author: JUSTICE LINN

text:
    JOSEPH C. LYON, Plaintiff-Appellee, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—3292
    Opinion filed December 20, 1990.
    Condon, Cook & Roche, of Chicago (Francis J. Leyhane III and Mark E. Condon, of counsel), for appellant.
    Hanson & Shire, P.C., of Chicago (Paul H. Strecker, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Joseph C. Lyon, filed an action for declaratory judgment and other relief, seeking construction of the loss settlement provisions of an insurance policy that was issued by defendant, Lumbermens Mutual Casualty Company. Lyon seeks payment of his claim for losses incurred when the cash receipts for several of his McDonald’s stores were stolen from a truck on two separate occasions. The insurance policy in issue covers all eight of the McDonald’s locations in which Lyon has an ownership interest. Receipts from the restaurants were collected by the driver of a truck for delivery to a bank, and when the two robberies occurred, cash envelopes from several of the stores were taken.

The trial court granted Lyon’s motion for summary judgment against Lumbermens on the coverage issue and entered a final order assessing money damages of $65,460.62, plus interest and costs.

On appeal, Lumbermens argues that the trial court’s construction of the policy was erroneous because instead of applying the clear and unambiguous policy limitation for the losses incurred, the court allowed a “per store” multiplier on the $10,000-loss-per-occurrence limitation. According to Lumbermens, the loss limitation should have operated to keep the insurance company’s liability to $10,000 for each of the two occasions when the truck was robbed. Instead, the court ruled that the loss limitation applied to each restaurant’s receipts that were taken from the truck.

For the reasons that follow, we affirm the judgment of the trial court.

Background

Lyon, as owner of eight McDonald’s restaurants, engaged the courier services of Metro-Pol to pick up receipts from his restaurants and deposit them in the bank. The receipts from each store were placed in separate envelopes for deposit into separate accounts. On November 23, 1987, and again on January 16, 1988, the Metro-Pol vehicle was broken into while Gilbert Haag, the driver, was inside one of the restaurants collecting receipts. The thief removed several envelopes of money the first time, representing receipts from seven different stores. The second time, proceeds from four of the restaurants were taken.

The restaurants were operated by various holding companies, each one a partnership. Lyon was a partner in each operating company. All eight locations were insured by a single, comprehensive policy of insurance. Each store was allocated a separate premium amount, out of the total charged. The policy contains various coverage sections, but the one in issue in this lawsuit is the crime coverage section. The general declarations page of this section states that under the “money and securities” coverage, the limit of liability is $10,000 for “Loss Outside the Premises.”

“Loss outside the premises” is explained as follows:

“To pay for loss of money and securities by the actual destruction, disappearance or wrongful abstraction thereof outside the premises while being conveyed by a messenger ***.”

Despite some skirmishing in the trial court over the question whether driver Haag was a “messenger,” the applicability of this provision is not in issue on appeal. Therefore, it is undisputed that the $10,000 loss limitation applies to the “wrongful abstractions” of the money, “outside the premises,” while Haag was conveying the money to the bank. The sole dispute over the interpretation of the policy centers on the meaning and application of the term “occurrence.”

According to Lumbermens, there were only two compensable “occurrences,” one for each incident of burglary. In contrast, Lyon argued in part that because each McDonald’s restaurant was subject to a premium based on its separate risk factors, a distinct occurrence transpired each time -the thief appropriated a cash receipts envelope for a particular restaurant.

Opinion

Nothing in the policy deals specifically with what happened in this case. If a thief ran past each of the eight McDonald’s locations and grabbed a bag of cash from each, there is no question but that there would be eight separate occurrences under the policy. Lumbermens argues, however, that since the receipts for the various restaurants were together in one location and were all taken at the same time, only one occurrence per burglary is possible. In support, it attempts to rely on one sentence of paragraph 5 of the “Conditions of the Special Crime Coverage Part,” as follows:

“5. Limits of Liability; Settlement Options. The limit of the Company’s liability shall not exceed the applicable limit of insurance stated in the Declarations ***.
The applicable limit of insurance stated in the Declarations is the total limit of the Company’s liability with respect to all loss of property of one or more persons or organizations arising out of any one occurrence. All loss incidental to an actual or attempted fraudulent, dishonest or criminal act or series of related acts at the premises, whether committed by one or more persons, shall be deemed to arise out of one occurrence.” (Emphasis added.)

• In response, Lyon points out that, by its terms, the last sentence of this provision applies only to acts or series of related acts at the premises. No such limit is imputed to loss incidental to a series of related criminal acts outside the premises. Lyon gives several additional reasons why the above two sentences, taken together or individually, do not bar coverage under his theory of separate coverages for each restaurant’s receipts. He further maintains that to the extent the two sentences of paragraph 5 above create an ambiguity, such ambiguity must be construed against the insurance company. E.g., Levinson v. Fidelity & Casualty Co. (1932), 348 Ill. 495, 181 N.E. 321.

We believe that the policy is capable of the construction that the trial court gave it. In the first place, the one policy was intended to and did cover each of the eight McDonald’s locations. Separate premium amounts were calculated for each restaurant, a fact that the trial court apparently found significant. Although counsel for Lumbermens attempted to minimize the significance of this allocation of the total premium among the stores, we disagree. It seems both logical and fair to consider each store as a separately insured entity to which the $10,000 loss limitation applies. In fact, Lumbermens concedes that if each store were robbed, each would be entitled to coverage up to the $10,000 amount. The fact that each store was separately covered, therefore, weighs heavily in favor of the trial court’s “per store” interpretation of the “per occurrence” concept.

We agree with Lumbermens that each of the two burglary incidents logically may be seen as one “occurrence” in the ordinary sense. A news reporter would not describe the incident of November 23, 1987, as seven occurrences even though seven cash envelopes were taken. Nor would the January 16 burglary be viewed as four of them. The precise issue before us, however, is whether the insurance contract is susceptible to more than one interpretation, and if it is, what principles of construction apply?

Lumbermens cites cases, primarily from other jurisdictions, which considered whether a set of claims arose from one occurrence or multiple occurrences under particular policies of liability insurance. For example, in Maurice Pincoffs Co. v. St. Paul Fire & Marine Insurance Co. (5th Cir. 1971), 447 F.2d 204, the insured sold sacks of contaminated bird seed to eight different customers, feed dealers who in turn resold the seed at retail. Thereafter, many birds dropped dead. The court ruled that the eight sales of grain to the dealers constituted eight “occurrences” giving rise to the insured's liability. Although the insurer had argued that the contamination was the cause of the injuries and that there was only one such incident of contamination, the appellate court defined “occurrence” as meaning each specific event or incident for which the insured become liable. (See also Mason v. Home Insurance Co. (1988), 177 Ill. App. 3d 454, 532 N.E.2d 526, appeal denied (1989), 125 Ill. 2d 567, 537 N.E.2d 811 (Restaurant’s sale of each portion of contaminated food held to be a separate occurrence under insured’s liability policy).) The Mason court noted that most jurisdictions equate the number of “occurrences” with the cause of the injuries for which the insured is liable; in that case, for each sale of poisoned food (even though the poisoning stemmed from the same source, grilled onions). In contrast, a single fire would constitute one occurrence under most policies, even though the property of several people may have incurred damage from the same fire.

Maurice Pincoffs Co., Mason, and similar cases involve questions of policy coverage for the insured’s liability to third parties for injuries occurring after a contaminating agent enters into a system of distribution. We do not find that such cases support Lumbermens’ position.

Under the definitional provisions of the special crime coverage, “ ‘[premises’ means the interior of that portion of any building which is occupied by the insured in conducting the business as stated in the declarations.” (Emphasis added.) Since the special crime coverage limits the loss of each occurrence to $10,000, if a thief steals money within an insured building, the $10,000 limitation applies. Similarly, under the provision for losses occurring outside the premises, if the thief waits until a messenger or carrier takes the daily receipts out of the restaurant for deposit in a bank before “wrongfully abstracting” the money, the $10,000 limitation also applies. There is no ambiguity here, and the meaning of “premises” cannot be disputed as applying to each location.

The major controversy centers on how one views the term “occurrence” and whether the policy itself mandates one view over the other.

Lumbermens asserts that occurrence has a common, generally accepted meaning: “an incident or event.” The incidents or events in the pending case are, according to Lumbermens, “the burglaries of November 23, 1987 and January 16, 1988.” Under this view, the loss limitation of $10,000 applies, for a-total liability of $20,000, regardless of how many restaurants’ receipts were stolen.

In contrast, Lyon’s theory rests on the “individual identity” of each restaurant’s separate envelope of money that was seized. In the first burglary, envelopes from seven of the insured restaurants were removed and in the second, four were, for a total of 11 “occurrences.”

Our review of the relevant provisions of the insurance policy leads us to conclude that while the policy does not specifically address this coverage dilemma, Lyon’s position seems more in keeping with the purpose of the coverage provided. The general declarations of the crime coverage section notes that in “consideration of the premium,” the limits of the company’s liability as to “each coverage” shall not exceed $10,000 for loss outside the premises. Such loss is defined as the “wrongful abstraction” of money or securities outside the premises while the money is “being conveyed by a messenger.” Because there are eight separate locations that are insured, with separate premium allocations, and because the policy defines “premises” in such a way as to cover each building, we find it reasonable to assume that the segregated funds of the eight separate restaurants carried with them coverage under the policy of up to $10,000. A renewal endorsement is consistent with this view because it refers to “covered locations.” The owner of each covered restaurant would reasonably expect that his cash receipts and securities were insured for up to $10,000 under the policy as soon as the receipts. left the premises for transport to the bank.

The only policy language that arguably supports Lumbermens’ position is the first sentence of a two-sentence provision in paragraph 5 of the loss settlement provision, previously quoted, which applies the $10,00 limit to “all loss of property of one or more persons or organizations arising out of any one occurrence.” In isolation, this one sentence possibly could be construed to mean that the $10,000 cap on losses should apply to the total loss of all of the restaurants in each burglary. No further explanation is given, however, and the second sentence of the provision specifies that “[a]ll loss incidental to an actual or attempted fraudulent, dishonest or criminal act or series of related acts at the premises, *** shall be deemed to arise out of one occurrence.” (Emphasis added.) Hence, in a robbery at one of the McDonald’s locations, Lumbermens’ loss apparently would be limited to $10,000, regardless of whose money was taken (including customers) and in what amount. Similarly, this sentence contemplates a series of related acts of dishonesty or fraud, such as embezzlement by an employee. Since this second sentence expressly applies to occurrences at the premises, rather than outside of them, only the first sentence remains on which to hang Lumbermens’ argument.

Even if we were to assume that these two sentences were not to be read together and could be studied in isolation, we find the sentence that Lumbermens relies on to be ambiguous, or at least vague. Indeed, the trial court found that the language in this loss limitation provision “confuse[d] the issue.”

We are not required or permitted to redraft insurance policy language to fit the preferred interpretation of the drafter, particularly after the insurable event has occurred and a claim is pending. Here, the best that can be said for the policy language that Lumbermens depends on is that its application to the pending facts is unclear. Consequently, we must rely to the principle that the contract of insurance must be construed most strongly in favor of the insured. E.g., Marshall v. Metropolitan Life Insurance Co. (1950), 405 Ill. 90, 90 N.E.2d 194; Levinson v. Fidelity & Casualty Co. (1932), 348 Ill. 495, 181 N.E.2d 321; see also Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 336, 312 N.E.2d 247 (policy is not to be interpreted in a “factual vacuum” and what may not appear ambiguous at first glance might become so in light of particular factual setting).

For the foregoing reasons, we affirm the trial court’s decision in favor of Lyon’s construction of the insurance policy. Because the amount of damages awarded is not in dispute, we also affirm the judgment amount entered.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    MILLARD MAINTENANCE SERVICE COMPANY, Plaintiff-Appellee, v. GEORGE BERNERO, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—0155
    Opinion filed December 20, 1990.

      Clausen, Miller, Gorman, Caffrey & Witous, of Chicago (James T. Ferrini, Ivar R. Azeris, and Edward M. Kay, of counsel), for appellant.
    Lora E. Minichillo and Aaron E. Hoffman, of Schwartz & Freeman, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

After an evidentiary hearing, Judge Thomas J. O’Brien entered a preliminary injunction on December 18, 1989, enjoining defendant, George Bernero, from using or disclosing certain confidential information belonging to plaintiff, and from contacting or soliciting plaintiff’s customers. However, defendant was not prohibited from seeking contracts with parties who were not plaintiff’s current customers or who were not serviced by plaintiff on the day he left plaintiff’s employ. This is an interlocutory appeal brought pursuant to Supreme Court Rule 307(a) (107 Ill. 2d R. 307(a)).

On appeal, defendant first contends that the trial court’s grant of injunctive relief was against the manifest weight of the evidence for the following reasons: (1) the restrictive covenant was unenforceable for lack of consideration; (2) plaintiff failed to demonstrate a protectable interest in its pricing formula; (3) plaintiff failed to demonstrate a protectable interest in its relationship with its customers; and (4) the court erred in precluding testimony seeking to elicit information regarding the alleged unique character of plaintiff’s pricing methods. Second, defendant contends that the injunction was overly broad, and failed to meet the requirements for a temporary restraining order. Ill. Rev. Stat. 1989, ch. 110, par. 11 — 101.

Background

Plaintiff, Millard Maintenance Service Co. (hereinafter Millard), is a janitorial contractor that services commercial buildings in downtown Chicago and the suburbs. Millard is one of eight major maintenance service companies in the Chicago area. Millard services approximately 125 buildings. Its customers are the owners and/or managers of these buildings. Roughly 40 of Millard’s customers are located in downtown Chicago, while approximately 85 clients are located in the suburbs. Both plaintiff and defendant agree that the maintenance service industry is highly competitive.

Defendant, George Bernero, is a former employee of Millard and is currently an employee of Executive Building Maintenance (hereinafter EBM). Mr. Bernero worked for Millard from September 1980 through January 26, 1989. Mr. Bernero had no previous experience in the building maintenance field prior to working for Millard. He left Millard as a senior account executive. During the course of his employ, Mr. Bernero signed three post-employment anticompetitive agreements with Millard on September 30, 1980, January 1, 1981, and November 21, 1985. The agreement signed in November of 1985 is the subject of this appeal. The relevant portion of the agreement reads as follows:

“10. Competition. For a period of two years following termination of his employment, Employee shall not, without the Employer’s prior written agreement, directly or indirectly, own, manage, operate, control, be employed by, participate in, or be connected in any manner with the ownership, management, operation, or control of any business (the ‘Competing Business’) of the type and character engaged in by the Employer at the time of such termination provided, however, that the foregoing shall apply only if the Competing Business satisfies either of the following standards:
(a) The Competing Business operates in the Illinois Counties of
(i) Cook,
(ii) Lake, or
(iii) McHenry; or
(b) The Competing Business, directly or indirectly, solicits, diverts, takes away or attempts to solicit, divert, or take away customers of the Employer, which, during the year immediately prior to Employee’s termination of employment contracted for service from the Employer, or seeks to cause any of such customers to refrain form contracting with the Employer or assists any other person, firm, or corporation to do any of the above.”

Millard alleges that Mr. Bernero breached his employment agreement after leaving Millard by disclosing confidential and proprietary information to EBM. For example, Mr. Bernero submitted a bid on behalf of EBM to provide janitorial services for Boulevard Bank. Prior to leaving Millard, Mr. Bernero submitted a bid to clean the same building. In addition, Mr. Bernero contacted CNA, Hamilton Partners, and Quantum Chemicals, three of Millard’s customers, to solicit their business on behalf of EBM.

Millard initiated this present action by seeking injunctive relief to prevent Mr. Bernero from contacting customers and from disclosing confidential information pursuant to the employment agreement. On September 14, 1989, the court entered a temporary restraining order to preserve the status quo pending a hearing and restrained defendant from soliciting any of plaintiff’s customers. Mr. Bernero thereafter filed an answer alleging that the employment agreement was unenforceable.

During the hearing on the preliminary injunction, the court heard the testimony of defendant and Mr. Lawrence Kugler, Millard’s vice-president of sales. Mr. Kugler testified .that a key prerequisite to bidding for a maintenance contract is access to the specific individual in building ownership or management who contracts for maintenance services. Mr. Kugler also testified that it is important for a maintenance service to gain access to those decision makers because they have the power to give a maintenance company the opportunity to bid. Millard and its sales employees could identify those decision makers and gain access to them because of Millard’s size and reputation. Once a Millard salesperson, such as Mr. Bernero, gains access to the key decision maker, he or she tries to persuade the decision maker to give Millard an opportunity to bid.

If Millard is granted an opportunity to bid, its operations supervisor walks through the building with the salesperson. During the walk-through, Millard determines the specific needs of the customer, the type of equipment and supplies, needed, the number of personnel required, and any other factors which should be considered in the bidding process. These may include special types of marble, wood, or other surfaces requiring special equipment or care.

After the walk-through, the salesperson consults Millard’s management and prepares the bid. Management evaluates the market and any competitive considerations which may result in an adjustment of the bid. Mr. Kugler testified that several of Millard’s costs factors are unique and confidential. He cited, for example, the manner in which Millard amortizes equipment costs and passes those costs on to its customers. The trial court specifically held that Millard’s workers’ compensation rate and its premiums for public liability insurance, based upon its claims history, are confidential. The trial court also found that the overhead, and profit margin which Millard added to its bids was confidential. .

Mr. Bernero was on Millard’s sales staff, and he made sales calls to various prospective clients. He also conducted walk-throughs. The trial court found that defendant gained access to customers whom he would not have been able to contact but for his employment with Millard. In addition, Millard trained defendant to compute and prepare bids. Mr. Bernero attended frequent sales meetings where the general bidding process and specific bids were discussed. Mr. Bernero acknowledged that he learned Millard’s pricing practices and how Millard calculates overhead and profits. While defendant was employed at Millard, he learned confidential information regarding Millard’s business practices, philosophy, pricing, and prices charged to specific customers.

Both plaintiff and defendant agreed that contracts, long-term customer relationships and contract renewals are acquired on the basis of quality service and integrity. Millard’s management and sales staff devoted substantial time and resources to develop and maintain good relationships with Millard’s customers. Once Millard is awarded a contract, supervisory personnel maintain daily contact with the building’s owner or manager. In addition, Millard’s operations and maintenance personnel are on the customer’s premises daily. Those relationships were also nurtured through social outings. Mr. Bernero admitted that Millard personnel made an effort to maintain a relationship with existing customers.

As a result of Millard’s efforts, two of Millard’s customers have been clients in excess of 15 years, another customer has been with Millard in excess of 36 years, and still another client has been a customer of Millard for more than 50 years. Millard’s seven largest customers compose 70% of its business. The trial court noted that Millard had “virtual perpetual contact with its seven largest customers” and recognized that Millard had a near-permanent relationship with its customers.

Mr. Bernero filed a notice of appeal 30 days after the trial court entered an injunction order in favor of Millard. Mr. Bernero asks this court to reverse the injunction.

Opinion

I

Defendant first contends that the injunction entered against him should be set aside because the granting of injunctive relief was against the manifest weight of the evidence.

A party seeking an injunction must establish that it has a clear right which ought to be protected; that it is likely to succeed on the merits; that there is no adequate legal remedy; and that irreparable harm will occur if the injunction is not granted. (Preferred Meal Systems, Inc. v. Guse (1990), 199 Ill. App. 3d 710, 718; A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 791; McRand, Inc. v. van Beelen (1985), 138 Ill. App. 3d 1045, 1050.) The trial court found that plaintiffs satisfied these requirements. The trial court is vested with the discretion to grant or deny injunctive relief. A.B. Dick Co., 159 Ill. App. 3d at 791; McRand, Inc., 138 Ill. App. 3d at 1050; Office Electronics, Inc. v. Grafic Forms, Inc. (1978), 56 Ill. App. 3d 395, 398.

The role of the reviewing court is to determine whether the trial court’s findings are contrary to the manifest weight of the evidence. (McRand, Inc., 138 Ill. App. 3d at 1050-51.) The trial court’s findings will not be set aside absent a showing of an abuse of discretion. (McRand, Inc., 138 Ill. App. 3d at 1050.) We will not set aside this injunction unless defendant can show that the trial court abused its discretion and ruled against the manifest weight of the evidence.

Whether injunctive relief should have been granted depends upon the enforceability of the post-employment restrictive covenant. Such a covenant is unenforceable when its sole purpose is to restrict competition. (A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 792.) “[Ojrdinarily an employer has no proprietary interest in its customers.” (Preferred Meal Systems, Inc. v. Guse (1990), 199 Ill. App. 3d 710, 718.) In addition, an individual has a fundamental right to pursue a particular occupation for which he is trained. (ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 93.) Moreover, “[ojne who has worked in a particular field cannot be compelled to erase from his mind all of the general skills, knowledge and expertise acquired through his experience.” ILG Industries, 49 Ill. 2d at 93-94.

A post-employment covenant will be enforced if it has reasonable terms. A covenant must be “reasonably necessary to protect the interests of the employer.” (McRand, Inc. v. van Beelen (1985), 138 Ill. App. 3d 1045, 1051; see also, A.B. Dick Co., 159 Ill. App. 3d at 792.) “A restrictive covenant in an employment agreement is generally held to be enforceable if it is reasonable in geographical and temporal scope and it is necessary to protect a legitimate business interest of the employer.” (Shapiro v. Regent Printing Co. (1989), 192 Ill. App. 3d 1005, 1010; Corroon & Black of Illinois, Inc. v. Magner (1986), 145 Ill. App. 3d 151, 162.) Courts also consider the unique facts and circumstances of the case when determining the reasonableness of a restrictive covenant. Shapiro, 192 Ill. App. 3d at 1009; A.B. Dick Co., 159 Ill. App. 3d at 792; McRand, 138 Ill. App. 3d at 1051.

The court must make two determinations prior to analyzing the reasonableness of a covenant not to compete. First, the court must find that the covenant is ancillary to a valid contract. The covenant must be subordinate to the contract’s main purpose. (Union Trust & Savings Bank v. Kinloch Long Distance Telephone Co. (1913), 258 Ill. 202, 207.) Second, the court must determine whether there is adequate consideration to support the covenant not to compete. (Union Trust & Savings Bank, 258 Ill. at 207; see also Storer v. Brock (1933), 351 Ill. 643; Linn v. Sigsbee (1873), 67 Ill. 75.) Absent adequate consideration, a covenant, though otherwise reasonable, is not enforceable.

A

First, defendant asserts that the grant of injunctive relief was erroneous because the restrictive covenant is unenforceable due to lack of consideration. Plaintiff maintains that defendant’s continued employment constituted sufficient consideration. Defendant contends that his continued employment constituted insufficient consideration. Defendant relies upon Sufficiency of Consideration for Employee’s Covenant not to Compete, Entered into after Inception of Employment (Annot., 51 A.L.R.Sd 825 (1973)). We find that there was adequate consideration for the covenant.

In Illinois, continued employment constitutes adequate consideration for a post-employment covenant not to compete. In Corroon & Black of Illinois, Inc. v. Magner (1986), 145 Ill. App. 3d 151, we held that “continued employment for a substantial period is sufficient consideration to support an employment agreement.” (Corroon, 145 Ill. App. 3d at 163.) Similarly, in McRand, Inc. v. van Beelen (1985), 138 Ill. App. 3d 1045, we concluded that “continued employment for a substantial period is sufficient consideration to support the employment agreement.” McRand, Inc., 138 Ill. App. 3d at 1055; see also Office Electronics, Inc. v. Grafic Forms, Inc. (1978), 56 Ill. App. 3d 395; Smithereen Co. v. Renfroe (1945), 325 Ill. App. 229.

The facts of the case at bar are analogous to the facts in Corroon and McRand, Inc. In Corroon, plaintiff signed a similar agreement and subsequently worked for defendant for four more years. The court held that “plaintiff gave to Magner four years of continued employment in exchange for signing the agreement. We hold that the trial judge erred in ruling that the employment agreement between plaintiff and Magner lacked consideration.” (Corroon, 145 Ill. App. 3d at 163.) In McRand, Inc., defendant remained an employee at McRand, Inc., for eight years after signing the original covenant, and for two years after signing the covenant at issue in the case. (McRand, Inc., 138 Ill. App. 3d at 1055.) In the case at bar, defendant signed two agreements on September 30, 1980, and January 1, 1981, respectively. The third agreement which defendant executed on November 21, 1985, is the subject of this appeal. Defendant thereafter continued as an employee until July 26, 1989. In keeping with the aforementioned case law, we find that sufficient consideration exists for the enforcement of this covenant.

Defendant’s reliance upon Sufficiency of Consideration for Employee’s Covenant not to Compete, Entered into after Inception of Employment (Annot., 51 A.L.R.Sd 825 (1973)) is improper. This secondary authority failed to cite any Illinois cases which hold that continued employment is inadequate consideration for a covenant not to compete. Furthermore, defendant’s denial that he remained an employee in consideration of the agreement does not pass muster.

B

Next, defendant alleges that the trial court’s grant of injunctive relief was against the manifest weight of the evidence because plaintiff had no protectable interest in its pricing formula. Defendant maintains that the pricing formula must be a trade secret in order to merit legal protection and that plaintiff was not entitled to injunctive relief because it failed to demonstrate that its pricing methods constituted a trade secret. Plaintiff maintains that it had a protectable interest because its pricing formula constituted protectable confidential information. We hold that plaintiff had a protectable interest because the information defendant obtained regarding plaintiff’s pricing formula was confidential.

This court has explicitly rejected the notion that “only trade secrets — as distinct from confidential information — are entitled to legal-protection.” (Shapiro v. Regent Printing Co. (1989), 192 Ill. App. 3d 1005, 1011.) A restrictive covenant will be enforced “where the former employee learned trade secrets or acquired other confidential information while in plaintiff’s employ and subsequently attempted to use it for his or her own benefit [citation].” (Emphasis added.) Shapiro, 192 Ill. App. 3d at 1010-11; see also A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 792.

The trial court found that plaintiff’s pricing formula was confidential information. Judge O’Brien made the following ruling:

“[I]nternal costs or confidential particularized plans or processes developed by the employer which are unknown to others in the industry and in which the employer has an advantage over its competitors are protectable.
Thus, the internal costs of Plaintiff as to a particular building that is bid, such as its worker’s compensation [or] public liability insurance premium cost and its arbitrary setting of profit margin are confidential in Plaintiff’s business.” (Emphasis added.)

Plaintiff’s pricing formula was confidential. Plaintiff initially bases its bid upon the cost of labor. Then the salesperson adds various costs including workers’ compensation, public liability insurance, equipment, supplies, payroll tax, overhead and a profit margin. Plaintiff’s workers’ compensation rate and its public liability insurance premiums are confidential because they are based upon plaintiff’s claims history. In addition, plaintiff’s overhead and profit margin are obtained from written Millard guidelines which are confidential.

The record shows that Millard regarded its customer information as confidential. Millard’s customer files were maintained in locked desk drawers, or in a locked file room with a system for checking out customer files. If Mr. Kugler saw any customer information left unattended, he insisted that the person handling the file place it in a secure location. We will not set aside the trial court’s finding because it is not contrary to the manifest weight of the evidence.

C

Defendant also contends that the grant of injunctive relief was against the manifest weight of the evidence because plaintiff failed to demonstrate a protectable interest in its relationship with its customers. Plaintiff maintains that the trial court properly found that it had a protectable interest in its relationship with its customers. We agree with plaintiff.

In Illinois, an employer has a protectable interest in its customers, and restrictive covenants are usually enforced in situations “ ‘(1) where, by the nature of the business, [the employer] has a near-permanent relationship with its customers and but for the employment, [the employee] would not have had contact with [the customers] ***.’ ” (Shapiro v. Regent Printing Co. (1989), 192 Ill. App. 3d 1005, 1010-11, quoting Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 16; see also A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 792.) “Trade secrets are not necessary in order to establish a protectable interest in an employer’s customers.” McRand, Inc. v. van Beelen (1985), 138 Ill. App. 3d 1045, 1051.

A court may consider the following factors when determining whether a near-permanent relationship exists between an employer and its customers:

“(1) the number of years the employer required to develop the clientele, (2) the amount of money the employer invested in developing the clientele, (3) the degree of difficulty in developing the clientele, (4) the amount of personal customer contact by the employee, (5) the extent of the employer’s knowledge of its clientele, (6) the length of the time the customers have been associated with the employer, and (7) the continuity of the employer-customer relationship.” (A.B. Dick Co., 159 Ill. App. 3d at 793.)

We have found that the amount of time and money it takes for an employer to develop a clientele is an indicator of how long the firm and its clients intend to remain affiliated. (McRand, Inc., 138 Ill. App. at 1051.) “People rarely invest a great deal of time in a business relationship that they do not intend to maintain.” McRand, Inc., 138 Ill. App. at 1051.

Upon applying the aforementioned principles to the case at bar, we conclude that plaintiff had a near-permanent relationship with its customers. The maintenance business is very competitive. The record shows that plaintiff devoted substantial resources to developing and maintaining a clientele. In addition, plaintiff and its sales staff made an effort to develop and maintain close personal relationships with the decision makers in firms that were customers. These relationships were nurtured through social outings and personal visits. Finally, five of plaintiff’s largest customers have done business with plaintiff in excess of 15 years.

The second part of the test is whether defendant would not have had contact with the customers but for the employee’s association with the employer. The record shows that before plaintiff hired defendant as a salesperson in 1980, defendant had no experience in the maintenance industry. Defendant concedes that while he worked for plaintiff he learned how to clean a building, how to call on current and prospective clients, and how to prepare and compute bids. Defendant was also given leads to potential customers by plaintiff. Defendant would not have had contact with plaintiff’s customers but for his association with plaintiff. Accordingly, we affirm the trial court’s finding that plaintiff had a protectable, near-permanent relationship with its customers.

D

Defendant next alleges that the grant of injunctive relief was against the manifest weight of the evidence because the lower court erred when it precluded testimony seeking to elicit information regarding the “unique” character of plaintiff’s pricing methods. Defendant maintains that although the court may exercise reasonable discretion in regulating or limiting cross-examination, he had a right to cross-examine plaintiff on the “unique” character of its pricing method because plaintiff testified about it on direct examination. Defendant failed to cite any cases in support of his contention, but he relies upon 4 B. Jones & S. Gard, Evidence §909, at 105 (5th ed. 1958). We affirm the trial court’s ruling.

“Cross-examination is a matter of right [citations] and *** an important aspect of due process [citation].” (F. Cleary & M. Graham, Handbook on Illinois Evidence §611.9, at 416 (5th ed. 1990).) “The scope of cross-examination is limited to the subject matter of direct examination ***.” (Emphasis added.) (F. Cleary & M. Graham, Handbook on Illinois Evidence §611.11, at 418 (5th ed. 1990), citing People v. van Dyke (1953), 414 Ill. 251; Stafford v. Fargo (1864), 35 Ill. 481; People v. Hosty (1986), 146 Ill. App. 3d 876.) “With respect to cross-examination [on a particular] subject ***, the extent of cross-examination is subject to the broad discretion of the trial court.” F. Cleary & M. Graham, Handbook on Illinois Evidence §611.11, at 421 (5th ed. 1990), citing People v. Kellas (1979), 72 Ill. App. 3d 445.

The trial court properly limited the scope of defendant’s cross-examination. The subject matter of the testimony in question was the confidential nature of plaintiff’s pricing formula. The subject matter of plaintiff’s testimony was not the uniqueness of the pricing formula. We will defer to the discretion of the trial court and affirm its finding.

For the aforementioned reasons, we hold that the trial court’s injunction was not contrary to the manifest weight of the evidence. The trial court did not abuse its discretion. Therefore, we will not set aside its ruling.

II

Finally, defendant contends that the injunction order entered by the trial court was unreasonable and overbroad, in violation of Illinois law. Plaintiff maintains that the injunction reasonably protected its business interests. We find that the agreement was reasonable.

The statute, in relevant part, provides as follows:

“Every order granting an injunction and every restraining order shall set forth the reasons for its entry; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” (Ill. Rev. Stat. 1989, ch. 110, par. 11 — 101.)

Defendant also relies upon House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, and Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, which support the principle that an injunction should be reasonable in scope and no broader than required to protect a plaintiff’s legitimate business interest.

The reasonableness of a post-employment covenant not to compete is not evaluated pursuant to section 11 — 101. A restrictive covenant’s reasonableness is measured by its hardship to the defendant, its effect upon the general public, and the reasonableness of the time, territory, and activity restrictions. McRand, Inc. v. van Beelen (1985), 138 Ill. App. 3d 1045, 1056-57.

The agreement does not pose an unreasonable hardship for Mr. Bernero because he is free to compete with Millard and solicit any customer that is not identified in the order. The order expressly states that defendant is not prohibited from seeking contracts from parties who are not current customers of plaintiff or who were not serviced by plaintiff on the day defendant left. In addition, the order does not prohibit defendant from seeking contracts in the future from plaintiff’s current customers who terminate their relationship with plaintiff prior to the end of the two-year restrictive period. Furthermore, the order does not have an injurious effect upon the general public. The public is free to seek the services of EBM.

Finally, when determining whether post-employment covenant restrictions are reasonable, courts evaluate the time, territory, and activity restrictions. We find that the restrictions are reasonable. The time restriction is reasonable in light of the fact that it took a great deal of time for plaintiff to acquire and maintain clients. (See McRand, Inc. v. van Beelen (1985), 138 Ill. App. 3d 1045, 1058-59.) We also hold that the three-county territorial restriction is reasonable. The Illinois Supreme Court has precluded former employees from competing in broad geographic markets in prior cases. (See Cockerill v. Wilson (1972), 51 Ill. 2d. 179.) We also find that the activity restraint in this case is reasonable. This court has held that an employer may have a protectable interest in its customers and bar solicitation of those customers with post-employment covenants not to compete. SeeA.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786.

The reasonableness of a restrictive covenant is also determined by the facts of the case. (Shapiro v. Regent Printing Co. (1989), 192 Ill. App. 3d 1005, 1010.) The facts in this case support the trial court’s findings.

For the aforementioned reasons, we affirm the trial court’s verdict.

Affirmed.

McMORROW, P.J., and JIGANTI, J., concur.


author: JUSTICE GORDON

text:
    BEECHER MEDICAL CENTER, INC., Plaintiff-Appellee, v. BERNARD J. TURNOCK, Director, et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—88—3724
    Opinion filed December 21, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Ronald Scott Mangum, of Chicago (Terrence J. Benshoff, of counsel), for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

The defendants, the Director of Public Health and the Illinois Department of Public Health (Director and Department, respectively), appeal from an order of the circuit court of Cook County on administrative review that reversed the Director’s “Final Order and Decision,” finding the plaintiff, Beecher Medical Center, Inc. (Beecher), a long-term nursing care facility, in violation of the Nursing Home Care Reform Act of 1979 (the Act) (Ill. Rev. Stat. 1985, ch. IIIV2, par. 4151 — 101 et seq.). The reversal of the circuit court was predicated on the procedural ground that the attorney appointed by the Director to serve as a hearing officer was not lawfully appointed as required by section 3 — 704(a) of the Act (Ill. Rev. Stat. 1985, ch. III½, par. 4153 — 704(a)), and therefore the hearing officer lacked jurisdiction to conduct the administrative hearing below. For the reasons set forth, we reverse the judgment of the circuit court.

In April of 1986, the Department received a complaint against Beecher alleging that Beecher had negligently cared for one of its residents who, while under the care of the staff at Beecher, had sustained bone fractures in both of her legs. According to the nursing records, the attending nurse had observed bruises on the resident’s legs, but had failed to notify her physician of her condition.

After investigating that complaint, the Department concluded that Beecher had violated Rule 300.1010(h) of the Minimum Standards, Rules and Regulations for the Classification and Licensure of Skilled Nursing Facilities and Intermediate Care Facilities (77 Ill. Admin. Code, §300.1010(h) (1980)) by its failure to notify the resident’s physician of the bruises observed by the resident’s attending nurse. Beecher thereupon requested an administrative hearing to review the Department’s determination. Subsequently, in August of 1986, evidentiary hearings were held and conducted by a private attorney who was appointed by the Director as a hearing officer pursuant to a contractual agreement with the Department. After hearing testimony, the hearing officer recommended that the Department’s finding that Beecher violated Rule 300.1010(h) be affirmed. The Director adopted the hearing officer’s recommendation in the final order, thus citing Beecher with a “Type B” violation. Ill. Rev. Stat. 1985, ch. HV-lz, par. 4151-130.

Beecher filed a complaint for administrative review in the circuit court of Cook County. In its complaint, Beecher alleged that: (1) the Director’s decision was contrary to the manifest weight of the evidence; (2) the Department failed to follow its own published rules in adopting and issuing the decision; and (3) the Department’s actions denied Beecher due process of law because the hearing officer was not lawfully appointed pursuant to section 3 — 704(a) of the Act. (Ill. Rev. Stat. 1985, ch. IIIV2, par. 4153 — 704(a).) The circuit court ruled that although there was sufficient evidence to sustain the Director’s decision that Beecher had committed a “Type B” violation and that the Department did adhere to its own rules, the court reversed the Director’s decision solely on the ground that the hearing officer was not lawfully appointed and therefore the hearing officer lacked jurisdiction to conduct the hearing.

At issue here is whether the attorney appointed by the Director qualified as a hearing officer under section 3 — 704(a) of the Act, which at the relevant times herein provided: “Upon the receipt of a request in writing for a hearing, the Director or a duly qualified employee of the Department designated in writing by the Director as a hearing officer shall conduct a hearing to review the decision.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 111½, par. 4153 — 704(a).) The term “Director” is defined in an earlier provision of the Act to mean “the Director of Public Health or his designee.” (Ill. Rev. Stat. 1985, ch. 111½, par. 4151 — 110.) In August of 1988, the legislature amended section 3 — 704(a) of the Act by omitting the term “duly qualified employee” and inserting the word “person” (Pub. Act 85 — 1183, eff. August 13, 1988 (amending Ill. Rev. Stat. 1985, ch. 111½, par. 3— 704(a)), thereby explicitly providing that any person designated in writing by the Director would have the authority to serve as a hearing officer. Both parties agree, however, that this case is controlled by the statute as it existed prior to amendment. Because neither party argues on appeal that the hearing officer in this case was an “employee” of the Department, we proceed under the implicit concession that the attorney’s status was that of an independent contractor, and not that of a “duly qualified employee.”

The Department contends that the proper construction of section 3 — 704(a) requires that the term “Director” be accorded its full latitude as defined permitting either the Director or his designee, whether the designee is an independent contractor or an employee, to serve as a hearing officer. The Department points out that this construction is mandated by the provision in the Act which states that “[flor the purposes of this Act, *** the terms defined in this Article have the meanings ascribed to them herein,” unless the context otherwise requires. (Ill. Rev. Stat. 1985, ch. IIIV2, par. 4151 — 102.) The Department, therefore, urges that even though he was not a Department employee, the hearing officer was lawfully appointed pursuant to the Director’s designation as evidenced by his contract, which states that he would “serve as a hearing officer on behalf of the Director of Public Health for the administrative proceedings for which [he] is appointed by the Director.”

Beecher responds that if the term “Director” in section 3 — 704(a) is construed according to its definition, the term “duly qualified employee” becomes redundant and meaningless because anyone can be the Director’s “designee.” It further argues that the 1988 legislative amendment supports its contention because there would have been no need for a legislative amendment.

On balance we find that the Department’s position is more cogent and more consistent with basic principles of statutory construction. It is a fundamental rule of statutory construction that when an act defines its own terms, those terms must be construed according to the definitions given to them in the act. (Heritage Bank & Trust Co. v. Harris (1985), 132 Ill. App. 3d 969, 478 N.E.2d 526.) Those definitions furnish “official and authoritative evidence of legislative intent and meaning and should be given controlling effect.” (Laborer’s International Union of North America, Local 1280 v. Illinois State Labor Relations Board (1987), 154 Ill. App. 3d 1045, 1059, 507 N.E.2d 1200, 1209, citing 1A N. Singer, Sutherland on Statutory Construction, §27.02 (Sands 4th ed. 1972 & Supp. 1983).) Under this principle, the full statutory definition of the term “Director” should be implemented to include any designee of the Director even though a nonemployee.

Moreover, judicial deference should be given to administrative interpretation particularly where such interpretation involves resolution of jurisdictional questions. (Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 447 N.E.2d 295; see generally 2 Davis, Administrative Law §§7:11 through 7:13 (2d ed. 1979).) Additionally, our supreme court has recognized that the interpretations of statutes by administrative agencies “express an informed source for ascertaining the legislative intent” (Adams v. Jewel Cos. (1976), 63 Ill. 2d 336, 344-45, 348 N.E.2d 161, 165), especially where such interpretations “have been consistently adhered to for a long period of time. [Citations.]” (Illinois Consolidated Telephone Co., 95 Ill. 2d at 153, 447 N.E.2d at 300.) Under this policy, deference must be paid to the interpretation of the Department because it has consistently interpreted section 3 — 704(a) of the Act to mean that the Department may engage hearing officers who are not employees of the Department to conduct its hearings.

The issue concerning the authority of a nonemployee designated by the Director to serve as a hearing officer recently was addressed in Moon Lake Convalescent Center v. Margolis (1989), 180 Ill. App. 3d 245, 435 N.E.2d 956. The hearing officer in that case was hired by the Department through a contractual agreement similar to the appointed attorney in the instant case. The Moon Lake court agreed with the Department that the term “Director” in section 3— 704(a) of the Act is to be construed consistent with its definition as provided in section 1 — 110. (Moon Lake, 180 Ill. App. 3d at 254, 535 N.E.2d at 962.) In so doing, the Moon Lake court noted that the legislature had specifically defined “Director” to include “his designee,” which aptly “recognizes that the Director of an agency cannot possibly perform all of the functions of the agency.” (180 Ill. App. 3d at 254, 535 N.E.2d at 962.) The court, therefore, determined that the hearing officer in that case was the Director’s “designee” and thus satisfied the statutory requirements of the Act. Additionally, the court, aware of the 1988 amendment, concluded, contrary to the appellee’s contention that was likewise argued here, that the amendment did not “demonstrate^ a change in attitude, but reflects the legislature’s original intent in this matter.” (180 Ill. App. 3d at 254, 535 N.E.2d at 962.) We agree with that conclusion. Moreover, it should be noted that although the only apparent reference to the amendment’s purpose in the legislative debates was a single sentence by one senator, he did state without adverse comment that the amendment “codifies the existing practice of hiring contractual hearing officers.” (85th Ill. Gen. Assem., Senate Proceedings, June 22, 1988, at 175 (statement of Senator Donahue).) This comment is consistent with the conclusion reached in Moon Lake.

Beecher suggests that the decision in Moon Lake should be afforded little deference because the court’s analysis regarding the status of the hearing officer is contained in “about two and half pages of a 22 page opinion.” Additionally, Beecher maintains that we should not be persuaded by Moon Lake and therefore should not reverse the circuit court’s finding because in Moon Lake the underlying offense was far more flagrant than the offense in this case, thus suggesting that a reversal is only warranted where the offense leads to the death of a nursing home resident. (See Moon Lake, 180 Ill. App. 3d at 249, 535 N.E.2d at 959.) These arguments on their face are without merit.

Because we hold that the appointed attorney satisfied statutory requirements pursuant to section 3 — 704 as a “designee” of the Director, we need not address the Department’s second argument that the hearing officer was a de facto officer whose acts were valid.

For the reasons set forth, we reverse the judgment of the circuit court.

Reversed.

COCCIA and MURRAY, JJ., concur.


author: PRESIDING JUSTICE LORENZ

text:
    CHARLES ALMENDAREZ, as Parent and Guardian of Charles Almendarez, Jr., a Minor, Plaintiff-Appellant, v. PAUL KELLER, Defendant-Appellee (Peter Pavia et al., Defendants).
    First District (5th Division)
    No. 1—89—0254
    Opinion filed December 21, 1990.

      Ryan & Viglione, of Waukegan, and David A. Novoselsky & Associates, of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellant.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, Gregory L. Cochran, and Christine L. Olson, of counsel), for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Charles Almendarez, Jr., by his father Charles Almendarez, appeals from the entry of summary judgment under section 2— 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005) in defendant Paul Keller’s favor on counts V and VI of plaintiff’s complaint. We consider the following two issues: (1) whether, as alleged in count V, defendant, a landlord, could be liable for negligence to plaintiff, who was an employee of his tenant, for injuries sustained on the leased premises; and (2) whether, as alleged in count VI, defendant was liable under the Child Labor Law (Ill. Rev. Stat. 1989, ch. 48, par. 31.1 et seq.) when his tenant employed a minor. We affirm.

Plaintiff filed a seven-count complaint, as amended, to recover for injuries he sustained while operating a meat grinder in Pavia Quality-Meats, a meat market. Plaintiff was an employee of the meat market at the time of the accident although he was only 14 years old. The meat market was owned by Peter Pavia, who leased the premises from defendant. Nick Pavia was an employee of the meat market.

Counts I and III of the complaint were directed against Peter Pa-via, and count II was directed against Nick Pavia. Both parties have settled with plaintiff and neither is involved in this appeal. Counts IV through VII were directed against defendant; however, only counts V and VI are relevant on appeal.

In count V of the complaint, plaintiff alleged that defendant owned the premises and knew there was a meat grinder on the premises which was “hazardous and dangerous.” Plaintiff also alleged that defendant knew plaintiff, a minor, was an employee of the meat market and could not appreciate the risk of the meat grinder. Plaintiff alleged defendant was negligent when he allowed plaintiff to be present in the meat market, failed to supervise him, failed to prevent him from operating the meat grinder, permitted the meat grinder to remain on the premises, and failed to warn him of the danger.

Count VI alleged that defendant violated the Child Labor Law when he “permitted or allowed” plaintiff, a minor, to work in the meat market.

Defendant’s answer to count V is not in the record, but in his answer to count VI, he denied the material allegations.

Defendant moved for summary judgment on counts IV through VII, relying on his affidavit and his lease agreement with Peter Pavia. In his affidavit, defendant stated that he owned, the premises, leased it in its entirety to Peter Pavia, and had no ownership interest in the meat market or its equipment. The lease agreement provided that if the meat market permitted any unlawful or immoral practice on the premises, defendant had the right to terminate the lease.

In response to defendant’s motion for summary judgment, plaintiff relied on the meat market’s business license, Peter Pavia’s answers to interrogatories, affidavits from Jim Lagan and Mark Wesley, and depositions of defendant and Peter Pavia.

The. meat market’s business license showed that it was approved by defendant, who was a trustee of the village where the meat market was located.

In his answers to interrogatories, Peter Pavia stated that prior to the accident, defendant said to him, in reference to plaintiff, “I see you got a new kid working for you, huh?”

Jim.Lagan, a former employee of defendant, stated in his affidavit that defendant knew plaintiff was working in the meat market and that Lagan told defendant that plaintiff was one year behind him in school.

Mark Wesley, a former employee of the meat market, stated in his affidavit that he worked there when he was a minor and he believed defendant knew he was a minor. Wesley had occasionally sliced meat for defendant.

In his deposition, defendant testified that he did not have an ownership interest in either the meat market or its equipment. He had a set of keys to the premises although he never used them. A fuse box was located inside the meat market for apartments upstairs. He had never seen plaintiff before the accident and did not know he was an employee of the meat market.

Peter Pavia testified in his deposition that defendant knew plaintiff was working at the meat market and never objected to it. Pavia testified he owned the meat grinder.

The trial judge granted defendant’s motion for summary judgment on counts IV through VII. Plaintiff appeals from that order but only raises arguments concerning counts V and VI.

Opinion

Summary judgment should be granted if the pleadings, depositions, and affidavits reveal there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).

Count V of plaintiff’s complaint alleged that defendant, the landlord, was liable for negligence to plaintiff, for injuries sustained in the leased premises. The trial judge granted defendant’s motion for summary judgment, finding defendant did not owe plaintiff a duty of care. Whether defendant had a duty to exercise reasonable care is a question of law properly decided on a motion for summary judgment. Rowe v. State Bank (1988), 125 Ill. 2d 203, 531 N.E.2d 1358.

Generally, a landlord is not liable for injuries caused by a defective condition on the premises leased to a tenant and under the tenant’s control. (Rowe, 125 Ill. 2d 203, 531 N.E.2d 1358.) A lease is a conveyance of property ending the landlord’s control over the leased premises, which is a prerequisite to tort liability. (Wright v. Mr. Quick, Inc. (1985), 109 Ill. 2d 236, 486 N.E.2d 908.) Only the tenant, as the party in possession and control of the leased premises, could be liable to persons injured on the premises. (Wright, 109 Ill. 2d 236, 486 N.E.2d 908.) However, if the landlord retains control of a portion of the premises leased to the tenant, the landlord has a duty to maintain that part of the premises in a reasonably safe condition. Rowe, 125 Ill. 2d 203, 531 N.E.2d 1358.

Plaintiff contends that defendant retained control over the leased premises, relying on testimony that defendant had keys to the premises and a fuse box was located inside the meat market. These facts do not exhibit defendant’s control over the premises. The lease agreement states that Peter Pavia rented the “ground floor meat store” and no portion was retained for defendant’s control. Further, Pavia owned the meat grinder. It is clear that the premises and the meat grinder were under Pavia’s control.

Plaintiff also argues that under Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, defendant had a duty to exercise reasonable care for plaintiff’s safety. In Kahn, a minor trespassed on a vacant lot under construction and was injured on a pile of lumber. The supreme court considered the liability of the contractor building a house on the lot and the lumber company that stacked the lumber. The liability of the owner of the property was not an issue on appeal. The court found that the lumber company, as the creator of the dangerous condition, and the contractor, as the party in possession and control of the property, owed a duty of care to the minor. The court stated that if an owner or person in possession and control of the premises knows or should know that children frequent the premises, he has a duty of care to protect children from a dangerous condition that could cause injury.

Kahn is inapplicable to the case at bar. Kahn did not consider the liability of a landlord for injuries that occur on the leased premises. Further, defendant in this case did not create the dangerous condition and was not in possession and control of the premises. Therefore, defendant did not owe a duty to plaintiff and summary judgment in defendant’s favor on count V was proper.

Count VI of plaintiff’s complaint alleged that defendant violated section 1 of the Child Labor Law (Ill. Rev. Stat. 1989, ch. 48, par. 31.1) when he “permitted or allowed” plaintiff to work in the meat market. The trial judge granted defendant’s motion for summary judgment, finding that defendant was not liable under the law.

Section 1 of the Child Labor Law provides that minors under 16 years old cannot be “employed, permitted or allowed to work” in many occupations. A defendant who does not directly employ a minor can be liable under the law if he has enough control over the employer to discover the illegal employment and terminate it. Eads v. Thomas (1988), 167 Ill. App. 3d 529, 521 N.E.2d 628.

As evidence of defendant’s control over the meat market, plaintiff relies on a provision in the lease between defendant and Peter Pavia which allowed defendant to terminate the lease if the meat market conducted any unlawful practice on the premises. Plaintiff contends that because defendant did not terminate the lease although he allegedly knew plaintiff was a minor, defendant permitted or allowed plaintiffs employment.

A defendant’s right to rescind a contract with an employer is generally insufficient to impose liability under the Child Labor Law. (Coty v. U.S. Slicing Machine Co. (1978), 58 Ill. App. 3d 237, 373 N.E.2d 1371.) In Coty, plaintiff, a 15-year-old employee of a restaurant, was injured while using a meat-slicing machine. The restaurant had a franchise agreement with a franchisor under which the restaurant agreed to comply with all Federal and State laws. If the restaurant breached the franchise agreement, the franchisor could terminate it. Plaintiff filed a complaint against the franchisor for her injuries alleging negligence and wilful and wanton misconduct. Plaintiff contended that the franchisor was aware minors operated the slicing machine against State and Federal child labor laws, and under the franchise agreement, the franchisor could prevent that activity by terminating the franchise agreement. At trial, the franchisor was granted a directed verdict and plaintiff appealed. The reviewing court noted that the franchisor did not have day-to-day supervisory control, could not hire or fire employees, could not give orders to the employees, and could not immediately stop the work in the restaurant. The court affirmed the directed verdict in the franchisor’s favor finding, in part, that the franchisor’s right to terminate the agreement was insufficient to establish liability.

Similarly, in this case, plaintiff relies on a provision in the lease that allowed defendant to terminate the lease. Under Coty, this was insufficient to impose liability for a violation of the Child Labor Law. Plaintiff in this case did not present evidence that defendant had control over the meat market to discover plaintiff’s illegal employment and terminate it. The evidence presented established that defendant had no ownership interest in the meat market and was not involved in its operation. Although defendant may have had the power to terminate the lease, he had no power over the meat market to terminate plaintiff’s employment. Therefore, summary judgment in defendant’s favor on count VI was proper.

Affirmed.

MURRAY and GORDON, JJ., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MILTON JAKES, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—1896
    Opinion filed December 21, 1990.

      Michael J. Pelletier and Pamela Z. O’Shea, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Jeanette Sublett, and Elizabeth McDevitt, of counsel), for the People.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Both defendants Milton Jakes and Rhonda - Taborn were charged by information with one count of armed robbery and two counts of aggravated battery. Although their cases were severed, they were tried in a joint bench trial. Taborn was acquitted on all counts. Defendant Jakes was found guilty of two counts of aggravated battery and acquitted of armed robbery. The trial judge merged the convictions for aggravated battery and sentenced defendant to two years’ incarceration. Defendant’s post-trial motion for a new trial was denied.

Defendant appeals his conviction and raises as the sole issue for review whether the evidence was sufficient to establish his guilt of aggravated battery beyond a reasonable doubt where his codefendant was acquitted of the same charges on the same evidence.

Neither defendant nor his codefendant Taborn testified at trial. The victim, Knowledge Williams, and John McKenna, a detective with the Chicago police department, testified for the State. Shirley “Red” Newsom testified for the defense.

Knowledge Williams testified that in the early morning hours of March 11, 1985, he left his home with “Red” Newsom in his 1973 Oldsmobile. He testified that he had drunk one beer before leaving home. They drove to the Stone Liquor Store at the corner of Kostner and Madison Streets, where Newsom wanted to be dropped off. Williams stated he recognized several people who were standing outside the store, among them Taborn, who asked him to drive her home. Ta-born carried a beer bottle when she got into the front passenger seat. Williams drove around the corner, turning onto Wilcox Street near a school.

Williams testified that at this point Taborn knocked the car out of gear, snatched the keys, told Williams “this is a stick-up” and demanded his money. When Williams refused to give her his money, Ta-born jumped on him, again demanded money, and hit Williams with the beer bottle on the right side of his head above the eye at the temple, spilling beer on him in doing so. Williams testified that the driver's window was half open.

Defendant approached the car and said, “[Y]ou heard the lady, she wants your money.” The victim then testified that his window was open. Defendant was carrying a baseball bat, and when Williams refused to surrender his money, defendant hit him above the eye with the bat while Taborn reached into Williams’ pocket and took his money. Then defendant and Taborn pulled Williams from the car, and defendant hit him two or three times with the bat and he lost consciousness. He testified that the attack took place near the alley.

When he regained consciousness he went to a nearby house, rang “somebody’s” doorbell, and asked them to call the police. Williams testified on cross-examination, however, that he was unconscious when the police arrived. Williams found that his car keys and approximately $260 were missing and that his car had been moved to a different location from the place of the attack. Williams was taken to the hospital where his injuries required 50 stitches across his forehead.

Williams testified that prior to the attack he had known both assailants and had known defendant for approximately a year, although he did not know him by name, and that he had known Taborn and her family for four or five years. He stated he did not know where either of them lived, but that sometime later he saw them on the street and notified the police. On cross-examination he denied telling the police that he could obtain information about his attackers from people in the neighborhood. He also denied telling the police that he did not know the identity of the woman assailant.

Williams testified that about seven weeks later, on May 2, he identified defendant and Taborn in separate police lineups. He then identified them both at trial in photographs of the lineups. Williams also identified his car in a police photograph which pictured the car parked close to the school. Williams subsequently retrieved his car from the police pound.

He also testified that he was diabetic and was not supposed to drink alcoholic beverages. He testified that he had glasses on that night and that Taborn knocked them off when she jumped on him, that since the attack he has started losing his eyesight and that his “eyes are bad now.”

On cross-examination, he testified that when he was first hit with the bat through the window of the car, the window glass was more than halfway down and was not broken when he was hit. Williams testified that he first saw the bat when defendant and Taborn dragged him out of the car. He testified that later the police called him to tell him the car had been towed to the pound. He stated that he did not see the car when it was parked near the school as shown in the police photograph. He stated that he learned that defendant and Taborn lived on Kostner and when he saw Taborn on the street he called the police. He stated he did not ask her for his money back.

Williams testified that he told the police Taborn’s name when he was at the hospital. He believed he told the police then that she had a beer bottle, that she poured beer over him, that she grabbed the gear shift and pushed the car out of gear, that she pulled the keys out of the ignition, that she grabbed him around the neck and went through his pockets and that he knew his attackers. He acknowledged that earlier on the day of their arrest he told the police that he had information that defendant and Taborn might be at 4342 West Washington.

Police detective McKenna testified that on May 2, at approximately 9:30 p.m., he conducted two lineups. He identified Taborn and defendant, who were present in court, as the persons in the lineups who were identified by Williams as his attackers. Williams testified that although he had seen Newsom since this incident, he did not mention it to her.

Shirley Newsom testified for the defense. She stated that she had known Williams, Rhonda Taborn and the defendant from around the neighborhood for a couple of years. She testified that on March 11, in the early morning hours, she and Williams were at his house, then left together to go to George’s Lounge, where they remained for 15 to 20 minutes. She testified that while at the lounge Williams had two or three drinks in 15 minutes, that she did not see him pay for his drinks while they were there, that when they left they went to the car, both got in, and while they sat there Taborn came over and got in the car, that all three sat in the front seat with Newsom in the middle. They then rode off, turned onto another street, where they parked and talked for about half an hour. While they sat there defendant pulled up in his car and parked in the school lot. He got out of the car and called Taborn to come over to him, which she did. Newsom testified that she and Williams then got out of the car, and Williams went over to defendant and Taborn, about 15 to 20 feet away.

When Williams got out of the car she saw no injuries or bleeding about his face, but she noticed that he staggered a little bit, his eyes were a little red, and his speech was “a little sloppy.” She earlier had asked him if he had money and he said he didn’t. She saw none. She stated she felt his two front pockets to see if he was telling the truth and testified that this occurred when they left his house and before Taborn got in the car.

After Taborn and Williams got out of the car and went over to the. defendant, Newsom then started to walk away from them heading toward her home. As she was walking she continued to turn and look back at the group. She saw Williams fall forward to the ground as defendant and Taborn walked away. She continued to walk toward the corner and continued to look back. When she got to the corner, which was far away, she saw Williams and he was up on his feet and appeared to be staggering. She stated she did not see a bat or a weapon in anyone’s hands at any time. She did not go back to help Williams because she thought he was drunk and because she was late getting home.

On cross-examination she acknowledged that she knew defendant and Taborn (whom she knew as Rhonda Fleming) from the neighborhood for about six months before this incident. She stated that she and the victim were friends. She saw no bottle in" Taborn’s hands when she got in the car nor did she see Taborn strike Williams. She stated that when they were parked, Williams parked on the school side of the street at the curb, and that this was a one-way street. She testified she had seen Williams four or five times since this incident, but that he never told her about this case or asked her to be a witness. She testified that she did not know whether Williams was unconscious when he fell but that she saw him get up and walk after the fall.

Certain stipulated testimony was read into the record. Police officer Jay Nielsen would testify that he interviewed Williams in the hospital on March 11 and that Williams told him that he had been stopped by an unknown woman who jumped out in front of his car and screamed for help and when he stopped he was hit in the head by unknown assailants; and that when he woke up in the hospital his money, car keys and ID were gone and he could not say more because of his injuries.

Detective Riemer would testify that he contacted Williams by phone two days after the assault and that Williams related a story to him similar to his trial testimony except that he said he was pulled from the car by the male assailant and then struck with a baseball bat, that his money, keys and car were taken and that he could identify his assailants. Riemer would further testify that Williams did not tell him that Taborn hit him with a bottle or that she had any sort of bottle with her.

Officer Dorich would testify that on April 17, he interviewed Williams, who told him that he might be able to obtain further information about the assailants from confidential sources on the street and would contact the police when he had information for them.

Dr. Mehta would testify that he is a physician and was employed at Mt. Sinai Hospital on March 11. D. McBride would testify that she is a registered nurse and was employed at Mt. Sinai Hospital on March 11. They both were on duty in the emergency room when Williams was treated. They observed a strong smell of alcohol on Williams.

There was a further stipulation that the items taken from Williams were a 1973 Oldsmobile, car keys, and $260.

The trial judge found Taborn not guilty of all charges. He found defendant not guilty of armed robbery but found him guilty of aggravated battery. Count III was merged into count II, and defendant was sentenced to two years’ incarceration with credit given for time served. Defendant’s post-trial motion was denied.

Defendant argues on appeal that he was not proven guilty of aggravated battery beyond a reasonable doubt and that his conviction for that offense must be reversed, because although the State presented identical evidence against him and his codefendant, the trial judge found defendant guilty of two counts of aggravated battery and acquitted Taborn of the same offense.

Initially we consider whether inconsistent verdicts for the defendant and Tbborn based on the same evidence in a joint but severed trial raise a reasonable doubt as to the guilt of the convicted defendant. The defendant argues that the court erred in convicting him of two counts of aggravated battery while acquitting Taborn of the same offenses based on the same evidence offered by the State against them. He cites People v. Carter (1974), 19 Ill. App. 3d 21, 23, 311 N.E.2d 213, 215, as support for the proposition that where codefendants are tried on the same facts, the verdicts should be consistent and in such circumstances inconsistent verdicts raise a reasonable doubt as to the guilt of the convicted defendant. He also cites People v. Gonzales (1978), 67 Ill. App. 3d 215, 219, 384 N.E.2d 788, 792, wherein the court stated if there is no plausible construction of the evidence which would establish a reasonable basis for finding one defendant guilty and the other defendant not guilty, the conviction must be reversed.

However, unless the evidence against both defendants is identical, the failure to convict one codefendant does not necessarily raise a reasonable doubt as to the guilt of the other codefendant. (People v. Vriner (1978), 74 Ill. 2d 329, 343, 385 N.E.2d 671, 677; People v. Stock (1974), 56 Ill. 2d 461, 465, 509 N.E.2d 19, 21.) The slightest difference in the evidence can be sufficient to support different verdicts. People v. Cartalino (1982), 111 Ill. App. 3d 578, 584-85, 444 N.E.2d 662, 669; People v. Gonzales, 67 Ill. App. 3d at 219; People v. Beasley (1976), 41 Ill. App. 3d 550, 554, 353 N.E.2d 699, 703; People v. Taylor (1974), 25 Ill. App. 3d 396, 403, 323 N.E.2d 388, 393.

Here the evidence against defendant and Taborn was not identical. The victim testified that as he was driving Taborn home she knocked the gear shift and took the keys from the ignition, that she hit him with a beer bottle and poured beer over him and that she demanded money from him, whereas the victim testified that the defendant hit him with a baseball bat through the window of the car, that defendant and Taborn pulled him from the car and that defendant hit him twice more with the bat.

However, defense witness Newsom testified that she was sitting in the front car seat between the victim and Taborn when they pulled over to the curb to talk while sitting in the car. She testified that while they were talking, defendant drove up in his car, parked and called Taborn to join him, and that first Taborn and then the victim got out of the car and walked over to defendant. Clearly the evidence was different as to Taborn and as to the defendant. The fact that a codefendant, whose role was different from that of her armed codefendant, was acquitted during a joint trial did not bar the codefendant’s conviction on the same charges. People v. Stock, 56 Ill. 2d at 463.

Next, defendant argues that the evidence against him cannot support his convictions for aggravated battery. The victim testified that the defendant struck him in the head with a baseball bat, once while he was seated in the car and twice after he was pulled from the car, injuring him so that he required 50 stitches in the forehead. However, Newsom testified that at no time did she see a baseball bat or any other weapon in defendant’s hands. She testified that she was seated in the center of the front seat of the car between the victim and Ta-born, that after Taborn got out the victim got out and walked 15 to 20 feet to where defendant was standing, while Newsom then got out and walked in a different direction toward her home. She stated that when she looked back the defendant, Taborn and the victim were standing together and engaged in a conversation with the victim, who was standing next to defendant, and when she looked back again the victim was getting up from having fallen to the ground as the defendant and Taborn were walking away. Newsom believed the defendant ■ was drunk since he had staggered as he got out of the car and that his eyes were red and his speech “a little sloppy.”

The trial judge commented that he thought “that both defendants and the one other witness that testified are all less than desirable.” However, we note that neither defendant nor Taborn testified at trial and for that reason we cannot conclude that the court’s comment “less than desirable” was meant to imply that they were not credible. Aside from stipulated testimony, the court heard only testimony from the victim, police officer McKenna, and Shirley Newsom.

The trial judge commented that the victim told “a pretty consistent story in some respects” but that he “was having a bit of a problem remembering all the facts because of the injuries, perhaps because he was drinking *** perhaps because of his [diabetic] condition he can’t handle it [alcohol] too well.” The judge commented that the victim’s testimony placed Taborn in the car and at one point placed Newsom in the car.

He commented that there was a lot of confusing testimony but that Newsom’s testimony which placed everybody on the scene at the same time and the victim next to defendant when he fell straightened it out pretty well. The judge found “interesting” the fact that Newsom testified that the victim was “basically staggering drunk” yet both she and Taborn got into the car with him to drive around, and later by “sheer coincidence” the defendant drove right to the place where they were parked. The court commented that Newsom testified defendant called Taborn over, that the victim also walked over to the place where Taborn and defendant stood, that as Newsom walked away she turned and saw the victim fall or saw him on the ground after he fell, and that he was with the defendant at the time. The court then acquitted Taborn of all charges, acquitted defendant of armed robbery, but found defendant guilty of aggravated battery.

Defendant contends that he was not proven guilty beyond a reasonable doubt and that the State’s evidence against him alone cannot support a conviction for aggravated battery.

In People v. Young (1989), 128 Ill. 2d 1, 48, 538 N.E.2d 461, the Illinois Supreme Court held that “[t]he due process clause of the fourteenth amendment (U.S. Const., amend. XIV) protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for which he is charged. [Citation.] When presented with a challenge to the sufficiency of the evidence, it is [the reviewing] court’s function to carefully examine the evidence, giving due consideration to the fact that the court and jury saw and heard the witnesses. If, after such consideration, [the reviewing] court is of the opinion that the evidence is not sufficient to remove all reasonable doubt of the defendant’s guilt and is not sufficient to create an abiding conviction that he is guilty of the crime charged, then the conviction must be reversed.”

The court in Johnson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed.2d 560, 573, 99 S. Ct. 2781, 2789, held that “the relevant question [on review] is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements' of the crime beyond a reasonable doubt.” (Emphasis in original.)

Our court has held that a conviction will not be disturbed unless the evidence, when viewed in the light most favorable to the prosecution, is so improbable, unsatisfactory or inconclusive that defendant could not have been found guilty beyond a reasonable doubt. (People v. Jarvis (1987), 158 Ill. App. 3d 415, 425, 511 N.E.2d 813, 819.) However, while we attach great weight, to the findings of the trial judge, including witness credibility, his findings are not conclusive, and the reviewing court has the duty to set. aside a conviction where the evidence is such that it leaves a reasonable doubt as to the defendant’s guilt. People v. McKibben (1974), 24 Ill. App. 3d 692, 697-98, 321 N.E.2d 362, 366.

The victim testified at trial that while he and Taborn were sitting in the parked car, defendant came up to the car where he, the victim, was seated in the driver’s seat, that defendant struck him once through the partially open window with a baseball bat, that defendant and Taborn dragged him from the car and that defendant again struck him in the head with the bat twice, severely injuring him and causing him to lose consciousness. He testified he required 50 stitches to close his wounds and now has trouble with his memory and his eyesight.

In contrast, however, Newsom testified that she was seated in the front seat of the car between the victim and Taborn, that when defendant parked nearby, both Taborn and the victim exited the car and walked over to defendant, that she, Newsom, then began walking home, and while looking back at the group from time to time, she saw the victim fall and then saw defendant and Taborn walking away. Newsom testified that she saw no baseball bat or weapon in defendant’s hands at any time. She also testified that the victim had consumed two or three drinks in the bar in about 15 minutes time just prior to this incident and that he staggered, his speech was a little “sloppy” and she believed him to be drunk.

Suspicious conduct or probabilities cannot substitute for proof, and the mere presence of defendant at the scene of the crime is not of itself sufficient to sustain a conviction. (In re Whittenburg (1976), 37 Ill. App. 3d 793, 795-96, 347 N.E.2d 103, 105; People v. Mitchell (1978), 59 Ill. App. 3d 367, 369, 375 N.E.2d 531, 533.) The evidence which supports a conviction must produce a reasonable and moral certainty that the defendant committed the crime. Mitchell, 59 Ill. App. 3d at 369.

The State offered the testimony of the victim, who testified defendant struck him three times with a baseball bat, causing him to fall and become unconscious, and that when he recovered his senses he went to call the police, yet on cross-examination, he stated he was unconscious when the police arrived at the scene. He testified that he knew who his assailant was and knew Taborn. But the stipulated testimony of Officer Nielsen of the victim’s statement to him in the hospital was that an unknown woman jumped in front of his car and when he stopped to help her he was struck by unknown assailants. Detective Riemer’s stipulated testimony of the victim’s statement was that defendant struck him with the bat after pulling him from the car but that he did not tell the officer that Taborn had struck him or that she had a bottle with her. While the victim testified he knew who his assailant was, Officer Dorich’s stipulated testimony was that he did not identify the defendant early in the investigation but instead told the police he would try to get information from confidential sources on the street.

The inconsistencies in the victim’s various versions of the occurrence when viewed together with Newsom’s testimony that she saw no baseball bat in defendant’s hand at any time, that the victim appeared to be drunk and staggering as he got out of the car and walked over to defendant and that he was getting up as defendant and Taborn walked away, create a reasonable doubt as to the credibility of the victim’s testimony.

We also note that the victim’s statement at trial that defendant struck the first blow to his head with the bat through the partially opened car window raises a credibility question when we consider the logistics of striking such a blow when the open space access to the victim-target was so limited.

While the trial judge found that the victim’s statements were contradictory, he concluded that this could have been the result of his severe injuries or his drinking and that he told “a pretty consistent story in some respects.” The court found that there was a lot of confusing testimony but that Newsom placed the victim, the defendant and Taborn on the scene at the same time and placed the defendant next to the victim when he fell. On this basis the court found Taborn not guilty but found defendant guilty of aggravated battery.

Newsom saw no weapon, and saw no attack on the victim. The victim did not identify the defendant as his assailant immediately following the incident of March 11, stating instead that he was struck by an unknown assailant. However, on March 13, the victim knew the identity of his assailant, and on April 17, offered to obtain more information about him on the street and still later on May 2, identified defendant in a police lineup.

While commenting that there was “a lot of confusing testimony” the court nevertheless found defendant guilty of aggravated battery. We find that the evidence was not so overwhelming or convincing as to defendant’s guilt. Even when viewing the evidence in the light most favorable to the prosecution, we find the State has failed to prove beyond a reasonable doubt that the defendant committed the crime. We therefore reverse the defendant’s conviction for aggravated battery.

Judgment reversed.

McNAMARA and EGAN, JJ., concur.