author: JUSTICE REINHARD

text:
    JOSEPH MIRABELLA et al., Plaintiffs-Appellees, v. SAFEWAY INSURANCE COMPANY, Defendant-Appellant.
    Second District
    No. 82—552
    Opinion filed May 11, 1983.
    Paul Parker, of Parrillo, Weiss & Moss, of Chicago, for appellant.

      A. F. Mannina, of Marco & Mannina, of Downers Grove, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Safeway Insurance Company, appeals from a judgment of the circuit court of Du Page County, which awarded $400 each to plaintiffs, Joseph Mirabella and Lester Munson. Judgment was entered after a bench trial in which the court found defendant liable to plaintiffs for arbitrators’ fees incurred when plaintiffs, along with David Weiss, served as arbitrators in a dispute involving the uninsured motorist coverage of an insurance policy issued by defendant. The only issue defendant raises on appeal is whether plaintiffs have waived any right to recover their fees from defendant.

The insurance policy was admitted into evidence at trial. It provides, in part, as follows:

“Arbitration. If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount payable hereunder, then each party shall, upon written demand of either, select a competent and disinterested arbitrator. The two arbitrators so named shall select a third arbitrator, or if unable to agree thereon within 30 days, then upon request of the insured or the company such third arbitrator shall be selected by a judge of a court of record in the county and state in which such arbitration is pending. The arbitrators shall then hear and determine the question or questions so in dispute, and the decision in writing of any two arbitrators shall be binding upon the insured and the company, each of whom shall pay his or its chosen arbitrator and shall bear equally the expense of the third arbitrator and all other expenses of the arbitration.”

Plaintiffs testified on their own behalf at trial. Mirabella testified that he was an attorney and that he was selected .by the insured to act as an arbitrator under the above policy provisions. He stated that he served as an arbitrator in this matter and that he submitted a bill for his services in the amount of $600 to Munson,, with the understanding that the bill would be forwarded to defendant for payment.

Munson testified that he was an attorney appointed by the circuit court of Du Page County to act as the third arbitrator in this matter. David Weiss was selected as an arbitrator by the defendant. Munson testified that he served as an arbitrator and that he submitted a bill for his services in the amount of $600, along with the bill for $600 submitted by Mirabella, to defendant within 30 days of the arbitration award. He also testified that he drafted the arbitration award and submitted it to Mirabella and Weiss for their concurrence. The letter of award signed only by Mirabella and Munson awarded $6,600 to the insured and members of his family. No provision for arbitrators’ fees was in the award.

Both plaintiffs acknowledged that they had no contractual relationship with defendant. No other witnesses testified for either party.

The trial court, relying on Nickla v. Industrial Fire & Casualty Insurance Co. (1976), 38 Ill. App. 3d 927, 349 N.E.2d 644, held the portion of the policy arbitration clause which required the insured to pay part of the arbitrators' fees to be invalid, and awarded plaintiffs $400 each, the amount claimed in their complaint. Defendant maintains that the contract of insurance provided that the insured pay the fee of the arbitrator he selected, that defendant pay the fee of the arbitrator it selected, and that they each pay one-half of the fee of the third arbitrator. Thus, defendant contends that the circuit court’s judgment, which required defendant to pay all of the arbitrators’ fees, was improper.

Generally, if the provisions of an insurance policy are clear and unambiguous, they will be applied as written. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4, 429 N.E.2d 1203.) The provisions of this policy clearly provide that the insured and defendant must each bear the cost of his own arbitrator and that they must bear equally the cost of the third arbitrator. Thus, under the language of the policy, Mirabella, the arbitrator chosen by the insured, is not entitled to recover any portion of his fee from defendant, while Munson, the arbitrator chosen by the court, is only entitled to recover one-half of his fee from defendant.

Plaintiffs, however, contend that each of them is entitled to recover his entire fee from defendant because the provisions of the insurance policy requiring the insured to pay a portion of the arbitrators’ fees are invalid under the holding in Nickla v. Industrial Fire & Casualty Insurance Co. (1976), 38 Ill. App. 3d 927, 349 N.E.2d 644. In Nickla, the court held that such provisions dilute the mandatory uninsured motorist coverage required by section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 755a) and, therefore, are invalid. (38 Ill. App. 3d 927, 931, 349 N.E.2d 644.) However, even applying the Nickla holding to this case, plaintiffs would not be entitled to recover their fees from defendant.

Section 10 of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 110) states that:

“Unless otherwise provided in the agreement to arbitrate, the arbitrators’ expenses and fees, together with other expenses, not including attorney’s fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.”

In construing a statute, the intent of the legislature should be determined and given effect. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46, 429 N.E.2d 492.) The best means of ascertaining the legislature’s intent is to examine the statutory language, with the words of the statute being given their plain and ordinary meaning. Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 211-12, 443 N.E.2d 563.

The plain and ordinary meaning of the language of section 10 of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 110), is that arbitrators’ expenses and fees, together with other expenses incurred in the conduct of the arbitration, must be paid either as provided in the agreement to arbitrate or as provided in the arbitrators’ award. Thus, we believe the legislature intended that provision for payment of arbitrators’ fees must be made in either the agreement or the award. Therefore, we hold that where, under Nickla, the provisions of the agreement providing for the payment of arbitrators’ fees are invalid, provision for payment of the arbitrators’ fees must be made in the arbitrators’ award, in order for the arbitrators to recover their fees.

If, as plaintiffs argue, the policy provisions dealing with the payment of arbitrators’ fees here are invalid, then, in order for plaintiffs to recover, the arbitrators’ award must have made provision for the payment of arbitrators’ fees. The arbitrators’ award in this case did not provide for the payment of arbitrators’ fees. Thus, the plaintiffs are not entitled to recover their fees from defendant.

Plaintiffs make several arguments contending that the policy provisions remove the issue of arbitrators’ fees from the statute. However, the statutory requirement that provision for arbitrators’ fees be made in the award controls when, as plaintiffs argue, the policy provisions are invalid.

Plaintiffs also argue that the bill for arbitrators’ fees that Munson submitted to defendant after the award had been made was sufficient to entitle them to recover their fees from defendant, since no time was fixed, pursuant to section 8 of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 108), within which the award was required to be made. We do not consider this bill to meet the statutory requirement of section 10 (Ill. Rev. Stat. 1981, ch. 10, par. 110) that provision for arbitrators’ fees must be made in the arbitrators’ award. No application to modify or correct the award was made. (See Ill. Rev. Stat. 1981, ch. 10, par. 109.) Therefore, this bill does not provide plaintiffs a basis for recovery.

For the foregoing reasons the portion of the judgment of the circuit court of Du Page County in favor of Joseph Mirabella is reversed, and the portion of the judgment in favor of Lester Munson is modified to the amount of $200, as suggested in defendant’s prayer at the conclusion of its appellate brief.

Reversed in part and modified in part.

LINDBERG and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE PEEBLES, Defendant-Appellant.
    First District (2nd Division)
    No. 81—1247
    Opinion filed May 10, 1983.

      Frederick F. Cohn and Rodolfo Garcia, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Edward Barron, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

A jury convicted defendant of theft (Ill. Rev. Stat. 1979, ch. 38, pars. 16 — 1(a)(1), (b) (1)), and conspiracy to commit theft (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2), from which he appeals. He had been charged with obtaining $4,064.50 from State of Illinois warrants (checks) by filing fraudulent “circuit breaker” tax rebate applications, issued pursuant to the Senior Citizens and Disabled Persons Property Tax Relief Act. Ill. Rev. Stat. 1979, ch. 67V2, pars. 401 through 412.

The principal issues presented for review are whether: (1) other warrants from which defendant received proceeds, but which were themselves time-barred from prosecution, were properly admitted in evidence; and (2) the jury was properly instructed as to codefendant’s guilty plea testimony.

Defendant and Eva Brown were charged on May 5, 1980, in a 61-count indictment with having fraudulently obtained 50 State circuit breaker property tax rebate warrants between September 29, 1976, and June 30, 1977, totaling $10,793.43. The circuit court concluded that the 29 applications for tax relief allegedly filed by defendant constituted 29 separate transactions rather than one continuous transaction as the State contended. The State amended to reflect only those warrants cashed within the statute of limitations, namely, from June 14, 1977, to June 30, 1977 (surviving counts). The circuit court allowed the State to introduce in evidence the earlier time-barred warrants for the limited purpose of showing common scheme, design, intent, or other similar motives, “or any of the other reasons set forth in the cases.”

The State called 21 witnesses; the defense called none. The State’s evidence essentially showed the following: to qualify for circuit breaker tax relief, one must be 65 years old, or disabled and over 16 years of age; be a resident of Illinois both at the time of application and for the time period for which one seeks that assistance; have paid rent or property taxes during that period; and have an annual income of less than $10,000. The application forms required one’s name, address, social security number, date of birth, income, and amount of his property taxes or, if he were renting, the name and address of his landlord, the period of time he had been renting from him, and the amount he was paying. The original 50 circuit breaker applications which defendant had allegedly prepared with the foregoing information, and the warrants that were issued pursuant to them, were received in evidence.

Applications relating to the surviving counts were labeled exhibits 2A1 through 2A18 and those relating to the stricken counts were marked exhibits 3A1 through 3A32. Before the latter were introduced, the circuit court informed the jury that no charges had been brought against defendant in connection with them and admonished the jury that they could be considered only for the limited purpose of showing defendant’s knowledge, intent, motive, absence of mistake, or common design. Certain warrants marked exhibits 4B1 through 4B18 were issued pursuant to those applications previously marked 2A1 through 2A18, relating to surviving counts; warrants marked exhibits 5B1 through 5B32 related to stricken applications marked exhibits 3A1 through 3A32. Before admitting the latter series of can-celled warrants into evidence, the circuit court again admonished the jury as to the limited purpose for which they were being admitted. Each warrant bore the applicant’s name, address, social security number and a specific dollar amount, and had been returned cancelled, the amounts specified having been debited from the State’s accounts. Almost none of the names and social security numbers entered on the earlier series of applications matched; some of the social security numbers had not yet been issued by the Federal government.

Brown and her fiance, Johnny Isabel, had opened a joint checking and a joint savings account on June 12, 1976, at La Grange State Bank. Exhibit 15 was a deposit ticket copy processed June 29, 1977, showing a net deposit of $2,400 into Brown and Isabel’s checking account that day. Warrants 4B1 through 4B11 bore the bank’s stamp indicating payment of the funds involved. All these warrants were processed at the same time and constituted the exhibit 15 deposit. Exhibit 16 was a deposit ticket copy processed July 12, 1977, in the amount of $1,050.63, credited to Brown and Isabel’s savings account when exhibits 4B12, 4B13 and 4B14 were presented for payment that day and matched the amounts stated on those warrants. A series of other deposit slip copies marked exhibits 18 through 27 were matched with a number of warrants that had been presented for payment and credited to one or the other of Brown and Isabel’s joint accounts, with the jury first having been admonished by the circuit court as to the limited evidentiary purpose involved.

Exhibit 36 was a business checking account signature card which defendant had signed at Union National Bank on behalf of Geno’s Tax and Information Center (Geno’s). Exhibit 37 was a similar card which defendant had signed at the same bank on behalf of Community Service and Information Bureau (Community). Exhibit 17 was a copy of a check for $1,200 drawn by Brown on the La Grange State Bank made payable to Ernest Parker which bore his endorsement and Community’s limited, “for deposit only” endorsement. The check was paid and credited to Community’s account. Exhibit 33 was a copy of a check for $100 drawn upon La Grange State Bank, signed by Brown and made payable to Community which was endorsed by Geno’s “for deposit only” and credited to the same account. Exhibit 34 was a copy of a check for $800 drawn upon La Grange State Bank, signed by Brown, payable to Community, endorsed by it, and credited to its account.

Witnesses testified with respect to unauthorized use of their names on rebate applications, improper addresses, losses of their wallets, unauthorized endorsements on tax rebate warrants, and in one case, the death of an applicant six years before the application was filed. One witness stated that defendant had come to her house four or five times. Defendant had called her before trial and told her not to testify against him.

Eva Brown testified that she owned and lived in a two-flat at 7342 South Harvard Street, Chicago, where she ran a senior citizens’ sheltered care home. She admitted receiving circuit breaker warrants, exhibits 4B1 through 4B11, which had been addressed to her sheltered care home. When she received them, she called defendant, who endorsed them. Brown then gave the checks to Isabel, who deposited them in one of their joint accounts at the La Grange State Bank. She wrote exhibit 17, a check for $1,200, payable to Ernest Parker, at defendant’s request and in his presence. She cashed warrants marked exhibits 4B15, 4B16, 4B17 and 4B18 at a local currency exchange because she received them on a Saturday, when banks were closed, and gave defendant half the money she received. She had been indicted for her part in these activities and been charged with theft and conspiracy to commit theft. She was to plead guilty and, in exchange for her testimony, the State’s Attorney’s office was to recommend that she receive probation rather than a jail sentence.

Before continuing, the circuit court again informed the jury that the evidence they were then about to hear was being admitted for the limited evidentiary purpose, which it detailed. Brown then explained that defendant suggested she fill out circuit breaker applications for six or seven senior citizens under her care. Two or three weeks later, after “her people” had received their warrants, defendant told her that he needed a mailing address for others. She permitted him to use her address in the hope that some of them would stay with her. Brown had seen warrants marked exhibits 5B1 through 5B32 before. Some she received through the mail and others defendant brought her. Defendant told her to open a bank account to facilitate their cashing, which she did. She always gave him half the money, sometimes in cash and other times by check. A few days before she was scheduled to testify, defendant told her not to testify against him; that if she did not, his trial would soon be over; and suggested that she get a new lawyer and ask for a jury trial herself.

On cross-examination, Brown admitted that she had been told by the State’s Attorney that she would be sentenced to from two to five years in the penitentiary for what she had done if she did not plead guilty and agree to testify against defendant.

Johnny Isabel, a fork-lift truck driver, testified he had known Brown for 15 to 20 years and she was his “lady.” He and she opened a joint checking and a joint savings account at the La Grange State Bank where he already had two savings accounts of his own. He never put any of his money into either joint account and withdrew money from them only when Brown asked. He signed several deposit slips and presented many checks for deposit on her behalf, in particular exhibits 4B12, 4B13 and 4B14. After the circuit court again instructed the jury as to the limited evidentiary purpose of the evidence to follow, Isabel testified that he had deposited many other checks for Brown, which he then identified.

James Piper, an assistant State’s Attorney, testified that on March 15, 1978, while he was supervisor of the Welfare Fraud Unit, defendant told him that he owned the Community Service and Information Bureau. Defendant consented to and signed a “permission to search” statement, exhibit 62, which authorized the search of his place of business and seizure of any letters, papers, or other property. Piper, accompanied by two policemen, seized and removed all defendant’s files containing circuit breaker applications. Exhibits 44 through 55 were copies of claim forms found in defendant’s files. They were paired with the originals that had been filed with the State and previously had been marked exhibits 2A1 through 2A14. Following the circuit court’s cautionary instruction as to evidentiary limitations, five other copies of claims, exhibits 56 through 61, found in defendant’s files, were received in evidence and matched with application exhibits relating to stricken counts. The State then rested.

Defendant’s motion for a directed verdict was denied. The parties stipulated that if a certain handwriting expert were called, he would testify that Brown had signed a certain warrant relating to one of the stricken counts. The defense then rested.

The jury found defendant guilty of theft and conspiracy to commit theft. On May 19, 1981, defendant’s motion for a new trial was denied. After hearing matters in aggravation and mitigation, the circuit court sentenced defendant to five years’ imprisonment, from which he appeals.

I

The principal point of error identified by defendant is that references to offenses for which prosecution was barred by the statute of limitations violated his due process rights; therefore, time-barred evidence should not have been submitted to the jury for any purpose. Defendant insists that the due process rights embodied in the statute of limitations override the long-standing evidentiary rule permitting evidence of collateral offenses to show knowledge, motive, intent, absence of mistake, or common plan. The first point to be observed in this connection is that the statute of limitations is not a rule of evidence, but a defense to prosecution. (United States v. Ashdown (5th Cir. 1975), 509 F.2d 793, 798, cert. denied (1975), 423 U.S. 829, 46 L. Ed. 2d 47, 98 S. Ct. 48.) Defendant’s reliance upon Toussie v. United States (1970), 397 U.S. 112, 25 L. Ed. 2d 156, 90 S. Ct. 858, and People v. Ross (1927), 325 Ill. 417, 156 N.E. 303, is also misperceived. As defendant concedes in his reply brief, neither Toussie nor Ross stand as authority for his proposition, nor is either case directly concerned with the issue articulated by him. As the following analysis demonstrates, references to previous offenses were not made for the purpose of convicting defendant of such previous offenses contrary to due process, but solely to inform the jury that the violations with which defendant was charged might bear a sufficient nexus with past conduct to permit the inference that coincidence, inadvertence, or accident was implausible or unlikely.

Complex and involved financial crimes are particularly susceptible to proof that a defendant has committed similar offenses, and such proof is admissible to show intent or guilty knowledge of the pending charges. (People v. Epping (1959), 17 Ill. 2d 557, 162 N.E.2d 366; People v. Smith (1960), 18 Ill. 2d 547, 552, 165 N.E.2d 333.) Although proof of other crimes is oftentimes held admissible because those crimes have been committed concurrently with the crime charged (People v. Epping; People v. Ernst (1923), 306 Ill. 452, 458, 138 N.E. 116; People v. Clark (1968), 104 Ill. App. 2d 12, 24-25, 244 N.E.2d 842), they are admissible as well when circumstances give rise to the inference that defendant must have intended to commit the crime or had knowledge that a crime was being perpetrated (People v. Ernst (1923), 306 Ill. 452, 458), among other reasons. Proof of similar circumstances may extend to evidence involving prior financial crimes which took place beyond the statute of limitations, as in the instant case. (People v. Clark (1956), 9 Ill. 2d 46, 137 N.E.2d 54, cert. denied (1957), 352 U.S. 1002, 1 L. Ed. 2d 546, 77 S. Ct. 559; People v. Miller (1917), 278 Ill. 490, 116 N.E. 131; People v. Toellen (1978), 66 Ill. App. 3d 967, 384 N.E.2d 480.) The rule is the same in other jurisdictions. United States v. Garvin (8th Cir. 1977), 565 F.2d 519; United States v. Hutul (7th Cir. 1969), 416 F.2d 607, 624, cert. denied (1970), 396 U.S. 1012, 24 L. Ed. 2d 504, 90 S. Ct. 573; McCluskey v. State (Okla. Crim. App. 1962), 372 P.2d 623, 631; Wilson v. State (1931), 184 Ark. 119, 41 S.W.2d 764.

In People v. Clark, decided by the supreme court, two indictments had been returned against defendant on May 3, 1954, charging him with larceny by embezzlement and another undisclosed charge. The alleged larceny took place on January 3, 1953, when defendant wrongfully converted the proceeds of a cashier’s check for his own use. At trial on September 13, 1954, the State introduced evidence tending to show other similar offenses, including one which occurred more than three years before the subject indictment and thus beyond the applicable statute of limitations. In upholding his conviction, the supreme court held (9 Ill. 2d 46, 56):

“Where a specific intent is an essential element of a crime and the prosecution must prove this specific intent in order to secure a legal conviction, evidence of similar acts committed by the accused, happening at or about the same time, is relevant and competent to show such intent. (People v. Popescue, 345 Ill. 142; People v. Folignos, 322 Ill. 304.) That such evidence proves or tends to prove an offense other than the one with which the accused is charged is never a valid objection to its admissibility. (People v. Spaulding, 309 Ill. 292.) Intent is a specific element of the crime of embezzlement. Consequently, proof of similar offenses is competent to show the intention of the defendant in the particular act of embezzlement charged in the indictment. (People v. O’Malley, 404 Ill. 165; People v. O’Connell, 386 Ill. 606; People v. Duzan, 272 Ill. 478.) Defendant argues that the similar acts proved here were too remote from a standpoint of time to be admissible or competent. All of said acts, however, occurred within a two-year period of time prior to the act of embezzlement for which defendant was tried.”

Here, defendant’s specific intent was an essential element of both the crime of theft (Ill. Rev. Stat. 1979, ch. 38, pars. 16 — 1(a)(1), (b)(1)), and the crime of conspiracy (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2). Further, the evidence established that: all the offenses took place between September 29, 1976, and June 30, 1977, a period of nine months; each offense involved the same victim, the State of Illinois; and each followed the scheme whereby defendant presented circuit breaker warrants bearing fictitious or unauthorized payees’ names to Brown, who, through bank and currency exchange procedures, obtained the funds which she then split with defendant. Those transactions by which defendant was alleged to have obtained funds from and after May 29, 1977, through June 30, 1977, were the subject matter of the 18 charged offenses. Those transactions which were alleged to have occurred between September 29, 1976, through May 29, 1977, were excluded from the charges, but constituted the collateral offenses to which reference was made in aid of proving the charged offenses. From these facts and circumstances, it is abundantly clear that evidence of other offenses which took place within nine months of the crimes with which defendant was charged were germane, competent and admissible and were not too remote in proving his culpability. Defendant’s due process rights were not violated by the utilization of other crimes evidence under the foregoing facts. See also Lisenba v. California (1941), 314 U.S. 219, 227-28, 86 L. Ed. 166, 177, 62 S. Ct. 280, 285-86, and United States v. Hutul (7th Cir. 1969), 416 F.2d 607, 624.

Defendant next contends that if such evidence were to be held admissible, its prejudicial impact far outweighed its probative value and that it was unnecessary for the purpose of establishing the elements of the offenses for which he was charged, relying upon People v. Butler (1975), 31 Ill. App. 3d 78, 334 N.E.2d 448. In Butler, the evidence of other crimes raised substantial collateral issues which could have confused the jury, a situation absent in the instant case. The determination of whether the prejudicial effect of the subject evidence outweighed its probative value was within the discretion of the circuit court. (People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056.) In addition, with each admission of collateral crimes evidence, the circuit court admonished the jury with respect to the limited use for which that evidence was being introduced, and instructed the jury to that effect at the conclusion of the trial. The evidence of which defendant complains was thereby properly and effectively limited by the circuit court for its intended purposes. No abuse of discretion therefor can be discerned.

The instruction to the jury with respect to the limited use for which the other crimes evidence was admitted is the basis for defendant’s next assertion of error, citing People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773, People v. Richards (1978), 64 Ill. App. 3d 472, 381 N.E.2d 307, and People v. Weathers (1974), 23 Ill. App. 3d 907, 320 N.E.2d 442, rev’d on other grounds (1975), 62 Ill. 2d 114. In each of the foregoing cases, the instruction was challenged as having been “open-ended” because the inclusion of purposes for which the evidence was received were not supported by the evidence and were therefore overbroad. In the case sub judice, the evidence of other offenses did indeed tend to establish defendant’s knowledge, motive, intent, common design and absence of mistake, which were also the words used in the circuit court’s repeated oral admonitions to the jury prior to the introduction of the evidence during the course of the trial. The admonitions were, therefore, proper and no error can be fairly attributed to their use. Assuming, arguendo, that the instruction was overbroad, no prejudice was evident since proof of defendant’s guilt was overwhelmingly established and retention of the excess verbiage cannot be said to have influenced the jury’s verdict. People v. Weathers (1974), 23 Ill. App. 3d 907, 913.

Because the time-barred offenses were characterized by the circuit court as “crimes,” defendant urges the reversal of his conviction, relying upon People v. Richards. At the time this case was tried, the Illinois Pattern Jury Instructions used the words “evidence of other crimes” (Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.14 (1968)), and the instruction therefore was properly given. Although the term “other offenses” is now deemed to be preferred (IPI Criminal No. 3.14 (2d ed. 1981)), error which occurred, if any, with respect to the instruction was harmless in light of the overwhelming evidence of defendant’s guilt and the unlikelihood that the objectionable word could have influenced the outcome of the case. See People v. Lieberman (1982), 107 Ill. App. 3d 949, 955, 438 N.E.2d 516, appeal denied (1982), 91 Ill. 2d 576.

II

Finally, error is urged by defendant in that the jury was not instructed that it could consider evidence of Brown’s guilty plea only in connection with assessing her credibility and not as substantive evidence of defendant’s guilt. Defendant did not object to Brown’s guilty plea, nor was this issue raised in his written motion for a new trial. Therefore, the issue is waived for appellate review. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233; People v. Cartalino (1982), 111 Ill. App. 3d 578, 588, 444 N.E.2d 662.) Further, defendant did not request that the jury be admonished with regard to the purposes for which the guilty plea was admitted and did not tender a jury instruction on this issue, which also constitutes waiver of any objection on review to the absence of such an instruction. (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331.) Defendant claims, however, that failure to give a limiting instruction on this issue constitutes plain error requiring reversal, citing authorities. The issue therefore must be examined from the standpoint of determining whether or not to apply the plain error rule to these facts. People v. Roberts; People v. Lieberman.

The State had the right to disclose on direct examination that Brown, a codefendant, had pleaded guilty in anticipation of defendant’s attack on her credibility as a witness; it was not required to wait for such evidence to be established by defendant on cross-examination. (People v. DeHoyos (1976), 64 Ill. 2d 128, 131, 355 N.E.2d 19; People v. Poliquin (1981), 97 Ill. App. 3d 122, 134, 421 N.E.2d 1362, appeal denied (1981), 85 Ill. 2d 572.) Moreover, IPI Criminal No. 3.17 was submitted to the jury, which provided:

“An accomplice witness is one who testifies that she was involved in the commission of a crime with the defendant. The testimony of an accomplice witness is subject to suspicion, and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.”

Because the jury was alerted to the posture in which Brown’s testimony was to be evaluated, any possible prejudice that could have arisen from her admission of guilt was minimized, if not entirely eliminated. The extensive evidence offered by the State in support of its charges against defendant constituted overwhelming evidence of his guilt and error, if any, in permitting Brown’s plea of guilt to be considered by the jury was harmless. No plain error emerged from the circuit court’s failure to instruct the jury further on this issue.

Defendant relies upon United States v. Halbert (9th Cir. 1981), 640 F.2d 1000, in support of his contention. In Halbert, two accomplices were the only witnesses to testify against defendant. They had pleaded guilty to their involvement in the mail fraud scheme for which defendant was being tried. Repeated reference to the guilty pleas was made during closing argument of both defense counsel and the prosecutor. Copies of the plea agreement were introduced in evidence. The district court’s failure to clearly instruct the jury as to the limited purpose for which their guilty pleas could be considered under these conditions required reversal and remandment for a new trial. Evidence of defendant’s guilt here was by no means limited to accomplice testimony as in Halbert, but was established through documentary evidence and testimony of 20 witnesses in addition to that given by Brown. To be noted here also was the State’s abstention from use of Brown’s guilty plea during the course of the trial and the absence of any reference to the plea in closing argument, unlike Halbert. Therefore, the prejudicial effect of Brown’s guilty plea in the instant case was minimal, if at all present, in contrast to Halbert.

For the foregoing reasons, there is no basis in the record upon which to disturb the jury’s verdict and defendant’s convictions. Accordingly, we affirm.

Affirmed.

DOWNING, P.J., and PERLIN, J., concur.

      Prior to trial, Brown pleaded guilty under an arrangement in which she agreed to testify against defendant in return for the State’s recommendation of probation.


author: PRESIDING JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS A. TESTA, Defendant-Appellant.
    First District (2nd Division)
    No. 82—392
    Opinion filed June 7, 1983.

      Sam L. Amirante, of Park Ridge, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Raymond Brogan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

Following a bench trial, defendant, Thomas A. Testa, was found guilty of attempt (rape). (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a).) The following post-trial defense motions were denied: (1) in arrest of judgment; (2) for a directed finding; (3) for a new trial; and (4) for a modification of the finding of guilt and a request for a finding of guilty but mentally ill. Defendant was sentenced to 15 years’ imprisonment.

The appeal presents the following issues: (1) whether the information charging defendant with attempt (rape) was fatally defective and therefore void; (2) whether the sufficiency of the information may be challenged for the first time by a post-trial motion; (3) whether defendant was proved guilty of attempt (rape) beyond a reasonable doubt; (4) whether the trial court abused its discretion by sentencing defendant to the maximum term of 15 years; and (5) whether the trial court erred when it denied defendant’s motion to modify the finding of guilt and refused to grant a hearing pursuant to section 5 — 2—6 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6), treating defendant as being guilty but mentally ill.

The facts elicited at trial show that on January 9, 1980, the 19-year-old victim was returning to her apartment in Chicago, Illinois, after visiting her mother. She was being dropped off at her apartment building by a friend when she noticed another car pull into the parking lot and a man get out. The man, later identified as defendant, held the door to the apartment budding as the victim passed and began a conversation with her as they entered the elevator. She pushed the elevator button for the second floor, and defendant indicated that he wanted the second floor. She exited on the second floor and was approaching her apartment door when grabbed from behind by defendant. Defendant spun her around and grabbed her by the throat, preventing her from screaming. She said: “He told me if I didn’t do what he said, he would kill me, and he told me to shut up.” She was told to lie on her back, which she did while defendant continued to hold her by the throat. Defendant unzipped her pants and ordered her to remove her pants and underwear from her right leg. Defendant began to lower his pants and got on top of her. Although she did not see defendant’s genitals, she could feel his skin against her.

As defendant made several attempts to kiss her, she managed to use a chemical defense spray on defendant which she carried in a leather pouch attached to her key chain. After being sprayed with the chemical, defendant got up and ran down the hall and out the stairway door. She could see that defendant’s pants were down to a point just above his knees. She went into her apartment and contacted a neighbor and the building security guards. Using a description of defendant and his car provided by the victim, the security guards apprehended defendant in the building parking lot and held him until police arrived. She identified defendant as the attacker when the Chicago police arrived. Defendant was then arrested.

The information charging defendant with the crime stated:

“*** on January 9, 1980 in Cook County, Illinois Thomas A. Testa a male person of the age of fourteen years and upwards committed the offense of attempt in that he, with the intent to commit the offense of rape attempted to compel one [name omitted] a female not the wife of said Thomas A. Testa to submit to an act of sexual intercourse by force and against her will, in violation of chapter 38, section 8 — 4 Illinois Revised Statutes ***.”

At the close of the State’s case in chief, defendant moved for a directed finding, arguing that the State failed to meet its burden of proof. The motion for a directed finding was denied. Defendant offered no defense. The trial court found defendant guilty of attempt (rape) and entered judgment on that finding.

Prior to sentencing, defendant filed a motion in arrest of judgment which challenged the sufficiency of the charging instrument, a motion for a new trial and a motion to modify the finding of guilt. Following argument, the motions were denied and defendant was sentenced to 15 years’ imprisonment.

I

Initially, defendant contends, as he did in his motion in arrest of judgment, that the information lacked the specificity necessary to charge him with attempt (rape) and was therefore fatally defective. It is well established in Illinois that where the sufficiency of a charge is attacked in a motion in arrest of judgment, the standard for determining whether the information is deficient is whether the elements of the offense are set out in the information as required by section 111 — 3(a) of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1981, ch. 38, par. Ill — 3(a); People v. Simmons (1982), 93 Ill. 2d 94, 99, 442 N.E.2d 891, citing People v. Lutz (1978), 73 Ill. 2d 204, 211, 383 N.E.2d 171.) Section 111 — 3(a) demands that the charging instrument be in writing, stating the name of the offense and the relevant statutory provisions violated; setting forth the nature and elements of the offense and the date and county in which the offense occurred, and naming the accused if known or a reasonably certain description. (See People v. Phelan (1981), 99 Ill. App. 3d 925, 929, 426 N.E.2d 925.) “Section 111 — 3 is designed to inform the accused of the nature of the offense with which he is charged so that he may prepare a defense and to assure that the charged offense may serve as a bar to subsequent prosecution arising out of the same conduct.” (People v. Simmons (1982), 93 Ill. 2d 94, 99-100.) An information which charges an offense in the language of the statute “is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged.” People v. Dickerson (1975), 61 Ill. 2d 580, 582, 338 N.E.2d 184, quoting People v. Patrick (1967), 38 Ill. 2d 255, 258, 230 N.E.2d 843.

Defendant relies upon our decision in People v. Mack (1974), 24 Ill. App. 3d 455, 321 N.E.2d 446. Mack is distinguishable due to its peculiar facts. The charging instrument in Mack was hand-written and was filed in court the day defendant was brought to trial. The charging instrument read as follows:

“ ‘[T]hat Leonard J. Mack has, on Sept. 22, 1968 at 5502 South Everette, Chi. Ill. committed the offense of Attempt-rape in that on September 22, 1968 the defendant gained entrance to the victim’s apartment. The defendant then awakened the victim *** who was asleep in her bed. He held a knife in his hand and told the victim that he wanted to suck her titties. He then got into the bed with the victim, holding the knife to her throat. He then fondled the victim. During this period of time the victim was able to dissuade the offender from having relations with her. Before leaving the apt. the defendant took from the victim $10.00 U.S.C. On Oct. 9, 1968 the defendant returned. The complainant called the police and the offender was arrested while fleeing from her apartment. In violation of Chapter 38 Section 8 — 4 Illinois Revised Statute and Against the Peace and Dignity of The People of the State of Illinois.’ ” (24 Ill. App. 3d 455, 458.)

That hand-written charging instrument clearly failed to meet the requirements of section 111 — 3. It was upon this document that defendant was convicted.

The State also submitted a “form” to the trial court in Mack for “attempt rape” which was read to the jury. The form, which was not in the record on appeal but was verbally set forth in the trial court proceeding, was:

“ ‘In essence, it says, “Leonard J. Mack, a male person of the age of 14 years and upwards committed the offense of attempt in that he, with the intent to commit the offense of rape, attempted to compel one ***, not the wife of said Leonard J. Mack, to submit to an act of sexual intercourse by force and against her will, in violation of Chapter 38, Section 8 — 4, of the Illinois Revised Statutes in 1967, contrary to the Statute, and against the peace and dignity of the same People of the State of Illinois.” ’ ” (People v. Mack (1974), 24 Ill. App. 3d 455, 458-59.)

We held that under the peculiar circumstances of the trial in Mack the charge was fatally defective. We also stated that the “form” language was sufficient to allege that Mack had the specific intent to commit the offense of rape. (People v. Mack (1974), 24 Ill. App. 3d 455, 459.) The peculiar and confusing record which existed in Mack does not exist in the instant case. To the extent that Mack disagrees with the supreme court’s decision in People v. Bonner (1967), 37 Ill. 2d 553, 562, 229 N.E.2d 527, cert. denied (1968), 392 U.S. 910, 20 L. Ed. 2d 1368, 88 S. Ct. 2067, we hold that the record in this case mandates our following Bonner. Based on the record in this case, Mack will not be followed.

Here, defendant was charged in the language of the statute with the elements of the offense: (1) attempt with the intent to commit rape and (2) a substantial step taken in that direction - the use of force against the complainant’s will. (People v. Bonner (1967), 37 Ill. 2d 553, 562.) The information was, therefore, sufficient to allow defendant to prepare his defense and to serve as a bar to future prosecution arising from the same conduct.

II

The State contends that defendant should not be allowed to challenge the sufficiency of the charging instrument after the pretrial stage of the prosecution, absent a showing of a violation of defendant’s constitutional rights. However, Illinois courts have consistently held that a challenge to the sufficiency of a charging instrument is not so limited. (People v. Lutz (1978), 73 Ill. 2d 204, 209, 383 N.E.2d 171, where the court explained that historically, a motion in arrest of judgment opened the entire record, reaching any defect apparent upon its face.) The State’s reliance upon People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437, in support of its contention is misplaced. The court in Pujoue did not establish a requirement that a constitutional violation must be shown in a post-trial challenge to the sufficiency of the charging instrument. The Pujoue court agreed that the requirements of section 111 — 3 must be complied with, subscribing to the standard of reviewing the sufficiency of a charging instrument as we have discussed in section I, above. People v. Pujoue (1975), 61 Ill. 2d 335, 339.

Ill

Defendant argues that his conviction cannot stand since the State failed to show beyond a reasonable doubt that he possessed the specific intent to have sexual intercourse with the victim. Defendant contends that there was no evidence that a substantial step was taken toward the commission of the act of rape.

In People v. Pitts (1980), 89 Ill. App. 3d 145, 147, 411 N.E.2d 586, as in this case, the pivotal issue was whether defendant intended to have sexual intercourse with the victim. The court in Pitts pointed out that the utterances and acts of defendant at the time of the incident must be analyzed to determine if he intended to have sexual intercourse with the victim. (People v. Pitts (1980), 89 Ill. App. 3d 145, 147.) Even though an attacker may seek sexual gratification from a victim, he may not be possessed with the intent to commit the specific offense of rape. (People v. Pitts (1980), 89 Ill. App. 3d 145, 147.) The court in Pitts determined that the circumstances did not establish such an intent since defendant made no overt movements toward the victim’s genital area; he was satisfied during the attack with his victim fully clothed and he remained fully clothed during the attack. Although Pitts threatened to kill the victim if she screamed, he made no reference to sexual intercourse.

However, the fact that defendant may not have performed a substantial step toward the completion of the rape will not preclude a finding by a court that he intended to commit rape. (People v. Tackett (1980), 91 Ill. App. 3d 410, 413, 414 N.E.2d 748.) Acts such as those performed by the defendant in the instant case have been found to support a conviction of attempted rape. (People v. Bonner (1967), 37 Ill. 2d 553, 562, 229 N.E.2d 527, cert. denied (1968), 392 U.S. 910, 20 L. Ed. 2d 1368, 88 S. Ct. 2067, where the court found defendant guilty of attempted rape in spite of the fact that he did not voice his intentions; see also People v. Hornbuckle (1972), 7 Ill. App. 3d 328, 331, 287 N.E.2d 294, where, the court concluded that defendant’s act of ripping off the victim’s halter top along with the defendant’s attempts to remove the victim’s shorts constituted a substantial step toward the commission of the offense.) Here, defendant’s intention to rape the victim was demonstrated by his actions and his commands. Defendant ordered the victim to remove her pants, touched her genital area and pulled his pants down, then attempted, to pull her pants off and ordered her onto her back. Defendant threatened to kill her if she did not obey him. He continued to choke her as he got on top of her. These facts establish beyond a reasonable doubt that defendant intended to rape the victim. To suggest otherwise is ludicrous. Our purpose is to insure that the record established that defendant knew the nature of the charges, received a fair trial and was guilty beyond a reasonable doubt. We are not to throw away our common sense when the record clearly demonstrates that the trial court’s finding of guilt is supported by the evidence beyond any reasonable doubt. See People v. Almond (1975), 31 Ill. App. 3d 374, 378, 333 N.E.2d 236.

IV

Defendant next contends that the trial court abused its discretion by imposing the maximum sentence for this conviction, 15 years. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(4).) Defendant argues that the severe sentence is inappropriate in light of the mitigating factors and defendant’s potential for rehabilitation. He does not contend the sentence violates any constitutional or statutory guidelines. It is well settled in Illinois that a sentence should be imposed so as to protect society from an offender while also providing for the possibility of his rehabilitation. (People v. Perruquet (1977), 68 Ill. 2d 149, 155, 368 N.E.2d 882.) The trial court is in a better position to assess the circumstances of each case and the appropriate sentence to be imposed. It is not the function of a court of review, absent an abuse of discretion, to substitute its judgment for that of the trial court merely because a different sentence could have been imposed. People v. Perruquet (1977), 68 Ill. 2d 149, 156.

Here, the record reveals that the sentence imposed was the result of thorough and reasoned judgment based upon the particular circumstances. The trial court felt that, in light of defendant’s character and past conduct, coupled with the seriousness of the present offense, he was a danger to the public. Based on our review of the record, we find no abuse of discretion by the trial court in sentencing defendant.

V

Finally, defendant urges that the trial court erred when it failed to modify its finding of guilt and to order a hearing regarding defendant’s mental condition, pursuant to section 5 — 2—6 of the Unified Code of Corrections. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6.

Initially, we note that defendant relies upon the provisions of section 68.1 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 68.1) in support for his motion to modify the finding of guilt. However, section 68.1 is not applicable to a criminal case. Section 1 of the Civil Practice Act provides that the Act applies to civil proceedings except those regulated by separate statute. Ill. Rev. Stat. 1981, ch. 110, par. 1.

Section 5 — 2—6 of the Unified Code of Corrections involves those cases where a defendant has entered a plea of guilty but mentally ill, or has been found guilty but mentally ill. Here, defendant did not enter such a plea, nor was he found guilty but mentally ill. Defense counsel explained during the sentencing hearing that, as a matter of trial strategy, an insanity defense was not presented. A pretrial examination had been conducted pursuant to section 104 — 13 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 104— 13), when it was determined that defendant was mentally fit to stand trial, to assist in his defense, and that he understood the nature of the charge against him. When defendant presented his motion to modify the finding of guilt, he also included extensive documentation regarding his psychiatric history. However, defendant did not present any authority in the trial court, or this court, to support his belief that the trial court should have proceeded in accordance with section 5 — 2—6. Additionally, defendant did not respond in his reply brief to the State’s contention that defendant’s motion was inappropriate under these circumstances.

We agree with the State’s position and have found no authority which would support defendant’s contention that he is among the class of persons intended by the legislature to invoke the procedures of section 5 — 2—6. Therefore, the trial court properly denied defendant’s motion to modify the finding of guilt.

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

Affirmed.

STAMOS and PERLIN, JJ., concur.

      The name set forth in the information is omitted in deference to the victim.


author: JUSTICE MILLS

text:
    GERALD HAZELWOOD, Plaintiff-Appellee, v. ILLINOIS CENTRAL GULF RAILROAD, Defendant-Appellant.—(Hudson Township, Defendant.)
    Fourth District
    No. 4—82—0424
    Opinion filed May 4, 1983.

      Roger D. Lapan and John N. Stevens, both of Bloomington, for appellant.
    G. Michael Prall, of Yoder, Yoder, Zanoni, Flynn, Prall & Willard, of Bloomington, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Railroad crossing — motorcycle accident — wilful and wanton allegation.

Jury verdict for plaintiff.

$30,000 compensatory, $170,000 punitive.

We affirm.

THE FACTS

On a warm spring evening, Gerald Hazelwood was returning, on Ms motorcycle, from an outing in the Lake Bloomington area. Accompanied by a friend on another motorcycle, Hazelwood was traveling toward Bloomington on Comlara Park Road. It was dark and the weather was clear. Both riders were using their headlights. Riding ahead of his friend, Hazelwood suddenly saw a set of cross-bucks marking a railroad crossing. Quickly he glanced both ways for a train and then looked ahead and saw a deep depression in the road at the crossing. He barely had time to touch his brakes before he hit the depression and flew into the air. When he landed, he suffered severe facial injuries.

Hazelwood brought suit against the Illinois Central Gulf Railroad and Hudson Township, where the crossing is located. He alleged that the railroad had negligently and wilfully and wantonly failed to maintain the crossing in a safe condition. At trial, he produced evidence to establish that the grade crossing where he was injured was located on a heavily traveled road; that the crossing was in an unsafe condition; and that the crossing had been in that condition for several years. Hazelwood also introduced evidence to show that the railroad knew of the condition of the crossing.

After hearing the evidence, the jury awarded Hazelwood $30,000 in compensatory damages and $170,000 in punitive damages against the railroad. The jury did not award any damages against Hudson Township. The trial court entered judgment on the jury’s verdict and the railroad appeals.

THE EXPERT TESTIMONY

First, the railroad argues that it was error for the trial court to admit a drawing of the crossing made by Hazelwood’s engineering expert. The railroad maintains that the admission of the drawing was cumulative and prejudicial because there were already pictures in evidence that clearly depicted the crossing.

The admissibility of evidence, such as photographs and drawings, is within the discretion of the trial court. The court’s exercise of that discretion will not be overturned unless there has been a clear abuse of that discretion. (Levenson v. Lake-to-Lake Dairy Cooperative (1979), 76 Ill. App. 3d 526, 394 N.E.2d 1359.) Also, and more specifically, the introduction of cumulative evidence is largely a matter within the discretion of the trial court. (Ross v. Pfeifer (1976), 39 Ill. App. 3d 789, 350 N.E.2d 797.) There is nothing in the record which indicates to us that the trial court abused its discretion by admitting the drawing into evidence.

Furthermore, even if the trial court had erred by admitting the drawing, the railroad waived that error by failing to make the specific objections it now raises when the drawing was offered into evidence (DeMarco v. McGill (1948), 402 Ill. 46, 83 N.E.2d 313) and by failing to include those objections in its post-trial motion. Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 424 N.E.2d 1279.

Next, the railroad argues that it was error for the trial court to allow Hazelwood’s engineering expert to testify about the condition of the railroad ties and spikes in an area 100 feet on either side of the crossing. The expert testified that the poor condition of the rails on both sides of the crossing had a direct effect on the poor condition of the crossing itself. Because the condition of the rails on either side of the crossing was a relevant fact, it was properly admitted to support the expert’s opinion that the crossing was hazardous. Marut v. Costello (1966), 34 Ill. 2d 125, 214 N.E.2d 768.

The railroad also argues that it was error to allow the engineering expert to testify on redirect as to whether the crossing met Illinois Commerce Commission (ICC) standards. The railroad itself raised the issue of compliance with the ICC standards. During its cross-examination of the expert, the railroad asked specifically whether the expert had investigated the crossing in order to determine whether it violated the applicable ICC regulations. The railroad cannot complain on appeal about the expert’s testimony when the railroad itself began that line of questioning during its cross-examination of the expert. Johnson v. Ward (1972), 6 Ill. App. 3d 1015, 286 N.E.2d 637; Smith v. Illinois Valley Ice Cream Co. (1959), 20 Ill. App. 2d 312, 156 N.E.2d 361.

At the trial, Hazelwood’s doctor testified as to the extent of Hazelwood’s injuries. The railroad contends that the doctor should not have been allowed to base his opinion on records which he did not prepare. Our supreme court in Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, answered this issue when it ruled that an expert may base his opinion on data that he did not compile.

THE DISCOVERY ORDER

The railroad maintains that it was error for the trial court to refuse to allow one of the railroad’s witnesses to testify. We agree. It was error. However, it was harmless error.

The railroad was ordered by the trial court to disclose, by April 9, 1982, the names of all experts and other witnesses which it had not previously disclosed. The railroad did not disclose any additional witnesses between the date of the order and April 9, The railroad then called a previously undisclosed witness, Don Richardson, the State coordinator of the safety program for the Illinois Commerce Commission. Hazelwood objected, alleging that the railroad had violated the discovery order. The trial court sustained the objection and excluded Richardson from testifying.

The trial court erred. The railroad did not violate the discovery order. The order required the railroad to furnish, by April 9, the names of the witnesses it intended to call. The railroad stated twice during the trial that it did not know Richardson would be a witness by April 9. Hazelwood did not present and the record does not contain any evidence to the contrary. Therefore, the witness should not have been excluded. Clay v. McCarthy (1979), 73 Ill. App. 3d 462, 392 N.E.2d 693.

The trial court’s error, however, was harmless. After the witness was excluded, the railroad made an offer of proof stating that the witness would have testified that the ICC’s files did not contain any complaints about the crossing and thus the railroad was not placed on notice about the dangerous nature of the crossing. During the trial, however, other witnesses for the railroad testified that the railroad did not have any knowledge concerning prior complaints about the crossing. The excluded witness’ testimony would have been merely cumulative and thus it was harmless error to exclude him. Kupcikevicius v. Fitzgibbons (1976), 41 Ill. App. 3d 405, 354 N.E.2d 434; Wanner v. Keenan (1974), 22 Ill. App. 3d 930, 317 N.E.2d 114.

THE AMENDMENT TO THE COMPLAINT

The railroad argues that the trial court erred by allowing Hazel-wood to amend his complaint after the close of evidence.

We disagree.

Section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616) authorizes a trial court to allow amendments to pleadings at any time before final judgment. This section gives the trial court broad discretion in allowing amendments and the court’s ruling will not be disturbed unless there has been a manifest abuse of that discretion. Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151, 335 N.E.2d 10.

Originally, Hazelwood’s complaint alleged that the railroad violated Rule 203 of ICC general order 138. The trial court allowed him to amend his complaint to instead allege a violation by the railro' section 58 of the Public Utilities Act. (Ill. Rev. Stat. 1981, ch. 11 par. 62.) In his complaint, Hazelwood based his allegations of the road’s negligent and wilful and wanton conduct on the railroad’s ure to meet certain standards of conduct. One of those standard the requirement that grade crossings be maintained so as to inso that the surface of the highway is flush with the rails. That requi ment is contained in both section 58 and Rule 203. Therefore, t amendment only changed the source of the standard. Because Haz< wood was not changing the theory of his case by making the amen, ment, the amendment did not unfairly prejudice the railroad and th trial court did not abuse its discretion by allowing the amendment. Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253.

THE VERDICT FORM

The railroad contends that the jury did not receive a proper verdict form. The railroad argues that because this suit involved comparative negligence and multiple parties, the jury should have received a verdict form which required them to state: the total amount of damages suffered by Hazelwood; the percentage of negligence attributable to Hazelwood; and the percentage of negligence attributable to each defendant. Such computational comparative negligence forms — tendered by both the railroad and Hudson Township — were refused by the trial court. Instead, the court gave the jury Illinois Pattern Jury Instruction (IPI), Civil, No. A45.05 (2d ed. 1981 Supp.), outlining how to reduce Hazelwood’s damages due to any negligence on his part and a modified IPI general verdict form (IPI Civil No. A45.09 (2d ed. 1981 Supp.)). We find that the combination of the instruction and the general verdict form was adequate to allow the jury to reach a verdict and that the trial court did not err by refusing to give the computational verdict form. Furthermore, it is clear from the record and counsel admitted during oral arguments that the railroad objected neither when Hazelwood tendered the general verdict form nor when the court refused to give the computational verdict form.

THE MANIFEST WEIGHT OF THE EVIDENCE

Next, the railroad argues that the jury’s verdict was against the manifest weight of the evidence because the evidence clearly showed that Hazelwood’s conduct was the sole proximate cause of the accident. Once again we are forced to disagree.

A reviewing court will only reverse a jury’s finding when, in of all the facts in evidence, that verdict is unreasonable. (Lynch Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447.) There ■.bstantial evidence in the record before us that the railroad aled the crossing to fall into a state of disrepair and that the danus condition of the crossing contributed to Hazelwood’s accident resulting injuries. Therefore, the jury could have reasonably conded that Hazelwood’s conduct was not the sole cause of the accint and that the railroad was at fault.

THE PUNITIVE DAMAGES AWARD

We have left the most intriguing issue until last. The railroad maintains that it was error for the trial court to enter judgment on the jury’s punitive-damages award because there is no basis in the law for the award and because the award is excessive. We disagree on both points.

The issue of whether the defendant’s conduct justifies the imposition of punitive damages is a question of law. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) Punitive damages are penal in nature and are not favored by the courts. (Cornell v. Langland (1982), 109 Ill. App. 3d 472, 440 N.E.2d 985.) They should only be allowed where the defendant has acted wilfully or with such extreme negligence as to indicate a reckless disregard for the safety of others. (Kelsay.) Such a conscious disregard for the safety of others may be termed wilful and wanton and gives rise to the imposition of punitive damages. Klatt v. Commonwealth Edison Co. (1965), 33 Ill. 2d 481, 211 N.E.2d 720.

This court, in Harvey v. Norfolk & Western Ry. Co. (1979), 73 Ill. App. 3d 74, 390 N.E.2d 1384, stated that punitive damages are proper in an action arising out of a crossing accident where: (1) a statute or ICC rule requires a certain standard; (2) the railroad has violated that standard; (3) the violation is of a longstanding nature; (4) the railroad is aware of the violation; (5) the railroad has failed to conduct proper maintenance to correct the violation; and (6) the railroad has failed to continue to inspect to determine whether the violation still exists. We said in Harvey that where the above factors are present, a jury could reasonably conclude that the railroad was acting with utter disregard for the danger which the violation presented to the public and therefore the railroad’s action could be termed wilful and wanton and give rise to punitive damages.

In the case at bench, Hazelwood demonstrated to the jury that there were statutory and ICC standards which the railroad violated by allowing the crossing to fall into a state of disrepair. He also presented evidence to show that the violation was of a longstanding nature. Several witnesses testified that the crossing had been in a state of disrepair for at least 10 years. Evidence was also produced to show that the railroad was aware of the condition of the crossing. The railroad’s track supervisor testified that he had traveled across the crossing at least once a week for the last 10 years. And the fact that the condition at the crossing existed is itself sufficient evidence that the railroad failed to conduct proper maintenance to correct the violation. There is, however, no evidence that the railroad failed to inspect the crossing. Instead, there is evidence in the record that the railroad inspected the crossing frequently. It is far more egregious for the railroad to continue to inspect the crossing and then fail to repair it than for the railroad to simply fail to inspect. Consequently, it is clear from the record before us that, as a matter of law, the railroad’s actions justified the imposition of punitive damages.

The amount of punitive damages awarded a plaintiff is a matter for the discretion of the jury. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 419 N.E.2d 578.) And a reviewing court will only reduce the amount of the award when it is clearly excessive. (Kelsay.) There are, however, no clear guidelines in Illinois for determining when a punitive damages award is excessive. We know that the amount does not have to be proportional to the amount of compensatory damages. (Moore v. Remington Arms Co. (1981), 100 Ill. App. 3d 1102, 427 N.E.2d 608.) We also know that the plaintiff’s attorney fees may be included in the amount of the award. (Anvil Investment Limited Partnership v. Thornhill Condominiums, Ltd. (1980), 85 Ill. App. 3d 1108, 407 N.E.2d 645.) Beyond those principles, however, there are no standards in Illinois by which we can judge whether the award is excessive. See Stambaugh v. International Harvester Co. (1982), 106 Ill. App. 3d 1, 26, 435 N.E.2d 729 (Welch, J., dissenting in part).

It would be both impossible and unwise for us to attempt to draw a line with mathematical precision separating proper awards from excessive awards. Instead, we set forth three factors which courts should consider in determining whether an award is excessive. Before we list those factors, however, it is first necessary to discuss the purposes behind the granting of punitive-damages awards. For an award becomes excessive only when it is so large that it no longer serves those purposes.

The doctrine of punitive damages first appeared in England in the 18th century when the practices of charging juries on the measure of damages became part of the common law practice. (Morris, Punitive Damages in Tort Cases, 44 Harv. L. Rev. 1173, 1176 (1931).) The doctrine was originally used by the English courts as a means of justifying awards of damages in excess of the tangible harm suffered by the plaintiff. (Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509.) In the 1760’s, punitive damages began to take on a dual nature: first, as compensation for intangible wrongs such as mental distress and suffering, and secondly, as punishment for the defendant. Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957).

When the doctrine crossed the Atlantic, its dual nature was recognized by the American courts. In 1845, our supreme court in McNamara v. King (1845), 7 Ill. (2 Gilm.) 432, 436, stated that the function of punitive damages is “not only to compensate the plaintiff, but to punish the defendant.” See also Holsey v. Brooks (1958), 20 Ill. 116; Ously v. Hardin (1860), 23 Ill. 352; Foote v. Nichols (1862), 28 Ill. 486.

Then as the courts began to recognize the award of actual damages for intangible harms, the compensatory nature of the doctrine fell into disuse. The courts began to focus instead on the punitive nature of the doctrine. (See Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 148, 383 N.E.2d 929 (Ryan, J., dissenting).) This change in focus was first reflected in Illinois in Hawk v. Ridgway (1864), 33 Ill. 473, 476, where our supreme court ruled that “[wjhere the wrong is wanton, or it is willful, the jury are authorized to give an amount of damages beyond the actual injury sustained, as a punishment, and to preserve the public tranquility.” See also Meidel v. Anthis (1874), 71 Ill. 241.

Today, the nature of punitive damages in Illinois is clearly singular — it is punishment for the defendant. (Kelsay.) That punishment is designed in turn to promote three purposes: (1) to act as retribution against the defendant; (2) to deter the defendant from committing similar wrongs in the future; and (3) to deter others from similar conduct. (Kelsay; Mattyasovszky.) With the nature and purposes of punitive damages in mind, we now turn to the factors which a court should consider in determining whether a punitive-damages award is excessive.

The first factor is the nature and enormity of the wrong. While all acts which give rise to punitive damages are wilful and wanton, some of those acts are clearly more reprehensible than others. The egregiousness of the act should be reflected in the amount of the award. Courts in several jurisdictions — both Federal and State — have considered this factor when determining the excessiveness of an award. (See Silkwood v. Kerr-McGee Corp. (W.D. Okla. 1979), 485 F. Supp. 566, rev’d on other grounds (10th Cir. 1981), 667 F.2d 908; Mailloux v. Bradley (Colo. App. 1982), 643 P.2d 797; Black v. Gardner (S.D. 1982), 320 N.W.2d 153; Grimshaw v. Ford Motor Co. (1981), 119 Cal. App. 3d 757, 174 Cal. Rptr. 348; Binyon v. Nesseth (1981), 7 Kan. App. 2d 110, 638 P.2d 946, aff'd (1982), 231 Kan. 381, 646 P.2d 1043; Beerman v. Toro Manufacturing Corp. (1980), 1 Hawaii 111, 615 P.2d 749.) Recognizing that punitive damages are in the nature of a criminal sanction, we are simply saying that the punishment should fit the crime. An award which is disproportionate to the wrong serves none of the purposes of punitive damages and is excessive.

The second factor is the financial status of the defendant. Although an award so small that it would be only an ordinary item of expense does not serve the purposes of retribution and deterrence, an award which bankrupts the defendant is excessive. Punitive damages should be large enough to provide retribution and deterrence but should not be so large that the award destroys the defendant. Thus, before a court can gauge the award, it must first gauge the financial position of the wrongdoer. (See In re Northern District of California “Daikon Shield” IUD Products Liability Litigation (N.D. Cal. 1981), 526 F. Supp. 887; Arab Termite & Pest Control of Florida, Inc. v. Jenkins (Fla. 1982), 409 So. 2d 1039; Wangen v. Ford Motor Co. (1980), 97 Wis. 2d 260, 294 N.W.2d 437.) The court in Chilvers v. New York Magazine Co. (App. Div. 1982), 114 Misc. 2d 996, 997, 453 N.Y.S.2d 153, 154, noted the importance of the defendant’s financial status when it wrote:

“Would we deter the commission of malicious acts by the wealthy if they were punished the same as the poor? Although the sanctions of the criminal law obviously do not consider the wealth of the offender, if wealth were not considered when dealing with the imposition of civil exemplary damages, the reason for the imposition of the award would be subverted.”

Simply stated, the amount of the award should send a message loud enough to be heard but not so loud as to deafen the listener. A deafening award is excessive.

The third factor which should be considered is the potential liability of the defendant. This factor was noted in comment e of section 908 of the Restatement (Second) of Torts:

“Another factor that may affect the amount of punitive damages is the existence of multiple claims by numerous persons affected by the wrongdoer’s conduct. It seems appropriate to take into consideration both the punitive damages that have been awarded in prior suits and those that may be granted in the future.” (Restatement (Second) of Torts sec. 908, comment e, at 467 (1977).)

As Judge Friendly stated in Roginsky v. Richardson-Merrell, Inc. (2d Cir. 1967), 378 F.2d 832, 839:

“The legal difficulties engendered by claims for punitive damages on the part of hundreds of plaintiffs are staggering. *** We have the gravest difficulty in perceiving how claims for punitive damages in such a multiplicity of actions throughout the nation can be so administered as to avoid overkill.”

Although this factor has particular application in products liability situations, it should be considered in any case where the defendant faces multiple liability for the same or similar wrongs. Without this factor in our “excessiveness equation,” the result may well be a stampede to the courthouse, with the swiftest taking home large awards, the slow returning with nothing but their injuries, and the defendant being trampled into bankruptcy. Such a situation would be intolerable.

Applying the three factors we have here outlined, we find that the $170,000 award in the case at bar is not excessive. First, the award does not outweigh the wrong. The jury found that Hazelwood was injured by the railroad’s failure to repair a dangerous crossing. The injury was serious and the magnitude of the wrong which caused it is fairly reflected in the amount of the award. Next, the amount of the award does not threaten the financial stability of the railroad. The award represents .0237% of the railroad’s net worth which is $716,180,000. In view of all the attendant circumstances, we cannot say this is excessive. Finally, the potential liability of the railroad for the same or similar wrongs is not great enough to make this award excessive. The railroad’s potential liability for the same wrong — its failure to maintain this particular crossing in a safe condition — is almost nil. Hazelwood was the only person injured in the accident which gave rise to this suit and future accidents at the same crossing may easily be prevented by prompt repair. The railroad’s greatest potential for liability is from similar wrongs — failure to maintain other crossings in a safe condition. The railroad operates approximately 45,000 miles of track and 2,946 crossings in Illinois. A multimillion-dollar punitive-damage award against the railroad in every crossing accident suit may be excessive. The amount of the present award, however, would not result in overkill. For these reasons we find that the award is not excessive.

In conclusion, because we have found that the trial court erred only once and that that error was harmless, and because we have found that the punitive-damages award is not excessive, the judgment below is affirmed.

Affirmed.

GREEN and MILLER, JJ., concur.


author: JUSTICE MEJDA

text:
    EUGENE TAYLOR, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (5th Division)
    No. 82—1162
    Opinion filed May 13, 1983.

      Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan and Lynn K. Mitchell, Assistant Corporation Counsel, of counsel), for appellant.
    Leonard B. Miller, of Chicago, for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

This is an appeal from a judgment against defendant city of Chicago for injuries sustained by plaintiff Eugene Taylor when he allegedly fell on a defective sidewalk. Defendant raises the following issues: (1) whether the trial court erred in granting plaintiff’s motion in limine to exclude any evidence of intoxication, and (2) whether the plaintiff’s closing rebuttal argument that defendant did not call a witness whose testimony would have been adverse constituted prejudicial error. The pertinent facts follow.

On August 7, 1976, plaintiff was walking on the sidewalk in the ■vicinity of 900 Montrose when he fell and fractured his ankle. Police officers Belcastro and Kindle arrived at the scene of the accident and took plaintiff to Weiss Memorial Hospital for treatment. While at the hospital, Officer Belcastro filled out a police report which stated, among other things, that plaintiff was intoxicated. Plaintiff filed a complaint against the city to recover damages for his injury and alleged that a defect in the sidewalk was the cause of his fall.

Prior to the commencement of trial, the court granted plaintiff’s motion to bar defendant from presenting any evidence of plaintiff’s intoxication. After deletion of references to drinking and intoxication, the police report was admitted into evidence as Officer Belcastro’s past recollection recorded. The only witnesses at trial, plaintiff and Officer Belcastro, presented conflicting evidence regarding the site of the accident, which testimony was crucial in determining whether there was a defect in the sidewalk. During closing rebuttal argument plaintiff’s counsel argued, over objections, that had defendant called Officer Kindle as a witness, his testimony would have supported plaintiff’s version of the accident. The jury returned a verdict of $56,000 in favor of plaintiff. Defendant appeals.

Opinion

Defendant argues first that the court erred in excluding evidence of plaintiffs intoxication as this precluded assertion of the intoxication as a proximate cause of his injury. The evidence of plaintiffs intoxication was contained in the police report made by Officer Belcastro. Although police reports are generally not admissible in Illinois (Jacobs v. Holley (1972), 3 Ill. App. 3d 762, 279 N.E.2d 186; 73 Ill. 2d R. 236(b)), their use has been allowed to refresh the recollection of a witness (Hall v. Checker Taxi Co. (1969), 109 Ill. App. 2d 445, 248 N.E.2d 721), and they have been admitted into evidence as past recollection recorded (Wilkinson v. Mullen (1975), 27 Ill. App. 3d 804, 327 N.E.2d 433; see Rigor v. Howard Liquors, Inc. (1973), 10 Ill. App. 3d 1004, 295 N.E.2d 491). In Illinois there are four requisites to the admission of a police report as past recollection recorded: (1) lack of any independent recollection of the witness regarding the occurrence; (2) failure of the report to refresh the recollection of the witness; (3) recording of the facts in the report at the time of the occurrence or soon thereafter; and (4) establishment of the truth and accuracy of the report when made. (Wilsey v. Schlawin (1975), 35 Ill. App. 3d 892, 342 N.E.2d 417; see Strope v. Chicago Transit Authority (1979), 71 Ill. App. 3d 987, 389 N.E.2d 1374.) In the instant case a proper foundation was laid for the admission of the police report as past recollection recorded and, in fact, no challenge has been made to such admission.

Regarding the admission of evidence of intoxication, it is well established that the mere consumption of alcoholic beverages does not, by itself, establish intoxication; there must be proof of facts tending to show that the drinking resulted in intoxication. (McCullough v. McTavish (1978), 62 Ill. App. 3d 1041, 379 N.E.2d 890; Shore v. Turman (1965), 63 Ill. App. 2d 315, 210 N.E.2d 232.) Intoxication may be shown by opinion evidence, and even a nonexpert may testify as to his opinion, based upon experience and observation, whether a person was intoxicated. (Kessner v. McDonald (1977), 46 Ill. App. 3d 333, 360 N.E.2d 1178; Doria v. Costello (1974), 22 Ill. App. 3d 505, 318 N.E.2d 40.) Officer Belcastro testified that prior to the time of plaintiff’s accident he had been assigned to the Mass Transit Unit for over seven years and, as a part of his regular duties, he dealt with intoxicated persons on a daily basis. Thus, he had adequate experience upon which to base a statement as to whether plaintiff was intoxicated.

In the instant case the evidence of intoxication contained in the police report consisted of Officer Belcastro’s responses to various items on the report as shown below (the officer’s responses are in italics):

“26. Cause of Injury (Instrument or Means):
Drinking & fell
27. Reason (Accident, 111 Health, Etc.):
Too much to drink
* * *
31. Sobriety of Victim (check one):
_Sober;_Had Been Drinking;
X Intoxicated
* * *
37. Narrative: (The Indicated Sobriety of Victim or Witness is the apparent condition when reported.)
_Apparently UNFOUNDED, at the time of the preparation of this report.
Victim consumed a large amount of wine ***.”

Officer Belcastro made no mark in the space provided in item 37 to indicate that his observation of the intoxicated condition of plaintiff was unfounded. In granting plaintiff’s motion in limine the court stated that for an opinion as to intoxication to be admissible, the witness must testify to a factual foundation consisting of observations of the individual. The court characterized the officer’s responses as opinions, found the necessary factual foundation lacking, and required deletion of the responses before the report was admitted into evidence as past recollection recorded.

In deciding whether the court erred in holding such responses inadmissible, it is necessary to determine the nature of the excluded responses. In Koch v. Pearson (1920), 219 Ill. App. 468, after determining that a proper foundation had been laid, the appellate court held admissible an accident report prepared by a police officer although the report contained the police officer’s statement “No one injured.” The court stated that “[tjhose words cannot be considered as a statement of the officer’s opinion, but rather as a statement of fact based upon appearances which he observed and recorded at the time.” (219 Ill. App. 468, 482.) In another case, that portion of a police report which contained a “0” in the square under the heading “injury” was held admissible upon a showing that an adequate foundation had been laid for past recollection recorded. The court stated, however, that had objection been made, admission of the remainder of the report would have been error, insofar as it contained conclusions of the officer which were not the product of his personal observations. (Wilkinson v. Mullen (1975), 27 Ill. App. 3d 804, 327 N.E.2d 433.) Applying the same analysis in the instant case, we conclude that certain portions of the police report were improperly excluded.

Officer Belcastro’s responses to item 26, “Cause of Injury”: “Drinking and fell”; item 27, “Reason”: “Too much to drink”; and item 37, “Narrative”: “Victim consumed a large amount of wine”; were not the product of his personal observation nor were they statements of fact based upon appearances which were observed and recorded at the time. They were, rather, conclusions based upon assumptions and speculation and were properly excluded. Item 31, however, called for a response based directly on the officer’s observations. The item offered a choice among several observations that could have been made and Officer Belcastro testified to the distinctions that he made between the choices and to the type of behavior which would influence him to decide on one category or another. We conclude that the portion of the police report in which the officer indicated that plaintiff was intoxicated, item 31, had a factual basis in that it was a personal observation based on appearances and, therefore, the court erred in excluding it. As such exclusion precluded defendant from asserting that plaintiff’s intoxication was a proximate cause of his accident, the error was prejudicial and a new trial is warranted.

Plaintiff contends that the deleted responses were correctly excluded from evidence as there was no foundation laid for the observations of the officer in that the procedure he used to arrive at his conclusion that plaintiff was intoxicated was arguably insufficient to accurately make such a determination. Although Officer Belcastro had no independent recollection of the event, he testified regarding the observations upon which he would generally base a determination that an individual is intoxicated. These observations are whether the individual has the odor of alcohol on his breath, whether there is a reason the individual is lying on the ground or is in whatever situation he is in, the condition of his clothing and overall appearance and hygiene, and whether the individual can function properly. Plaintiff contends that, except for alcohol on the breath, any of the facts noticed by the officer which led him to conclude that plaintiff was intoxicated could be attributed to the injury plaintiff had sustained and were not, therefore, conclusive evidence of intoxication. On this issue we agree with defendant’s argument that whether or not there was a sufficient basis for Officer Belcastro’s statement that plaintiff was intoxicated goes to the credibility of the evidence, not its admissibility. (Doria v. Costello (1974), 22 Ill. App. 3d 505, 318 N.E.2d 40; see Wilson v. Parker (1971), 132 Ill. App. 2d 5, 269 N.E.2d 523.) Whatever probative value the evidence may have on the issue of plaintiff’s intoxication, it does not affect the admissibility of the evidence. See Strope v. Chicago Transit Authority (1979), 71 Ill. App. 3d 987, 389 N.E.2d 1374.

Young v. Gateway Transportation Co. (1975), 26 Ill. App. 3d 864, 326 N.E.2d 222, cited by plaintiff, is not controlling. In Young a police officer testified on the issue of plaintiff’s intoxication but stated that he was not sure whether the odor he detected was from leaking automobile antifreeze or plaintiff’s breath and that plaintiff’s slurred speech and unsure walk could have resulted from the head injury he had sustained. The court excluded the evidence due to the highly questionable nature of the testimony and the possible introduction of inadequate but highly prejudicial testimony. The instant case differs from Young, however, in that the evidence is contained in a written document admissible as a past recollection recorded and consists of the statement that plaintiff was intoxicated. Such evidence shows none of the uncertainty of the testimony presented in Young and, therefore, we find that case inapposite.

In view of our disposition of the foregoing issue, we find it unnecessary to address the second issue raised by defendant.

The judgment of the trial court is reversed and the cause remanded for a new trial.

Reversed and remanded.

WILSON, P.J., and SULLIVAN, J., concur.