author: JUSTICE SPITZ

text:
    JAMES CAMPBELL et al., as Coadm’rs for the Estate of Ronald J. Campbell, Deceased, Plaintiffs-Appellees, v. COLIN F. WHITE, Defendant-Appellant.
    Fourth District
    No. 4—89—0088
    Opinion filed August 31, 1989.
    Rehearing denied September 26, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Scott D. Spooner, Special Assistant Attorney General, of counsel), for appellant.
    Phebus, Tummelson, Bryan & Knox, of Urbana (Joseph W. Phebus and James D. Cottrell, of counsel), for appellees.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by defendant Colin E White from an order of the circuit court of Champaign County denying defendant’s motion to vacate a default judgment previously granted in favor of plaintiffs James and Lois Campbell, coadministrators of the estate of Ronald J. Campbell, deceased. Plaintiffs filed suit against defendant on April 10, 1987. The complaint sought damages for the wrongful death of plaintiffs’ son allegedly resulting from a collision involving a police car operated by defendant. It is alleged that, at all times relevant to the complaint, defendant is an Illinois State Police officer. The complaint is framed in two counts, negligence and wilful and wanton misconduct. Defendant was personally served with a copy of the complaint on April 21, 1987.

No answer or appearance for defendant being filed in the circuit court, plaintiffs filed a motion requesting an order of default and asking the court to set a date for prove up of damages. On July 21, 1987, plaintiffs’ motion for default as to liability was allowed.

The prove up was conducted before a jury on December 10, 1987. As a result of the prove up, the jury assessed damages against defendant as follows: $125,000 for Lois Campbell, $125,000 for James Campbell, $50,000 for Robin Campbell, and $10,000 for decedent’s estate. After excusing the jurors, the trial court limited the damages award to the estate to $4,958.10 and entered judgments against defendant in the total amount of $304,958.10 plus court costs.

On December 14, 1987, plaintiffs filed a notice of entry of judgment in which it was certified that a copy of the notice was mailed to defendant and attorney Joseph S. Miller, special assistant Attorney General, on December 11, 1987. On January 4, 1988, defendant, by Miller, filed a motion to vacate the default judgment. The motion recited the default occurred without “lack of diligence, fault or neglect on part of defendant and failure to answer complaint was the result of excusable neglect on part of Defendant’s Attorney.” The motion further recites defendant has a meritorious defense in that defendant was without fault under the circumstances surrounding the alleged occurrence. In addition, defendant filed an answer to the complaint on January 4, 1988. On January 12, 1988, plaintiffs gave notice of the discovery depositions of defendant and Miller which notice was amended on January 21, 1988, to commence said depositions on March 4, 1988. Thereafter, on February 24, 1988, Regina Haasis and Scott D. Spooner, assistant Attorney Generals, entered their appearances.

The discovery depositions were conducted on March 4, 1988, and copies of the transcripts and exhibits thereto were filed in the circuit court. In support of their motion to vacate, affidavits of defendant and Miller were also filed.

Defendant’s affidavit states as follows:

“1. That I am of legal age and would be competent to testify to the matters and things set forth herein if called as a witness in this cause.
2. That I am currently employed by the Illinois State Police as a State Trooper and was so-employed at all times referenced in the instant affidavit.
3. That I am the defendant in the case at bar, as well as in a related proceeding currently pending before the United States District Court for the Central District of Illinois (Dan-ville Division) which is known and referred to as Campbell v. White, No. 86 — 2161.
4. That I received a letter from Joseph S. Miller, Special Assistant Attorney General, dated September 23, 1986 which informed me that he had been assigned to defend me in the aforementioned civil action in federal court.
5. That other than meeting with Mr. Miller for approximately five (5) minutes prior to my deposition on December 3, 1986 (in the federal case) I have never had an opportunity to discuss this case with my appointed counsel.
6. That on April 21, 1987 I was served with a summons and complaint in the case at bar.
7. That after I was served with process, I called Attorney Miller at his law office in Springfield and was advised that I should send him the aforesaid summons and complaint.
8. That between April 21, 1987, and March 4, 1988 (the date on which I was once again deposed by counsel for plaintiffs herein) I was never able to speak with Attorney Miller regarding this case, despite repeated attempts to do so.
9. That the only correspondence which I received from Attorney Miller between April 21, 1987 and March 4, 1988 was a letter with attached interrogatories in the aforementioned federal proceeding which was sent to me on September 16, 1987.
10. That upon receipt of the aforesaid interrogatories I attempted to call Attorney Miller between five (5) and ten (10) times during September, 1987.
11. That the only person I was ever able to speak with was a secretary employed at Attorney Miller’s law office.
12. That I was never advised that a default was entered against me on July 21, 1987.
13. That I was never advised that a jury verdict in the amount of $304,928.57 [sic] was entered against me on December 10,1987.
14. That I was never advised that Attorney Miller had filed a motion to vacate the aforesaid default judgment on January 4,1988.
15. That after being served with summons on April 21, 1987 the only other information which I received regarding the instant case was on December 14, 1987, when I received notice of entry of judgment.
16. That between December 14, 1987 and December 25, 1987 I attempted to telephone Attorney Miller at least fifteen (15) times, but to no avail.
17. That until my deposition was given on March 4, 1988 I never saw any of the correspondence which passed between Attorney Miller and counsel for plaintiffs dated June 4, 1987, April 28, 1987, September 18, 1987, November 16, 1987 and December 14, 1987, all of which reference and discuss the case at bar.
18. That the instant case and the aforementioned federal proceeding are the only reasons and/or bases for any contact between Attorney Miller and I.
19. That I am convinced that I have a defense to the merits of plaintiffs’ case herein, inasmuch as I was following standard procedure in conducting a covert pursuit of the decedent on the evening of May 25, 1985, and considering that my failure to operate the police vehicle’s oscillating lights was not the proximate cause of the decedent’s death herein.”

Miller’s affidavit stated:

“1. That I am of legal age and would be competent to testify to the matters and things set forth herein if called as a witness in this cause.
2. That I am currently employed as an attorney at law in private practice in Springfield, Illinois, and was so-employed at all times referenced in the instant affidavit.
3. That at all times referenced herein I served as a Special Assistant Attorney General for the Illinois Attorney General’s Office and was, among other things, responsible for conducting the defense in a case known and referred to as Campbell v. White, United States District Court for the Central District of Illinois (Danville Division), No. 86 — 2161.
4. That sometime after April 21, 1987 I received from Trooper Colin F. White the original of a summons and a copy of the complaint in the case at bar.
5. That through inadvertence I failed to report the instant state court action to the Illinois Attorney General’s Office, and I was therefore in technical violation of that Office’s rule that Special Assistant Attorneys General handle only those cases which have been assigned to them.
6. That I have never received a formal assignment from the Illinois Attorney General’s Office to represent Trooper Colin F. White in the case at bar; nevertheless, I advised Trooper White on April 21, 1987 that I would be conducting the defense herein.
7. That I have never met with my client, Trooper Colin F. White, at any time during the course of the instant state court litigation.
8. That I am aware that on several occasions Trooper White has attempted to speak with me via the telephone regarding this case.
9. That after April 21, 1987 the only correspondence which passed between myself and Trooper White was a September 16, 1987 letter from me to which I had attached interrogatories in the aforementioned federal proceeding.
10. That I have never received a motion for default from plaintiffs’ representative in this cause, although I frankly admit that I have been advised via correspondence that my opponent herein intended to seek such a remedy.
11. That I was never sent a notice of hearing on either the motion for default and/or the damages’ prove-up in this cause, although I was advised via a November 16, 1987 letter from plaintiffs’ representative that I would be sent such a notice.
12. That notwithstanding the above, the chief reason for my lack of diligence in this cause is an ongoing problem with alcohol which I have been attempting to resolve since approximately August of 1987.
13. That efforts to remedy my alcoholism problem have included participation in an Alcoholics Anonymous program through which I have been partially successful in controlling my drinking.
14. That on or about December 1, 1987 I relapsed into alcoholism for a period of two (2) to three (3) weeks.
15. That the case at bar and the aforementioned federal proceeding are the only bases for my contact with Trooper Colin F. White.
16. That I am convinced that Trooper White has a defense to the merits of this cause, inasmuch as he was following accepted procedure in conducting a covert pursuit of the decedent on the evening of May 25, 1985, and considering that his failure to operate a police vehicle’s oscillating light was not, in my view, the proximate cause of the decedent’s death herein.”

In his discovery deposition, defendant testified that when the Federal suit was first filed (Campbell v. White (U.S. Dist. Ct. C.D. Ill.), No. 86 — 2161) he received a letter from the Attorney General’s office advising that they would represent him and providing him with a contact person. He retained this letter in his files at all times. However, after filing of the instant suit and at all times thereafter until service of notice of default, defendant did not attempt to reach his contact person.

Defendant testified that when he was served with the summons in this cause he contacted Miller by phone and spoke with him. He was told at that time that Miller would be defending him. Thereafter on approximately September 16, 1987, White received correspondence from Miller which transmitted interrogatories propounded by the plaintiffs in the Federal case. In response thereto, he made several telephone calls to Miller’s office to request he be given a transcript of his deposition in the Federal case to facilitate answering the interrogatories. Defendant testified he made 5 to 10 calls. He indicated that in all of his calls to Miller’s office, he talked to Miller’s secretary and that Miller did not return any of the calls. Defendant did not receive a report from anyone as to the status of the Champaign County case. He further testified he did not make inquiry of anyone concerning the status of the case.

Defendant did not write to Miller anytime prior to the entry of default judgment on December 10, 1987, and his only correspondence concerning either of the cases was Miller’s September 16, 1987, letter transmitting interrogatories. Defendant did not make any attempts to go to Miller’s office in Springfield. Defendant concluded that if it was important the attorney would call him back. Defendant did not call his contact in the Attorney General’s office or make _any inquiry of the Attorney General’s office concerning the status of the case. Defendant made no attempt to have different counsel assigned. Defendant made no inquiry through his superiors at the State Police as to the status of his case. Letters sent from plaintiffs’ attorney to Miller were not forwarded to defendant. Defendant stated that when he received the notice of entry of judgment he called Miller’s office about 15 times prior to Christmas. When Miller did not return his calls, defendant called and reached his contact person at the Attorney General’s office in January of 1988.

In his discovery deposition, Miller testified he recollected the telephone call from defendant notifying him of the summons and complaint. He testified he had his secretary call defendant to request a copy of the pleadings and a copy was received shortly thereafter. He did not recall precisely, but he probably told defendant he would be defending his case. The Federal case had been assigned to him. His recollection of the telephone conversation with defendant is that defendant advised Miller he had received a complaint and Miller advised defendant that the previous complaint had been dismissed. Miller does not recall the complaint in defendant’s possession being identified as a Champaign County case. After receiving the summons and complaint, Miller does not recall any conversations with defendant concerning the fact this was a new suit and he had no subsequent conversations with defendant in which Miller advised defendant that Miller would be defending the case on defendant’s behalf. He did not recall if there were further conversations with defendant after receiving the summons and complaint. He also did not recall any further written communications from defendant until subsequent to the entry of default judgment on December 10, 1987. Miller testified he recalled his secretary mentioning on one occasion that White had called. In preparing for his deposition, he checked his telephone records and did not recall seeing any messages.

Plaintiffs’ attorney called Miller’s office on June 4, 1987, and sent a follow-up letter to Miller advising that the defendant was in default in the case. On August 28, 1987, plaintiffs’ attorney again wrote Miller advising him that a default order had been entered against defendant in the circuit court and that plaintiffs understood the matter to be set for prove up in the month of October. On September 18, 1987, plaintiffs’ attorney again wrote to Miller once again reminding him the defendant was found to be in default in the instant case. Miller did not send copies of these letters to defendant and sent copies to the Attorney General’s office only the week prior to his deposition.

Miller testified that during the time from the filing of suit until December 10, 1987, he was actively practicing law in the State of Illinois. During that time he was not outside the State on business or on vacation for any extended period of time. He further testified that he had a trial and other matters scheduled for the day of December 10, 1987. Prior to December 10, 1987, he did not try to contact plaintiffs’ counsel’s office to request an extension of time and did not file any pleadings requesting such an extension. He testified he decided to do other legal work rather than do the work necessary to prepare an answer or entry of appearance in the instant case. He agreed this was probably inappropriate. Based on a letter he received from plaintiffs’ attorney on November 23, Miller believed he had time to prepare and file an answer and that he would receive notice of the prove up for damages which the letter indicates would be scheduled by the secretary of plaintiffs’ attorney. Miller received no notice of the prove up.

Apparently Miller had some difficulty with alcohol during a portion of the period in question. He abstained from alcohol in excess of eight weeks, but had a relapse in early December of 1987. Nevertheless, Miller had two court appearances set on December 10. One was a case in which he represented a client in a two-day jury trial. The other matter was continued because of the ongoing trial. Miller’s period of abstinence was from approximately September 17, 1987, until early December 1987.

A memorandum of law was filed by defendant, and plaintiffs moved to strike the portions of the affidavits of defendant and Miller referring to their considering the failure to operate the police vehicle’s oscillating lights as not being the proximate cause of decedent’s death. On May 19, 1988, arguments of counsel were heard and the matter was taken under advisement. On January 18, 1989, the trial court entered an order granting the motion to strike the portion of the affidavits of White and Miller which stated legal conclusions rather than information to which they could competently testify. The order also denied the motion to vacate the default judgment. The trial court reasoned that the conduct of Miller could not be excused, the defendant was not diligent in protecting his own interests by monitoring the status of the case, and if the default judgment was vacated, plaintiffs would be subject to the hardship of a trial after they had already participated in an emotionally taxing prove up of damages.

Before proceeding to the merits of the appeal, this court must consider a motion taken with the case. Plaintiffs moved to strike two portions of defendant’s brief. The first portion is a reference to a stipulation filed in the Federal case concerning the circumstances of decedent’s death. The stipulation itself has not been made part of the record on appeal. Defendant’s brief contains a footnote suggesting the court take judicial notice of the stipulation. The record does not indicate the trial court was aware of this stipulation or took judicial notice of it, although the trial court was advised of and did refer to the Federal litigation in general. Furthermore, although the stipulation itself was not before the trial court, in arguing the existence of a meritorious defense to the judge, defendant’s attorney does recite the facts essentially set forth in the stipulation without objection from plaintiffs. In addition, the complaint alleges defendant was an Illinois State Police officer operating a State police car when he struck the decedent and in so operating the police car was negligent (count I) or guilty of wilful and wanton misconduct (count II). From the allegations of negligence and wilful and wanton misconduct, the court understands it is alleged defendant operated the police car in pursuit of a possible traffic law violator without turning on the oscillating lights and traveling at a high rate of speed, possibly in excess of 100 miles per hour, on an interstate highway during hours of darkness.

The second portion of defendant’s brief which plaintiffs would have this court strike is the argument of whether sovereign immunity or public official immunity applies to this case. Plaintiffs contend this issue cannot be asserted on appeal because it was not raised in the trial court. Obviously whether a defendant has waived an argument for purposes of appeal should be addressed on the merits. Both briefs address the question. Therefore, as to this second portion of the defendant’s brief, plaintiffs’ motion to strike is denied, but regarding the stipulation, the motion to strike is allowed.

The first issue to consider is whether substantial justice requires the default judgment be vacated. Default judgment is a drastic remedy which is not encouraged and should be employed with great caution and only as a last resort. (Raimondo v. Pavkovic (1982), 107 Ill. App. 3d 226, 437 N.E.2d 712.) Motions to vacate filed within 30 days of the entry of a default judgment are governed by section 2 — 1301(e) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301(e)). A section 2 — 1301(e) motion need not allege as grounds for vacating the default judgment that defendant has a meritorious defense or reasonable excuse for failing to assert the defense in a timely manner. (Plantaric v. Michaels (1981), 98 Ill. App. 3d 154, 424 N.E.2d 64.) Such grounds must, however, be alleged to support a section 2 — 1401 petition to vacate. (Elliot Construction Corp. v. Zahn (1968), 99 Ill. App. 2d 112, 241 N.E.2d 129.) While both of these cases refer to predecessor statutes contained in the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 1 et seq.), the standard remains the same for the sections now reenacted in the Code.

As Plantarle points out, the question on appeal is not whether the trial court committed an abuse of discretion, but whether substantial justice has been done between the parties under the circumstances of the case. (See also Difanis v. Martin-Trigona (1979), 73 Ill. App. 3d 352, 391 N.E.2d 1067.) In determining whether substantial justice has been done, a number of factors are to be considered. These factors include whether plaintiff is a resident of Illinois, the severity of the penalty to defendant as a result of the default judgment, and the attendant hardship on plaintiff if plaintiff is required to proceed to a trial on the merits. (Dalton v. Blanford (1978), 67 Ill. App. 3d 91, 383 N.E.2d 806.) While the moving party need not allege a meritorious defense and reasonable excuse for delay, the existence of a meritorious defense and due diligence on the part of the moving party may be considered in determining what is substantial justice in the context of the case. Plantaric, 98 Ill. App. 3d 154, 424 N.E.2d 64.

Plaintiffs cite several cases for the proposition that if defendant is negligent in allowing the entry of a default judgment, the default judgment ordinarily will not be set aside even if there is a meritorious defense. Three of these cases, however, were decided pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), the predecessor to section 2 — 1401 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). (Sora Loan Corp. v. Shlifka (1971), 2 Ill. App. 3d 137, 276 N.E.2d 85; Elliot, 99 Ill. App. 2d 112, 241 N.E.2d 129; Trobiani v. Racienda (1968), 95 Ill. App. 2d 228, 238 N.E.2d 177.) The fourth, Schultz v. Meiselbar (1892), 144 Ill. 26, 32 N.E. 550, relies on a standard which no longer applies to motions to vacate defaults made within 30 days of judgment pursuant to section 2— 1301(e). Under section 2 — 1301(e), lack of diligence is only a factor and will not alone require denial of the motion. In considering this factor, it seems appropriate, as plaintiffs suggest, that the attorney’s negligence is chargeable to the party, even though all the cases cited by plaintiffs are section 72 cases and one, Bridson v. Maywood Cab Co. (1967), 79 Ill. App. 2d 295, 224 N.E.2d 572, is published in abstract only. Colletti v. Schrieffer’s Motor Service, Inc. (1962), 38 Ill. App. 2d 128, 186 N.E.2d 659; Lamoreaux v. Havranek (1960), 25 Ill. App. 2d 51, 165 N.E.2d 547.

The record indicates that Miller filed no pleading in this case until after judgment was entered when the motion to vacate the judgment was filed. It is apparent that the plaintiff did have some ongoing correspondence with Miller during the period of time prior to the default judgment being entered and the prove up being made but it does not show that Miller ever entered his appearance for the defendant. Likewise, the record shows from the affidavit of Miller he had not notified the Attorney General’s office, had not complied with their policy in notifying that office of the instant proceeding, and was not authorized pursuant to the Attorney General’s office procedures to represent the defendant in the State case. Although the plaintiffs’ attorney corresponded with Miller, they also were aware that there was no entry of appearance by Miller on behalf of defendant and no notices were given to defendant.

It was not unreasonable for the defendant to think Miller represented him in this case nor was he negligent in the selection. Although it is argued the defendant ignored the status of the proceeding, it is clear that after the receipt of the order for judgment, he immediately took action.

The major emphasis of the briefs of the parties is focused on whether defendant has a meritorious defense. Plaintiffs complain that defendant’s meritorious defense is merely that defendant did not act negligently or wilfully and wantonly. Defendant further contends that public official immunity bars the plaintiffs’ action against defendant.

In defendant’s brief, the defendant points to this court’s recent decision in Oppe v. State of Missouri (1988), 171 Ill. App. 3d 491, 525 N.E.2d 1189, cert. denied (1988), 122 Ill. 2d 579, 530 N.E.2d 250. In reference to Oppe’s decision concerning subject-matter jurisdiction, defendant’s brief quotes language in Oppe not only relating to subject-matter jurisdiction, but to public official immunity as well.

Clearly public official immunity has absolutely nothing to do with subject-matter jurisdiction. Subject-matter jurisdiction refers to the court’s right to hear and determine the general class of causes of action into which the instant cause fits, and as applied to a particular controversy, it is the right to hear that controversy. (Sweitzer v. Industrial Comm’n (1946), 394 Ill. 141, 68 N.E.2d 290.) The lack of subject-matter jurisdiction can be raised at any time, in any court, in a direct attack on a judgment or in a collateral attack. Dorr-Wood, Ltd. v. Department of Public Health (1981), 99 Ill. App. 3d 170, 425 N.E.2d 499.

Plaintiffs argue public official immunity is an affirmative defense which, if not raised, is waived. The United States Supreme Court has stated that public official immunity of Federal employees is an affirmative defense. (Harlow v. Fitzgerald (1982), 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727.) Certainly, such an immunity, if properly asserted, would bar the action against defendant. Fulk v. Roberts (1987), 164 Ill. App. 3d 194, 517 N.E.2d 1098.

Defense to jurisdiction of the subject matter or in abatement or in bar may be pleaded together without waiving any of these defenses although defenses to subject-matter jurisdiction and abatement may be tried first. Affirmative defenses which, if not expressly stated, would surprise the opposing party must be plainly set forth in the responsive pleading of the party asserting the defense. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 613(c), (d).) Immunity is not listed among the examples of affirmative defenses in section 2— 613(d). However, an affirmative defense is a defense which gives color to an opponent’s claim but then asserts new matter which apparently defeats the claim. Zieger v. Manhattan Coffee Co. (1983), 112 Ill. App. 3d 518, 445 N.E.2d 844.

Certainly defendant has not filed a responsive pleading and therefore could not have raised any such defense. Plaintiffs’ real argument is that defendant failed to raise public official immunity as a possible meritorious defense before the trial court when asking that court to vacate the default judgment. Plaintiffs correctly state that if a party appealing from an order of the circuit court asserts a new theory for reversal which has never been presented to the circuit court for consideration, the reviewing court will not consider that issue on appeal. Brown v. Lober (1979), 75 Ill. 2d 547, 389 N.E.2d 1188.

In any event, this court need not decide whether, under the circumstances of this case, defendant is immune under the common law doctrine of public official immunity, but only if defendant arguably has a meritorious defense. And then that is only one factor to consider in determining whether substantial justice has been done between the parties by the trial court’s refusal to vacate the default judgment.

In arguing the existence of a meritorious defense to the judge, defendant’s attorney does recite the facts as essentially set forth in the stipulation in the Federal court without objection from the plaintiffs. Counsel further states defendant was following accepted procedure and exercising discretion so as not to endanger other motorists traveling on the highway. Since exercise of discretion is traditionally one of the factors used in determining the propriety of public officials immunity (see Oppe, 171 Ill. App. 3d 491, 525 N.E.2d 1189), it seems defendant has raised the question sufficiently to avoid waiver on appeal although the magic words “public official immunity” were never uttered.

Here, plaintiffs are Illinois residents, although one of their witnesses, Christa Korbus, lives in Austin, Texas. The trial court’s decision relied mainly on two points: (1) the lack of diligence, not only of Miller, but also of defendant in maintaining an awareness of the status of the case; and (2) the fact that plaintiffs would be subjected to a second, emotionally draining hearing.

We note that emotional distress, anxiety, embarrassment, humiliation, expense, annoyance, and inconvenience are not actionable special damages which form the basis for actions in malicious prosecution. (Savage v. Seed (1980), 81 Ill. App. 3d 744, 401 N.E.2d 984; Alswang v. Claybon (1976), 40 Ill. App. 3d 147, 351 N.E.2d 285.) The obvious reason is that litigation naturally involves such emotions. Merely because the plaintiffs in this case will be faced with a second, emotionally draining hearing is not a sufficient basis alone for denying the motion to vacate.

The issue of jurisdiction, unlike the issue of public official immunity, not only forms the basis of an arguably meritorious defense, but since the question of subject-matter jurisdiction may be raised at any time, in any court, the question of subject-matter jurisdiction is properly raised here even though it was not considered in the trial court, and the question may be decided on the merits if there are sufficient facts in the record to make a determination.

In Oppe, this court decided that a suit against the Illinois Department of Law Enforcement and individual State troopers to recover damages for injuries resulting from a collision following a high-speed chase of an escapee from a Missouri prison must be brought in the Court of Claims. The plaintiffs attempt to avoid the same result here by relying on Kaiser v. Emrich (1980), 84 Ill. App. 3d 775, 406 N.E.2d 207, and Bartholomew v. Crockett (1985), 131 Ill. App. 3d 456, 475 N.E.2d 1035.

Kaiser decided a suit against a police officer involved in an intersection collision while driving a patrol car could be brought in the circuit court. In another automobile accident case, the Bartholomew court, after determining the defendant was not an employee of the State of Illinois, discussed the Kaiser decision at length. The Bartholomew court indicated that the statute relied on in Kaiser (Ill. Rev. Stat. 1977, ch. 127, par. 35.9(m) (now Ill. Rev. Stat. 1987, ch. 127, par. 63b4(k))) was not intended to have a jurisdictional effect and noted that nongovernmental activities forming the basis of allegations of negligence need not be asserted in the Court of Claims. A police officer driving in hot pursuit of a violator of the law is clearly exercising a uniquely governmental function.

In Robb v. Sutton (1986), 147 Ill. App. 3d 710, 716, 498 N.E.2d 267, 270, this court discussed the standards for determining whether the circuit court had subject-matter jurisdiction of an action against a former program coordinator at Southern Illinois University or whether the cause must be heard in the Court of Claims:

“To summarize, we believe that where, as here, there are (1) no allegations that an agent or employee of the State acted beyond the scope of his authority through wrongful acts; (2) the duty alleged to have been breached was not owed to the public generally independent of the fact of State employment; and (3) where the complained-of actions involve matters ordinarily within that employee’s normal and official functions of the State, then the cause of action is only nominally against the employee. As such, the claim involves actions which may be attributed to the State.”

As the Robb opinion discussed, an action seeking monetary damages for a past harm which has the potential to control actions of the State or to subject the State to liability must be brought in the Court of Claims.

In the case at bar, even though it is not alleged defendant was acting beyond the scope of his authority, the record does not contain sufficient facts from which this court can determine whether defendant was, in fact, acting outside the scope of his authority or whether a policy exists within the Department of Law Enforcement concerning high-speed pursuit without oscillating lights being activated, as defendant suggests, such that a policy of the State would be inhibited by an adverse ruling against defendant herein. In any event, even though there are not sufficient facts in the record from which this court can determine whether the circuit court has subject-matter jurisdiction of this case, substantial justice requires that the default judgment be vacated.

Accordingly, the order of the circuit court of Champaign County denying defendant’s motion to vacate the default judgment is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

McCULLOUGH, P.J., and GREEN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    MARY TIMM, Plaintiff-Appellant, v. INDIAN SPRINGS RECREATION ASSOCIATION, Defendant-Appellee (Ruth Cochran, Defendant).
    Fourth District
    No. 4—89—0139
    Opinion filed August 17, 1989.
    G. Michael Prall, of Chesley, Wilson & Prall, of Bloomington, for appellant.
    Quinn, Johnston, Henderson & Pretorius, of Peoria (John P. Fleming and Charles D. Knell, of counsel), for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

Plaintiff Mary Timm sued defendants Indian Springs Recreation Association (Indian Springs) and Ruth Cochran in the circuit court of McLean County to recover damages for personal injuries she sustained when she fell from a golf cart operated by Cochran and which was sold to Cochran by Indian Springs. Count I of plaintiff’s amended complaint alleged negligence against Indian Springs and count II alleged wilful and wanton misconduct against Indian Springs. Neither of these counts is involved in this appeal. Nor are counts V and VI, which alleged negligence on the part of Cochran.

This appeal involves only the issue of whether the trial court properly granted summary judgment in favor of Indian Springs on counts III and IV. Counts III and IV of plaintiff’s amended complaint attempted to allege causes of action in strict products liability against Indian Springs.

The order of the circuit court, filed November 16, 1988, denied Indian Springs’ motion for summary judgment as to counts I and II, and granted the motion as to counts III and IV. On January 27, 1989, an additional order of the trial court was filed denying Indian Springs’ motion to reconsider the earlier ruling on counts I and II and a request for a Supreme Court Rule 308 finding (107 Ill. 2d R. 308) permitting an interlocutory appeal. The January 27, 1989, order also denied plaintiff’s motion to reconsider the summary judgment granted as to counts III and IV, and further ordered, pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), that there was no just reason to delay enforcement or appeal of the order granting summary judgment on counts III and IV. Plaintiff filed a notice of appeal on February 14,1989.

Plaintiff was allegedly injured on May 28, 1985, when she fell from a golf cart owned and driven by Cochran. Her injury allegedly occurred because of the absence of a handrail on the cart. Cochran and her husband had purchased the cart from Indian Springs.

Indian Springs acquired the golf cart in question on or about January 10, 1980, when a lease agreement was entered into for five 1980 Model MG-IV Harley Davidson, four-wheel electric golf carts. On or about October 1, 1982, Indian Springs exercised its option under the lease to purchase the carts. At the time the carts were acquired, they were all equipped with handrails on each side.

Before 1985, these carts were rented to club members and to the general public. Indian Springs maintained these carts and in 1984 charged rental fees of $6 for 9 holes and $10 for 18 holes. The gross income from the rental of the carts in 1984 was approximately $20,000, and the maintenance expense incurred was between $4,000 and $5,000.

In 1984, it was common for handrails to be missing from carts. An attempt was made to weld handrails back onto the seat frame, but within a couple of weeks the handrails came off again. Thereafter, a decision was made not to try to weld the handrails back onto the seat frames. During 1984, the majority of the four-wheeled carts were missing at least one handrail. These carts were rented to golfers in 1984 without handrails on them.

At the end of 1984, the decision was made by the club to sell all of the carts. The entire fleet of golf carts, then 18 in number, was sold in late 1984 or in early 1985. Most of the carts were sold to the club manager, Tom Kerfott. One of the Harley Davidson carts was sold to the Cochrans. The carts were sold on an “as is” basis, and this was the only sale of golf carts ever conducted by Indian Springs.

At the time of purchasing the carts, according to Harold Cochran, the cart was equipped with one handrail, which he removed because it was flimsily bolted on. In the portion of the deposition supplied to this court, Harold does not say from which side of the cart this handrail was removed. Plaintiff’s deposition indicates she did not give any thought to looking for handrails at the time she entered the golf cart. According to Kerfott’s deposition, in order to correct the problem with the handrails, the seat frame on the cart needed to be replaced since the handrails and seat frame were an integral unit. Kerfott estimated the cost of this seat frame to be $70, but he believed that even if a whole new unit was put on the cart the handrails would come off again.

Plaintiff suffered her injury when Cochran made a turn on a hill on the sixth hole of defendant’s golf course, causing plaintiff to slide out of the cart to the downhill side. Plaintiff tried to find something to hold onto which would prevent her from sliding out, but there was nothing there.

Count III of plaintiff’s amended complaint alleges that at the time the golf cart was sold, the cart was in an unreasonably dangerous condition which defendant knew or should have known, being that a handrail on the passenger’s side was missing, and therefore the cart was not reasonably safe for its intended use. Count IV alleges the same defect, but further alleges Indian Springs conducted itself with flagrant indifference to the safety of its members and guests because attempts to refasten the handrail were ineffective and defendant was aware of, or should have been aware of, the fact that the only proper remedy was to install an entire new seat support with handrail.

The trial court found there is no factual dispute in this case. The basic question for the trial court to decide was whether Indian Springs, as a matter of law, fit within the category of persons to which the doctrine of strict products liability should be applied. After finding the defendant’s leasing of carts was not defendant’s primary operation and was incidental to the operation of the golf course, and relying on the fact the carts were sold at a one-time sale on an “as is basis,” the trial court decided the principles underlying strict products liability should not apply to this defendant.

The only issue to be considered on appeal is whether as a matter of law a golf course which rents golf carts to persons utilizing the golf course and later sells the carts is subject to an action in strict products liability for injuries which occur to a subsequent user of one of the carts. In Reed v. Bascon (1988), 124 Ill. 2d 386, 393, 530 N.E.2d 417, 420, the Illinois Supreme Court recently reviewed the standards for granting summary judgments:

“Section 2 — 1005(c) of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c)) provides that summary judgment shall be granted ‘if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Although summary judgment is to be encouraged as an aid in the expeditious disposition of a lawsuit (Allen v. Meyer (1958), 14 Ill. 2d 284, 292), it is a drastic measure and, therefore, should be allowed only when the right of the moving party is free from doubt (Purtill v. Hess (1986), 111 Ill. 2d 229, 240; Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 1016). The court must construe the pleadings, depositions, admissions, exhibits, and affidavits on file strictly against the movant in determining whether a genuine issue of material fact exists. Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398.”

Where the matter before the trial court can be decided as a matter of law, the case is a proper one for summary judgment. Nichelson v. Curtis (1983), 117 Ill. App. 3d 100, 452 N.E.2d 883.

Anyone who is in the business of placing a defective product into the stream of commerce by leasing it, rather than selling it, may be strictly liable for any injuries which proximately result therefrom. (Smith v. Metropolitan Sanitary District of Greater Chicago (1979), 77 Ill. 2d 313, 396 N.E.2d 524; Knapp v. Hertz Corp. (1978), 59 Ill. App. 3d 241, 375 N.E.2d 1349; Galluccio v. Hertz Corp. (1971), 1 Ill. App. 3d 272, 274 N.E.2d 178.) This is so even though the lessor supplies the operator for the rented machines. Supplying the operator does not change the nature of the transaction from leasing of equipment to providing a service. (Niffenegger v. Lakeland Construction Co. (1981), 95 Ill. App. 3d 420, 420 N.E.2d 262.) Nor does the sale of the leased equipment ordinarily remove the former lessor from the chain of distribution so as to defeat imposition of strict liability. Crowe v. Public Building Comm’n (1978), 74 Ill. 2d 10, 383 N.E.2d 951.

Defendant’s argument in support of summary judgment is twofold. First, this is a sale of a used vehicle and strict products liability does not apply to the sale of a used vehicle. Second, this is a one-time sale, an isolated sale and, therefore, strict liability cannot be applied to defendant.

It is true that a used car sales dealership cannot be held liable in strict products liability. (Peterson v. Lou Baehrodt Chevrolet Co. (1975), 61 Ill. 2d 17, 329 N.E.2d 785.) The reason is that the product left the chain of distribution before it got to the used car dealer. It is also true, as defendant argues, that only persons engaged in the “business” of selling are held liable under strict products liability. Certainly the sale of a used saw from one private owner, albeit the operator of a sawmill, to another is not contemplated as being covered under strict products liability. (Siemen v. Alden (1975), 34 Ill. App. 3d 961, 341 N.E.2d 713.) Nor is the sale of one item of equipment which is part of the bulk sale of the entire business. (Daniels v. McKay Machine Co. (7th Cir. 1979), 607 F.2d 771.) In Keen v. Dominick’s Finer Foods, Inc. (1977), 49 Ill. App. 3d 480, 364 N.E.2d 502, plaintiff sued a grocery store in strict liability for injuries allegedly sustained from a defective grocery cart. The store had furnished the grocery cart to the customers incident to selling other items. The court reasoned:

“In Dunham v. Vaughan and Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401, the court stated that Suvada applies with equal compulsion to all the parties in a chain who place the article into commerce. While liability does not depend upon whether there was an actual sales transaction (Galluccio v. Hertz Corp. (1971), 1 Ill. App. 3d 272, 274 N.E.2d 178), it is necessary that the party to be charged with liability be in the business of placing the allegedly defective product into the stream of commerce. (Siemen v. Alden (1975), 34 Ill. App. 3d 961, 341 N.E.2d 713.) Accordingly, it becomes apparent that the cornerstone of liability rests upon the defendant’s active participation in placing the product into commerce for use and consumption by others. One of the underlying reasons for imposing strict liability is to ensure that losses are borne by those who have created the risk and subsequently reaped the profit of marketing the allegedly defective product. Liability will not be imposed upon a defendant who is not a part of the original producing and marketing chain. Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill. 2d 17, 329 N.E.2d 785.
***
*** In this case, the allegedly defective shopping cart was placed into the stream of commerce by the parties responsible for its distribution to Dominick’s. The store, like its customer is merely a user of the shopping cart.
Public policy considerations do not demand that the duty of a storekeeper to keep its premises in a safe condition be elevated beyond the traditional standard of reasonable care. (Ryan v. Robeson’s Inc. (1969), 113 Ill. App. 2d 416, 251 N.E.2d 545.) *** Dominick’s cannot be considered to be part of the distributive chain within the ambit of the principles of strict products liability.” Keen, 49 Ill. App. 3d at 482-83, 364 N.E.2d at 504-05.

In this case, just as was the grocery store in Keen, defendant was a private, individual consumer which incidentally provided golf carts to users of the course. We are not persuaded that merely because a small fee was charged for the use of the golf cart distinguishes the Keen case from the case at bar. However, we are persuaded, as was the trial court, that this was a one-time sale by a private owner not in the business of selling golf carts to the general public and that the law of strict products liability should not be extended to apply to this situation.

Accordingly, the order of the circuit court of McLean County granting summary judgment to Indian Springs is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


author: JUSTICE GREEN

text:
    CLYDE PRICE, Plaintiff-Appellant, v. GREFCO, INC., Defendant and Third-Party Plantiff-Appellee (Great Lakes Carbon Corporation, Third-Party Defendant).
    Fourth District
    No. 4—89—0047
    Opinion filed August 17, 1989.

      James Walker, Ltd., of Bloomington, for appellant.
    Kenneth M. Snodgrass, Jr., and Kevin M. Miller, both of Goldsworthy, Fifield & Kasselberg, of Peoria, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

This appeal is from an order of the circuit court of McLean County entered on July 7, 1986, dismissing, in bar of action, claims brought by one of the plaintiffs to the case, Clyde Price, against one of the defendants, Grefco, Inc. The dismissal was granted as a sanction against Price for his failure to provide Grefco with authorizations for certain out-of-State medical providers to furnish Grefco with documents concerning treatment given by them to plaintiff, all as previously ordered by the court. The parties agree there is no statute or supreme court rule which expressly authorizes a court to order a party to execute such an authorization, and neither party has presented any precedential decision by a court of review of this State passing upon the propriety of such an order.

The parties agree that some trial courts in this State have been entering such an order. They indicate a definitive holding as to the propriety of such an order is desirable. However, because of the limited record presented to us in regard to this issue, we do not deem an attempt to write such an opinion is appropriate, but we do affirm the judgment of the circuit court.

On April 20, 1981, this litigation was commenced when plaintiff Price and four others brought suit against defendant Grefco and others seeking damages against defendant Grefco and others for personal injuries allegedly resulting from plaintiffs exposure to a diatomaceous earth product supplied by Grefco. After issue was joined and some discovery had been obtained by Grefco, on March 14, 1986, Grefco filed a motion for “execution of Medical Authorization” requesting that plaintiff be compelled to execute a medical authorization in order to allow defendant to obtain “medical bills, X-rays, records, reports, biopsy samples, tissue samples, and other documents and materials” currently in the possession of certain out-of-State medical providers who had treated plaintiff. On March 18, 1986, after a hearing, the court issued an order requiring Price to execute such an authorization within 20 days. The order contained a provision that Grefco, Inc., “submit the medical authorization to the Plaintiff’s counsel for Plaintiff’s execution.”

The record does not indicate any such authorization was ever executed by Price. On April 19, 1986, Grefco requested the court sanction Price for his failure to do so. On May 20, 1986, following a hearing, the court again ordered Price to execute such an authorization and provided the cause by Price against Grefco would be dismissed if this were not done. On June 16, 1986, Grefco filed a motion alleging Price had still failed to present the authorization, and on July 7, 1986, the court entered the order of dismissal now on appeal. After all other claims of all other parties were disposed of, plaintiff filed a timely notice of appeal on January 13,1989.

Section 2 — 1003(a) of the Code of Civil Procedure provides that “[discovery, admissions of fact and of genuineness of documents and answers to interrogatories shall be in accordance with rules.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1003.) Supreme Court Rule 201(a) lists as the methods of obtaining discovery “depositions upon oral or written questions, written interrogatories to parties, discovery or inspection of documents or property, and physical and mental examination of persons.” (Emphasis added.) (107 Ill. 2d R.. 201(a).) Supreme Court Rule 214 sets forth the procedure whereby a party can require another party to produce documents in the possession of that other party. (107 Ill. 2d R. 214.) That rule also sets forth that an independent action may exist for production of relevant documents and things against one not a party to the suit. Where, as here, the entity having possession of the documents is not subject to process in this State, obtaining such documents is dependent upon legislation or rules of court in that other State similar to Supreme Court Rule 204(b) concerning actions in this State to depose witnesses in regard to litigation in another State. 107 Ill. 2d R. 204(b).

As we have indicated, the foregoing does not give express authority for an order requiring a party to give authorization of the type ordered here. However, Illinois discovery procedures are intended to be flexible and broadly construed. (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 221 N.E.2d 410; Wilson v. Norfolk & Western Ry. Co. (1982), 109 Ill. App. 3d 79, 440 N.E.2d 238.) Because of the difficulties of obtaining inspection of documents in the possession of out-of-State third parties, we do not hold that an order upon a party requiring on authorization for inspection and copying of objects in the possession of a third party is always improper. No doubt safeguards are necessary in most cases. Those safeguards can usually be obtained by a party required to give an authorization order by use of Supreme Court Rule 201(c) providing for “protective orders” and court supervision of the discovery process. 107 Ill. 2d R. 201(c).

Here, Grefco’s motion of March 14, 1986, requesting the order for authorization alleged: (1) plaintiff had been treated at Mayo Hospital, St. Mary’s Hospital in Minnesota, and “by other physicians while he lived in Ohio”; (2) an Illinois subpoena would be ineffective to obtain medical information concerning that treatment; and (3) that information was necessary to Grefco to prepare its defense. The common law record then shows that on March 18, 1986, the court entered an order which: (1) ordered plaintiff to “execute a medical authorization within 20 days” thereafter; (2) ordered Grefco to “submit the medical authorization to Plaintiff’s counsel for Plaintiff’s execution;” and (3) recited: “this ruling is made over the Plaintiffs [sic] objection.” No report of proceedings concerning the hearing where the order was entered was filed.

On the basis of the described record, we cannot hold the entry of the March 18, 1986, order to be error. The record does not indicate the nature of plaintiff’s objection. It may well have concerned a matter which could have been corrected if pointed out. Plaintiff requested no order of protection. On appeal, plaintiff maintains the order re-' quired the health care providers to send to Grefco “biopsy samples, tissue samples, and X-rays” and authorized Grefco’s attorneys to have ex parte conferences with plaintiff’s doctors all contrary to the ruling set forth in Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, cert. denied sub nom. Tobin v. Petrillo (1987), 483 U.S. 1007, 97 L. Ed. 2d 738, 107 S. Ct. 3232. We will return to discussion of this contention later. However, the record concerning the entry of the March 18 order and the order itself give no indication the court required the authorization to include the matters to which plaintiff objects on appeal.

After showing the entry of the March 18, 1986, order the next item in the record pertinent here is the April 17, 1986, motion of Grefco for a sanction against plaintiff for his “failure to execute a medical authorization” enabling Grefco to “obtain medical records of medical providers outside the State of Illinois.” The motion alleged Grefco believed the records were “relevant” and vital to its case, and plaintiff’s counsel had informed Grefco’s counsel that such authorization would not be supplied. The record then shows an order entered on May 20, 1986, reciting that due notice has been given plaintiff and ordering plaintiff to execute an authorization as per the court order of March 18, 1986, “within 11 days” with the cause to be dismissed upon failure of plaintiff to do so. Still later, Grefco filed a further motion for sanctions on June 16, 1986, reciting plaintiffs failure to abide by the May 20, 1986, order and requesting dismissal. Finally, the record shows service on plaintiff of a notice of a July 7, 1986, hearing on the latest motion for sanction and an order, purportedly entered after a hearing, dismissing plaintiffs cause of action against Grefco with prejudice on July 7, 1986.

Dismissal of a cause of action with prejudice is a severe remedy which must be exercised with discretion. (Wilkins v. T. Enterprises, Inc. (1988), 177 Ill. App. 3d 514, 532 N.E.2d 469; Mueller v. Insurance Benefit Administrators, Inc. (1988), 175 Ill. App. 3d 587, 529 N.E.2d 1126.) Nevertheless, here, no report of proceedings was filed in regard to either the May 20, 1986, or the July 7, 1986, hearings upon which the orders of those dates imposing sanctions were entered. In the absence of a report of proceedings or other matter of record showing to the contrary, we may presume that the trial court acted within its discretion, and the matters presented support the imposition of the sanction. (Davis v. Allstate Insurance Co. (1986), 147 Ill. App. 3d 581, 498 N.E.2d 246; Pinsker v. Kansas State Bank (1986), 142 Ill. App. 3d 216, 491 N.E.2d 826.) Such was the situation here.

One more item, raised by plaintiff, requires our consideration. At the time of filing notice of appeal on January 13, 1989, plaintiff also filed in the trial court an affidavit of his counsel accompanied by two exhibits. The affidavit stated that the exhibits were (1) a letter from one of Grefco’s counsel received by the affiant on March 21, 1986; and (2) the proposed form of authorization referred to in the letter. The letter merely stated that enclosed was a medical authorization to be signed by plaintiff. The alleged, proposed authorization stated:

“You are hereby authorized to furnish and release to, GOLDSWORTHY and FIFIELD, all information, records, bills, x-rays, pathology samples and tissue slides in your possession concerning findings, treatments rendered and opinions as to Clyde Price.
The foregoing authority shall continue until revoked by me in writing. Dated_, 1986,
Clyde Price”

The affidavit stated the foregoing was the only proposed authorization ever received by plaintiffs counsel.

Nothing in either the record or the affidavit indicates the proposed authorization was ever presented to the trial court at the time it ruled upon Gref go’s requests for sanction by way of dismissal of the cause. Had this proposed authorization been before the trial court at the appropriate times, we would be concerned with the breadth of the discovery requested, particularly the reference to releasing pathology samples to Grefco. However, we do not agree with plaintiff’s contention that the proposed authorization would have permitted Grefco’s counsel to have an ex parte interview with plaintiff’s physicians.

In any event, plaintiff had the responsibility to present the information purporting to justify its refusal to give the authorization to the trial court and to see that a proper record was made. If this information were timely presented to the trial court and no report of proceedings could be obtained, plaintiff should have presented a bystander’s bill pursuant to Supreme Court Rule 323(c). 107 Ill. 2d R. 323(c).

On the basis of the record presented, we must affirm.

Affirmed.

KNECHT and SPITZ, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    MUELLER COMPANY, Plaintiff-Appellee, v. THE DEPARTMENT OF LABOR et al., Defendants-Appellants (Hugh Ford, Defendant).
    Fourth District
    No. 4—88—0894
    Opinion filed August 17, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Michael J. Kehart and James E. Peckert, both of Kehart, Shatter & Hughes, P.C., of Decatur, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

This case comes on appeal from the circuit court of Macon County. The defendant Hugh Ford was employed by the plaintiff Mueller Company from March 3, 1986, until he left the company voluntarily on September 11, 1987. Upon leaving the firm, Ford sought to be paid for the pro rata vacation time which he had earned but not taken during his second year of employment. The plaintiff refused Ford’s request.

Faced with this refusal, Ford filed a claim with the Department of Labor (Department). On February 26, 1988, the Department, after holding a hearing on Ford’s complaint, issued a wage payment demand letter to the plaintiff finding Ford was entitled to $914.19. This amount represented the value of his pro rata unused vacation time.

On March 18, 1988, the plaintiff filed a two-count complaint in the circuit court of Macon County. Count I sought administrative review of the Department’s finding and count II sought declaratory judgment that the Department’s findings were contrary to law. On May 4, 1988, count I of the complaint was dismissed on motion of plaintiff, leaving only the declaratory judgment action.

The circuit court heard argument on the legal issues and on November 9, 1988, found the decision of the Department was contrary to law. The court decided the authority relied on by the Department had been superseded by an amendment to the Illinois Wage Payment and Collection Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 39m — 1 et seq.) and the terms of the employment contract would control in this case. The court found that because the contract provided an employee became entitled to vacation time only after the end of the plaintiff’s fiscal year and Ford had not completed the fiscal year, he was not entitled to any compensation for vacation time. The Department, which was also a defendant in the circuit court action, filed a notice of appeal on December 7, 1988.

The fundamental issue in contention here is the application of the Act to the employment contract. Both parties concede that under the prior language of the Act Ford would be entitled to be paid for his unused vacation time. The plaintiff argues the legislature, by amending the Act, has materially altered its meaning and overturned prior precedent. The defendants argue the amendment merely represents a clarification of the Act and existing precedent is still valid.

Plaintiff’s vacation policy provided in part:

“INITIAL VACATION
After six months of service, new employees may take one-half of the vacation that they will have earned upon completion of their one-year anniversary. Then upon completion of one years [sic] service, the employee may take the other one-half of vacation due. Employees hired in October or November should attempt to complete their initial vacation before the end of the fiscal year. In unusual circumstances, special arrangements can be made to ensure the employee is able to schedule a vacation.
SUBSEQUENT VACATION
After the initial vacation, an employee becomes eligible for subsequent vacations at the beginning of each fiscal year. An exception to this is those years when vacation allotments advance. During these years, the employee will be allotted his regular vacation at the start of the fiscal year and the additional vacation on his anniversary date.
TERMINATION
Upon termination, the employee will be paid for any unused vacation for the current fiscal year.”

The language of the Act provides in part:

“Unless otherwise provided in a collective bargaining agreement, whenever a contract of employment or employment policy provides for paid vacations, and an employee resigns or is terminated without having taken all vacation time earned in accordance with such contract of employment or employment policy, the monetary equivalent of all earned vacation shall be paid to him or her as part of his or her final compensation at his or her final rate of pay and no employment contract or employment policy shall provide for forfeiture of earned vacation time upon separation.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 48, par. 39m — 5.

Prior to January 1, 1984, the Act read:

“Whenever a contract of employment or employment policy provides for paid vacations, and an employee resigns or is terminated without having taken all of his earned vacation time, all earned vacation shall be paid to him as final compensation at his final rate of pay in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of earned vacation time upon separation.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 48, par. 39m — 5.

The appellate court has previously considered the application of the Act prior to its amendment. In Golden Bear Family Restaurants, Inc. v. Murray (1986), 144 Ill. App. 3d 616, 494 N.E.2d 581, the court was presented with a Case where two employees were fired shortly before completing their first year with the employer and becoming eligible for their vacations. In its opinion the court stated:

“We conclude that the Department’s interpretation of the Illinois Wage Payment and Collection Act — that an employee earns vacation pay pro rata — was reasonable and consistent with Illinois law and the law of other jurisdictions. Giving the language of the Act its plain and ordinary meaning, we disagree with plaintiffs’ contentions that the statute looks to the employment contract or employment policy to define an earned vacation. The Act expressly includes the monetary equivalent of earned vacation as part of the final compensation to discharged employees (Ill. Rev. Stat. 1981, ch. 48, par. 39m — 2). Further, section 5 expressly forbids an employment contract or employment policy to forfeit an employee’s earned vacation pay upon separation. Ill. Rev. Stat. 1981, ch. 48, par. 39m — 5.
The vacation policies of plaintiffs do precisely this. Under both policies, Murray and Kilroy did not earn vacation pay pro rata; rather, their vacation pay depended on specific dates and was subject to forfeiture. Thus, plaintiffs’ vacation plans violate section 5 of the Act.” Golden Bear, 144 Ill. App. 3d at 626-27, 494 N.E.2d at 588.

The court in Golden Bear specifically held that a vacation plan where the employee did not earn vacation benefits pro rata was contrary to the forfeiture clause of section 5 of the Act. We note the 1983 amendment did not alter the forfeiture clause and, for this reason alone, to reverse is appropriate.

However, the plaintiff argues that under the amended Act, the contract controls over the statute — in contrast to the prior Act. The plaintiff argues its employment contract is controlling here and this policy provided that an employee became “eligible” for vacation only with the beginning of each fiscal year, i.e., when Ford left the plaintiff’s employ prior to the beginning of the fiscal year, he had yet to become eligible for the vacation benefits.

We do not agree with plaintiff that the word “eligible” as used in its employment contract means the same as “earned” in the Act. Plaintiff argues its employees do not become “eligible” for their vacation time until the beginning of the fiscal year and they have not “earned” their vacation for purposes of the Act until that time.

Plaintiff’s reasoning is flawed for a number of reasons. First, plaintiff's own vacation policy makes a distinction between when vacation time is earned and when an employee becomes eligible to take that time. The policy states an employee is entitled to two weeks of vacation during each of his first two years of employment. With additional years of service, the employee becomes eligible for additional vacation time. This additional vacation time becomes earned not at the beginning of the fiscal year but on the anniversary of the employee’s hiring. This clearly indicates an employee does not become “eligible” to take additional vacation time until he has “earned” it by completing the necessary years of service. Under the reading of the employment contract urged by the plaintiff, an employee could “earn” his vacation time only by being presently employed by the plaintiff on the first day of each fiscal year. Such a reading would require us to find an employee “earns” his vacation benefits for a whole year on the basis of his employment status on a single day, not by his labors on the other 364. This result would defy the common understanding of the word “earn” and we decline to adopt it.

Secondly, plaintiff contends the amendment to the Act has created a material change which favors its construction. It finds the language to be unambiguous and contends this court cannot consider the legislative history to interpret the Act. In construing statutes, the judicial role is to ascertain the intent of the legislature and give it effect, examining the entire statute for guidance. The court should seek to determine the objective which the statute sought to accomplish and the evil it desired to remedy. (City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 473 N.E.2d 1313.) Keeping this principle in mind, we do not find the amendment of the Act materially altered its effect when considered as a whole. The primary objective of the Act is to ensure employees receive all earned benefits upon leaving their employer and the evil it seeks to remedy is the forfeiture of any of those benefits. To follow the interpretation urged by the plaintiff would allow any employer to negate the protection provided by the Act simply by varying the terms of its employment policy or contract. We note that such variations are permitted by the Act in the context of collective bargaining but not in the situation presented to us here. Our review of the legislative history confirms the amendment was intended merely to clarify the language of the Act and no retreat from the substantive protections of the prior Act was intended.

For the reasons discussed above, the decision of the circuit court was in error and is reversed.

Reversed.

LUND and GREEN, JJ., concur.


author: JUSTICE WOODWARD

text:
    RUSSELL ROOSE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Risser Electric, Inc., Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—88—0923WC
    Opinion filed August 4, 1989.
    Rehearing denied September 25, 1989.
    William A. Young, of Young & Young, of Danville, for appellant.
    Dukes, Martin, Helm & Ryan, Ltd., of Danville (John F. Martin, of counsel), for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Russell Roose, filed an application for adjustment of claim under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) for injuries received in a work-related accident occurring on January 7, 1981. Claimant alleged that, while working as a construction electrician for respondent, he was standing on approximately the third rung of a ladder when he fell and fractured both wrists. The eventual result of the accident was bilateral carpal tunnel syndrome (syndrome).

On July 16, 1984, the matter was heard before an arbitrator, who decided that claimant, because of the injury, was permanently and totally disabled. In its decision and opinion on review issued on September 12, 1986, the Industrial Commission (Commission) found that a causal relationship existed between the injuries and claimant’s syndrome; that claimant was intermittently temporarily totally disabled for 1622/y weeks; and that claimant’s condition had not yet reached a state of permanency.

On appeal the circuit court of Vermilion County found that the Commission’s decision holding claimant’s syndrome was related to the January 7, 1981, injury was contrary to the manifest weight of the evidence. The cause was remanded to the Commission for it to determine what temporary total compensation, permanent total disability, and medical bills, if any, claimant had sustained without consideration of the syndrome.

On remand review, the Commission found, without giving consideration to the syndrome, that claimant had sustained permanent partial disability of 25% loss of the use of his left hand and 35% loss of the use of his right hand. It also modified the award of temporary total disability to 124/y weeks. The circuit court confirmed this award. This appeal followed.

On appeal, claimant raises one issue, namely, whether the circuit court erred when it held that the Commission’s finding of a causal connection between the industrial accident and the syndrome was against the manifest weight of the evidence.

The following facts are pertinent to our disposition of this appeal. Claimant testified that he was a construction electrician who was employed by respondent on January 7, 1981. On that date, he was climbing a ladder sideways and carrying some tools when he missed a rung and fell, hitting both hands on the tile floor below. Dr. Adeli and Dr. Heatherington treated claimant for his injuries. Dr. Adeli diagnosed a comminuted (crushed into small pieces) fracture of the distal radius, including the distal third “radius [sic],” with dorsal angulation of distal fragments of the left wrist and a comminuted Colles fracture of the right wrist. Dr. Adeli performed a closed reduction and applied short arm Cutter casts to both arms. On January 22, 1981, Dr. Adeli performed another reduction of the right wrist fracture.

Dr. Heatherington saw claimant five times from March 2 to December 18, 1981, and Dr. Adeli saw him seven times from January 30 to November 11, 1981. On March 25, 1981, when Dr. Adeli released him to return to work as of April 6, 1981, claimant still complained of wrist pain and limitation of wrist motion.

Claimant testified that he returned to his regular work duties on April 6, 1981, and was laid off in January 1982. He was called back to work on March 1, 1982, but on April 16, 1982, he ceased working due to severe pain in both wrists and forearms. At this time, Dr. Heatherington referred him to Dr. Steichen, an Indianapolis-based specialist in the treatment of hands.

Dr. Steichen first examined claimant on April 26, 1982, and found some limitation of flexion and extension of both wrists and signs of the syndrome. He placed both wrists in immobilization splints. When the symptoms were not relieved by the splints, Dr. Steichen performed a bilateral carpal tunnel release with external neurolysis of the median nerve on August 20, 1982. On November 10, 1982, claimant informed Dr. Steichen that the carpal tunnel release had relieved his forearm pain but that the pain in his wrists was so severe that he had to wear his wrist splints continuously. After a trial period with a TNS unit, Dr. Steichen referred claimant to Dr. Manders of the Community Hospital Pain Center, where claimant would learn to deal with his pain. Claimant stated that he completed a four-week program at the pain center.

On March 21, 1983, Dr. Manders diagnosed claimant’s condition as a post-traumatic pain syndrome. On July 13, 1983, he reported that claimant had done well at the pain center and that with continuation of the program at home, and with close follow up, he believed claimant would, in time, be able to obtain some type of gainful work. Dr. Manders indicated that a change in vocation might be necessary.

On December 8, 1983, Dr. Steichen said claimant would never be able to return to work on a full-time basis as a laborer or any other position which required the use of the hands and wrists.

On July 19,1984, Dr. Heatherington reported that the manipulation of claimant’s wrists during examination caused severe pain for several days.

At arbitration, claimant stated that he either wears his wrist splints or TNS unit each day, sees Dr. Heatherington regularly, and takes Emperin III for his wrist pain. He stated that he is only able to perform menial household chores, and he is unable to hold up a newspaper while reading it. Claimant testified that he participated in a bowling league, which began in September 1981, but eventually dropped out of it.

On review, the respondent submitted Dr. Adeli’s report of his February 25, 1985, examination of claimant. Dr. Adeli reported that claimant was wearing custom-made fiberglass splints over each wrist, which were removed during examination. Dr. Adeli found very few orthopedic problems, and he believed that claimant’s physician should be consulted for an evaluation. Dr. Adeli felt that claimant should gradually begin to perform light work within his physical limits.

After reviewing claimant’s upper extremities (with the wrist splints removed) at oral argument on June 24, 1985, the Commission ordered an impartial physical examination by a physician selected by the Illinois State Medical Society, as authorized by section 19(c)(1) of the Act. (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(c)(1).) The medical society selected Dr. Peterson, whose report of his August 28, 1985, examination of claimant was admitted into evidence.

Dr. Peterson noted that claimant wore bilateral wrist splints. He found good grip strength and equal reflexes bilaterally, normal dorsiflexion bilaterally, and no significant loss of sensation in the fingers or thumbs bilaterally. Volar flexion was to 45° on the right and to 30° on the left, and supination was to 45° on.the right and to 60° on the left. After viewing X rays, Dr. Peterson’s impression was a malunion of Colles’ fracture, right wrist, with radial deviation, a mild to minimal malunion of the left distal radius shaft fracture, and secondary osteoarthritis of the right radial carpal joint. His opinion (subsequently adopted by the Commission) was that claimant had from 15% to 20% permanent impairment in the right upper extremity due to the symptomatic radiocarpal arthritis, apparently due to the malunion of the fracture, from 10% to 15% impairment of the left upper extremity due to the slight malunion, and slight radial angulation of the distal radius.

In its decision and opinion on review, the Commission noted that claimant’s complaints of continuous wrist pain since his injury of January 7, 1981, are well documented in the reports of his treating and examining physicians. The Commission found that a causal relationship existed between his injuries of January 7, 1981, and the syndrome.

In this appeal, claimant argues that even after he had returned to work after April 6, 1981, the record shows that he continued to have problems with his wrists, including severe pain, swelling, and some limitation of motion. Claimant points out that there is no evidence of an injury prior to or subsequent to the one occurring on January 7, 1981. Moreover, claimant contends that not even a scintilla of evidence indicated that the syndrome and resulting disability arose from any cause other than the work-related accident. Claimant asserts that, given the fact that there was no evidence of any other cause for the presence of continued pain, the Commission was entitled to infer from said evidence that the syndrome was related to the original injury.

In response, respondent argues that the syndrome was not diagnosed until a year and a half after the accident in which claimant fractured his wrists. Respondent contends that the remoteness of the diagnosis of the syndrome raises strong questions as to whether there is any connection between the injury and the syndrome. Moreover, respondent asserts that there is no medical opinion, within a reasonable degree of medical certainty, that the syndrome was or could have been related to the fall at work. Respondent emphasizes that claimant recovered from his injury and returned to work; that Dr. Steichen in a report dated May 7, 1982, stated that he saw no evidence of carpal involvement; that claimant once golfed 18 holes in the summer of 1981 and bowled in a league which commenced in September 1981; and that he performed some chores at home. Respondent further argues that there are other plausible explanations for the cause of claimant’s syndrome.

Initially, we observe it is axiomatic that a reviewing court will not reverse the Commission’s decision unless it is against the manifest weight of the evidence. (Jacobson v. Industrial Comm’n (1981), 84 Ill. 2d 153.) It is the Commission’s function to determine if a causal relationship existed between claimant’s employment and his injury, and its judgment will not be disturbed except where it is contrary to the manifest weight of the evidence. (Interlake, Inc. v. Industrial Comm’n (1981), 86 Ill. 2d 168, 175.) Specifically, it is the province of the Commission to weigh the evidence in workers’ compensation proceedings and draw all reasonable inferences therefrom, and the reviewing court will not overturn its findings simply because a different inference could be drawn. Niles Police Department v. Industrial Comm’n (1981), 83 Ill. 2d 528.

From the evidence adduced in this case, we find the Commission could reasonably infer that the condition of claimant’s wrists was related to the January 7, 1981, injury. Claimant testified that he was never pain free, and the motion of his wrists was limited following his injury. He testified that his nonwork activities were limited and that he began a bowling league in September 1981 but eventually could not continue to do so. In April 1982, claimant stated that he stopped working due to severe pain in his wrists and forearms.

In late April 1982, Dr. Steichen placed both wrists in immobilization splints, which proved ineffective. On August 20, 1982, Dr. Steichen performed a bilateral carpal tunnel release with external neurolysis of the median nerve. This procedure did not alleviate claimant’s symptoms.

There is no evidence of an intervening accident or activity which caused claimant’s syndrome, nor is there evidence that claimant ever fully recovered from the January 7, 1981, injury. The Commission correctly noted that claimant’s complaints of continuous wrist pain following the injury were well documented in treating and examining physicians’ reports. Respondent asserts that there are other plausible explanations as to why claimant developed the syndrome in both wrists but then does not offer any alternative explanations. Moreover, there is no evidence that claimant had any wrist problems prior to the instant injury, a fact which bolsters the Commission’s reasonable inference that the syndrome was a result of the January 7, 1981, accident.

Based on the foregoing evidence, we find that the Commission’s award of temporary total disability was not against the manifest weight of the evidence. Accordingly, we reverse the judgm.ent of the circuit court of Vermilion County and reinstate the Commission’s September 12, 1986, opinion and decision on review and remand this case to the Commission to undertake such further proceedings and to enter such further orders as necessary to conform with this opinion.

Reversed and remanded with directions.

BARRY, P.J., and McNAMARA, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT E. COLLINS, Defendant-Appellant.
    Fourth District
    No. 4-88-0731
    Opinion filed August 24, 1989.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Neil Flynn, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

On May 31, 1988, defendant Robert E. Collins was charged by amended information with four counts of first degree murder alleging he, without lawful justification and with the intent to kill, shot and killed Mack Hammond on September 26, 1987 (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(1)). The trial court instructed a Sangamon County jury on the elements of first degree murder and the lesser included offenses of second degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9— 2(a)(2)) and involuntary manslaughter (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a)). The jury acquitted defendant of the murder charges and convicted him of involuntary manslaughter (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a)). The trial court sentenced defendant to 30 months’ imprisonment. Defendant appeals arguing the State failed to prove beyond a reasonable doubt defendant was not justified in the use of force to defend his person (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1) and his dwelling (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 2)). We affirm.

Defendant testified on his own behalf as follows. On September 26, 1987, defendant was in his apartment at 407 North Fifteenth Place in Springfield, Illinois, with his girlfriend Barbara Wicks. Defendant was watching television around 9:30 p.m. when someone knocked on the back door and Barbara Wicks answered it. A male voice asked whether Eve Wilson was inside. When Barbara replied in the negative, the male said he would not leave until Eve came outside. The man became verbally abusive and indicated he was going to enter the apartment to find Eve. Barbara then called defendant to the door.

Defendant found Curtis Moore, Mike Winters, and the victim, Mack Hammond, standing on his back porch. Winters appeared angry. He continued to verbally abuse Barbara and began to argue with defendant. The other men seemed calm. Although the individuals did not actually threaten defendant or strike him, at one point Winters pushed the screen door into the defendant, causing him to stumble into the apartment. Defendant then closed the screen door and went back to the kitchen window to look outside. The three men approached a car in the parking lot. Winters reached into the driver’s side and removed something from the vehicle. Defendant thought he saw a weapon, but could not be certain because it was dark. Defendant obtained his handgun and walked back to the door, where he saw Winters approaching while holding something in his hand. Defendant was afraid when he saw the men return to the door, because Winters was a reputed pimp who was known to carry guns and be violent. Defendant opened the door and fired one shot. The gun was pointed neither in the air nor at a specific person. The shot hit Mack Hammond in the chest, causing his death. Defendant did not intend to shoot anyone, rather he intended only to protect himself, Barbara, and his dwelling by frightening the three men away. After firing the shot, defendant ran into the apartment, threw the gun down, and went to his sister’s house. Defendant was very frightened.

Detective Thomas Mann testified defendant was cooperative and voluntarily made a statement to the police following his arrest. Defendant had been crying prior to the interview and appeared to be quite upset. For the most part, defendant’s statement to the police was identical to his testimony at trial. Defendant said he fired one shot to scare the men away as they were walking back to his door from the car. The defendant had said he thought he “saw something in their hand” when the police asked him if the men were armed. Defendant told the police he knew Winters but was not afraid of him.

Eve Wilson testified she had known Winters for six years and was his girlfriend at one time. Winters was a pimp who had a general reputation in the community for violent behavior. On several occasions he struck Eve with his gun. Eve had reported Winters’ behavior to the police and filed 13 charges against him. The day after the shooting, Winters approached Eve and told her he had been looking for her to work as a prostitute. At that time, Winters threatened Eve’s husband with a gun, but no shooting took place. Eve did not report the incident to the police.

Michael Winters testified that on September 26, 1987, he had gone to a housing project in Springfield to look for a male named Tracy Johnson. Curtis Moore knocked on the door at 407 North Fifteenth Place and began to argue with Barbara Wicks. Winters then went to the door and also argued with Barbara about whether or not they were inquiring at the wrong address. Both exchanged obscene remarks. After Barbara called defendant to the door, he and Winters argued for about two minutes. During the argument, the victim walked up behind Winters to ask him for money. When Winters turned to talk to the victim, defendant closed the door. Winters, Moore, and the victim were talking when defendant reopened the door and fired three or four shots at close range. Winters was giving $3 to the victim when defendant fired the fatal shot. Winters denied that he was looking for Eve Wilson, that he threatened Barbara or defendant either verbally or physically, that he returned to his car after defendant initially shut the door, or that he was armed.

The jury found defendant guilty of involuntary manslaughter and he was sentenced to 30 months’ imprisonment.

On appeal defendant contends he was not proved guilty beyond a reasonable doubt. Section 9 — 3(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a)) provides:

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.”

Defendant argues he reasonably believed he was justified in using deadly force in defense of himself, Barbara, and his dwelling. Section 7 — 1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1) provides:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

Section 7 — 2 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 2) provides:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(a) The entry is made or attempted in a violent, riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling.”

The determinative question in this case under either section is whether defendant’s belief it was necessary to use deadly force was reasonable under the circumstances. (People v. Sawyer (1986), 115 Ill. 2d 184, 503 N.E.2d 331, cert. denied (1987), 482 U.S. 930, 96 L. Ed. 2d 702, 107 S. Ct. 3216.) It is a question of fact .for the jury to decide whether the defendant’s subjective belief he was justified in using deadly force was reasonable. (Sawyer, 115 Ill. 2d at 193, 503 N.E.2d at 336.) A court will not disturb a jury verdict on appeal “ ‘unless the evidence is palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory that it justifies entertaining a reasonable doubt of the defendant’s guilt.’ ” People v. Evans (1981), 87 Ill. 2d 77, 86, 429 N.E.2d 520, 524, quoting People v. Jordan (1960), 18 Ill. 2d 489, 492-93,165 N.E.2d 296, 298.

The argument contained in the appellate brief submitted by defendant implies he did not act recklessly when he fired a shot out his back door to frighten away Winters and his companions. Defendant relies on People v. Post (1968), 39 Ill. 2d 101, 233 N.E.2d 565, wherein our supreme court held the shooting of a pistol toward the ground to discourage the return of a prowler located some distance away was not per se reckless behavior within the meaning of the involuntary manslaughter statute. Post is easily distinguishable from this case on the facts. In Post the prowler had retreated and was driving away in a car when the defendant fired a shot toward the ground to discourage the intruder from returning. Here, based on his own testimony, defendant fired his gun at point-blank range from his back door as the three men were approaching. He did not point the gun in the air or at the ground. The defendant argues he justifiably fired his gun at the men because he reasonably believed Winters and his companions were attempting to enter his dwelling to harm either him or Barbara. The question becomes whether defendant’s belief it was necessary to directly shoot at the men at close range was reasonable under the circumstances.

Defendant said he saw Winters remove what defendant thought was a gun from his car. Because it was dark, defendant could not be sure Winters had a gun, but he was known to carry one. Defendant did not tell the police he saw Winters remove something from his car, he merely said he thought he “saw something in their hand” as the men were walking back up to the door. Defendant testified he was aware of Winters’ reputation in the community for violence; however, after the shooting, defendant told the police he was not afraid of Winters. Although none of the men physically threatened defendant or Barbara or attempted to enter the apartment, defendant fired at them at point-blank range without warning. The victim died from a single gunshot wound to the chest.

The jury rejected defendant’s affirmative defenses and found him guilty of involuntary manslaughter beyond a reasonable doubt. Our review of the record reveals there was sufficient evidence for the jury to conclude it was not reasonably necessary for defendant to fire a gun at close range out his back door in the direction of three men in order to prevent what he believed was the threat of imminent death or great bodily harm to himself or Barbara or to prevent an assault upon his dwelling. We find no evidence before us that is palpably contrary to the verdict so as to raise a reasonable doubt of the defendant’s guilt.

The judgment of the circuit court of Sangamon County is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.