author: Mr. JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMY ROSS, JR., Defendant-Appellant.
    First District (2nd Division)
    No. 80-886
    Opinion filed October 20,1981.
    Ralph Ruebner, Nancy Abrahams, and Scott Graham, all of State Appellate Defender’s Office, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, George M. Velcich, and Michael J. Kelly, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Jimmy Ross, Jr., was charged by information with attempt (murder) and aggravated battery. A jury found him guilty of aggravated battery and he was sentenced to serve 2 years in the Illinois Department of Corrections. Ross appeals, asserting: (1) he was denied a fair trial by the admission of improper rebuttal testimony; (2) he was denied a fair trial by the trial court’s failure to answer certain questions of law tendered by the jury; and (3) it was not proved beyond a reasonable doubt that he was not justified in his use of force.

On June 15, 1977, Bobby Lee Wilson accused defendant’s father and defendant, who wasn’t present, of stealing the wheel covers from Wilson’s car. An argument and fight ensued and defendant’s father sustained a broken jaw. Defendant’s father testified that during the argument Wilson threatened to “get” defendant for taking the wheel covers from the car.

On the evening of June 19, 1977, defendant helped his sister bring clothing to a laundromat. Fearing that Wilson was hunting for him, defendant went to a friend’s home to get a sawed-off shotgun for protection. Defendant put the weapon in the laundry bag and then proceeded to walk west on Fifth Street towards the laundromat. The testimony is conflicting as to what happened next. Defendant’s testimony, which was substantially corroborated by other witnesses, was that Wilson and another man began running towards defendant from across Fifth Street and Wilson fired two shots at defendant with a silver .38-caliber revolver. Defendant then pulled the shotgun from the laundry bag and shot Wilson in the back of his shoulder just as Wilson turned away. Defendant testified Wilson was approximately 40 feet away when defendant shot him. Defendant then broke the front window of Wilson’s car with the butt of the shotgun.

Wilson’s testimony, which also was corroborated by other witnesses, was that Wilson and a friend exited a tavern on Fifth Street and noticed defendant holding a bag between his legs. After walking about half a block, Wilson heard footsteps behind him and a voice ordering him to put his hands up. Wilson, who testified he was unarmed, turned and saw defendant holding a sawed-off shotgun. When defendant took his eyes off Wilson, the latter attempted to flee. He was only 10 to 15 feet from defendant when he heard the shotgun discharge and felt pellets hit him in the right shoulder. Wilson continued to run down Fifth Street until he fell between two parked cars.

In rebuttal the State called Fred Henderson to refute defendant’s contention that he acted in self-defense after Wilson had fired at him. Defense counsel objected, arguing that Henderson’s testimony should have been included in the State’s case-in-chief. The trial court admitted Henderson’s testimony for the limited purpose of rebutting defendant’s claim of multiple shots.

During its deliberations, the jury sent three inquiries to the trial judge. The first two asked:

(1) “Is it possible for a man to be guilty of battery, if the assault is done in self-defense? What is the difference between the two?”
(2) “If battery means that he knowingly and intentionally caused bodily harm, can a person do this while he still reasonably believes that such conduct is necessary to defend himself? That is self-defense.”

A conference was held regarding these inquiries. The trial judge responded to the jury that he believed the written instructions given to the jury adequately answered the questions. The jury continued deliberating and sent a third inquiry to the judge, asking:

“Can anyone possibly back out of the signed papers before the deliberations are over?”

Before the judge responded to this inquiry, the jury announced they had reached a verdict. The jury found defendant guilty of aggravated battery causing great bodily harm, guilty of aggravated battery while using a deadly weapon, and not guilty of attempt (murder). After denying defendant’s motion for a new trial, the court sentenced defendant to serve 2 years in the Illinois Department of Corrections.

Defendant’s first contention on appeal is that he was denied a fair trial when the trial court admitted the testimony of Fred Henderson in the State’s rebuttal case. During the State’s case in chief, four witnesses testified that they heard only one shot. Defendant later called four witnesses who testified they heard multiple shots. Over defense counsel’s objection, the trial court then permitted Henderson’s rebuttal testimony for the limited purpose of rebutting defendant’s claim of multiple gunshots. Defense counsel declined the opportunity for surrebuttal. Defendant asserts that Henderson’s testimony was repetitious and cumulative of the evidence presented during the State’s case in chief and was therefore improper rebuttal.

Trial courts may admit the State’s rebuttal evidence when it tends to explain, repel, contradict or disprove defendant’s evidence. (People v. Waller (1977), 67 Ill. 2d 381, 387, 367 N.E.2d 1283.) Although testimony which would be proper in the State’s case in chief should not be reserved for rebuttal, these matters rest largely within the discretion of the trial court. (People v. Lion (1957), 10 Ill. 2d 208, 217,139 N.E.2d 757.) That the testimony could have been used in the State’s case-in-chief does not in itself render it improper for rebuttal. (People v. Carbona (1975), 27 Ill. App. 3d 988, 1005, 327 N.E.2d 546, cert. denied (1976), 424 U.S. 914, 47 L. Ed. 2d 319, 96 S. Ct. 1114.) A decision by the trial court permitting rebuttal testimony will not be reversed on appeal unless the trial court abused its discretion and the defendant was thereby prejudiced. People v. Thornton (1977), 54 Ill. App. 3d 202, 207, 369 N.E.2d 358.

In the case at bar, the State claims it was unaware that defendant would use as a defense the claim that Wilson was the first to open fire. The State therefore argues that it offered Henderson’s testimony in rebuttal only after hearing the testimony of defense witnesses that multiple shots were fired. However, defense counsel’s opening statement should have made the State aware that such a defense would be used. Additionally, four State’s witnesses testified to a single shot being fired. It therefore appears that the State’s rebuttal evidence could have been used in its case-in-chief. We do not find, however, that the trial court’s decision to allow Henderson to testify in rebuttal amounted to an abuse of discretion. Defendant argues, in support of his claim that the rebuttal testimony was prejudicial, that Henderson was the fifth witness to testify that only one shot was fired and that Henderson was the last witness to be heard by the jury. Defendant’s argument is unfounded. After the jury heard four witnesses testify that only one shot was fired and four others testify that multiple shots were fired, the limited testimony of one additional witness that a single shot was fired did not prejudice defendant. Defendant’s claim that he was prejudiced because Henderson was the last witness to be heard by the jury is without support in either the record or the case law. Additionally, defendant had the opportunity for surrebuttal and chose not to use it. Finding no evidence of prejudice to defendant in the admission of the rebuttal testimony, we conclude that no reversible error occurred. See People v. Egan (1978), 65 Ill. App. 3d 501, 511, 382 N.E.2d 477.

Defendant’s next contention is that he was denied a fair trial when the court below refused to answer questions tendered by the jury during its deliberations. The trial court decided against answering the questions because it believed that the instructions, taken from the Illinois Pattern Jury Instructions, adequately explained the applicable law to the jury. The trial court conveyed this reason in writing to the jurors when it notified them that the inquiries would not be answered. A review of the questions tendered by the jury reveals that the trial court acted properly in refusing to answer those inquiries. As regards the first two inquiries, the instructions given quite adequately explained the concept of self-defense and the elements of battery. As was discussed in People v. Tostado (1981), 92 Ill. App. 3d 837, 416 N.E.2d 353, answering the jury’s questions might have engaged the court and jury in a colloquy which in turn could convey the court’s opinion on the evidence to the jury. (92 Ill. App. 3d 837, 839.) Since the jury instructions in the present case were easily understandable and sufficiently explained the applicable law, the trial court properly exercised its discretion in declining to answer the jury’s inquiries. Each of the cases cited by defendant is distinguishable from the case at bar. In both People v. Morris (1980), 81 Ill. App. 3d 288, 290-91, 401 N.E.2d 284, and People v. Kucala (1972), 7 Ill. App. 3d 1029, 1035, 288 N.E.2d 622, the trial courts failed to give the juries all the necessary instructions. In the present case, all necessary instructions were given. In People v. Land (1975), 34 Ill. App. 3d 548, 34 N.E.2d 44, the court improperly refused to rectify the jury’s inability to understand “some words” in the instructions. There is no evidence that such is the case here. It is not an abuse of discretion for the trial court to decline to elaborate on complete and understandable instructions. The instructions given here fully and understandably explained the concept of self-defense and its effect on a charge of battery. No error occurred as a result of the trial court’s reliance on the instructions as originally tendered to the jury.

Regarding the jury’s third inquiry (which the trial court interpreted as asking if a juror can change his decision after he has signed a verdict form), the jury announced it had reached a verdict before the court responded to the inquiry. We note that after announcing its decision the jury was polled and affirmed the guilty verdict. Defendant has failed to show any prejudice in the lower court’s failure to answer the third inquiry. Such a showing of prejudice to defendant is required for this court to reverse due to trial court error of this sort. See People v. Simms (1976), 38 Ill. App. 3d 703, 707, 348 N.E.2d 478, cert. denied (1977), 429 U.S. 1106, 51 L. Ed. 2d 558, 97 S. Ct. 1138.

Defendant’s final contention is that the State failed to prove beyond a reasonable doubt that he was not justified in his use of force against Wilson. When conflicting evidence is presented on this issue, it is for the trier of fact to assess the credibility of the witnesses and reach a determination. (People v. McClain (1951), 410 Ill. 280, 285-86, 102 N.E.2d 134.) This court will not substitute its judgment for the jury’s “unless the evidence is palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt of the defendant’s guilt.” (People v. Johnson (1954), 2 Ill. 2d 165, 172, 117 N.E.2d 91.) It is undisputed that Wilson was shot in the back with a sawed-off shotgun by defendant. In addition, numerous witnesses testified that Wilson was unarmed and was moving when defendant shot him. We conclude that the jury’s determination that defendant was not justified in shooting Wilson was not palpably contrary to the evidence or so unreasonable as to raise a reasonable doubt of defendant’s guilt.

The judgment below is affirmed.

Affirmed.

HARTMAN, P. J., and DOWNING, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DOWNING

license: Public Domain

text:
    JOSEPH MARTICH, Plaintiff-Appellant, v. WILBUR ELLIS, Chief of Police of the Village of Matteson, et al., Defendants-Appellees.
    First District (2nd Division)
    No. 80-2583
    Opinion filed October 20,1981.

      Thomas F. McGuire, of Buffalo Grove, for appellant.
    McGrane, Perozzi, Stelter, Gerardi, Brauer & Ross and Burke & Burke, Ltd., both of Chicago (John M. Burke, of counsel), for appellees.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Patrolman Joseph Martich, plaintiff, appeals the circuit court’s affirmance of a decision of the Board of Fire and Police Commissioners of the Village of Matteson (Board), suspending him for 30 days. We affirm the circuit court. Plaintiff was disciplined for pointing an unloaded shotgun at the head of a fellow officer and pulling the trigger.

I

The only issue of any substance raised by plaintiff is that he was improperly suspended for more than 30 days. Plaintiff was initially suspended on March 11, 1980, for 30 days without pay, pending a hearing. After the hearing, the Board issued an order on April 10,1980, suspending plaintiff for 30 additional days without pay. Plaintiff contends that the Board only has authority to suspend him for a total of 30 days, not for 30 days pending a hearing plus 30 days after a hearing.

Resolution of this issue involves interpretation of section 10 — 2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—17), which in pertinent part reads:

“In case an officer or member is found guilty, the board may discharge him, or may suspend him not exceeding 30 days without pay. The board may suspend any officer or member pending the hearing with or without pay, but not to exceed 30 days.”

Plaintiff reads the words “* * * may suspend him not exceeding 30 days without pay,” as the maximum time allowed for suspension without pay. This interpretation of the statute is contrary to both the plain meaning and the purpose of the statute. Where the intention of the legislature is clearly expressed, the plain meaning of the statute must be given effect. (Finley v. Finley (1980), 81 Ill. 2d 317, 326, 410 N.E.2d 12.) We believe the statute clearly provides for two possible separate 30-day suspension periods. Plaintiff’s citation of People ex rel. Maxwell v. Conlisk (1975), 60 Ill. 2d 243, 326 N.E.2d 377, is inapposite.

II

Plaintiff claims he was deprived of a fair and impartial hearing when, in response to his request for “all written statements or summaries of same” of all witnesses to the incident, the Board provided him with typed copies of the original handwritten statements of two witnesses. Of these typed copies, one was a verbatim transcript and the other was an accurate summary. Production of statements of witnesses is required in an administrative proceeding. (Greco v. State Police Merit Board (1969), 105 Ill. App. 2d 186, 191-92, 245 N.E.2d 99, appeal denied (1969), 40 Ill. 2d 580.) The discovery provided by the Board in the instant case is clearly sufficient, especially where the record does not establish that plaintiff suffered any prejudice as a result of being denied the handwritten statements.

III

Plaintiff further argues that the Board erred in denying his request for a continuance during the hearing for witness Officer Newstat to go home and obtain his original handwritten statement. Administrative agencies are vested with broad discretion to grant or deny continuances. (See Lindeen v. Illinois State Police Merit Board (1962), 25 Ill. 2d 349, 351, 185 N.E.2d 206.) The Board acted within its discretion in denying the request for a continuance. As previously noted, the witness did provide a verbatim account of the handwritten statement. Even assuming it was error not to provide a continuance, we find nothing in the record to establish prejudice to plaintiff.

IV

Plaintiff contends that he was charged with violation of the wrong rule. The primary requirement of a charge is that it be clear and specific enough to allow the officer to prepare a defense. (Sudduth v. Board of Fire & Police Commissioners (1964), 48 Ill. App. 2d 194, 196, 198 N.E.2d 705, appeal denied (1964), 30 Ill. 2d 627.) It is not necessary that the charge be technically precise. (Joyce v. City of Chicago (1905), 216 Ill. 466, 471, 75 N.E. 184.) Once the charge provides adequate notice, the only issue is whether the charge establishes cause for suspension. A police board has considerable discretion in determining what constitutes cause, and its decision will not be reversed so long as its finding is related to the requirements of the service and not so trivial as to be unreasonable. (Crowell v. Police Board (1975), 32 Ill. App. 3d 552, 556, 336 N.E.2d 573.) The instant charge provided adequate notice of the evidence the Board intended to adduce at the hearing, and certainly established cause.

V

Plaintiff’s final contention is that the finding of the Board is contrary to the manifest weight of the evidence. While there were minor conflicts in the testimony of the witnesses, the testimony was substantially consistent. A reviewing court may not judge the credibility of the witnesses. (Albert v. Board of Fire & Police Commissioners (1981), 99 Ill. App. 3d 688,425 N.E.2d 1158.) The Board’s finding was not contrary to the manifest weight of the evidence.

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

Affirmed.

STAMOS and PERLIN, JJ., concur.

       The current statute was enacted in 1965. Its predecessor, which clearly allowed two suspensions, read in part:
      “[I]n case an officer or member is found guilty, the board may remove or discharge him, or may suspend him not exceeding 10 days without pay. The board may suspend any officer pending this investigation, but not to exceed 30 days at any one time.” Ill. Rev. Stat. 1961, ch. 24, par. 10 — 2—17.

       Plaintiff was charged with:
      “Knowingly pointed the barrel of a Departmental issued Remington twelve (12) gauge shotgun at the back of Patrolman Michael Halpin’s head, and simultaneously pulled the trigger of said weapon, in violation of Rule 12.7 of the Matteson Police Department, adopted by Resolution dated March 6, 1978, effective April 1, 1978.” Rule 12.7, entitled “Display and Discharge,” states:
      “Firearms shall never be displayed or drawn unnecessarily on or off duty except for inspection, clearing, range firing, or official use.”


author: Mr. JUSTICE LONDRIGAN

text:
    DELORES D. MOORE, Plaintiff-Appellee, v. REMINGTON ARMS COMPANY, INC., Defendant-Appellant.—(JOE LEWIS, d/b/a Lewis Reloader Supply, Defendant.)
    Fourth District
    No. 16876
    Opinion filed October 15,1981.

      Fred B. Moore and Richard E. Stites, both of Livingston, Barger, Brandt, Slater and Schroeder, of Bloomington, for appellant.
    Hull, Campbell, Robinson & Gibson, of Decatur (Jon D. Robinson, of counsel), for appellee.
   Mr. JUSTICE LONDRIGAN

delivered the opinion of the court:

On June 18,1978, plaintiff, Delores Moore, attended a skeet-shooting competition at Chanute Air Force base in Rantoul, at which she used her Remington Model 1100 shotgun. After shooting approximately 25 shotgun shells, Moore loaded her gun with a blue Remington shell; upon firing at the next target, the gun exploded in her hands, causing severe injury to her left thumb and hand.

This suit against Remington Arms Company, Inc. (Remington), the manufacturer of the gun and shotgun shell, and against Joe Lewis, d/b/a Lewis Reloader Supply (Lewis), the retail seller of the gun, followed. The suit was grounded in strict liability. The third amended complaint, upon which the case was tried, alleged (1) that the gun was defectively designed (against Remington in count I and against Lewis in count III); (2) that the gun was defectively manufactured out of defective metal (against Remington in count II and against Lewis in count IV); and (3) that the shotgun shell was defectively manufactured (count V against Remington). Plaintiff sought compensatory damages based on these allegations. In count VI of her complaint, plaintiff sought punitive damages from Remington based upon its knowledge of prior similar explosions and thus its prior knowledge of the defective nature of the shotgun. The jury returned verdicts in favor of plaintiff and against Remington, awarding plaintiff $161,288.79 in compensatory damages and $85,000 in punitive damages. The jury absolved Lewis of liability.

The main thrust of this appeal by Remington attacks the punitive damages award and the trial court’s related evidentiary rulings. Remington also challenges the awarding of compensatory damages but not the amount awarded.

Plaintiff, her husband James Moore, and the referee were present when the gun exploded, and they testified at trial. All three are experienced marksmen and gun owners. James Moore purchased the Model 1100 Remington shotgun for plaintiff on June 17, 1977, from defendant Lewis. At that time the gun was new and appeared to James Moore to be a standard Model 1100. The gun was used only by the Moores and exclusively for skeet shooting between its purchase and the explosion. Mr. Moore regularly cleaned and maintained the gun; when he cleaned the gun earlier in the week of its explosion he noticed nothing irregular about it.

On June 18, 1978, plaintiff shot 25 targets, or one series or round, using red reloaded Winchester shells. That particular competition involved shooting at two targets consecutively that were thrown from different “houses.” At the start of her second round plaintiff shot at the first target but the second target came out of the house broken. The rules of the game require that the referee give the marksman a replacement shell. Plaintiff and James Moore testified that the referee, Alan Barber, provided plaintiff with a blue Remington RXP shell. Barber could not remember the color of the shell he gave plaintiff but testified that the gun exploded when she fired it using the replacement shell. Barber was an arm’s length away from plaintiff when she fired the gun, and it exploded into pieces.

Plaintiff said that her husband was reloading only red-colored shells at that time and that on the date of the explosion she had shot only red-colored Winchester shells. Referee Barber stated that the shell that he gave plaintiff had been taken by him from the vault of the gun club sponsoring the competition. Barber was an official of the gun club and testified that the vault contained only factory-loaded shells and no “reloads.” He stated that the gun club was not allowed to sell or give out reloaded shells. Barber testified that at that time the gun club bought their shells from Lewis.

Shotgun shells purchased from manufacturers are called factory-loaded shells and may be fired without alteration; these shells have new cases. After a shell is fired, the shell case may be “reloaded.” Much of the factual conflict in this case revolves around the nature of the shotgun shell in the gun when the accident occurred. Plaintiff’s contention, as evidenced by the foregoing facts, was that she used a factory-loaded blue Remington shotgun shell. Remington’s defense centered on the argument that the shell in the gun was an improperly reloaded shell and that the improper assembly of the shell by an unknown individual (either one of the Moores or the gun club), not the defective nature of the gun or shell, caused the explosion.

With the exception of the type of shell used, the events of the incident itself were undisputed by Remington. The controversy over whether the shotgun shell was a factory load or a reloaded shell drew an opinion from almost every witness. The shell fragment, purportedly from the shell that was in the gun at the time of the explosion, was introduced into evidence as plaintiff’s exhibit No. 6. For comparison purposes, a factory-loaded shell was introduced as plaintiff’s exhibit No. 7. Remington introduced testimony that the shell in the gun when the gun exploded was a reload.

Plaintiffs Expert Witness

Dr. David Levinson, plaintiff’s expert witness, is a professor of metallurgy in the department of metals engineering at the University of Illinois, Chicago Circle Campus, and has a Ph.D in metallurgical engineering. Levinson took samples from the gun metal for a metallographic analysis; he photographed samples of the gun metal with a scanning electron microscope and performed hardness tests on it.

According to Levinson, the Moore gun barrel was made of a “free-machining” steel also commonly referred to as “resulphurized” steel, which is similar to “AISI 1140” steel. A free-machining steel is one alloyed with substances such as manganese or sulphur or sometimes lead to make it easier to handle in the manufacturing process. These substances are referred to as inclusions and are found in the metal; in general, inclusions appear as very small cracks, not visible to the naked eye but visible under a scanning electron microscope. Inclusions are deliberately present in the steel and are common to free-machining or resulphurized steels. Levinson stated that inclusions frequently are sites for the inception of cracks and that cracks may grow away from an inclusion. Upon examining the Moore barrel, Levinson found both inclusions and cracks.

In Levinson’s opinion, AISI 1140, the metal used in the Moore barrel, is a relatively inexpensive steel and desirable from the standpoint of the manufacturer because, as a free-machining steel, it finishes easily. Levinson stated that he did not think that it was a good material from which to make shotgun barrels, however, because of its susceptibility to the initiation and growth of cracks at the sites of elongated manganese sulfide inclusions.

According to Levinson it is possible for not only the inclusions but the cracks to be present prior to the gun’s leaving the hands of the manufacturer. Levinson stated that the cracks could result from proof testing which is done to the gun barrel by the manufacturer. A proof test is a test in which the barrel is subjected to a propellant charge that produces a pressure greater than normal. Levinson stated that the proof test performed by Remington on the guns will take one of three results: (1) A totally defective barrel with very large inclusions will break during proof testing; (2) a high quality gun barrel that is essentially free of inclusions or that has small and well distributed inclusions will be unaffected by the proof test; (3) an intermediate range of barrel that has elongated inclusions will not break during the proof testing, but the proof testing will make the gun more dangerous for subsequent use.

Levinson stated that the concentration of inclusions in free-machining steel varies among individual pieces cut. As a result, not all barrels made of 1140 free-machining steel will eventually explode; only guns that are

made from a batch of steel with a higher than average concentration of inclusions or that have longer inclusions near the firing chamber are subject to that danger. Thus one barrel might be defective but the next one adequate.

In discussing the explosion of a defective barrel, Levinson stated that the cracks in the barrel would grow over a period of time to the point where the next normal stress or factory load fired from the barrel would cause the barrel to explode.

Levinson compared the steel used in the Moore barrel with a steel called chrome molybdenum steel, also referred to as 4140. Levinson said that chrome molybdenum steel is almost free of inclusions and is not a free-machining steel. Levinson stated that he compared 4140 to the steel in the Moore gun because it is frequently cited as being an appropriate steel for firearms and is often used in their manufacture. Levinson testified that in his opinion resulphurized steel is a bad choice of metal for shotgun barrels and concluded that the Moore gun was unreasonably dangerous when it was manufactured and that the gun failed due to a metallurgical design mistake.

Remington Committee Members

Robert Balaska, a design engineer for Remington, testified that he examined the Moore gun as part of a committee at Remington that looks at guns sent to the company to determine why they have failed. Balaska stated that in the preceding three or four months he had examined six to eight guns that looked like the Moore gun. Balaska knew of other situations where guns had exploded and injured persons but stated that the explosions were not similar to the Moore explosion. The conclusion of the committee was that the cause of the Moore gun explosion was a high pressure load round or defective ammunition. Balaska admitted that the report did not specifically mention hand-reloaded shells to be the cause.

James Stekl, another committee member, was permitted to testify over Remington’s objection under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). Stekl was supervisor of product services of the firearms for Remington and handled customers’ complaints about firearms. Stekl testified that the committee reports stated that the gun damage was caused by defective ammunition. Stekl stated that if it were determined that the shell was a new Remington RXP shell, his opinion of the cause of the explosion would be the same. Plaintiff attempted to question Stekl regarding a list of prior explosions provided by Remington to plaintiff as answers to interrogatories. Stekl admitted having examined other Remington Model 1100 shotguns where persons had been injured but denied knowing of occurrences similar to the Moore explosion. Plaintiff’s attorney then read the interrogatory answer in which Remington admitted the existence of “similar occurrences” to the explosion in the instant case. During clarification, Stekl stated that prior to the Moore gun explosion he was unaware of any complaint of a gun failure due to inclusions in the metal. The Moore gun was made of the same metal that Remington has always used for Model 1100 shotguns.

Stekl conceded that Remington, in answer to interrogatories, had admitted receiving complaints about Remington RXP shotgun shells but noted that four complaints in all had been received about the shells and none of them was in any way related to high pressure in the shells.

Remingtons Evidence

Joe Lewis, former owner of Lewis Reloader Supply, testified that according to his records, the last time he made a sale to the gun club at Chanute Air Force base was February 24, 1975. Further, Lewis had no memory of any sale of supplies to the gun club in 1978 and had no record of such sale.

Phillip P. Johnson, supervisor of chemical and metallurgical control at Remington, is responsible for purchasing steel for the company and for insuring the quality of raw materials purchased by it. Remington has been using AISI 1140 modified steel in its Model 1100 shotguns since 1960. There has been no change in the specifications for the steel during that time, and the same steel is used in all shotgun barrels that Remington produces. The term “modified” after the number indicates that there is slightly more manganese and sulphur added to the steel than would be present in the “standard” 1140; Remington pays a slight premium price for this. Johnson acknowledged that chrome molybdenum steel does not have as many inclusions in it as AISI 1140 modified, but he denied that the presence of the inclusions weakens the barrel. Johnson admitted that chrome molybdenum was probably a better steel for use in shotgun barrels than AISI 1140 modified.

Johnson examined the Moore gun for metallurgical defects. His conclusion was that the cause of the explosion was a high pressure chamber burst, caused by pressure greater than that that would be produced by firing a normal factory-loaded shotgun shell. The committee at Remington believed that the cause of the explosion was most likely a hand-loaded shell.

Johnson had not seen the shotgun shell, plaintiff’s exhibit No. 6, prior to trial. After examining the shell at trial, it was his opinion that it was a reloaded one. Further, assuming that that shell was ii) the gun at the time of the explosion, it was Johnson’s opinion that the cause of the gun failure was extreme high pressure caused by the reloaded shell.

Assuming that a new Remington RXP factory-loaded shell was in the gun when it exploded, Johnson said that he woulddiave to look for flaws in the steel because a new factory loaded shell could never create sufficient pressure to cause an explosion. Johnson asserted that inclusions cannot cause the type of defects that result in explosions.

Kenneth Packer, a Ph.D in industrial engineering, is a consulting engineer and the founder of Packer Engineering Associates. The Moore gun was brought by Remington to Packer to determine the cause of the failure. When the test gun was substantially overloaded with too much gunpowder it blew up. Although Packer stated that after firing, the overloaded gun appeared identical to the Moore gun, he admitted on cross-examination that the test gun, which was introduced into evidence, exhibited less damage than the Moore gun. Nevertheless, Packer was convinced by the test he performed that the cause of the explosion of the Moore gun was a high pressure handload or reload. His opinion was based in part on the condition of the shell that he had been given. Both the damage to the crimp and the markings on the brass portion of the head of the shell were noted by Packer in support of his theory that the shell had been hand-loaded.

In discussing free-machining versus non-free-machining steel, Packer noted that free-machining steel allows for precise manufacturing, which is a safety feature. Free-machining steel also increases in strength with higher temperatures and is, in fact, a stronger steel in the range of temperatures which are created when a gun is fired. Packer examined shotguns made of both free-machining and non-free-machining steel, and it was his opinion that it was not an unreasonably dangerous practice to use 1140 modified in the manufacture of shotguns but to the contrary was an excellent practice. Packer denied that the inclusions make the barrel weaker and stated that for a factory-loaded round to cause a gun to burst, a crack or defect in the gun would have to go one-half to three-quarters of the way through the barrel.

Spencer Wildman, the chief process supervisor at one of Remington’s plants, supervises engineers in control of the process of manufacturing ammunition. He had not seen plaintiff’s exhibit No. 6 prior to trial but after examining the shell stated, to a reasonable degree of engineering certainty, that it was a reloaded shell. Wildman concluded that the damage to the shell was probably the result of an excessive high-pressure reload.

Wildman described the process at the Remington factory for loading Remington shells. There are several devices in the manufacturing process that insure that the correct amount of gunpowder is included in each shell. It is impossible for only one shell in a batch to contain twice the correct amount of powder. However, if the machine involved was maladjusted, a series of shells could be produced with a greater than normal load of powder.

Wildman has received consumer complaints with regard to Remington shells but has never received a complaint that a new Remington shell had too much gunpowder. Wildman knew of no one at Remington who had ever received such a complaint.

Remington Employee as an Adverse Witness

Remington initially complains that its employee, James Stekl, was improperly required to testify as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). Stekl was impeached by Remington’s answers to plaintiff’s written interrogatories in which Remington admitted that other Model 1100 shotguns had exploded in “similar occurrences” to that of the Moore gun. Had Stekl not been called under section 60, he could not have been impeached with Remington’s answers to those interrogatories, as a party cannot impeach his own witness. (Martin v. Rrennan (1977), 54 Ill. App. 3d 421, 425, 369 N.E.2d 601, 605.) Remington asserts that the interrogatory answers would not have been allowed into evidence but for Stekl’s testimony. Remington’s contention is that Stekl is not within one of the categories of witnesses eligible to be called under section 60. Section 60 provides in part:

“Examination of adverse party or agent. Upon the trial of any case any party thereto or any person for whose immediate benefit the action is prosecuted or defended, or the officers, directors, managing agents or foreman of any party to the action, may be called and examined as if under cross-examination at the instance of any adverse party.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 110, par. 60.

Stekl was Remington’s corporate representative at trial; he signed the written interrogatory answers on Remington’s behalf. Stekl testified that his job was “supervisor of product services, firearms,” and explained that it basically involved handling customers’ complaints about firearms. Stekl asserted that he was not an officer, director, foreman, or managing officer of Remington and further stated that he supervised no employees. Stekl was a member of the committee that examines guns that fail.

Stekl was, at a minimum, Remington’s agent. If not, he could not have properly signed the interrogatory answers in Remington’s behalf. (Ill. Rev. Stat. 1979, ch. 110A, par. 213(c).) Stekl was essentially the head of a one-person department. His job responsibility and his presence as Remington’s representative at trial support the trial court’s determination that Stekl was a managing agent of Remington and thus properly called under section 60.

Interrogatory Answers as an Admission of Knowledge

Plaintiff’s claim for punitive damages rests largely on the interrogatory answers tendered to her by Remington, specifically those to questions 12 and 13. Interrogatory No. 12 asks:

“Was any Model 1100 Shotgun of the type or model involved in the occurrence in question as described in the Complaint, involved in any similar occurrences as the one here at any time prior or subsequent to June 18,1978.”

Remington’s answer was “Yes.” Interrogatory No. 13 required specifics. It stated:

“If the answer to the foregoing Interrogatory is the affirmative, state:
a. The date or dates of such occurrences;
b. The name and last known address of the person or persons suffering personal injury or property damage as a result thereof;
c. The cause of each said occurrence;
d. If the Defendant, REMINGTON ARMS COMPANY, INC., is uncertain as to the cause, its opinion as to the cause of said occurrence or occurrences;
e. The person or persons having custody of the records, reports, or files of the occurrence or occurrences given in the answers to this Interrogatory.”

Remington responded to interrogatory No. 13 with a list of 67 persons, their addresses, the date of the occurrence, and the “cause” thereof.

At trial, in examining James Stekl as an adverse witness, plaintiff asked him a series of questions regarding these interrogatories over continued objections by Remington. Upon being read interrogatory No. 12 Stekl said that he did not believe that there were any occurrences or explosions similar to that of the Moore gun before or after June 18,1978. Plaintiff’s counsel then read both the question and the answer to interrogatory No. 12. Eventually, Stekl admitted that he had signed the interrogatories in Remington’s behalf and that the interrogatory in fact admitted the existence of similar occurrences. The only information received by the jury with regard to interrogatory No. 13, however, was that Remington’s answer listed 67 persons; the causes of these “similar occurrences” were not explained at trial.

The main problem is not whether the answer to interrogatory No. 12 could be used to impeach Stekl; in light of Stekl’s answers to plaintiff’s counsel’s questions, the interrogatory and answer constituted a prior inconsistent statement and were properly admitted as such. The problem in this case is whether the question and answer to interrogatory No. 12 constituted substantive evidence that Remington had knowledge of a defect in its guns prior to the explosion in this case.

Prior similar occurrences are admissible for the purpose of establishing knowledge on the part of a manufacturer that a defect in the product existed prior to the injuries in the litigated case. Proof of such knowledge served as part of the basis for the award of punitive damages in Moore v. Jewel Tea Co. (1969), 116 Ill. App. 2d 109, 253 N.E.2d 636, affd (1970), 46 Ill. 2d 288, 263 N.E.2d 103.

In Moore a can of Drano, a caustic drain cleaner, which had never been opened, exploded in the plaintiffs hands, causing her severe injury. In discussing the admission of prior similar occurrences, the appellate court stated:

“The record reveals that the trial court limited evidence of prior accidents to explosion claims against defendants where there was no opening of the can or any extraneous matter added or anything done to it. The court not only rejected cases where water or some outside material was added to the can, it refused plaintiffs’ request to allow evidence of prior spontaneous explosions which occurred after the Drano had been subjected to its normal use. Under these guidelines the plaintiffs introduced evidence of three prior accidents in which a Drano can which had not been opened exploded and after which a claim was made against Drackett.” 116 Ill. App. 2d 109, 129, 253 N.E.2d 636, 645.

The trial court in Moore limited admissible instances of prior similar occurrences to those that clearly would have put the manufacturer on notice that a defect in the product existed.

Subsequently, in Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 440-41, 396 N.E.2d 534, 537-38, the supreme court expanded upon the requirements for the admissibility of prior similar occurrences in strict liability cases. In Rucker the plaintiff sought to introduce evidence of prior occurrences to establish the existence of a dangerous defect. (In Rucker there was no request for punitive damages.) The supreme court stated that in determining the admissibility of prior occurrences to establish the dangerousness of an item “[i]t need not be shown that the accidents occurred in an identical manner. Substantial similarity is all that is required.” 77 Ill. 2d 434, 441, 396 N.E.2d 534, 538.

We find that interrogatory No. 12 was too generalized and vague to fulfill the “substantial similarity” requirement enunciated by the court in Rucker. The question placed no time limit on “similar occurrences,” and thus Remington’s answer could have included only incidents that occurred after the explosion in this case. Clearly, only prior occurrences are relevant to establishing plaintiff’s claim for punitive damages. Further, the interrogatory makes no attempt to describe what the term “similar” means, and, as is made clear by Remington’s answer, Remington did not interpret this question as limiting similar occurrences to those that had similar causes. We note that Remington’s answer to interrogatory No. 13, not in evidence, listed “high pressure reload” as the cause of 58 of the 67 occurrences and that all 67 occurred before June 1978.

The purpose of the admission of prior occurrences to establish punitive damages in products liability cases is to show that the manufacturer had or should have had knowledge of harm inflicted on consumers by its product and with flagrant indifference to public safety failed to warn consumers of or remedy the defect. There is nothing inherent in the answer given by Remington to interrogatory No. 12 that establishes that Remington had been put on notice of a defect and acted in disregard thereof. Guns are inherently dangerous instrumentalities. The mere fact that other guns had exploded does not, therefore, in and of itself support the existence of a defect. The information presented at trial from the interrogatories did not constitute an admission sufficient to establish knowledge of a defect in the gun metal. Plaintiff was certainly not bound by Remington’s decisions regarding the causes of the prior explosions and could have tried to prove that one or more of the prior gun failures was caused by a defect in the gun metal or manufacturing. The failure to show that any of the causes listed by Remington were at odds with what actually occurred, or with what the person involved in the explosion believed occurred, further demonstrates plaintiff’s inability to establish that Remington should have been put on notice of a defect in its guns by these prior explosions.

Standard for Awarding Punitive Damages in Products Cases

Defendant asserts that the trial court erred in denying its successive motions for a directed verdict, judgment notwithstanding the verdict, and a new trial on count VI, plaintiff’s claim for punitive damages. We have viewed the evidence in its aspect most favorable to plaintiff and agree that the trial court should have granted the motion for a directed verdict. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) This question requires us to discuss the evidence necessary to survive a motion for a directed verdict or a judgment notwithstanding the verdict on the issue of punitive damages in a products liability case. The facts presented by Moore v. Jewel Tea Co. (1969), 116 Ill. App. 2d 109, 253 N.E.2d 636, affd (1970), 46 Ill. 2d 288, 263 N.E.2d 103, have become the standard by which claims for punitive damages are measured in Illinois. (Johnson v. Amerco, Inc. (1980), 87 Ill. App. 3d 827, 409 N.E.2d 299.) The appellate court’s decision in Moore, however, was based on an especially sympathetic set of facts: (1) the corporation’s knowledge of the danger inherent in the product, (2) the failure to warn the public of that danger, and (3) notice to the corporation of prior claims of spontaneously exploding cans of Drano. Although Moore may represent a classic case in which an award of punitive damages is proper, it would not be appropriate to require the facts in other cases to be as egregious as those presented by Moore to pose a jury question on the issue of punitive damages. The Illinois Supreme Court has not yet spoken on the proper standard to guide courts in awarding punitive damages in products liability cases; in its opinion in Moore the supreme court affirmed the appellate decision without addressing this issue. Several problems in applying the general test to claims for punitive damages in products cases show why a special standard is needed in this area of the law.

The general purposes of punitive damages are to punish wrongdoers and to deter them and others from engaging in similar conduct. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186, 384 N.E.2d 353, 359.) The goals are the same in the context of products liability, but the unique concern here is deterring manufacturers from placing dangerously defective products into the stream of commerce by making this unprofitable to an unpredictable degree. See generally D. Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257 (1976); Wangen v. Ford Motor Co. (1980), 97 Wis. 2d 260, 294 N.W.2d 437; Sturm, Ruger & Co. v. Day (Alas. 1979), 594 P.2d 38, opinion on rehearing (1980), 615 P.2d 621, opinion on rehearing (1981), 627 P.2d 204.

Kelsay expressed the general, traditional standard for awarding punitive damages:

“It has long been established in this State that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others [citation].” (74 Ill. 2d 172, 186, 384 N.E.2d 353, 359.)

The concept of awarding punitive damages in products cases is not without difficulty. Defendants in this area of litigation are generally manufacturers and frequently, as is the case here, large national concerns that command little sympathy from jurors. Plaintiffs in these cases, on the other hand, often have been injured severely, normally while exercising due care for their own safety. Furthermore, punitive damages are subject to abuse because they have little or no relation to the actual damages suffered by a plaintiff. See D. Owen, Problems in Assessing Punitive Damages Against Manufacturers of Defective Products (Draft to appear at 49 U. Chi. L. Rev. 1 (1982)).

Illinois was in the vanguard in permitting punitive damages in Moore; at that time few courts had been presented with the question of punitive damages in products cases and only a handful had allowed them. (Toole v. Richardson-Merrell, Inc. (1967), 251 Cal. App. 2d 689, 60 Cal. Rptr. 398; Roginsky v. Richardson-Merrell, Inc. (2d Cir. 1967), 378 F.2d 832; D. Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257, 1261 n.12 (1976).) The tide has since turned: judgments for punitive damages are now routinely entered across the nation, and staggering sums have been awarded. (Leichtamer v. American Motors Corp. (1981), 67 Ohio St. 2d 456, 424 N.E.2d 568 ($1 million to one plaintiff and $100,000 to another); Grimshaw v. Ford Motor Co. (1981), 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 ($3.5 million); Gryc v. Dayton-Hudson Corp. (Minn. 1980), 297 N.W.2d 727 ($1 million).) We cannot dismiss lightly either the general trend or the result of the trial court in this case. The supreme court recently spoke to the need for tight judicial control over awards of punitive damages:

“Because of their penal nature, punitive damages are not favored in the law, and the courts must take caution to see that punitive damages are not improperly or unwisely awarded.” (Kelsay, 74 Ill. 2d 172, 188, 384 N.E.2d 353, 360.)

In the area of products liability the susceptibility to abuse, noted above, makes such control even more necessary. The Alaska Supreme Court, noting Professor Owen’s suggestion that awards of punitive damages in products liability cases be scrutinized closely by the courts (D. Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257, 1321 (1976)), explained:

“[JQudicial scrutiny over the awards [of punitive damages] provides a partial justification for allowing such awards in the first place. The spectre of bankruptcy and excessive punishment can be in part dispelled to the extent that trial and appellate courts exercise their powers of review.” Sturm, Roger & Co., 594 P.2d 38, 48.

Greater judicial control will be gained by clarifying the terms used in the general standard for punitive damages. Ascribing the human qualities of malice and wilfulness to corporate entities is often paradoxical; from his study of products cases Owen has isolated “the two predominant characteristics” of commercial misconduct that make appropriate an award of punitive damages: From these characteristics Owen derives the following standard to guide courts in awarding punitive damages in products cases:

“The first is the manufacturer’s lack of concern for the public safety, a spirit of utter indifference to whether the product might cause unnecessary injuries. The second characteristic is the flagrancy of this indifference as reflected by the extent of the manufacturer’s awareness of the danger and its excessiveness, the over-all magnitude of the danger to the public, the ease of reducing the risk, and the motives and other circumstances attending the manufacturer’s failure to reduce the risk.” (D. Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257, 1366 (1976).)

“Punitive damages may be assessed against the manufacturer of a product injuring the plaintiff if the injury is attributable to conduct that reflects a flagrant indifference to the public safety.” (D. Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257, 1367 (1976).)

This test does not depart from the current law on punitive damages but instead tailors the general standard to fit the unique area of products liability; the traditional test, which was formulated to remedy intentional torts by individuals and irresponsible and oppressive acts by governmental officials (D. Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257, 1364-65 (1976)), fails to focus on a special concern in products cases, namely, the effects on the public safety of manufacturers’ decisions regarding the production and marketing of goods.

We are therefore persuaded to adopt Owen’s standard in reviewing this case (see Leichtamer (Owen’s language adopted on review)) and will apply it to the facts presented here.

Plaintiff failed to introduce sufficient evidence that Remington’s use of resulphurized steel in its shotgun barrels constituted manufacturer misconduct sufficient to support a jury verdict in her favor. Plaintiff enumerates evidence other than Remington’s answers to the interrogatories that, she contends, supports her claim for punitive damages. Plaintiff relies in part on one bit of testimony by Stekl supposedly admitting that Remington had received complaints about the resulphurized steel. Stekl did not in fact say that; he answered merely that that sort of information was kept by the company in an office in Connecticut. Stekl denied receiving any complaints, other than plaintiff’s, regarding the steel. Plaintiff also cites evidence pertaining to the type of steel used by Remington since 1960 in producing Model 1100 shotguns, the availability of stronger steel, and the cause of the Moore explosion.

Phillip Johnson’s testimony that chrome molybdenum was probably a better steel than the steel used by Remington establishes neither the unreasonably dangerous or defective nature of the metal used by Remington nor that Remington was aware of the existence of such defect. Once the existence of a defect and prior notice of that defect to the manufacturer has been established, the availability of a nondefective alternative is a factor to be considered in determining whether the manufacturer’s failure to act constitutes sufficient misconduct to support a punitive damages award. (See Grimshaw; Qryc.) Nothing in Dr. Levinson’s testimony that the metal was inadequate for its intended use establishes that Remington knew or should have known of the defective nature of the gun metal. Although the testimony on these matters supports the jury’s decision that a defect existed in the gun or shell or both, it fails to reflect Remington’s flagrant indifference to the public safety.

Compensatory Damages

Remington also attacks the sufficiency of the evidence presented on the compensatory damages claim, asserting that the evidence was also insufficient to survive its motion for a directed verdict under Pedrick. Plaintiff’s evidence was sufficient to create a jury question regarding whether her injuries resulted from an unreasonably dangerous condition of the gun or shell present when the products left Remington’s control. Moore v. Jewel Tea Co. (1969), 116 Ill. App. 2d 109, 253 N.E.2d 636, affd (1970), 46 Ill. 2d 288, 263 N.E.2d 103; Dunham v. Vaughan & Rushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401; Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.

In reviewing the evidence, Remington ignores the testimony of the occurrence witnesses about the incident itself. The very nature of the occurrence implies the existence of a dangerous defect in either the gun or the shell. With regard to the shell, the Moores testified that the shell was a blue Remington shell, and Alan Barber stated that it was a factory-loaded shell. Remington’s own committee report found that the explosion was caused by defective ammunition. Even in the face of the greater number of Remington witnesses who testified that the shell was a reloaded one, a jury question was created by the testimony of the Moores and Barber.

Remington attempts to separate count I from count II and distinguish between design and manufacturing defects in the shotgun. In this case the evidence was not so distinct. Although Dr. Levinson’s opinion was that the defective nature of the metal was a metallurgical design defect, he also testified that forging of the metal into bars and the proof testing of the guns by the manufacturer exacerbated the defects.

Remington attacks Levinson’s credibility as an expert witness, asserting that he was not as qualified as Dr. Packer. Levinson admitted that he had never previously worked on metals involving firearms; he was, however, an expert in metallurgy and clearly qualified to testify as an expert in this area. Any distinction between Dr. Levinson’s and Dr. Packer’s credentials affected only the weight to be given their testimony by the jury and not the sufficiency of the testimony.

Remington’s final argument is that evidence of its net worth was improperly admitted into evidence. Clearly, the financial condition of a corporate defendant is relevant in products liability cases where punitive damages are sought. (Moore v. Jewel Tea Co. (1969), 116 Ill. App. 2d 109, 135, 253 N.E.2d 636, 648, affd (1970), 46 Ill. 2d 288, 263 N.E.2d 103.) The assistant treasurer of Remington testified that Remington’s net worth immediately prior to trial was $150 million. This evidence was properly admitted, and although Remington argues that it was prejudicial to the determination of compensatory damages, it does not argue that the amount awarded was excessive. We find no error in the admission of this testimony.

For the foregoing reasons, we affirm the award of compensatory damages and reverse the punitive damages award.

Affirmed in part, reversed in part.

TRAPP, P. J., and GREEN, J., concur.


author: Mr. JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL NANCE, Defendant-Appellant.
    Fourth District
    No. 16971
    Opinion filed October 15,1981.

      Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE MILLS

delivered the opinion of the court:

Armed robbery.

Jury trial.

Guilty.

Extended term — 45 years.

We affirm.

The facts are somewhat prolix.

At Nance’s jury trial, John Fiorino testified that as he rode his motorcycle down a Decatur street on August 5, 1980, a man on a bicycle stopped him. Two men seated across the street and about 25 to 30 feet away then called Fiorino over to them. As he pulled into a vacant parking lot, they walked up behind him and one — whom Fiorino identified as defendant — put a handgun to the back of his head and demanded money and cocaine. Fiorino stated that he had neither. However, defendant removed Fiorino’s wristwatch and either defendant or his companion took Fiorino’s wallet.

In a photo identification, Fiorino was unable to state with certainty that defendant was his assailant. However, in a lineup two days after the armed robbery, he identified defendant as the gunman and Julius Pettis as the man on the bicycle.

Julius Pettis was originally charged with armed robbery in connection with this incident but was later given immunity in exchange for his testimony against defendant. Pettis testified that he came up to Fiorino and complimented him on his motorcycle, whereupon Fiorino asked whether Pettis knew anyone who wanted to buy some cocaine. After going to speak to his brother Dave and defendant, Pettis rode his bicycle back to Fiorino and told him to go across the street to where Dave and defendant were. Pettis testified that he saw defendant put a handgun near Fiorino’s ear and saw defendant go through Fiorino’s saddlebags after Fiorino had run away.

On cross-examination, Pettis admitted lying repeatedly to investigating officers concerning this incident. He acknowledged that, contrary to his trial testimony, he had told the officers that he had seen defendant and Fiorino together earlier in the evening, that he was some distance down the street when the armed robbery occurred, and that Dave Pettis was the gunman. He testified that he had lied “quite a lot” to a detective.

Defendant’s attorney, Gary Geisler, then showed Pettis defendant’s exhibit No. 2, which Pettis admitted having signed. However, he denied that the document had ever been read to him. Pettis was then shown defendant’s exhibit No. 1, which he also admitted signing. However, Pettis stated that Geisler had read exhibit No. 1 to him before he signed it. (Exhibit No. 1 was simply a typewritten version of exhibit No. 2, which Geisler had written in longhand at the time he interviewed Pettis on November 5, 1980, in the Macon County jail.)

After Pettis became openly hostile to Geisler, proceedings were held outside the presence of the jury. The trial court learned that at the time Geisler interviewed Pettis in connection with this case, Pettis was incarcerated on charges arising out of the same incident and was represented by appointed counsel. Pettis was not granted immunity from prosecution until November 10,' 1980, five days after the interview; he signed exhibit No. 1 on November 14. Exhibit No. 1, which Geisler himself prepared, consists of a series of questions and answers in which Pettis, inter alia, stated (1) that he could see only the tops of the heads of Fiorino’s assailants and was not certain they were defendant and Dave Pettis, and (2) that he did not see either of them with á gun.

It was obviously Geisler’s intention to impeach Pettis with exhibit No. 1 as a prior inconsistent statement. Ruling on the State’s objection to the attempted impeachment, the trial court said:

“Number one, the question is improper as an attempted impeachment without any foundation whatsoever. To impeach a witness you have to lay foundation as to time and place, who was present, say the least. Number two I sustained it because if he should answer no, then it would be necessary for you to testify to complete the impeachment, and that, of course, I was trying to avoid because when you become a witness you no longer are competent as counsel. You can’t have a dual role. You’d have to withdraw.”

Before allowing Geisler to proceed with an offer of proof, the court said:

“But I’m not going to say that counsel for one co-defendant can interview another co-defendant in the county jail, prepare a document, have him sign it and then impeach him with it as to what he signed. That’s the position the Court is taking, that is not correct procedure and nor is it ethical.”

During the offer of proof, Pettis stated that he had read through a copy of exhibit No. 1 and that Geisler had also read it to him prior to his signing it. Pettis testified as follows concerning the time when the original interview took place:

“Q. Did we discuss this occurrence you had observed on August 5?
O » #
A. We discussed it but, you know like he told me, you know he said that, you know I won’t get no perjury or nothing, he just said give him a statement. So I gave him a statement.
Q. Did I ask you these questions and did you give me these answers?
A. Yes, you asked me — .
Q. Did I promise you that you would never get charged with perjury in this case?
A. Yes, you said that I wouldn’t be charged with no perjury and yes, then I gave you the statement.
Q. Are you saying that this statement is all lies?
A. Yes.”

The trial court denied the offer of proof and sustained the State’s objection to the attempted impeachment.

Gordon Bell (a Decatur police detective) recounted a statement defendant had made to him: defendant said that while he and Dave Pettis were in the area of Church and Cerro Gordo Streets, Julius Pettis came by and told them that he knew someone who wanted to sell some cocaine. Dave told Julius to bring that person, and in a few minutes Julius and Fiorino returned. After Fiorino pulled into the parking lot, Julius and Dave told him to shut off the motorcycle’s lights. Julius took the motorcycle keys, and Dave held a gun to Fiorino’s head and told him they wanted cocaine. Julius searched Fiorino’s pockets and saddlebags, but Fiorino then said the cocaine was in his left sock and Julius took it.

The only witness for the defense was Reginold Penermon, who testified that when he saw Fiorino the night of August 5, Fiorino said he was going to get some cocaine. Later, he saw Fiorino on his motorcycle in a vacant parking lot in the area of Church and Cerro Gordo Streets. Dave and Julius Pettis were standing beside him, and Dave was holding a gun. Defendant was in the street next to the parking lot, not in the lot or next to Fiorino’s motorcycle. Penermon saw Fiorino run away and looked again to see the Pettises also fleeing and defendant walking away.

On cross-examination, Penermon testified that he is also known as “Barbara,” that he had been convicted of theft, and that, at the time of trial, he had been defendant’s cellmate a little over a month. He stated that defendant is larger than he is and that he and defendant would continue to occupy the same cell after the trial. The following colloquy then occurred:

“Q. Isn’t it true that if you don’t testify, that if you testify implicating Michael Nance in this crime that you’ve got hell to pay when you go back to that cell?
A. No.
MR. GEISLER: Objection, Your Honor.
THE COURT: He may answer.
A. No, I don’t think so.”

The jury found defendant guilty of armed robbery. At his sentencing hearing, the State showed that on March 1, 1978, defendant had pled guilty to armed robbery. Based on that factor, the trial court sentenced him to an extended term of 45 years.

I

Defendant’s principal contention on appeal is that the trial court should have allowed defense counsel to impeach Julius Pettis with the prior inconsistent statement he had given to Geisler. As the trial court observed, a witness can be impeached with a prior inconsistent statement only if the attorney seeking to impeach him first directs his attention to the time, place, and persons present when the statement was made and is advised as to the substance of the statement. (People v. Smith (1980), 78 Ill. 2d 298, 399 N.E.2d 1289.) The State argues that defense counsel failed to lay such a foundation because he did not specify the particular occasion on which the interview occurred.

The purpose of the foundation requirement for admission of a prior inconsistent statement is to give a witness an opportunity to explain the statement and to protect him from unfair surprise. (Smith.) If these purposes have been fulfilled, it is not required that all the conventional elements of foundation be presented. (People v. Henry (1970), 47 Ill. 2d 312, 265 N.E.2d 876; People v. Beasley (1977), 54 Ill. App. 3d 109, 369 N.E.2d 260.) In the case at bar, there can be no question that Pettis was aware of what Geisler was questioning him about. He had ample opportunity to explain the statement, and he clearly was not surprised. (Furthermore, the laying of this foundation occurred outside the presence of the jury, making it even less critical that the formal procedures be followed.) There was, then, no weakness in the foundation concerning time, place, and persons present.

The parties are in some disagreement concerning what further foundation is necessary to admit a prior inconsistent written statement into evidence. In Illinois Central R.R. Co. v. Wade (1903), 206 Ill. 523, 69 N.E. 565, the court used language which suggested that if a witness merely admits that a document contains his signature, then the contents of that document can be used to impeach him. Subsequent cases — in fact— followed this “rule.” Chicago City Ry. Co. v. Mauger (1906), 128 Ill. App. 512; Edmunds Manufacturing Co. v. McFarland (1905), 118 Ill. App. 256; see also Chicago City Ry. Co. v. Matthieson (1904), 212 Ill. 292, 72 N.E. 443.

In Belskis v. Dering Coal Co. (1910), 246 Ill. 62, 92 N.E. 575, however, the court pointed out that, in addition to identifying his signature, the witness in Wade said that he understood the contents of the document when he signed it and that it had not been changed. Subsequent cases, then, have said that if a witness admits signing a document but repudiates its accuracy as an account of his statement or denies having had knowledge of its contents at the time he signed, further foundation testimony is required. (Watker v. Shea-Matson Trucking Co. (1951), 344 Ill. App. 466, 101 N.E.2d 449; Horton v. Mozin (1950), 341 Ill. App. 66, 92 N.E.2d 671 (abstract).) On the other hand, if the witness admits that he signed the document and does not repudiate its accuracy, then there is adequate foundation for its admission without testimony from any other person presént when the statement was made. See Laughlin v. Chenoweth (1980), 92 Ill. App. 3d 430, 414 N.E.2d 1296.

It was, therefore, improper for the trial court to refuse to allow impeachment of Pettis on the ground that Geisler would have to testify in order to lay a proper foundation for admission of the prior inconsistent written statement. The trial court’s position was well taken before the offer of proof. At that stage, it was possible that Pettis would deny giving any statement to Geisler or would repudiate the accuracy of exhibit No. 1 as an account of his statement. During the offer of proof, however, Pettis admitted that exhibit No. 1 was his statement. At that point, it became clear that Geisler’s testimony would not be necessary.

II

On appeal, the State seeks to uphold the trial court’s exclusion of Pettis’ prior inconsistent written statement on the ground that Geisler acted unethically in obtaining it. The State relies heavily upon Bruske v. Arnold (1969), 44 Ill. 2d 132, 254 N.E.2d 453, cert, denied (1970), 398 U.S. 905, 26 L. Ed. 2d 65, 90 S. Ct. 1697. In that negligence case, a private investigator, hired by plaintiff’s attorney, interviewed defendant without defendant’s attorney present. The interview, consisting mostly of leading questions, was transcribed by a court reporter. The supreme court upheld the trial court’s exclusion of the statement because it had been obtained in violation of the civil discovery rules and Canon 9 of the ISBA’s Canons of Ethics. The court said that the fact a statement is illegally obtained does not necessarily make it inadmissible, but in this case the attorney’s agent’s actions justified the sanction:

“In reaching this opinion, we are not unmindful that rules of discovery should not necessarily operate as exclusionary rules of evidence or that separate procedures exist for the regulation and discipline of unethical conduct on the part of attorneys. Rules, however, to be effective must carry an appropriate sanction; otherwise, the orderly process of a lawsuit is left to the mercy of the individual’s sense of justice.” (44 Ill. 2d 132, 136, 254 N.E.2d 453, 456.)

The State argues that Geisler violated Supreme Court Rule 7 — 104(a)(1) (79 Ill. 2d R. 7 — 104(a)(1)) and that we should rule that Pettis’ prior inconsistent written statement was inadmissible because it was illegally obtained.

“(a) During the course of his representation of a client a lawyer shall not
(1) communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so 0 • 79 Ill. 2d R. 7 — 104(a)(1).

This case, however, differs somewhat from Bruske. Here we have no violation of a discovery rule, an action which itself can be grounds for excluding evidence. (See Ill. Rev. Stat. 1979, ch. 110A, pars. 219(c) (iv) and 415(g)(i).) Furthermore, it is not completely clear that Geisler violated Rule 7 — 104(a)(1). That provision proscribes communication with “a party ° 0 * in that matter * * We have been unable to find any case which has determined whether a person in Pettis’ position (i.e., being held in connection with the same criminal incident) should be considered a “party” for purposes of Rule 7 — 104(a) (1). We note again that Bruske.says that the fact a statement is illegally obtained does not make it per se inadmissible. Under the present circumstances, where it is debatable whether Geisler violated Rule 7 — 104(a)(1), we conclude that the attorney’s method of obtaining this statement was not itself a proper ground for excluding it from evidence.

Ill

As a dying gasp in its effort to persuade us that the trial court properly excluded Pettis’ statement, the State argues that it was involuntary. Mincey v. Arizona (1978), 437 U.S. 385, 57 L. Ed. 2d 290, 98 S. Ct. 2408, held that where a Miranda violation makes a criminal defendant’s statement involuntary and thus untrustworthy, the statement is inadmissible even for purposes of impeachment. The State’s claim that Pettis’ statement was involuntary rests upon the fact that Geisler allegedly promised him immunity from perjury prosecution before taking the statement. Of course, Pettis could never have been prosecuted for perjury for that statement (see Ill. Rev. Stat. 1979, ch. 38, par. 32 — 2), and Geisler had no authority to make such a promise. But even assuming that Pettis did not know these legal matters, we do not see Geisler’s alleged promise of immunity as making the statement involuntary. It may cast some doubt upon the statement’s trustworthiness as an account of what Pettis actually thought at the time of the interview. But, we conclude that the promise does not taint the whole statement to such an extent that it should have been excluded from evidence.

We agree with the State, however, that the exclusion of the statement was harmless error. It is hornbook law that a witness’ prior inconsistent statement is admissible only to attack his credibility; it cannot be admitted as proof of the substance of the statement. (People v. Gant (1974), 58 Ill. 2d 178, 317 N.E.2d 564.) Thus, exhibit No. 1 was inadmissible to prove that defendant and Dave Pettis were not Fiorino’s assailants or that the assailants were unarmed. Rather, the jury could properly use the exhibit only as evidence that Pettis could not be relied upon to tell the truth. However, while testifying, Pettis forthrightly admitted lying repeatedly to police. And as an apparent accomplice, Pettis was already subject to some suspicion.

Defendant claims that the trial court’s error was prejudicial because it was important for the jury to know that Pettis had previously told a different story as to the key factors of identification of the assailants and whether the assailants were armed. That contention, however, completely overlooks the fact that exhibit No. 1 could not properly be used to prove the matters contained in it. It is not important what Pettis may have lied about. Rather, the defense was entitled only to show that he was a liar. The jury had ample evidence before it showing that Pettis’ credibility was subject to doubt; any evidence on that point in exhibit No. 1 would have been cumulative.

IV

During his closing argument, the prosecutor said, “You know what’s going to happen to [Reginold Penermon], ladies and gentlemen, if he didn’t come down and say Michael Nance didn’t have anything to do with it.” The court overruled defendant’s objection to this statement. On appeal, he contends that this argument was prejudicial because it was not based upon evidence in the record. (See People v. Beier (1963), 29 Ill. 2d 511, 194 N.E.2d 280.) We find the prosecutor’s argument to be proper. Although Penermon replied, “No, I don’t think so,” to the prosecutor’s suggestion that he would “have hell to pay” if he did not testify in defendant’s favor, it was still an “arguable inference” from the evidence that Penermon was testifying under pressure from defendant, his cellmate. People v. Hill (1977), 45 Ill. App. 3d 14, 16, 358 N.E.2d 1350, 1351.

V

Finally, defendant claims that the trial court erred in imposing an extended term of imprisonment under section 5 — 5—3.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(1)). That provision allows imposition of an extended term when a defendant has been “previously convicted in Illinois of the same or greater class felony, within ten years * 0 Defendant was convicted of armed robbery on March 1, 1978. Defendant claims that because armed robbery was a Class 1 felony prior to its reclassification, then he was not being convicted of the same class of felony as he had been on March 1, 1978. Defendant, however, seems to overlook the fact that the reclassification of armed robbery occurred on February 1, 1978, a month prior to his previous conviction. Thus, defendant’s prior conviction was for the same class of felony.

Recause no reversible error occurred at defendant’s trial or sentencing hearing, his conviction and sentence are hereby affirmed.

Affirmed.

GREEN and LONDRIGAN, JJ., concur.


author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
      In re MARRIAGE OF JOANNE D. SMITH, Petitioner-Appellant, and ANDREW P. SMITH, Respondent-Appellee.
    Second District
    No. 81-26
    Opinion filed October 15, 1981.

      Harry Schaffner, of Schaffner and Castillo, of Elgin, for appellant.
    William Murphy, of Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellee.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Joanne D. Smith (the wife) appeals from a portion of the judgment of dissolution of marriage which disposed of marital property, and from the award of child support, maintenance and attorney’s fees. Andrew P. Smith (the husband) cross-appeals from the portion of the judgment which awarded certain marital property to the wife or directly to the children, and the child support award.

The judgment appealed from was entered on December 12, 1980. Based on our view of the record, we have stated the property division decreed by the court in the following outline:

The husband is a licensed professional engineer in his own business with two small municipalities as his principal clients. The parties were married on September 11, 1954, eight children being born of the marriage, seven of whom are surviving; five children live in the marital residence, three of whom are minors; he is age 53 and she, 48; before and for a short time after their marriage she was a private secretary. The parties’ tax returns for 1974-1979 were admitted into evidence. The 1978 return reflected net income of approximately $38,000 and that of 1979 approximately $34,000.

Business income was augmented by stock dividends, interest income and a capital gain from sale of stock. Because the wife was awarded all the stock, most of this income will no longer accrue to the husband. The husband paid almost $2,000 social security in 1979. Thus, if the husband earns similar amounts in 1980, he would have about $32,000 disposable income before payment of Federal and State income taxes. He testified that he would earn substantially less in 1980 than in 1979, however.

The husband was ordered to maintain his life insurance policies for the benefit of the minor children until the youngest child graduates from college, with yearly premiums amounting to $3,500. The husband was also ordered to pay parochial school tuition for the youngest child while she is in grade school. Tuition was estimated at $400 a year. He was also required to maintain health insurance for the minor children and pay extraordinary medical and dental costs. The husband was further ordered to pay $1,200 per month ($14,400 annually) to the wife, to be reduced in the future by various means. The result is that the husband’s monthly payments would drop to $700 a month in May of 1981 and, further, would drop to $400 per month in August of 1982. The court denied maintenance, noting that the monthly award to the wife was to give her time to readjust, to secure additional vocational training and “to provide some funds for such purpose and for support for the children.”

The wife was awarded $93,000 in income-producing assets. Her present income is about $1,500 a year. Her annual income at the time of the decree was $14,400 from the husband, plus $1,500, or a total of $15,900. Additional amounts would be realized from the investment of the $93,000 at a reasonable rate of return. She testified to monthly expenses approximately totaling $1,800 with additional expenses associated with the house totaling $520.

The trial judge in a thorough memorandum stated his basic concept that each was an equal partner and that equality was the basic consideration in the division of the marital property. He also took into account the stipulation of the parties that the wife would shortly receive assets of a value of $100,000 from an inheritance from her family.

In her argument that the court based its decision on improper considerations, the wife first argues that the judge improperly relied upon the return on investment which she could realize from the stock and sale of the house with no evidence having been adduced as to the investment value or fair market rental value of the home. It appears from the judge’s memorandum that in denying the wife’s request to reside in the marital residence until the youngest child reached 18 he concluded that when factors such as taxes, insurance, as well as income lost from the retention of the residence “the cost of such a procedure will approximate at least $1,000 monthly on a house of such value.”

Section 503 of the Marriage and Dissolution of Marriage Act permits the court to consider “relevant economic circumstances” in disposing of the property and determining whether there is sufficient property to provide for a spouse’s reasonable needs without awarding maintenance. (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(4).) We believe that it is thus contemplated that the court must make some approximation of the income available to a party in order to determine whether the marital home should be sold or maintenance should be awarded. We reject the wife’s argument that inferentially suggests that expert witnesses must be called to testify regarding return on investment. In this regard the judge as the finder of fact is able to and in fact required to take notice of “relevant economic circumstances.” It fairly appears from the record that the court was using an estimate of approximately 8 percent which, as a matter of common knowledge, is conservative and not an abuse of discretion. In 1919 the Illinois Supreme Court found that “[i]t is a matter of common knowledge, of which this court may take cognizance, that well secured six per cent first mortgage loans on Illinois farm land are not usually sold at a large discount.” (Kirby v. Judy (1918), 286 Ill. 200, 208.) Generally, a court may take judicial notice of the fair earning powers of money or invested capital in a certain time period. See 29 Am. Jur. 2d Evidence §82 (1967). See also In re Kees Estate (1948), 293 Iowa 287, 293, 31 N.W.2d 380, 383; Fortman v. Manthey (N.D. 1976), 248 N.W.2d 821, 823; Trailer Train Co. v. State Board of Equalization (N.D. Cal. 1981), 511 F. Supp. 553, 558. And cf. Island Lake Water Co. v. Illinois Commerce Com. (1978), 65 Ill. App. 3d 853, 857.

The wife also contends that it was error for the trial court, in considering relative economic circumstances, to take into account income which would probably be received from inheritance to the wife. It was undetermined as to when the assets would come to the wife because of probate procedures and whether or not they were income producing. However, the wife stipulated that the estate had assets of about $800,000 and that under the will she would receive one-sixth of the estate after the expenses and taxes were paid, or approximately $100,000. The Act requires the court to consider nonmarital property, even where the non-marital property will be received in the future when it determines the “relevant economic circumstances of each spouse” (Ill. Rev. Stat. 1979, ch. 40, par. 503(c) (4)) and the “amount and sources of income” of the parties (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(7)), as well as “the reasonable opportunity of each spouse for future acquisition of capital assets and income.” (Ill. Rev. Stat. 1979, ch. 40, par. 503(c) (10).) It is a fair inference from the record that the court implicitly recognized that the inheritance might not be received for some time by awarding the wife an additional $300 a month until August 1, 1982. We find no error in the court’s consideration of the future inheritance in the circumstances of this case.

The wife also argues that she should have been allowed to stay in the home until the youngest child reaches 18. She reasons that the sale of the home would cause a reduction in the children’s standard of living and that the husband did not need to withdraw his equity in the home. The goal of the trial court was to give the wife enough income-producing assets that maintenance would not be required. This goal is, of course, in line with the intent of the Act:

“The dual intention of this section [504] and section [503] is to encourage the court to provide for the financial needs of the spouses by property disposition rather than by an award of maintenance.” 9A Uniform Laws Annotated, Uniform Marriage and Divorce Act §308, Commissioners’ Comment, at 161 (1979).

A secondary goal was to allow the husband sufficient funds or assets so that he could pay reasonable child support while providing for his own needs. Keeping the marital home would conflict with both of these goals. The wife would have $50,000 less in investment assets and would incur high monthly ownership costs. Either maintenance or quite high child support would have been necessary. The husband would have virtually no income-producing assets to aid him in paying child support. A fair analysis of the husband’s income shows that he would be hard pressed to pay high child support on his business income alone.

In our view, the court’s decision here was reasonable. Although the Act recognizes the “desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children” (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(4)), the Act prefers providing for the needs of the parties through property division rather than maintenance.

The wife also contends that the denial of permanent maintenance was against the manifest weight of the evidence. The Act intends that post-marital support should be accomplished through a just division of assets wherever possible, rather than maintenance, which may be difficult to enforce. (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 576.) A reasonable return on investment coupled with the wife’s potential ability to have some employment earnings and receive child support appears to adequately provide for the needs of the wife and minor children. We find no abuse of discretion in this regard.

We also find no abuse of discretion in the court’s failing to order the husband to pay the wife’s attorney’s fees. On this record the wife could pay her attorney’s fees of $5,000 while minimally reducing her assets, while the husband would have to nearly deplete the savings account awarded to him. The test for deciding whether to award attorney’s fees is the ability of one spouse to pay and the ability of the other to pay. (In re Marriage of Rogers (1980), 86 Ill. App. 3d 904, affd (1981), 85 Ill. 2d 217.) Several courts have also held that even where a spouse is awarded sufficient marital property to enable her to pay her attorney’s fees, the other spouse can be ordered to pay them so that she is not required to deplete her capital assets. (Kenly v. Kenly (1977), 47 Ill. App. 3d 694, 697; In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 661-62.) Within these guide lines we find no abuse of discretion.

The wife also contends that the child support order is against the manifest weight of the evidence. She argues that the child support award is inadequate because after 1984 only one child will remain a minor and the child support will be a mere $200 a month. However, it seems fundamental that the court is concerned with the adequacy of the award when made, and the wife can always petition for an increase in the future. She does not argue that the $1,200 a month award is inadequate or even that the award will be inadequate when the house is sold. The court could reasonably have found that the wife’s income from all sources will approximate the husband’s, and under these circumstances the support award appears reasonable and is not an abuse of discretion.

The wife also challenges the reduction in child support occasioned by graduation from high school. The judgment provided that child support would be reduced by $200 a month as each child obtained the age of 18 or finished high school, “whichever first occurs.” The question of whether the court can order termination of support for a child before the legal duty of support ends does not appear to have been addressed in Illinois previously. We have not been directed to nor have we found relevant cases in other jurisdictions.

Section 510(c) of the Act provides as pertinent:

“Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child * ° (Ill. Rev. Stat. 1979, ch. 40, par. 510(c).)

In Finley v. Finley (1980), 81 Ill. 2d 317, the Illinois Supreme Court noted that section 510(c) of the Act was nearly identical to provisions in the Uniform Act, which has been interpreted by the Commissioner’s Note as having a purpose not to release the parent from the duty to support an emancipated child but rather to allow parents to agree and the decree to provide that parents be liable subsequent to the emancipation of the child. (81 Ill. 2d 317, 325.) Although the intent of section 510(c) is clearly to allow the court to order support to continue after emancipation, by its terms it could allow support to be cut off prior to emancipation. However, given the parents’ legal duty to support their children, it would appear to be sound public policy to require extraordinary circumstances before allowing support to terminate before emancipation. In effect, the trial court determined that children are emancipated upon graduation from high school without reference to the child’s then need of support. We do not foreclose the possibility that there may be circumstances where an early end of support would be within court’s discretion where the child had other monies available or at his disposal at such time. However, no such circumstances are present here. We therefore vacate that portion of the decree which terminated child support on graduation from high school. Of course, if a child becomes self-supporting before age 18 the husband can later petition for modification of the child support payments.

The Cross-Appeal

At the conclusion of evidentiary hearings on August 13, 1980, the wife’s attorney suggested that each party draw up a list of household items desired so as to facilitate an agreement. The husband agreed to the division of the vehicles suggested by the wife which eventually was incorporated into the judgment. The husband requested the camping equipment and the piano, which were given to respective children. The wife requested the silver as nonmarital property; and although the husband argued that the silver was marital property, he consented to it being awarded to the wife.

The thrust of the husband’s argument on cross-appeal is that he assented to an unequal share of the household goods and vehicles in return for a greater share of other marital assets, specifically the Commonwealth Edison stock and the Merrill Lynch account. There is, however, no evidence as to the value of the items in question awarded to the wife as compared to those awarded to the husband. We conclude that the absence of evidence as to which household items were awarded to the wife precludes our review of the division of these goods, particularly since the husband does not point to any relevant fact under section 503 of the Act which was ignored by the trial court.

We are, however, persuaded by the husband’s contention that it is improper to award the camping equipment and piano to the children, because the Act contemplates the division of marital property between the spouses. The issue of whether marital property may be awarded to the children is addressed in In re Marriage of Raski (1978), 64 Ill. App. 3d 629, 632. As noted in Raski, the Act contemplates that the duty of support normally continues only during the minority of the child and there is no provision in the Act authorizing an outright conveyance of marital property even in trust which is unrelated to a child’s support of maintenance. (64 Ill. App. 3d 629, 632-33.) Awarding marital property to a child forces the spouses to support the children after they have reached the age of majority, in contravention of the public policy of the State. We believe a fair resolution of this issue without requiring the time and expense of further hearings is for this court to vacate this portion of the judgment and to award the items to the husband, with the children given the right to use the items until the youngest child attains 18 years of age, at which time, if the husband directs, the items shall be returned to him.

The husband also contends that the court’s conclusion that the silver was nonmarital property of the wife is against the manifest weight of the evidence. We agree. The husband testified that the silver was a gift to the family and the wife did not rebut that contention nor did she claim at trial that the property was nonmarital. Property acquired during the marriage is presumed to be marital property. (Ill. Rev. Stat. 1979, ch. 40, par. 503(b).) The presumption may be overcome on a showing by clear and convincing evidence that the property was acquired by gift. (Ill. Rev. Stat. 1979, ch. 40, par. 503(a)(1). See also In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 654.) The burden of proof is upon the party claiming the nonmarital property. (In re Marriage of Amato (1980), 80 Ill. App. 3d 395, 398.) We conclude that the wife did not meet her burden. We therefore find that the property is marital property. Because there is no evidence of the value of the silver, we deem the fairest approach is to simply divide it between the parties.

Finally, the husband in his cross-appeal contends that the child-support award should be reduced. We disagree. The basic child-support award does not seem excessive under all the circumstances. The temporary amounts are justified as giving the wife time to make other living arrangements and to secure more lucrative employment, and are therefore within the trial court’s discretion.

To the extent heretofore indicated the judgment is affirmed in part, vacated in part, modified in part and as modified affirmed.

Affirmed as modified.

REINHARD and HOPF, JJ., concur.