text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY L. CARTER, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—1021
    Opinion filed June 29, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Angela Tisdale, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

This appeal follows a bench trial in which defendant Anthony L. Carter was convicted of arson and aggravated arson (Ill. Rev. Stat. 1985, ch. 38, pars. 20 — 1(a), 20 — 1.1(a)). Defendant here contends the State failed to prove him guilty beyond a reasonable doubt because it did not show the fire resulted from defendant’s criminal acts.

We affirm.

The incident at issue occurred in a two-flat apartment building, located at 733 North Trumbull Avenue in Chicago. Lynne Baggett, defendant’s former girlfriend, lived in the second-floor apartment of the building. Lynne Baggett’s sister, Hazel Toney, lived in the first-floor apartment with her husband and four children. Thomas Baggett, Lynne Baggett’s brother, lived in the basement.

At trial, Hazel Toney testified that shortly after being awakened by her alarm clock at about 5 a.m. on October 31, 1986, she heard a person walk from the front door up the building’s hall stairway and come back down. A few minutes later, she again heard someone go up the stairway and come back down. Hazel stated that about 10 minutes later, firemen arrived at the building and asked her if she had called the fire department. When she stated she had not, the firemen left. Hazel testified she did not smell any smoke at that time.

Hazel stated she started to go upstairs and then smelled smoke in the hall. She knocked on the door to the second-floor apartment, but there was no answer. Hazel stated she ran down to the basement and awoke her brother. The two went up a back stairway and entered the second-floor apartment. Hazel then observed that the window in the second-floor hallway had been burned. She noticed smoke all over the hall, the stairs, and the wall under the window, but, she stated, she did not actually see a fire.

Thomas Baggett testified as to substantially similar facts. Additionally, he stated that after seeing the smoke, he telephoned his father, who owned the building, to advise him of the fire. He did not call the fire department. Thomas stated that about 10 minutes after he called his father, defendant telephoned, asked for Lynne Baggett, and inquired as to what was happening. Thomas told defendant Lynne was not there. He did not tell defendant about the fire. When his father arrived, Thomas went downstairs to his apartment. Shortly thereafter, Thomas testified, defendant came to the basement apartment and asked him something, although Thomas could not remember what defendant had asked.

Garrett Wolfe resided across the street from the building where the incident occurred. Wolfe, who stated he suffered from insomnia, testified that at approximately 5 a.m. on October 31, 1986, he was looking out his front window and saw defendant go in the front door of the building. Wolf stated he observed defendant come out of the building and walk down the street. Wolfe saw defendant return to, reenter, and then exit the building.

Chicago police detective Leonard Rolston was qualified upon stipulation of the parties as an expert on the causes and origins of fires and testified as to his investigation of the fire. Rolston stated he observed fire damage to the hallway between the first and second floors and on the second floor. He stated the fire had damaged a window frame, all four walls in the hallway, the hallway landing, the ceiling, and the floor. Rolston stated he determined, at that time, that the fire was not accidental, but was set by an individual. He testified that he determined the fire had been set with either a lighter or matches. Rolston explained the curtains to a window had been burned by applying an open flame. The carpeting and floor were burned when the burning material fell. Rolston discounted the possibility that the fire was of electrical origin because the only electric source in the hallway was a light fixture which was not damaged. He further stated he did not see evidence of any accelerant.

Rolston interviewed Lynne Baggett, Thomas Baggett, Hazel Toney, and Garrett Wolfe.

Rolston subsequently located defendant and brought defendant to the police station about 9:30 p.m. on November 3, 1986. Defendant told Rolston that he was home at the time of the fire. Defendant stated that he was not aware of the fire until Thomas Baggett told him about it when he spoke to Thomas on the telephone at about 5:30 a.m. on October 31, 1986. After Rolston told defendant Garrett Wolfe had seen him entering and leaving the building, defendant admitted that he started the fire.

Defendant explained to Rolston that he and Lynne Baggett had had a violent argument a few days before the fire because defendant believed Baggett to be involved with another man. Defendant told Rolston he tried to telephone Baggett several times in the early morning on the day of the incident. When Baggett did not answer the telephone, defendant thought his belief that Baggett was with another man was confirmed.

Defendant told Rolston that he became increasingly angry as he thought about the situation. Defendant mentioned to Rolston that he had partially remodeled the hallway in the building at Baggett’s request. Defendant explained to Rolston that he went over to her apartment and ignited the curtains by the window with some matches. Defendant told Rolston he left the hallway, walked outside, stood out in front of the building for awhile, and then reentered the building, intending to extinguish the fire. However, defendant stated, the smoke was too intense and he left the building and called the fire department. Defendant said that he was willing to pay for the damage.

Odell Baggett, Lynne Baggett’s father, testified that at about 5:30 a.m. on October 31, 1986, he received a telephone call from his son regarding the fire. Baggett said that defendant came to the building at about 6:30 a.m. that day. Baggett added defendant visited him some time after the fire and had offered to pay for the damage to the building.

The parties stipulated that at 5:23 a.m. on October 31, 1986, a telephone call was received by the Chicago Fire Department regarding a fire at the building. The firemen arrived at that location at 5:25 a.m., and returned to the station at 5:33 a.m.

Lynne Baggett testified that she had dated the defendant for approximately one year and had ended the relationship with him about a week before the incident.

Defendant testified that at about 5 a.m. on October 31, 1986, he was at a girlfriend’s house. Defendant stated that after he spoke to Lynne Baggett’s nephew on the telephone that morning, he went over to the building. It was approximately 6 a.m. Defendant denied being at the building between 5 and 5:30 a.m. Defendant also denied setting the fire. Although defendant acknowledged that he spoke to Detective Rolston, defendant denied making the inculpatory statements Rolston attributed to him.

Defendant was subsequently convicted.

Opinion

On appeal, defendant contends he was not proved guilty beyond a reasonable doubt because the State did not prove the fire was of incendiary means and not an accident. Defendant notes there were no witnesses to the fire and there was no evidence of the use of an accelerant. Defendant further claims that, notwithstanding his purported statements to Rolston, the evidence showed merely that a fire occurred and that alone is insufficient to establish the corpus delicti of the crimes charged.

The corpus delicti for the offense of arson consists of two elements: the burning of a building which is caused by an individual’s criminal act. (People v. Lueder (1954), 3 Ill. 2d 487, 121 N.E.2d 738.) While the corpus delicti may not be proven through a confession alone (People v. Lambert (1984), 104 Ill. 2d 375, 472 N.E.2d 427), and independent evidence must exist tending to prove an offense was committed by someone, that evidence need not establish the offense beyond a reasonable doubt (In re D.A. (1983), 114 Ill. App. 3d 522, 448 N.E.2d 1036). Generally, in considering whether the corpus delicti of a crime has been established, the supreme court has directed that if evidence, independent of a confession, tends to prove that an offense occurred, then such evidence, if corroborative of the facts contained in the confession, may be considered along with the confession in establishing the corpus delicti. (People v. Willingham (1982), 89 Ill. 2d 352, 361, 432 N.E.2d 861, 865.) The issue then is whether the State presented evidence, independent of defendant’s admissions, which tended to prove that defendant was criminally responsible for the fire.

We must first point out two misrepresentations of the record contained in defendant’s reply brief. Reference is made that the State presented no evidence to preclude the possibility that the fire was accidentally caused “while Mr. Carter smoked cigarettes in the hallway awaiting his girlfriend’s return.” The record contains no testimony to establish that defendant was smoking in the hallway. Reference is also made that, immediately after the fire, defendant “knock[ed] on residents’ doors in alarm” to alert them. Not only is there no testimony to establish that fact in the record, but the record contains testimony by Detective Rolston that defendant specifically admitted to him that defendant “panicked” when he could not extinguish the fire and did not awaken the residents.

Addressing defendant’s assertions, we find that there was sufficient independent evidence tending to establish defendant committed the offenses charged. Detective Rolston’s testimony indicated that his investigation eliminated all accidental causes for the fire. Rolston testified that the fire was set by an individual who applied a flame to the curtains.

Unlike the cases relied on by defendant, People v. Gugliotta (1980), 81 Ill. App. 3d 362, 401 N.E.2d 262, and People v. Hougas (1968), 91 Ill. App. 2d 246, 234 N.E.2d 63, we believe Rolston’s testimony tended to show criminal agency. In neither Gugliotta nor Hougas did any independent evidence exist to establish that the fires in those cases had incendiary origins. Here, the independent evidence supplied through Rolston’s testimony was corroborative of the facts in defendant’s confession. Rolston testified defendant admitted he went upstairs to the second-floor hallway and started the curtains on fire with some matches. Rolston testified that his independent examination of the scene indicated the fire was started by someone setting the curtains on fire with an open flame. We may consider Rolston’s testimony as to his investigation together with the evidence of defendant’s admissions for purposes of determining whether the evidence sufficiently established the corpus delicti for the offenses. We believe the corpus delicti was proven. Additionally, we note that Lynne Baggett’s testimony established defendant’s motive for setting the fire which was corroborative of the evidence of defendant’s admissions. We note also that defendant did not dispute his presence at the scene.

We therefore find no reason to disturb defendant’s convictions.

Pursuant to the State’s request under People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, defendant is assessed $50 for this appeal.

Affirmed.

COCCIA, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE COCCIA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLEMENT VAUGHN, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—1460
    Opinion filed June 29, 1990.

      Michael J. Pelletier and Maria Harrigan, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Bonnie Meyer Sloan, Special Assistant State’s Attorney, and Renee Goldfarb and Donna J. Norton, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

Defendant, Clement Vaughn, was charged with aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, pars. 12—14(a)(2), (b)(1)), and pled guilty to that charge on February 19, 1988. Pursuant to a plea agreement, defendant was sentenced to six years’ imprisonment.

On March 16, 1988, defendant filed a pro se motion to vacate the guilty plea, alleging that his attorney, Assistant Public Defender Viola Rouse, had rendered ineffective assistance when she advised him to plead guilty. On March 18, 1988, a hearing was held on the motion, at which the trial court advised defendant that he had the right to the services of an attorney. The court informed defendant that it would appoint Assistant Public Defender Steve Helis if defendant desired representation. The defendant requested an attorney from the Chicago Bar Association, noting that Helis had been his attorney’s trial partner when his case was first heard. The trial court denied the request, and the defendant proceeded pro se.

At the hearing, defendant claimed that he was misled by his attorney because she failed to explain particular aspects of his case before he pled guilty. The court concluded that defendant’s claim had no merit and that he was seeking to withdraw his guilty plea because he had simply changed his mind. The court then denied defendant’s motion.

On appeal, defendant contends that he should have been allowed to file a new motion to vacate his plea. He argues that the trial court failed to admonish him in accordance with Supreme Court Rule 605 (107 Ill. 2d R. 605); that the court failed to advise him of his right to an attorney and to a copy of the plea transcript for use in the preparation of the motion to vacate the plea; and, finally, that defendant’s waiver of counsel on the motion to vacate was invalid because the court failed to consider defendant’s argument that the attorney the court offered to appoint had a conflict of interest and because the court failed to warn defendant of the dangers of proceeding pro se. For reasons which follow, we reverse the-trial court’s order and. remand for further proceedings.

Defendant pled guilty to aggravated criminal sexual assault but-then sought to vacate the plea. (107 Ill. 2d R. 604(d).) He filed a timely pro se motion to do so, and at the hearing on the motion, the court offered to appoint Assistant Public Defender Helis or allow defendant to proceed pro se. The following colloquy occurred:

“THE COURT: Mr. Vaughn, you have a right if you wish to have the services of [sic] attorney to represent you during these proceedings, and if you wish I would appoint Mr. Steve Helis to represent you if you want that. Otherwise you are free to speak up on your own behalf in connection with your motion to withdraw your guilty plea.
MR. VAUGHN: Well, your Honor, I would like to be, if I can, be appointed a bar association lawyer.
THE COURT: No, I won’t do that.
MR. VAUGHN: This case is a matter of ground points, Point 4, good reasons — .
THE COURT: Tell me what those reasons are. You didn’t get along with Miss Rouse it appears?
MR. VAUGHN: No, sir, I didn’t.
THE COURT: Mr. Helis is not Miss Rouse. If you want his help, but I can’t force it on you.
MR. VAUGHN: I figure that they working together, and that is the chance that I didn’t want to take in this matter of time.
THE COURT: There has been a recent Supreme Court case, and the name of it escapes me, in which the Supreme Court said unless there are specific reasons for showing that there is a conflict of interest between the two attorneys, there is no per se conflict of interest just because they happen to be in the same office. In this case I know of no per se conflict, so I am not going to appoint anyone from the bar association. I will appoint someone from the Public Defender’s Office, and Mr. Helis is from the Public Defender’s Office. If you wish his services, I will be more than happy to appoint him to represent you, because you certainly don’t want Miss Rouse, and I understand that.
MR. VAUGHN: Yes, sir.
THE COURT: But I am not going to appoint an attorney from the bar association unless you — .
MR. VAUGHN: So I will go along pro se.”

After hearing further arguments by defendant, the trial court denied defendant’s motion. The record does not include any statements by, or to, attorneys Rouse or Helis which would indicate their attendance at this hearing. The assistant State’s Attorney was present and gave a brief argument in opposition to defendant’s motion.

The right to effective assistance of counsel as guaranteed by the sixth and fourteenth amendments to the Federal Constitution (U.S. Const., amends. VI, XIV), and the State Constitution (Ill. Const. 1970, art. I, §8), includes the right to have the undivided loyalty of counsel, free from any conflict of interest. (Glasser v. United States (1942), 315 U.S. 60, 75-76, 86 L. Ed. 680, 702, 62 S. Ct. 457, 467-68; People v. Free (1986), 112 Ill. 2d 154, 167, 492 N.E.2d 1269, 1274; People v. Sanchez (1987), 161 Ill. App. 3d 586, 591, 515 N.E.2d 213, 216.) Here, the trial court offered only to appoint attorney Helis, despite defendant’s concern that a conflict existed because Helis had been Rouse’s partner when the case was first heard by the trial court.

While the record before us does not indicate that the two were partners at the time, we take judicial notice of the contents of the records on appeal in People v. Carter (1st Dist.), No. 1—88—3102, and People v. Clayborn (1st Dist.), No. 1—88—1968, which do reflect a working relationship between the two attorneys during the time in question. Specifically, as reflected in the record in Clayborn, Rouse stated, “I have spoken to Mr. Helis, who is my partner in this courtroom.” In granting defendant’s motion to supplement the record with documentation from these cases, we have reconsidered our prior order permitting same, and have again concluded that we have the authority to do so. (See People v. Williams (1982), 93 Ill. 2d 309, 314-15, 444 N.E.2d 136, 138; People v. Siglar (1971), 49 Ill. 2d 491, 495-96, 274 N.E.2d 65, 67; Fox v. Fox (1956), 9 Ill. 2d 509, 517-18, 138 N.E.2d 547, 552; People v. Alexander (1976), 40 Ill. App. 3d 457, 460, 352 N.E.2d 245, 247; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §202.2 (5th ed. 1990).) While taking judicial notice of these records to the extent that they are of assistance in clarifying defendant’s contentions, we wish to make two observations. First, we are considering these documents only as they reflect that the same two attorneys involved in this case, Helis and Rouse, have apparently provided joint representation to other defendants before the same trial judge who heard Vaughn’s plea and motion, and that at least once during February of 1988, Rouse, in addressing the court, referred to Helis as “her partner in [that judge’s] courtroom.” This much is a matter of public record, and we accept the authenticity of the aforementioned records on appeal. However, we state no opinion whatsoever as to the specific working relationship of the two attorneys at the time of, prior to, or subsequent to, defendant’s hearings, the nature of that relationship as creating a potential conflict of interest precluding Helis’ unfettered advocacy of defendant’s claims, or the possible merits of defendant’s underlying ineffective assistance claim as it relates to Rouse. These are matters for the trial court to determine. Furthermore, we wish to point out that defendant’s expressed fear of representation by attorney Helis because he and Rouse were “working together,” however inarticulate, was sufficient, without further factual substantiation by defendant at that point in the hearing, to meet the legal standards discussed below, so as to require further inquiry by the trial court as to whether a potential conflict of interest existed.

In Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173, the Supreme Court determined that if counsel brings a conflict to the trial court’s attention, the trial court is under a duty to either appoint separate counsel or determine whether the conflict is so remote that separate counsel is not necessary. (Holloway, 435 U.S. at 484, 55 L. Ed. 2d at 434, 98 S. Ct. at 1178-79.) While Holloway involved multiple defendants and counsel’s bringing the conflict to the trial court’s attention, rather than a defendant acting pro se, its rationale is applicable here. Accordingly, once the defendant raised specific facts supporting the existence of a conflict, the trial court had a duty to conduct an inquiry to determine the necessity of appointing alternate counsel. The trial court here failed to consider defendant’s contention that the relationship between the two assistant public defenders presented a serious conflict of interest. While it is true that assistant public defenders may argue the ineffectiveness of one another, the fact that these two attorneys were alleged to be working together as trial partners created sufficient circumstances to indicate the possible presence of an actual conflict of interest. People v. Banks (1987), 121 Ill. 2d 36, 520 N.E.2d 617; People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441; see generally J. Eisenstein & H. Jacob, Felony Justice: an Organizational Analysis of Criminal Courts (1977) (analyzing courtroom “workgroups”).

The State argues that under the rule of People v. Banks (1987), 121 Ill. 2d 36, 520 N.E.2d 617, no per se conflict of interest existed and therefore defendant’s right to conflict-free counsel was not violated. The court in Banks, however, did not hold that there could never be a conflict of interest when one assistant public defender must assert the ineffectiveness of another; rather, it held that a case-by-case inquiry should be conducted to determine if any special circumstances indicate the existence of a conflict. (People v. Banks, 121 Ill. 2d at 44, 520 N.E.2d at 621.) Thus, the analysis is twofold. First, the trial court must determine whether a per se conflict exists, so as to preclude representation. Such a conflict exists where defense counsel has professional commitments to others having interests clearly antagonistic to the interests of the accused. “Per se conflicts arise because' defense counsel’s professional commitments to others would by their nature subject counsel to subtle pressures which could adversely affect counsel’s representation of the accused.” (People v. Sanchez (1987), 161 Ill. App. 3d 586, 593, 515 N.E.2d 213, 218.) Second, if no per se conflict exists, the defendant must show the existence of an actual conflict and actual prejudice resulting from the appointed attorney’s representation. (Sanchez, 161 Ill. App. 3d at 594, 515 N.E.2d at 217.) Here, the court declined to even consider defendant’s contention that a conflict existed because of the working relationship of the two assistant public defenders, or to conduct any further investigation into that contention. The defendant was certainly prejudiced when forced to choose between potentially conflict-ridden counsel or no counsel before proceeding with the hearing. Because the trial court failed to conduct an inquiry as to the existence of the conflict, the trial court’s order denying defendant’s motion must be reversed and the case remanded so that the trial court may conduct such an inquiry.

While this case must, in any event, be remanded for a determination regarding the conflict of interest question, we further observe, with regard to defendant’s other contentions, that Illinois courts have long supported and protected a criminal defendant’s right to counsel at each critical stage of any trial proceedings. (People v. Ledbetter (1988), 174 Ill. App. 3d 234, 237, 528 N.E.2d 375, 377.) As our supreme court has recently stated:

“[T]he rules adopted by this court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions. It is incumbent upon counsel and courts alike to follow. them. Rules 402, 604(d) and 605(b), which concern guilty pleas, are meant to mesh together not only to ensure that defendants’ constitutional rights are protected, but also to avoid abuses by defendants.” (People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221.)

Moreover, this court has specifically held that a defendant is entitled to assistance of counsel in the preparation of his motion to withdraw a guilty plea, which is a critical stage of the proceedings, and has remanded a case with directions to appoint an attorney for this purpose where the trial court failed to do so. (See People v. Black (1977), 55 Ill. App. 3d 417, 420, 371 N.E.2d 71, 73.) It is apparent from the trial record that the judge, in accepting defendant’s guilty plea on February 19, 1988, failed to advise defendant that (1) a copy of the transcript of the plea and sentencing proceedings would be provided free of charge to him, and that counsel would be appointed to assist him in the preparation of the motion to vacate (107 Ill. 2d R. 605(b)(5)), and (2) any issue or claim of error not raised in the motion to vacate the judgment and to withdraw his guilty plea would be deemed waived on appeal (107 Ill. 2d R. 605(b)(6)). While the record does not indicate that Assistant Public Defender Rouse ever officially withdrew from defendant’s case following his guilty plea, it is obvious that defendant did not receive an attorney’s assistance in preparing his motion to vacate and the accompanying affidavit. Defendant nonetheless made a valiant effort to express his claims of error, without benefit of attorney or transcript, and managed to properly file his motion within the 30-day period required to preserve his right of appeal. However, without the assistance to which he was entitled, defendant was operating at a great disadvantage which was inconsistent with the adequate protection of his rights. We therefore hold that the trial court’s failure to advise defendant in accordance with Rules 605(b)(5) and (b)(6) was error. Accordingly, defendant is entitled to an attorney’s assistance in amending or completely redrafting his original motion to vacate.

For the above-stated reasons, we reverse the trial court’s order of March 18, 1988, denying defendant’s motion to vacate his guilty plea. We further remand this case to the trial court, with directions to take the following steps. The trial court will conduct its own investigation to determine whether there are facts and circumstances, in this particular case, which indicate a conflict of interest which would preclude attorney Helis’ representation of defendant in preparing and arguing a motion to vacate which, inter alia, alleges the ineffective assistance of attorney Rouse. In conducting this inquiry, the court should also receive the opinion of attorney Helis as to the presence of any potential or actual conflict of interest. If hearings are held in the course of this inquiry, defendant should have the assistance of other counsel in voicing his concerns and should not be permitted to proceed pro se. After the court has reached its determination as to whether the facts and circumstances indicate a conflict of interest precluding Helis’ representation of defendant, it will state its findings of fact and its conclusions for the record, and will appoint an attorney, other than Rouse, to assist defendant in amending or entirely redrafting his motion to vacate. Defendant may include any appropriate legal grounds in support of his motion, and any claim appearing in either his original or redrafted motion will not be waived on appeal to this court. We would caution defendant that it would be in his best interest to accept the assistance of the attorney so appointed. We further note that although Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) provides for counsel to be appointed for indigents when they seek to withdraw a guilty plea by presenting a motion to the court, it does not accord any right to proceed pro se. Whether a defendant is permitted to represent himself at a hearing under Rule 604(d) is a matter within the trial court’s discretion. (People v. Hanna (1987), 155 Ill. App. 3d 805, 813-14, 508 N.E.2d 765, 771.) Defendant’s appointed counsel should also file the required certificate of compliance as provided in Rule 604(d) and represent defendant at hearings on the motion to vacate, following which the court shall enter an order granting or denying defendant’s motion.

Accordingly, the trial court’s order denying defendant’s motion to withdraw his guilty plea is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

LORENZ and MURRAY, JJ., concur.


author: JUSTICE LORENZ

text:
    NORTHERN TRUST BANK, Adm’r of the Estate of Seymour Sholder, Deceased, Plaintiff-Appellant, v. JAMES B. CARL et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—88—1498
    Opinion filed June 29, 1990.

      Stephen D. Phillips, of John G. Phillips & Associates, of Chicago (Carol Wilczynski, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Richard H. Donohue, Michael A. Pollard, and Christopher T. Hurley, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

This appeal follows a jury verdict for defendants in an action for personal injuries arising out of an automobile accident. Plaintiff raises the following issues on appeal: whether defendants’ counsel’s comments in closing argument were inflammatory; whether defendants’ counsel violated his own motion in limine, prejudicing plaintiff; whether defendants’ counsel’s conduct during trial was so improper as to mandate a new trial; and whether the trial judge improperly permitted testimony relating to plaintiff’s alleged contributory negligence and prior medical history.

We affirm.

On November 5, 1979, plaintiff Seymour Sholder filed a one-count negligence action against Mobil Chemical Corporation (Mobil) and James Carl for injuries, including “permanent cardiac” injuries, Sholder received in a collision involving his automobile and a Mobil truck driven by Carl in August 1979. The collision occurred near Skokie Valley Hospital, where plaintiff was a staff physician. At the time of the occurrence, Carl was making a delivery to the hospital.

In July 1980, Sholder suffered a heart attack and eventually underwent heart bypass surgery. Sholder previously had suffered a heart attack in 1965.

On August 27, 1986, Sholder died.

The matter eventually proceeded to trial in January 1988. Plaintiff’s theory was that Sholder’s July 1980 heart attack was due to the collision which occurred in August 1979. At the conclusion of trial, the jury returned a verdict in defendants’ favor.

This appeal followed.

We summarize other pertinent facts below only to the extent it is necessary to do so in the disposition of the issues presented.

Opinion

Plaintiff first argues that defendants’ counsel made numerous improper comments in his closing argument. Specifically, plaintiff identifies nine instances of improper comment in defendants’ counsel’s closing argument.

Plaintiff contends that counsel improperly referred to Carl as the “poor truck driver,” compounding the impropriety by so referring to Carl three other times.

The record indicates that the trial judge sustained plaintiff’s counsel’s objection to the first use of the phrase “poor truck driver” by defendants’ counsel, struck the phrase from the record, and instructed the jury to disregard it. Plaintiff’s counsel did not object to the other three uses of the phrase by defendants’ counsel. The record indicates, as to his third mention of the “poor truck driver,” defendants’ counsel corrected himself and apologized for using the phrase. We note, further, that at the time of the first objection to his use of the phrase, defendants’ counsel explained that he did not intend the use of the word “poor” in terms of the truck driver’s financial status.

After considering the statements complained of within the context of the argument made by defendants’ counsel, we conclude that counsel’s use of the phrase “poor truck .driver” was inadvertent, was not designed to mislead the jury, and did not substantially prejudice the plaintiff’s case.

Plaintiff contends defendants’ counsel vouched for the credibility of Carl, citing counsel’s statements that he did not think Carl was lying in his testimony and that counsel believed Carl. Plaintiff also argues defendants’ counsel implied plaintiff had manufactured the lawsuit by stating that, if companies like Mobil used “spotters” to help guide truck drivers, those companies would risk liability “like in this case.”

While it is improper for an attorney to vouch for the credibility of his client (see 107 Ill. 2d R. 7—106(c)(4)) or to argue the lawsuit was manufactured to explain a sustained injury (see Green v. Cook County Hospital (1987), 156 Ill. App. 3d 826, 510 N.E.2d 3), we cannot conclude, after carefully reviewing the record in its entirety, that the statements were more than harmless error and we do not believe they provide a basis to disturb the jury’s verdict.

During closing argument, defendants’ counsel read a brief portion of text, apparently from the transcript, of a medical record from which one of the witnesses at trial had previously read. Plaintiff now claims defendants’ counsel’s reading from the transcript was improper.

Plaintiff has cited no authority in this State for the proposition that it is improper per se for counsel to read to the jury portions of the trial transcript. We note that it is within the discretion of the trial judge to permit counsel to refresh a witness’ memory by reading portions of the trial transcript. (Reed v. Northwestern Publishing Co. (1988), 124 Ill. 2d 495, 530 N.E.2d 474.) As to plaintiff’s contention here, the record indicates defendants’ counsel intended to read from that portion of the transcript, which contained the witness’ own reading from a medical report, to insure accuracy. We cannot conclude such was reversible error.

Following a hearing out of the jury’s presence in which the trial judge considered whether it would be proper to read from the transcript, defendants’ counsel apologized to the jury for the frequent interruptions. Plaintiff’s counsel now claims that the apology gave the jury the false impression that plaintiff’s counsel was acting improperly or attempting to hide something from the jury.

We do not agree the apology to the jury constitutes reversible error because the record indicates the trial judge thereafter instructed that plaintiff’s counsel could object as often as he desired.

Plaintiff also asserts counsel’s reference to elements of damages in plaintiff’s case as “fruit salad,” counsel’s statement that he was “shocked” by the amount of money plaintiff claimed as damages, and counsel’s mention that Carl had never been in court before were improper comments. However, because the record indicates plaintiff failed to object to any of those statements at trial, we decline to address whether those issues require reversal, as plaintiff has failed to properly preserve the issues for review. See Friedland v. Allis Chalmers (1987), 159 Ill. App. 3d 1, 511 N.E.2d 1199.

Plaintiff next argues defendants’ counsel violated his own motion in limine which precluded plaintiff from introducing evidence of lost wages and medical bills.

Defendants’ counsel filed a motion in limine to preclude plaintiff from presenting evidence regarding a claim for lost wages. The motion stated plaintiff had not claimed resulting monetary loss from the accident, had not indicated such loss in answers to interrogatories, and, further, plaintiff’s counsel had indicated, during plaintiff’s deposition, that no such claim would be made. The motion also sought to preclude any claim for medical damages because plaintiff failed to provide defendants with bills for medical treatment.

The record indicates the trial judge granted the motion upon plaintiff’s counsel’s acknowledgment that plaintiff would make no claim for lost wages for the time between the accident and the time of plaintiff’s death, as well as the acknowledgment that counsel would not introduce any medical bills.

On appeal, plaintiff argues that defendants’ counsel made improper reference during closing argument to the fact that plaintiff introduced no evidence of damages in the form of lost wages or medical expenses. Specifically, plaintiff cites the following portion of the record containing comments of defendants’ counsel:

“Lastly, damages. [Plaintiff’s counsel] made some reference in his argument to ‘Wouldn’t you think they would have put this witness on the stand or wouldn’t you think they would put that witness on the stand?’ Have you seen one medical bill put into evidence in this case? Not an [sic] one.
Is there one dollar’s worth of damages that’s been introduced in this case, ladies and gentleman? No. Have you seen any evidence of lost income? [Plaintiff’s counsel] says, ‘Well, I think he had to slow down and Mr. Sholder said he couldn’t work as often as he used to after the accident.’ Where are his income tax returns? Where are his office records?
Is there any proof in this case that this guy lost one dollar as a result of this accident? The answer is no. Where is that evidence? Where are the medical bills for this heart attack and this bypass surgery? What do we have here?
Fruit salad is what we lawyers tend to call this stuff. Fruit salad. No wonder why we have a question mark here. It’s really fruit salad.
Aggravation. This guy had the disease. He would have had the bypass surgery anyway.
Disability. Where’s the evidence of disability in this- case? Where is the evidence that this guy earned — I don’t know, $20,000 one year and $15,000 the next or whatever he earned?
[PLAINTIFF’S COUNSEL]: I object to this, your Honor. This claim has not been presented.
[THE COURT]: Objection to the amount of the money, sir.
* * *
Did he have angina after the accident? Yes, he did. Did he have it before the accident? Yes, he did. What was the cause for the angina? The guy’s arteriosclerosis.
Where are the bills? Not only do I have to argue, I have to look and see what I was supposed to see. There’s a burden. The law imposes a burden on you and me and us as lawyers in a court; and that is, when you come into court and sue a case, you have a right to file a lawsuit and ask for damages and the defendants have a right to come in and defend them.
But when you file a lawsuit as a plaintiff you have to carry the ball, and you have to prove it by what they call competent evidence, believable evidence, admissible evidence about the accident and how it happened, about the injury and about the damages. And in this case, if the evidence on all three of those areas is extremely weak, then I’d be very surprised.”

Plaintiff argues that defendants’ counsel’s comments regarding the failure to present medical bills and evidence of monetary loss as a result of the accident were violations of the motion in limine which confused the jury and prejudiced plaintiff. In support of that argument, plaintiff points out that, during deliberations, the jury sent a note to the judge asking for help in defining the term “injury.”

In order for the violation of an in limine order to serve as the basis for a new trial, the order must be specific in its prohibitions, and violations must be clear. (Schaffner v. Chicago & North Western Transportation Co. (1987), 161 Ill. App. 3d 742, 515 N.E.2d 298.) And, where a violation is found to exist, a new trial may follow only where the violation has prejudiced the plaintiff or denied him a fair trial. See Bradley v. Caterpillar Tractor Co. (1979), 75 Ill. App. 3d 890, 394 N.E.2d 825.

The record indicates plaintiff’s counsel made no objection to the comments regarding medical bills. As to comments regarding lost wages, the record does indicate that an objection was made. The trial judge sustained the objection as to the amount of money stated in conjunction with counsel’s comment.

Here, through the motion in limine, defendants’ counsel intended to insure that plaintiff did not present a claim for lost wages or medical bills at trial, where there was no indication such claims would be made. From the record, however, it appears defendants’ counsel used his success on the motion as a sword as well as a shield by taking opportunity to point out the failure to produce evidence of those claims, as well as others. We certainly cannot approve of such tactics. Nevertheless, for purposes of determining whether a new trial is warranted, the relevant inquiry is confined to examining the extent to which any violation of the motion in limine prejudiced plaintiff. It is difficult to see how such prejudice could have occurred in the instant case where there is no indication that plaintiff intended to claim lost wages or medical bills as damages. Further, the record indicates the jury’s inquiry as to the meaning of “injury” related only to whether that term encompassed both physical and mental injury.

Plaintiff next argues defendants’ counsel engaged in six other specific acts of improper conduct during trial. We consider each of those alleged improprieties in turn.

Plaintiff asserts defendants’ counsel questioned plaintiff’s treating physician, William Fishman, as to whether plaintiff had prescribed nitroglycerin for himself when no evidence of that fact existed.

We do not agree with plaintiff’s assertion. The record indicates that Fishman testified that Sholder did, at sometime prior to the accident, take nitroglycerin on his own.

Plaintiff argues defendants’ counsel injected his own personal beliefs about the veracity of two witnesses when he accused one of the witnesses of being “cute,” and stated to the other: “I’d like you to answer my questions!,] *** I’m the lawyer here.”

Neither complaint rises to the level of reversible error. As to the first comment, the record indicates plaintiff’s counsel objected to the comment and the trial judge properly instructed the jury to disregard the comment. The second comment does not interject counsel’s personal belief but was, instead, a legitimate effort to have the witness answer the question posed.

Plaintiff argues the repeated references by defendants’ counsel to plaintiff’s automobile as a “Mercedes Benz” were improper because they constituted an attempt to use wealth or poverty as an issue in the case.

First, the record indicates plaintiff’s automobile was,, in fact, a Mercedes Benz model. Moreover, plaintiff’s counsel did not object at trial to that description of the automobile. We do not believe that, when the record is read in its entirety, the use of the term can constitute reversible error.

Plaintiff contends defendants’ counsel improperly recited the contents of an inadmissible police report when questioning the only witness who directly supported plaintiff’s case, Bruce Mazurkiewicz, the director of security at Skokie Valley Hospital.

The record indicates that the trial judge properly sustained plaintiff’s counsel’s objection to the testimony, and we do not conclude the reference was prejudicial.

Plaintiff contends that during the redirect examination of Fish-man, it was improper for defendants’ counsel to ask Fishman to look at the medical records upon which Fishman was being questioned. Plaintiff contends the implication was that Fishman was testifying untruthfully.

We do not agree with plaintiff’s assessment. The record indicates that Fishman was answering plaintiff’s counsel’s questions based on the content of medical records before him without actually looking at the records. Defendants’ counsel’s objection, rather than being construed as improper, can be fairly construed as suggesting that Fish-man continue to refer to the records for purposes of accuracy in his testimony.

Last, plaintiff contends it was improper to allow defendants’, counsel to impeach Fishman with a question which plaintiff claims was “vague, misleading, and improper in form.” Plaintiff argues that the question reflected on the credibility of plaintiff’s treating physician. The question posed was:

“In your opinion, sir, based upon your expertise and training in this area, is there any way that you or another qualified cardiologist could testify as to whether or not the July, 1980, myocardial infarction was in any way related to the August, 1979 accident?”

We do not conclude the question was an improper one in form and further conclude that it was proper for impeachment purposes.

Plaintiff’s final major contention is that defendants’ counsel improperly introduced testimony relating to plaintiff’s alleged contributory negligence and family medical history. Specifically, plaintiff notes defendants’ counsel elicited testimony concerning Sholder’s failure to have a stress test and certain laboratory work performed, contrary to his physician’s recommendation. Additionally, plaintiff notes counsel elicited testimony that Sholder failed to follow the diet recommended by his physician and may have written himself prescriptions for nitroglycerin. Last, plaintiff notes counsel inquired into Sholder’s history of coronary artery disease.

We do not view the elicitation of the above testimony as improper. The questions complained of merely related to defendants’ theory at trial: that the proximate cause of Sholder’s heart attack in July 1980 was his preexisting arteriosclerotic disease and was not related to the automobile accident occurring 11 months earlier, in August 1979.

For the above reasons, we find no basis to disturb the jury’s verdict.

Affirmed.

MURRAY and GORDON, JJ., concur.


author: JUSTICE GORDON

text:
    LYNCH IMPORTS, LTD., Plaintiff-Appellee, v. JOSEPH B. FREY et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—88—3229
    Opinion filed June 29, 1990.

      Robert J. Emery, of Northbrook, for appellants.
    Joseph R. Marconi and Edward M. Ordonez, both of Johnson, Cusack & Bell, Ltd., of Chicago, for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Defendants, Joseph and Stephanie Frey (buyers), appeal from an order of the circuit court of Cook County, granting summary judgment on the complaint of plaintiff, Lynch Imports, Ltd. (seller). Count I of the complaint sought damages in the sum of $8,706 for the breach of an automobile sales contract, while count II sought damages of $4,706 for wrongful stoppage of a check. We reverse and remand.

On October 22, 1987, buyers agreed to purchase a 1987 Volkswagen automobile from the seller for the price of $8,706. The agreement was set forth in a “CAR PURCHASE ORDER” form (hereinafter referred to as purchase contract). The following words were handwritten on the purchase contract: “car to be in totally acceptable condition or money will be refunded to the customer,” and “acceptable subject to inspection.”

On October 24, buyers took possession of the vehicle and paid seller $4,706, in the form of a check, as part payment on the purchase price. The balance of the purchase price was to be financed. Two riders which were attached to and made part of the purchase contract were also signed. Of the two, rider 2 is significant for purposes of this appeal and provided in pertinent part:

“(1) Buyer, at buyer’s cost will have the vehicle fully covered under liability and collision automobile insurance from the instant that buyer takes possession ***.”
“It is expressly understood that this rider does not authorize buyer to return said vehicle to the seller without seller’s prior authorization. Automobiles are not sold on approval; no sales person or other employee of seller is ever authorized to sell a vehicle with a condition that the buyer may later return it.”

About two to three days thereafter, the buyers brought the vehicle to the seller so that the air conditioner could be installed. When they returned in the evening to pick up the vehicle, they were informed that the air conditioner had been installed, but that the vehicle sustained body damage in an accident. The buyers refused to take delivery of the automobile vehicle because of the damage and demanded that a new and undamaged vehicle be substituted. When the seller refused, buyers stopped payment on the check and cancelled their application for financing the balance of the purchase price. The seller then filed its complaint in the circuit court of Cook County.

In response, the buyers moved to dismiss the complaint and the action pursuant to sections 2 — 615 and 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2 — 619), alleging, among other things, that the purchase contract was expressly made conditional upon the automobile being in acceptable condition and they had not accepted the automobile. The buyers also filed a counterclaim seeking damages of $1,330.35 alleging that the seller breached the purchase contract when it failed to deliver an acceptable car. The damages claim was for the difference between the contract price of the Volkswagen and the price paid by the buyers when they subsequently purchased a similar automobile from another dealer.

The seller then moved for summary judgment on its complaint and filed an answer to the counterclaim. According to the affidavit of Daniel Lynch, the seller’s general sales manager, before buyers drove the vehicle off seller’s premises, the seller acknowledged to the buyer, Joseph Frey, that the vehicle did not have an air conditioner as required under the contract, and requested that he bring the vehicle back at a later date so that the air conditioner could be installed. The counteraffidavit of Joseph Frey, filed with buyers’ response to the motion, denied having any such conversation with Lynch. On May 25, 1988, the trial court entered an order, granting summary judgment in favor of the seller on each count of the complaint and denying buyers’ sections 2 — 615 and 2 — 169 motions. This order, however, was silent as to buyers’ pending counterclaim and made no express written finding that there was no just reason to delay enforcement or appeal.

The buyers thereupon moved for a reconsideration of the summary judgment order and sought to amend their answer and counterclaim. In their motion to reconsider the summary judgment and by their proposed amended answer, the buyers sought to correct, among other things, the failure of the summary judgment order to provide for the resale value of the damaged vehicle which apparently remained in the seller’s possession. Among the amendments sought in the counterclaim was the addition of a count which sounded in bailment and sought recovery from the seller for the damages sustained to the vehicle while in its possession.

On September 30, 1988, the buyers’ motions to reconsider the summary judgment and to amend their answer and counterclaim were denied. Subsequently, the buyers filed their appeal from the order of May 25, 1988, granting the seller summary judgment on counts I and II of its complaint.

While both parties assume that we have jurisdiction to consider the merits of this appeal, a reviewing court has a duty to consider the jurisdictional issue (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 490 N.E.2d 1252), even though it was not raised by either party. (Mar Cement, Inc. v. Diorio Builders, Inc. (1987), 153 Ill. App. 3d 798, 506 N.E.2d 381.) We therefore must address the jurisdictional issue.

Supreme Court Rule 34(a) (107 Ill. 2d R. 304(a)) provides that where multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Appealability, however, lies in the substance and not the form. (Andros v. Hansen Realty Co. (1976), 44 Ill. App. 3d 635, 358 N.E.2d 664.) Thus, where the rights and liabilities in a complaint and counterclaim are identical, an order disposing of the one would, in effect, dis: pose of the other, and a finding under Rule 304(a) would not be required for appeal. Andros v. Hansen Realty Co. (1976), 44 Ill. App. 3d 635, 358 N.E.2d 664; see also International Industrial Leasing, Ltd. v. H.J. Coleman & Co. (1978), 66 Ill. App. 3d 884, 384 N.E.2d 1.

In the case at bar, seller’s complaint sought to recover the purchase price of an automobile from the buyers. The buyers, in their counterclaim, sought damages resulting from the alleged failure of the seller to deliver an “acceptable” car which they therefore had a right to reject. Thus the counterclaim of the buyers is predicated upon the same grounds as their defense to the seller’s complaint. Therefore, the order granting summary judgment in favor of the seller’s complaint necessarily entailed the disposition of the issues raised in the counterclaim as well. See International Industrial Leasing, Ltd. v. H.J. Coleman & Co. (1978), 66 Ill. App. 3d 884, 384 N.E.2d 1; Andros v. Hansen Realty Co. (1976), 44 Ill. App. 3d 635, 358 N.E.2d 664.

Because the trial court’s order necessarily disposed of the issues raised in the buyers’ counterclaim, a Rule 304(a) finding was therefore not required, and we turn next to the merits of this appeal.

Buyers contend that it was an error for the trial court to grant summary judgment in favor of seller because there still remained issues of material fact precluding summary judgment. Summary judgment is appropriate where pleadings, depositions and admissions on file together with affidavits, if any, show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005.) Where the facts are undisputed and can lead to but a single conclusion, a trial court may properly enter a summary judgment. Novak v. Equitable Life Assurance Society of United States (1968), 101 Ill. App. 2d 392, 243 N.E.2d 269.

The buyers contend that there is an issue of material fact as to whether they “accepted” the vehicle on October 24. Buyers argue that they did not “accept” the vehicle and therefore had the right to reject it, which they properly did, when it was damaged upon its return to the seller to install the air conditioner. The seller maintains that no fact issues exist to negate the conclusion that buyers accepted the car when they took possession on October 24. We agree with the buyers.

Under the provisions of section 2 — 606 of the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 2—606), acceptance is deemed to have occurred when the buyer either signifies that the vehicle was conforming or “takes or retains” the vehicle in spite of its nonconformity. Section 2 — 606 provides in pertinent part:

“(1) Acceptance of goods occurs when the buyer
(a) after a reasonable opportunity to inspect the goods signifies *** that the goods are conforming or that he will take or retain them in spite of their non-conformity.” Ill. Rev. Stat. 1987, ch. 26, par. 2-606(l)(a).

Seller’s motion for summary judgment was predicated upon the affidavit of the general manager, Daniel Lynch. His affidavit avers that the buyer, Joseph Frey, signed two riders to the purchase agreement at the time buyers took possession of the vehicle on October 24, 1987. Paragraphs 9 and 10 of that affidavit further stated as follows:

“9. At the time Mr. Frey took the vehicle, affiant had a conversation with Mr. Frey in which Mr. Frey acknowledged that the air conditioner was not installed in the vehicle and that Mr. Frey was taking it in spite of the omission of the air conditioner. It was agreed by affiant and Mr. Frey that Mr. Frey would return the vehicle to Lynch Imports, Ltd., at a later date for the installation of the air conditioner.
10. On October 24, 1987, just prior to his taking the vehicle, Joseph B. Frey gave to affiant a check in the amount of $4,706.00 as partial payment of the purchase price. It was agreed that the balance of the purchase price was to be financed. Affiant was informed by Mr. Frey that financing of the balance had been arranged.”

The buyers filed a counteraffidavit of Joseph Frey in which he denied that Lynch was personally present at the signing of any documents regarding the sale and further denied that he ever had any conversation with Lynch regarding the omission of the air conditioner and regarding the obtaining of financing. No additional affidavits were filed by the sellers.

The contradiction between the Lynch affidavit and counter-affidavit of Frey cannot be ignored. The challenge to Lynch’s asserted presence at critical phases of the transaction and his alleged participation in material conversations with the buyer precludes a resolution of the “acceptance” issue by summary adjudication. It raises an issue concerning the credibility of the seller’s affiant which is not to be resolved on a motion for summary judgment. See State Farm Mutual Automobile Insurance Co. v. Short (1970), 125 Ill. App. 2d 97, 260 N.E.2d 415; Becke v. Fred A. Smith Lumber Co. (1973), 9 Ill. App. 3d 563, 292 N.E.2d 572.

Furthermore, over and above the general issue of credibility, the conflict between the Lynch affidavit and the counteraffidavit of Frey creates a crucial factual issue as to the expressed understanding between the parties when buyers took possession of the vehicle which precludes summary adjudication. (See Szczesny v. W.G.N. Continental Broadcasting Corp. (1974), 20 Ill. App. 3d 607, 315 N.E.2d 263; Wegener v. Anna (1973), 11 Ill. App. 3d 316, 296 N.E.2d 589.) Even the fact that the buyers were notified of the omitted air conditioner cannot be acknowledged for purposes of the seller’s motion for summary judgment except through the contradicted portion of the Lynch affidavit.

The uncertainty as to what transpired between the parties when the buyers took possession of the vehicle is of particular significance in view of the fact that the original purchase order contained the handwritten phrases: “car to be in totally acceptable condition or money will be refunded to customer” and “acceptance subject to inspection.” Section 1 — 202 of the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 1—202) provides that the effect of the provisions of the Uniform Commercial Code may be varied by agreement. As presently postured, the handwritten notations in the purchase agreement are sufficient to raise an inference that buyers did not intend to waive their right to defer acceptance until the vehicle was brought to full conformity, even though they took interim possession of the vehicle. See United Air Lines, Inc. v. Conductron Corp. (1979), 69 Ill. App. 3d 847, 387 N.E.2d 1272.

In United Air Lines, Inc. v. Conductron Corp. (1979), 69 Ill. App. 3d 847, 387 N.E.2d 1272, a buyer obtained summary judgment against a seller where a fire destroyed a simulator more than 30 days after it was delivered to the buyer. At the time of delivery, the buyer was aware of a large number of defects in the goods but took possession in order to have interim use and to conduct further tests. The parties provided by express contract that acceptance was to be predicated upon successful completion of acceptance testing and on receipt of FHA approval. The court held the express contract anticipated provisional use by the buyer and was controlling. Similarly, in the present case, the express provision that “acceptance was subject to inspection” and that the car was to be “in totally acceptable condition” should at the very least suffice to raise a question of fact as to whether the buyers, in taking possession, waived their right under the agreement as well as under the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 601(a)) to reserve acceptance until the nonconformity in the vehicle was cured.

Contrary to the seller’s contention, this question of fact as to whether the buyers waived their right to defer acceptance is not resolved by the execution of rider 2. As previously noted, rider 2 provides for the buyers to obtain insurance upon taking possession and further states:

“It is expressly understood that this rider does not authorize buyer to return said vehicle to seller without seller’s prior authorization. Automobiles are not sold ‘on approval’; no salesperson or other employee of seller is ever authorized to sell a vehicle with the condition that the buyer may later return it.”

Where different instruments are executed by the same parties in the course of the same transaction, they are to be read and construed together. (Burgener v. Gain (1981), 101 Ill. App. 3d 699, 428 N.E.2d 722.) Where the two instruments are not fully integrated and consistent, the intent of the parties may be clarified by reference to the facts surrounding the execution of the documents. Burgener, 101 Ill. App. 3d at 702, 428 N.E.2d at 725-26.

Under section 2—509 of the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 2—509), the risk of loss does not pass to the buyer until the buyer accepts the goods, even though the buyer obtains an insurable interest under section 2—501 (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 501) after the goods are identified to the purchase contract. Thus rider 2, which provides for the buyer to obtain insurance, is not conclusive on its face to pass the risk of loss of the buyer. Here the only evidence concerning the execution of rider 2 and of any conversations surrounding the removal of the vehicle by the buyers is in the contested portion of the Lynch affidavit and therefore inappropriate for summary judgment consideration.

The rule is clear that in determining whether a summary judgment is warranted, the affidavits of the movant must be construed strictly and those of respondent, liberally. (Sampson Co. v. Mandel Brothers, Inc. (1954), 3 Ill. App. 2d 92, 120 N.E.2d 571.) The rights of the movant must be free from doubt or opposing inference. (Doran v. Pullman Standard Car Manufacturing Co. (1977), 45 Ill. App. 3d 981, 360 N.E.2d 440.) Moreover, even if the challenged arguments in the Lynch affidavit could have properly been considered, the determination of subjective act questions, such as waiver and intent, strains the use of summary judgment. “Where the inferences which the parties seek to have drawn deal with questions of motive, intent, or subjective feelings and reactions, summary judgment is particularly inappropriate.” Schuster v. East St. Louis Jockey Club, Inc. (1976), 37 Ill. App. 3d 483, 487, 345 N.E.2d 168, 172.

Since there are material issues of fact as to whether the buyers accepted the vehicle when they took possession, there is no need to determine whether buyers could have revoked their acceptance after returning the car to the seller to enable the seller to install the air conditioner to cure the original nonconformity. (See sections 2 — 607 and 2 — 608 of the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, pars. 2 — 607, 2 — 608).) Nor is there further need at this time to determine whether the buyers properly preserved their right on appeal to correct the award of overlapping damages under counts I and II of seller’s complaint and the refusal of the trial court to permit amendment of buyers’ answer and counterclaims.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and remanded.

Reversed and remanded.

COCCIA, P.J., and MURRAY, J., concur.


text:
    JAMES WALKER et al., Plaintiffs-Appellants, v. MIDWEST EMERY FREIGHT SYSTEMS, INC., Defendant (Paul E. DeMuth, Indiv. and d/b/a Lowrey Trucking Company, et al., Defendants-Appellees).
    First District (5th Division)
    No. 1—87—0263
    Opinion filed June 29, 1990.
    Rehearing denied August 14, 1990.

      Phillip E. Howard, Ltd., and William J. Harte, Ltd., both of Chicago (William J. Harte, of counsel), for appellants.
    Williams & Montgomery, Ltd., of Chicago (James K. Horstman, Barry L. Kroll, David J. Ryan, and C. Barry Montgomery, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs, James and Josephine Walker, appeal from a jury verdict in favor of defendants, Paul E. DeMuth (DeMuth) individually and d/b/a Lowrey Trucking Co. (Lowrey Trucking), Walter Greene, and John Tunstall, finding them not guilty of negligence. We address the following two issues: (1) whether the jury’s verdict was against the manifest weight of the evidence; and (2) whether Greene’s prior consistent statements were improperly admitted. For the following reasons, we affirm.

Plaintiffs filed a negligence action against defendants for injuries James Walker sustained when he was run over by a truck which was owned by DeMuth and leased to Midwest Emery Freight Systems, Inc. (Midwest Emery). The accident occurred in Midwest Emery’s truck storage yard and garage. Plaintiffs alleged that at the time of the accident, Greene was driving the truck and Tunstall was giving instructions to Greene. Plaintiffs alleged that DeMuth and Midwest Emery were liable under a respondeat superior theory of liability because Greene and Tunstall were their agents at the time of the accident. In their answers, DeMuth denied the agency relationship and Midwest Emery admitted the agency relationship.

In the first trial of this case, defendants raised an affirmative defense that plaintiffs’ common law action was barred under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) because an employee cannot maintain a common law negligence action against his employer or a co-employee if his injuries were accidental and arose out of and in the course of his employment. (See Walker v. Midwest Emery Freight Systems (1983), 119 Ill. App. 3d 640, 461 N.E.2d 1373.) The trial court struck the affirmative defense based on its finding that, as a matter of law, Walker was an independent contractor and not an employee of Midwest Emery. After trial, the jury returned a verdict in favor of plaintiffs, and defendants appealed, arguing that the trial court erred when it struck their affirmative defense. The appellate court agreed and held that, based on a truck lease agreement between Walker and Midwest Emery, Walker was an employee of Midwest Emery. Accordingly, defendants should have been allowed to present evidence on the affirmative defense. The court further found that although Walker was an employee of Midwest Emery, there was a question of fact as to whether Walker’s injury arose out of and in the course of his employment. The jury’s verdict was reversed, and the case was remanded for a new trial. On remand, a second jury trial was held which resulted in a verdict of not guilty for defendants and this appeal followed. From the record of the second trial, we summarize below only the testimony relevant to our decision.

Plaintiff James Walker testified that on March 24, 1974, he was in Midwest Emery’s yard performing maintenance on two trucks he owned and leased to Midwest Emery. His employee, David Hardin, was assisting him. Greene and Tunstall were also in the yard attempting to start their trucks, which would not turn over due to cold weather. The trucks were owned by DeMuth, leased to Midwest Emery, and Greene and Tunstall were the drivers assigned to the trucks.

Walker testified that Greene and Tunstall asked him and Hardin to help them start Tunstall’s truck. They attached Walker’s truck (a tractor-trailer combination) to Tunstall’s truck (a tractor) with a chain and intended to tow Tunstall’s truck while spraying ether into the engine to encourage the engine to start. Hardin drove Walker’s truck, Greene drove Tunstall’s truck, and Walker was positioned behind the cab of Tunstall’s truck on the passenger side. Walker was to spray ether into the engine when the truck started to move.

Walker testified that Tunstall was acting as a flagman for him. When Walker was in position, Tunstall asked whether he was ready. Walker responded he was ready, and when the truck started to move, he sprayed ether into the engine while holding on to a grab handle on the truck. After travelling 25 feet, the truck engine started and coasted another 25 feet before it came to a stop. Walker asked twice whether it was okay to get off the truck but he could not hear anyone because of the noise. He also could not see anyone. After receiving no response for approximately 12 to 15 seconds, Walker started to climb off the truck. When he released his grip, the truck jerked and moved forward, causing him to fall to the ground. The truck ran over him.

Under cross-examination, Walker testified that after he finished working on his truck and before he helped start Tunstall’s track, there were a couple of drops of oil on the floor in the area where he was working. However, at a deposition taken on December 17, 1981, he testified that before he helped start Tunstall’s truck, he was cleaning up a four-foot spot of grease and oil on the floor. At trial, Walker testified that he did not step in the spot and, although he did not check his shoes, he did not have grease or oil on them.

Evidence was introduced that Walker filed an application for workers’ compensation benefits and accepted checks from Midwest Emery from April 9, 1974, to November 4, 1974. Also, evidence was introduced that Midwest Emery paid certain medical bills on Walker’s behalf.

Paul DeMuth, who was called as an adverse witness in plaintiffs’ case in chief, testified that within a couple of days of the accident, he spoke with the man who was driving Tunstall’s truck but he could not remember whether that man was Greene or Tunstall. That man told DeMuth that Walker fell off his own truck and that the accident did not occur in Midwest Emery’s yard but in the street outside the yard.

Defendant Greene, who was also called as an adverse witness, testified that Walker volunteered to help start Tunstall’s truck. At the time of the accident, Tunstall was walking away from the trucks. The truck travelled approximately 15 feet before it started and another 10 feet before it stopped for a total trip of 25 feet. Greene felt a bump after the engine started but before the truck stopped. Greene testified that after the truck stopped, it did not move or jerk forward. After the truck stopped, Greene learned Walker was run over. Immediately after the accident, Walker was lying on the ground and told Greene that he may have had grease on his shoes because he just slipped off the truck.

Greene admitted that in a deposition taken on January 18, 1980, he testified that the truck was pulled around the yard once, which was approximately the distance of one block, at a speed of five miles per hour and that after Walker fell, the truck travelled another 25 to 30 feet before it stopped.

Greene also admitted that he signed a statement dated March 16, 1976, which was two years after the accident. In the statement, Greene said he and Tunstall asked Walker to help them. Walker’s truck was connected by a chain to Tunstall’s trailer, although the statement mistakenly referred to a trailer rather than a tractor. Hardin was driving Walker’s truck, Greene drove Tunstall’s truck, and Tunstall gave Hardin a signal to start moving. Greene said Hardin was directing the procedure, although it was apparent from the statement that because Hardin was driving one of the trucks, the reference should have been to Tunstall instead of Hardin. After being pulled a short distance, the engine started. The truck moved approximately 50 feet, and Tunstall, who was walking at the side, signalled Hardin and Greene to stop. When the truck stopped, Greene shifted to low gear with the clutch engaged, and pumped the accelerator pedal. After 10 to 15 seconds, Tunstall pointed to the tight chain connecting the two trucks, indicating he wanted Greene to move the truck closer so he could unhook the chain. Greene forgot Walker was on the back and he let the clutch out, causing the truck to move forward with a jerking motion. No one warned Walker that the truck was about to move. Greene felt a thump and saw Tunstall run to the rear of the tractor. Greene jumped out of the cab and saw that Walker had been run over. The only statement that Greene heard Walker make after the accident was that Walker did not expect the truck to move forward a second time after it stopped.

Greene testified at trial that the statement was the result of his interview with an investigator from plaintiffs’ attorney’s office. Walker and Hardin were present at the time. Greene told the investigator the same account of the accident as he testified to in court. The investigator took notes during the interview and afterward told Greene he would be in contact with him. A few days later a second man came to his home with the typewritten statement consisting of five pages. Greene read the first V-k pages, which he testified were accurate, and signed the statement twice on each page and at the end. He was not rushed to sign the statement and assumed that it accurately reflected his discussion with the investigator.

Greene testified, however, that the description of the accident contained in the statement was not true. Additionally, the statement contained some mistakes, such as referring to a trailer rather than a tractor, stating Hardin directed the procedure when it should have said Tunstall, and stating that Gréene shifted the truck into low gear although Greene testified it would have been impossible to do that after the truck was only stopped for 10 to 15 seconds in the cold weather.

When examined by his attorney, Greene testified that on March 26, 1974, which was two days after the accident, he made a statement to DeMuth concerning the accident. In that statement, Greene said Walker offered to help start the truck. The truck moved 25 feet and started without a jerk. The truck was pulled another 25 to 30 feet before it stopped. After the engine started, he pushed in the clutch and heard someone yell to hold it. He felt two bumps and the truck came to a stop. He saw Walker on the ground behind his truck. Walker told Greene that he must have had grease on his shoes because he just slipped off the truck. Greene also testified that he gave a statement to Midwest Emery on April 10, 1974, approximately two weeks after the accident, where he related the same account of the accident.

Greene denied that he told DeMuth that Walker fell off his own truck or that the accident happened in the street rather than in the yard.

Jay Swinarski, plaintiffs’ attorney’s investigator who prepared Greene’s written statement dated March 16, 1976, testified that he interviewed Greene several days before the statement was signed. He took notes of the interview consisting of “phrases, a word, maybe a sentence” and later typed the statement. On March 16, he gave the statement to Greene for his signature. Greene read every page and signed each page twice, once at the bottom and once at the side. When Swinarski read the statement on the day he testified at trial, he discovered that he mistakenly referred to Hardin in the statement as the man who directed the procedure when it should have been Tun-stall. On cross-examination, Swinarski admitted that he threw away his notes from the interview with Greene.

John Tracey, who was formerly an executive vice-president of Midwest Emery, testified that according to a Midwest Emery telephone report, a man named Mike Deacon, who was apparently a night watchman at the yard, notified Midwest Emery of the accident approximately 15 minutes after it occurred. The report stated “[tjruck no. 9000 was pulling no. 641, and a Mr. Jim Walker was on the back of no. 641, and truck took a jolt, and Mr. Walker was hit.” Tracey also testified that a report of Midwest Emery’s director of safety, dated three days after the accident, stated “[ejmployee was standing on side of tractor helping to start it when it suddenly jerked forward causing him to fall to the ground. The tractor then ran over Mr. Walker.” Plaintiffs’ attorney offered the director of safety’s report only against Midwest Emery.

At the close of plaintiffs’ case in chief, they filed a third-amended complaint eliminating the allegations of respondeat superior against Midwest Emery. Subsequently, Midwest Emery was granted a directed verdict without objection from plaintiffs, and as a result, it is not a party to this appeal.

In defendants’ case in chief, Tunstall testified that Walker offered to help start the trucks and Tunstall did not give any signals during the procedure. As the truck started to move with Walker on the back, Tunstall walked back to the garage because it was cold outside. He looked over his shoulder and saw Walker had fallen. He did not see the truck actually run over Walker, The truck had travelled 40 to 50 feet. He went to Walker, who was lying on the ground, and another person was already there, although Tunstall did not remember who that person was.' Tunstall thought he reached Walker before Greene. He stayed with Walker until the ambulance came and did not hear Walker say that he may have had grease on his shoes.

Tunstall was questioned about a written statement dated July 15, 1974, given to Lowrey Trucking; however, Tunstall testified he did not recall giving the statement. In that statement, Tunstall said that he saw Walker fall off the truck between the fuel tank and the right rear wheel. The rear wheels of the truck were sliding without traction and pushed Walker in front of them for 8 to 10 feet. Greene released the clutch and then the wheels ran over Walker’s upper legs and hip. The statement consisted of several pages which purported to be signed by Tunstall on each page. Tunstall testified that the signature on the first and second pages appeared to be his but he did not remember signing them. He testified that the signatures on the remaining pages did not appear to be in his handwriting.

The jury returned a general verdict in favor of defendants and answered special interrogatories finding that Greene and Tunstall were not negligent and that at the time of the accident, Greene and Tun-stall were loaned employees to Midwest Emery acting within the scope of their employment with Midwest Emery. Plaintiffs’ post-trial motion was denied and they now appeal.

Opinion

I

Initially, plaintiffs argue that the jury’s verdict in defendants’ favor was against the manifest weight of the evidence.

Generally, a jury verdict will not be overturned on appeal unless it was against the manifest weight of the evidence. (Friedland v. Allis Chalmers Co. (1987), 159 Ill. App. 3d 1, 511 N.E.2d 1199.) A jury verdict should be reversed when it was “palpably erroneous and wholly unwarranted, was clearly the result of passion or prejudice, or appears to be arbitrary, unreasonable, and not based upon the evidence.” (Friedland, 159 Ill. App. 3d at 9, 511 N.E.2d at 1205.) In considering an argument that the jury’s verdict is against the manifest weight of the evidence, the reviewing court must consider the evidence in a light most favorable to the appellee. Sloan v. O’Dell (1987), 159 Ill. App. 3d 268, 512 N.E.2d 105.

In this case, plaintiffs sought to hold Greene and Tunstall liable, arguing that after the truck stopped, Greene moved it again without warning Walker and that Tunstall was acting as a flagman for Walker but failed to signal him that it was safe to get off the truck and directed Greene to move the truck forward without warning Walker.

Viewing the evidence in a light most favorable to defendants, Greene denied that he moved the truck a second time after it stopped and testified that he felt a bump before the truck even stopped. Further, Greene testified that immediately after the accident, Walker said he may have had grease on his shoes because he slipped off the truck. Tunstall testified that he did not act as a flagman for Walker and that at the time of the accident he was walking away from the truck. This testimony supports the jury’s verdict in defendants’ favor and supports their finding that Greene and Tunstall were not negligent. Therefore, the verdict was not against the manifest weight of the evidence.

Plaintiffs, however, contend the jury’s verdict was against the manifest weight of the evidence because neither Greene’s nor Tun-stall’s testimony was believable.

It is the jury’s function to evaluate the evidence and assess the credibility of the witnesses. (Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 437 N.E.2d 872.) The reviewing court cannot resolve contradictory testimony or reevaluate the evidence and cannot reverse “a jury verdict merely because it could have reached a different conclusion [citations], even if there is conflicting evidence on factual questions which is of substantially equal weight.” Pietka, 107 Ill. App. 3d at 553, 437 N.E.2d at 879.

Plaintiffs argue that Greene’s trial testimony was not believable because two documents admitted into evidence contradicted his trial testimony. One document was Midwest Emery’s report of a telephone call notifying it of the accident, and the other document was Midwest Emery’s director of safety’s report of the accident. Both documents indicated that the truck suddenly jerked forward, causing Walker to fall. Plaintiffs offered the director of safety’s report only against Midwest Emery, and because plaintiffs subsequently amended their complaint eliminating the allegations of respondeat superior against Midwest Emery, that document was not admissible against Greene. Defendants contend that the telephone report was also admitted only against Midwest Emery; however, that claim is not supported by the record. The telephone report then was merely evidence that contradicted Greene’s trial testimony and it was the jury’s function to resolve the contradictions in the evidence.

Plaintiffs also point to several instances where Greene and Tun-stall were allegedly impeached with their prior inconsistent statements.

The probative value of a witness’ trial testimony is not destroyed by the witness’ out-of-court statement that is inconsistent with his trial testimony. (Guthrie v. Van Hyfte (1966), 36 Ill. 2d 252, 222 N.E.2d 492.) “[I]t ordinarily remains for the trier of fact to determine where the truth lies.” (Guthrie, 36 Ill. 2d at 258, 222 N.E.2d at 495.) The jury must evaluate the witness’ trial testimony, the prior inconsistent statement and the explanation of it, and assess the witness' credibility. Guthrie, 36 Ill. 2d 252, 222 N.E.2d 492.

Relevant to Greene, plaintiffs rely on his oral statement to De-Muth that the accident occurred outside the yard, his statement to Midwest Emery dated March 26, 1974, where he stated he was an employee of Lowrey Trucking, his statement to plaintiffs’ attorney’s investigator which was consistent with Walker’s trial testimony, and his deposition testimony where he stated the truck travelled around the yard once before Walker was run over.

At trial, Greene denied that he told DeMuth the accident occurred outside the yard. He also testified that the written statement prepared by plaintiffs’ attorney’s investigator did not reflect the description of the accident he gave to the investigator and that he did not read the entire statement before signing it.

Relevant to Tunstall, plaintiffs rely on a statement he gave on July 15, 1974, describing the accident in detail, where at trial he testified that he did not see the accident.

At trial, Tunstall testified that he did not remember giving the statement and that some of the signatures on the statement were not his.

Although there were inconsistencies between Greene’s and Tunstall’s prior statements and their trial testimony, it was the jury’s function to evaluate their testimony, their prior inconsistent statements, and any explanations of the statements. In this case, the jury found Greene’s and Tunstall’s trial testimony believable and its verdict was supported by the evidence. Therefore, we will not disturb the verdict.

Based on our finding, it is not necessary to address plaintiffs’ additional contention that the jury’s special interrogatory finding Greene and Tunstall were loaned employees to Midwest Emery acting within the scope of their employment was also against the manifest weight of the evidence.

II

Plaintiffs next argue that the trial court erred when it allowed Greene’s attorney to rehabilitate Greene with two prior statements he made which were consistent with his trial testimony. One of the statements was given to DeMuth on March 26, 1974, which was two days after the accident, and the other was given to Midwest Emery on April 10, 1974, which was 2V2 weeks after the accident. Both statements were made before plaintiffs filed their complaint. The trial court admitted the statements finding they were made before Greene had a motive to lie.

Generally, a witness’ prior statement which is consistent with his trial testimony is not admissible to rehabilitate the witness. (People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335.) However, if it is charged that the witness’ trial testimony is recently fabricated or that the witness has some motive for testifying falsely, then a prior consistent statement can be admitted only if it was made before the motive to fabricate arose. (Harris, 123 Ill. 2d 113, 526 N.E.2d 335.) “[PJroof that the witness gave a similar account of the occurrence, when the motive to lie was nonexistent, or before the effect of the account could be foreseen, makes the prior consistent statement admissible.” Harris, 123 Ill. 2d at 140, 526 N.E.2d at 346.

Plaintiffs argue that the statements were improperly admitted because they were made at a time when Greene had a motive to lie because he was a “possible defendant.” They rely on the Illinois Supreme Court case of People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363, where a witness testified that the defendant was with her at the time of the crime. After she was impeached on this point, defendant sought to introduce her prior consistent statement that she had told the police several weeks after the crime that defendant was with her at the time the crime occurred. The trial court refused to permit this testimony. On appeal, the supreme court agreed the testimony should have been excluded because the statement was made to police several weeks after the crime and after defendant was identified in a lineup.

Plaintiffs in the present case argue that, similarly, here, Greene’s prior consistent statements were made within several weeks of the accident and, therefore, were made at a time when Greene had a motive to lie. The situation in Clark is not analogous to the present case. In Clark, the prior consistent statement was not excluded solely because it was made within a few weeks of the crime; rather, it was also excluded because it was made after defendant was identified in a lineup. On that basis, the court found that the witness had a motive to lie. In the present case, Greene made the two statements within a few weeks of the accident and plaintiff contends that because he was involved in the accident he had a motive to lie. Under plaintiffs’ rationale, the motive to lie existed at the time the accident occurred. However, the mere fact that Greene was involved in the accident and, as plaintiffs state, he was a possible defendant does not establish that he had a motive to fabricate the statements made within several weeks of the accident. The trial judge properly admitted the statements because they were made before Greene had a motive to lie.

In plaintiffs’ reply brief, they raise for the first time the argument that Greene’s prior consistent statements were not actually consistent with his trial testimony and, therefore, they should have been admitted. Plaintiffs argue that in the statement given two- days after the accident, Greene stated that the truck travelled 50 to 55 feet, but at trial, Greene testified the truck travelled 25 feet. Plaintiffs did not raise this argument in the trial court and did not raise it in their post-trial motion. Accordingly, the argument is waived. (Ford Motor Credit Co. v. Neiser (1990), 196 Ill. App. 3d 515.) We note, however, that the claimed inconsistency is insignificant.

Ill

Lastly, plaintiffs raise numerous other issues which are not relevant in light of our determination that the jury’s verdict in defendants’ favor and its special finding that Greene and Tunstall were not negligent were not against the manifest weight of the evidence.

Because the jury found that Greene and Tunstall were not negligent in the first instance, issues regarding their employment and whether they were acting within the scope of the employment were not relevant. Similarly, issues relating to whether Walker’s injury arose out of and in the course of his employment and whether he accepted workers’ compensation benefits need not be addressed.

Specifically, these issues are whether the trial judge erred by the following: found that whether Walker’s injury arose in the course of his employment with Midwest Emery was one of fact for the jury; failed to rule as a matter of law that at the time of the accident Greene and Tunstall were employees of DeMuth d/b/a Lowrey Trucking and were not employees or loaned servants of Midwest Emery; admitted evidence that Walker filed a workers’ compensation application and accepted benefits from Midwest Emery; sustained defendants’ objection to plaintiffs’ questioning of Greene on whether he testified at the first trial that he was an employee of Midwest Emery at the time of the accident; did not allow plaintiffs to question DeMuth as to whether he was told that if Greene and Tunstall were found to be Midwest Emery’s employees then DeMuth and Lowrey Tracking would not be liable for Walker’s injury; admitted evidence of the Interstate Commerce Commission’s (ICC) regulations regarding when a truck driver is considered on duty; and tendered to the jury defendants’ instructions relating to when a driver is on duty, the definition of a loaned employee, and rules of the ICC pertaining to lease agreements.

Additionally, plaintiffs raise an argument that the trial judge erred when he granted defendants’ motion in limine prohibiting plaintiffs from introducing evidence that defendants changed attorneys during the course of litigation. Although from our review of the record the trial judge did not specifically rule on the motion in limine, we nevertheless fail to find the relevance in such testimony.

Finally, plaintiffs argue that the trial judge erred in not allowing plaintiffs to rehabilitate the testimony of Dr. Michael Carter. Because this issue relates to damages, it is not relevant.

For the foregoing reasons, we affirm the jury’s verdict in defendants’ favor.

Affirmed.

COCCIA, P.J., and MURRAY, J., concur.

       Hardin did not testify at trial.