author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DERRICK WHITE, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—1612
    Opinion filed March 20, 1989.

      Law Offices of Patrick A. Tuite, Ltd., of Chicago (Patrick A. Tuite and Brent D. Stratton, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., Rimas F. Cernius, and Nancy A. Donahoe, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

The defendant, Derrick White, was charged by information with the murder of Edward Sanders, who was fatally shot on January 31, 1981, while riding as a passenger in a taxicab. Following a jury trial in the circuit court of Cook County, the defendant was found guilty of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1) and sentenced to 27 years’ imprisonment. The defendant’s motions for a mistrial and a new trial were denied by the trial court, and the defendant filed this appeal.

The defendant contends in his appeal that: (1) it was reversible error for the trial court to admit the prior inconsistent statements of the defendant’s former girlfriend, which were introduced under the pretext of impeachment for the sole purpose of introducing hearsay statements; (2) his constitutional right to remain silent was violated due to improper comments by the prosecutor during closing arguments; and (3) he was not proven guilty of murder beyond a reasonable doubt.

It was stipulated that, if called as a witness, Sylvia Roysner, Sanders’ girlfriend, would testify that on January 30, 1981, she and Sanders purchased drugs from Spuds, Derrick, Gun and Drake Hud-sell, a/k/a Binkie or Banks. Both of them became ill from the drugs, and Sanders called Drake Hudsell (Binkie), who agreed to refund their money. Sanders subsequently went looking for Binkie to get the money. Roysner would further testify that Binkie and Sanders “had argued over a previous dope deal.”

Richard Holt, a taxicab driver, testified that early in the morning of January 31, 1981, he picked up Sanders on the comer of 79th and Drexel and drove him to 79th and Ingleside. Upon arrival at that location, Sanders directed Holt to blow the horn, which he did. When no one responded to the horn, Sanders directed Holt to take him to 77th and Greenwood. When they arrived at that location, Sanders asked a man sitting in a parked car if he had seen Binkie. The man responded that he had not. Sanders then directed Holt to drive to the end of the block and to return to the same location. A light blue Continental automobile driven by a female pulled behind the taxicab and parked.

Holt further testified that Derrick White came out of the building at 7747 South Greenwood, and Sanders asked White if he had seen “Banks” (Binkie). Further conversation took place between Sanders and White regarding the. $80 Sanders had given to “Banks” (Binkie). Holt, noticing that White had a gun in his hand, drove away southbound on Greenwood. When Holt reached 79th Street, he noticed the same blue Continental automobile that he had previously seen, and he saw a gun protruding out of the passenger side window. The Continental pulled up on the left side of the taxicab, and two shots were fired from the right front window of the Continental. After the second shot was fired the Continental proceeded westbound on 79th Street. Holt drove to 79th and Cottage Grove and called the police because Sanders had been shot. Shortly thereafter, the police arrived and took Sanders to Jackson Park Hospital. Sanders subsequently died from a gunshot wound to the chest.

Holt admitted that he did not see who shot Sanders. However, on February 1, 1981, Holt viewed a lineup at 85th and Green. He said that he picked White from the lineup because White was “real light-skinned,” with a little goatee and because White was the man standing on the sidewalk the previous night holding a gun. At one time in his testimony, Holt said that he saw a picture of White before the lineup, but later he testified that he saw a picture of White after the lineup.

Phillip Morris, the owner of the blue Lincoln Continental, testified that he saw Binkie and White on January 31, 1981. On that date, he was in his apartment at 7747 South Greenwood looking out of the window when he saw White standing on the sidewalk talking to someone in a cab. While this interaction was occurring, Morris testified that Binkie had gone outside, but returned through the back door, and at that time Binkie stated that Eddie was outside. Binkie then proceeded out the front door. Shortly thereafter, Morris’ girlfriend, Charlotte Lillard, came into the apartment and told Morris that she had given Binkie the keys to the Continental. Approximately one hour later, Binkie called Morris and told him that he could retrieve his car on 71st and Michigan. Morris further testified that Binkie was “real light-skinned,” with hair on his chin, and that Binkie’s complexion was “a lot” lighter than the defendant’s complexion.

Charlotte Lillard testified that when she parked the Continental on Greenwood, she saw a man on the sidewalk arguing with someone in a cab. After she had parked the car, she said, Binkie then came over to the car and told her that Morris had given him permission to use the car. Lillard testified that Binkie was alone when she gave him the keys to the car. Thereafter, he drove off in Morris’ car.

Detective Lawrence Nitsche testified that he interviewed the defendant on February 1, 1981, and received an oral confession from the defendant. Detective Nitsche further testified that he was told by the defendant that Sanders came to the defendant’s apartment with a knife about an hour before the shooting and they had argued over drugs. Sanders left the apartment and returned approximately one hour later in a cab. There was some conversation between the defendant and Sanders in front of the apartment building and then Sanders left in a cab.

Detective Nitsche also testified that the defendant stated that he entered the passenger side of a Lincoln Continental driven by Drake Hudsell (Binkie), they followed the cab in which Sanders was riding and that he fired a weapon out of the window of the car in the direction of Sanders. The Lincoln Continental thereafter completed a turn and proceeded west on 79th Street. Nitsche stated that while the defendant admitted that he left the murder weapon at 6656 South Stewart, the gun was never recovered. Detective Nitsche also testified that he did not reduce the defendant’s statement to writing.

Assistant State’s Attorney Paula Daleo testified that she also interviewed the defendant on February 1, 1981, and she testified substantially to the same chronology of events as described by Detective Nitsche, except that the defendant stated to her that Sanders threatened him with a razor and that Morris was driving the Continental, and both Binkie and defendant got into the car. Daleo further testified that she asked the defendant for a written statement, which he refused to provide. However, Daleo did take notes of the interview, but, unfortunately, she destroyed them after writing her felony review memo.

Joan Gilbert testified that on January 31, 1981, she was the defendant’s girlfriend. However, she did not see the defendant on that date, but did see him on February 1, 1981, at the police station, after police officers came to her home at 6656 South Stewart in Chicago and took her to the station for questioning. Gilbert denied making any statements to any police officers or the assistant State’s Attorney at the police station.

Gilbert also testified that she was interviewed by an assistant State’s Attorney and a policeman about a month before the trial. They read statements to . her in a police report that she allegedly made in 1981, and she told them that she had not made those statements. She also stated that on her way to the police station the only thing she said to the police was that she “wasn’t aware of anything that had happened.” The State attempted to impeach Gilbert with evidence of her prior statements to the police. On redirect she further testified that an assistant State’s Attorney told her that she could be charged with perjury if she did not admit to making the 1981 statement.

Detective McGuire testified that he was present when the assistant State’s Attorney interviewed Gilbert, and she was not threatened with a perjury charge. McGuire further stated that Gilbert made the statements to him regarding the offense that she denied making during her testimony. However, he did admit that he was aware before trial that Gilbert had denied making the prior statements.

The State argues that the trial court properly allowed the impeachment of Gilbert with her prior inconsistent statements. Moreover, they contend that they did not know how Gilbert would testify at trial and impeached her with her prior inconsistent statements when she changed her testimony at trial. The State further contends that the defendant waived this issue since he did not raise it during the trial nor did he specify it in his motion for a new trial.

As a result of the recent decision by our supreme court in People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, we must agree with the State that the defendant has waived this issue, since it was not raised during the trial, nor was it specified in a written motion for a new trial. Accordingly, we do not find it necessary to pass upon the appropriateness of the admission of Gilbert’s prior inconsistent statements into evidence. Nor do we find it necessary to pass upon the contention of the State regarding their lack of knowledge as to what would have been testified to at trial.

Our supreme court in Enoch reiterated that it is the general rule in Illinois that if a defendant fails to raise an alleged error in his written motion for a new trial, specifying the grounds supporting the motion, the alleged error is waived and will not be considered as being properly before the reviewing court in the absence of plain error. People v. Enoch (1988), 122 Ill. 2d 176, 187, 522 N.E.2d 1124; People v. Szabo (1986), 113 Ill. 2d 83, 93, 497 N.E.2d 995, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 181, 107 S. Ct. 1330; People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.

The supreme court specifically rejected the contention that it was sufficient if the issue was raised either during trial or in the post-trial motion. The court set forth the reason for this rule as follows, quoting from People v. Caballero:

“Failure to raise issues in the trial court denies that court the opportunity to grant a new trial, if warranted. This casts a needless burden of preparing and processing appeals upon appellate counsel for the defense, the prosecution, and upon the court of review. Without a post-trial motion limiting the consideration to errors considered significant, the appeal is open-ended. Appellate counsel may comb the record for every semblance of error and raise issues on appeal whether or not trial counsel considered them of any importance.” People v. Caballero (1984), 102 Ill. 2d 23, 31-32.

However, the supreme court held that an exception to the general rule of waiver applied where constitutional issues had been properly raised at trial, questions of the sufficiency of the evidence were raised and plain error issues were presented. For plain error to exist, it must be plainly apparent from the record that an error affecting substantial rights was committed. (People v. Precup (1978), 73 Ill. 2d 7, 17, 382 N.E.2d 227.) Plain error may be invoked in criminal cases where the evidence was closely balanced or the error was of such magnitude that it denied the accused a fair and impartial trial. People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091; People v. Pickett (1973), 54 Ill. 2d 280, 283, 296 N.E.2d 856.

The evidence offered by the State here included testimony that oral confessions were given by the defendant to both Assistant State’s Attorney Paula Daleo and Detective Nitsche. Moreover, the defendant’s confessions were corroborated by other witnesses. Therefore, the evidence of the defendant’s guilt was not closely balanced. On the contrary, the evidence against the defendant was overwhelming. We have searched the record and find no evidence that the defendant was denied a fair trial. Under the facts of this case, we decline to invoke the plain error doctrine.

The defendant contends that his timely objection during the trial to the State’s introduction of Gilbert’s prior hearsay statements was sufficient to allow the trial judge to consider the issue and thereby satisfied the purpose of the post-trial motion rule. However, as the court in Enoch pointed out, an objection made by the defendant during the trial does not alter the clear mandate of the statute, which requires that an issue to be used as a basis for a motion for new trial be set forth in writing. (People v. Enoch (1988), 122 Ill. 2d 176, 187, 522 N.E.2d 1124.) Our supreme court held in Enoch that to preserve an issue for review, “[b]oth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis in original.) 122 Ill. 2d at 186.

Since the defendant in the instant case failed to include in his written post-trial motion the issue regarding the prior inconsistent statements of the defendant’s former girlfriend, and since we have determined that plain error did not occur, the defendant is now precluded from raising the issue on appeal. Furthermore, we find no constitutional violation that would warrant reversal, nor any insufficiency in the evidence.

The defendant, however, also asserts that he was prejudiced by the State’s improper impeachment since the jury was not cautioned at the time of impeachment, nor was it instructed at the end of trial that the prior statements were being admitted for the limited purpose of establishing credibility and could not be considered as substantive evidence. Normally, prior inconsistent statements cannot be used as substantive evidence but may be used only for purposes of determining credibility. (People v. Collins (1971), 49 Ill. 2d 179, 194, 274 N.E.2d 77.) Although the legislature has recently enacted a provision which allows for the use of prior inconsistent statements as substantive evidence if certain criteria are met (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10.1), that provision is not applicable to the instant case and has no bearing on our decision today.

Moreover, a jury should be cautioned and properly instructed regarding the .limitations upon the use of a prior inconsistent statement in order that they do not impart substantive character to such statements. (People v. Bradford (1985), 106 Ill. 2d 492, 501, 478 N.E.2d 1341; People v. Collins (1971), 49 Ill. 2d 179, 194, 274 N.E.2d 77.) The jury in the case at bar was provided with the Illinois Pattern Jury Instructions, Criminal, No. 3.11 (2d ed. 1981) (IPI Criminal 2d) at the end of the trial. The instruction stated:

“The believability of a witness may be challenged by evidence that on some former occasion he made a statement that was not consistent with his testimony in this case. Evidence of this kind may be considered by you only for the purpose of deciding the weight to be given the testimony you heard from the witness in the courtroom.”

Our supreme court has held that the giving of IPI Criminal 2d No. 3.11 is “sufficient to guide the jury in its deliberation and provide an adequate safeguard that the jury would not give substantive character to the impeachment testimony.” (People v. Bradford (1985), 106 Ill. 2d 492, 502, 478 N.E.2d 1341; People v. Spicer (1979), 79 Ill. 2d 173, 179, 402 N.E.2d 169, cert. denied (1980), 446 U.S. 940, 64 L. Ed. 2d 794, 100 S. Ct. 2162.) Therefore, the defendant’s contention is without merit.

The defendant next argues that his constitutional right to remain silent was violated due to improper comments by the prosecutor during closing arguments on the defendant’s failure to testify. Specifically, in the rebuttal argument the assistant State’s Attorney commented to the jury, “[T]here’s only one person who the testimony, which is the evidence, has shown is the shooter. It’s been uncontra-dicted that the defendant made those statements.”

The State maintains that the prosecutor’s comments during closing arguments were proper comments of what the evidence had shown. The State further contends that its comments were, in any event, in response to arguments raised by the defendant during his closing argument and, thus, invited. In support of its position, the State argues that the defense counsel in his closing argument emphasized that the assistant State’s Attorney and Detective Nitsche did not produce the notes of the defendant’s statements. This, the State asserts, invited the comments that the defendant’s statements were uncontroverted.

We agree with the State. The prosecutor is allowed a great deal of latitude during closing arguments. (People v. Shum (1987), 117 Ill. 2d 317, 341, 512 N.E.2d 1183, cert. denied (1988), 484 U.S. 1079, 98 L. Ed. 2d 1022, 108 S. Ct. 1060; People v. Dominique (1980), 86 Ill. App. 3d 794, 806, 408 N.E.2d 280.) In determining whether the defendant’s right to remain silent has been violated, we must assess whether the reference was intended or calculated to direct the jury’s attention to the defendant’s failure to testify. People v. Dixon (1982), 91 Ill. 2d 346, 350, 438 N.E.2d 180; People v. Hopkins (1972), 52 Ill. 2d 1, 6, 284 N.E.2d 283.

In the instant case the prosecutor specifically commented on the uncontroverted nature of the evidence, which only served to emphasize the strength of the State’s case. (People v. Bolden (1987), 152 Ill. App. 3d 631, 639, 504 N.E.2d 835; People v. Bryant (1983), 94 Ill. 2d 514, 524, 447 N.E.2d 301.) A prosecutor may comment on the uncontroverted nature of the evidence even though the defendant is the only person who could have contradicted the evidence. People v. Hopkins (1972), 52 Ill. 2d 1, 6, 284 N.E.2d 283; People v. Mills (1968), 40 Ill. 2d 4, 8-9, 237 N.E.2d 697.

The prosecutor may also properly comment on the uncontro-verted nature of evidence as long as the purpose is not to call attention to the defendant’s failure to testify, but rather to demonstrate the absence of any evidentiary basis for defense counsel’s argument. (People v. Dixon (1982), 91 Ill. 2d 346, 350, 438 N.E.2d 180.) However, even if the prosecutor’s comments were improper, an improper argument will not constitute reversible error unless the argument resulted in substantial prejudice to the accused. People v. Shum (1987), 117 Ill. 2d 317, 347, 512 N.E.2d 1183, cert. denied (1988), 484 U.S. 1079, 98 L. Ed. 2d 1022, 108 S. Ct. 1060; People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200.

In light of the overwhelming evidence presented during the trial, we do not find that the comments here resulted in substantial prejudice to the accused. Nor can we say that the verdict would have been different but for the prosecutor’s comments. Therefore, we find no error in the prosecutor’s comments.

The defendant finally argues that he was not proven guilty of murder beyond a reasonable doubt. It is the responsibility of the trier of fact to determine the credibility of witnesses and a reviewing court will only substitute its judgment when the evidence is so unsatisfactory or improbable that it creates a reasonable doubt of the defendant’s guilt. People v. Shum (1987), 117 Ill. 2d 317, 356, 512 N.E.2d 1183, cert. denied (1988), 484 U.S. 1079, 98 L. Ed. 2d 1022, 108 S. Ct. 1060; People v. Bradford (1985), 106 Ill. 2d 492, 502, 478 N.E.2d 1341.

In the instant case, Assistant State’s Attorney Paula Daleo and Detective Nitsche testified that the defendant confessed to killing Sanders, providing them with a detailed account of the killing and of the incidents that occurred before and after the killing. Portions of the defendant’s confession were also corroborated by Richard Holt, the taxicab driver; Sylvia Roysner, Sanders’ girlfriend; and Phillip Morris, the owner of the blue Continental. After a review of the record, we conclude that there is sufficient evidence in the record to support the jury’s verdict and that the verdict was not so improbable or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

CAMPBELL and QUINLAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    THOMAS NETZEL, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee.
    First District (3rd Division)
    No. 1—85—1606
    Opinion filed March 29, 1989.

      Marvin A. Brustin, Ltd., of Chicago, for appellant.
    Keck, Mahin & Cate, of Chicago, for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the oninion of the court:

Plaintiff, Thomas Netzel, appeals from the trial court’s grant of a new trial on both liability and damages in his suit for retaliatory discharge against defendant, United Parcel Service, Inc. (UPS). At trial, a jury found in plaintiff’s favor and awarded him $200,000 in compensatory damages.

This court’s prior opinion (Netzel v. United Parcel Service, Inc. (1987), 165 Ill. App. 3d 685, 520 N.E.2d 665), finding that plaintiff’s claim for retaliatory discharge had been preempted by section 301 of the Labor Management Relations Act (29 U.S.C. §185(a) (1976)), was reversed by the supreme court in a supervisory order based on, inter alia, Lingle v. Norge Division of Magic Chef, Inc. (1988), 486 U.S. _, 100 L. Ed. 2d 410, 108 S. Ct. 1877, and Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill. 2d 1, 503 N.E.2d 308, cert. denied (1987), 483 U.S. 1032, 97 L. Ed. 2d 779, 107 S. Ct. 3248.

Plaintiff injured his knee while working as a package car driver for UPS on June 7, 1977. Plaintiff was off the job for extended periods in between which he unsuccessfully attempted to return to work. Plaintiff filed a claim under the Workmen’s Compensation Act (the Act) (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) on July 12, 1978. On June 7, 1977, and three subsequent occasions on which he attempted to return to work, including August 7, 1979, the date of his discharge, plaintiff could not continue his route of package deliveries and pick-ups due to pain and swelling in his knee. On June 7, 1977, and the two occasions prior to his discharge when he could not continue working, a supervisor granted plaintiff permission to return to the UPS distribution center with undelivered packages or “NDA’s” (no delivery attempted). Plaintiff maintained at trial that- he was also given permission to return to the distribution center on August 7, 1979. Defendant maintained that plaintiff was ordered to remain on his route until a supervisor went out to assist him in completing his route.

After his discharge, plaintiff sued, alleging he was discharged in violation of section 4(h) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.4(h)) for filing a claim thereunder. After the jury verdict for plaintiff, UPS filed a post-trial motion. UPS requested either a directed verdict at the close of plaintiff’s case in chief, judgment notwithstanding the verdict, a new trial or a remittitur.

The trial court denied UPS’ motion for a judgment n.o.v. It did not rule on the motion for a directed verdict or remittitur. The trial court granted UPS a new trial on both liability and damages. The court found that there was no evidence linking plaintiff’s discharge “with his having filed a [wjorkmen’s [compensation [cjlaim more than one year prior to his discharge.” The court also found that the damage award could not stand because of plaintiff’s testimony that he could not perform the work required of a UPS driver after his injury and because the jury did not give him “credit for some of the benefits he received.” By this last remark, the trial court was apparently referring to disability payments plaintiff received after his discharge.

Before addressing the merits of plaintiff’s appeal, we must address UPS’ claim that we should apply to his case the standards applied by Federal courts to employment discrimination cases brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq. (1976)). Therein, a plaintiff must make out a prima facie case which a defendant must rebut by adducing some evidence of lawful motivation for the challenged action. If the defendant does so, the plaintiff must then prove that the defendant’s reason for the challenged action is pretextual. McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817.

No Illinois court has applied the standards under the Civil Rights Act of 1964 to claims of retaliatory discharge brought under Illinois law. We therefore decline to do so here. We believe that such cases should be reviewed under a traditional tort analysis. The cases most like retaliatory discharge cases involve claims of breach of employment contracts by wrongful discharge. Therein, the employer must show that the plaintiff was guilty of conduct justifying his discharge. (Lukasik v. Riddell, Inc. (1983), 116 Ill. App. 3d 339, 346, 452 N.E.2d 55; Foster v. Springfield Clinic (1980), 88 Ill. App. 3d 459, 464, 410 N.E.2d 604.) Whether the plaintiff disobeyed reasonable orders and was thus terminated for good cause is a question for the trier of fact. (Lukasik, 116 Ill. App. 3d 339, 452 N.E.2d 55; Foster, 88 Ill. App. 3d 459, 410 N.E.2d 604.) These are proper considerations for a jury evaluating a claim of retaliatory discharge. However, a plaintiff must still convince the trier of fact only by a preponderance of the evidence that he was discharged for exercising his rights under the Workmen’s Compensation Act.

On appeal, plaintiff first contends the trial court abused its discretion in ordering a new trial because the jury’s verdict was not against the manifest weight of the evidence.

A motion for new trial is addressed to the sound discretion of the trial court, and its decision will not be disturbed absent a clear abuse of discretion. (Cadral Corp. v. Solomon, Cordwell, Buenz & Associates, Inc. (1986), 147 Ill. App. 3d 466, 497 N.E.2d 1285.) The standard to be applied in deciding a motion for new trial is whether the jury’s verdict was against the manifest weight of the evidence. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 356 N.E.2d 32.) A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or the jury’s findings are unreasonable, arbitrary and not based upon the evidence. (Anderson v. Beers (1979), 74 Ill. App. 3d 619, 623, 393 N.E.2d 552.) In determining the propriety of a new trial, neither a trial nor reviewing court “should sit as a second jury to consider the nuances of the evidence or the demeanor and credibility of the -witnesses.” Kitsch v. Goode (1977), 48 Ill. App. 3d 260, 271, 362 N.E.2d 446.

Applying these principles here, we conclude that the jury drew reasonable inferences from the conflicting evidence before it. As such, the trial court erred in granting UPS a new trial.

Preliminarily, we conclude that the trial court erred in granting UPS a new trial based on its finding that there was no evidence linking plaintiff’s discharge to his filing a workmen’s compensation claim more than a year before he was fired. Specifically, we believe the trial court erred in focusing on the filing of the claim as the action in retaliation against which plaintiff was discharged. Section 4(h) of the Act makes it illegal for employers to discharge an employee “because of the exercise of his rights or remedies granted” by the Act. (Ill. Rev. Stat. 1977, ch. 48, par. 138.4(h).) The rights plaintiff asserts in his brief, viz., to stop working and to seek medical attention for his injuries, are not specifically enumerated in the Act. Plaintiff’s right to receive benefits thereunder for as long as he was unable to work nonetheless deserves protection under the statute. As such, the passage of time from the date of filing a claim for adjustment under the Act to the date of discharge of an employee-claimant cannot be allowed to insulate an employer from liability for retaliatory discharge. Rather, where an employee can prove that the employer’s motive was retaliation for the exercise of his rights under the Act, despite the passage of time, he is entitled to a recovery. For that reason, UPS’ reliance on the passage of time as negating any retaliatory motive is similarly without merit.

The evidence adduced at trial satisfied plaintiff’s burden. Under the circumstantial evidence adduced, it was within the bounds of reason for the jury to infer a retaliatory motive for plaintiff’s discharge.

Plaintiff testified that UPS summoned him to a safety meeting in April 1979. According to plaintiff, when Wayne Bigonin, the UPS distribution center manager who later fired him, saw him in a cast he told plaintiff that it was a bunch of “crap” and “bullshit” and that he should have returned to work long before then.

The fact that the UPS officer who fired plaintiff had earlier accused him of feigning injury and malingering must have had a significant impact upon the jury. We disagree with UPS that it merely showed, at worst, that Bigonin’s motive for discharging plaintiff was his belief that plaintiff was feigning injury, not retaliation for the exercise of his rights under the Act. This evidence could be reasonably interpreted as revealing Bigonin’s displeasure with plaintiff’s prolonged exercise of his statutory rights rather than an actual belief that plaintiff was feigning injury.

Plaintiff also testified that he had been permitted to return to the distribution center with NDA’s when he was first injured and on the two subsequent occasions when he had unsuccessfully attempted to return to work.

This testimony could have been reasonably interpreted by the jury as evidence either that plaintiff was given permission to return to the distribution center with NDA’s on August 7, 1979, or that his return with such packages was not the real reason for his discharge, contrary to UPS’ position at trial. We disagree with UPS that this testimony was subject only to the interpretation proffered by it. UPS asserts that the fact that plaintiff returned with NDA’s on two occasions after he filed his workmen’s compensation claim and the fact that Bigonin was the distribution center manager on one of those occasions negate a retaliatory motive for his discharge. UPS reasons that the difference between plaintiff’s return to the distribution center on those two occasions and on August 7, 1979, was that Bigonin believed that the latter was contrary to a supervisor’s instruction.

This testimony was susceptible to the interpretation proffered by either party. It tended to support each party’s case only to the extent that the jury accepted their theory of the case. As it showed that plaintiff had twice been permitted to return with NDA’s, it made more likely true that plaintiff was permitted to return with NDA’s on August 7, 1979. As it showed that plaintiff sought and obtained permission to return with NDA’s before doing so, it made more likely true that UPS discharged plaintiff for returning on August 7, 1979, without such permission. Either inference would have been reasonable, and we cannot say, assuming the jury drew the former inference, that its conclusion was against the manifest weight of the evidence.

UPS asserts that its articulation of a nondiscriminatory reason for plaintiff’s discharge negates a retaliatory motive therefor. The short answer to this argument is that the character of its reason for discharging plaintiff, whether innocent or culpable, was the ultimate fact question before the jury. By itself, the articulation of an innocent reason for plaintiff’s discharge proves nothing.

UPS also cites certain evidence as indicating Bigonin’s reasonable belief that plaintiff had returned to the distribution center in violation of UPS rules and the express instruction of a supervisor, Steve Qualkenbush. Qualkenbush testified that, on August 7, 1979, he instructed plaintiff to stay on his route until he went out to meet plaintiff when plaintiff called to inform the center that he could not continue his route because of pain and swelling in his knee. Qualkenbush also testified that he told Bigonin what he had instructed plaintiff to do. Bigonin testified that Qualkenbush was changing into his driver’s uniform when plaintiff returned to the center. Finally, Bruce DeFran-ceschi, plaintiff’s immediate supervisor on August 7, 1979, testified that he was surprised to see that plaintiff had returned to the center on that date and that no one had told him that plaintiff was returning.

UPS ignores that the value of this testimony to it depended upon the credibility of the witnesses, especially Bigonin and Qualkenbush, as determined solely by the jury. We cannot say that the jury’s rejection of UPS’ theory was contrary to the manifest weight of the evidence.

DeFranceschi also testified that in order to terminate a UPS package car driver “you [had] to have a lot of write-ups” on him, i.e., written reprimands for infractions such as returning with NDA’s. UPS argues that this testimony was unreliable. It notes DeFrances-chi’s testimony that he became a UPS supervisor shortly before August 7, 1979, that he resigned by mutual agreement in 1980 and that he had authority only to “write-up,” not discharge, employees. De-Franceschi also testified that he did not know of any driver who had been fired for returning with NDA’s. UPS also discounts this testimony. It notes DeFranceschi’s testimony that he did not know of any driver who returned with NDA’s without permission, as plaintiff allegedly did. UPS also contrasts DeFranceschi’s testimony with that of Bigonin, an 18-year UPS employee with seven years’ experience as a distribution center manager, that insubordination is grounds for immediate dismissal. Finally, UPS cites plaintiff’s failure to file a union grievance as evidence of his own belief that his discharge was not improper.

Other than noting that Bigonin could not recall where he had read the rule regarding insubordination, we will not explore the factors which may have made these witnesses more or less credible in the eyes of the jury regarding UPS’ discharge policies. It suffices to note that the credibility of the witnesses and the weight to be given their testimony is uniquely the province of the jury. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 356 N.E.2d 32.) The jury might reasonably have given DeFranceschi’s testimony more weight than Bigonin’s. It might also have reasonably concluded that plaintiff’s failure to file a union grievance did not reveal the absence of a retaliatory motive on UPS’ part. Given the conflicting and circumstantial nature of the evidence in this case, we cannot say that, to the extent that it may have been based on such determinations, the jury’s verdict was against the manifest weight of the evidence.

UPS asserts that certain elements in its case, or lacking in plaintiff's case, made the former much stronger than the latter. We disagree. Admittedly, evidence that other UPS employees had not been fired for returning with NDA’s would have strengthened plaintiff’s case. However, such evidence would have been but one more piece of circumstantial evidence for the jury’s consideration. Its absence was not fatal to plaintiff’s case. The same conclusion obtains as to the lack of proof that Bigonin or any other UPS officer had disparaged employees exercising their statutory rights. As to these and the remaining elements cited by defendant, which we see no need to discuss individually, it suffices to note that the weight and sufficiency of the evidence was for the jury to decide.

In the final analysis, this case is governed by the principle that a trial court abuses its discretion in granting a new trial only because it would have decided the case differently had it been the trier of fact or because it believes that the inferences which it has drawn are more reasonable than those drawn by the jury. (Duffek v. Vanderhei (1980), 81 Ill. App. 3d 1078, 401 N.E.2d 1145.) The jury’s verdict as to UPS' liability for discharging plaintiff in retaliation for exercising his statutory rights was not against the manifest weight of the evidence. As such, UPS was not entitled to a new trial on that issue.

UPS also contends that certain errors by the trial court regarding the jury instructions also required a new trial on the liability issue. UPS raises as error the trial court’s refusal to instruct the jury: (1) that plaintiff had to prove that he would not have been discharged “but for” the exercise of his statutory rights; (2) not to consider whether UPS had a “sufficient reason” for discharging plaintiff; (3) not to consider whether plaintiff’s discharge was in conformance with the collective bargaining agreement between UPS and its employees’ union; and (4) that the burden of proving plaintiff’s claim remained with him at all times. UPS raises as further error, alone warranting a new trial, the jury instruction that Bigonin was the agent of UPS and, therefore, any act or omission of his was that of UPS. Specifically, UPS asserts that the instruction took away the jury’s right to determine that Bigonin’s discharge of plaintiff was a frolic for which it could not be vicariously liable. UPS asserts that the jury could have so concluded from the testimony of Les Dahlgren, a UPS safety representative, that it was against company policy to discharge employees for exercising their workmen’s compensation rights.

We find no error with respect to the jury instructions and believe that those given properly charged the jury. UPS’ proffered instructions were based on Federal case law which we have already concluded is inapplicable here. Moreover, given the lack of any allegation or evidence by UPS that Bigonin exceeded his general authority to discharge employees in discharging plaintiff, there was no error in the instruction regarding UPS’ liability under agency principles for his conduct. (See Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 383 N.E.2d 1242.) In this regard, the mere fact that plaintiff’s discharge was in violation of a UPS policy was insufficient to insulate it from liability. The authority relevant to the imputation of vicarious liability to UPS for Bigonin’s conduct was the general authority to discharge employees, which UPS admits he had. It was not the authority to discharge employees for exercising their statutory rights, which no UPS supervisor could have under Illinois law, regardless of any UPS policy on that subject.

UPS also asserts that it was entitled to a directed verdict at the close of plaintiff’s case or a judgment n.o.v. Such relief may be granted only when all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based thereon could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Our determination that the jury verdict for plaintiff on the issue of liability was not against the manifest weight of the evidence necessarily disposes of this argument.

Plaintiff next contends that the trial court also abused its discretion in granting UPS a new trial on the issue of damages. He asserts that the jury was presented with sufficient evidence from which it could reasonably determine his damages from lost earnings and benefits.

The amount of damages awarded generally is within the discretion of the jury. (Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 407, 485 N.E.2d 4.) Nevertheless, a reviewing court can order a new trial if the damages are manifestly inadequate, if proved elements of damages have been ignored, or if the award does not bear a reasonable relation to the plaintiff’s loss. (Hollis, 108 Ill. 2d 401, 485 N.E.2d 4; Kern v. Uregas Service of West Frankfort, Inc. (1980), 90 Ill. App. 3d 182, 412 N.E.2d 1037.) Under the latter rule, we conclude the trial court did not abuse its discretion in granting a new trial on damages.

The damages instruction, submitted by plaintiff, instructed the jury to reasonably and fairly compensate him for the value of earnings and benefits lost if it found for plaintiff on the issue of liability.

Plaintiff testified that he was unable to obtain employment after his discharge at as high a rate as UPS paid. He provided information regarding his earnings which the jury could utilize in calculating damages. In closing arguments, plaintiff’s counsel requested $54,800 for lost wages and he suggested that a fair figure for the benefits lost such as medical, dental, pension, and overtime would be $45,000. He also requested $150,000 for “loss of job.”

The jury’s compensatory damages award in this case does not bear a reasonable relation to the loss suffered by plaintiff. (Hollis, 108 Ill. 2d 401, 485 N.E.2d 4; Kern, 90 Ill. App. 3d 182, 412 N.E.2d 1037.) Although there was testimony that plaintiff lost certain benefits due to his discharge, we cannot find sufficient evidence upon which the jury could reasonably and fairly compensate plaintiff for the value of those benefits. Moreover, the instruction did not allow the jury to award damages for the highly speculative element of “loss of job” mentioned by plaintiff’s counsel. The purpose of compensatory damages is to make the injured party whole, not to punish the defendant or bestow a windfall upon the plaintiff. Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 363, 392 N.E.2d 1.

We are unable to determine the basis of the jury’s damages award in this case. The verdict does not reflect the evidence at trial and we cannot say, for example, whether the jury improperly included the “loss of job” element in the award or misunderstood the instruction and included punitive damages in the award. Therefore, the trial court correctly granted a new trial on damages.

Finally, as we affirm the grant of a new trial on the issue of damages, we need not address UPS’ contention that it is entitled to a remittitur on the damage award.

For all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part, reversed in part and remanded for a new trial in accordance herewith.

Affirmed in part; reversed in part and remanded.

McNAMARA and WHITE, JJ., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT CARLBERG, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—0448
    Opinion filed March 29, 1989.
    Michael J. Pelletier and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Pradeep Y. Roy-Singh, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court;

Defendant, Scott Carlberg, appeals from a trial court order denying his motion to amend the mittimus to grant him additional credit for time served in pretrial incarceration.

On December 15, 1982, defendant committed residential burglary. (Information No. 82 — 500217.)

On February 22, 1983, defendant committed armed robbery, unlawful restraint, and unlawful use of a weapon. (Indictment No. 82— 2513.)

On October 22, 1983, defendant was released by posting bond after spending 7 months and 27 days in custody.

On November 14, 1983, defendant committed the offense of possession of a stolen vehicle. (Case No. 83 — 1—6167.) He remained in custody for 23 days, until December 6, 1983.

On January 24, 1984, defendant committed armed robbery. (Information No. 84 — 1—1211.) He spent 64 days in jail prior to entering a plea of guilty.

On March 23, 1984, defendant pleaded guilty to the charged offenses and the trial court accepted the plea. Defendant indicated he understood his sentences of eight years would run concurrently. Defendant asked the trial court whether he would get credit for the 10 months served and the court replied: “You get credit for that. You get credit for the ten months you have been in jail.”

Later, the court formally pronounced sentences of eight years for each of the separate cases, sentences to run concurrently. The court order reads that the No. 84 — 1—1211 sentence was to “run concurrent with 83 — 2513 and 83 — 500217. Defendant given credit for time served while awaiting trial.”

The Department of Corrections subsequently indicated the only time credited against the No. 84 — 1—1211 case would be the 64 days spent in jail between defendant’s January 24 arrest and March 23 plea date. The time periods of 23 days and of 7 months, 27 days spent in jail following the prior arrests would not be credited against the No. 84 — 1—1211 eight-year sentence.

On January 28, 1987, defendant moved to amend the mittimus, arguing that the full 10 months’ credit should also apply to No. 84— 1 — 1211. The trial court denied the motion, finding that defendant could not receive credit in No. 84 — 1—1211 for time served prior to the commission of the No. 84 — 1—1211 offense.

Under the relevant statutes, credit shall be given on the determinate sentence or maximum term for time spent in custody “as a result of the offense for which the sentence was imposed,” and where defendant was “arrested on one charge and prosecuted on another charge for conduct which occurred prior to his arrest,” he shall receive credit for the “time spent in custody under the former charge not credited against another sentence.” Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 8—7(b), (c).

Accordingly, jail time spent under the 1983 charges cannot be credited against his sentence for the 1984 charge which had not yet been committed. (See People v. Cooper (1986), 146 Ill. App. 3d 596, 601, 497 N.E.2d 157.) Thus, the credit under No. 84 — 1—1211 was properly restricted to the time between his January 25, 1984, arrest and March 23, 1984, entry of a guilty plea. The trial court’s holding is consistent with the statute under which the court granted credit. Defendant’s sentence has been properly credited.

For the foregoing reasons, the order of the circuit court of Cook County denying defendant’s motion to correct mittimus is affirmed.

Order affirmed.

FREEMAN, P.J., and WHITE, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY TATUM, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—3108
    Opinion filed March 29, 1989.

      Mary Ellen Dienes, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Jerry D. Bischoff, and Kathleen T. Kavanagh, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

After a bench trial in the circuit court of Cook County, defendant, Gregory Tatum, was convicted of the offense of possession of a controlled substance. After a second bench trial in the same court, defendant was convicted of the offenses of delivery of a controlled substance and possession of a controlled substance. He was sentenced to two years’ imprisonment on the former possession offense and a concurrent 10 years’ imprisonment on the delivery offense. Defendant appeals only the 10-year sentence for the delivery offense.

Defendant’s first trial, on one count of possession of a controlled substance, 3.48 grams of heroin, with intent to deliver, a Class 2 felony (Ill. Rev. Stat. 1983, ch. 56V2, par. 1401(c)), resulted from his arrest by Chicago police officers on January 23, 1985. The trial court deferred sentencing, at defendant’s request, after finding him guilty of the lesser-included offense of possession of the heroin, a Class 1 felony. Ill. Rev. Stat. 1983, ch. 56x/2, par. 1401(b).

Defendant’s second trial, on one count of possession of a controlled substance, one gram of heroin, with intent to deliver and one count of delivery of a controlled substance, 24.47 grams of heroin, a Class X felony (Ill. Rev. Stat. 1983, ch. 56V2, par. 1401(a)), resulted from his arrest in April 1985, while he was on bond on the January offense. The trial court found defendant guilty of the delivery offense and the offense of possession of one gram of heroin.

At defendant’s sentencing hearing, the State recommended sentences of three years on the possession offense, resulting from defendant’s first trial, and seven years on the delivery offense, to be served consecutively to the former sentence. The State apparently based its recommendation of consecutive sentences on section 5 — 8— 4(h) of the Unified Code of Corrections (Code), which provides that any sentence imposed upon conviction of a felony committed while on bond on a prior felony charge “shall be” consecutive to any sentence imposed upon conviction for the prior felony. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4.) After defense counsel pointed out that section 5 — 8—4(h) was not effective until September 1985, the State recommended that defendant be sentenced to three years on the possession offense and a concurrent 10 years on the delivery offense. The trial court sentenced defendant to two years on the possession offense and a concurrent 10 years on the delivery offense.

On appeal, defendant asserts that the 10-year sentence on the delivery offense violated the Federal constitutional bar against ex post facto laws applicable to the States (U.S. Const., art. I, §10). Defendant asserts that the trial court patently imposed that sentence only because it could not sentence him to seven years on the delivery offense to be served consecutively to the three-year sentence on the possession offense recommended by the State. Because the 10-year sentence achieved the result the sentences originally recommended by the State would have achieved, defendant concludes that the trial court indirectly applied section 5 — 8—4(h) retroactively in imposing that sentence.

We cannot agree with defendant’s characterization of the record in this case. Nothing in the transcript of the sentencing hearing supports the conclusion that the trial court imposed the sentence appealed from because it could not accept the State’s original sentencing recommendations. Defendant notes that the trial court asked the State whether it was withdrawing its recommendation of a consecutive sentence after defense counsel asserted that section 5 — 8— 4(h) was inapplicable to defendant’s case. Therefore, defendant ¿sserts, the trial court patently relied on and was guided by the State’s recommended sentence on the delivery offense.

Defendant’s conclusion is a non sequitur. The fact that the trial court asked the State whether it was withdrawing its original recommendation of a consecutive sentence in nowise reveals that it relied upon the State’s second recommendation as to the length of the sentence on the delivery offense. The fact that the trial court never indicated at the sentencing hearing, prior to the State’s withdrawal of its original recommendations, that it was inclined to or would follow those recommendations contradicts defendant’s argument. Also militating against his argument is the fact that the trial court did not explicitly or implicitly accept the State’s recommendation of a three-year sentence on the possession offense.

However, even assuming that the trial court did accept the State's second recommendation as to the sentence on the delivery offense, we do not find that the trial court thereby violated the prohibition against ex post facto laws. As both parties note, the cornerstone of the constitutional prohibitions against such laws is that persons have a right to a fair warning of the conduct which will give rise to criminal penalties and what those penalties will be. People v. Coleman (1986), 111 Ill. 2d 87, 93-94, 488 N.E.2d 1009.

For delivering 24.47 grams of the controlled substance of heroin, a Class X felony, defendant could have been sentenced to anywhere from 6 to 30 years, as defense counsel conceded at the sentencing hearing. This penalty, unlike section 5 — 8—4(h), was in effect at the time of defendant's commission of that offense. (Ill. Rev. Stat. 1983, ch. S&k, par. 1401; Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8— 1.) Defendant therefore had fair warning of the criminal penalty to which his conduct was subject. The mere facts that, within the 6- to 30-year range, the trial court decided to sentence defendant to 10 years and that the sentence accomplished the same result as the State’s original sentencing recommendations do not compel the conclusion that the trial court decided upon that sentence for the improper purpose of accomplishing the result which application of section 5 — 8—4(h) would have achieved.

Moreover, section 5 — 5—3.2(aX10) of the Code (El. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2) allowed the trial court to consider as an aggravating factor defendant’s commission of the Class X felony of delivery while on bond on the Class 2 felony charge of possession with intent to deliver. Subsection (aX10) to section 5 — 5—3.2 was added by Public Act 83 — 1449, effective September 17, 1984. Defendant therefore also had fair warning that his commission of the delivery offense, while on bond on the possession offense, could subject him to more than the statutory minimum of six years for commission of the delivery offense. This conclusion leads us to defendant’s first alternative argument.

Defendant asserts that the trial court might have properly decided that the sentence on the delivery offense should be seven years, as recommended by the State, plus an additional number of years representing the possession charge, in recognition of defendant’s commission of the former felony while on bond on the latter, an aggravating factor under section 5 — 5—3.2(aX10). However, defendant argues, that additional number of years was limited to the two years the trial court ultimately found to be the appropriate sentence on the possession offense, not the three years originally recommended by the State. Defendant concludes that, in adding three years to the sentence on the delivery offense, the trial court unduly emphasized section 5 — 5—3.2(aX10) and thereby abused its discretion.

We find nothing in the record to support defendant’s assertion that the trial court decided upon the length of the sentence on the delivery offense by adding to an underlying sentence for that offense an additional number of years to represent the possession offense committed while on bond.

Moreover, section 5 — 5—3.2(aX10) allows a trial court to consider the commission of one felony while on bond for another as an aggravating factor in imposing sentence upon conviction of the later felony. It does not, as defendant’s argument assumes, allow a court, in consideration of the aggravating factor, to add a sentence imposed on the earlier felony to the sentence imposed upon the later felony. Otherwise, a trial court could punish the same offense twice. As a trial court does not have such authority, it would be illogical for a court of review to hold that the trial court abused its discretion in exercising that authority.

Lastly, defendant contends that the 10-year sentence was also an abuse of discretion because he was a first-time offender with excellent prospects for rehabilitation. He concludes that he was entitled to the six-year minimum and that no more than one additional year should have been added thereto for his commission of one felony while on bond for another.

Contrary to defendant’s argument, a trial court is not required to give rehabilitative potential more weight than it gives the seriousness of an offense in its sentencing decisions. (People v. Burke (1987), 164 Ill. App. 3d 889, 518 N.E.2d 372; People v. Bunch (1987), 159 Ill. App. 3d 494, 512 N.E.2d 748.) As such, we believe the trial court properly exercised its discretion in sentencing defendant.

Specifically, we do not find that, as defendant implies, the trial court was per se required to impose the six-year minimum for a Class X felony because he was a first-time offender. That fact is no more than a mitigating factor which the trial court is to consider along with all other mitigating and aggravating factors. Ill. Rev. Stat. 1985, ch. 38, pars. 1005-5-3.1, 1005-5-3.2.

Moreover, while age is a factor to be weighed in sentencing (see, e.g., People v. Bunch (1987), 159 Ill. App. 3d 494, 512 N.E.2d 748), defendant’s age, 30, at the time of his offenses, was not so youthful as to be accorded great weight as a mitigating factor. Compare People v. Kindelan (1986), 150 Ill. App. 3d 818, 502 N.E.2d 422 (37-year-old defendant), with People v. Anderson (1985), 142 Ill. App. 3d 240, 488 N.E.2d 557 (17-year-old defendants), and People v. Steffens (1985), 131 Ill. App. 3d 141, 475 N.E.2d 606 (16-year-old defendant).

Neither did the trial court abuse its discretion in giving defendant’s employment history and educational background less weight than it gave the fact which they revealed, i.e., that defendant did not come from a disadvantaged background. That is, the trial court properly considered that fact as militating in favor of a greater rather than lesser sentence. The trial court could properly have inferred from defendant’s well-paid employment history and his post-secondary education that his offenses were less the result of negative social forces and influences than of personal choice. It thus could have properly concluded that his background revealed less rehabilitative potential than incorrigibility.

In the final analysis, we will not substitute our judgment for that of the trial court by balancing the appropriate sentencing factors differently than that court. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

For all of the foregoing reasons, we affirm defendant’s sentence of 10 years’ imprisonment for the offense of delivery of a controlled substance.

Affirmed.

McNAMARA and WHITE, JJ., concur.


author: JUSTICE WHITE

text:
    GERALD RUFFINO, Indiv. and as Adm’r of the Estate of Anthony Paul Ruffino, Deceased Minor, et al., Plaintiffs, v. RICHARD HINZE et al., Defendants (Chicago Park District, Defendant and Counterplaintiff-Appellant; Richard Hinze, Defendant and Counterdefendant-Appellee).
    First District (3rd Division)
    No. 1—87—3424
    Opinion filed March 29, 1989.

      Glessler, Flynn, Laswell, Fleischmann, Hughes & Socol, Ltd., of Chicago (Terence E. Flynn and William P. Jones, of counsel), for appellant.
    Victor J. Piekarski and Ellen B. Dorf, both of Querrey & Harrow, Ltd., of Chicago, for appellee.
    Harvey L. Walner & Associates, Ltd., of Chicago (Andrea Mayster Levin, of counsel), for amicus curiae.

   JUSTICE WHITE

delivered the opinion of the court:

On September 9, 1985, three-year-old Anthony Ruffino drowned after a car owned by Richard Hinze, his maternal grandfather, rolled into Lake Michigan from the Chicago Park District’s Montrose Harbor sailboat storage area. Anthony’s parents, Gerald and Pamela Ruffino, filed suit against the Chicago Park District (District) and Richard Hinze, alleging that their negligence was the cause of Anthony’s death. The District filed a counterclaim against Hinze alleging that his negligence was the major and proximate cause of the accident. Subsequently, the Ruffinos and Hinze entered into a settlement agreement under which Hinze agreed to pay $157,500 in exchange for a release discharging him from all liability for Anthony’s death. One hundred thousand dollars of the amount offered in settlement represented the limits of Hinze’s personal automobile insurance policy with Zurich-American Insurance Co. The remaining $57,500 was offered by Western American Insurance Co., under Hinze’s homeowner insurance policy. This policy had a $300,000 limit per occurrence; however, Western American was contesting its liability to Hinze and had filed an action in Federal court seeking a declaration that the policy was not applicable to the accident. Western American and Hinze agreed that if the settlement offer was accepted and found to be in good faith, the Federal action would be dismissed.

The District opposed the settlement with Hinze, arguing that the absence of “meaningful” discovery in the record precluded the court from determining the relative liabilities of the parties and the existence of good faith. After hearing arguments, the court entered an order finding that the settlement was fair, reasonable, and proper and Hinze was dismissed from the action. The District appeals from the trial court’s order on the ground that Hinze failed to establish that the settlement was made in good faith. The District argues that there was insufficient data upon which to base a finding of good faith and that the trial court’s finding of good faith was not supported by the facts.

Section 2 of the Contribution Among Joint Tortfeasors Act (Act) (Ill. Rev. Stat. 1985, ch. 70, par. 302) provides that where two or more persons are subject to liability in tort arising out of the same wrongful death, there is a right of contribution among them. Section 2 also provides that a tortfeasor to whom a release or covenant not to sue is given in good faith is discharged from all liability for any contribution to any other tortfeasor.

The Act does not define good faith. However, the Illinois Supreme Court has stated that when determining whether an agreement was entered into in good faith, courts must take into account the entire circumstances surrounding the settlement. (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 499 N.E.2d 1373.) Where a preliminary showing of good-faith settlement is made, a presumption of validity arises. (Wasmund v. Metropolitan Sanitary District (1985), 135 Ill. App. 3d 926, 482 N.E.2d 351; Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 478 N.E.2d 581.) Once the preliminary showing has been made, the burden shifts to the party opposing settlement, who must prove by clear and convincing evidence that the settlement is invalid. (McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 515 N.E.2d 157; O’Connor v. Pinto .Trucking Service, Inc. (1984), 149 Ill. App. 3d 911, 501 N.E.2d 263; Wasmund v. Metropolitan Sanitary District, 135 Ill. App. 3d 926, 482 N.E.2d 351; Barreto v. City of Waukegan, 133 Ill. App. 3d 119, 478 N.E.2d 581.) In the present case, the trial court concluded that the District had failed to meet this burden. We agree with the court’s conclusion.

The District argues that it should not be required to produce clear and convincing evidence that the agreement was invalid because Hinze failed to meet his preliminary burden of establishing good faith. The District points out that the purpose of the Act is to encourage settlements and to make an equitable apportionment of damages. (See Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792.) The District also points out that at the time the Ruffinos’ petition to dismiss Richard Hinze was filed, the record contained only the initial pleadings, the Ruffinos’ answers to interrogatories, and Hinze’s responses to the District’s request to admit facts. The District contends that the small amount of discovery material in the record and the trial court’s failure to hold an eviden-tiary hearing made it impossible to determine the relative liabilities of the parties or whether the settlement resulted in an equitable sharing of damages. The District claims that without such a determination, the trial court could not find that Hinze had met his burden of making a preliminary showing of good faith. We disagree.

In Bituminous Insurance Cos. v. Ruppenstein (1986), 150 Ill. App. 3d 402, 501 N.E.2d 907, this court noted that the presumption of validity is created whenever there is a resolution of a claim by virtue of a release or covenant. There, we concluded that because the trial court was advised by the pleadings of the time, place, and circumstances of the accident and had before it affidavits stating that the settlement was a reasonable one, the trial court erred in finding that a preliminary showing of good faith had not been made. (150 Ill. App. 3d at 405.) In addition, in Barreto v. City of Waukegan, a written motion to dismiss that stated that a settlement had been made in good faith was held sufficient to make the preliminary showing.

In the present case, as in Ruppenstein, the trial court had before it the parties’ pleadings, setting forth the facts surrounding the accident. The court also had before it the Ruffinos’ affidavit and motion to dismiss, which stated that a good-faith settlement in a fair and reasonably proper amount had been reached through good-faith negotiations with Richard Hinze. We believe that this was sufficient to make a preliminary showing of good faith.

The District urges us to follow the lead of California, where the courts after initially rejecting a test of good faith based on the possible final award now have adopted a “reasonable range” test, which focuses on considerations such as the plaintiffs probable recovery and the settlor’s proportionate liability. (See Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985), 38 Cal. 3d 488, 698 P.2d 159, 213 Cal. Rptr. 256.) The District argues that because the Illinois and California contribution statutes are similar and because Illinois courts referred to California case law in their decisions rejecting the “ratio of settlement to final award” test, Illinois courts now should follow California case law in adopting the “reasonable range” test. Again we disagree.

Under Tech-Bilt, Inc. v. Woodward-Clyde & Associates, California courts consider a number of factors in determining good faith, placing emphasis on whether the settlement is within the range of the settlor’s share of liability for the plaintiff’s injuries. Illinois courts, which have adopted the totality of the circumstances test, have not been persuaded by the argument that there cannot be a determination of good faith unless there is a showing of the relative liabilities of the parties and have refused to place emphasis on any one factor as being determinative of good faith. (See Barreto v. City of Waukegan, 138 Ill. App. 3d 119, 478 N.E.2d 581; Lowe v. Norfolk & Western Ry. Co., 124 Ill. App. 3d 80, 463 N.E.2d 792.) We believe this is the better approach and we decline to follow California’s lead in foe-using on relative liabilities and possible outcomes to the pending litigation.

Applying the totality of the circumstances test to the present case, we find that there was a sufficient basis for the trial court’s finding of good faith. Hinze’s $157,500 settlement offer represented the full amount of his $100,000 automobile insurance policy, plus $57,500 offered under his homeowner’s insurance policy. The offer of $57,500 was conditional, and at the time of the hearing on the Ruffinos’ motion to dismiss Hinze, the. insurer was contesting its liability in a pending Federal court action. In light of these facts, we find that the trial court did not err in finding that the settlement offer was made in good faith.

The District’s remaining arguments concern the failure of the trial court to hold an evidentiary hearing on the question of good faith. The District argues that the trial court’s refusal to conduct an evidentiary hearing was reversible error and in violation of the District’s due process rights.

Initially, we note that the District failed to raise its constitutional argument in any of its pleadings before the trial court. Therefore, we find that the argument has been waived. See Lorenz v. Air Illinois, Inc., 168 Ill. App. 3d 1060, 522 N.E.2d 1352.

Further, the question of what is required before a finding of good-faith settlement may be made is left to the discretion of the trial court. (Dixon v. Northwestern Publishing Co., 166 Ill. App. 3d 745, 520 N.E.2d 932; Lowe v. Norfolk & Western Ry. Co., 124 Ill. App. 3d 80, 463 N.E.2d 792.) Illinois courts have held repeatedly that a separate evidentiary hearing is not required before a court may find that a settlement was made in good faith. Lorenz v. Air Illinois, Inc., 168 Ill. App. 3d 1060, 522 N.E.2d 932; Perez v. Espinoza (1985), 137 Ill. App. 3d 762, 484 N.E.2d 1232; Barreto v. City of Waukegan, 133 Ill. App. 3d 119, 478 N.E.2d 581; Lowe v. Norfolk & Western Ry. Co., 124 Ill. App. 3d 80, 463 N.E.2d 792.

In the present case, the trial court reached its decision after considering the pleadings, motions, and affidavits of the parties and after hearing extensive arguments. This was an appropriate method for determining good faith (Lorenz v. Air Illinois, Inc., 168 Ill. App. 3d 1060, 522 N.E.2d 932; McKanna v. Duo-Fast Corp., 161 Ill. App. 3d 518, 515 N.E.2d 157; Bituminous Insurance Cos. v. Ruppenstein, 150 Ill. App. 3d 402, 501 N.E.2d 907; Barreto v. City of Waukegan, 133 Ill. App. 3d 119, 478 N.E.2d 581), and the trial court did not err in refusing the District’s request for an evidentiary hearing.

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

Affirmed.

FREEMAN, P.J., and RIZZI, J., concur.

      We note that the question of whether additional materials are necessary to make a finding of good faith is addressed to the trial court’s discretion. (See Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 520 N.E.2d 932; Lowe v. Norfolk & Western Ry. Co., 124 Ill. App. 3d 80, 463 N.E.2d 792.) Here, the trial court refused to order further discovery and based its decision on the materials before it at the time of the hearing. We find no error or abuse of discretion in the trial court’s action.
      The District cites a number of Illinois cases in which the trial courts found good-faith settlements and argues that in those cases the settlements came on the eve of trial and after years of pretrial discovery. (Ballweg v. City of Springfield, 114 Ill. 2d 107, 499 N.E.2d 1373; Lorenz v. Air Illinois, Inc. (1988), 168 Ill. App. 3d 1060, 522 N.E.2d 1352; McKanna v. Duo-Fast Corp., 161 Ill. App. 3d 518, 515 N.E.2d 157; O’Connor v. Pinto Trucking Service, Inc., 149 Ill. App. 3d 911, 501 N.E.2d 263; Doellman v. Warner & Swasey Co. (1986), 147 Ill. App. 3d 842, 498 N.E.2d 690; Wasmund v. Metropolitan Sanitary District, 135 Ill. App. 3d 926, 482 N.E.2d 351; Barreto v. City of Waukegan, 133 Ill. App. 3d 119, 478 N.E.2d 581; Lowe v. Norfolk & Western Ry. Co., 124 Ill. App. 3d 80, 463 N.E.2d 792; Pell v. Victor J. Andrew High School (1984), 123 Ill. App. 3d 423, 462 N.E.2d 858.) We have reviewed these cases and have failed to find one in which the trial court based its decision on the stage of the proceedings or on the amount of discovery in the record. Several of the cases (Ballweg, Barreto, and Pell) state only that the settlement was made “prior to trial,” a statement which could be applied to the present case, and only one case (Lowe) mentions the amount of discovery engaged in prior to settlement. Thus, we find no merit to the District’s claim that the lack of discovery precludes a finding of good faith.

      Under the “reasonable range” test of Tech-Bilt, Inc. v. Woodward-Clyde & Associates, which the District urges us to adopt, the insurance policy limits of settling defendants is one of the factors considered in determining good faith.


author: JUSTICE WOODWARD

text:
    DELORES BEDDLA, Plaintiff-Appellant, v. TRACY WILKINS, Defendant-Appellee.
    Second District
    No. 2—88—0407
    Opinion filed April 20, 1989.

      David A. Decker and Scott B. Gibson, both of David A. Decker & Associates, Ltd., of Waukegan, for appellant.
    Deidre B. Derrig, Robert Marc Chemers, and Michael G. Bruton, all of Pretzel & Stouffer, Chartered, of Chicago, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court;

Following an automobile accident, plaintiff, Delores Beddla, filed a one-count complaint alleging negligence against the defendant, Tracy Wilkins. At trial, following the completion of the plaintiff’s case, the trial court directed a verdict in favor of the plaintiff on the issue of whether the defendant had exercised reasonable care in operating her vehicle. The jury then returned a verdict in favor of the defendant on the issue of damages. Plaintiff appeals, raising the following issues: (1) whether the jury’s verdict is contrary to the manifest weight of the evidence; (2) whether the trial court erred in the giving and/or the refusal to give certain jury instructions; and (3) whether the trial court erred in refusing to allow the testimony of one of plaintiff’s witnesses.

The facts surrounding the accident are not in dispute. On May 12, 1986, plaintiff’s vehicle was stopped at a red light. The vehicle behind plaintiff was also stopped for the red light. A vehicle driven by defendant struck the vehicle behind plaintiff’s vehicle which, in turn, was pushed into plaintiff’s vehicle. Immediately prior to the collision, defendant testified that she had been traveling at the posted speed limit, which was 35 miles per hour, or below it. When she noticed the car in front of her had stopped, she applied her brakes and downshifted. According to the defendant, the impact between her vehicle and the vehicle in front of her was very light. Kathryn D’Andrew, a passenger in the middle vehicle, described the impact between the vehicle she was in and plaintiff’s vehicle as very light.

Plaintiff testified that she was wearing a seat belt at the time of the impact. Upon impact, she was thrown into the seat belt, and her right shoulder twisted in the seat belt, brushing against the steering wheel. After a minute or two, she felt that something had happened to her right side. She got out of her vehicle and started to walk over to a policeman on the scene; her shoulder began to throb. She told the police officer that something had happened to her shoulder. She was taken from the scene of the accident by ambulance to Condell Hospital, where she was examined by a doctor in the emergency room, and X rays were taken. The doctor advised her that he did not see any new injury on the X ray of her shoulder, but he prescribed a mild pain medication and advised her to see her own physician. According to plaintiff, as a result of the accident on May 12, 1986, her right hand is numb, and she has an aching pain in her right shoulder and arm. Due to these conditions, she is unable to work and also is severely limited in her ability to perform even basic household tasks.

Much testimony was introduced regarding previous injuries suffered by the plaintiff. Plaintiff, as well as several of her doctors, testified about a series of prior injuries to the plaintiff's neck, back, shoulder, and right arm. Plaintiff testified that she had always had problems with her neck due to a fall down stairs in which she hit the back of her neck. The problem with her neck had never kept her from working. In 1983, she injured her right arm, neck, and shoulder while lifting chairs as part of her job as a school custodian. She did seek medical treatment for these injuries and was told not to lift anymore. She had pain in her neck, shoulder, and arm which she recalled did not last, as she did not take off any time from work for it. Plaintiff admitted that in 1983, she reported to Dr. Baehr, who was treating her, that she had had chronic neck and shoulder pain for years. At that time, she was also treated by a chiropractor.

Plaintiff testified further that on May 25, 1985, she was involved in an automobile accident in which she severely injured her shoulder. Her shoulder was completely dislocated, and she underwent surgery. She spent 18 days in the hospital. She was treated by her family physician, Dr. Bellucci, and by Dr. Baehr. Although Dr. Bellucci told her she should not return to work, plaintiff believed that he was “kidding” her. As recently as February 1987, plaintiff was having glass removed from her arm that was imbedded there as a result of the May 1985 accident, and some glass still remained in her arm.

According to plaintiff, she last saw Dr. Baehr in August 1985, at which time he released her from his care, telling her she could return to work but not as a school bus driver or a custodian due to the lack of strength in her arm.

Plaintiff admitted that her shoulder was not completely pain free following the 1985 accident. She did not recall seeing Dr. Baehr in January 1986, complaining of shoulder pain. She did see Dr. Peter Chhabria, a neurologist, and agreed to have neurological tests performed on her shoulder and arm four months prior to the May 1986 accident due to her'complaints of pain.

Plaintiff did not recall telling Dr. Bellucci in December 1985 that her right arm was constantly numb. She acknowledged, however, that if his records showed such a complaint, she would not disagree with his record. She did recall telling Dr. Bellucci in Jánuary 1986 that her right arm ached and was numb. Plaintiff did not recall telling Dr. Bel-lucci that she had a hard time driving, nor did she recall telling him on February 7, 1986, that the numbness was constant in her right arm. Finally, plaintiff did not recall telling Dr. Bellucci on May 7, 1986, five days prior to the instant accident that she was still suffering pain in her left shoulder.

Plaintiff further acknowledged that Dr. Bellucci had helped her obtain a handicapped parking sticker in January 1986. She stated, however, she only used it for parking when it was very cold. She denied having any problems with driving because of her arm.

Dr. James Baehr, a board-certified orthopedic surgeon, testified on behalf of plaintiff as follows. He is a board-certified orthopedic surgeon. Plaintiff was referred to him in June 1985 by her family doctor, Dr. Bellucci; she had been treated by Dr. Baehr previously. Plaintiff had been in an automobile accident and had dislocated the acromio-clavicular joint (the attachment of the collar bone onto the shoulder blade). The injury was of the most serious grade. Dr. Baehr performed surgery on plaintiff’s right shoulder and continued to see her for follow-up visits until she was released from his care in August 1985. At that time, Dr. Baehr was of the opinion that plaintiff was doing well, but he advised her not to return to work as a bus driver or a janitor but to seek a different type of work that would not require heavy use of her shoulder.

According to Dr. Baehr, his records indicated that in January-1986, plaintiff complained of pain in her shoulder, numbness around the shoulder and in her arm and hand. Dr. Baehr also noted diminished reflexes in both arms. Dr. Baehr did not see any reason for the increased pain in her shoulder, and therefore, he referred her to Dr. Peter Chhabria, a neurologist.

Dr. Baehr testified further that on May 13, 1986, plaintiff was seeing his partner, Dr. Thomas Baier, as a result of an automobile accident on May 12, 1986. New X rays did not show any change. Dr. Baier’s diagnosis was that plaintiff had suffered a contused right shoulder. Dr. Baehr continued to see plaintiff. Although her pain was better, she had intermittent weakness but that had preceded even her original accident. It was Dr. Baehr’s opinion that plaintiff was suffering from post-traumatic degenerative arthritis of the right acromio-clavicular joint aggravated by the automobile accident of May 12, 1986. It was further Dr. Baehr’s opinion that the aggravation was permanent and that plaintiff could not be gainfully employed due to the weakness and pain in her arm when she tried to use it for anything strenuous.

On cross-examination, Dr. Baehr testified that in January 1986, he suspected that plaintiff had a pinched nerve in her neck and cervical spondylosis, i.e., arthritis in the neck. Dr. Baehr acknowledged that plaintiff had complained of chronic neck and shoulder pain as far back as 1983, which likely meant she had degenerative arthritis as far back as 1983. Dr. Baehr also acknowledged that plaintiff’s complaints were very similar when he saw her on January 13, 1986, as they were on May 13, 1986, the day after a second automobile accident. As of August 1986, Dr. Baehr suspected a psychological element to plaintiff’s complaints. Apart from plaintiff’s subjective complaints of pain and her feeling of numbness and clumsiness, Dr. Baehr did not see any reason why plaintiff could not return to work.

Dr. Peter Chhabria, a board-certified neurologist, testified on behalf of plaintiff. He saw plaintiff initially on May 28, 1985, following the first automobile accident due to her complaints of headache, dizziness, and neck and right arm injuries. He next saw her on January 20, 1986, when she was referred to him by Dr. Bellucci because of her right arm and shoulder symptoms. She denied having any problem with her neck. Dr. Chhabria performed neurological diagnostic tests for nerve damage on plaintiff, which proved normal. He again saw plaintiff on June 23, 1986, due to her complaints of pain following the second automobile accident on May 12, 1986. Based upon a clinical impression, Dr. Chhabria diagnosed plaintiff as suffering from acute cervical sprain, possibly radiculopathy (a condition affecting the nerve roots as they come out of the spine). Dr. Chhabria then performed another somatosensory evoked potential test, the results of which were normal. On June 26, 1986, he did a second EMG (electromyelogram) and a nerve conduction study on plaintiff. He found the results of those tests to be abnormal and consistent with the finding of cervical radiculopathy and with plaintiff’s complaints of numbness and pain.

Dr. Chhabria testified that in his opinion, plaintiffs symptoms, complaints, and nerve injuries to her right side were related to the 1986 automobile accident. He believed that plaintiff’s condition of cervical radiculopathy had been aggravated by the May 1986 accident. His opinion was based, in part, on the abnormal result from the EMG test conducted after the accident of May 12, 1986.

Dr. Chhabria acknowledged that in January 1986, plaintiff had complained of pain and numbness in her right arm. He had diagnosed plaintiff’s condition as cervical radiculopathy in January 1986. Dr. Chhabria also acknowledged that plaintiff had complained to him of numbness in her arm, neck, and shoulder prior to the May 1986 accident.

Dr. James E. Devine, a clinical psychologist, testified on behalf of defendant as follows. He initially saw plaintiff on December 15, 1986, when she was treated at the Lake Forest Pain Clinic following the accident of May 12, 1986. Plaintiff underwent psychological testing at Dr. Devine’s direction to determine what course of treatment plaintiff should have. Plaintiff recited to Dr. Devine that she was feeling pretty good but had trouble sleeping. She was also attending physical therapy. He saw plaintiff on February 5, 1987. She had missed four physical therapy appointments and never gone back to physical therapy. She had also ceased taking her prescription, stating it made her feel groggy. He last saw plaintiff on February 12, 1987.

Dr. Devine explained that in some cases, there was a compensation factor which plays a role in a patient’s complaint of pain. He described the compensation factor as, “[B]y being involved in litigation, the sicker you are, the longer you are, the more financially you will prosper from the pain and suffering.” Dr. Devine was of the opinion that compensation was, in fact, playing a role in plaintiff’s complaints of pain.

On cross-examination, Dr. Devine stated that Dr. Davis, the staff neurologist at the pain clinic, could not find any objective basis for plaintiff’s complaints of pain, which he acknowledged was contrary to the finding of Dr. Chhabria. He believed plaintiff’s complaints of pain and never felt she was lying to him, nor did he diagnose her to be a classic malingerer. Dr. Devine further acknowledged that because they had been unable to determine the reason for the pain, did not mean the pain does not exist.

On redirect examination, Dr. Devine reiterated his statement that while plaintiff was not a classic malingerer, there were signs that compensation was playing a role in the pain and her responsiveness to treatment.

On re-cross-examination, Dr. Devine stated that he had reason to doubt that the pain was real to plaintiff.

Dr. Lloyd S. Davis, a board-certified neurologist, testified by way of evidence deposition as follows. He is affiliated with the Lake Forest Pain Clinic and examined plaintiff there on December 15, 1986. His impression after examining plaintiff was that she had a chronic pain syndrome involving the right arm and neck. He found that the objective neurological findings were essentially unremarkable, and he also felt that there was a large emotional overlay in her sensory examination.

Dr. Davis testified that he reviewed the same tests reviewed by Dr. Chhabria, and he did not believe that the second EMG performed after the May 1986 accident was abnormal. Based upon his interpretation of the tests and his examination of plaintiff, he thought the likelihood that plaintiff suffered from cervical radiculopathy was quite low, although he could not rule it out completely. Dr. David explained why he interpreted the EMG as normal and why the results did not lead to the diagnosis of cervical radiculopathy. From a neurological basis, he could not explain plaintiff’s complaints of pain. Finally, Dr. David testified that he suspected that psychological factors were playing a role in the production of plaintiff’s pain.

Dr. John Bellucci, plaintiff’s family physician, testified on behalf of the defendant as follows. He had treated the plaintiff since 1971. According to his records, he saw plaintiff on May 5, 1986, one week prior to the second automobile accident, at which time she complained of shoulder pain. On February 7, 1986, plaintiff had complained of constant numbness in her right arm. On January 7, 1986, plaintiff complained of numbness in her right arm and that her arm ached. Similarly, on December 9, 1985, the plaintiff complained that her right arm was constantly numb, that she had limitation of motion in her right arm and severe pain in the right shoulder. On November 25, 1985, plaintiff’s chief complaint to him was numbness in her right arm.

On cross-examination, Dr. Bellucci testified that he also treated plaintiff on other occasions during this time period for allergy problems. On those occasions, he did not note that she complained of pain in her shoulder.

On redirect examination, Dr. Bellucci stated that even though he did not note the complaints, each time plaintiff visited him, she complained of pain.

The jury returned a verdict in favor of the defendant. Following the denial of plaintiff’s post-trial motion, she filed the instant appeal.

Before we address the merits of this appeal, we call to the attention of counsel for the plaintiff that plaintiff’s brief is in violation of Supreme Court Rule 341(e)(4)(ii) (122 Ill. 2d R. 341(e)(4)(ii)) in that the brief does not contain the jurisdictional statement required by that supreme court rule in all appellants’ briefs filed August 1, 1988, and thereafter. Given the fact that plaintiff’s brief in this case was filed August 3, 1988, and that the requirement of a jurisdictional statement is a relatively new one and that our jurisdiction of this case is clear and not disputed, we do not elect to dismiss the appeal. However, we caution all appellate counsel that future such violations will be dealt with appropriately.

We now turn to the merits of plaintiff’s appeal.

Plaintiff’s complaint alleged that as a result of defendant’s negligence, she was injured. The essential elements of an action sounding in negligence are the existence of a duty of reasonable care owed to plaintiff by the defendant, breach of that duty, and injury proximately resulting from that breach. (Magnone v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 170, 176.) In the case before us, the trial court at the close of the plaintiff’s case directed a verdict in favor of the plaintiff on the issue of the duty owed to plaintiff by the defendant. The jury, however, still had to determine whether the breach of that duty was the proximate cause of plaintiff’s injuries. Before we can determine whether the determination of the jury on that point was against the manifest weight of the evidence, as claimed by plaintiff, we must review plaintiff’s claims of error to insure that all the evidence considered was competent. 126 Ill. App. 3d at 177.

Plaintiff contends that the trial court erred in failing to give the following jury instructions which were tendered by plaintiff:

“The court has ruled as a matter of law that the defendant is liable for any injury which may have proximately resulted from the occurrence. You need only decide what injuries to the plaintiff resulted from this occurrence and what amount of money will reasonably and fairly compensate the plaintiff for those injuries.” (See Illinois Pattern Jury Instructions, Civil, No. 23.01 (2d ed. 1971) (hereinafter IPI Civil 2d).) (We note that the first sentence of this instruction was given.)
“The plaintiff has the burden of proving each of the following propositions:
First, that the plaintiff was injured;
Second, that the negligence of the defendant was a proximate cause of the injury to the plaintiff.” See IPI Civil 2d No. A21.02 (Supp. 1986).
“One form of verdict is supplied with these instructions. After you have reached your verdict, fill in and sign the form of verdict and return it to Court. The verdict should be signed by each of you. You should not write or mark upon this or any of the instructions given to you by the Court.” (See IPI Civil 2d No. 45.01.)

Plaintiff also objects to the failure to give her instruction No. 14, which was the verdict form assessing the amount of plaintiff’s damages (See IPI Civil 2d No. A45.09 (Supp. 1986)). Plaintiff also objected to the giving of defendant’s instruction No. 4, which provided as follows:

“The plaintiff has the burden of proving each of the following propositions:
First, that the plaintiff was injured;
Second, that the negligence of the defendant was a proximate cause of the injury to plaintiff.
If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for plaintiff. On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.” See IPI Civil 2d No. A21.02 (Supp. 1986).

Interestingly enough, in his argument for a directed verdict on the issue of liability, plaintiff’s counsel stated:

“Now I know that the defendant is going to be contesting the amount of injuries from the collision but that has nothing to do with the actual liability. I think the Court can direct the verdict in my client’s favor and theoretically the jury could still come back with zero damages based on her arguments or upon the evidence after they have reviewed it.”

Plaintiff now argues on appeal that the only issue for the jury to decide was the amount of damages to be awarded plaintiff, not whether any damages should be awarded, relying, inter alia, on Exchange Na tional Bank v. Air Illinois, Inc. (1988), 167 Ill. App. 3d 1081, and Fisher v. Patel (1981), 93 Ill. App. 3d 694.

In Fisher, the jury was instructed that if it found from the evidence that plaintiff was not injured and/or that the conduct of defendant was the proximate cause of plaintiff’s injury, the verdict should be for the defendant by reflecting “zero” damages to the plaintiff. (93 Ill. App. 3d at 698.) The jury found the defendant liable but awarded no damages. While the reviewing court acknowledged that under certain circumstances the giving of a zero verdict instruction to the jury has been upheld, it stated:

“[W]here plaintiff’s evidence is not inconsistent, or contradictory, and proof of actual damages is corroborated by witnesses’ testimony, the giving of a zero verdict instruction results in error that is substantially prejudicial and affects the outcome of the trial necessitating reversal.” 93 Ill. App. 3d at 697.

In Exchange National Bank v. Air Illinois, Inc., the plaintiff’s decedent was killed in the crash of one of defendant’s aircraft. The defendant appealed the jury’s verdict awarding damages. One of the errors alleged by defendant was the refusal of the trial court to give that portion of IPI Civil 2d No. A21.02 (Supp. 1986) which instructed the jury to find for the defendant if any of the burden of proof propositions had not been proved. The jury was instructed that the plaintiff had the burden of proving the amount of pecuniary damage suffered by the decedent’s husband. The reviewing court held that since liability was not an issue and only damages were to be assessed, the instruction was not error as no defense verdict could have properly been rendered under the evidence presented at trial.

Both Fisher and Exchange National Bank are distinguishable from the case before us. Unlike in Fisher, the defendant here introduced medical evidence which tended to establish that plaintiff’s condition was the result of the 1985 automobile accident, as well as other prior physical problems. Further, in Exchange National Bank where it was undisputed that the decedent’s injuries which culminated in her death resulted from the airline crash, in the case before us, there was evidence that plaintiff’s injuries were the result of prior accidents. Finally, as the defendant points out, the jury in this case was not instructed that it could return a verdict for zero damages; rather, it was instructed that the plaintiff had the burden of proving that the defendant’s negligence proximately caused her alleged injuries and that if the plaintiff failed to meet that burden, the jury could find in the defendant’s favor.

In Rapp v. Hiemenz (1969), 107 Ill. App. 2d 382, the trial court, at the close of all the evidence, directed a verdict for the plaintiff on the issue of liability. The plaintiff there objected to instructing the jury on the issue of proximate cause and to submitting a verdict form which permitted the jury to find for the defendant and against the plaintiff. In finding no error in either the giving of the complained-of instruction or verdict form, this court stated as follows:

“The instructions complained of referred to the issue of proximate cause of the injuries. The trial court had clearly indicated, that in directing the issue on liability, it was doing so only on the issues of negligence and contributory negligence. Both the issues of proximate causation and damages were to remain for the determination of the jury. The approach may have been somewhat unique, but there was no misunderstanding by counsel or litigants with reference to what the court was doing. It was proper, and essential, under this approach, to instruct the jury relative to proximate cause as an issue in the case.
Because the issue of proximate cause of the injuries remained in the case, it was also proper to submit a verdict form which would have permitted the jury to have found for the defendant and against the plaintiff. Further, the fact that the jury did find for the plaintiff indicates that the plaintiff suffered no prejudice from the submission of this verdict form.” 107 Ill. App. 2d at 388.

Although the verdict was for defendant in this case, we are of the opinion that in view of the remark of plaintiff’s counsel, quoted above, there was no misunderstanding with regard to the effect of the directed verdict on the issue of negligence and that it was clear to all parties that a judgment for defendant was one of the possible verdicts the jury could return. We conclude, therefore, that the jury was properly instructed.

Next, the plaintiff contends that the trial court erred in refusing to allow the evidence deposition of Thomas Rudd, plaintiff’s former supervisor, to be read to the jury either as part of the plaintiff’s case in chief or as rebuttal evidence. Rudd was plaintiff’s supervisor from 1972 to 1985 up to and including the time after her first accident. Plaintiff maintains that one of the major issues in the case was her motivation to be able to work before and after the injuries she suffered in the May 1986 automobile accident. Plaintiff argues that she was prejudiced in not being allowed to present Rudd’s testimony, which would have confirmed that she was not a malingerer and was in fact motivated to work when she was physically able to do so, to contradict defendant’s allegations that plaintiff was not motivated to try to return to work after the May 1986 accident due to the lawsuit and the potential of financial gain.

We observe that plaintiff has failed to cite any authority in support of her position on this issue in violation of Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)). Therefore, the argument on this issue is waived. Rockford Memorial Hospital v. Schueler (1988), 167 Ill. App. 3d 358, 362.

Finally, plaintiff contends that the jury’s verdict is against the manifest weight of the evidence.

When considering whether a verdict is contrary to the manifest weight of the evidence, the reviewing court must view the evidence in the light most favorable to the appellee. (Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 529.) Resolution of contradictory testimony is not a function of the reviewing court, and even if there is conflicting evidence which is substantially equal on pertinent factual questions, the reviewing court cannot reevaluate the evidence and set aside a jury verdict merely because it could have reached a different conclusion. (Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713, 728.) It is the jury’s function to evaluate the weight of the evidence and to assess the credibility of the witnesses, and its findings will not be disturbed unless the verdict was palpably erroneous, the opposite verdict clearly compelled, or the findings appear to be unreasonable, arbitrary, and not based upon the evidence. 119 Ill. App. 3d at 728.

We have previously set forth in some detail the evidence in this case and, therefore, will not repeat the evidence here. We have carefully reviewed the entire record in this case, and on the basis of the test of review established above, we find that the verdict of the jury in this case is not against the manifest weight of the evidence.

The judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT, P.J., and NASH, J., concur.