present.

The record also shows the property was marked with no trespassing/“patients and invitees only” signs. The jury found the defendant guilty of criminal trespass.

On appeal, the defendant alleges the trial court erred in quashing a pretrial subpoena duces tecum and in limiting the scope of cross-examination of Paul Still, and that as a result he was denied a fair trial and due process. The defendant’s contention is based on his assertion that the State was allowed to elicit evidence of another uncharged crime through the testimony of the witnesses. He argues he therefore had a sixth amendment right to “compulsory process for obtaining witnesses in his favor” to refute the factual allegations of the uncharged crime.

We note the record reflects that a civil trespass action was also brought by National Health against the defendant. This action was apparently making its way through the circuit court at about the same time as this criminal proceeding. It is also apparent that counsel for the defendant either had some difficulty distinguishing these separate actions, or was attempting to use the civil and criminal proceedings as a tool for discovery in both actions. A number of motions and memoranda filed in the instant case had originally been filed and arose out of the civil action.

In any event, in early June of 1991, the defendant served a subpoena duces tecum on National Health. The People were not made aware of this action until some time later when the State’s Attorney was notified by National Health. National Health filed a motion to quash the subpoena on June 14, 1991. A copy of the subpoena was filed in the instant case on July 25, 1991. The subpoena requested in pertinent part, “All documents showing the names, addresses and all phone numbers of all persons present on the premises of National Health Care Services of Peoria during the morning of November 14, 1990.”

Following the submission of extensive memoranda and lengthy oral argument the trial court granted National Health’s motion to quash. The court found the request was too general and that the defendant had failed to demonstrate the relevancy and probative value of the requested material in light of the alleged offense. The court also found that the defendant had failed to show he exhausted reasonable alternatives in procuring the sought after information.

The record reflects the defendant was continuously attempting to elicit information on all persons present at National Health on the morning of November 14, 1990, through various motions and objections. On cross-examination of Paul Still, the defendant asked Still who was with him in the waiting room. The trial court sustained the State’s Attorney’s objection finding the information sought to be irrelevant and immaterial.

Initially, we note discovery in misdemeanor cases is relatively limited. The defendant in the instant case was charged with a Class C misdemeanor. Supreme Court Rules 411 through 415 govern discovery in criminal cases. (See 134 Ill. 2d Rules 411 through 415.) Rule 411 states in pertinent part, “These rules shall be applied in all criminal cases wherein the accused is charged with an offense for which, upon conviction, he might be imprisoned in the penitentiary.” (134 Ill. 2d R. 411.) (The subpoena in the instant case alleged it was issued pursuant to the supreme court rules, with no citation to a specific rule.) The supreme court has stated that at the time the rules were adopted, the court believed discovery in “lesser offenses” was adequately provided for by case law and statute. (People v. Schmidt (1974), 56 Ill. 2d 572, 309 N.E.2d 557.) We need not address the propriety of this subpoena under these circumstances in that we agree with the trial court’s determination that the defendant failed to satisfy the criteria for issuance of a pretrial subpoena duces tecum.

Generally, there is no constitutional right to pretrial discovery. (People v. Williams (1981), 87 Ill. 2d 161, 429 N.E.2d 487.) In United States v. Nixon (1974), 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090, the Supreme Court of the United States set out a four-part test for determining whether the issuance of pretrial subpoenas is required by the sixth amendment. This test has been adopted by Illinois courts. Under the test, a party must show that (1) the material sought is evidentiary and relevant; (2) the material sought is not otherwise reasonably procurable by the exercise of due diligence in advance of trial; (3) the moving party cannot properly prepare for trial without such production and the failure to obtain the materials sought may tend to unreasonably delay the trial; and (4) the application is made in good faith and is not intended as a general fishing expedition. People v. West (1981), 102 Ill. App. 3d 50, 429 N.E.2d 599.

The defendant was charged with criminal trespass to real property in that he entered onto the premises of National Health after being told not to come on the property. The information sought in the subpoena was immaterial and irrelevant to the crime charged. We find the request was too general in scope. The subpoena sought the identities of all those present on the premises on the morning of November 14, 1990. The subpoena was not specific as to time period and appears to have been an attempt to obtain patients’ medical records. In addition, the defendant presented no evidence that he had exhausted other reasonable means to obtain evidence in his defense. The State had given the defendant a list of a number of persons it might call as witnesses. In sum, the trial court correctly found that the defendant had failed to satisfy the four-part test for issuance of the subpoena duces tecum.

The defendant contends the additional witnesses were necessary to impeach the testimony of the witnesses called by the State. This assertion is related to the defendant’s contention that the witnesses presented by the State were allowed to testify to a crime with which the defendant was not charged. In particular, the defendant argues the trial court erred in limiting the cross-examination of Paul Still.

The defendant maintains section 21—3(a) sets forth two separate crimes of trespass to real property. Section 21—3(a) states, “Whoever enters upon the land or a building, other than a residence, or any part thereof of another, after receiving, prior to such entry, notice from the owner or occupant that such entry is forbidden, or remains upon the land or in a building, other than a residence, of another after receiving notice from the owner or occupant to depart, commits a Class C misdemeanor.” Ill. Rev. Stat. 1989, ch. 38, par. 21—3(a).

The defendant argues the information only charged him with entering the premises after having notice that such entry was forbidden and that by presenting evidence that the defendant refused to leave after being told to leave the State was allowed to present evidence of an uncharged second crime. Therefore, to rebut the testimony of the witnesses regarding this uncharged crime, the defendant asserts he had the right to know the identity of all persons present on the morning of November 14, 1990.

We find no merit to the defendant’s claims that the State was allowed to present evidence of a “second crime,” which prejudiced the jury and denied him a fair trial. The testimony of the witnesses, at most, can be viewed as surplus narrative of events surrounding the defendant’s entry onto the premises. It was not presented as evidence of an additional crime. As stated below, the jury was properly instructed on the elements of the offense. We find the defendant was not prejudiced by this testimony.

Therefore, the trial court correctly limited the scope of the defendant’s cross-examination of Paul Still. This decision was within the discretion of the trial court (People v. Franklin (1990), 135 Ill. 2d 78, 552 N.E.2d 743), and it did not abuse its discretion in disallowing the defendant’s attempt to obtain information which the trial court had on a number of earlier occasions found to be irrelevant and immaterial.

The defendant contends the trial court erroneously limited evidence, argument and instructions on a defense of invitation.

Initially, we note the defendant presented no direct evidence that he was invited by anyone onto the premises of National Health on November 14, 1990. In particular, there was no evidence of an invitation prior to his entry onto the premises.

The defendant argues in his brief that the State failed to present evidence that the defendant was not invited in by the couple he was talking to in the waiting room. In addition, the defendant contends the trial court erroneously limited his cross-examination of VanDuyn, which he argues would show a tacit invitation by the couple.

The defendant also argues the trial court erroneously denied his proffered instructions on the invitation defense, and that the trial court and the State’s Attorney improperly impaired his closing argument.

As the State correctly points out, lack of invitation was not part of the State’s burden. It was a defense. As such the State did not have the burden of disproving the defense until the defendant presented sufficient evidence to raise the defense. (See generally People v. Daniel (1989), 191 Ill. App. 3d 837, 548 N.E.2d 354; People v. Ortiz (1978), 65 Ill. App. 3d 525, 382 N.E.2d 303.) The defendant presented no evidence of an invitation. There was nothing for the State to disprove.

The defendant argues he could have presented evidence of an invitation through the cross-examination testimony of Margaret VanDuyn. During cross-examination, defense counsel asked VanDuyn, “And after Mr. Smith left, Ms. VanDuyn the lady that he had talked to indicated that she did not want you to cause him any trouble?” The State’s Attorney objected, and the court sustained finding the question was beyond the scope of direct. Following argument the court also ruled the evidence sought to be elicited from VanDuyn was not relevant, probative or competent in the instant proceedings.

Evidentiary rulings, including the scope of cross-examination, lie within the discretion of the trial court, and absent an abuse of discretion resulting in manifest prejudice to the defendant, these determinations will not be reversed on appeal. People v. Boclair (1989), 129 Ill. 2d 458, 544 N.E.2d 715.

In the instant case, the trial court correctly ruled the question was beyond the scope of VanDuyn’s direct testimony. There was no testimony on direct concerning conversations or events occurring after the defendant left the premises. In addition, statements made after the defendant’s exit from the building were irrelevant. Therefore, the trial court did not erroneously limit the defendant’s presentation regarding his alleged invitation defense. Again, the defendant presented no evidence direct or otherwise that he was invited into the National Health facility by the persons he spoke to in the waiting room or anyone else.

Therefore, given there was no evidence of an invitation, the trial court correctly denied the defendant’s proffered instructions on the defense of invitation and admonished the jury to disregard misstatements of the evidence by counsel. We note most of the interruptions in defense counsel’s closing argument were precipitated by his continuing reference to matters which the trial court had ruled improper. We also find no merit to the defendant’s contention that the jury could reasonably infer that the people he was speaking to in the waiting room had invited him onto the premises.

Related to the defendant’s invitation theory, the defendant argues the trial court erred in preventing him from commenting on the State’s failure to present other witnesses. He argues this deprived defense counsel of his right to argue the State had failed to prove what the “missing witnesses” might have said about inviting the defendant into the facility. The defendant also renews his argument that the State failed to call all the persons in the waiting room, some of whom he argues could have provided evidence of the defendant’s invitation theory.

Generally, the State is not required to produce every witness to a crime, nor does failure to do so ordinarily create a presumption that the testimony of that witness would be unfavorable to the State. People v. Jones (1964), 30 Ill. 2d 186, 195 N.E.2d 698.

We find the cases relied on by the defendant to be distinguishable. There was no allegation the State was preventing the testimony of witnesses known to and available to the State. The defendant was given the list of potential witnesses. Given the defendant was charged with criminal trespass to real property and that defense counsel readily admitted at trial that the defendant entered the waiting room of National Health (the defendant did not testify), no person in that waiting room possessed any unique knowledge crucial to a disputed issue of fact. Again, the defendant presented no evidence of an invitation and no evidence from which an invitation could logically be inferred. Therefore, under the circumstances of this case, the trial court correctly denied defendant’s right to comment on the State not calling all the occurrence witnesses.

The defendant next argues the trial court erred in refusing to give two non-Illinois Pattern Jury Instructions. The defendant maintains the jury was not properly instructed on the knowledge element.

Whenever Illinois Pattern Jury Instructions (IPI) contain an instruction applicable in a criminal case, giving due consideration to the facts and the governing law, and the court determines that the jury should be instructed on the subject, the IPI instruction should be used, unless the court determines that it does not accurately state the law. (134 Ill. 2d R. 451.) The decision on whether to give or refuse a non-IPI instruction rests within the trial court’s discretion. People v. Fuller (1986), 141 Ill. App. 3d 737, 490 N.E.2d 977.

In the instant case, we find the jury was properly given two instructions (Illinois Pattern Jury Instructions, Criminal, Nos. 16.05, 16.06 (2d ed. 1981) (respectively, Definition of Criminal Trespass to Land and Issues in Criminal Trespass to Land — Prior Warning)) which adequately set forth the elements of trespass to real property. In addition, the jury was also given the appropriate IPI definition of “knowledge.” (Illinois Pattern Jury Instructions, Criminal, No. 5.01B (3d ed. 1992).) Hence, we do not believe the trial court erred in refusing to give the non-IPI instructions tendered by the defendant.

The defendant contends the trial court erred when it precluded the presentation and instructions relating to the defense of necessity.

In People v. Smith (1987), 161 Ill. App. 3d 213, 514 N.E.2d 211, we held the necessity defense was not a permissible defense to criminal trespass in the abortion clinic setting. However, the defendant argues that subsequent United States Supreme Court decisions have “reinstated Illinois policy to prohibit abortions except when necessary to preserve the life of the mother.” Therefore, he contends the necessity defense is now available.

We find the cases relied on by the defendant (Webster v. Reproductive Health Services (1989), 492 U.S. 490, 106 L. Ed. 2d 410, 109 S. Ct. 3040; Planned Parenthood v. Casey (1992), 505 U.S._, 120 L. Ed. 2d 674, 112 S. Ct. 2791) have not operated to change the law in Illinois in the manner asserted by the defendant. Therefore, based on this court’s ruling in Smith, the trial court correctly determined the defense was not available in this case.

For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

McCUSKEY and HAASE, JJ., concur.


author: JUSTICE JOHNSON

text:
    CATHERINE C. MARTIN, as Special Adm’r of the Estate of David Martin, Deceased, Plaintiff-Appellee, v. ILLINOIS CENTRAL GULF RAILROAD, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—0998
    Opinion filed December 31, 1991.
    Rehearing denied December 10, 1992.

      Williams & Montgomery, Ltd., of Chicago (James K. Horstman, Barry L. Kroll, Mark A. Miller, and Lloyd E. Williams, Jr., of counsel), for appellant.
    Ialongo & Meyer, of Chicago (James G. Meyer, A. Mark Ialongo, and Fred Lambruschi, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

This appeal arises from a railroad crossing accident that occurred on December 8, 1981, when a vehicle driven by David Martin collided with a train in Lemont, Illinois. Plaintiff, Catherine Martin, as special administrator of the estate of David Martin, deceased, brought suit against defendant, Illinois Central Gulf Railroad (the Railroad). The circuit court of Cook County entered judgment on jury verdicts in favor of plaintiff and against defendant as to count I (negligence) and count II (willful and wanton misconduct). Defendant’s post-trial motion for judgment notwithstanding the verdicts was denied, and defendant filed a timely notice of appeal.

On appeal, defendant contends that the trial court erred when it (1) denied its motions for directed verdicts on count I (negligence) and count II (willful and wanton misconduct); (2) ruled that Martin’s negligence would not be compared with its willful and wanton misconduct; (3) admitted evidence of the Illinois Commerce Commission proceedings concerning the suggested upgrading of the Industrial Street crossing; (4) denied statistical evidence regarding statewide railroad crossings; (5) limited cross-examination of plaintiff’s expert witness; and (6) restricted its evidence on damages.

We affirm in part and vacate in part.

On December 8, 1981, David Martin was killed when his vehicle collided with a train owned and operated by the Railroad at Industrial Street in Lemont, Illinois. The Railroad runs through Lemont, in an east-west direction, and Industrial Street crosses the tracks in a north-south direction. New Avenue, a main street in Lemont, runs immediately south and parallel to the railroad tracks. Industrial Street, which intersects New Avenue and crosses the tracks, provides access to several small industries and at least one residence on the north side of the tracks.

On the day of the accident, Martin was driving his vehicle westbound on New Avenue while the train was traveling on the tracks in the same direction behind Martin. Martin turned right onto Industrial Street and attempted to cross the railroad tracks when his vehicle was struck by the train. Both the train and Martin’s vehicle were traveling within the applicable speed limits. The train was 90 to 135 feet from the Industrial Street crossing when Edwin Parker, the engineer, realized that Martin’s vehicle would not clear the tracks. Parker testified that he engaged the train’s emergency stop about two seconds before impact, but could not stop the train in time to avoid a collision.

The only evidence to describe Martin’s actions prior to the collision was the testimony of James Miller, the conductor of the train. Miller testified that immediately before the accident he saw Martin looking to his left, away from the train as he drove over the tracks. The weather was bright and sunny and visibility was clear for about one-half mile down the railroad track. Martin was familiar with the Industrial Street crossing. He travelled over the crossing several times a day.

The Industrial Street crossing was equipped with an autoflag device to warn drivers and pedestrians of approaching trains. The autoflag activates when an approaching train reaches a switch point about three-quarters of a mile from the crossing. The autoflag consists of flashing lights, two sets of ringing bells, and a moving pendulum. At the time of the accident, the bells, lights, and swinging pendulum were operating properly.

Plaintiff filed a negligence action against the Railroad, alleging that it failed to adequately maintain the railroad crossing in a safe condition. Specifically, plaintiff alleged that defendant failed to equip the crossing with protective gates and failed to give audible warning of approaching trains. After discovery had commenced, plaintiff filed an amended complaint, charging that defendant was guilty of willful and wanton misconduct by maintaining the railroad crossing in a dangerous condition. Specifically, plaintiff alleged that defendant failed to inventory the crossing as a public crossing and failed to provide city officials with a cost estimate for the installation of automated flashing light signals and gates for the Industrial Street crossing.

Plaintiff’s expert witness, Harold Michael of Purdue University, testified that in his opinion, the wigwag signal at Industrial Street was an ineffective device to warn motorists of approaching trains. He testified that the wigwag system was difficult for motorists to see from New Avenue and only after a motorist turned onto Industrial Street was the wigwag apparent. He further stated that after a motorist turned onto Industrial Street (60 feet from the track) it is too late for the signal to be very effective. Michael testified that the fact that the Railroad had a double main track was sufficient to warrant installation of gates and flashing lights. He also testified that installing gates and lights would have corrected the safety problems at the crossing.

At trial, plaintiff asserted that defendant incorrectly inventoried the Industrial Street crossing as a private crossing six years before the accident, thus removing it from the Railroad’s jurisdiction. Bernard Morris, chief railroad engineer for the Illinois Commerce Commission (ICC), testified that there were rules and guidelines as to what constitutes private and public crossings and that the Railroad had the opportunity to designate the crossing as public when it did its 1974 inventory. Morris further testified that, after the 1974 inventory, the ICC had authority to change the designation of a crossing from private to public, and that both the local highway authority and the railroad company had the right under ICC rules to request a change in crossing designation. Defendant stated that the only way the crossing could have been brought within the jurisdiction of the ICC was for “someone” to petition the ICC to recognize it as a public crossing. Defendant contends that the petitioning process had not been initiated prior to the date of Martin’s accident and that it could do nothing with respect to upgrading the crossing. Plaintiff’s evidence established that had the Industrial Street crossing been designated a public crossing it would have met the ICC criteria for installation of gates and flashing lights. Morris stated that in his 25 years with the ICC he had never seen a wigwag signal installed at a public crossing.

The trial court, over objection of defendant, permitted plaintiff to introduce evidence that city officials and a representative from the ICC had requested the Railroad to upgrade the Industrial Street crossing in January 1981. John Bracken, then mayor of Lemont, testified that a meeting was held to discuss complaints about the Spruce Street crossing. He further stated that the participants also discussed and viewed the Industrial Street crossing and proposed that the signals at the crossing be upgraded.

On December 12, 1989, the jury returned verdicts for plaintiff on the negligence count for $1,710,000 and the willful and wanton misconduct count for the same amount. On the negligence count, the jury found that Martin’s negligence contributed to 44% of the damage and thereby reduced the verdict to $957,600. On the second count, the jury found that Martin’s willful and wanton misconduct contributed to 35% of the damage and reduced the verdict to $1,111,500. Judgment was entered on the verdicts and defendant appealed.

First, defendant argues that the trial court erred in refusing to grant its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial on both the negligence and willful and wanton misconduct counts. Defendant contends that the evidence on both counts was insufficient to warrant submission of the case to a jury.

“A motion for judgment notwithstanding the verdict should be granted when all the evidence, viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict could ever stand.” (Downing v. United Auto Racing Association (1991), 211 Ill. App. 3d 877, 883-84, citing Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 503.) A motion for a new trial should not be granted unless the jury’s verdict is against the manifest weight of the evidence. (Downing, 211 Ill. App. 3d at 884.) “A verdict is not against the manifest weight of the evidence unless it is palpably erroneous and wholly unwarranted.” Hunter v. Chicago & North Western Transportation Co. (1990), 200 Ill. App. 3d 458, 465.

Defendant maintains that under the holding in Robertson v. New York Central R.R. Co. (1944), 388 Ill. 580, when a train and a person in a motor vehicle approach a railroad crossing simultaneously, it is the duty of the motorist to stop and not attempt to pass in front of the train. It is not the duty of the railroad to stop its train. Defendant further asserts that under Illinois law, it is not required to anticipate and guard against the possibility that Martin would disregard its warning; rather, it had a right to assume Martin would exercise due care for his own safety. (Sheahan v. Northeast Illinois Regional Commuter R.R. Corp. (1991), 212 Ill. App. 3d 732, 737-38.) Defendant further contends that the Industrial Street crossing was equipped to give adequate warning of approaching trains, and it was Martin’s negligence that caused the collision. Plaintiff contends that defendant failed to maintain the crossing in a safe condition and that its failure to take reasonable steps to avoid a collision at the crossing was the proximate cause of Martin’s death.

“A railroad has a common [law] duty to provide adequate warning devices at its crossings.” (Bassett v. Burlington Northern R.R. Co. (1985), 131 Ill. App. 3d 807, 811.) “[T]he fact that the Illinois Commerce Commission has not ordered a certain warning or signaling device at a crossing does not thereby relieve a railroad of negligence in not providing such a device.” (Hunter v. Chicago & North Western Transportation Co. (1990), 200 Ill. App. 3d 458, 466.) “[T]he amount of protection required at a crossing is strictly a jury question to be determined from the facts and circumstances of each case.” (Bassett, 131 Ill. App. 3d at 813.) Among the factors to be considered are physical obstructions to view, population and traffic in the area, and “the effect which confusion, incident to railroad or other business in the area, would have on the sight or hearing of ordinary signals.” Hunter, 200 Ill. App. 3d at 466.

To establish that a defendant is negligent, a jury must find that defendant failed “ ‘to do something which a reasonably careful person would do, or [did] something which a reasonably careful person would not do under circumstances similar to those shown by the evidence.’ ” (Burke v. 12 Rothschild’s Liquor Mart, Inc. (1991), 209 Ill. App. 3d 192, 205, quoting Haymes v. Catholic Bishop (1968), 41 Ill. 2d 336, 339.) A party is guilty of willful and wanton misconduct when his actions demonstrate “ ‘an utter indifference to or conscious disregard for the welfare of the plaintiff.’ ” (Burke, 209 Ill. App. 3d at 205, quoting Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, 518; see also Illinois Pattern Jury Instructions, Civil, No. 14.01 (3d ed. 1991).) In order to find that a defendant is guilty of willful and wanton misconduct, it must be shown that a defendant had “actual or constructive knowledge that his conduct posed a high probability of serious physical harm to others.” (Downing v. United Auto Racing Association (1991), 211 Ill. App. 3d 877, 884.) The evidence must disclose that the defendant was not merely careless, but reckless, in his disregard of the danger created by the circumstances. Downing, 211 Ill. App. 3d at 884.

There is ample evidence in the record upon which a jury could find that defendant failed to act in a reasonably careful manner in providing adequate protection at the crossing. The record reveals that motorists traveling westbound on New Avenue encountered visibility problems with the wigwag signal prior to turning onto Industrial Street. Plaintiff’s expert witness testified that the wigwag signal, which was placed behind a separate post and crossbuck sign, was obscured from the vision of turning vehicles. In addition, the chief railroad engineer for the ICC (Morris) testified that wigwag signals were “pretty ineffective today” as a warning to motorists because of closed windows and soundproofing. Acknowledging that only the ICC was authorized to “designate” the Industrial Street crossing as a public crossing, it appears that defendant failed to take reasonable action in requesting a change in the designation. The Railroad is responsible for maintaining the crossing and was in the best position to determine whether a change in the crossing’s designation was warranted. Although defendant’s expert witness testified that the wigwag signal was “effective,” he admitted that wigwag signals have not been installed in the United States in the past 25 years. The fact that the ICC did not designate the Industrial Street crossing as “public” did not relieve defendant of negligence in not installing automated gates and flashing lights. (See Hunter v. Chicago & North Western Transportation Co. (1990), 200 Ill. App. 3d 458, 466.) In fact, the evidence established that ICC officials requested the Railroad to upgrade the crossing notwithstanding the fact that it was a “private” crossing.

We also believe the jury heard sufficient evidence to conclude that defendant was guilty of willful and wanton misconduct in maintaining its property in a dangerous condition.

Plaintiff produced evidence which tended to establish that defendant was aware the Industrial Street crossing presented a substantial risk of injury to motorists crossing the track from New Avenue. The jury heard evidence that a similar car-train accident occurred at this crossing 18 months before Martin’s accident. In the earlier collision, the motorist had been traveling westbound on New Avenue. Like Martin, the motorist turned right onto Industrial Street and attempted to cross the track when he was hit by a train. The railroad claims agent who investigated both accidents testified that the warning device at the Industrial Street crossing in the prior accident was the same as existed at the time of Martin’s accident. Defendant maintains that plaintiff failed to establish the similarity between the two accidents. However, we believe it is for the jury to weigh the evidence and determine whether the circumstances of the prior accident were sufficient to give defendant notice of the dangerous condition.

Plaintiff also contends that defendant’s failure to provide a cost estimate for the suggested upgrading of the Industrial Street crossing was in “conscious disregard” of its duty to provide a safe railroad crossing. In January 1981, B.E. Hight, senior field signal engineer for the Railroad, sent a memo to his superior stating that the Village of Lemont and the ICC requested a cost estimate for the installation of automated flashing light signals and gates at the Industrial Street crossing. A drawing was attached to the memo showing the survey work was completed and all that was remaining was the design work and the cost estimation. In a second memorandum, Hight requested that the cost estimate be prepared by March 2, 1981. Thomas Kremer, chief of the Railroad’s signal department, testified that the preparation of a cost estimate would take anywhere from two hours to two days to complete. Bernard Morris of the ICC testified that no cost estimate was produced as of December 8, 1981, and that the Railroad was experiencing delays in the production of cost estimates at that time. The jury also heard testimony that the delay was due to an influx of Federal funding for similar projects. Defendant’s witness testified that many railroads delayed their submissions of cost estimates until a hearing is held to determine whether and to what extent crossing signals should be modified.

Whether defendant’s nine-month delay in submitting a cost estimate to upgrade the crossing constituted willful and wanton misconduct in light of the fact that it had knowledge of a prior accident was properly a question for the jury. This court will not substitute its judgment for that of the jury absent evidence favoring the opposite conclusion that is clearly evident. (Hunter v. Chicago & North Western Transportation Co. (1990), 200 Ill. App. 3d 458, 465.) We do not believe the jury’s verdicts were unsupported by the evidence nor were they against the manifest weight of the evidence. We therefore hold that the trial court did not err in denying defendant’s motion for judgment notwithstanding the verdicts or, in the alternative, for a new trial on either the negligence count or the willful and wanton misconduct count.

Defendant argues that even if it was negligent or guilty of willful and wanton misconduct, there is no evidence establishing how its actions were the proximate cause of the accident. Plaintiff argues that if lights and gates had been installed prior to the accident the collision would have been avoided. She further asserts that the cause of death was defendant’s failure to upgrade the crossing by installing lights and gates at the crossing.

When reviewing questions of negligence and proximate cause, we will not disturb the fact finder’s decision unless it is clearly unwarranted by the evidence, and where there may be several reasonable inferences based upon the evidence, the inference drawn by the fact finder must prevail. (P.A.M. Transport, Inc. v. Builders Transport, Inc. (1991), 209 Ill. App. 3d 889, 892.) After reviewing the record, we do not believe the jury’s finding of proximate cause is “clearly unwarranted” and, therefore, we will not disturb its decision.

Next, defendant contends the jury’s finding that its alleged negligence and willful and wanton misconduct were greater than those of the decedent is not supported by the record.

“A jury’s finding on the issue of comparative negligence will not be set aside on review absent a finding that the verdict is contrary to the manifest weight of the evidence.” (Rainey v. City of Salem (1991), 209 Ill. App. 3d 898, 905.) The jury found that defendant’s failure to provide adequate protection at the Industrial Street crossing was a proximate cause of Martin’s death. The jury also found that Martin’s actions in failing to watch for the train and stop his vehicle contributed to his own death. We are satisfied that the jury properly compared Martin’s misconduct in assessing the parties’ degree of fault.

Defendant also argues that the irreconcilable inconsistency in the verdicts on count I and count II requires that the case be reversed and remanded for a new trial. We disagree. Both verdicts found that the total damages suffered by plaintiff amounted to $1,710,000. However, the jury’s determination on the degree of plaintiff’s comparative fault differed in regard to the counts. The verdicts found plaintiff to be 44% comparatively negligent in count I and reduced the verdict to $957,600. Plaintiff was found 35% comparatively at fault on the willful and wanton misconduct count, and the verdict was accordingly reduced to $1,111,500. We believe the jury clearly understood the instructions and the concept that the evidence presented two separate theories of recovery upon which the parties’ responsibility may differ. Moreover, we believe the jury’s verdicts resulted in an equitable apportionment of compensatory damages between plaintiff and defendant based upon their relative degree of fault.

We recognize that when both negligence and willful and wanton misconduct counts arise from a wrongful death action there can only be one recovery. (Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 147.) In Hough v. Mooningham (1986), 139 Ill. App. 3d 1018, this court held that when “the trier of fact returns separate plaintiff’s verdicts on both negligence and wilful and wanton misconduct counts, the law will presume that the defendant has been found liable for wilful and wanton misconduct, the more serious charge.” Hough, 139 Ill. App. 3d at 1021, citing Churchill, 73 Ill. 2d at 146-47.

The trial court should have entered judgment for plaintiff only on the willful and wanton misconduct count. However, although the trial court erred in entering judgments on both counts, reversal or remand is not necessary. Pursuant to our authority under Supreme Court Rule 366(a)(5) (87 Ill. 2d R. 366(a)(5)), we hold as follows: On the willful and wanton misconduct count, judgment is entered in favor of plaintiff and against defendant, and plaintiff is awarded $1,111,500; on the negligence count, judgment is vacated.

Having concluded that the jury’s verdict on the willful and wanton misconduct count resulted in an equitable apportionment of compensatory damages between plaintiff and defendant, we need not address defendant’s contention that the trial court’s instruction that the parties’ respective negligence was to be compared in count I and their respective willful and wanton misconduct was to be compared in count II was improper.

Thirdly, we must determine whether the trial court erred in admitting evidence of ICC proceedings concerning the suggested upgrading of the Industrial Street crossing.

Defendant contends that the evidence of the ICC’s inquiry is irrelevant and prejudicial. Defendant contends that there was nothing in the evidence to suggest that the Industrial Street crossing was unsafe. It further asserts that the village officials did not urge upgrading the crossing on the basis that it was unsafe, but, rather, as a general improvement in public safety. Defendant argues that this type of “wish list” testimony constitutes reversible error. (Maltby v. Chicago Great Western Ry. Co. (1952), 347 Ill. App. 441.) Plaintiff counters that evidence of the ICC proceedings was not only admitted to show notice, but weighed on allegations of willful and wanton misconduct. Under the holding in Ferguson v. Kasbohm (1985), 131 Ill. App. 3d 424, plaintiff’s burden of proof in the willful and wanton misconduct count required her to establish defendant had knowledge of a situation requiring due care to avert injury; the ability "to avoid the harm; and an omission to use care and diligence to avert the harm. (Ferguson, 131 Ill. App. 3d at 429.) Plaintiff contends that the evidence was properly admitted to show defendant had knowledge of safety problems at the Industrial Street crossing and that defendant had an opportunity to improve the crossing nine months before Martin’s accident.

“Evidence is relevant if it tends to either prove a fact in controversy or render a matter in issue more or less probable, and each party may present evidence relevant to his theory of the case or inconsistent with an opponent’s theory.” (Galowich v. Beech Aircraft Corp. (1991), 209 Ill. App. 3d 128, 135.) “In determining relevancy, the trial court must consider the evidence in light of the factual issues raised by the pleadings.” Leggett v. Kumar (1991), 212 Ill. App. 3d 255, 276.

We agree with plaintiff that the evidence of the ICG’s inquiry was properly admitted to establish defendant’s knowledge of safety problems at the crossing. The evidence went directly to the issue of whether defendant acted in reckless disregard or had the culpable state of mind required for a finding of willful and wanton misconduct.

Defendant further contends that the evidence is inadmissible by virtue of Federal statute. (23 U.S.C. §409 (1988).) However, as plaintiff properly recognizes, the Federal statute to which defendant refers was not enacted until 1987. There was no statutory prohibition against the use or admissibility of such material at the time the evidence was admitted, and there is no indication that the statute was intended to have a retroactive effect.

We find that the trial court did not abuse its discretion in admitting evidence of the ICC proceedings concerning the suggested upgrading of the Industrial Street crossing.

Fourthly, we decide whether the trial court improperly denied defendant’s statistical evidence showing that crossings protected by gates and flashing lights were not safer than crossings protected by autoflags. Defendant maintains that the statistical evidence was necessary to rebut plaintiff’s claim that the railroad crossing was inadequate.

“Evidence is relevant if it has a tendency to make a necessary fact more or less probable.” (Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 550.) “The determination whether evidence is relevant is within the discretion of the trial court and will not be disturbed absent an abuse of discretion.” Keller, 180 Ill. App. 3d at 551.

The trial judge reviewed the offered statistical evidence and determined that it was irrelevant. After a review of the record, we cannot conclude that the trial court abused its discretion in refusing the evidence. We therefore hold that the trial court did not err in denying defendant’s statistical evidence on railroad crossings.

Fifthly, defendant contends that the trial court erred in limiting its cross-examination of plaintiff’s expert witness, Professor Michael. The trial court granted defendant leave to call Michael as its own witness but prohibited defendant from bringing out the fact that Michael had been previously employed by plaintiff. After a review of the record, we find that the trial court had sound reasons for limiting defendant’s cross-examination. We therefore hold that the trial court did not err in limiting defendant’s cross-examination of plaintiff’s expert witness.

Lastly, we decide whether the trial court erred in restricting defendant’s evidence on damages. Specifically, defendant contends that it should have been permitted to show that plaintiff cohabited with another man on and off for a period of approximately three years before she married him. Defendant contends that plaintiff should not be entitled to recover for loss of consortium during the time she was living with another man.

It is well settled that recovery for loss of consortium terminates upon the remarriage of the surviving spouse. (Carter v. Chicago & Illinois Midland Ry. Co. (1985), 130 Ill. App. 3d 431; Dotson v. Sears, Roebuck & Co. (1987), 157 Ill. App. 3d 1036.) Defendant contends this principle should be extended to a surviving spouse who enters into a personal relationship with another person but who is not married to that person. We will not address, here, defendant’s argument on this point. We hold that the trial court did not err in limiting defendant’s evidence on damages.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed as to the willful and wanton misconduct count and award plaintiff $1,111,500, and judgment is vacated as to the negligence count.

Affirmed in part and vacated in part.

LINN and McMORROW, JJ., concur.