author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RENEE POLIAK, Defendant-Appellee.
    Second District
    No. 83—13
    Opinion filed May 25, 1984.

      John W. Cox, Jr., State’s Attorney, of Galena (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

This action involved an appeal by the State from an order of the circuit court of Jo Daviess County, Illinois, dismissing the State’s complaint against defendant-appellee, Renee Poliak. The State asserts that the trial court erred in ruling that the theft prosecution was barred by section 3 — 4(c) of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(c).) Defendant responds that the trial court’s order was proper because she was adjudicated delinquent in the State of Colorado for the same conduct. We affirm.

Defendant was charged by information on September 21, 1982, with the offense of theft over $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a)(1)), for knowingly obtaining unauthorized control over the property of another. Defendant filed a motion for discharge on November 24, 1982, grounded on statutory and constitutional double jeopardy provisions. The basis for the motion was a petition filed on September 16, 1982, in the juvenile court of Boulder County by the State of Colorado alleging that defendant was a delinquent child because “between the dates of August 22, 1982, and September 8, 1982, in the City of Boulder, County of Boulder, State of Colorado, Renee Ann Poliak did unlawfully and knowingly obtain and exercise control over the motor vehicle of Anna Richardson without authorization and by threat of deception; contrary to C. R. S. 1973, 18 — 4—409 (4), as amended.”

Defendant came under the jurisdiction of the juvenile court because at the time of her arrest in Colorado, she was 17 years old. The records from the State of Colorado indicate that defendant appeared with an attorney at this adjudicatory hearing and admitted the allegations in the petition. Thereafter, the Colorado court adjudicated her a delinquent. Because the facts supporting the later Blinois prosecution allegedly were identical to those supporting the delinquency adjudication in Colorado, defendant argued in her motion for discharge that the Illinois prosecution was barred based on an Illinois statute (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(c)) and the double jeopardy provisions of the State and Federal constitutions.

The court held a hearing on defendant’s motion at which the parties stipulated that the car was taken from Jo Daviess County, the owner of the car lived in Jo Daviess County, and two defendants were in the car when it left the county. Defendant argued the Illinois prosecution was barred on the basis of section 3 — 4(c) because the Colorado delinquency adjudication was a former prosecution and both actions were predicated on the same facts. In response, the State argued Colorado did not have jurisdiction over the charge of obtaining possession of the car because the car was taken in Illinois, not Colorado. The State also contended the Illinois complaint required proof of a fact not required in the Colorado action, and that certain exceptions to the applications of section 3 — 4 authorized prosecution of defendant in Illinois.

The trial court in its order stated that the Illinois prosecution was not barred by constitutional double jeopardy prohibitions because more than one sovereign was involved. The court also found that Colorado did have jurisdiction over the charge of exerting control and arguably had jurisdiction over the charge of obtaining control of the car because while “[tjhere are no cases defining this word ‘obtain,’ ” it could be argued “that each time she parked and left the vehicle, she again ‘obtained control’ over the vehicle when she returned to it.” The trial court ruled that while defendant was charged in the Illinois prosecution with obtaining control, the crime of theft is continuing and that both “exerting” and “obtaining” constitute one offense of theft. Since the court also found that the juvenile adjudication was a “conviction” or “prosecution” within the meaning of section 3 — 4(c) of the Criminal Code, the court concluded the Illinois prosecution was barred by that section and dismissed the complaint. The State filed a timely notice of appeal.

The first argument advanced by the State is that section 3— 4(c) does not bar the instant prosecution because the juvenile adjudication in Colorado is not the equivalent of a “former prosecution” or a “conviction” within the meaning of the statute. The State acknowledges it failed to raise this argument before the trial court, but contends this court should consider the merits of the challenge under the plain-error rule. (87 Ill. 2d R. 615(a).) In its order, the trial court stated that “[njeither party raises any question as to whether the adjudication under the juvenile code of Colorado was a ‘conviction’ or a ‘prosecution,’ and this Court assumes that it would so qualify.” While the issue was not raised by the State below, the court nevertheless in its order appears to have ruled on the issue. We address the merits of the State’s argument by invoking the plain-error doctrine. 87 Ill. 2d R. 615(a).

The State’s argument is predicated on statutory grounds and is not based on the constitutional prohibition against double jeopardy, for that prohibition does not pertain to successive prosecutions by different governments. (Bartkus v. Illinois (1959), 359 U.S. 121, 3 L. Ed. 2d 684, 79 S. Ct. 676.) The State employs the statutory construction rule that identical or similar terms appearing in different sections of the same statute should be given a consistent meaning. It contends prior judicial interpretations of other Criminal Code sections suggest that a delinquency adjudication is not a “prosecution” within the section 3 — 4(c). See, e.g., In re W.W. (1983), 97 Ill. 2d 53 (the terms “defendant” and “conviction” in the costs statute authorizing fees for State’s Attorneys indicate the statute was not intended to apply to juvenile proceedings which “are not criminal in nature”); In re S.R.H. (1983), 96 Ill. 2d 138 (Criminal Code requirements relating to formal charging instruments do not apply to petitions seeking adjudication of wardship based upon delinquency); People v. Woodruff (1981), 88 Ill. 2d 10 (in concluding that the speedy trial provisions of the Criminal Code of 1961 did not apply to juvenile proceedings, the court emphasized that “offense” used in section 103 — 5 of the Code of Criminal Procedure of 1963 relates to criminal prosecutions only); In re R.R. (1979), 75 Ill. App. 3d 494, 394 N.E.2d 75, cert. denied (1980), 447 U.S. 928, 65 L. Ed. 2d 1122, 100 S. Ct. 3025 (a minor is not entitled in a delinquency proceeding to “post-conviction” relief, citing the differences between a criminal trial and a juvenile proceeding).

The State also cites language in McKeiver v. Pennsylvania (1971), 403 U.S. 528, 541, 29 L. Ed. 2d 647, 658, 91 S.Ct. 1976, 1984, that “the juvenile court proceeding has not yet been held to be a ‘criminal prosecution.’ ” The court in McKeiver held a minor is not entitled as a matter of right to a jury trial in the adjudicative phase of a State juvenile court delinquency proceeding. In response, defendant cites Breed v. Jones (1975), 421 U.S. 519, 44 L. Ed. 2d 346, 95 S. Ct. 1779, where the court held that the double jeopardy provision of the fifth amendment prevented adult prosecution of a defendant for the same offense on which he had previously been adjudicated a delinquent. As the Breed court said, “in terms of potential consequences, there is little to distinguish an adjudicatory hearing such as was held in this case from a traditional criminal prosecution.” 421 U.S. 519, 530, 44 L. Ed. 2d 346, 356, 95 S. Ct. 1779, 1786.

None of the preceding cases has construed the specific statute which is the subject of this appeal. Defendant, however, cites two cases which she asserts have recognized the applicability of section 3 — 4 to juvenile proceedings. In In re McGovern (1978), 62 Ill. App. 3d 1049, 379 N.E.2d 937, this court held that the State could not appeal a finding in a delinquency action that the minor was not delinquent. Noting that Supreme Court Rule 604(a)(1) stated that appeals of final judgments in delinquency proceedings were governed by the rules applicable in criminal cases, this court concluded the State could not appeal the trial court’s ruling because of double jeopardy principles. In so concluding, this court stated that “[i]t is well-settled that after trial on the merits in a criminal case there shall be no appeal from a judgment of acquittal. (Ill. Const. 1970, art. VI, sec. 6; Ill. Rev. Stat. 1975, ch. 38, par. 3-4(1).)” (62 Ill. App. 3d 1049, 1052, 379 N.E.2d 937, 940.) While this court cited section 3 — 4, it based its decision principally on the fact that allowing the State to appeal would violate the constitutional prohibition against double jeopardy. Therefore, McGovern does not explicitly find that section 3 — 4 is applicable to juvenile adjudicatory proceedings.

Defendant’s reliance upon In re R.L.K. (1978), 67 Ill. App. 3d 451, 384 N.E.2d 531, is more apposite. In R.L.K., the court held that the concepts of double jeopardy and compulsory joinder are applicable to MINS (minor in need of supervision) proceedings. The State in R.L.K. initially filed MINS petitions because of the minor’s involvement in a theft. After the State rested its case at the hearing, the court granted a motion for a directed verdict in favor of the minors. Rather than appeal this order, the State filed petitions for adjudication of wardship alleging the minors were delinquents. After the State concluded its portion of the case, the trial court granted the minors’ motion to dismiss the petition in part because the second proceeding was barred by double jeopardy. The appellate court affirmed, finding that “both statutory and constitutional double jeopardy provisions mandate that the State was barred from alleging the theft violation in the second petition.” 67 Ill. App. 3d 451, 454, 384 N.E.2d 531, 533.

While acknowledging that the R.L.K. court concluded that section 3 — 4 was applicable to delinquency proceedings, the State questions whether the result is correct. The precise holding in R.L.K. is that the concepts of double jeopardy and compulsory joinder as expressed in the Criminal Code of 1961 do apply to MINS proceedings. The R.L.K. court did not expressly hold that those same statutory provisions applied to delinquency adjudications, although a fair reading of the opinion indicates that the provisions do apply. The reason the R.L.K. court did not expressly reach the question posed by this appeal is that in R.L.K., the State conceded that section 3 — 4 was applicable to delinquency proceedings. Given this concession, the court proceeded to analyze whether MINS proceedings were sufficiently similar to delinquency proceedings to warrant application of the statutory prohibition against double jeopardy to MINS proceedings.

“[Bjecause the potential consequences of a MINS and a delinquency determination are substantially similar - including the stigma associated with both proceedings - the protection afforded delinquents by the compulsory adjoinder [sic] in double jeopardy provisions of the Criminal Code should be applied to MINS children.” 67 Ill. App. 3d 451, 456, 384 N.E.2d 531, 534-35.

As additional support for its holding, the R.L.K. court construed In re Vitale (1978), 71 Ill. 2d 229, vac. & rem. on other grounds (1980), 447 U.S. 410, 65 L.Ed. 2d 228, 100 S. Ct. 2260, as holding that section 3 — 3 and 3 — 4 applied to delinquency proceedings. (In re R.L.K. (1978), 67 Ill. App. 3d 451, 454, 384 N.E.2d 531, 534.) However, as the Fourth District of our appellate court later acknowledged in In re C.H. (1981), 93 Ill. App. 3d 825, 417 N.E.2d 1053, Vitale was decided on constitutional grounds.

“Although our supreme court thereafter in Vitale mentions sections 3 — 3 and 3 — 4 of the Criminal Code of 1961 [citation] the decision was rendered on the basis of the double jeopardy clause of the United States Constitution. In fact, upon remand following the granting of a writ of certiorari, our supreme court certified that the judgment was based upon Federal constitutional grounds.” (In re C.H. (1981), 93 Ill. App. 3d 825, 827, 417 N.E.2d 1053, 1054.)

Because of the appellate court’s subsequent acknowledgement in C.H. that Vitale was decided on constitutional and not statutory grounds, the State argues that the court in R.L.K. misconstrued the Vitale holding. We find the State’s argument unpersuasive. First, the fact that Vitale was decided on constitutional grounds does not preclude application of section 3 — 4 to delinquency hearings. In fact, the supreme court’s decision to apply constitutional double jeopardy provisions to juvenile proceedings supports application of the statutory double jeopardy provisions to those same proceedings. Second, while the R.L.K. court drew upon Vitale for support, its holding that statutory double jeopardy and compulsory joinder provisions apply to MINS proceedings was predicated on its own analysis of the similarities between MINS and delinquency proceedings. Third, we find it significant that the State conceded in R.L.K. that section 3 — 4 applied to delinquency proceedings. We conclude section 3 — 4(c) should be applied here to bar the instant prosecution.

The State next argues that its prosecution is not barred because “each prosecution requires proof of a fact not required in the other prosecution ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(c)(1).) The Colorado statute does require proof of a fact not required by the Illinois statute; that the person knowingly obtained control over a motor vehicle, while the Illinois statute requires only that the person knowingly have obtained or exerted control over the property of another.

The State argues that the Illinois prosecution also requires proof of a fact not required for the Colorado prosecution. The Colorado petition alleged that defendant “did unlawfully and knowingly obtain and exercise control over the motor vehicle ***.” The complaint filed in Jo Daviess County alleged that defendant “knowingly obtained unauthorized control over the property ***“ of the owner. The State argues that the Colorado petition while stating defendant obtained and exercised control actually charged defendant only with exercising control over the vehicle because the petition recited that the unlawful act occurred in Boulder, Colorado. Since the parties agree that the car was stolen in Jo Daviess County and thereafter driven to Colorado, the State concludes the petition was directed solely to defendant’s conduct of exercising control over the car in Colorado. Therefore, the question squarely presented is whether obtaining and exerting control constitute different theories of prosecution under section 16(a)(1) requiring proof of different facts. The State argues the term “obtain” is directed toward the original theft, while the term “exert” is directed toward the subsequent and continuing possession of the property.

We reject the State’s contention that the terms “obtain” and “exert” denote different theories of prosecution. The theft statutes in each State proscribe the same conduct; Colorado punishes the act of “obtaining or exercising control,” and Illinois punishes the act of “obtaining or exerting control.” The gravamen of the prosecution for each State’s offense is the unauthorized control over the property of another. As this court stated in People v. Dziak (1975), 30 Ill. App. 3d 859, 333 N.E.2d 582 (abstract of opinion), “[t]he method by which unauthorized control is obtained or exerted is immaterial to a charge under section 16 — 1(a) ***.” The terms “obtain” and “exert” are indistinguishable means of accomplishing the proscribed conduct of unauthorized control. Therefore, the terms are not different as they relate to the substantive elements of the offense of theft. Even though the two terms are stated in the disjunctive, section 3 — 4 requires only one unit of conduct, for “ ‘obtains or exerts control’ includes not only the taking of the property but also the carrying away, sale, or possession of the property.” (Dziak.) The theft statute in Illinois does not describe either obtain or exert as a separate offense, and does not attach different punishments. Instead, the two terms are merely descriptive of the same offense.

The absence of any time limitation on the offense also suggests that the terms obtain and exert are only describing one unit of conduct. (Cf. Brown v. Ohio (1977), 432 U.S. 161, 169 n.8, 53 L. Ed. 2d 187, 196 n.8, 97 S. Ct. 2221, 2227 n.8 (“We would have a different case if the Ohio Legislature had provided that joyriding is a separate offense for each day in which a motor vehicle is operated without the owner’s consent”).) While the two terms in section 16 — 1(a) do not denote substantive differences, to the extent that they are distinguishable, the distinction concerns only the time and place of the unauthorized control. The term “obtain” is commonly defined as “to gain” or “to attain” (Webster’s New Collegiate Dictionary 786 (1979)), while the term “exert” is defined as “to bring to bear with sustained effort.” (Webster’s New Collegiate Dictionary 397 (1979).) The act of obtaining control is the inception of exerting control; therefore, the terms are relevant in defining the locus of the unauthorized control. (See, e.g., People v. Spicuzza (1976), 44 Ill. App. 3d 420, 358 N.E.2d 315.) Since the essence of both prosecutions is the unauthorized control over the property of another, the Illinois prosecution does not require proof of an additional fact and thus, the Illinois prosecution properly was dismissed by the trial court.

Our conclusion that obtain and exert are interchangeable is buttressed by People v. Collins (1977), 48 Ill. App. 3d 643, 362 N.E.2d 1118. There, the indictment against the defendant alleged that he “did knowingly exert control over certain stolen property” in violation of section 16 — 1(d) of the Criminal Code of 1961. (Ill. Rev. Stat. 1975, ch. 38, par. 16 — 1(d).) That section, however, did not contain the word “exert” and only proscribed obtaining control over the stolen property. Based upon this disparity, the defendant argued that the use of the term “exert control” instead of “obtain control” in the indictment amounted to a material variance rendering the indictment insufficient as a matter of law. Rejecting the defendant’s argument, the Collins court concluded that the terms were interchangeable “given their plain and ordinary meaning used in the context of the conduct that the Criminal Code seeks to proscribe.” (People v. Collins (1977), 48 Ill. App. 3d 643, 647, 362 N.E.2d 1118, 1122.) While the State distinguishes Collins on the basis that the court there construed section 16 — 1(d) and not section 16 — 1(a), the court’s construction of the same words in the same paragraph of the Criminal Code of 1961 supports the conclusion here that exert and obtain similarly are interchangeable in section 16 — 1(a).

Both parties cite People v. Alexander (1982), 93 Ill. 2d 73, as supportive of their respective positions. In Alexander, the defendant was charged with exerting unauthorized control over a car in Will County on October 31, 1979. In fact, however, the proof indicated defendant had obtained the car on that date in Cook County, and had exerted control over the car in Will County on November 11, 1979. The supreme court held that the incorrect date did not render the charging instrument deficient because the State’s evidence proved defendant’s exertion of control over the car in Will County. The court also ruled that there was no defect regarding venue. In so ruling, the court acknowledged that “[a] defendant can be found guilty of theft solely on the basis of knowingly exerting unauthorized control over the property of another at the time of the arrest, because the crime of theft is not limited to the original taking of the property.” (93 Ill. 2d 73, 78.) The State contends Alexander supports its position that obtaining control and exerting control amount to different theories of prosecution.

We read Alexander differently. The appellate and supreme court decisions there at most show that the terms “exert” and “obtain” are relevant in determining the locus of the proscribed conduct. The supreme court in Alexander stated that “[t]he information charging the defendant specified Will County as the locus of the crime” as distinguished from Cook County where the car was stolen. (93 Ill. 2d 73, 79.) Although evidence was presented at trial of the events on both October 31, 1979, and November 11, 1979, the court stated: “[0]nly one offense of automobile theft was involved in the instant case, so that a conviction would be a bar to a subsequent prosecution for that same offense.” (93 Ill. 2d 73, 80.) Alexander, therefore, is consistent with the position that while the terms “exert” and “obtain” are relevant in determining the locus of the proscribed conduct, they are indistinguishable in reference to the substantive theft offense.

The State also relies on People v. Cole (1982), 91 Ill. 2d 172. There, the jury acquitted defendant of solicitation “by requesting another to commit an offense,” but was unable to agree on a verdict for another count of solicitation “by encouraging another to commit an offense.” In noting that defendant’s reprosecution for the latter charge was not barred by either statutory or constitutional prohibitions against double jeopardy, the Cole court said:

“[T]his case does not involve a reprosecution based upon a theory of the same offense that was not previously charged. Request and encouragement are two disjunctive methods by which the offense of solicitation can be committed and reflect the legislature’s intent to include varying degrees of involvement on the part of the solicitor.” (91 Ill. 2d 172, 177.)

The State asserts Cole stands for the proposition that disjunctive language within a single offense denotes separate theories of prosecution which necessarily involve proof of different facts. By analogy to Cole, the State asserts the disjunctive theft offense here contains two separate theories which require proof of separate facts and thus, prosecution is not barred by section 3 — 4. While Cole is analogous to the case at bar, the court there construed a different statute, and the drafting similarities between that statute and the statute here are not sufficient to require this court to conclude that obtain and exert denote separate theories of recovery in section 16 — 1.

The State’s final argument is predicated on sections 3 — 4(d)(1) and (2) (Ill. Rev. Stat. 1981, ch. 38, pars. 3 — 4(d)(1), 3 — 4(d)(2)). Section (d)(1) provides that a subsequent prosecution will not be barred if the former prosecution “[w]as before a court which lacked jurisdiction over the defendant or the offense” and section (d)(2) provides that a later prosecution will not be barred, if the earlier one “[w]as procured by the defendant without the knowledge of the proper prosecuting officer ***.” The State does not contend that Colorado lacked jurisdiction over the defendant, but rather argues only that Colorado lacked jurisdiction over the offense. In response, defendant argues that Colorado had jurisdiction over the offense.

A person commits the offense of aggravated motor vehicle theft in the second degree in Colorado when he “knowingly obtains or exercises control over the motor vehicle of another without authorization ***,” Either obtaining or exercising control constitutes the offense in Colorado. Neither party disputes that defendant exercised control over the car in Colorado. Therefore, even though the car was not obtained in Colorado, Colorado had jurisdiction over the offense of aggravated motor vehicle theft. Thus, section 3 — 4(d)(1) does not authorize the State to pursue the instant prosecution.

We also find unpersuasive the State’s argument that the Colorado judgment does not bar the instant prosecution because it was secured without the knowledge of the proper prosecuting officer. (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(d)(2).) Not only must the former prosecution be procured without the knowledge of the State’s Attorney, but it must also be obtained “with the purpose of avoiding the sentence which otherwise might be imposed ***.” These conditions are conjunctive and the State fails to offer nor does the record contain any evidence that defendant obtained a delinquency adjudication to avoid prosecution in Illinois. However, the State argues that because defendant bears the burden of establishing that a prosecution is barred under section 3 — 4, she also must prove that a foreign judgment asserted as a bar to the Illinois prosecution was not wrongfully obtained under section 3 — 4(d)(2). Neither party cites any authority concerning the burden of proof issue. However, since section 3— 4(d)(2) is an exception to the application of section 3 — 4, we believe the State, which asserts its application, should be required to prove that defendant wrongfully obtained the Colorado adjudication. On these facts, we conclude the State has.failed to establish that defendant involved herself in an automobile accident in Colorado to avoid prosecution in Illinois and thus, neither section 3 — 4(d)(1) nor section 3 — 4(d)(2) prevent application of the bar against former prosecutions contained in section 3 — 4(c).

Finally, the State has conceded that this court’s holding in People v. Hall (1983), 117 Ill. App. 3d 881, 454 N.E.2d 6, that costs cannot be taxed against a defendant absent a conviction is fatal to its request that costs be taxed against defendant in the instant case. Accordingly, the State’s request for costs is denied.

The order of the circuit court of Jo Daviess County dismissing the information against defendant is affirmed.

Affirmed.

SEIDENFELD, P.J., and UNVERZAGT, J, concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GIULIO L. MORACA, Defendant-Appellee.
    Second District
    No. 83—568
    Opinion filed May 25, 1984.
    Robert J. Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    G. Joseph Weller and Nicholas J. Kritikos, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Giulio L. Moraca, was charged by information in the circuit court of Kane County with the offense of unlawful possession of more than 30 grams but not more than 500 grams of a substance containing cannabis, and by traffic complaint with the violations of driving with a suspended driver’s license and the illegal transportation of alcohol. After hearing testimony and argument on defendant’s suppression motion, the trial court ruled on May 20, 1983, that the warrantless search of defendant’s car violated the fourth amendment to the Federal Constitution. The State appeals the suppression order, arguing that the information conveyed by the informant’s tip was sufficient to warrant a brief investigatory stop. Defendant responds that the tip was conclusory, uncorroborated and standing alone, did not justify the police action here. We affirm.

On February 25, 1983, at about 3 p.m., Detective Brictson of the Elgin police department received a phone call from one of the operators at an organization known as Catch A Thief With Citizen’s Help (CATCH). According to Brictson, “The CATCH operator takes the call from anonymous sources and then relays that information to the police department, and if there’s an arrest made sometimes the individuals who have given this information are paid for the information.” In this case, Brictson spoke with the CATCH operator and not directly with the informant.

Brictson testified concerning the substance of the information conveyed to him by the CATCH operator.

“I was informed that a subject by the name of Guilio [sic] Moraca, who drives a blue van with Illinois license plates Young Zebra Charles 625 was in possession of a machine gun which he carried in a black pouch.
He was also allegedly in possession of cannabis, which he contained in a green bank-type bag. And that this Moraca subject frequented the area of Hickory Street in Elgin and was possibly either suspended or revoked in regards to his driver license status.”

At approximately 6:20 p.m. Brictson and his partner, Detective Strickland, cruised the area of Hickory Street in Elgin and observed a blue van with license plate number YZC625 parked and unoccupied in a driveway. A license plate check indicated the van was registered to “All Seasons Home and Yard,” a lawn care business.

After returning to the police station and enlisting the aid of uniformed Officer Barnes, they returned to Hickory Street and observed at 6:40 p.m. the van being driven away by a male white subject. Neither Brictson nor Strickland recognized the driver. The driver stopped once to drop off a passenger, and then was stopped by Barnes in a marked squad car. Both detectives saw nothing unusual or suspicious about the van at any time prior to the stop, and the sole basis for effecting the stop was the information supplied by CATCH. Defendant was not pulled over as a result of any motor vehicle violation.

The driver of the van alighted from the driver’s side, leaving the door open, and walked back toward Barnes. Brictson and Strickland had pulled up next to the van. One of the policemen, with his revolver drawn, ordered the van’s driver up against the van, instructing him not to move, and Barnes frisked him.

Strickland and Brictson went to the van — Strickland from the passenger side and Brictson from the driver’s side. Strickland, peering through the window, saw a beer can on the dash, but could not tell if it contained anything. He opened the door, reached in and felt the can which “was cold and had some beer in it.” Brictson opened the black, zippered pouch which had been partially protruding from underneath the driver’s seat and observed what appeared to be a machine pistol.

Up to this point, no one had asked the driver for his name or identification and the officers did not ask nor did defendant grant his permission to go inside the van. Brictson asked the driver for his name and date of birth, learning that he was Moraca, the defendant. Brictson ran a driver’s license check through the communications center and learned that Moraca's driver’s license was presently suspended.

Defendant was handcuffed and escorted by Brictson and Barnes to the paddy wagon which had arrived to transport him. Before placing defendant in the wagon, Brictson conducted a second search of his person, whereupon a green bank bag fell from defendant’s coat to the pavement. Brictson opened the bag and observed a quantity of what he suspected was cannabis inside. From the trial court’s order finding this stop violative of defendant’s fourth amendment rights, the State brings this interlocutory appeal.

The State argues that the stop was justified as a result of the rule announced in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, where the Supreme Court recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” (392 U.S. 1, 22, 20 L. Ed. 2d 889, 906-07, 88 S. Ct. 1868, 1880.) In Terry, the court authorized a brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. (392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 905-06, 88 S. Ct. 1868, 1880.) Specific and articulable facts and not a hunch must exist to justify a Terry stop. Where the officer justifiably believes that the suspicious individual is armed and is presently dangerous, the officer may conduct a limited protective search for concealed weapons. (392 U.S. 1, 24, 20 L. Ed. 2d 889, 908, 88 S. Ct. 1868, 1881.) Though Terry involved the stopping of a pedestrian, the same test is applicable to the stopping of a vehicle. See 3 W. LaFave, Search & Seizure sec. 9.3, at 33 (1984 Supp.), citing Mosley v. State (1981), 289 Md. 571, 425 A.2d 1039.

A reviewing court will not reverse the trial court’s finding on a motion to suppress unless the finding is manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 165.) The trial court here specifically found that the only basis for the stop was the information provided by the CATCH organization which was “conclusionary” and that “the information provided to the police did not provide any basis or set out any articulable facts upon which the police could have possibly formed any opinion as to the possible [sic] cause to make any stop of the defendant of of [sic] his vehicle under Terry or any other authority to stop and frisk.” These findings should be reversed only if they are manifestly erroneous.

On appeal, the State concedes that the sole basis for its information regarding defendant was from the informant’s tip relayed through CATCH. The State principally relies upon two decisions which it argues support reversal of the lower court. In Adams v. Williams (1972), 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921, a police officer was approached by an informant who told the officer that an individual seated in a nearby vehicle was carrying narcotics and had a gun tucked into his waist. The officer approached the car, tapped on the window and asked the defendant to open the door. Instead, the defendant opened the window and the officer reached into the car and removed the gun which was tucked into the defendant’s waistband. The Supreme Court upheld the stop as conforming with Terry standards.

The State argues Adams is controlling because the Supreme Court found that the tip justified the stop even though the informant had never supplied any tips relating to narcotics and none of his information had resulted in an arrest. Adams, however, is distinguishable from the instant case in several important respects. While the court did reject the defendant’s contention that a stop could only be based upon an officer’s personal observations and not upon a tip, the court acknowledged that the officer in Adams in addition to the tip also stopped the defendant because he “was sitting alone in a car in a high-crime area at 2:15 in the morning.” (407 U.S. 143, 147, 32 L. Ed. 2d 612, 618, 92 S. Ct. 1921, 1924.) In contrast to those suspicious circumstances, the officers in the instant case specifically testified that there was nothing unusual about the van or driver prior to the stop.

Another distinguishing factor is that the informer in Adams was known to the officer personally and had provided information in the past. Furthermore, the officer testified that he believed the informant was reliable. The alleged criminal activity also distinguishes these two cases. The defendant in Adams was supposed to be carrying narcotics and a gun, both of which could easily be disposed of if the officer did not attempt to preserve the status quo. While this case also involved a gun and narcotics, the police were also interested in observing defendant operating the van, which could then form the basis for the motor vehicle violation of driving on a suspended license. For this offense, the officers did not need to stop the van without first obtaining additional specific articulable facts. For example, the police could have first determined that defendant’s license was in fact suspended, could have obtained a description of defendant prior to making the stop, and could have attempted to determine the relationship between Moraca and the business which was the registered owner of the van.

Unlike the instant case, in Adams the informer spoke directly to the officer and the information was immediately verifiable at the scene. The Adams court expressly distinguished its facts from those involving an anonymous tip like the instant case.

“This is a stronger case than obtains in the case of an anonymous telephone tip. The informant here came forward personally to give information that was immediately verifiable at the scene.” (407 U.S. 143, 146, 32 L. Ed. 2d 612, 617, 92 S. Ct. 1921, 1923.)

The informant in Adams told the officer that the individual was currently carrying narcotics and had a gun at his waist. The tip relayed to the police here by CATCH only informed police that defendant was “in possession” of cannabis and a machine gun, but did not specify whether these items were even on his person or in the van. While Brictson testified that Strickland told him that the cannabis and gun were in the van, Strickland’s description of the contents of the tip indicate only that the gun and cannabis were in Moraca’s possession. For these reasons, we find Adams distinguishable from the case at bar.

The State also relies on People v. Miller (1975), 36 Ill. App. 3d 542, 345 N.E.2d 1, where the court upheld a Terry stop. In Miller, the informer advised the police that a stolen red International dump truck with a white painted grill was operating in a certain area and was leased to Southern Illinois Black Truckers, Inc., the defendant’s company. Acting on this information, the officer stopped the truck and ran a vehicle identification check which indicated the truck was not stolen. A subsequent stop, however, uncovered evidence that the truck was stolen. In challenging the initial stop, the defendant argued that the State failed to substantiate how the informer reached his conclusions and that the tip alone was insufficient to stop the truck. In a supplemental opinion on a denial of rehearing, the Miller court held that the officer had effected a valid Terry stop. The Miller court noted that the officer had known the informant for two or three years prior to the tip. This fact distinguishes Miller from the instant case, where not only was the informant not known to the officer, but the informant did not even speak directly with him concerning the tip. Also, the informant in Miller told the police that the truck was stolen. Therefore, the identity of the driver was not critical. Here, in contrast, the informant told police that a person named Moraca was driving on a suspended license. Ascertainment of defendant’s description was essential, therefore, before the police could entertain a reasonable suspicion that a crime was being committed. Likewise, the trial court could have found that the tip here was deficient in not providing the officers with a reasonable basis for suspecting that the contraband was in the van. We believe Miller does not support the State’s position that the trial court’s order here was manifestly erroneous.

Another infirmity is that the informant here never spoke to the police officers directly and thus, they had no basis for determining the informant’s knowledge or reliability. Recently, the Supreme Court in Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, considered an informant’s tip in a slightly different context. There, a letter was sent by an unidentified informant to the Bloomingdale police department stating the defendants were drug dealers and predicting they would travel to Florida and return with drugs in their car. Specifically, the letter accused the Gates by name of making their living selling drugs, stated the location of their residence, and described their routine for drug purchases. The informant also predicted the wife would drive to Florida on May 3, and that the husband would subsequently fly to Florida and drive the car back to Illinois with the drugs in the trunk.

The Supreme Court agreed with the conclusion of the Illinois Supreme Court that the anonymous letter standing alone was insufficient to support a probable cause finding. As the Supreme Court stated, “The letter provides virtually nothing from which one might conclude that its author is either honest or his information reliable; likewise, the letter gives absolutely no indication of the basis for the writer’s predictions regarding the Gates’ criminal activities.” (Illinois v. Gates (1983), 426 U.S. 213, 227, 76 L. Ed. 2d 527, 541, 103 S. Ct. 21317, 2326.) While Gates analyzed the sufficiency of the information conveyed by the informer in relation to a probable cause determination as opposed to the stop-and-frisk issue presented here, the infirmities noted above are relevant to the tip here. Nothing in the phone call relayed to the police by CATCH in the case at bar demonstrates that the informant is honest or reliable or indicates any basis for his knowledge of defendant’s illegal activities.

Gates, like the instant case, also involved facts which corroborated the information provided by the informant. In Gates, the detective provided an affidavit with the following corroborative facts. An investigation subsequent to the receipt of the letter confirmed that Lance Gates of Bloomingdale had been issued a driver’s license and that an “L. Gates” had made an airline reservation for Florida on May 5. Lance Gates was observed boarding the flight in Chicago, deplaning in Palm Beach, Florida, and later staying overnight with a woman in a room registered to Susan Gates. The next day, the couple was observed driving north on a road commonly used by persons traveling to Chicago. The license plate number on the car was registered to another car which was owned by Gates.

The Supreme Court applying a new “totality of the circumstances” test held that this affidavit which confirmed “major portions of the letter’s predictions” together with the letter provided the judge issuing the warrant with a sufficient basis for concluding that probable cause existed to search the Gates’ home and car. (Illinois v. Gates (1983), 462 U.S. 213, 246, 76 L. Ed. 2d 527, 553, 103 S. Ct. 2317, 2336.) In contrast, the only corroborating events here which occurred prior to the stop were that the police located a blue van in the vicinity of Hickory Street with a specified license plate number.

The State argues that the existence of the black and green bag found by the officers constitutes further corroborative evidence of the informant’s tip. However, this argument amounts to an attempt to bootstrap the subsequent discovery of the drugs and weapon to justify the initial stop. Only corroborative facts known to the officer prior to the stop should justify a Terry stop.

Since we conclude that the trial court’s order was not manifestly erroneous, we need not reach the question whether the subsequent searches violated defendant’s fourth amendment rights.

The order of the circuit court of Kane County is affirmed.

Affirmed.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE HOPF

text:
    PRINTPACK, INC., Plaintiff and Counterdefendant-Appellee and Cross-Appellant, v. CONTAINER TECHNOLOGIES, INC., Defendant and Counterplaintiff-Appellant and Cross-Appellee.
    Second District
    No. 83—427
    Opinion filed May 24, 1984.

      Gerald M. Miller and W. Scott Porterfield, both of Fishman, Merrick & Perlman, of Chicago, for appellant.
    James E. Doroshow, Leonard O. Abrams, Joel A. Haber, and Fred F. Herzog, all of Berman, Fagel, Haber, Maragos & Abrams, of Chicago, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant, Container Technologies, Inc. (CTI), entered into an agreement with Printpack, Inc. (Printpack). Printpack was to provide CTI with coated materials from which CTI would then make metallized toy balloons. After delivering its product and not being paid for its services Printpack sued CTI for $20,379.75. CTI counterclaimed, alleging Printpack had breached the contract and warranties contained therein. After a bench trial before the circuit court of Lake County the court denied damages for CTI and entered judgment in favor of Printpack on its counterclaim, awarding it $6,481.43 in damages. CTI appeals, and Printpack cross-appeals.

On appeal CTI contends that the trial court erred in awarding damages to Printpack after it found that Printpack had breached the contract in issue. CTI contends the trial court should have awarded it damages under the contract, as well as out-of-pocket expenses and lost profits.

In its cross-appeal, Printpack urges that the trial court erred in awarding it only 30% of the amount it had sought. Rather, Printpack urges on appeal, it is entitled to the full contract price. Printpack also contends that CTI waived strict compliance and any implied warranties of fitness because it instructed Printpack to proceed and use material it knew to be defective, and failed to provide specifications. Printpack also argues that CTI failed to reject the materials and, therefore, it cannot defend or recover on a breach of warranty theory.

CTI points out that in 1980 it was the sole producer of metallized balloons in the world. In October of that year, Larry Anderson, general manager of CTI’s Dallas plant, contacted Printpack and inquired if it would be interested in extrusion coating for CTI balloons. Prior to this only one other company had provided this service for CTI. Printpack, which had experience in extrusion coating for food packaging, agreed to do a trial run.

Michael Fisher, a sales manager for Printpack, testified that he had the initial contact with Larry Anderson. CTI placed an initial order to have Printpack coat 2,000 pounds of material with polyethylene. Fisher testified that he received a specification sheet from Anderson, and that with the exception of what came to be known as exhibit No. 4, he received no additional instructions before Printpack entered into an agreement to do a second batch of work. Fisher also testified that the instructions he did receive from CTI included a request that the printer or converter, such as Printpack, review the specifications with them and help them to develop formalized specifications. He indicated there were no formal specifications on the bond strength and that plaintiff’s exhibit No. 4 contained the only written specifications received from Anderson.

Howard Schwan, plant manager for CTI, testified that Tom Brown came in from Printpack to pick up some materials. Schwan gave him some samples of the test batch and advised him the bond level was substandard. In mid-November of 1980 Brown and James Hartzfield visited CTI again. During the second visit the men from Printpack were shown that the balloons would not hold air and therefore were unacceptable. Brown testified that the balloon would break where a wrinkle ran through the seal. Brown also testified that he did not receive any specifications while he visited CTI’s plant. Patrick Winters, vice-president and general manager for CTI, testified that he had met with Brown and Hartzfield and had discussed the need for having a certain destruct level bond for the balloons. Winters also testified that Brown or Hartzfield indicated to him that the problem with the heat seal could be corrected. Brown indicated that CTI placed a second order for material with Printpack after their meeting, and that when they received that material they were continuing to have sporadic problems with it. Winters testified that 70% of material that they had run was “dubious and couldn’t be shipped.”

Printpack was paid for coating the initial order on December 8, 1980. According to Fisher, regional sales manager for Printpack, there had been an initial complaint regarding the material not sealing properly but after subsequent follow-up they were told the material in fact performed satisfactorily. At that point CTI issued a check for approximately $4,000 to Printpack. Also on December 8, 1980, Larry Anderson placed an additional order for 2,000 pounds of material with Fisher.

CTI relates that due to problems with the seals approximately 5,000 pounds of Printpack coated material remains at CTI because it could not be made into balloons. Roughly, 30,000 balloons were returned to CTI from customers.

Printpack stresses the contention that the material delivered to it was defective. Some of it would not go through Printpack’s equipment and according to Allan Gastinger, plant manager for Printpack in Grand Prairie, Texas, 13 rolls of material were defective and had to be returned. Gastinger testified that their concern was with the wrinkles on the material. According to Gastinger and Perry Fowler, quality control and customer service supervisor, Anderson was present when concern regarding wrinkles in the material was discussed. Anderson acknowledged the condition of the material but indicated that since it had already been metallized and printed it should be coated— otherwise it would be unusable to CTI. According to Fisher, sales manager for Dallas, Gastinger told Anderson that if there were wrinkles on the material the extrusion coating on the film would not provide the type of sealant web that CTI had required. At this time a piece of material was pulled off the roll and an attempt was made to pull apart the bond between the extrusion coating and the polyethylene. The bond could not be pulled apart and Anderson indicated that the material would be acceptable. When he was advised that some of the material might not go through the Printpack machinery Anderson stated that the investment had already been made in the film and the only way it would be salvageable would be if it was coated. Thus, Printpack went ahead and processed the material.

According to Tom Brown, technical manager for Printpack, Print-pack received no complaint about the material it had shipped to CTI. The complaint did not arise until Printpack requested payment for the services. In fact according to the testimony of Fisher, Printpack’s sales manager, in January of 1981 he spoke with Anderson, CTI’s general manager in Dallas, and asked him if there was a reason why the invoices had not been paid. Anderson advised him that he knew of no reason for the nonpayment.

Printpack subsequently filed a complaint against CTI seeking $20,279.75 due for the coating materials for CTI. CTI filed affirmative defenses as well as a counterclaim and alleged that Printpack had breached its agreement and warranty with CTI. CTI claimed it was Printpack’s responsibility to cover CTI’s costs for the coated material which it could not sell or use and that Printpack should bear the burden for loss of profits arising from the materials that could not be used.

As indicated, the trial court ruled that Printpack was entitled to an award of $6,481.43, an amount equal to 30% of the amount charged by them for the coating, plus $525 for other services Print-pack provided. The trial court ultimately found that a three- or four-page specification provided by CTI was never delivered to the plaintiff in this case. The court found that, at best, Printpack had a simple order form which ordered that 15,000 pounds of nylon be processed.

The first contention raised on appeal is that the trial court erred as a matter of law in awarding damages to Printpack after ruling that Printpack breached its contract with CTI.

CTI contends that there was a contract between it and Print-pack for the extrusion coating of certain materials, and that the purpose of the contract was for Printpack to coat material in a manner which would effect a proper seal for making balloons. CTI urges that the trial court correctly ruled that Printpack breached its contract with CTI. The court found that over 70% of the material coated by Printpack was inadequate for use as balloons. CTI takes this analysis a step farther. It urges that while the court properly ruled that a contract did exist, and that Printpack breached that contract, the trial court erred in awarding damages to Printpack. We disagree.

The basis of CTI’s contention in this regard is that Illinois courts have held that a party cannot recover under a contract unless that party has performed all his material obligations thereunder. Thus, CTI contends, Printpack cannot recover any portion of the purchase price of goods or materials sold if the goods are defective. In support of this contention CTI relies on the case of Fryison v. McGee (1982), 106 Ill. App. 3d 537, 436 N.E.2d 12. In Fryison, plaintiff sued to enforce a contract for the sale of real estate to defendant. The trial court entered a summary judgment in plaintiff’s favor. On appeal the court noted that one seeking to recover on a contract must have substantially complied with all of the material terms of that contract. The court held that plaintiff in Fryison had not done so. Accordingly, she had failed to establish her right to summary judgment and the cause was reversed. Fryison is inapposite. In the case at bar the contract was not a simple real estate transaction, but an agreement to perform a new and untried service.

Similarly, we believe Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App. 3d 46, 430 N.E.2d 620, is inapplicable to the instant case. In Godare plaintiff filed suit to recover pension benefits due from a former employer. The court noted that the contract between the parties provided that one who sought to claim disability was required to have a medical examination prior to age 65. Because plaintiff failed to satisfy the condition precedent of that agreement the court held no contractual liability results. (Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App. 3d 46, 52, 430 N.E.2d 620, 624.) Unlike the contract in Godare, in the case at bar there was no specific condition precedent that one party failed to perform. Morris v. Wibaux (1895), 159 Ill. 627, 43 N.E. 837, is also of no assistance to CTI. Morris was a contract for the purchase of cattle, which had specific terms for delivery that were not complied with. In the instant case the terms of the contract were not so specific as to require that Print-pack be held entirely at fault.

CTI also contends that the trial court erred in that it was attempting to apply a comparative negligence standard to this contract. We disagree. It is clear that a number of circumstances exist which warrant the imposition of an amount of damages less than the full contract price. Further, it has been held that the findings of the trier of fact will not be disturbed when the evidence is contradictory. Unless the findings of the trial court are manifestly against the weight of the evidence they should not be disturbed. (Brown v. Zimmerman (1959), 18 Ill. 2d 94, 163 N.E.2d 518.) In the instant case the trial court found that the agreement entered into between the parties was experimental and that both sides were prepared to take some risks. This conclusion is supported by testimony presented at trial. For example, John C. Davis, chief executive officer of CTI, testified that in 1980, when it was the only manufacturer of metallized balloons in the world, it was paying $4 a pound for Glenroy to provide extrusion coating for its product. By contrast, the invoice prepared by CTI for Printpack to do extrusion coating provided that it would be done for $1.65 a pound. Further, Davis was aware that Printpack was not experienced in this particular type of extrusion coating. This evidence, together with the testimony that Larry Anderson, general manager for CTI in Dallas, advised Printpack’s employees to run the material regardless of any wrinkles that it had, does not support CTI’s contention that the trial court erred in awarding damages to plaintiff because plaintiff breached its contract.

CTI’s next contention on appeal is also based on the presumption that the trial court found Printpack had breached its contract with CTI. CTI urges that, because Printpack breached its contract, CTI is entitled to damages. CTI contends that' the evidence is uncontroverted that it is entitled to its out-of-pocket expenses and lost profits which it could have earned on the balloons had they not been defective. In support of these contentions CTI points to the language on the back of the purchase order which stated:

“[S]eller expressly warrants that all the products, material and work covered by this Purchase Order will conform to the specifications, drawings, samples or other descriptions furnished or adopted by purchaser and will be fit and sufficient for the purposes intended, merchantable, of good material and workmanship and free of defects ***.”

Although the above-quoted invoice language provides for warranties, it also provides that the warranty is that the material and work covered by the order will conform to the specifications furnished or adopted by the purchaser. In the instant case the court found that the parties had not agreed upon specifications, that CTI had not provided Printpack with specifications, and, therefore, that no warranties were made between the parties. The trial court also noted that there were obligations on the part of both parties that were not entirely complied with. Our review of the record leads us to conclude the trial court ruled properly in this regard.

CTI also contends that it is entitled to out-of-pocket expenses of $40,320 (at $0.12 per balloon) and lost profits of $33,600. While these claims did, as CTI contends, go uncontroverted, for the reasons stated we see no basis for making Printpack responsible for these amounts. CTI has not proved that the contract contemplated that Printpack would be responsible for CTI’s lost profits. The evidence indicates that many of the elements of this contract were speculative. CTI was seeking a substantially less expensive provider of extruded materials, and Printpack was not familiar with the procedures for applying this particular extrusion. According to the record, both parties agreed to run wrinkled materials despite the apparent problems it could cause. Both CTI and Printpack were taking risks in entering into the contract. CTI has not supported its contention that Printpack was to be responsible for any lost profits that may result from the agreement. We affirm the trial court in this regard.

CTI contends that the Uniform Commercial Code allows incidental and consequential damages in the case at bar. (Ill. Rev. Stat. 1981, ch. 26, pars. 2 — 714, 2 — 715.) However, this issue was not brought to the attention of the trial court, was not argued before it, and thus the argument cannot be asserted on appeal. (Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 969-70, 424 N.E.2d 1279; State Farm Fire & Casualty Co. v. Kohen (1981), 98 Ill. App. 3d 860, 864, 424 N.E.2d 992, 995.) This would also be true of Print-pack’s contention that CTI failed to reject the material it had been sent, and thus is liable for the entire price of the goods sold, under sections 2 — 601 and 2 — 607 of the Uniform Commercial Code. (Ill. Rev. Stat. 1981, ch. 26, pars. 2 — 601, 2 — 607.) This contention was not argued before the court and is waived for purposes of review.

Turning to Printpack’s cross-appeal, the first contention is that Printpack is entitled to the entire contract price. Printpack urges that CTI was attempting to avoid its obligation to pay and that it never complained about the quality of the work. The record does not support this contention. Printpack concedes in its brief that CTI complained about the defects in the material one month after they were received by CTI, in January of 1981. CTI urges its decision not to pay was not an afterthought. On the other hand, the trial court specifically found that Printpack had breached the contract it had with CTI to the extent of 70%. While Printpack contends it is entitled to the full contract price from CTI, it does not present a convincing argument that it fulfilled all its contractual obligations.

Printpack next argues that because this is an experimental contract Printpack is not to be denied payment because the article produced was defective. In support of this it cites Fish v. Chicago Stamping Co. (1895), 58 Ill. App. 663. Fish was an action in assumpsit, in which the defendant ordered 1,000 molds to be made. Defendant agreed that he may purchase 10,000 at a future date but that if he did not order the 10,000 he would pay the cost of making the tools for plaintiff. After the defendant complained that the molds did not suit him, he refused to pay plaintiff’s costs for having made the tools. The trial court found that the defective condition of the molds was not owing to any fault of plaintiff and ordered the defendant to pay for plaintiff’s costs for making the tools. On appeal this decision was affirmed. As Printpack points out, Fish is factually similar to the case at bar in that both cases involve an experimental contract. However, Fish does not support Printpack’s contention that it is entitled to the full contract price. Rather, we believe Fish supports the trial court’s finding in the case at bar that when parties enter into an experimental contract the risks involved should be shared between them and the contract should not be enforced in full.

Printpack next urges that CTI, by its actions, conduct or silence, waived strict compliance with the terms of the contract and lulled Printpack into the false assurance that strict compliance was not required. In support of this contention Printpack relies on Forman v. Benson (1983), 112 Ill. App. 3d 1070, 446 N.E.2d 535. Forman was a case where plaintiff sought specific performance of a real estate installment contract. Therefore it is distinguishable from the instant case where no real estate is involved. Further, as previously discussed herein, CTI did complain about the product in January of 1981, soon after it received the material. Thus, it is clear that CTI did not, by its inaction, waive strict compliance with the agreement.

In sum, we believe the trial court’s resolution of the problems presented in this case was very reasonable. Neither CTI nor Printpack has presented an argument so compelling as to warrant disturbing the trial court’s findings.

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

Affirmed.

SEIDENFELD, P.J., and REINHARD, J., concur.


author: JUSTICE REINHARD

text:
    NANCY BENDER, Plaintiff-Appellee, v. CONSOLIDATED MINK RANCH, INC., Defendant-Appellant.
    Second District
    No. 83—606
    Opinion filed June 1, 1984.
    Burl E Nader, of Libertyville, for appellant.
    Joel Ostrow, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Consolidated Mink Ranch, Inc. (Mink Ranch), appeals from an order of the circuit court of Lake County which, on the motion of Nancy Bender, dismissed its petition for release of judgment. This petition was in the nature of a writ of audita querela pursuant to section 12-183(g) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 12-183(g)).

On appeal Mink Ranch contends that the trial court erroneously found that the petition failed to state a cause of action. Bender defends the judgment on its merits and further asserts that this appeal should be dismissed as moot.

The background to the original dispute between the parties is set out in this court’s prior opinion in Bender v. Consolidated Mink Ranch, Inc. (1982), 110 Ill. App. 3d 207, 441 N.E.2d 1315. In that case Nancy Bender as plaintiff, filed a two-count complaint alleging conversion and breach of contract, and secured a judgment in the amount of $17,600 against Mink Ranch, defendant therein. Mink Ranch appealed and this court affirmed the judgment in an opinion filed November 1, 1982.

On June 9, 1983, Mink Ranch filed a two-count “Petition for Release of Judgment Pursuant to Sec. 12-183(g) Code of Civil Procedure” (Ill. Rev. Stat. 1983, ch. 110, par. 12-183(g)). In that petition, Mink Ranch alleged 11 occasions on which acts of vandalism involving the cutting of fences and the release of minks from their cages had taken place on its premises from May 2, 1982, to February 18, 1983. The petition further stated that in the early morning hours of February 18, 1983, William Bender, Nancy Bender’s spouse, was arrested in the vicinity of its ranch and charged with criminal damage to property and theft under $300, which criminal charges were still pending as of the filing of the, petition. Mink Ranch alleged that William Bender had caused the damage to its premises while acting in his spouse’s behalf and as her agent. These acts were allegedly done for the purpose of forcing Mink Ranch to abandon its appeal rights and to force an immediate payment of the judgment. The timing of certain of the acts was alleged to be related to the completion of the various steps in the appellate process of the original case. Mink Ranch therefore requested a partial release of Bender’s judgment of $9,000, representing the amount of damages to the ranch premises and the cost of security measures instituted as a result of the vandalism, plus punitive damages of $25,000.

Mink Ranch accompanied its petition with the affidavit of Willard J. Nieland, its president, to the effect that he had observed William Bender in the process of damaging ranch property on February 18 and that Mr. Bender “had personally involved himself at all stages of his wife’s case against defendant by appearing at depositions, giving testimony in Court in her behalf on critical issues in the case, etc.” Bender moved to dismiss the petition contending that the petition failed to state a cause of action, that the petition’s allegation that Mr. Bender’s conduct was done to force payment of the judgment was purely speculative, that the petition failed to state the elements of an agency relationship between Bender and her, and that an agency relationship could not be predicated solely upon the Benders’ marital relationship. The motion to dismiss was granted by the court below without specifying on which basis the petition was dismissed.

Section 12-183(g) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 12-183(g)) provides, in pertinent part, as follows:

“The writ of audita querela is abolished and all relief heretofore obtainable and grounds for such relief heretofore available, whether by the writ of audita querela or otherwise, shall be available in every case by petition hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceeding in which it was entered.”

The relief provided by this statute was formerly available under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72(1)). The writ of audita querela, now replaced by motion, “enabled a judgment debtor to avoid execution by pleading satisfaction or discharge of the judgment, or a good defense to the claim which was not asserted owing to the fraud of the judgment creditor.” (Ill. Ann. Stat., ch. 110, par. 72, Historical & Practice Notes, at 289 (Smith-Hurd 1968).) At common law, the writ of audita querela was in some cases available to a judgment debtor seeking to set aside a judgment on the basis of fraud or other misconduct on the part of the judgment creditor, prior to its rendition, and was also available to seek relief from the consequences of a judgment because of matters arising subsequent to its rendition, such as discharge, payment, or other satisfaction. Russell v. Klein (1974), 58 Ill. 2d 220, 223-24, 317 N.E.2d 556; see also American National Bank & Trust Co. v. Pennsylvania R.R. Co. (1968), 40 Ill. 2d 186, 238 N.E.2d 385; Louis E. Bower, Inc. v. Silverstein (1938), 298 Ill. App. 145, 18 N.E.2d 385; Barnett v. Gitlitz (1937), 290 Ill. App. 212, 8 N.E.2d 517.

Mink Ranch contends that even after a final judgment has been affirmed on appeal, it “must stand as a complaint subject to the defenses, set-offs, credits, and equities that a defendant may assert against any complaint once the parties’ relationship has been completed and terminated, as only then may the real final judgment be made on all of the merits between the parties.” In essence, it argues that section 12-183(g) may be utilized to prevent execution on a judgment where any other matter of dispute between the parties, even when unrelated to the merits of the original judgment, is asserted by the judgment debtor.

The import of the above authorities regarding the nature of audita querela is that such relief would prevent execution of a judgment where a matter of defense to the original action was not raised by the judgment debtor on account of the creditor’s fraud or other misconduct. With regard to matters arising after judgment, the writ was available on account of such matters as discharge, payment, release or other matter entitling the judgment debtor to issuance of a satisfaction of judgment. There is no authority for defendant’s position here which would treat a judgment as a matter akin to a complaint against which the judgment debtor may assert, virtually by way of counterclaim, new causes of action not reduced to judgment and not involving the same controversy presented by the original suit. No court in any jurisdiction appears to have extended audita querela relief to encompass such a claim. (See 7 Am. Jur. 2d Audita Querela sec. 3 (1980).) The basis of Mink Ranch’s petition pursuant to section 12-183(g) involves alleged conduct subsequent to the original judgment and does not allege relief is justified because of discharge, payment, or other such satisfaction. We conclude that section 12483(g) is not available under the basis alleged in the petition here. The allegations of the petition, if actionable at all, may form the basis of a separate lawsuit only. For the foregoing reasons, this petition failed to state a basis for relief pursuant to section 12483(g) and was properly dismissed.

Bender also has argued in her brief that this appeal should be dismissed as moot because the original judgment was satisfied by the bonding company which had secured the judgment pending the original appeal which was subsequently affirmed by this court. Although this contention might have merit, there is nothing of record to factually support this argument, nor has Bender sought to supplement the record or bring this fact before us by the express acknowledgement of both of the parties.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

SEIDENFELD, P.J., and HOPF, J., concur.


author: JUSTICE BARRY

text:
    RICHARD LEONARD, A Minor, by Karen Leonard, his Mother and Next Friend, Plaintiff-Appellant, v. PITSTICK DAIRY LAKE AND PARK, INC., Defendant-Appellee.
    Third District
    No. 3-82-0722
    Opinion filed May 11, 1984.
    Rehearing denied June 28, 1984.

      Stephen J. Heine, Peter F. Ferracuti, and Karen L. Kendall, all of Peter F. Ferracuti & Associates, of Ottawa, for appellant.
    T. Donald Henson and Walter J. Zukowski, both of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of La Salle, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Richard Leonard was rendered a quadriplegic as a result of a spinal cord injury incurred when he performed a running dive in the shallow water at defendant’s commercial lake in La Salle County, Illinois. Plaintiff filed a suit for personal injuries against Pitstick Dairy Lake and Park, Inc., the corporate owner-operator of the beach, and after a lengthy jury trial, the jury returned a verdict for defendant. Plaintiff appeals.

The swimming lake was deepest in the center where two diving rafts were located and where the water was 11 feet deep. About 57 feet from the edge of the water, a steel cable marked the limit of the shallow water, dividing the diving area from the wading and swimming area. From the water’s edge at the beach, the water sloped downward at a fairly even rate of decline to the cable where the water was about four feet deep. Lifeguards were located on elevated chairs on all sides of the lake, and all were equipped with a telephone system to communicate between guard stations. A loudspeaker system was also in operation which could be heard throughout the swimming area.

On June 14, 1979, plaintiff was 15 years old and had just completed his first year of high school. He was 5 feet 10 inches tall and had grown nearly 2V2 inches since the previous summer. He had been swimming at Pitstick Lake six or seven times the previous summer and several times during earlier seasons, but had not been swimming yet during the summer of 1979. He arrived at the beach shortly after noon with several high school friends. One of the boys did not feel well, so plaintiff stayed with him at the bath house while the other boys went down the beach and entered the water. A short time later plaintiff went down the beach alone, stopped at the water’s edge to test the temperature of the water with his foot, and then began a loping trot in the water. About one-half way to the cable, when the water was just above his knees, plaintiff put his hands out above his head and performed a horizontal dive into the water, which at that point was about 2V2 feet deep. His hands hit the bottom of the lake followed by his head with sufficient force to jam his chin into his chest. He heard a pop and felt a sharp pain in his neck and a strong tingling sensation through the rest of his body. He was then aware that he was floating face down in the water, but he was not able to move. He held his breath until he was rescued by a lifeguard who had seen him floating face down in the water with his head twitching. The life guard realized that something was wrong.

Plaintiff was hospitalized for seven months with a crushed fourth cervical vertebra and a displacement of the third cervical vertebra. He has some feeling but almost no movement from the neck down except for some ability to move with his arms. He has some minimal ability to feed himself and to write, but he is totally dependent on others for bathing, dressing, transportation, meal preparation, and general care. He suffers from severe muscle spasms which require him to be strapped into a wheel chair to avoid being thrown out. He can expect no significant improvement for the remainder of his life. He now lives at home where his parents care for him under the supervision of a physical therapist. He has been able to complete high school and to receive a diploma at the same time as the rest of his classmates.

Plaintiff filed suit against defendant corporation, and the cause was tried before a jury upon the theory that defendant was negligent in permitting young persons, including plaintiff, to perform surface dives in shallow water and in failing to post signs warning of the danger. On appeal from the verdict in favor of defendant, plaintiff asserts as error numerous rulings on the admission of evidence and on jury instructions and also asserts that the verdict was contrary to the manifest weight of the evidence.

As is to be expected in a hotly contested trial of four weeks’ duration, some errors occurred and certain statements were made which the jury should not have heard. Most of the errors were not of a gravity to be considered reversible error, but two of the erroneous rulings were of sufficient magnitude to affect the outcome of the trial and, therefore, denied plaintiff the fair trial to which he was entitled under laws of the State of Illinois.

Of critical importance was the ruling of the trial court refusing to permit plaintiff’s expert witness to express an opinion as to whether it was an unsafe practice to permit surface dives in the shallow water at defendant’s beach. According to James Farson, defendant’s manager of the bathing beach, no effort was ever made to prevent shallow water diving. The manager testified that he saw many young people perform such dives, and he had dived shallow himself when swimming. By his testimony, the manager left no doubt that such diving was observed, permitted and condoned by defendant in the operation of the beach. The “Beach Safety Rules” posted on the bath house prohibited running or throwing sand, wrestling and pushing on the raft and tower, ball playing on the beach, inflated toys outside the “rope,” and playing on the “ropes.” However, the “Safety Rules” made no reference to diving.

The manager’s testimony that shallow diving was permitted was corroborated by two patrons of the beach, Craig Totel and John Fuller, who testified that they had made many such shallow water, running dives at Pitstick Lake and had never been warned of the possible danger. Two lifeguards employed by defendant, Sue Bohannon and Keith LeBeau, also testified that they had made many running dives in shallow water themselves and that they had observed many bathers making such dives at Pitstick Lake before June 14, 1979, and they were never told to stop such diving practice.

Finally, Edwin Pitstick, owner of the bathing beach lake, testified that he never knew of anyone getting hurt doing a shallow dive, that he did not perceive any danger to youngsters doing shallow dives before this accident, that it never crossed his mind that a dive in shallow water would likely cause injury, and that he permitted running dives in shallow water. At trial, it was defendant’s position that the corporation had no knowledge of any danger from permitting shallow dives and, therefore, was not negligent in permitting such dives and in failing to warn.

Plaintiff called as a witness Dr. George E. Lawniczak who had done studies, research, and writing in the field of biomechanics, particularly diving mechanics. He testified that he has studied the trajectory and speed of the human body at various points during a dive, the angles associated with a dive, the forces that may result from contact with a barrier, and the general subject of motion during a dive. In addition to other areas of study and research, Dr. Lawniczak has been retained by a swimming pool company to advise as to safety and warning signs. The witness had visited defendant’s lake prior to trial and had walked the bottom of the lake, examined signs, and viewed the layout and composition of the lake bottom.

Dr. Lawniczak testified that there are 800 spinal cord injuries as a result of diving in the United States each year, that 94% of those injuries result in quadriplegia, that such injuries cause quadriplegia because only a minimal amount of force is required to break the neck and thereby damage the spinal cord, that 50% of all quadriplegias occur in the 15 to 25 year age group, and that 82% are male. Such injuries do not occur with younger children because they are shorter, weigh less, and lack the strength to generate sufficient force to cause a neck fracture. The most common type of injury is that experienced by plaintiff, where the head strikes the bottom in such a way that the chin is forced into the chest and the extreme flexion of the neck causes fractures and dislocation of the cervical vertebrae. The witness stated that 300 pounds of force will result in a spinal cord injury, and in an incident of the type which occurred here about 1,800 pounds of force would be generated by plaintiff’s contact with the bottom of the lake.

The expert witness further testified that a person five feet tall will slow down to half the diving speed in approximately five feet of travel through water, while a person six feet in body length will require eight feet to slow down to one-half the speed at water entry. This is because the center of mass of the longer body is out of the water longer, and as a consequence, the speed of the head can actually increase during the first two feet after entry into the water. Also, the taller person is more likely to rotate his body downward upon entry into the water.

After the witness testified to all the studies relied upon and the scientific data derived from his own research, plaintiff attempted to ask the witness whether in his opinion it was an unsafe practice for defendant to permit youngsters such as plaintiff to make a running head-first entry into the wading area. The trial court sustained defendant’s objection on the ground that this question does not require expertise and that it is an issue for the jury to decide. The court made identical rulings as to additional questions posed by plaintiff, including what in the doctor’s opinion was a safe minimum diving depth at Pitstick Lake, what steps should have been taken by defendant for the safety of untrained divers, and what means could have been used to accomplish a prohibition of diving in the wading area.

According to plaintiff’s offer of proof, plaintiff’s expert would have testified that it was unsafe to permit plaintiff to dive in shallow water, that the degree of force required for a young person to break his neck is so minimal that it is not understood, that 95% of all diving injuries occur in shallow water, that the safe minimum diving depth at defendant’s lake was eight feet, that the accident could have been prevented if the lifeguards had been instructed to prohibit diving in shallow water and if warning signs had been posted. However, plaintiff was permitted to introduce into evidence, without objection, signs that would have been effective to warn of the danger of shallow diving.

Plaintiff contends that it was error to refuse to allow his expert witness to testify as to his opinion in the above instances, and that these rulings prevented him from placing before the jury the standard of care which he claims defendant violated. It was the plaintiff’s position that spinal cord injuries leading to quadriplegia occur as a result of shallow diving with sufficient frequency that defendant should have known the danger and should have taken steps to prevent young persons from making such dives.

Expert witnesses may state an opinion as to the ultimate issue of a case without usurping the province of the jury since the trier of fact is not required to accept the opinion of the expert. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 273 N.E.2d 809; Tripp v. Bureau Service Co. (1978), 62 Ill. App. 3d 998, 370 N.E.2d 324.) The limitation on the admissibility of opinion evidence as to the ultimate issue has been defined by the Illinois Supreme Court in Miller v. Pillsbury Co. (1965), 33 Ill. 2d 514, 516, 211 N.E.2d 733, 734, as follows:

“While there has been a reluctance to permit expert testimony on many matters on the basis that it invades the province of the jury, confuses the issues and usurps the function of the jury, the trend is to permit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation. The jury still may accept or reject such testimony.” See also Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 98-99, 382 N.E.2d 1201, 1205.

In the case at bar, the danger of diving head first into shallow water may seem at first glance to be a matter of common knowledge and understanding for which expert opinion is not needed. However, closer examination of the evidence indicates that the nature and extent of the danger of surface or horizontal diving by teenagers in all probability is not commonly understood, even by many adults of considerable experience. Neither the manager nor the owner of the beach operation realized the potential danger, particularly for young men of plaintiff’s size and age. The jury was denied the assistance of the opinion(s) of expert(s) which would have clarified the principles of speed, motion, force, and trajectory involved when a diver enters the water and comes in contact with an immovable barrier.

Of particular importance in this case is the question of what would be a safe depth of water to permit diving. In Pleasant v. Blue Mound Swim Club (1970), 128 Ill. App. 2d 277, 263 N.E.2d 107, plaintiff was severely injured following a dive from a diving board into a swimming pool. The water level had been lowered to a dangerous extent and an expert witness testified as to recognized standards of minimum depths of water recommended in diving areas under diving boards. The propriety of such testimony apparently was not challenged in Pleasant v. Blue Mound Swim Club (1970), 128 Ill. App. 2d 277, 263 N.E.2d 107, and similar testimony was discussed approvingly in the decision in Cummings v. Nazareth Borough (1967), 427 Pa. 14, 233 A.2d 874. In Cummings, the court stated:

“Among the duties relating to diving which have been imposed by the courts on the proprietors of bathing resorts or swimming pools are the duties to use care to provide *** water of a reasonable safe depth, free from obstructions, or to warn the patrons of the danger *** of the insufficient depth of, or obstructions in, the water.” (427 Pa. 14, 17, 233 A.2d 874, 877. See also Pleasant v. Blue Mound Swim Club (1970), 128 Ill. App. 2d 277, 284, 263 N.E.2d 107, 111-12; Annot., 48 A.L.R.2d 104, 129 (1956).)

Whether the particular type of diving known as surface or horizontal is dangerous when performed in a portion of the defendant’s lake intended for wading and swimming is, we believe, a matter where expert opinion is helpful and should be permitted. See McClure v. Suter (1978), 63 Ill. App. 3d 378, 379 N.E.2d 1376; Sherman v. City of Springfield (1966), 77 Ill. App. 2d 195, 222 N.E.2d 62.

One important factor in this case is the age of plaintiff at the time of the accident — 15 years of age. Illinois courts have said:

“ ‘The known characteristics of children should be taken into consideration in determining whether or not sufficient care for the safety of a child has been exercised in a particular case. Accordingly the fact that children cannot and do not ordinarily exercise the same degree of prudence and care for their own safety as adults imposes on those by whose acts or omissions a child may be injured the obligation of exercising more vigilance and caution than might be sufficient with respect to an adult and conduct which might reach the standard of ordinary care with respect to an adult might in the case of a child, amount to negligence or even gross negligence.’ 65 CJS Negligence sec. 12 ***.” Miller v. Veterans of Foreign Wars of the United States (1965), 56 Ill. App. 2d 343, 347, 206 N.E.2d 316, 319.

It was precisely the unique characteristics of teenage boys, newly grown taller and heavier and stronger, that in Dr. Lawniczak’s opinion made surface diving an unsafe practice in the shallow area of defendant’s beach. This opinion is similar to an expert opinion that was challenged in Stanley v. Board of Education (1973), 9 Ill. App. 3d 963, 293 N.E.2d 417, where the plaintiff was struck on the head by a baseball bat while on a school playground. An expert in playground supervision and game safety was allowed to testify that 30 feet was not a safe distance between an older batter playing fastpitch baseball and a younger group of children playing ball. The reviewing court undertook a thorough review of the rule relating to expert opinions and concluded that expert testimony should be allowed if it would aid the triers of fact in their understanding of the issues even though they might have a general knowledge of the subject matter. As the court in Stanley noted, the more modern view is expressed in Rule 702 of the Federal Rules of Evidence which provides:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert *** may testify thereto in the form of an opinion or otherwise.”

Although Rule 702 has not been adopted by the Illinois Supreme Court as yet, we believe the rule incorporates the better view as enunciated in Stanley.

The trial court in the case before us quite plainly disallowed expert opinion evidence which would have aided the jury in understanding the issues. The court did not recognize the special characteristics of teenagers, and did not take into account the scientific knowledge related to the issue of diving safety. We hold that ruling to be erroneous.

Defendant also claims that the trial court’s ruling should be sustained because Dr. Lawniczak was not qualified as an expert concerning beach operations and that his studies involved swimming pool diving only. The trial court ruled that Dr. Lawniczak was qualified to testify as to diving and diving safety, and we find that the record supports that ruling. Any distinction that can be drawn between surface diving in lakes and in swimming pools would go to the weight to be given his testimony and not its admissibility.

The prejudice to plaintiff resulting from the erroneous exclusion of Dr. Lawniczak’s opinion testimony was made much more severe by an error occurring in the course of closing argument. Dr. Lawniczak had referred to certain research data appearing in a text book by Dr. Richard Stone, but no attempt was made to admit the book into evidence. During closing argument, defense counsel read portions of the book to the jury. When plaintiff objected that this material had not previously been referred to during testimony, the trial court stated, “The jury heard what was read to the jury and they will disregard it if it was not so read.”

Defendant took advantage of the court’s ruling to paraphrase several additional statements from Dr. Stone’s book, including highly prejudicial statements of opinion going to the ultimate issues of the case. According to counsel, Dr. Stone recommended that depth markings and warning signs not be used because they give “a false sense of security,” and he further recommended “that general prohibitions against diving into shallow water in pools not be adopted.” On appeal defendant admits that the portions objected to have not previously been read to the jury. In closing arguments, counsel may not supply new or additional facts or read from scientific works not in the record. (See Flynn v. Cusentino (1978), 59 Ill. App. 3d 262, 375 N.E.2d 433; R. Hunter, Trial Handbook for Illinois Lawyers secs. 80.16, 80.22 (5th ed. 1983).) Here expert opinion not previously in evidence was vigorously urged upon the jury by defense counsel as conflicting with the opinion of Dr. Lawniczak that was excluded from the jury’s consideration. The court responded with an equivocal ruling. Coming at the end of a long trial, we believe counsel’s improper argument coupled with the erroneous exclusion of expert testimony constituted prejudicial error. Hence a new trial is required.

Another matter also deserves comment. To establish the value of the care that plaintiff requires, a manager from a home health care service organization testified to the cost of the services that plaintiff will need. On cross-examination, defendant’s counsel inquired, “Do you offer this type of program *** to people under federal subsidies?” This was an impermissible reference to a collateral source. (Phelan v. Santelli (1975), 30 Ill. App. 3d 657, 334 N.E.2d 391.) Although we are not prepared to say that this impermissible question amounted to reversible error under the circumstances, since plaintiff’s objection was sustained and the jury was instructed to disregard the answer, questions relating to collateral sources should not recur upon retrial.

Finally plaintiff has argued before this court that it was error to refuse to permit two other beach operators to testify to the signs which they have posted at their beaches prohibiting diving in shallow water. Evidence of custom and practice in the trade of beach operations would be relevant in determining the standard of care which defendant should meet, but that evidence is properly the subject of expert testimony. (McClure v. Suter (1978), 63 Ill. App. 3d 378, 379 N.E.2d 1276.) Here plaintiff made no attempt to qualify the two beach operators as having knowledge of signs at any lakes other than their own; hence their testimony was properly excluded.

Plaintiff has asserted numerous other errors which we have examined and find were not meritorious. Furthermore we need not discuss these issues since the cause is being reversed and remanded for a new trial at which the same points are not likely to arise.

For the reasons stated, we reverse the judgment for defendant, and we remand this cause for a new trial.

Reversed and remanded.

STOUDER, P.J., and SCOTT, J., concur.