author: JUSTICE DiVITO

text:
    HENRY A. HIRSCHAUER et al., Plaintiffs-Appellees, v. THE CHICAGO SUN-TIMES, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—3781
    Opinion filed December 12, 1989.

      Levin & Funkhouser, Ltd., of Chicago (Lawrence R. Levin, Vance L. Liebman, Damon E. Dunn, and Patricia A. Bronte, of counsel), for appellant.
    Phelan, Pope & John, Ltd., of Chicago (Richard J. Phelan, Richard A. Devine, Mark A. Brand, and William K. Blanchard, of counsel), for appellees.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiffs Henry A. Hirschauer and the Stratford News Agency (collectively News Agency) brought an action to obtain a mandatory injunction forcing defendant-appellant Chicago Sun-Times (the Sun-Times) to continue selling newspapers to News Agency. On May 7, 1988, News Agency obtained an ex parte temporary restraining order (TRO) forcing the Sun-Times to continue selling newspapers to News Agency. On June 28, 1988, News Agency filed a motion for voluntary dismissal and the Sun-Times filed a motion to dissolve the TRO. The Sun-Times’ motion was granted, and the cause was dismissed by an agreed order. The Sun-Times then filed a motion for statutory damages under section 11 — 110 of the Code of Civil Procedure (iLL. Rev. Stat. 1987, ch. 110, par. 11 — 110) due to the wrongful issuance of the TRO. That motion was denied, and the Sun-Times brought this appeal.

The issues raised are (1) whether the appeal should be dismissed as untimely on the ground that the Sun-Times failed to appeal from an earlier order denying its motion to dissolve the TRO: and (2) whether the Sun-Times is entitled to damages under section 11 — 110 of the Code of Civil Procedure resulting from the wrongful issuance of the TRO. We hold that the appeal is not untimely and that the trial court improperly denied the Sun-Times’ motion for damages.

The essential facts are not disputed. On Friday, May 6, 1988, the Sun-Times gave News Agency, a wholesale purchaser of newspapers from the Sun-Times for more than 30 years, written notice that it had decided to stop selling newspapers to News Agency, effective Monday, May 9, 1988. In an ex parte proceeding on Saturday, May 7, 1988, without notice to the Sun-Times, News Agency obtained a TRO forcing the Sun-Times to continue selling newspapers to News Agency and directing the parties to appear in court on Monday, May 9, 1988. The Sun-Times first learned of the TRO on Sunday, May 8, 1988. On Monday, May 9, 1988, News Agency filed a complaint for injunctive relief alleging that News Agency purchased and distributed the Sun-Times’ newspapers pursuant to an unspecified oral distributorship contract and praying for an injunction forcing the Sun-Times to continue selling newspapers to News Agency. On the same date, both parties appeared in court but the Sun-Times sought a change of venue and the proceedings were rescheduled for the following day.

On Tuesday, May 10, 1988, a hearing was held on the continuance of the TRO. News Agency argued that the Sun-Times should be equitably estopped to refuse to sell newspapers to News Agency without first paying News Agency for the value of its business. The Sun-Times argued that the pleadings failed to state a cause of action either in contract or estoppel and raised as further grounds for dismissal News Agency’s failure to give the Sun-Times notice of the TRO motion. The trial court concluded that “[t]here [was] the possibility *** that the summary termination of [News Agency’s] distributorship without compensation createfd] a condition of equitable estoppel which this court of equity would or could enforce through a preliminary injunction” and continued the TRO. Regarding News Agency’s failure to give notice, the trial court stated: “You have notice now. If I were to extend it, you have notice. What difference does that make

On May 19, 1988, the Sun-Times filed an emergency motion to dismiss News Agency’s complaint and to dissolve the TRO. The Sun-Times argued again that the complaint failed to state a cause of action either in contract or estoppel and failed to allege that monetary relief was inadequate. News Agency did not respond to the motion. Instead, News Agency filed an amendment to its complaint and argued that the motion to dissolve the TRO had become moot with the filing of the amendment. The amendment to the complaint and accompanying memorandum of law were served on the Sun-Times after the close of business on May 24,1988.

On May 25, 1988, the hearing was held on the Sun-Times’ motion to dismiss the original complaint and first motion to dissolve the TRO. The trial court granted News Agency leave to file its amended complaint instanter, dismissed the original complaint, denied the Sun-Times’ motion to dissolve the TRO, and continued the TRO under the amended complaint. The order dismissing the original complaint and denying the motion to dissolve the TRO was entered on June 6, 1988. No appeal from that order was taken.

On June 6, 1988, the Sun-Times filed a motion to dismiss News Agency’s amended complaint and a second motion to dissolve the TRO. The Sun-Times argued that the amended complaint, like the original complaint, failed to state a cause of action. No hearing on this motion was ever held. On June 13, 1988, and again on June 21, 1988, News Agency obtained additional time in which to respond to the Sun-Times’ motion. On June 28, 1988, News Agency filed an emergency motion for voluntary dismissal. On the same date, the Sun-Times filed a third motion to dissolve the TRO based on the voluntary dismissal. The Sun-Times’ motion was granted, and News Agency’s motion for voluntary dismissal was continued.

On August 30, 1988, the Sun-Times filed a motion for a finding that the TRO had been wrongfully issued and for damages under section 11 — 110 of the Code of Civil Procedure. On October 4, 1988, the Sun-Times’ motion was denied. The trial judge ruled that damages were not available either because the TRO was “ancillary” to the permanent injunctive relief sought, or because damages were precluded by News Agency’s voluntary dismissal. The trial court also refused to find that the TRO had been wrongfully issued, stating that such a finding “would be inconsistent with [the trial court’s] prior rulings.” On November 29, 1988, an agreed order was entered dismissing the cause.

I

News Agency maintains that the trial court’s June 6, 1988, order denying the first motion to dissolve the TRO was a ruling that the TRO was properly granted. Because the Sun-Times did not appeal from that order, News Agency argues, it is the law of the case, barring the Sun-Times from recovering statutory damages. We disagree, reaffirming our earlier ruling against News Agency following News Agency’s fully briefed motion to dismiss this appeal.

Under section 11 — 110 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 11—110), after the dissolution of a temporary restraining order or preliminary injunction, but before final disposition of the action, the trial court is required, upon the petition of the party injured by the temporary restraining order or preliminary injunction, to determine and enter judgment for damages in favor of that party. Section 11 — 110 is to be strictly construed, and damages are to be awarded under it “only if the preliminary injunction has been dissolved before the case is disposed of on the merits, and thus adjudicated to have been wrongfully issued.” (Meyer v. Marshall (1976), 62 Ill. 2d 435, 439, 343 N.E.2d 479; Boltz v. Estate of Bryant (1988), 175 Ill. App. 3d 1056, 1062, 530 N.E.2d 985.) The damages question must be preserved by the timely filing in the trial court of a motion to dissolve the injunction. Boltz v. Estate of Bryant, 175 Ill. App. 3d at 1062; Emerson Electric Co. v. Sherman (1986), 150 Ill. App. 3d 832, 836, 502 N.E.2d 414.

In this case, there is no dispute that the Sun-Times filed a timely motion to dissolve the TRO. Nevertheless, News Agency maintains that in denying the first motion to dissolve, the trial court ruled that the TRO was properly entered, and because the Sun-Times did not appeal from that order, it cannot now argue, as a prerequisite to the recovery of damages, that the TRO was wrongfully entered. The first motion to dissolve the TRO, however, was based on News Agency’s original complaint. That complaint was dismissed, News Agency filed an amended complaint, and the TRO was continued. If the trial court denied the motion to dissolve the TRO, which is not clear, it plainly did not resolve the motion on its merits because the original complaint which formed the basis for the motion was dismissed. Indeed, as argued by News Agency at the hearing on the motion to dissolve, the motion was mooted by the dismissal of the original complaint and the filing of the amended complaint. Accordingly, we conclude that the June 6, 1988, order was not an adjudication that the TRO was properly issued.

The Sun-Times’ second motion to dissolve the TRO, this time based on the amended complaint, was likewise never resolved on its merits. News Agency obtained two extensions of time to respond to the motion. The motion was never fully briefed and no hearing on the motion was ever held. Instead, News Agency filed a motion for voluntary dismissal, and the Sun-Times responded with its third motion to dissolve the TRO based on the voluntary dismissal. Clearly the third motion, which was allowed, was not an adjudication that the TRO was properly issued. Thus, there was no order ruling that the TRO was properly issued which, if the Sun-Times had failed to appeal, would be the law of the case barring the Sun-Times from recovering statutory damages.

Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535, 447 N.E.2d 288, and Schien v. City of Virden (1955), 5 Ill. 2d 494, 126 N.E.2d 201, relied on by News Agency, are inapposite. In both of those cases, the trial courts unambiguously denied the defendants’ motions to dissolve the TROs. In this case, by contrast, the trial court continued the TRO under News Agency’s amended complaint and never held a hearing on the Sun-Times’ subsequent motion to dissolve the TRO based on the amended complaint.

II

The Sun-Times maintains that it is entitled to statutory damages under section 11 — 110 of the Code of Civil Procedure because the premature dissolution of the TRO, before any hearing on the merits of expiration of the TRO on its own terms, was a de facto adjudication that the TRO was wrongfully issued; that the TRO was wrongfully issued as a matter of law because it was issued without notice to the Sun-Times following an ex parte proceeding; and that the TRO was wrongfully continued because neither the original nor the amended complaint stated a cause of action. Although we reject the Sun-Times’ de facto adjudication argument, for the reasons given below, we agree that the TRO was wrongfully entered and continued.

The purpose of a TRO is to allow the trial court to preserve the status quo until it can hold a hearing to determine whether it should grant a preliminary injunction. (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535, 541, 447 N.E.2d 288.) A TRO should not be refused or dissolved merely because the court may not be absolutely certain the plaintiff has the right he claims. (Stocker Hinge Manufacturing Co. v. Darnel Industries, 94 Ill. 2d at 541-42; see also Schien v. City of Virden (1955), 5 Ill. 2d 494, 503, 126 N.E.2d 201 (“A temporary injunction may be wrongfully issued although plaintiff prevails in his suit for a permanent injunction [citation] and the temporary injunction may rightfully issue although plaintiff does not sustain his suit on the merits”).) The plaintiff is not required to make out a case which would entitle him to judgment at trial; rather he need only show that he raises a “fair question” about the existence of his right and that the court should preserve the status quo until the case can be decided on the merits. Stocker Hinge Manufacturing Co. v. Darnel Industries, 94 Ill. 2d at 542.

The decision to issue a TRO is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. (Stocker Hinge Manufacturing Co. v. Darnel Industries, 94 Ill. 2d at 541.) Although not expressly stated in section 11— 110, a prior adjudication that the TRO was wrongfully issued is a prerequisite to recovery of statutory damages. Stocker Hinge Manufacturing Co. v. Darnel Industries, 94 Ill. 2d at 543; Meyer v. Marshall (1976), 62 Ill. 2d 435, 439, 343 N.E.2d 479; Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 303 N.E.2d 1.

We do not believe that the dissolution of the TRO in this case prior to the dismissal of News Agency’s amended complaint was a de facto adjudication that the TRO was wrongfully issued. As a general rule, the mere dissolution of a TRO prior to a final determination on the merits does not by itself establish that the TRO was wrongfully entered. (See Stocker Hinge Manufacturing Co. v. Darnel Industries, 94 Ill. 2d at 542-43.) Thus, the dissolution of the TRO in this case before dismissal of the cause does not by itself establish that the TRO was wrongfully entered. Boltz v. Estate of Bryant (1988), 175 Ill. App. 3d 1056, 530 N.E.2d 985, relied on by the Sun-Times, does not compel a contrary conclusion. In that case, the court concluded that the party opposing the dissolution of the TRO consented to the entry of an order dissolving the TRO, waived any defenses to the motion to dissolve, and could not attack the order on appeal. In this case, by contrast, News Agency did not consent to entry of an order dissolving the TRO and did not waive any defenses to the Sun-Times’ motion to dissolve.

Because the trial court never found specifically that the TRO was wrongfully issued, like the appellate court in Boltz, we must decide whether the TRO was wrongfully issued on the record before us. Initially, we note that the TRO was issued following the ex parte proceeding on May 7, 1988, without notice to the Sun-Times. Under section 11 — 101 of the Code of Civil Procedure, a TRO may be obtained without notice to the adverse party only if “it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon.” (Ill. Rev. Stat. 1987, ch. 110, par. 11—101.) Injunctive relief without notice is an extraordinary remedy appropriate only under the most extreme and urgent circumstances. (G&J Parking Co. v. City of Chicago (1988), 168 Ill. App. 3d 382, 387, 522 N.E.2d 774.) The critical inquiry in all cases is whether, during the period it takes to give notice, the opponent will take such measures as to destroy the substance of the litigation or otherwise obstruct the court from dealing effectively with the issues (G&J Parking Co. v. City of Chicago, 168 Ill. App. 3d at 387), and whether proper notice might have averted litigation by “immediately testing]” the validity of injunctive relief (Boltz v. Estate of Bryant, 175 Ill. App. 3d at 1065).

In this case, nothing in the record indicates why “a minimum of notice, such as a telephone call,” could not have been provided to the Sun-Times (see G&J Parking Co. v. City of Chicago, 168 Ill. App. 3d at 387), or how News Agency would have been irreparably harmed before notice could have been given. Also, notice to the Sun-Times would not have prevented News Agency from filing its complaint on Monday, May 9, 1988, or otherwise jeopardized its claim for injunctive relief.

We also note that the TRO was properly continued only if the original and amended complaints raised a “fair question” as to the existence of a right to relief. As noted by the Sun-Times, no facts pleaded in either of the complaints indicated the duration of the distributorship agreement. Because a contract for an indefinite term is terminable at will for any reason, good cause or not, or no cause at all (Alderman Drugs, Inc. v. Metropolitan Life Insurance Co. (1987), 161 Ill. App. 3d 783, 515 N.E.2d 689), even if News Agency sufficiently pleaded the existence of a contract, there were still insufficient facts pleaded to establish a breach of the contract (see Sider v. Outboard Marine Corp. (1987), 160 Ill. App. 3d 290, 300, 513 N.E.2d 449). Although News Agency was not required to conclusively establish its right to relief before the TRO would properly issue, it does not appear that the pleadings raised even a “fair question” that the agreement, if it existed at all, was breached by the Sun-Times’ termination notice.

It also does not appear that the pleadings raised a “fair question” as to News Agency’s right to relief under an estoppel theory. Count II of the amended complaint alleged that the Sun-Times’ silence regarding the terminable nature of the relationship gave rise to an equitable estoppel. Similar claims, however, have consistently been rejected by the Illinois courts. See, e.g., UIDC Management, Inc. v. Sears, Roebuck & Co. (1988), 167 Ill. App. 3d 81, 520 N.E.2d 1164; Ceres Illinois, Inc. v. Illinois Scrap Processing, Inc. (1984), 130 Ill. App. 3d 798, 474 N.E.2d 1245, aff'd (1986), 114 Ill. 2d 133, 500 N.E.2d 1.

Because the TRO was issued without notice to the Sun-Times, the original complaint was dismissed, and the allegations in both the original and the amended complaint were deficient, we conclude that the TRO was wrongfully issued on May 7, 1988, and wrongfully continued on both May 10 and May 25,1988.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and this cause is remanded for a determination of damages pursuant to section 11 — 110 of the Code of Civil Procedure.

Reversed and remanded.

HARTMAN and SCARIANO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
      In re ESTATE OF GENEVIEVE B. CARROLL, Deceased (Richard C. Carroll, Petitioner-Appellant, v. Timothy Carroll, a Minor, by Walter P. Dahl, Guardian ad litem, Respondent-Appellee).
    First District (3rd Division)
    No. 1—87—3073
    Opinion filed December 13, 1989.

      Floyd D. Perkins, of Chicago, for appellant.
    Walter P. Dahl and Lawrence S. Gosewisch, both of James E. Dahl & Associates, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Executor-appellant, Richard C. Carroll (Carroll), appeals from the circuit court’s order denying the deceased’s will to probate. On appeal, Carroll argues that the court improperly denied admission of the will to probate. We reverse and remand with instructions.

Genevieve B. Carroll died on November 19, 1984. Her son, Carroll, petitioned the circuit court of Cook County for letters testamentary and to probate the will. On January 15, 1987, the court admitted the will to probate and appointed Carroll the independent executor of her estate. The court, on its own motion, after noting that the deceased’s signature was not at the end of the will, appointed an attorney as guardian ad litem for Timothy Carroll, the minor grandson of the decedent. Thereafter, the guardian ad litem filed a petition requesting a formal proof of the will.

The decedent’s will, dated June 10, 1983, consists of a standard preprinted form entitled “LAST WILL AND TESTAMENT.” The purported signature of Genevieve B. Carroll appears on the first line in a sentence which declares the document to be her last will and testament. The form does not include instructions or language indicating a signature line. Rather, the signature line is designated by the word “Seal.”

Three witnesses signed the will. At the time of the hearing on the petition, one witness, Rose Steeman, was deceased. The other two' witnesses, Hiltrude May Kuhlman and Mildred Gibbons, were not ambulatory, and on June 12, 1987, their evidence depositions were taken at their nursing home.

During her deposition, Ms. Kuhlman recognized her signature and testified that she had signed the will. She also testified that her address was written in her handwriting. Ms. Kuhlmann acknowledged that the other witnesses were her friends, but had no recollection of the circumstances under which she had signed the will. Similarly, the other witness, Mildred Heiden Gibbons, Genevieve Carroll’s former roommate at the nursing home, acknowledged that she had signed the will, but could not remember the surrounding circumstances. Both witnesses, however, testified that they would not have signed the attestation clause if the allegations therein were untrue.

The will’s attestation clause states the following:

“This instrument was, on the date thereof, signed, sealed, published and declared by the Testator as and for her Last Will and Testament, in our presence, who at her request and in her presence and in the presence of each of us, have subscribed our names hereto as witnesses thereof. And do hereby certify that at the time of the execution thereof the Testator was of sound and disposing mind and memory.”

The Probate Act of 1975 provides:

“Every will shall be in writing, signed by the testator or by some person in his presence and by his direction and attested in the presence of the testator by 2 or more credible witnesses.” Ill. Rev. Stat. 1985, ch. 1101/2, par. 4—3.

The last will and testament in question contains the purported signature of Genevieve B. Carroll in the first line of the document as follows. “I, Genevieve B Carroll, of Darien in the State of Illinois, declare this to be my last WILL and TESTAMENT, and I revoke all Wills and Codicils heretofore made by me.”

The Probate Act does not require that the testator’s signature appear at the end of the will. (Ill. Rev. Stat. 1985, ch. 1101/2, par. 4—3.) In fact, it is immaterial where in the will the signature of the testator is placed, if it was placed there with the intention of authenticating the instrument. (Kolowski v. Fausz (1902), 103 Ill. App. 528, 533.) According to the attestation clause, the testator signed, published and declared the instrument as her last will and testament. The deceased’s intention also may be gleamed from the title, “LAST WILL AND TESTAMENT,” and language of the document following her signature stating that she declared this to be her last will and testament.

This standard will form first orders and directs the executor to pay all just debts and funeral expenses as soon after her death as practicable. The form also contains the preprinted language, “SECOND: I give, devise and bequeath” followed by blank lines. Herein, the following is written in cursive handwriting: “to my beloved son Richard C. Carroll also my Executor all my worldly possessions, my stocks, certificate of deposits [sic], and any other investment and all money. To my dear friend, Gerry Glatz I leave my diamond ring.”

The form document provides “LASTLY: I hereby nominate and appoint_as Executor of this, my Last Will and Testament, and I direct that my Executor shall be required to furnish a surety bond to act as such Executor.” In this section, the deceased named Richard C. Carroll as executor. Preceding the attestation clause, the printed language concludes: “IN WITNESS WHEREOF I have hereunto set my hand and seal this __day of _19__” The deceased inserted the date June 10 and the year 83. All of the above suggest that the deceased intended for her signature at the beginning of the will to be her authenticating signature.

Section 6 — 4 of the Probate Act (Ill. Rev. Stat. 1985, ch. lHWa, par. 6 — 4), entitled “Admission of will to probate — Testimony or affidavit of witnesses,” states as follows:

“(a) When each of 2 attesting witnesses to a will states that (1) he was present and saw the testator *** sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will. *** If the proponent establishes the will by sufficient competent evidence, it shall be admitted to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.
(b) The statements of a witness to prove the will under subsection 6 — 4(a) may be made by (1) testimony before the court, (2) an attestation clause signed by the witness and forming a part of or attached to the will or (3) an affidavit which is signed by the witness at or after the time of attestation and which forms part of the will or is attached to the will or to an accurate facsimile of the will.” (Ill. Rev. Stat. 1985, ch. llOVz, par. 6 — 4.)

It is well settled that the statutory requirements of due execution of a will are mandatory and it is indispensable that these provisions be complied with in order to make a valid will. Brelie v. Wilkie (1940), 373 Ill. 409, 411, 26 N.E.2d 475, 476.

In the present case, three witnesses signed their signatures and addresses below the attestation clause. Two of the witnesses testified to the authenticity of their signatures. This attestation clause fulfils the statutory requirements previously mentioned.

Where the attestation clause is in due form and the will bears the genuine signatures of the testatrix and the subscribing witnesses, it is prima facie evidence of the due execution of the will, and is not overcome by the mere fact that the subscribing witnesses testify they failed to notice whether the will was signed or not, and cannot remember whether they saw the signature. (Brelie, 373 Ill. at 412.) Moreover, such prima facie evidence will often prevail over the testimony of the attesting witnesses which tends to show that some of the requisites were omitted. Brelie, 373 Ill. at 412; Conway v. Conway (1958), 14 Ill. 2d 461, 466, 153 N.E.2d 11, 14.

Here we have the attestation clause in due form and the signatures of the witnesses and the testatrix. Where a will has apparently been executed in due form, and the signatures of the testator and the attesting witnesses are admitted to be genuine, no presumption will be indulged to destroy the validity of the instrument, but every reasonable presumption will be indulged in favor of its due execution and attestation. (Conway v. Conway (1958), 14 Ill. 2d 461, 466, 153 N.E.2d 11, 14.) This is true even in the absence of witness recollection as to what transpired during the attestation of the will. (In re Estate of Salzman (1974), 17 Ill. App. 3d 304, 307, 308 N.E.2d 83, 86.) Even if the witness’ recollection is faded, the attestation clause speaks authoritatively for his actions. Salzman, 17 Ill. App. 3d at 307.

In Conway, our supreme court explained that the probate of a will cannot be made to depend upon the recollection or veracity of subscribing witnesses, for if it were necessary for them to remember and testify to the fact that all the prescribed formalities were in fact complied "with, very few wills could be upheld. (Conway, 14 Ill. 2d at 466.) If it is merely doubtful whether the requirements have been complied with, the presumption arising from the attestation clause is not overcome. (Conway, 14 Ill. 2d at 467.) The attestation required by the statute presupposes that the will must be signed by the testator and there can be no valid attestation unless the will has in fact been signed by the testator. However, it is not indispensable to a proper attestation that the testator sign in the presence of the "witnesses; nor is it essential that the witnesses see the signature of the testator upon the face of the will, or even that they know the instrument they are witnessing to be a will. The statutory requirement is satisfied if the testator acknowledges the execution of the will. Conway v. Conway (1958), 14 Ill. 2d 461, 468, 153 N.E.2d 11, 15; In re Estate of Salzman (1974), 17 Ill. App. 3d 304, 307, 308 N.E.2d 83, 87.

In making such acknowledgment, it is not necessary that the testator call the instrument a will, or that he utter some verbal declaration. Any act, sign or gesture will suffice which indicates an acknowledgment of the instrument with unmistakable certainty. It is enough if the testator acknowledges to the witnesses, either by words or acts, that the instrument in question is his act and deed. (Conway, 14 Ill. 2d at 468.) In Conway, the supreme court found that the conduct of the testator in producing the instrument before two persons and asking them to sign it as witnesses, sufficiently showed an acknowledgment that it was his act and deed. When the testator calls a paper his will, it is presumed, in the absence of any evidence to the contrary, that he has signed it, inasmuch as a signature is necessary to justify him in calling it a will. Brelie v. Wilkie (1940), 373 Ill. 409, 412, 26 N.E.2d 475, 476.

Here, it is apparent that the deceased called the document her will since it was entitled, “LAST WILL AND TESTAMENT.” The testator produced the standard will form to the witnesses. One of the witnesses testified that she would not have signed the document without knowing what it was, and both witnesses testified that they would not have signed the attestation clause if the allegations therein were untrue. An order denying a will to probate will be reversed on appeal if it is manifestly against the weight of the evidence. (In re Estate of Salzman (1974), 17 Ill. App. 3d 304, 309, 308 N.E.2d 83, 88.) Under these circumstances, given no claims of fraud, duress, forgery or compulsion, we find the trial court’s decision denying admission of the will to probate against the manifest weight of the evidence.

Accordingly, we reverse the decision of the trial court denying admission of the will to probate and remand this cause to the trial court for a hearing on the authenticity of the testatrix’s signature.

Reversed and remanded with instructions.

WHITE and CERDA, JJ., concur.


author: PRESIDING JUSTICE FREEMAN

text:
    MATTHEW A. KEMPES, a Minor, by his Mother and Next Friend, Jacqueline Kempes, Plaintiff-Appellant, v. DUNLOP TIRE AND RUBBER CORPORATION, Defendant-Appellee.
    First District (3rd Division)
    No. 1—89—0633
    Opinion filed December 13, 1989.

      Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago (Curt N. Rodin and Marc A. Taxman, of counsel), for appellant.
    Kiesler & Berman, of Chicago (Stephen B. Frew, R. Howard Jump, and Jean M. French, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Matthew Kempes, by his mother and next friend, Jacqueline Kempes, sued defendant, Dunlop Tire and Rubber Corporation, in strict liability in tort for injuries sustained when plaintiff cut into the center of a golf ball allegedly designed, prepared, manufactured, advertised, distributed, supplied, and/or sold by defendant. In lieu of answering the complaint, defendant filed a motion for summary judgment. The trial court granted the motion. Plaintiff appeals.

The injuries for which plaintiff sought recovery occurred on May 30, 1979, when plaintiff was eight years old. About a week before that date, one of plaintiff’s older brothers brought home a grocery bag, one-quarter full, of golf balls. Sometime prior to his accident, plaintiff observed another brother cut open one of the golf balls. Plaintiff’s brother removed the ball’s cover and the rubber bands underneath it to find a little rubber ball at the center. On May 30, plaintiff came across one of the golf balls, in his backyard, on which he had previously seen the name “Dunlop” printed. About one quarter of the cover of the ball had been chewed off by the family dog, and the remainder of the ball had teeth marks over it. Plaintiff removed the ball’s cover and then began removing the rubber bands surrounding the ball’s inner center. Plaintiff grew impatient with this process and obtained some scissors to cut the rubber bands. As plaintiff was doing so, he also cut into the little ball underneath the rubber bands and the contents of the ball squirted into his right eye. Plaintiff eventually underwent two operations to correct his eye injuries.

In discovery, plaintiff deposed Martin R. Potzler, the technical manager for Dunlop Sports Company since 1969. Dunlop Sports Company is a division of defendant. Potzler testified to the following. As technical manager, he was responsible for product design, process improvements and quality control of sports products. Defendant did not manufacture any golf balls designated as “Dunlop 65” in the United States containing a paste center. Such balls were manufactured in Ireland and the United Kingdom by defendant’s English division. After examining the golf ball plaintiff cut into, Potzler concluded that the rubber ball at its center contained a paste. There were at least four different golf balls which defendant manufactured in the United States with paste centers, none of which were designated “Dunlop 65.” Defendant no longer manufactured paste center golf balls. Defendant switched to a water center to save money. Potzler was directed to develop a golf ball with a water center in approximately 1966. The paste center of the golf balls defendant made in the United States contained bentonite clay, water, barium sulfate, zinc, glycerin and methyl salicylate. Potzler knew before plaintiff’s accident that children sometimes took defendant’s golf balls apart. He knew that before he went to work for defendant. Potzler himself took apart a golf ball as a child. If all of the rubber bands under the cover of a paste center golf ball were removed and the hard rubber center was cut with a knife or scissors, the paste would not come out as if under pressure but would simply leak out. However, if the rubber bands were still around the hard rubber ball when the ball was cut, the paste at the center would come out under pressure.

Potzler further testified that he first learned that eye injuries could result from the cutting of golf balls with paste centers when he heard of a New Jersey child injured in that manner in 1970 or 1971. Potzler had also learned of a 1975 Massachusetts case and one in New York City in the late 1970’s. Based on his determination that its cover was not manufactured in the United States, Potzler concluded that the golf ball plaintiff cut into was not manufactured by defendant in the United States. However, the writing on the ball was similar to that on the “Dunlop 65” manufactured in the United States. Moreover, the thread in the cover of the ball was very similar to latex thread manufactured by defendant. However, such thread was not used on paste center balls made in the United States by defendant. Potzler did not know when the golf ball plaintiff cut into was manufactured. Defendant ceased the manufacture of paste center golf balls in 1967 and did not manufacture a “Dunlop 65” golf ball until 1968. The “Dunlop 65” manufactured in 1968 and thereafter did not contain a paste center. Defendant’s English division began using the name “Dunlop 65” in the 1930s. Because the first “Dunlop 65” balls made in the United States were imprinted with printing dies sent from England, it could not be determined where the ball plaintiff cut into was manufactured. Potzler could not testify that defendant did not sell the ball which injured plaintiff.

Defendant moved for summary judgment on the grounds that plaintiff could not prove that defendant made the golf ball he cut into, the golf ball was not in the same condition at the time of the accident as it was when it left defendant’s control, plaintiff had no expert witness, the accident was not reasonably foreseeable, and it would have been impossible to warn plaintiff. The trial court granted the motion on the ground that plaintiff’s conduct constituted an unforeseeable alteration of the golf ball. In doing so, the trial court reasoned, inter alia, that “[i]t would be unreasonable to impose a duty upon a defendant whose product is especially unsusceptible to dismantling to warn of the dangers that such a misuse [of the product] poses.”

Opinion

In appealing the summary judgment for defendant, plaintiff contends that the record establishes that defendant knew that children cut into its paste center golf balls and the risk of injury posed by such balls. Plaintiff cites Potzler’s deposition testimony and the deposition testimony of James Fox, defendant’s vice-president, secretary and general counsel, as revealing defendant’s knowledge of those facts. Plaintiff concludes from this evidence that, at the very least, a genuine issue of material fact existed with regard to the foreseeability of his injuries by defendant.

Preliminarily, we must note a variance between plaintiff’s complaint, on the one hand, and the questions plaintiff’s counsel put to Potzler and Fox and their answers thereto during their discovery depositions, on the other hand. The former predicated defendant’s liability on, e.g., the manufacture, distribution and/or sale of a “Dunlop 73” golf ball. The latter, however, concerned only defendant’s manufacture, distribution or sale of undesignated golf balls or golf balls designated as “Dunlop 65.” There is no reference in the record whatsoever to a “Dunlop 73” golf ball other than in plaintiff’s complaint. This variance results in the failure of the record to raise a genuine issue of material fact regarding defendant’s liability for injuries caused by a “Dunlop 73” golf ball. Conclusory allegations in a complaint do not raise a question of fact when unsupported by facts admissible in evidence and when affidavits and depositions in support of a motion for summary judgment contain evidentiary facts to the contrary. (See Lesnik v. Estate of Lesnik (1980), 82 Ill. App. 3d 1102, 1106, 403 N.E.2d 683.) On this basis, we find that summary judgment was properly entered for defendant. However, we find that summary judgment was properly entered for defendant even disregarding this variance.

Summary judgment is proper only where the record reveals that there is no genuine issue of any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005.) While a plaintiff is not required to prove his case in responding to a motion for summary judgment, he is required to present facts to support the elements of his claim. (Technical Representatives, Inc. v. Richardson-Merrell, Inc. (1982), 107 Ill. App. 3d 830, 438 N E.2d 599.) There are several elements to a cause of action in strict liability for an unreasonably dangerous product. However, the dispositive one in this case is the element of reasonable forseeability of harm therefrom by the manufacturer or seller.

A manufacturer’s strict liability in tort for an unreasonably dangerous product “encompasses only those individuals to whom injury from a defective product may reasonably be foreseen and only those situations where the product is being used for the purpose for which it was intended or for which it is reasonably foreseeable that it may be used.” (Winnett v. Winnett (1974), 57 Ill. 2d 7, 11, 310 N.E.2d 1.) Moreover, “[foreseeability means that which it is objectively reasonable to expect, not merely what might conceivably occur.” (Emphasis in original.) (Winnett, 57 Ill. 2d at 12-13.) The issue of foreseeability is normally for the jury. However, it may be decided as a matter of law where the facts demonstrate that the plaintiff could never be entitled to recover. DeArmond v. Hoover Ball & Bearing (1980), 86 Ill. App. 3d 1066, 1071, 408 N.E.2d 771.

Winnett turned on the determination that the manufacturer of a forage wagon could not reasonably foresee injury to a four-year-old resulting from the use of its product for its intended purpose. In contrast, this case turns on the reasonable foreseeability by defendant of injury to a child from a use of its product for which it was obviously not intended, i.e., dismantling or dissection. The parties cite many cases in support of their positions on this issue. However, we find the cases of little assistance in deciding the foreseeability issue here. We believe that this case illustrates that the issue of reasonable foreseeability is dependent upon the unique facts of a particular case. As such, we find general principles of product liability law more helpful than analogy to the cases cited.

The principles applicable to this case are the following:

“A manufacturer or seller may be exonerated from liability where a product is altered after leaving its hands. ***
Where the condition of a product at the time an accident occurs is substantially and materially different from its condition at the time of sale, the plaintiff will be unable to prove its prima facie case.
Generally, only alterations or modifications that were not reasonably foreseeable by the manufacturer or seller are sufficient to preclude *** liability. If a product is safe when sold, the manufacturer is not required to anticipate or foresee that a user will so alter the product’s condition as to render it dangerous^] ***
The plaintiff bears the burden of proving that it was foreseeable that an alteration would be made, and that the alteration itself did not unforeseeably render the product unsafe. The plaintiff must establish that it was objectively foreseeable that a subsequent alteration of the product would create a risk of injury; subsequent alterations are objectively foreseeable where in light of the general experience within the industry at the time the product was manufactured, they could reasonably have been anticipated by the manufacturer.” 3 American Law of Products Liability 3d §43.1, at 9-10, 11; §43.16 at 30-32 (Travers 1987).

Applying these principles here, we conclude that plaintiff’s act of removing the cover from defendant’s golf ball, unwinding some of the rubber bands underneath the cover and then taking a pair of scissors to cut the remaining rubber bands, resulting in plaintiff’s accidentally cutting into the hard rubber center of the ball, was not reasonably foreseeable to defendant.

Unquestionably, defendant’s golf ball was safe when sold by defendant for its intended purpose. Plaintiff does not argue and presents no evidence that use of the golf ball in the game of golf posed a risk that the bentonite clay paste center would be breached. As such, we do not believe that defendant was required to foresee or anticipate that anyone, including a child, would so alter the golf ball’s condition as to render the paste center of the ball dangerous. Moreover, plaintiff has not argued nor presented any evidence that, in light of the general experience within the industry at the time the ball was manufactured, such a subsequent alteration as he made could reasonably have been anticipated by defendant. Therefore, he has not shown that his subsequent alteration of the golf ball, which created a risk of injury, was objectively foreseeable by defendant.

Contrary to plaintiff’s argument, we do not believe that the deposition testimony of either Potzler or Fox established the reasonable, i.e,, objective, foreseeability of plaintiff’s accident by defendant.

Preliminarily, we decline to impute to defendant Potzler’s knowledge, obtained before going to work for defendant and in part from his own conduct as a child, that children cut into golf balls. We do not believe that the law of agency either supports or requires the imputation of an employee’s general knowledge, gained through whatever his life experiences may have been, to his employer in a products liability case, at least, absent any proof that that knowledge, in all probability, would have been shared with the employer.

Potzler did testify that he heard of cases at various times throughout the 1970’s of children being injured by cutting into paste center golf balls. However, in relying on this admission, plaintiff ignores Potzler’s additional testimony that defendant stopped making such golf balls in 1967. Even assuming, contrary to Potzler’s testimony, that defendant manufactured the golf ball that injured plaintiff, the fact that Potzler learned in the 1970’s that children could be injured by cutting into paste center golf balls is irrelevant to defendant’s foreseeability of the injury to plaintiff. The relevant period of time upon which attention must focus in cases involving strict liability in tort for manufacturing or selling a defective product is the time of manufacture or sale of the product. It is necessarily inherent in the concept of reasonable foreseeability of an injury from a defective product "that it is determined as of the time of sale or manufacture of that product. (1 American Law of Products Liability 3d §10.8 (1987).) Thus, the fact that defendant gained knowledge that children were being and could be injured by cutting into paste center golf balls after it stopped making such balls proves nothing insofar as the foreseeability of that risk at the time of manufacture.

In contesting defendant’s motion, plaintiff also relied on the alternative allegations of his complaint that defendant, inter alia, distributed, sold or supplied the golf ball which injured him. On appeal, plaintiff asserts that defendant admitted this allegation by failing to deny it in an answer. Assuming, arguendo, that this was a well-pleaded allegation of fact, plaintiff is correct. See Bank of Waukegan v. Epilepsy Foundation of America (1987), 163 Ill. App. 3d 901, 516 N.E.2d 1337 (by filing summary judgment motion before answer, defendant admits only well-pleaded allegations of fact not contradicted by summary judgment motion or depositions).

However, defendant’s admission is of no avail to plaintiff even putting aside that his allegation of injury by a “Dunlop 73” golf ball was not a well-pleaded allegation of fact, being unsupported and directly contradicted by the record. Plaintiff failed to also affirmatively allege that defendant distributed, sold or supplied the golf ball which injured him after being put on notice of the risk of injury to children posed by such balls. Therefore, defendant’s admission merely raised a bare possibility of that fact. However, liability in a products liability case cannot be based on speculation, guess or conjecture, and the circumstances in such a case must justify an inference of probability rather than mere possibility. Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 33, 468 N.E.2d 422; Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 508, 418 N.E.2d 503; see also Kramer v. Weedhopper of Utah, Inc. (1986), 141 Ill. App. 3d 217, 222, 490 N.E.2d 104.

Moreover, there is no evidence elevating to even a minimal probability the bare possibility raised by plaintiff’s complaint that defendant distributed, sold or supplied the golf ball that injured him. Potzler testified at his deposition that “Dunlop 65” golf balls with paste centers were manufactured in Ireland and the United Kingdom by defendant’s English division. He did not know whether defendant had sold any of those balls in the United States or whether defendant sold the ball that injured plaintiff. Fox testified that defendant was affiliated with an English company, Dunlop Sports Company, Ltd., which was a separate corporation, and that neither company was a subsidiary of the other but that they were jointly owned by a third entity. Fox did not know whether the English entity had sold golf balls in the United States nor did he know any way to determine whether defendant had sold any “Dunlop 65” golf balls manufactured by the English entity in the United States. Finally, Fox stated that there were no distribution or licensing agreements between defendant and the English entity regarding golf balls.

The record in this case thus provides no basis from which a fact finder could find it more probably true than not that defendant distributed, sold or supplied the golf ball which injured plaintiff after it learned of the risk of injury posed by its paste center golf balls. Also being inadequate to prove defendant’s manufacture of the ball with such knowledge, the record amply supported summary judgment for defendant.

Finally, the conclusion that plaintiff could never prove that defendant manufactured, distributed, sold or supplied the golf ball with knowledge of the risk of injury it posed is also dispositive of his claim that the golf ball was unreasonably dangerous because defendant issued no warnings against that risk. A plaintiff predicating a products liability action upon a failure to warn must plead and prove that the manufacturer, seller, or supplier, etc., knew or should have known of the danger that caused his injury. (Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194.) Woodill does not expressly qualify that rule with the limitation that such knowledge exist at the time of manufacture, sale or supply of the product. However, it is implicit in its observation that “[t]o hold a manufacturer liable for failure to warn of a danger of which it would be impossible to know based on the present state of human knowledge would make the manufacturer a virtual insurer of the product, a position rejected by this court in [Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182].” (Emphasis added.) Woodill, 79 Ill. 2d at 37.

Moreover, Collins v. Hyster Co. (1988), 174 Ill. App. 3d 972, 529 N.E.2d 303, has answered the precise question presented here. Collins noted that no Illinois authority extended the duty to warn beyond the time when a product left its manufacturer’s control “unless [it] knew or should have known at that time that the product was defective.” (Collins, 174 Ill. App. 3d at 977.) The fact that Collins was a negligence action does not distinguish it from this case inasmuch as the duty to warn as applied in strict products liability cases is a doctrine borrowed from negligence (Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 33, 402 N.E.2d 194). Woodill and Collins require us to hold that defendant owed plaintiff no duty to warn of the danger involved here.

For" all of the foregoing reasons, we affirm the summary judgment entered for defendant Dunlop Tire and Rubber Corporation.

Affirmed.

WHITE and CERDA, JJ., concur.

      Defendant mainly argues that the golf ball was not in the same condition at the time of plaintiff’s injury as when it left its control. This argument shifts the inquiry from the dispositive issue of reasonable foreseeability to, we believe, the irrelevant issue of whether the entire golf ball or its paste center was the product upon which plaintiff predicated his claim. Moreover, the fact argued is implicit in our “alteration” analysis. As such, we find no need to address it.


author: JUSTICE LINN

text:
    GEORGE PIQUETTE, Plaintiff-Appellant, v. MIDTOWN ANESTHESIA ASSOCIATES et al., Defendants-Appellees.
    First District (4th Division)
    Nos. 1—88—0341, 1—88—1037 cons.
    Opinion filed December 14, 1989.

      Mullen, Minella & Chase, of Chicago (John C. Mullen and Cynthia L. Chase, of counsel), for appellant.

      Rooks, Pitts & Poust, of Chicago (David H. Kistenbroker and Nancy E. Paridy, of counsel), for appellees Midtown Anesthesia Associates and Robert Paulissian.
    Johnson, Cusack & Bell, Ltd., of Chicago (Brian C. Fetzer, H. Patrick Morris, and Thomas H. Fegan, of counsel), for appellee Michael Friedman.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, George Piquette, brought a medical malpractice action in the circuit court of Cook County against defendants, Midtown Anesthesia Associates (Midtown); Robert Paulissian, M.D.; and Michael Friedman, M.D. Piquette sought damages arising from the alleged negligence of defendants in performing a surgical procedure. The trial court granted defendants’ motions for summary judgment. Piquette now appeals, contending that the trial court erred in granting summary judgment for defendants.

We affirm.

Background

The record shows that on the morning of July 18, 1978, Piquette underwent a laryngoscopy at Illinois Masonic Hospital. Dr. Friedman performed the procedure, and Dr. Paulissian assisted the anesthesiologists. In this surgical procedure, Dr. Friedman inserted an endotracheal tube down Piquette’s throat. Dr. Friedman then inserted a laryngoscope through the tube. This allowed him to view the inside of Piquette’s throat, perform a biopsy, and strip Piquette’s vocal cords.

After awaking from anesthesia, Piquette was taken to his hospital room. Dr. Friedman visited Piquette and was the first person to whom Piquette spoke after the operation. Piquette noticed that he had difficulty speaking to Friedman. Piquette put his hand to his mouth, and a tooth cap fell into his hand; the cap was broken into two pieces. He was discharged from the hospital that day.

Piquette filed his original complaint on October 22, 1979. He filed his third amended complaint on April 16, 1984. He named as defendants Drs. Friedman and Paulissian, and Midtown. Counts I and II of the nine-count complaint alleged that Midtown was negligent in hiring Dr. Paulissian and two other anesthesiologists involved in the surgery. Counts III and IV alleged that Drs. Paulissian and Friedman negligently struck Piquette’s teeth during the surgery, causing the cap to break. Counts V through VIII alleged that defendants failed to warn Piquette that his cap may be struck during the operation, and to thereafter receive his informed consent. Count IX alleged a theory of recovery against defendants based on the doctrine of res ipsa loquitur. Defendants answered, denying all material allegations.

The trial court subsequently granted defendants’ motion to bar Piquette from presenting any expert testimony at trial. (See 107 Ill. 2d R. 219(c)(iv).) On July 28, 1987, Dr. Paulissian and Midtown filed a motion for summary judgment; Dr. Friedman did likewise on August 18. Dr. Friedman subsequently filed an affidavit essentially stating: he only assisted in the administration of anesthesia to Piquette; it was improbable that the oxygen mask used on Piquette prior to surgery would have damaged the tooth cap; he did not place the mask on Piquette’s face; and he met the standard of care in his treatment of Piquette. Piquette filed no evidence rebutting these statements.

On December 22, 1987, the trial court granted summary judgment for Dr. Paulissian and Midtown on all counts addressed to them. However, the trial court granted only a partial summary judgment for Dr. Friedman. The court found that the record did not contain sufficient evidence pertaining to count VI on which to base a summary judgment. Piquette filed a notice of appeal from this order.

Dr. Friedman subsequently filed a motion for summary judgment on count VI. The motion was accompanied by an affidavit stating essentially that Friedman did not deviate from the standard of care owed to Piquette, specifically addressing the issue of informed consent. On March 3, 1988, the trial court granted summary judgment for Dr. Friedman. Piquette filed a notice of appeal from this order. We consolidated the appeals.

Opinion

When a plaintiff appeals from a trial court’s grant of summary judgment for a defendant, the only issue on appeal is whether “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ill. Rev. Stat. 1987, ch. 110, par. 2-1005.

The purpose of summary judgment proceedings is not to try an issue of fact, but to determine whether one exists. Where facts contained in an affidavit in support of a motion for summary judgment are not contradicted by a counteraffidavit, such facts are admitted and must be taken as true. Even though a complaint and answer may purport to raise issues of material fact, if such issues are not further supported by evidentiary facts through affidavits or other sources, summary judgment is then appropriate. If the moving party supplies facts which, if not contradicted, would entitle that person to a judgment as a matter of law, the opposing party cannot rely on his complaint or answer alone to raise genuine issues of material fact. Summary judgment is appropriate in medical malpractice cases where there is no genuine issue as to any material fact. Bennett v. Raag (1982), 103 Ill. App. 3d 321, 325-26, 431 N.E.2d 48, 51 (and cases cited therein).

I

In count IX of his complaint, Piquette invokes the doctrine of res ipsa loquitur against all defendants. Res ipsa loquitur involves a type of circumstantial evidence that permits the fact finder to draw an inference of negligence. The doctrine permits circumstantial evidence as proof of negligence where direct evidence is primarily within the control of the defendant. Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 592, 491 N.E.2d 803, 808-09.

However, a plaintiff must establish three elements before this inference of negligence will arise: (1) the event must be of a kind which ordinarily would not occur absent someone’s negligence, (2) the event must be caused by an instrumentality or agency within the management or control of the defendants, and (3) the injury was not due to any voluntary act on the part of the plaintiff. The first element may be established either by presenting expert testimony to that effect, or by showing that the negligence was so grossly apparent that it falls within the common knowledge of nonmedical persons. Taylor, 142 Ill. App. 3d at 592; Chiero v. Chicago Osteopathic Hospital (1979), 74 Ill. App. 3d 166, 175, 392 N.E.2d 203, 210.

Piquette argues that defendants’ alleged negligence was so grossly apparent as to fall within the common knowledge of nonmedical persons. Thus, he need not provide expert testimony to support the first element. We disagree. Defendants’ affidavits explained that broken teeth are a risk of a laryngoscopic procedure. They further explained that this injury is not so grossly indicative of negligence as to fall within the common knowledge of nonmedical persons. The trial court so held and we agree. The affidavits also stated that defendants acted in accordance with the prevailing standard of care.

The only proof of negligence that Piquette has produced is the broken tooth cap itself. However, proof of a bad result or mishap is not, in and of itself, evidence of negligence (Sanders v. Frost (1969), 112 Ill. App. 2d 234, 240, 251 N.E.2d 105, 107, quoting Scardina v. Colletti (1965), 63 Ill. App. 2d 481, 488, 211 N.E.2d 762, 765) and it will not, standing alone, support a res ipsa loquitur cause of action. (Chiero, 74 Ill. App. 3d at 175, 392 N.E.2d at 210.) We con-elude that Piquette’s invocation of the doctrine of res ipsa loquitur will not preclude entry of summary judgment for defendants.

II

In counts V through VIII of his complaint, Piquette alleges that defendants failed to warn him that his tooth cap may be struck during the operation, and to thereafter receive his informed consent. This negligence must also be established by expert medical testimony. Green v. Hussey (1970), 127 Ill. App. 2d 174, 184-85, 262 N.E.2d 156, 161.

As in his res ipsa loquitur claim, Piquette offered no expert testimony to establish this alleged negligence. He again argues that defendants’ failure to warn was so grossly negligent as to fall within the common knowledge of nonmedical persons. We disagree and hold otherwise. Defendants’ affidavits contain evidence that defendants met the proper standard of care on this issue. This evidence is unrebutted; the record contains no evidence from an expert that a failure to warn under these circumstances was a deviation from the proper standard of care. We uphold the trial court’s grant of summary judgment for defendants on counts V through VIII of the complaint. See Ziegert v. South Chicago Community Hospital (1981), 99 Ill. App. 3d 83, 92-93, 425 N.E.2d 450, 458-59.

Ill

Piquette lastly contends that he can rely on the trial testimony of defendants themselves, pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1102), to establish the applicable standard of care. See Cassady v. Hendrickson (1985), 138 Ill. App. 3d 925, 934, 486 N.E.2d 1329, 1335.

This proffered evidence is insufficient to escape the grant of summary judgment for defendants. Even if defendants were to establish the applicable standard of care, Piquette would still be required to establish a deviation from that standard. Defendants, however, state in their affidavits that they acted within the standard of care. Further, Piquette has not provided such evidence; all he has shown is the broken tooth cap. As we stated earlier, that alone is not proof of negligence. The bare assertion that a section 2 — 1102 examination of defendants might establish the applicable standard of care and deviation therefrom is not a substitute for actual proof so as to prevent the entry of summary judgment under these circumstances. See Bennett v. Raag (1982), 103 Ill. App. 3d 321, 329, 431 N.E.2d 48, 53.

Piquette has failed to provide any facts to refute defendants’ specifie assertions in their affidavits, which describe their competent treatment. Where a plaintiff has failed to present expert medical opinion to sustain the allegations in his complaint as contrasted to the affidavits filed by the defendant, or evidence that he would be able to obtain such opinion in the future, then summary judgment in favor of defendant is proper. (Bennett, 103 Ill. App. 3d at 327, 431 N.E.2d at 52.) This cause has been litigated for approximately 10 years; Piquette has had ample time to obtain the necessary expert testimony. We agree with the trial court that this record contains no genuine issue of material fact and that defendants are entitled to judgment as a matter of law.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


author: PRESIDING JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY ROBINSON, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—1365
    Opinion filed December 15, 1989.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and Winston & Strawn, both of Chicago (William G. Miossi, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Renee G. Goldfarb, and Jerry D. Bischoff, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendant Larry Robinson appeals from his jury convictions of murder and robbery, for which he was sentenced to concurrently serve 60 years for murder and seven years for robbery. On appeal, defendant contends that the evidence was insufficient to meet the guilty beyond a reasonable doubt standard and, further, the trial court erred in failing to instruct the jury on voluntary manslaughter.

William Delemore was found dead with his body set afire at approximately 5:30 a.m. on April 29, 1986. He was lying in the building lobby at 511 East Browning Street (511 building) near a blood-spattered wall. No wallet or identification was found on the body. In response to a call, several hours later police officers were given articles belonging to Delemore, e.g., credit cards, paycheck, by a resident living in apartment 502 in a building located at 514 East 36th Street (514 building); defendant lived almost directly above in apartment 601. The resident had found the items on the floor approximately one foot from the elevator which was near her apartment.

The record reveals the following facts. During the evening of April 28, 1986, there was a social gathering at which liquor was consumed in an apartment in a building located at 540 East 36th Street (540 building). (All three buildings being discussed are a part of the Chicago Housing Authority Ida B. Wells project.) Andre Daniel, a State witness, lived in this apartment with his fiancee. Sometime during the evening, defendant’s girl friend, Mugette Jackson, called the party and asked defendant to come home; it is not known when defendant actually left the 540 building. Defendant lived with Jackson in the 514 building.

Daniel testified that around 4:30 a.m. on April 29, he was returning home from a store with a six-pack of beer when he met defendant, either outside or in the lobby of the 514 building. The two men had a short, general conversation during which Daniel noticed a man asleep on the lobby floor. According to Daniel, defendant grabbed the sleeping man (later identified as Delemore) by his collar, and with two hands, started banging Delemore’s head against the wall. When defendant asked Delemore his name, there was no response. Daniel said that Delemore did not fight back. When Daniel grabbed defendant and told him to let the man alone because he was drunk, defendant said that he would do the same to him (Daniel). Daniel left the building while defendant was still banging the victim’s head and ran into Lee Moore. The two men returned to the 514 building and pulled defendant off Delemore. Daniel noticed that the victim was bleeding around his head. As the men held defendant, Daniel told Delemore to run. Delemore ran toward the 511 building with defendant running after him. Buildings 514 and 511 are across a playground from each other.

Daniel then went to his fiancee’s apartment in the 540 building, told her what was happening, and then went back down to the 511 building 5 or 10 minutes later. As he walked into the building, he saw defendant beating Delemore and stomping on his face and chest for quite a while. Delemore did not speak or move and had blood all over his face. Defendant then went through Delemore’s pockets, removed his wallet, and took money from it. Daniel returned to the 540 apartment, but went back to the 511 building no more than 10 minutes later. He saw that a man’s outstretched legs were on fire and returned to his apartment and called the “We Tip” emergency service. This call was later verified. However, it is not clear whether Daniel made the call during his second return to his apartment or after seeing the fire.

Lee Moore also testified for the prosecution. He stated that during the early morning hours he descended the inside stairs to the lobby of the 514 building and saw defendant and Delemore fighting, with Daniel watching. Delemore was stumbling and weaving from side to side, and he and defendant were swinging at each other. Moore and Daniel broke up the fight but defendant broke loose and started hitting Delemore again. Moore and Daniel stopped the fight a second time, after which defendant picked Delemore up off the floor and threw him out of the building. Moore last saw the stumbling and tripping victim head towards the 511 building, followed by defendant. On cross-examination, Moore stated that both defendant and Delemore had blood on them and that they both had their fists raised (as though they were protecting their faces). Although both men were trying to kick each other, only defendant succeeded and, at some time, Delemore was knocked to the ground. Moore also said that he heard both men speak and that he saw defendant start the second fight.

Defendant testified that he had stayed at Daniel’s home until 2 a.m., when he started home. When he got to the 514 building (where he lived), Delemore came up behind defendant and put a hand on his shoulder. Defendant objected, and Delemore said that he was putting his hand back on his shoulder, after which defendant slapped Delemore. Daniel then came into the building. Delemore put up his hands to fight, and defendant asked him if he wanted to fight. Delemore said yes, and the two men went to a clearing between the 511 and 514 buildings. Defendant hit Delemore exactly 14 times and only with an open hand, periodically asking Delemore in between hits if he wanted to continue fighting. Defendant won the fight and said that he had left Delemore, bleeding but conscious, sitting against a door of the 511 building. Defendant then went home at approximately 2:30 a.m. He cleaned blood off his shoes with a wet rag and then went to sleep.

Testifying for the State, Mugette Jackson said that defendant did not come home from the party until 6 a.m. on April 29. When she came home from work later that day, Jackson saw the gym shoes that defendant had been wearing that morning soaking in a bucket of water. Later that evening, she gave the wet shoes, two pairs of defendant’s jeans, and other clothing to the police when they came to the apartment. One leg of a pair of jeans was also wet.

Defendant’s brother testified that in May 1986, he was present when Daniel told defense counsel that he (Daniel) did not see defendant take anything from the victim.

An assistant Cook County medical examiner testified that the victim suffered extensive head and face injuries with brain damage and also had injuries in the chest area. In her opinion, the medical examiner believed that Delemore died as a result of cranial cerebral injuries, which injuries were consistent with those incurred by having one’s head banged on a wall or floor. She also reported that Delemore was dead before he was burned and that he had an ethanol intoxication level of 223 milligrams per deciliter. The doctor stated that this amount of alcohol would normally affect a person’s coordination and make him drowsy and lethargic. There were no injuries on Delemore’s hands indicating that he had been in a fight. There were, however, burn injuries.

After rejecting defendant’s motion for a directed verdict, the court refused to tender a voluntary manslaughter instruction to the jury, concluding that the evidence presented did not warrant such an instruction. We agree and affirm the trial court for the following reasons.

Defendant’s reasons for asserting that he was not proved guilty beyond a reasonable doubt are legally deficient. Although the “guilty beyond a reasonable doubt” standard has no explicit definition, it has been interpreted to mean that the burden has not been met where a reasonable juror could not return a guilty verdict (People v. Collins (1985), 106 Ill. 2d 237) or, a guilty verdict must be set aside where the evidence is so improbable, unsatisfactory, or inconclusive so as to be unworthy of belief (People v. Ellis (1978), 74 Ill. 2d 489). Defendant further argues that because his conviction rests solely upon circumstantial evidence, his guilt must be thoroughly established to the exclusion of every other reasonable hypothesis of innocence. See People v. Garrett (1975), 62 Ill. 2d 151.

First, we are not so certain that, in a circumstantial evidence case, the “every other reasonable hypothesis of innocence” element should be elevated to a standard of proof. (People v. Bryant (1986), 113 Ill. 2d 497.) However, as a practical matter, in order to meet the “guilty beyond a reasonable doubt” standard, the prosecution would need to overcome any theories based on the facts that would reasonably indicate the possibility that a defendant could be innocent. The key word here is “reasonable.” Defendant claims that reasonable doubt as to his guilt exists because of conflicts in the witnesses’ testimony: Daniel’s account of defendant’s unprovoked assault on an unresponsive Delemore versus Moore’s and defendant’s mutual combat descriptions; discrepancies between Daniel’s and Moore’s statements regarding where they met up with each other (inside or outside the building); and Jackson’s inconclusive testimony regarding the time defendant arrived home. Defendant further contends that the function of the jury to assess credibility of witnesses and weigh the evidence is not an issue here; the real issue is whether the evidence was insufficient for a jury to make a determination of guilt.

Contrary to defendant’s assertions, this is not a case where a guilty finding was based solely on circumstantial evidence. There is both direct and circumstantial evidence here. Daniel’s eyewitness testimony is direct evidence that defendant savagely and unprovokedly beat Delemore, who appeared to be intoxicated and uncoordinated. Moore’s testimony is direct evidence that there was an unequal combat between defendant and an ineffectual Delemore that, after being stopped by the witnesses, was reinstigated by defendant. The medical examiner’s determination that the injuries which caused Delemore’s death were consistent with the type of beating described by Daniel is circumstantial evidence. Daniel’s observation of defendant’s robbery of Delemore is direct evidence; the finding of the victim’s empty wallet and papers right below defendant’s apartment is circumstantial. Thus, it is clear that the jury’s assessment of the witnesses’ testimony and the weight assigned thereto do play a role in the reasonable inferences it may draw. The jury apparently gave more weight to the testimony of Daniel, who was the only witness to see the beginning and the end of the “fight.”

In any event, looking at Moore’s testimony in its entirety, it is corroborative of Daniel’s account regarding important facts. Both witnesses observed defendant’s assault on, or fight with, a man who was at an obvious disadvantage and, further, defendant became the aggressor after the fight was initially stopped. Both witnesses saw Delemore, shortly before his burning body was found, stumble towards the 511 building with defendant in pursuit. Without reiterating all the evidence presented to the jury, it is clear that there were sufficient facts to support the inference drawn by the jury that defendant killed Delemore. In fact, given the time frame, absent any evidence of the intervention of a third party or another possible cause of death, the only reasonable inference the jury could have drawn is that defendant severely beat an intoxicated man, which beating resulted in the victim’s death. Thus, the evidence in this case does support the jury’s determination that defendant was proved guilty beyond a reasonable doubt.

Defendant’s argument that the court erred by not instructing the jury on voluntary manslaughter is also without merit. A court must give such an instruction in a murder trial if there is any evidence presented that, if believed by the jury, would reduce the crime to manslaughter. (People v. Leonard (1980), 83 Ill. 2d 411.) Defendant claims that the trial court should have given the instruction because he was acting under a sudden and intense passion resulting from serious provocation. (See Ill. Rev. Stat. 1985, ch. 38, par. 9—2(a).) However, before the instruction is given, the court must decide if enough evidence of serious provocation has been presented to put the issue to the jury.

In Illinois, mutual combat constitutes provocation sufficient to reduce murder to voluntary manslaughter. (Leonard, 83 Ill. 2d 411.) Mutual combat has been interpreted as “a fight or struggle which both parties enter willingly or in which two persons, upon a sudden quarrel, and in hot blood, mutually fight upon equal terms and death results from the combat.” (People v. Neal (1983), 112 Ill. App. 3d 964, 967.) Although very slight evidence indicating voluntary manslaughter can justify the giving of the appropriate instruction, that evidence must demonstrate more than slight provocation; the provocation must be serious enough so as to excite a reasonable person to intense passion. People v. Simpson (1978), 74 Ill. 2d 497.

Even if we were to believe defendant’s version of the facts, there is no evidence of provocation sufficient to require a manslaughter instruction. By his own account, defendant stated that Delemore put his hand on defendant’s shoulder, and after defendant knocked it off, Delemore said he would do it again. After this, defendant slapped Delemore once and asked him if he wanted to fight. After going outdoors, defendant slapped Delemore once, causing him to fall, slapped him exactly 13 more times — stopping between each slap to ask Delemore if he wanted to continue the fight — until Delemore fell down a second time, thus ending the combat. Defendant testified that he had noticed that Delemore had been drinking and also stated that he had twice knocked down Delemore. Defendant said that he was hit four or five times but was never knocked down. Were it possible to consider the placing of a hand on one’s shoulder to be adequate provocation (a consideration we emphatically reject), defendant’s behavior, by his own testimony, was indicative of a calm and deliberate state of mind which belies the existence of any sudden and intense passion or, for that matter, mutual combat upon equal terms.

Accordingly, the evidence in this case is insufficient as a matter of law to mandate the giving of a voluntary manslaughter instruction to the jury.

Affirmed.

PINCHAM and COCCIA, JJ., concur.

       Justice Pincham participated in the decision prior to his resignation.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. K.D. CRAIG, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—2434
    Opinion filed December 15, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Andrea Monsees, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, LaCoulton Walls, and James D. Brosnahan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendant, K.D. Craig, was convicted of one count of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18—2A) and was sentenced to six years’ imprisonment.

We affirm. The following facts are pertinent to our decision.

William J. Maza, the complainant, was also the sole occurrence witness. Maza testified that the incident at issue occurred on November 8, 1986. At approximately 3 p.m. on that date, Maza was in his car and was stopped at a traffic light at the intersection of 14th Street and Wentworth Avenue in Chicago. Maza stated that as he waited for the light to change, an older model Oldsmobile driven by defendant pulled up next to his car in the lane to his left. Maza stated that he recognized defendant and knew defendant as K.D. Maza testified defendant exited his vehicle and walked around the front of his car to the driver’s side of Maza’s car. There was no window on the driver’s side door of Maza’s car. Maza stated defendant reached in the waistband of his trousers, pulled out a revolver, placed the gun to Maza’s head, and demanded his money. Maza stated he handed defendant $190 and defendant told him, “We’re even.” Maza testified he drove directly to the Chicago Heights police station, where he told officers that a man named K.D. robbed him at gunpoint.

Maza testified that three days later, he identified, for Chicago Heights police, photographs of defendant and defendant’s car. Maza also subsequently identified defendant in a five-man lineup at the Chicago Heights police station.

During direct testimony, Maza admitted that five years prior to the incident, he was using heroin, but he had not used heroin since that time.

Several inconsistencies existed in Maza’s testimony.

During cross-examination, Maza admitted that after the incident, he described the assailant to police officers as being a 35- to 40-year-old black male, standing 5 feet 9 inches tall, and weighing 170 pounds. However, when Maza identified the defendant in court as his assailant, he admitted defendant was approximately 6 feet 3 inches tall and weighed more than 170 pounds.

Maza admitted he told police officers that defendant had driven a red, 1967 or 1968 model, four-door Oldsmobile. However, the car Maza identified as defendant’s from photographs was actually a maroon, 1976 model, two-door Oldsmobile.

Maza also testified that after defendant placed the revolver to Maza’s head, defendant ordered, “Give me your money, motherfucker.” However, both Mark J. Obregon and Robert F. Pinnow, members of the Chicago Heights police force, testified that when interviewed after the incident, Maza stated defendant had said only, “Give me your money.” Maza had told Pinnow that defendant had said, “We’re even, motherfucker,” after Maza handed the money over to the defendant.

Maza stated that the $190 stolen from him was a cash payment he received on the morning of November 8, 1986, from Raul Rivera for work Maza performed for Rivera’s landscaping business. However, Rivera stated he did not pay Maza $190 on November 8, 1986, and, in fact, had never paid Maza any money for any work performed by Maza.

During cross-examination, Maza consented to allow defendant’s counsel and the trial judges to inspect his arms for recent needle marks. Defendant’s counsel stated he believed needle marks on Maza’s arms were recent, not scars from past heroin use, and indicated his intent to present an expert to establish that fact, contrary to Maza’s testimony. At that point, the trial judge stated counsel could present such testimony but declined to permit the expert to be present during Maza’s questioning.

Pinnow corroborated Maza’s testimony regarding identification of the photographs of defendant, defendant’s car, and, from the lineup, defendant, himself. Pinnow testified that when he interviewed Maza after the incident on November 8, 1986, Maza had appeared upset because he had been robbed.

Defendant testified that on the morning of November 8, 1986, defendant drove his car to Willie Lawrence’s house because Lawrence wanted to borrow defendant’s car. Defendant took a bus from 14th Street and Wentworth Avenue to the bus depot in downtown Chicago Heights. Via a transfer, defendant stated he rode another bus to 95th Street in Chicago. Defendant stated he then hired a cab to take him to 65th and Laflin Streets in Chicago, where, defendant testified, he spent two days. Defendant stated that, two days later, he called Lawrence, who told defendant that Chicago Heights police had towed defendant’s car and wanted to question defendant. Defendant stated he went voluntarily to the police station.

Defendant testified that two weeks before November 8, 1986, Maza had approached defendant and asked defendant if defendant could get Maza some heroin. Defendant stated Maza was suffering from heroin withdrawal. Defendant stated Maza gave defendant $38 for the heroin purchase. However, defendant stated, he did not obtain the heroin and did not return to see Maza for fear of being “set up” because Maza had been described to defendant as a “stupid John for the police.”

On cross-examination, defendant stated that for eight days beginning on November 8, 1986, he stayed with his friend and his friend’s family in their house at 65th and Laflin Streets. Defendant stated that he contacted Lawrence about the car approximately four days after November 8, 1986. Defendant denied that he had earlier testified he stayed at the address at 65th and Laflin Streets for only two days and that he had contacted Lawrence only two days after November 8, 1986. Defendant admitted that he did not go to see the police until approximately November 22, 1986, some 10 days after he stated Lawrence had told him police wanted to question him.

At the conclusion of defendant’s testimony, defendant’s counsel indicated his intention to call Willie Lawrence to testify, but Lawrence was not present. The trial judge then noted that the time was 4:42 p.m. and adjourned court, indicating the trial would conclude the next day. When defendant’s counsel asked whether the trial would conclude without regard to whether Lawrence could be located, the trial judge reiterated the last opportunity to present evidence would be the next day.

Defendant’s counsel also then indicated his intention to call Helen O’Connor, a worker in a methadone clinic, as an expert witness, to testify that needle marks on Maza’s arms indicated recent heroin use. The trial judge stated, however, that, as fact finder, he did not “need” such testimony.

On the following day, defendant’s counsel indicated Lawrence could not be located to testify and moved for a continuance to secure Lawrence’s presence. The trial judge denied that motion, stating he had adjourned court on the previous day to permit defendant’s counsel opportunity to locate Lawrence. The trial judge further observed that defense counsel “had been demanding trial for quite some time,” and asked counsel whether Lawrence was under subpoena to testify. Defendant’s counsel stated that Lawrence was not under subpoena to testify, explaining that Lawrence had indicated his intent to cooperate voluntarily.

Defendant was convicted on April 30, 1987. Defendant’s subsequently filed motion for a new trial was denied on July 21, 1987. This appeal followed.

Opinion

On appeal, defendant first contends the trial judge’s refusal to permit presentation of expert testimony to establish that the needle marks on Maza’s arms were recent justifies reversal and a new trial. Defendant relies primarily on People v. Strother (1972), 53 Ill. 2d 95, 290 N.E.2d 201, and People v. Boyd (1959), 17 Ill. 2d 321, 161 N.E.2d 311. Both Strother and Boyd involved the issue of the credibility of testimony of habitual narcotics users.

In Boyd, the defendant’s conviction rested on the identification of another person’s voice by Jeff Andrews, a narcotics addict and police informer. The supreme court noted that such a witness’ testimony warrants close scrutiny. (Boyd, 17 Ill. 2d at 326, 161 N.E.2d at 314.) And, because Andrews’ testimony was materially contradicted by a second narcotics addict who was also a police informer, the supreme court concluded Andrews’ testimony was insufficient to provide proof beyond a reasonable doubt. Boyd, 17 Ill. 2d at 327, 161 N.E.2d at 314.

Strother also involved the testimony of a police informer who was a narcotics addict. In his direct examination, Albert Bradley admitted that he had been addicted to heroin but had not used narcotics for approximately 10 years prior to the trial. During cross-examination, defense counsel, in chambers, asked that he be allowed to examine Bradley’s arm, outside the jury’s presence, for recent needle marks. The trial judge sustained the prosecutor’s objection to that request, but offered defendant time to have a physician examine Bradley’s arm.

The supreme court observed, “ ‘[t]he question of whether a witness is a narcotics addict is an important consideration in passing upon the credibility of a witness [because] *** the testimony of a narcotics addict is subject to suspicion due to the fact that habitual users of narcotics become notorious liars.’ ” (Strother, 53 Ill. 2d at 99, 290 N.E.2d at 204, quoting from People v. Lewis (1962), 25 Ill. 2d 396, 399, 185 N.E.2d 168, 169.) Because the inference to be drawn from the existence of marks indicating recent narcotics use was a question for the jury as the finder of fact, the supreme court concluded the trial judge’s refusal to permit defense counsel to examine Bradley’s arm and exhibit Bradley’s arm to the jury unduly restricted the cross-examination of Bradley and prejudiced defendant’s right to a fair trial. Strother, 53 Ill. 2d at 99, 290 N.E.2d at 204.

We are mindful of the suspicion cast upon the testimony of a narcotics addict as observed in cases such as Boyd and Strother, above. We do not, however, find basis therein to support reversal of defendant’s conviction in the instant case. The record indicates the trial judge, as finder of fact, considered Maza’s credibility in light of his use of drugs. In his findings, the trial judge, borrowing a phrase from counsel, acknowledged Maza was not a “pillarQ of the community” and that Maza was a narcotics user. The trial judge, in fact, noted defendant’s testimony established Maza had approached defendant shortly before November 8, 1986, to procure heroin for him. Nevertheless, the trial judge, having had opportunity to observe Maza’s demeanor in his testimony at trial, indicated he believed Maza’s testimony that Maza had been robbed by the defendant. Because that determination was made despite evidence indicating Maza’s heroin use as recently as two weeks prior to the incident, we can find no basis to conclude the refusal to allow expert testimony to establish similar facts for impeachment purposes provides a basis to. disturb defendant’s conviction.

Defendant next contends the trial judge’s refusal to continue the trial to permit defendant’s counsel additional time to locate Willie Lawrence provides basis to reverse defendant’s conviction. We do not agree.

The decision to grant or deny a motion for a continuance is within the discretion of the trial court which may look to defendant’s diligence, or lack thereof, in making its decision. People v. Williams (1985), 131 Ill. App. 3d 597, 475 N.E.2d 1082.

The record indicates that on April 8, 1987, the instant matter was given a trial date of April 29, 1987. During that time, no attempt was made to subpoena Lawrence to insure his attendance at trial. Further, as the trial judge noted, defendant demanded a speedy trial. In light of those facts, we cannot conclude that the trial judge abused his discretion in denying defendant a continuance.

Defendant last contends the State failed to prove defendant guilty beyond a reasonable doubt. Defendant points out that his conviction was based on Maza’s uncorroborated testimony as the sole occurrence witness. Defendant specifically calls attention to the inconsistencies in Maza’s testimony we have noted above.

Although discrepancies do exist with respect to Maza’s testimony, we note that minor inconsistencies in testimony go only to the weight of the evidence and not to its sufficiency. (People v. Brown (1986), 150 Ill. App. 3d 535, 501 N.E.2d 1347.) Further, the testimony of a single complaining witness, when credible, is sufficient to sustain a conviction. (People v. Spencer (1983), 119 Ill. App. 3d 971, 457 N.E.2d 473.) That controlling principle applies even where the testimony is that of a narcotics addict, when supported by surrounding circumstances. See People v. Rollins (1982), 108 Ill. App. 3d 480, 438 N.E.2d 1322.

In the instant case, the record indicates that when Maza reported the incident to police he was upset. He told police that his assailant’s name was K.D. Later, Maza positively identified a photograph of defendant, defendant’s car, and picked defendant out of a police lineup. As the trial judge noted in his findings, Maza essentially recounted the same events surrounding the incident when he first reported the incident, in subsequent meetings with police, and at trial. We view the inconsistencies in Maza’s testimony minor and decline to substitute our judgment for that of the trial judge as trier of fact.

Affirmed.

MURRAY, P.J., and PINCHAM, J., concur.

       Justice Pincham participated in the decision prior to his resignation.