author: JUSTICE SLATER

text:
      In re MARRIAGE OF MARIE R. COURTRIGHT, Petitioner-Appellant, and JOHN B. COURTRIGHT, Respondent-Appellee.
    Third District
    No. 3—91—0653
    Opinion filed June 22, 1992.

      Sacks & Albrecht, of Kankakee (Leonard F. Sacks, of counsel), for appellant.
    Sebat, Swanson, Banks, Carman & Townsley, of Danville (Gill M. Garman, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

The 29-year marriage of the parties was terminated in 1986 by a judgment of dissolution which was appealed to this court. (In re Marriage of Courtright (1987), 155 Ill. App. 3d 55, 507 N.E.2d 891 (Courtright I).) In Courtright I, we approved the trial court’s award of rehabilitative maintenance reviewable at the end of two years. At the end of the two-year period the trial court reviewed the maintenance, found that petitioner (Marie) had failed to put forth a good-faith effort to become self-sufficient, but nonetheless then extended maintenance for two additional years at reduced amounts. On appeal to this court, we ruled that the trial judge erred in his finding of a lack of good-faith effort at rehabilitation and reinstated the prior rehabilitative maintenance award of $1,100 per month for two additional years, reviewable after that time. In re Marriage of Courtright (1989), 185 Ill. App. 3d 74, 540 N.E.2d 1027 (Courtright II).

In 1990 Marie petitioned the trial court to review the question, again, of continued maintenance. After a full hearing the trial court found that she "has failed to continue the efforts at rehabilitation which the [ajppellate [cjourt found sufficient in the first two year period; that [petitioner] has, in effect, discontinued efforts to enter the job market in any significant way; and that [petitioner] continues to refuse to avail herself of the higher income that the farm cash lease would produce. Consequently the [c]ourt is compelled to find that rehabilitative maintenance should cease.” Marie argues in this appeal that the order terminating rehabilitative maintenance is against the manifest weight of the evidence and an abuse of discretion by the trial judge. We disagree.

As we stated in Courtright II, our conclusion that Marie had made a good-faith effort to become self-sufficient “does not mean that if another two years pass and she still has not found permanent employment or sold her property John must continue supporting her indefinitely.” (Courtright II, 185 Ill. App. 3d at 78, 540 N.E.2d at 1030.) It is clear there is an affirmative obligation on a former spouse receiving rehabilitative maintenance to find appropriate employment. (In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 450 N.E.2d 1229; In re Marriage of Callaway (1986), 150 Ill. App. 3d 712, 502 N.E.2d 366.) When one seeks to extend an award of rehabilitative maintenance, the burden lies on the party seeking the extension to show he or she has met the affirmative duty of acquiring sufficient training or education to find employment. In re Marriage of Robinson (1989), 184 Ill. App. 3d 235, 539 N.E.2d 1365.

If one fails to make a good-faith effort to become self-sufficient, a court may terminate rehabilitative maintenance. (In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748; In re Marriage of Lasota (1984), 125 Ill. App. 3d 37, 465 N.E.2d 649.) The amount of support established and the period of time for support should be such as to give the recipient an incentive to become gainfully employed and to maximize other assets. (In re Marriage of Scafuri (1990), 203 Ill. App. 3d 385, 561 N.E.2d 402.) Rehabilitative maintenance requires a continuing effort by the petitioner to become self-sufficient.

In the summer of 1988 Marie, who held an education degree, renewed her teaching certificate and signed up to be a substitute teacher in Iroquois County. Substitute teachers in Iroquois County earn approximately $42 per day. She earned $2,050 as a substitute in the 1988-89 school year and $1,700 for 1989-90. Petitioner did not apply for any full-time teaching positions in the area and testified that she did not intend to seek additional employment beyond the substitute teaching which she had done the past two years.

In May of 1989 petitioner did sell the former marital residence which had been awarded to her as part of the marital property distribution under which she had received 67% of the $718,000 net marital estate. The residence, valued at $135,000 in 1986, was ultimately sold for only $110,000. For all practical purposes petitioner did not reside in the residence for approximately three years prior to its sale. After paying attendant sale expenses and outstanding mortgages, the sale netted $55,700. In addition, 40 acres of farmland were sold at the same time for $1,750 per acre, which resulted in after tax net proceeds of $60,000. The proceeds from these sales, approximately $115,000, were invested by petitioner in stocks, bonds and mutual funds which were earning approximately 8% per year.

For calendar years 1988 and 1989 Marie had averaged $8,532 cash income from the farmland. A fair cash rental for the farm land owned by petitioner was established to be $120 per acre, less real estate taxes, which would net a minimum of $100 per acre, or $16,000 per year. Petitioner, however, had chosen to lease the farm on a crop-share basis, which resulted in diminished returns of approximately 50% from $16,000 to $8,532. This was due, in part, to a drought which had taken place in 1988. A certified public accountant testified that if petitioner were to sell the remaining farmland at the then current prices, she could net, after sale expenses and income taxes, approximately $211,000. Conservatively invested those proceeds should earn approximately $16,000 per year.

Petitioner’s total income, without maintenance, according to her testimony, was approximately $20,000 per year. Since the termination of the marriage she has worked briefly in Colorado as a telephone operator and gift store manager, at the Holiday Inn in Kankakee as a desk clerk and as a financial planner for I.D.S. American Express and Dean Witter. All these activities were undertaken before Courtright II was decided. Since Courtright II her only attempts at employment have been substitute teaching. Marie testified that she had not applied for any permanent teaching positions after she became recertified. She had made no further efforts in the financial planning field to obtain employment since she had been laid off from Dean Witter in March of 1988.

In the case of In re Marriage of McGory (1989), 185 Ill. App. 3d 517, 541 N.E.2d 801, this court affirmed the termination of maintenance. In so doing we noted that the former wife had been given the opportunity to obtain a college diploma and become self-sufficient. Her less than diligent attempt to earn a degree and failure to diligently seek employment were held to be proper reasons for the trial court to have terminated her maintenance.

In re Marriage of Fazioli (1990), 202 Ill. App. 3d 245, 559 N.E.2d 835, recognized the affirmative duty of a former spouse seeking to increase unallocated child support and maintenance to become financially independent. There the former wife, who had a teaching degree, had allowed her teaching certificate to expire. She was operating an art gallery at a substantial loss. The court stated that her decision to operate the art gallery rather than to teach should not be the basis for increasing the financial burden on the former husband.

Part of Marie’s financial difficulties are self-imposed, to wit, her choice to crop-share the farm and not to return full time to teaching. It is clear that a former wife cannot use self-created financial difficulties as a basis for claiming maintenance when she has the ability to earn more income. (In re Marriage of Seymour (1990), 206 Ill. App. 3d 506, 565 N.E.2d 269.) An award of permanent maintenance was inappropriate where a wife failed to maximize the return from a farm that she owned and failed to seek appropriate employment. In re Support of McGrew (1980), 90 Ill. App. 3d 27, 412 N.E.2d 996.

Petitioner argues that the trial court abused its discretion in the denial of her request for continuing maintenance. An abuse of discretion is said to have occurred only where no reasonable person would take the view adopted by the trial court. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) To find an abuse of discretion this court must be able to say the trial court acted arbitrarily or without conscious judgment, or that its order either exceeds the bounds of reason or ignores recognized principles of law so that substantial injustice occurs. (In re Marriage of Krupp (1990), 207 Ill. App. 3d 779, 566 N.E.2d 429.) Although reasonable persons might differ as to the propriety of the trial court’s action in the instant case, it cannot be said, based on the record before us, that no reasonable person would adopt the view of the trial court.

The trial judge heard petitioner testify, he observed her demeanor and assessed her credibility. The judge heard Marie testify about her employment history and her desire to remain as a substitute teacher. The judge heard her testify to the effect that she had worked only 41 days in 1989 and that she believed that qualifying to become a substitute teacher and doing substitute work was all that was required. The trial judge found the petitioner’s testimony lacking and found that she had not met the burden of proving she had made a good-faith effort to become self-sufficient. His decision on this point will not be disturbed unless it is manifestly against the weight of the evidence. (In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 500 N.E.2d 612.) We find that the weight of the evidence in the record supports the court’s ruling denying further maintenance on the basis of petitioner’s lack of good-faith effort to become self-sufficient.

The order of the circuit court terminating rehabilitative maintenance is affirmed.

Affirmed.

GORMAN and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HAASE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLETUS L. HIATT, Defendant-Appellant.
    Third District
    No. 3—91—0718
    Opinion filed June 30, 1992.
    G. Edward Murphy, of Reynolds, Murphy & Associates, of Peoria (Patricia Parker, of counsel), for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (Stewart Umholtz, Assistant State’s Attorney, and John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, Cletus L. Hiatt, was charged with 20 counts of child pornography (possessing 20 different pornographic photographs of his two minor children). (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 20.1.) Prior to trial, the defendant filed a motion to dismiss, alleging that the charges were barred by the mandatory joinder provisions of sections 3 — 3 and 3 — 4(b) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1989, ch. 38, pars. 3 — 3, 3 — 4(b)). Following a hearing, the trial court denied the motion. The defendant appeals.

On May 22, 1990, police executed a search warrant at the defendant’s residence in Creve Coeur, Illinois. Among other things, they seized numerous photographs, VHS tapes, a video camera, and a VCR. About a week later, the defendant’s ex-wife told police the identity of all of the individuals in the photographs seized on May 22. She further told police that the defendant took the pictures, that two of the individuals were the defendant’s children, and that the children were between the ages of 11 and 14.

On June 19, 1990, the defendant was charged by indictment in Peoria County with the offense of child pornography under section 11 — 20.1(a)(i)(ii) of the Code. The indictment alleged that the defendant knowingly videotaped T.T., a child he knew to be under 18, while she engaged in an act of sexual intercourse. Following a jury trial, the defendant was acquitted of the charge.

On July 26, 1990, the defendant was charged by indictment in Tazewell County with child pornography under section 11 — 20.1(a)(6) of the Code. The defendant had also been charged by information with that offense on May 23, 1990. The indictment alleged that the defendant knowingly possessed a pornographic video tape of a minor child, T.T. The trial court subsequently dismissed the charge based on double jeopardy grounds apparently because the defendant had previously been acquitted of videotaping the child in Peoria County.

Thereafter, the defendant was charged by indictment in Tazewell County with 20 counts of child pornography (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 20.1(a)(6)). These charges alleged that the defendant possessed 20 different pornographic photographs of his minor children, J.H. and T.H. Prior to trial, the defendant filed a motion to dismiss, contending that the mandatory joinder provisions of section 3 — 3 of the Code barred a prosecution for those offenses, since the State knew of the photographs at the time of the previous indictment, yet failed to charge the offenses in a single prosecution. The trial court denied the defendant’s motion to dismiss, finding that the Tazewell County State’s Attorney’s office did not “know” of the instant charges at the time the earlier possession of a pornographic video tape of T.T. charge was filed. Defendant then filed a notice of appeal from the denial of the motion to dismiss.

On appeal, the defendant first argues that sections 3 — 3 and 3 — 4 of the Code bar the State’s prosecution of the instant charges.

In response, the State initially contends that the trial court’s denial of a motion to dismiss the case based on former jeopardy grounds amounts to an interlocutory order which is not appealable.

The State’s argument was recently rejected in People v. Tkomann (1990), 197 Ill. App. 3d 516, 554 N.E.2d 755. The Thomann court noted that Supreme Court Rule 604(f) (134 Ill. 2d R. 604(f)) provides that a defendant may appeal the denial of a motion to dismiss a criminal proceeding based on “former jeopardy” grounds. The court concluded that the supreme court, by using the phrase “former jeopardy,” intended to include not only traditional double jeopardy grounds, but also those situations as set forth in section 3 — 4 of the Code wherein a former prosecution is asserted as a bar to a subsequent prosecution. Accordingly, the State’s argument fails.

Turning to the issue raised by the defendant, we note that section 3 — 4(b) of the Code states in relevant part:

“A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the same offense based upon different facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense *** with which the defendant should have been charged on the former prosecution, as provided in Section 3 — 3 ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 4(b).)

Section 3 — 3 of the Code provides:

“If *** several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution ***, if they are based on the same act." (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 3 — 3.

Here, the defendant argues that the instant charges were barred by section 3 — 4 of the Code because: (1) the present charges were known to the Tazewell County State’s Attorney’s office at the time of the first Tazewell County charge; (2) the first Tazewell County charge, which was dismissed on double jeopardy grounds, was an “acquittal” within the meaning of section 3 — 4(b) of the Code; and (3) the former charge and the latter charges were based on the same act. See People v. Baker (1979), 77 Ill. App. 3d 943, 397 N.E.2d 164 (which held that possession of a controlled substance and possession of cannabis were but a single act of possession within the meaning of the compulsory joinder statute).

We agree that the present charges are barred. The State’s argument that the prosecutor did not know of the possibility of charges stemming from the photographs is not persuasive. The videotape and the photographs were discovered in the same search. Moreover, it was clear that the photos were of children under 18 years old and the defendant’s ex-wife verified that fact six days after the search. Thus, the State was aware of the criminal nature of all the material at the time of the initial charge.

Regarding whether the two offenses should be considered “the same act” within the meaning of section 3 — 3 of the Code, we find that People v. Baker (1979), 77 Ill. App. 3d 943, 397 N.E.2d 164, is analogous to the present case and dispositive of the outcome here. The defendant’s possession of the videotape and the photographs was part of the same course of conduct and was really a “single act of possession,” just as in Baker, where the defendant possessed two different types of illegal drugs that were uncovered in the same search.

The State relies on People v. Thomann (1990), 197 Ill. App. 3d 516, 554 N.E.2d 755, in support of its position that the defendant’s possession of the videotape of T.T. was not the same act as his possession of 20 photographs of his minor children.

In Thomann, the defendant was prosecuted for possessing and disseminating child pornography. In a later proceeding, the defendant was charged with possessing advertisements allegedly containing similar material. In holding that the charges were not barred by section 3 — 3, the court noted that “[sjection 3 — 3 is not intended to cover the situation in which several offenses — either repeated violations of the same statutory provision or violations of different provisions — arise from a series of acts which are closely related with respect to the offender’s single purpose or plan.” (Emphasis omitted.) 197 Ill. App. 3d at 520.

We find that Thomann is distinguishable from the present case on the basis that there, the police seized the child pornography that formed the basis for the second charge several months after the defendant committed the first crime. Here, the contraband items involving both charges were seized during a single search on the same day that the defendant was alleged to have possessed them. Under these circumstances, the State was required to bring the charges in a single prosecution.

The State further argues that the initial Tazewell County charge, which was dismissed on double jeopardy grounds, was not an “acquittal” within the meaning of section 3 — 4(b) of the Code.

We disagree. Section 2 — 1 of the Code defines an acquittal as “a verdict or finding of not guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury.” (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 1.) Criminal or penal statutes are to be strictly construed in favor of the accused and nothing is to be taken by intendment or implication against him beyond the literal and obvious meaning of the statute. People v. Scribner (1982), 108 Ill. App. 3d 1138, 440 N.E.2d 160.

We find that the statutory definition of acquittal is broad enough to encompass a dismissal based on double jeopardy grounds. An acquittal may occur even though the question of guilt or innocence has never been submitted to the trier of fact such as when a defendant is discharged on speedy trial grounds. See Black’s Law Dictionary 25 (6th ed. 1990).

For the foregoing reasons, the judgment of the circuit court of Tazewell County is reversed.

Reversed.

BARRY, P.J., and STOUDER, J., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALVIN S. SPENCER, Defendant-Appellant.
    Second District
    No. 2—90—0825
    Opinion filed June 12, 1992.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel A. Fish, State’s Attorney, of Dixon (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Alvin S. Spencer, was convicted following a bench trial of the offenses of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(1)) and theft of property under $300 (Ill. Rev. Stat. 1989, ch. 38, pars. 16 — 1(a)(1), (b)(1)). The defendant was sentenced to 12 years’ imprisonment for the criminal sexual assault conviction and to a concurrent term of 364 days in the Lee County jail for the theft conviction. The sole issue raised by the defendant on appeal is whether the 12-year sentence imposed is excessive.

At trial, V.D. testified that, on March 16, 1990, she moved to an apartment in Dixon, Illinois, which was part of a public housing project. The defendant, the defendant’s twin brother Calvin, and Walter Addison visited her apartment on March 23, 1990, in order to welcome her to the neighborhood. V.D. testified that, on March 25, 1990, she returned home at about 1 a.m. after riding around with a girlfriend. Shortly thereafter, the defendant knocked on her door. He asked to come in for a few minutes, and V.D. let him in because she “justified him as being a friend.”

V.D. and the defendant listened to tapes and talked for a while, and the defendant drank some vodka he brought with him. The defendant then took $46 that V.D. had placed in a chair pocket. The defendant told her that he would not return the money unless she had sex with him. He also offered to buy her a television set and pay her telephone bill if she had sex with him. V.D. refused and asked the defendant to leave. The defendant then threw her on the floor, held her arms and engaged in sexual intercourse with her. The intercourse occurred on a sleeping bag which was on the living room floor.

V.D. did not call the police. She did tell her boyfriend what had happened and asked him to move back in with her because she was scared. V.D. testified that the defendant came back to the apartment several times after the incident and called her “dirty names.” On March 28, 1990, the defendant knocked on the door. V.D.’s boyfriend was there, and V.D. asked the defendant to leave. V.D.’s boyfriend and the defendant got into a fight, and the police were called. V.D. told a responding police officer what had happened on March 25, and the defendant was arrested.

V.D.’s boyfriend also testified regarding the defendant’s visits to the apartment after March 25, and Debra McGlown, V.D.’s neighbor, testified that the defendant told her that he had some of V.D.’s money and that he “got that sweet, pretty thing.” A forensic scientist testified that a hair found on the sleeping bag in V.D.’s apartment was consistent with the defendant’s head hair standard.

The defendant presented an alibi defense through his own testimony and the testimony of his girlfriend. This testimony was contradicted by three witnesses called by the State in rebuttal.

The trial court found the defendant guilty of criminal sexual assault and theft of property under $300. A presentence investigation report was prepared. The report stated that the defendant was 26 years old. The defendant had previous convictions of disorderly conduct, no valid driver’s license, resisting arrest, misdemeanor unlawful use of a weapon, and the failure to have a firearm owner’s identification card. The report also stated that the defendant had earned his GED. He had lived in Dixon for almost one year and was not employed but supported himself “by gambling at Wilson’s Tavern where he plays dice and shoots pool.”

A sentencing hearing was held on July 2, 1990. V.D. testified that she no longer had a job and was “afraid to go anywhere.” The State argued that it was a very serious offense and that the maximum sentence should be imposed. Defense counsel argued that the minimum term of imprisonment would be appropriate because the defendant had no prior felony convictions. The trial judge stated that he considered the presentence investigation report and the evidence presented. He then thoroughly discussed the relevant mitigating and aggravating factors. He specifically noted that the defendant’s “record is minimum [sic] and that definitely is a mitigating factor.” He also noted, however, that the defendant overpowered the victim when she told him “no” and further stated:

“[One] of the most troubling facts to me was that after the offense occurred it wasn’t sufficient for him to let it alone. He came back every night thereafter. He called her dirty names. He knocked on her door. He wanted to fight. He called her names. He was asked to leave. So he continued to intimidate her and harass her all in a public — in a public facility which is designed to help people who need help and are looking for a place to live where they are in circumstances which are unfortunate for them and where they’re not able to find other housing.”

The court then sentenced the defendant to a term of 12 years in the Department of Corrections. The defendant’s motion for a new trial was subsequently denied, and this timely appeal followed.

On appeal, the defendant argues that the trial court abused its discretion by sentencing him to 12 years’ imprisonment, a sentence just three years short of the maximum penalty. He asserts that the sentence imposed is excessive because he had no prior felony convictions, had only a minimal record of misdemeanor convictions, and had no record of juvenile adjudications. He also contends that the sentence is excessive because the “complaining witness suffered no physical harm as a result of the criminal sexual assault.” He further argues that, based upon his prior record, the instant offense was “an aberration in an otherwise relatively law-abiding lifestyle.”

We initially note that the defendant did not raise an excessive sentence issue in his post-trial motion and did not challenge the basis of his sentence in a motion to reconsider or reduce his sentence. Although this issue may therefore be deemed waived (People v. Macke (1992), 224 Ill. App. 3d 815, 816; People v. Bolden (1991), 210 Ill. App. 3d 940, 947), we will consider the issue raised by the defendant.

The defendant was convicted of a Class 1 felony (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(b)), and a sentence of imprisonment was required because of the nature of the offense. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(c)(2)(H).) The permissible sentencing range for a Class 1 felony is a term of imprisonment of 4 to 15 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(4).) The defendant’s sentence of 12 years’ imprisonment was therefore within the permissible range.

A trial court’s sentencing decisions are entitled to great deference and weight, and the standard of review is whether the trial court abused its discretion in imposing the sentence. (People v. Streit (1991), 142 Ill. 2d 13, 18-19; People v. Perruquet (1977), 68 Ill. 2d 149, 154.) A trial court has wide latitude in sentencing a defendant to a term within the statutory range prescribed for the offense so long as it "does not consider incompetent evidence, improper aggravating factors, or ignore pertinent mitigating factors.” People v. Hernandez (1990), 204 Ill. App. 3d 732, 740.

Further, a trial court is not required to give a defendant’s rehabilitative potential more weight in its sentencing decision than it gives the seriousness of the offense. (People v. Smith (1991), 214 Ill. App. 3d 327, 341.) In fact, the seriousness of the offense has been called the most important factor to consider in imposing sentence. Hernandez, 204 Ill. App. 3d at 740.

In this cause, the trial court specifically stated that the defendant did not have a significant record of prior criminal offenses and that it considered this a mitigating factor. The court also, however, gave consideration to the seriousness of the offense, including the fact that the defendant continued to harass the victim following the offense. It then imposed a sentence three years below the maximum possible sentence. We conclude that there was no abuse of discretion under these circumstances.

We further note that we agree with the State that defendant’s past record is hardly impressive. While all of the defendant’s prior convictions were of misdemeanor offenses, the defendant’s previous experiences with the judicial system could be considered to indicate a lack of rehabilitative potential. See People v. Kendall (1991), 213 Ill. App. 3d 782, 788.

In addition, we note that we strongly disagree with the defendant’s argument that his sentence was excessive because the victim “suffered no physical harm.” A criminal sexual assault is harmful to a victim, even if no bodily harm is caused, and has been classified as a serious offense, a Class I felony, by the legislature for that reason. Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(b); cf. Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 14(a)(2), (d) (a criminal sexual assault where “the accused caused bodily harm to the victim” is aggravated criminal sexual assault, a Class X felony).

The cases relied on by defendant to support his contention that the sentence imposed was excessive are inapposite and do not persuade us to change our conclusion. (See People v. Harris (1989), 187 Ill. App. 3d 832, 844-47 (25-year sentence for aggravated criminal sexual assault excessive where the defendant was an alcoholic who was usually intoxicated during the criminal sexual acts with the victim and was being treated for his illness, had a good work record and provided financial support for his dependents, and had only two prior convictions of misdemeanor offenses); People v. Anderson (1985), 142 Ill. App. 3d 240, 243 (17-year sentence for residential burglary excessive where the defendants were 17 years old and lacked any significant or extensive prior criminal history); People v. Treadway (1985), 138 Ill. App. 3d 899, 904-05 (60-year sentence for attempted murder and armed violence excessive where the 24-year-old defendant had only a minor criminal history, had been physically abused as a child and had suffered from a drug and alcohol problem since the age of 14, and had perpetrated the offense in a fleeting moment of intoxicated rage).) Here, there was no evidence presented that the defendant had a problem with alcohol, and, as noted, the defendant had five prior convictions of misdemeanor offenses.

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

Affirmed.

NICKELS and WOODWARD, JJ., concur.


author: Mr. JUSTICE DRUCKER

text:
    Illinois Structural Steel Corporation, Plaintiff-Appellant, v. Pathman Construction Company, Defendant-Appellee.
    (No. 57706;
    First District (5th Division)
    September 27, 1974.

      Brown, Rosenthal, Carnow, Seeskin and Mulack, of Chicago (Donald S. Carnow and Morris A. Seeskin, of counsel), for appellant.
    No appearance for appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

This case involves a contract action in which plaintiff, a subcontractor, sued defendant, the general contractor, for $19,365.80, the amount allegedly due and owing on- the subcontract. Defendant counterclaimed against -plaintiff for damages ostensibly arising from plaintiffs alleged delay in furnishing the required steel. After a bench trial, the court entered judgment in favor of plaintiff for $19,365.80 plus interest and costs. The court also entered judgment for defendant on its counterclaim for $19,365.80 plus interest and costs. Plaintiff is appealing only from the adverse judgment entered against it on the counterclaim. Defendant did not cross-appeal nor file an appearance or brief.

On appeal plaintiff contends that (1) the court improperly treated defendant’s counterclaim as one for liquidated damages; (2) the damages were not foreseeable; and (3) the damages were speculative.

Defendant had a contract with the United States Air Force to construct a combination dining, administration and living facility at Chá-mate Air Force Base, Rantoul, Illinois. On or about December 16, 1966, plaintiff and defendant entered into a written subcontract by which plaintiff was to supply structural steel for this project at a contract price of $42,540. Subsequently this amoxrnt was increased by $1,460. Under this subcontract time was considered of the essence, and plaintiff expressly agreed to perform in accordance with a “critical path schedule” provided for this project. Evidence was presented which demonstrated that although plaintiff eventually supplied the steel required, there were delays in delivery of critical steel, and that delivery was not made in accordance with the “critical path schedule.” The steel delivered late was principally to be used for the central administration area. The general contract defendant had with the Air Force called for completion within 330 days and had a penalty clause if more than 330 days were needed. Although 330 days were not needed to build the dormitory wings, it was estimated that the full time period was required for the central area, tiras the prompt delivery of steel was ■ critical. Since plaintiff is not contesting the trial court’s finding of liability for delay, we will only set forth the evidence presented on the issue of damages.

William Pathman, defendant’s president, was the sole witness to testify on the issue of damages. He noted several items of damage caused by plaintiff’s delay in delivering structural steel to the central area. First, the lack of steel for this area meant that work could not continue as planned in this part of the project. La order to keep the work progressing as a whole and to keep the men working (especially to keep the gang of bricklayers on the job and to prevent their disbanding), it was necessary to begin the masonry work on the dormitory wings sooner than the “critical path schedule” called for. The general contract with the Air Force required this masonry work to be. carried out under certain temperature specifications. Therefore, because this masonry work was being begun earlier than anticipated, occurring late in winter and in early spring, temporary enclosures had to be built. The total cost of these enclosures was $36,962.64. Mr. Pathman attributed only 50% of this cost, or $18,481.32, to plaintiff’s delay since some of the enclosures would have been necessary anyway. He further itemized the costs making up this figure (i.e., labor, material, propane gas, insurance and taxes on labor, overhead and profits). In conjunction with this testimony defendant introduced records, including daily time sheets, listing the employees and showing their number of horns on each type of work with respect to the enclosures.

Pathman also explained that as a result of starting the masonry walls before doing work which would otherwise have been done, it became necessary to bring in by hand all of the required stone fill for use within the buildings. Instead of dumping by truck inside the building, the stone had to be dumped outside the building and carried in by hand. Defendant introduced a summary, prepared from payroll records, indicating a cost including markups of $20,386.22. On cross-examination Pathman was not sure if this figure represented excess costs.

As further damages, Pathman cited an increase in overhead costs due to finishing beyond the 330-day period, although no penalty was assessed under the general contract with the Air Force. These costs were in large measure due to the fact that defendant was still working on the job all the way through the end of 1967, primarily on the center core area. He stated that monthly costs in the field, without any allowance for overhead, was $5,768. For the 4 months, including overhead and. profit at 10% each, the figure came to $27,917.12.

Pathman also referred in his testimony to seven invoices which were billed to plaintiff and had not been paid. These invoices were introduced in evidence. They covered purchases of steel to cover shortages by plaintiff and corrections of work in the field made by defendant (i.e., correcting improper fabrication of structural steel and repainting the steel when necessary). The invoices totaled $2,126.96. During the period that defendant was expecting the structural steel to arrive, it became necessary to protect the ground floor of the food and administration building from freezing. Pathman estimated that based on the approximately 24,000 square feet of floor area involved and a comparison with the average cost incurred on other jobs, it cost defendant $7,200. No supporting data was introduced in evidence on this item.

Finally, Pathman noted damages due to wasted crane time and crews standing idle due to improper shipments, shortages and missing items. No exact figure was given for this damage. Plaintiff did not introduce any testimony nor any exhibits to rebut the above evidence.

The court, in ruling for defendant on its counterclaim, stated:

“On the other hand, I also find on the countercomplaint that there was a delay and a breach of contract by virtue of the delay under the terms of that very same contract and the general understanding of the parties.
Now, the proof of costs or damages in connection with this delay are not sufficiently specific for the court to be able to allocate in dollars and cents each and every item. I find that the delay did at least occasion a loss to the defendant for the amount claimed by the plaintiff, and I am setting off that amount as against the amount owed to the plaintiff.”

Opinion

Plaintiff initially contends that the court improperly treated defendant’s claim as one for liquidated damages and argues that “under Illinois law, damages are said to be liquidated where they can be determined from the contract itself or from the contract and the rules of law applicable thereto, and are unliquidated where it is necessary to introduce evidence before plaintiff can prove its case.” With this statement we agree, but we do not find that it is in conflict with any actions taken by the court. Reading the record as a whole, the court did not rely on any theory of liquidated damages. Instead, it explicitly required defendant to submit proof of actual damages sustained by plaintiff’s delay. Moreover, the court in its findings made express reference to defendant’s proof on the issue of damages. Therefore, we find the court properly treated defendant’s claim as one for unliquidated damages.

Plaintiff next argues that the damages proven were not foreseeable. These damages may be categorized as relating to (1) the temporary enclosures; (2) defective shipments and delays in shipments; (3) changes in the sequence of construction; and (4) the added length of time necessary to complete construction.

In Sitnick v. Glazer, 11 Ill.App.2d 462, 467-68, 138 N.E.2d 84, the court, quoting from 25 C.J.S. Damages §24 (1966), discussed the general standard for damages:

“ ‘As a general rule * * * the damages to which one party to a contract is entitled because of a breach thereof by the other are such as arise naturally from the breach itself, or such as may reasonably be supposed to have been within the contemplation of the parties at the time of making the contract as a probable result of a breach thereof * * *.
In the application of the rule it is held that the parties will be presumed to have contemplated that the party injured by the breach of the contract would sustain such damages as would fairly and substantially, in the usual course of things, result from such breach, in the light of all the facts known or which should have been known to them 5 *
* * ” It is not required that the parties shall have considered the consequences at the time of making the contract, but the consequences must be such as the parties may fairly be supposed to have considered, or at least would have considered as flowing from a breach of the contract if they had then been informed of all the facts/ ”

In addition to the general knowledge of this business by the parties at the time of contracting (and plaintiff acknowledged in its brief that it was generally involved in this type of construction activity), it must be remembered that the parties expressly agreed that time was of the essence, that plaintiff would be liable for actual damages resulting from delay, and that plaintiff would comply with the “critical path schedule.” Furthermore, it is a general rule of law that a party may recoup all expenses reasonably incurred in mitigating damages. (15 I.L.P. Damages § 94 (1968).) If defendant didn’t finish construction within 330 days, it was subject to a per diem penalty under the general contract with the Air Force.

In reviewing the damages claimed, we conclude that they were either foreseeable and were such as would naturally arise from plaintiff’s delay, or they were reasonably incurred in an effort to mitigate damages. In Board of Education v. United States Fidelity & Guaranty Co., 115 Ill.App.2d 416, 253 N.E.2d 663, a claim for damages due to the cost of constructing similar temporary enclosures was presented. The enclosures were made necessary because the critical subcontractor had also been late in deliveries. The court found that the general contractors expenditures for temporary enclosures were a proper element of damages.

The invoices stemmed directly from defective shipments by plaintiff and therefore naturally arose from plaintiff’s breach of contract. As to the other items of damage claimed, all arose directly due to the delay in delivery of structural steel and to the deviations from the “critical path schedule.” In light of the fact that the parties expressly agreed that time was of the essence and that plaintiff expressly agreed to be bound to the “critical path schedule,” we hold that the damages alleged and proved were foreseeable.

Finally, plaintiff avers that the damages proved were speculative and that the proof was insufficient. In Tri-County Grain Terminal Co. v. Swift & Co., 118 Ill.App.2d 313, 322, 254 N.E.2d 311, it was stated:

“Whenever the fact of injury or damages has been proved with reasonable certainty, some uncertainty as to the amount of damages sustained is not sufficient ground to set aside a jury verdict awarding damages. A party cannot be permitted to escape liability for his wrongful acts simply because the plaintiff’s damages are difficult to prove. The ‘best evidence’ which the nature of the subject will permit in such cases is sufficient to sustain a jury award.”

Nor can it be considered inadequate that Pathman was the only witness to testify on this issue. In Board of Education v. United States Fidelity & Guaranty Co., the court in discussing this issue stated:

“However, in Meyer v. Buckman, supra,. the court upheld the proof of damages, where the plaintiff was the only witness to testify as to his prospective profits. And in Capitol Paper Box, Inc. v. Belding Hosiery Mills, Inc., 350 Ill.App. 68, 111 N.E.2d 858 (1953), the court held that the testimony of the president of plaintiff corporation was sufficient to sustain a recovery for loss of profits. In the instant case the testimony of Anko’s corporate officers afforded a sufficient basis by which the probable profits could be estimated with reasonable certainty.” 115 Ill.App.2d at 430.

Some of the damage, by its very nature, required estimation. Although the proof as to a few of the items was inadequate, we find that there was evidence presented which would afford a sufficient basis to assess damages with reasonable certainty in an amount. greater than $19,365.80. Further, we note that plaintiff did not introduce evidence contradicting defendant’s proof on the amount of damages. Since the finding of the trial court was not manifestly erroneous and was supported by the evidence, the judgment is affirmed. Schatz v. Abbott Laboratories, Inc., 51 Ill.2d 143, 281 N.E.2d 323.

Affirmed.

BARRETT and LORENZ, JJ., concur.

       “Although it has been held that that fact alone is sufficient to permit a reviewing court to summarily reverse the judgment of the trial court, the ends of justice are better served if litigation is determined according to tire substantive rights of the parties and not by procedural default. As a general rule the trial court’s judgment should not be reversed except after consideration of the merits of the appeal.” Lynch v. Wolverine Insurance Co., 126 Ill.App.2d 192, 193, 261 N.E.2d 466; In Re Estate of Silverman, 6 Ill.App.3d 225, 285 N.E.2d 548.

       Clause 14 of the subcontract states as follows:
      “It is expressly UNDERSTOOD AND AGREED by and between the parties hereto that time is and shall be considered the essence of the contract on the part of said Sub-contractor, and in the event that the Sub-contractor shall fail in the performance of the entire work to be performed under this contract, by and at the time or times herein mentioned or referred to, the said Sub-contractor shall pay unto the said Contractor, as damages, all such actual damages or liquidated damages suffered by the Contractor by reason of such default; and the said Contractor shall have the right to deduct from any moneys otherwise due or to become due to the said Sub-contractor, or to sue for and recover compensation or damages for the non-performance of this contract at the time or times herein stipulated or provided for.”

       A “critical path schedule” is a schedule which is determined by getting information from each of the subcontractors and each of the trades with precise information as to when their drawings will be ready, when material will be on the job, and when it will be in place.

       Clause 14, supra, n.2.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    Henry Martin, Plaintiff-Appellant, v. Jorge Lozada, Defendant-Appellee.
    (No. 58562;
    First District (4th Division)
    September 25, 1974.

      Kiriakos Kanellos, of Chicago, for appellant.
    Irving Goodman and William L. Silverman, both of Chicago, for appellees.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

On November 6, 1970, 1 day prior to the expiration of the applicable statute of limitations, Henry Martin filed a complaint in the Circuit Court of Cook County seeking damages for personal injuries which he said were sustained when he was struck by a motor vehicle driven by the defendant, Jorge Lozada. This complaint was ultimately dismissed with prejudice pursuant to Supreme Court Rule 103(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 103(b)) on May 23, 1972. Plaintiff appeals this order contending that he had not failed to exercise reasonable diligence to obtain service and therefore that the dismissal with prejudice was error. The facts of this case are as follows:

Following the filing of the complaint on November 6, 1970, a summons was issued and placed for service with the sheriff of Cook County. The address listed on the summons was 947 West Cullom, Chicago, Illinois. This summons was returned on December 7, 1970, with the notation “not found.” Though this notation indicates that service was not obtained on the defendant, plaintiff admits in his brief that the sheriffs return was not examined at this time. On February 17, 1971, plaintiffs attorney stated that he received a telephone call from a Sidney L. Pollack. Mr. Pollack said that he represented the defendant. After a brief conversation Mr. Pollack promised to send copies of defendant’s income tax returns to plaintiff’s attorney to establish his present financial condition. These returns were never received by plaintiffs attorney and no further conversation ever took place with Mr. Pollack, nor was any other action taken in regard to this matter until the case, came up on the “No Progress” caU in the circuit court and was dismissed for want of prosecution on December 7, 1971. At this point plaintiff’s counsel examined the “case file” for the first time and discovered that the defendant had not been served. A letter was sent to the Secretary of State requesting defendant’s address. The building on CuIIom was checked and defendant’s name was found to be listed there. :

On January 26, 1972, the circuit court granted plaintiff’s motion to vacate its order of dismissal, following which an alias summons was served on defendant at 947 West CuIIom, Chicago, IUinois. Defendant filed a special, limited appearance and asked that the complaint be dismissed pursuant to Supreme Court Rule 103(b). Defendant and his brother stated that they had lived at 947 West CuIIom, Chicago, Illinois, for the past 5 and 6 years respectively, that their names had been posted on the doorbells at that address during that time, and that defendant had been amenable to service at that address during this period. Plaintiff s attorney then filed an affidavit in which the conversation with Mr. Pollack was related. On May 23, 1972, defendant’s motion was granted; the action being dismissed with prejudice pursuant to Illinois Supreme Court Rule 103(b). This rule provides as follows:

“(b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to. obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” Ill. Rev. Stat. 1971, ch. 110A, par. 103(b).

Plaintiff’s argument in the instant appeal begins with a misconception regarding the respective burden imposed on each side in proceedings under Rule 103(b). We are urged to reverse the order of the trial court since defendant had "* * * failed to make out any case óf lack of diligence on the part of plaintiff in obtaining service of summons on the defendant.” The burden of demonstrating reasonable diligence to obtain service rests not with defendant, once he has made his prima facie showing, but with the plaintiff. As we stated in Alsobrook v. Cote, 133 Ill.App.2d 261, 264, 273 N.E.2d 270:

“The Rule [Illinois Supreme Court Rule 103(b)] does not set a specific time limitation within which a defendant must be served, but it does put the burden upon the plaintiff to show that he has exercised reasonable diligence to obtain service. Mosley v. Spears, 126 Ill.App.2d 35, 261 N.E.2d 510.”

We further note that a motion to dismiss for lack of reasonable diligence to obtain service under Rule 103(b) is addressed to the “sound discretion of the trial court. A reviewing court may upset the trial court’s ruling on the motion where there is an abuse of discretion.” Galvan v. Morales, 9 Ill.App.3d 255, 257, 292 N.E.2d 36. See also Mosley, cited above, and Karpeil v. LaSalle National Bank, 119 Ill.App.2d 157, 255 N.E.2d 61.

We are of the opinion that in the instant case plaintiff did not exercise reasonable diligence to obtain service of summons on the defendant and that the trial court did not abuse its discretion in dismissing the action with prejudice. The summons was returned to plaintiff’s attorney, with the notation that would have shown at once that service had not been obtained on defendant on December 7, 1970. It is undisputed in the record before us that this return was not examined at this time. After more than 2 months passed the telephone conversation with Mr. Pollack, related above, took place. The promised copies of the tax returns were never sent to plaintiff’s attorney. The record does not show any further conversation with Mr. Pollack or that any attempt to contact him was made, though almost 10 months passed before the case was dismissed for want of prosecution. The return was then examined for the first time and the fact that service had not been obtained upon defendant discovered. It was hardly an abuse of discretion for the trial court to rule that this sequence of events did not demonstrate a reasonable exercise of diligence on the part of plaintiff to obtain service.

Plaintiff does not dispute that these events took place, but submits that as a result of the telephone conversation that plaintiff’s attorney states he had with Mr. Pollack, he was “deluded” into believing that defendant had been served and “[t]herefore the Sheriff’s return was not examined.” It is argued that this telephone conversation proved that defendant had actual knowledge of the complaint filed and that the dismissal under Rule 103(b) was not proper. We disagree.

Plaintiffs argument rests primarily for support on Alsobrook v. Cote, cited above, when raising the question of defendant’s actual knowledge of the complaint filed. This knowledge is, however, merely one factor out of many which this court may consider.

“There is no fixed rule or absolute standard which can be universally applied to determine whether a plaintiff has exercised reasonable diligence to obtain service; each case, of necessity, must be judged and evaluated on its own peculiar facts and circumstances. Courts, however, in making a determination have looked to a number of factors including: (1) the length of time used to obtain service of process (Kohlaas v. Morse, 36 Ill.App.2d 158, 183 N.E.2d 16); (2) the activities of the plaintiff (Felton v. Coyle, 66 Ill.App.2d 4, 214 N.E.2d 359, Davis v. Anthony, 67 Ill.App.2d 226, 214 N.E.2d 603); (3) any knowledge on the part of the plaintiff of the defendant’s location (Karpiel v. LaSalle National Bank of Chicago, 119 Ill.App.2d 157 255 N.E.2d 61, Mosley v. Spears, 126 Ill.App.2d 35, 261 N.E.2d 510); (4) the ease with which the defendant’s whereabouts could have been ascertained (Caliendo v. Public Taxi Service, Inc., 70 Ill.App.2d 86, 217 N.E.2d 369, Harvey v. Lippens, 87 Ill.App.2d 363, 231 N.E.2d 613); (5) the actual knowledge by the defendant of the pendency of the action as the result of ineffective service (Hahn v. Wiggins, 23 Ill.App.2d 392, 163 N.E.2d 562, De Cicco v. Reed, 77 Ill.App.2d 349, 222 N.E.2d 346); and (6) special circumstances which would affect the efforts made by the plaintiff. Hahn v. Wiggins, 23 Ill.App.2d 391, 163 N.E.2d 562.” (133 Ill.App.2d 261, 264.)

Considering the peculiar facts and circumstances of the instant case, in light of the factors discussed above, it is quite clear that plaintiff did not exercise reasonable diligence to obtain service. There is nothing in the record presented to this court to dispute that defendant was at all times amenable to service at the address listed on the original summons by plaintiff. When the alias summons was issued, defendant was easily located and served at this same address. Plaintiff appears to have made no actual effort to obtain service on defendant during this period, or even to determine if in fact defendant had been served with summons initially. The trial court, therefore, committed no error in dismissing this action.

Even if we were to accept that plaintiff’s failure to exercise reasonable diligence could have been excused by the telephone call from Mr. Pollack, plaintiff further has failed to meet his burden of proof on this issue before the trial court. The only proof offered to the trial court was the affidavit of plaintiff’s counsel that he had received a telephone call on a certain date from a man that claimed to represent defendant. Plaintiff submits that on the basis of this affidavit alone he had proven actual knowledge of the complaint on the part of the defendant and that this call was a positive act to delude plaintiff into believing that service had been made so as to prevent any further action to obtain service. We do not agree with this argument.

In Alsobrook v. Cote, we noted that actual knowledge by defendant of the pendency of the action as a result of ineffective service would be one factor considered in determining whether plaintiff had exercised reasonable diligence to obtain service. In that case, we cited two examples of such ineffective service; where the attorney was served instead of the client and the knowledge of this service imputed to the client (Hahn v. Wiggins), and where a relative of defendant was improperly served as defendant’s “agent.” (De Cicco v. Reed.) In the instant case, we are faced not with ineffective service, but rather a sheriff’s return that shows no service at all. There was no showing made by plaintiff that defendant in fact had actual knowledge of the action resulting from this attempt to serve him. Further, no showing was made that Sidney Pollack actually represented defendant so that knowledge of the action could then be imputed to defendant. Defendant states that the first knowledge he had of the action was when the alias summons was served. Absent proof to the contrary presented by plaintiff, this statement must be accepted. The affidavit of plaintiff’s counsel, standing alone, is insufficient to satisfy the burden of proof required.

For the foregoing reasons, the order of the Circuit Court of Cook County, dismissing this cause of action with prejudice is hereby affirmed.

Judgment affirmed.

DIERINGER and JOHNSON, JJ., concur.


author: Mr. JUSTICE EBERSPACHER

text:
    Leon Wheat et al., Plaintiffs-Appellees, v. Freeman Coal Mining Corporation, Defendant-Appellant.
    (No. 73-139;
    Fifth District
    July 23, 1974.

      Modified upon denial of rehearing October 17, 1974.

      Robert S. Hill, of Benton, for appellant.
    Harris and Lambert, of Marion, for appellees.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Franklin County in an action to recover damages for the tortious interference with the quiet use and enjoyment of land owned by the plaintiffs, Leon Wheat and Helen Wheat, resulting from the actions of the defendant, Freeman Coal Mining Corporation, in operating its coal mine. Defendant appeals from a judgment in the amount of $12,000 entered on a jury verdict for the plaintiffs.

Plaintiffs own and, during the period covered by this suit, lived on a 37%-acre farm located approximately 2Vz miles east of Benton. Plaintiffs’ home was described at trial as a small frame house with four rooms and an unfinished attic. There was no inside plumbing. Plaintiffs raised popcorn on the farm, had owned this tract since 1952, and lived on it up until 1966. This suit is concerned with damages incurred by plaintiffs between the years 1963 and 1986.

The defendant operated its Orient No. 5 mine on land west of plaintiffs’ home. Operations at the mine began around 1962. Defendant has constructed a pond for use in the washing and separating of impurities from saleable coal. This pond is at the edge of defendant’s land and, therefore, in close proximity to plaintiffs’ land. Defendant constructed a wall surrounding this pond by piling refuse from its mining operations along the side of the pond.

Plaintiffs allege that tire operations of defendant’s mine caused large amounts of coal dust and smoke to come onto plaintiffs’ property. Plaintiffs allege that this intrusion caused them extensive damage. They allege that the smoke and dust were constant, heavy and annoying, prohibiting them from doing their work at home or from opening their windows; that the dust interfered with their water supply and infested their food, clothing and furniture; and that tire dust damaged the exterior of their house, causing it to blacken. Plaintiffs allege that damage was also caused them because water from defendant’s pond backed upon their property. This water allegedly contained harmful chemicals and damaged their soil. Plaintiffs say that the retaining wall of defendant’s pond contained combustible refuse and that this refuse burned and emitted noxious gases. This emission also damaged plaintiffs in the use of their home and is another element of their claim.

This case was tried before a jury and a verdict was rendered for plaintiffs. Defendant, at the close of the trial, moved for judgment on the evidence as a matter of law. It now appeals from the denial of this motion. Defendant contends that plaintiffs’ complaint was. insufficient in either the count alleging negligence or the count alleging nuisance. Defendant also objects to errors allegedly committed at the trial: (1) the trial court’s ruling on certain evidence; (2) improper instructions to the jury; and (3) the trial court’s allowing plaintiffs to amend their theory of damages at the close of their evidence.

Defendant contends that plaintiffs’ complaint was insufficient to state a cause of action because it did not allege unreasonableness and intention, two elements essential to the maintenance of an action for nuisance. (Restatement of Torts § 822 (1939).) Defendant says that it was error on plaintiffs’ part not to plead these elements. Plaintiffs’ second amended complaint alleged that defendant operated a coal mine close to their home. It alleged that, in the operation of this coal mine, defendant erected a processing plant to prepare the coal for market, A large reservoir, part of this processing plant, contained contaminated water. Plaintiffs alleged that defendant “caused and allowed” such water to flow onto plaintiffs’ land and that the flooding caused damage to them. Plaintiffs also alleged that great quantities of coal dust were emitted from the plant and carried by wind into plaintiffs’ property “causing the exterior of the dwelling to become blackened and the paint to peel off, the interior, including the furniture, clothing and food, to become covered by coal dust, the water supply was rendered unfit for use, and the comfort and utility of the plaintiffs’ home and the use of it by them has been seriously interfered with, making it difficult to live and enjoy the ordinary comforts of their premises as a dwelling.” The second count substantially repeated allegations of damage, claiming that it was caused negligently. It would appear that plaintiffs, in their complaint, stated facts which, if true, would permit a jury to find that intentional and unreasonable damage was caused to plaintiffs by the operation of the coal mine. Defendant protests the sufficiency of the evidence on either count. Leaving that question for further consideration, it appears the plaintiffs have pleaded the elements of nuisance and negligence and, therefore, the pleading was sufficient. It is not necessary to include the words “unreasonable and intentional.” In Feder v. Perry Coal Co., 279 Ill.App. 314 (1935), the court considered a complaint in a case involving facts similar to the present case. Holding that the complaint stated a cause of action, the court stated:

“The declaration alleged plaintiff’s possession of his property, the uses he was making of it, the existence of defendant’s slag pile, its ignition followed by burning and casting of fumes and gases upon plaintiff’s property rendering his habitation uncomfortable, damaging his crops and livestock. By these allegations, plaintiff has alleged facts from which the law gives him certain rights, a transgression of those rights by the defendant and resulting damages. This is all the law requires in pleading.” 279 Ill.App. at 318.

The defendant also contends that the trial court erred in striking its “Affirmative Defense #1.” Defendant had alleged therein that plaintiffs, by moving into an area known to be rich in coal, and therefore likely to be the site of coal mining activity, had assumed the risk of any damage they might incur from such activities.

It appears from the record that defendant had ample opportunity to present evidence that its coal mine was located in a suitable area for coal mining. In an action for nuisance, suitability of the location for specific operation is a factor to be considered, along with other factors, in determining whether the invasion of plaintiffs’ rights was unreasonable. (See Prosser, Law of Torts § 89, at 599-600 (4th ed. 1971).) But, plaintiffs’ knowledge of the likely presence of the coal mine would not, of itself, bar recovery. In Menolascino v. Superior Felt and Bedding Co., 313 Ill.App. 557 (1942), the court held that contributory negligence of the plaintiff in living close to a mattress factory was not a proper issue in a nuisance case. (See also Johnston v. City of Galva, 316 Ill. 598 (1925).) Since defendant had opportunity to develop this factor at trial, it was not error to strike it as a special defense, where such knowledge would not necessarily bar plaintiffs’ recovery, especially since the operation of the mine commenced after the plaintiffs purchased the property. Oehler v. Levy, 234 Ill. 595, 85 N.E. 271 (1908); Schatz v. Abbott Laboratories, Inc. 131 Ill.App.2d 1091, 269 N.E.2d 308 (1971), rev'd on other grounds, 51 Ill.2d 143, 281 N.E.2d 323 (1972).

Defendant contends that it is entitled to judgment notwithstanding the verdict, arguing that there was no evidence from which any trier of fact could have concluded that its activities in carrying out its business of coal mining were unreasonable.

The same standard should be applied when determining whether a verdict should be directed or a judgment non obstante veredicto entered. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504 (1967).) That standard permits the trial court to direct a verdict or enter a judgment non obstante veredicto “only in those cases in which all of the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513 (1967).

At the outset, it should be emphasized that this was not a suit for an injunction restraining defendant’s activities. In such cases, a stronger showing will be required of plaintiffs with regard to the unreasonableness of defendant’s activities and the harm suffered by plaintiffs. (Restatement of Torts § 822 (1939).) Our courts have adopted the Restatement approach to the law of nuisance. Patterson v. Peabody Coal Co., 3 Ill.App.2d 311 (1954). See also Chicago North Shore Street Ry. Co. v. Payne, 192 Ill. 239, 61 N.E. 467 (1901).

Defendant contends that there was no evidence that indicated that its conduct was intentional and unreasonable under the test embraced in section 88 of the Restatement of Torts. “Intentional” for purposes of liability under section 822 is defined as including knowledge that the invasion of another’s interest is resulting or substantially certain to result. There is support in the record that defendant would know that some dust and smoke would be carried over to neighboring lands. Defendant’s witness, Harry Treadwell, testified that the defendant had been informed of the damage being done to plaintiffs by the operations of the mine.

The determination of whether defendant’s conduct has been unreasonable is a question particularly suited for a jury, especially where there is evidence that damage has occurred. Plaintiffs’ witnesses testified that some smoke and coal dust were constantly emitted from the mine and entered into plaintiffs’ house. Anna Butler, a witness for plaintiffs, testified “The smoke, the dirt, the dust, the stink * * * was worse than rotten eggs. * * * You come up that highway, cornin’ from Benton, Illinois, down through the bottoms, why, you couldn’t even stand it; you had to put the windows up in your car.”

Margaret Hall, a neighbor of plaintiffs, testified as to the blackening effect the smoke and dust had on plaintiffs’ house.

Stephen Hannaford Moore, also a neighbor, testified as to the deterioration of the house, and burning of the gob pile (refuse bounding pond), that “it was just smoke and flame and burnin’ continually.” He also testified as to the heavy quantities of smoke and disagreeable odor coming from the mine.

Alfred L. Caskey, plaintiffs’ expert witness, an associate professor of chemistry and biochemistry at Southern Illinois University at Carbondale, testified that his examination revealed hydrogen sulfide in plaintiffs’ house paint and indicated that the damage to the exterior had been caused by emissions from the operation of the coal mine.

It is apparent from this evidence elicited from disinterested witnesses that plaintiffs suffered certain unreasonable harm. It is proof which, when viewed in its aspects most favorable to the plaintiffs, tends to prove the charge of their complaint. According to the Pedrick standard, unless such evidence is of dubious probative value and contrary to the overwhelming majority of the evidence, a motion for judgment notwithstanding the verdict is properly denied.

Defendant relies heavily on Gardner v. International Shoe Co., 319 Ill.App. 416, 49 N.E.2d 328 (1943), affd, 386 Ill. 418, 54 N.E.2d 482. In that case, judgment for the plaintiffs was reversed where it appeared that the odors emanating from defendant’s tannery were necessarily incident to its operation, that the tannery was properly operated, and that plaintiffs were not substantially injured. It appeared that disinterested witnesses had not found the odors particularly offensive. The appellate court said, “In the instant case, we have nothing more than unpleasant and disagreeable odors, and those only occasionally perhaps sickening to a few who seem to be unduly sensitive or might we say allergic to such smells.” (319 Ill.App. at 428.) This situation is distinguished from the instant case where plaintiffs’ evidence amply supported allegations of continuing offensive odors and physical damage to their home.

The instant case is similar to Patterson v. Peabody Coal Co., 3 Ill.App.2d 311, 122 N.E.2d 48 (1954). This was an action by a farmer based on private nuisance in the operation of a coal washer and drier in a mining community. The washer and drier were located about one-quarter of a mile from plaintiffs premises. The court there held that where evidence established a substantial deposit of coal dust on plaintiffs premises the trial court was correct in submitting the question of nuisance to the jury.

The court in Patterson said:

“Turning now to the case at bar we think it is distinguishable from Gardner case on the question of the substantiality of the invasion. Here we have a physical substance deposited on plaintiff s premises in quantity and with frequency. On the other hand we have no doubt of the suitability of the location of defendant’s business. It is in a mining community and the refining of the product is necessary to market it. Nor do we have any question of the utility and importance to the public of coal mining and processing. The deposit of dust on plaintiffs premises however seems to be in sufficient quantity, as well as duration, to justify a submission of the case to a jury.” (3 Ill.App.2d at 317.)

It appears that these circumstances are indistinguishable from those of the present case. The court in Patterson apparently laid great stress on the fact of physical injury to plaintiffs premises. The same type of physical injury is present here and makes this case proper for jury determination. The fact of physical injury, amply attested to by disinterested witnesses, makes the issue of whether or not the invasion was unreasonable a jury question.

Defendant cites Patterson as holding that a burning gob pile is not “intentional” as a matter of law. The court in Patterson found that this was not “intentional” because it was caused by spontaneous combustion, and, therefore, was not certain to occur. The evidence showed that defendant had done all in its power to stop the burning and that such burning was an occasional occurrence, causing no substantial injury to plaintiff. (3 Ill.App.2d 311, 317.) It does not appear that the Patterson case was holding, as a matter of law, that a burning gob pile may never constitute a nuisance. The court seems to be holding that, under the conditions there present, it was not an intentional nuisance. Therefore, a similar holding is not required where, as in the instant case, defendant knew of the burning and did nothing to stop it or where injury was more substantial to plaintiff. Witnesses for plaintiffs here testified that the burning was constant and the odors emitted were severe. It may be noted that defendant’s engineer testified that defendant knew spontaneous combustión is likely to result from a gob pile, and, nevertheless, placed gob near plaintiffs’ home. The issue of whether defendant’s actions constituted an intentional and unreasonable invasion of plaintiffs’ enjoyment of their home was properly left to the jury,

In Feder v. Perry Coal Co., 279 Ill.App. 314 (1935), the court held that one has a natural right to have the air over his premises reasonably free from impurities and while defendant has a right to use his property in such a way as he may choose, he has no right to substantially injure plaintiff by casting gas, fumes, and dust on his premises.

The issue, as defendant correctly points out, is whether the injury caused to plaintiffs by the alleged nuisance is intentional and unreasonable, weighing the gravity of the injury to plaintiffs against the utility of defendant’s conduct. In its opening statement, defendant admitted that some smoke and dust are natural incidents of coal mining and they are certain to occur. This would seem to indicate that defendant’s conduct was intentional within the meaning of the Restatement rule. Since plaintiffs introduced evidence of substantial injury, it became a jury question as to whether or not the injury was unreasonable. There was ample proof to sustain the jury’s finding for plaintiffs. Therefore, a judgment notwithstanding the verdict was improper and defendant’s motion was properly denied.

Defendant alleges that other errors were committed at the trial. It objects to: (1) admission of certain evidence; (2) instructions to the jury; and (3) plaintiffs’ amendment to its pleading at the end of the case.

Defendant objects first to abridgement of its inquiry concerning employment of plaintiff Leon Wheat, on two grounds: (1) it limited defendant of its proof regarding the amount of time plaintiff actually spent at home, and therefore defendant was denied relevant information regarding the extent to which plaintiff was actually damaged in the use and enjoyment of his home; and (2) information regarding plaintiff’s employment was relevant to his credibility.

Aside from the trial court’s sustaining plaintiffs’ objection with regard to the inquiry into plaintiff Leon Wheat’s employment, defendant was free to question Leon as to how much time he spent on the premises. Since it did not choose to do so at trial, defendant cannot now complain.

On cross-examination, the opponent is permitted only to inquire as to matters raised on direct examination. Plaintiff’s employment as a bartender was not at issue and had no bearing on the case. The matter of plaintiff’s employment was not raised on direct examination. The trial court did not err in sustaining plaintiffs’ objection.

Defendant objects to the exclusion of its evidence regarding the value of plaintiffs’ premises. The measure of damages for nuisance is not the fair market value of plaintiffs’ land, but rather the damages are measured by the discomfort and the deprivation of the healthful use and comforts of the plaintiffs’ home. (Schatz v. Abbott Laboratories, Inc., 51 Ill.2d 143, 281 N.E.2d 323 (1972).) There is no fixed rule as to damages in such an action. The amount awarded must be left to the sound discretion of the jury in view of the fact of a particular case. (Chicago-Virden Coal Co. v. Wilson, 67 Ill.App. 443 (1896).) Market value is not the proper measure of damages in such an action. (Kulgel v. Village of Brookfield, 322 Ill.App. 349, 54 N.E.2d 92 (1944).) Since the measure of damages was not the fair market value of the land, the court did not err in excluding such damages. Cook v. City of Du Quoin, 256 Ill.App. 452 (1930); Racine v. Catholic Bishop of Chicago, 290 Ill.App. 284, 8 N.E.2d 210 (1937).

Defendant cites three cases as authority for its position that it was error to exclude testimony regarding the fair market value of plaintiffs’ land. (N. K. Fairbank Co. v. Nicolai, 167 Ill. 242, 47 N.E. 360 (1897); Bailey v. Heintz, 71 Ill.App. 189 (1897); Wanless v. Peabody Coal Co., 294 Ill.App. 401, 13 N.E.2d 996 (1938).) However, since Bailey v. Heintz and Wanless v. Peabody Coal Co. were not actions based on nuisance they are not in point. Similarly, N. K. Fairbank Co. v. Nicolai is not favorable to the defendant. In that case the court would not permit defendant to introduce evidence regarding the depreciation in fair market value because the measure of damages was plaintiff’s discomfort and deprivation of the healthful use and control of his home.

It does not appear that defendant has offered any authority for its proposition that it was error to exclude evidence of the fair market value of plaintiffs’ premises. In this action for nuisance, the great injury is in the physical discomfort and deprivation of the comfort of a home. The determination of damages in such a case would be particularly suitable for determination by a jury and it was not error to leave the question to them.

Defendant next objects to the admission into evidence of certain photographs taken of plaintiffs’ premises. Defendant believes that adequate foundation was not laid for their admission because no specific date was established for the taking of these photographs. Plaintiffs Leon and Helen Wheat testified that the photographs accurately portrayed their home. It is evident that these witnesses testified from personal knowledge. In Brennan v. Leshyn, 51 Ill.App.2d 132, 201 N.E.2d 167 (1964), this was held to be an adequate foundation for the admission of photographs. It is not necessary that the witness know anything of the time or condition of the taking. All that is required is personal knowledge of the scene or object and testimony that the scene is correctly portrayed by the photograph;

Defendant cites Williams v. Stewart, 2 Ill.App.3d 528, 275 N.E.2d 659 (1971), in support of its contention that the photographs were inadmissible. This case concerned a photograph of a car taken at some indeterminate time after an accident. It appears that no specific foundation was laid. There was no indication that any witness had testified as to the accuracy of the photograph. In this case, the date of the photograph became fairly critical in determining what damage had actually occurred at the time of the accident. Williams can be distinguished from the instant case where plaintiffs testified that photographs accurately represented their home before and after the damage, and where the date of the photographs is not critical. The photographs were admissible.

Defendant objects to certain instructions to the jury with regard to negligence and intent, but it fails to specify the instructions. Its objection appears to be directed not so much at the content of the instructions, but rather at the submission of the issues of intent and negligence to the jury, which we have already determined to be proper. Plaintiffs’ instructions 2 and 5, defining intent and negligence, accurately state the applicable law.

Defendant objects to the plaintiffs’ amending its complaint at the close of the plaintiffs’ evidence. The amendment changed the complaint from a claim for property damage to a claim for damage in the use and enjoyment of their home. Defendant claims that it was prejudiced by this because it had to change the whole nature of its proof.

After the taking of numerous interrogatories and depositions and the granting of motions to dismiss and the allowance of various amendments, the parties went to trial on the second amended complaint as amended. In that complaint as amended Count I (the so-called nuisance count) alleged:

“12. By reason of the foregoing, the plaintiffs have been damaged in the sum of $20,000, to the crops and to the land by reduction before and after.”

and Count II (the so-called negligence count) alleged:

“13. By reason of the foregoing, the plaintiffs have been damaged in the sum of $20,000, to the crops and to the land by reduction before and after.”

-The case was tried principally on the theory of damages to the crops and the land, although there was some evidence to support the allegation found in one paragraph of each of the counts which were:

“Great quantities of coal dust and other materials have been and are emitted into the atmosphere from the coal mine operation and conveyed by prevailing winds to and upon the premises of the plaintiffs, causing the exterior of the dwelling to become blackened and the paint to peel off, the interior, including the. furniture, clothing, and food, became covered by coal dust, the water supply was rendered unfit for use, and the comfort and utility of the plaintiffs’ home and the use of it hy them has been seriously interfered with, making it difficult to live and enjoy the ordinary comforts of their premises as a dwelling.” (Emphasis supplied.)

The evidence which could be said to support the allegations of damage to the use, comfort and utility of the home and discomfort to the plaintiff occupants, such as dust and the stench of the gaseous fumes which discolored the paint and corroded the screens went in unobjected to, since it related to physical damage. There, of course, was other evidence of crop damage and other physical damage which did not go to any interference with the use and enjoyment of the house. The evidence of physical damage obviously would not support very much more than the cost of actual repair proven (approximately $1600). The plaintiffs had alleged damages from flooding, destruction of crops and the rendering of the soil untillable and unusable for agricultural purposes, but offered so little testimony supporting such allegations that they chose to abandon them, after all their evidence was in and sought to amend the complaint by striking 12 and 13 (above set forth) and inserting in lieu thereof the following:

“By reason of the foregoing, the plaintiffs, Leon Wheat and Helen Wheat, have been damaged in the use and enjoyment of their home and land and plaintiff Leon Wheat has been damaged to the extent of the reasonable cost of repairs to the house on said-property.”

The court over the objection of defendant granted leave to make the amendment. The defendant then sought a continuance and an opportunity to present evidence against the damage to use and enjoyments. No motion was made to strike the evidence of crop damage or the evidence of damage to the land itself. Defendant contends that the court, by denying the continuance after allowing the amendment which completely changed the theory of damages, effectively deprived the defendant the right to defend on the new theory.

The trial court has broad discretion with respect to the allowance of amendments to pleadings prior to the entry of final judgment. ( Ill. Rev. Stat. 1971, ch. 110, par. 46; see also Austin Liquor Mart, Inc. v. Department of Revenue, 51 Ill.2d 1, 280 N.E.2d 437 (1972).) Although the timeliness of a proposed amendment to pleading or the diligence of a party proposing an amendment may affect the issue of prejudice (Able v. Pure Oil Co., 8 Ill.App.3d 558, 290 N.E.2d 331 (1972)), when, as in the instant case, it appears from the record that the defendant was at all times apprised of the nature of plaintiffs case, and the proof thereto, the trial court did not abuse its discretion in allowing plaintiffs to amend their pleadings to make the allegations conform to the proof (Williams v. Stewart, 2 Ill.App.3d 528, 275 N.E.2d 659 (1971)). From the record we are unable to say that there was an abuse of discretion in denying the request for continuance. ' '

Defendant’s final contention relates to the excessiveness of the damages awarded. However, the amount awarded must be left to the sound discretion of the jury. (Chicago-Virden Coal Co. v. Wilson, 67 Ill.App. 443 (1896); Cook v. City of Du Quoin, 256 Ill.App. 452 (1930).) Defendant argues that the damages were nearly twice the fair market value of the house and that a brand new paint job and inside decoration would only involve $1600. But the damages legitimately took into account the extreme discomfort of the plaintiffs and the deprivation of the healthful use and comforts of their home over a 3-year period. We cannot now say that the jury’s assessment of the damages was excessive.

Accordingly, the judgment of the trial court is affirmed.

G. MORAN, P. J., and CREBS, J., concur.