text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANDRZEJ BAFIA et al., Defendants-Appellees.
    Second District
    Nos. 82—232, 82—381, 82—417, 82—429 cons.
    Opinion filed February 9, 1983.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    No brief filed for appellees.
   JUSTICE NASH

delivered the opinion of the court:

In these cases, which we have consolidated for opinion, the State appeals, contending that the circuit court’s findings in implied consent hearings that the arresting officer had no reasonable grounds to believe the defendant was driving a motor vehicle while under the influence of intoxicating liquor were against the manifest weight of the evidence.

Defendants Andrzej Bafia, Donald J. Lee, David HoIIeb and Donald I. Weidel have not responded in this court with a brief and we will consider the issues under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

In each case defendant was arrested in Du Page County for driving under the influence of intoxicating liquor in violation of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501(a)). Defendants each thereafter refused to submit to a breath analysis after being advised, pursuant to the Code, that a refusal may result in the suspension of his privilege to operate a motor vehicle (Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501.1(a)(2)). Also in each case, pursuant to the Code, the arresting officer filed with the clerk of the circuit court a notice of the refusal to submit to breath analysis and the clerk thereupon notified each defendant his driving privileges would be suspended unless a hearing was requested (Ill. Rev. Stat. 1979, ch. 95V2, par. 11 — 501.1(d)). Each defendant did request a hearing before the trial court and the State appeals from the orders in these cases, finding the officers had no reasonable cause to believe each defendant was driving while under the influence of intoxicating liquor. See People v. Malloy (1979), 76 Ill. 2d 513, 395 N.E.2d 381.

In these cases we consider whether the judgments of the trial court were contrary to the manifest weight of the evidence presented at the implied consent hearings. A court of review will not disturb the judgment below unless it is palpably against the weight of the evidence (Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 756, 347 N.E.2d 278, appeal denied (1976), 63 Ill. 2d 564), and a judicial finding is not against the manifest weight of the evidence unless from the record an opposite conclusion is clearly evident. (Matloob v. Village of Cahokia (1980), 84 Ill. App. 3d 319, 322, 405 N.E.2d 396, appeal denied (1980), 81 Ill. 2d 593.) We necessarily review separately the evidence presented at each hearing.

People v. Donald J. Lee

On December 28, 1981, defendant was arrested for driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 951/2, par. 501(a)), to which he subsequently entered a plea of guilty and was placed on court supervision and fined $750. On April 12, 1982, an implied consent hearing was held before Associate Judge C. Andrew Hayton. Officer Thomas Stuckey of the Du Page County Sheriff’s Department testified he had responded to an accident call at 6:25 p.m. on the date of the offense at the intersection of Route 53 and 75th Street. The two vehicles involved were off the road and defendant identified himself to the officer as driver of one of them. Defendant told Officer Stuckey he could not stop in time and had run into the back of the other car. During the conversation defendant was leaning on his car and hanging on to its outside rear view mirror. The officer noticed a very strong odor of alcohol on defendant’s breath, his eyes were glassy and bloodshot and he staggered when walking. The officer testified it was his opinion defendant was intoxicated and that he arrested and transported him to the police station. Defendant was then advised of his Miranda rights and of the “Nine Points” required under section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501.1), and he thereafter refused to take a breathalyzer test when requested to do so. Defendant offered no evidence, but the trial court found the officer lacked reasonable grounds to believe defendant was driving while under the influence of intoxicating liquor, apparently on the grounds the officer had not seen defendant drive the automobile.

People v. Donald J. Weidel

Defendant was arrested on November 28, 1981, for driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95V2, par. 11 — 501). On May 3, 1982, he entered a plea of guilty to that offense and was placed on court supervision and fined $1,000. At the implied consent hearing held immediately thereafter before Associate Judge C. Andrew Hayton, Deputy Sheriff Arthur Weldon testified that he responded to an accident call at 10:08 p.m. on November 28, 1981, in Hinsdale. He there saw two automobiles in a parking lot driveway and noticed defendant walking towards a building. The officer told defendant to return and defendant staggered as he did so. Defendant told the officer he was the driver of one of the cars involved in the accident and said he was going north and must have dozed off. The officer noted the odor of alcohol on defendant’s breath and that he spoke in a slurred manner and was unable to perform the finger to nose test. Defendant was arrested and taken to the Darien police station where he refused to take a breathalyzer test, stating to friends who were also present, “You know I’m drunk. I know I’m drunk. This is the best way.”

Defendant also testified, stating his appearance and conduct may have resulted from his striking his head on the windshield in the accident. Defendant acknowledged, however, he had told the officer he had not been injured lately and was not ill. The trial court found the officer lacked reasonable grounds to believe defendant was driving while under the influence of intoxicating liquor, noting the odor of alcohol on defendant was moderate and defendant’s testimony that he was injured in the accident.

People v. Andrzej Bafia

Defendant Andrzej Bafia waived trial by jury for the offense of driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95x/2, par. 11 — 501(a)), and in a bench trial before Associate Judge C. Andrew Hayton the following evidence relevant to the issues of this appeal was presented.

On October 15, 1981, at about 1 a.m. Officer Robert Pavelchick and Sergeant Thomas Burnett of the Darien police department, in separate squad cars, saw defendant driving on 75th Street at 10 to 15 miles per hour in a 45-mile-per-hour zone. When defendant went through a red light without stopping the officers halted him and asked to see his driver’s license. Defendant had difficulty finding the license and first handed the officers a credit card. He had trouble standing and hung onto the car door, swayed unsteadily and was hesitant in performing the finger to nose test. The officers noticed defendant’s hair was mussed, his nose red, eyes bloodshot and he appeared drowsy and confused. There was a strong odor of alcohol on defendant’s breath and his speech was slurred. Defendant was then placed under arrest for driving while under the influence of intoxicating liquor and transported to the police station. He was there advised of his Miranda rights and questioned and the officers testified defendant was confused as to the street on which he had been driving and the day of the week; he also told the officers he had been drinking for the three hours prior to being stopped by them. The officers both testified it was their opinion defendant was intoxicated, based upon their police experience of 16 years and four years, respectively. Evidence was also presented that defendant was requested to take a breathalyzer test and after seeing the results of the first of the required two tests, he declined to complete it. Defendant did not testify, and the evidence presented by the State was uncontradicted.

The trial court granted defendant’s motion for a directed verdict to the charge of driving while under the influence of liquor and, on stipulation of the parties, considered the same evidence for purposes of the implied consent hearing. It then found the arresting officers lacked probable cause to believe defendant drove while under the influence of intoxicating liquor and directed the Secretary of State not to suspend defendant’s driving privileges.

People v. David Holleb

Defendant David Holleb waived trial by jury and, after the close of the State’s case in a bench trial before Associate Judge Duane Walter, the court directed a verdict of not guilty to the offense of driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501(a)). The parties stipulated that the testimony of the arresting officers could be considered in the implied consent hearing which followed the trial.

Officers Michael Sullivan and James McGinley of the Wheaton police department testified they had responded to a disturbance call in downtown Wheaton at 6 p.m. on September 11, 1981. Defendant was in the parkway and Sullivan testified defendant walked into a tree and bounced off. The officer approached defendant and noticed a strong odor of alcohol on him. Officer McGinley observed defendant arguing with another man and stated he was unsteady on his feet. He also noticed an alcohol odor and that defendant swayed while walking, had bloodshot eyes, slurred speech and spoke in a combative manner. The officers suggested that defendant go back into the office and have some coffee; they advised him he was in no condition to drive and if he did so they would arrest him. Defendant did then accept a cup of coffee from Officer McGinley and went inside the office. The officers testified, however, that five minutes later defendant came out of the building and drove off in an auto. The officers followed and observed defendant drive across the center line twice and the curb line once whereupon they stopped him and asked to see his driver’s license. Defendant still emanated a strong alcoholic odor and he was unable to perform the finger to nose test or to understand how to perform the straight line walking test. He was arrested and taken to the county jail where he refused to take a breathalyzer test. Each of the officers expressed his opinion that defendant was under the influence of intoxicating liquor.

The trial court ruled as follows:

“The only question arises [sic] is whether or not the arresting police officer had reasonable grounds to believe that the defendant was intoxicated. It is the opinion of the court, as before, that the police officer had a reasonable ground or had made up his mind prior to the defendant getting into the car. I don’t think that the officer would have stopped him unless he knew of this condition prior to getting into the car. If this officer had never talked to the defendant prior to his entering the car, I doubt if he would have every [sic] stopped him; therefore, I don’t think there is reasonable cause.

I’m not condemning the officer. He saw a guy in a drunken state or, I don’t know if he was in a drunken state. He saw a guy he believed to be intoxicated, drew up his opinion at that time, and when he saw him driving, he stopped him.”

In each of these four cases, we conclude that the finding by the trial court that the arresting officer did not have reasonable grounds to believe defendant was driving while under the influence of intoxicating liquor was contrary to the manifest weight of the evidence.

An implied consent hearing is limited in scope and “shall cover only the issues of whether the person was placed under arrest for an offense as defined in Section 11 — 501 of this Act or a similar provision of a municipal ordinance, whether the arresting officer had reasonable grounds to believe that such person was driving while under the influence of intoxicating liquor, whether the person was informed orally and in writing as provided in Paragraph (a) that his privilege to operate a motor vehicle would be suspended if he refused to submit to and complete the test and whether, after being so advised, he refused to submit to and complete the test upon request of the officer.” (Ill. Rev. Stat. 1979, ch. 95½, par. 11—501.1(d); People v. Malloy (1979), 76 Ill. 2d 513, 517, 395 N.E.2d 381.) In these cases there can be no question that the defendants were arrested for driving while under the influence of liquor; that each was fully informed of the provisions of the implied-consent statute for suspension of driving privileges and that each defendant refused to complete the breathalyzer test requested of him. Nor is there, in our view, an arguable question under the evidence that the arresting officers had reasonable grounds to believe each defendant was driving while under the influence of liquor.

“Reasonable grounds” and “probable cause” for purposes of arrest are synonymous (People v. Peak (1963), 29 Ill. 2d 343, 347-48, 194 N.E.2d 322; People v. Helms (1978), 67 Ill. App. 3d 729, 733, 385 N.E.2d 127) and is present where the facts and circumstances known to the arresting officers are sufficient to warrant a man of reasonable caution to believe an offense has been committed by the person arrested. This standard requires more than mere suspicion, but does not require the officer to have in hand evidence sufficient to convict. (People v. Moody (1983), 94 Ill. 2d 1.) Arguably, the requirement of section 11 — 501.1(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501.1(d)) that the officer have reasonable grounds to believe, rather than to arrest, for driving while intoxicated may suggest a lesser burden of proof; however, we consider the evidence in these cases under the more settled standards pertaining to arrest. The determination of whether an officer has sufficient information on which to properly act is based upon all of the facts and circumstances of each case and in a manner which is not unduly technical. People v. Hanna (1969), 42 Ill. 2d 323, 329, 247 N.E.2d 610, cert. denied (1970), 399 U.S. 929, 26 L. Ed. 2d 796, 90 S. Ct. 2229; People v. Bean (1979), 73 Ill. App. 3d 918, 922, 392 N.E.2d 650, aff’d (1981), 84 Ill. 2d 64, 417 N.E.2d 608.

Defendants Lee and Weidel entered pleas of guilty to the offenses of driving while intoxicated with which they were charged. Such admissions were relevant to the requirement of proof in the implied consent hearing that the arresting officers had reasonable grounds to believe defendants were driving in that condition. (People v. Powell (1982), 107 Ill. App. 3d 418, 419, 437 N.E.2d 1258; People v. Morrissey (1975), 30 Ill. App. 3d 566, 568, 333 N.E.2d 33.) These defendants also exhibited the usual indications of intoxication at the time of their arrests, and when requested to take breathalyzer tests, in that they had difficulty walking and smelled of alcohol. Lee also had glassy, bloodshot eyes and hung onto the car for support when standing; Weidel’s speech was slurred and he could not perform a test of his coordination; he also acknowledged to the officers and others that he was intoxicated. Both defendants advised the officers they had driven automobiles involved in accidents shortly before their arrests. The probability that some portion of Weidel’s appearance and conduct was caused by the accident appears remote, as he had told the officer he was not injured. Circumstances observed after the act of driving offer reasonable grounds upon which to conclude a defendant was driving while intoxicated, as after an accident or where defendant is intoxicated and admits he was driving. (People v. Uselton (1978), 64 Ill. App. 3d 383, 385, 380 N.E.2d 1202; People v. Wright (1977), 49 Ill. App. 3d 356, 358, 364 N.E.2d 355.) Circumstantial evidence can be sufficient to establish probable cause in such cases. People v. Johnson (1976), 40 Ill. App. 3d 982, 983, 353 N.E.2d 130, 131; People v. Toler (1975), 32 Ill. App. 3d 793, 800, 336 N.E.2d 270.

Defendants Bafia and Holleb, although found not guilty of the offense of driving while intoxicated by the trial court, also clearly exhibited those indicia of intoxication which may give rise to a reasonable belief on the part of the arresting officer sufficient to meet the requirement of section 11 — 501.1(d) of the Vehicle Code. The officers saw these defendants driving their vehicles and under the evidence presented it seems apparent defendants were intoxicated. Bafia acknowledged he had been drinking for three hours prior to being stopped after going through a stop light. The officers gave opinion evidence, based upon defendant’s appearance and conduct, that he was intoxicated. No contradicting evidence was offered for consideration by the trial court. Holleb’s appearance and conduct, also not contradicted, well supported the opinions of the witnesses he was intoxicated. They also observed this defendant twice cross the center line of the road into the opposite lane and drive onto the right shoulder of the road. The trial court apparently concluded the officers improperly decided Holleb was intoxicated before they saw him drive and, therefore, could not properly arrest him for driving while intoxicated on that basis. We do not agree with this reasoning and find no basis upon which it may be supported. (See People v. Wright (1977), 49 Ill. App. 3d 356, 364 N.E.2d 355.) Section 11 — 501.1(d) requires only that the officer have a reasonable belief defendant was driving while intoxicated, and the sequence of events leading to that belief is not relevant.

Accordingly, we reverse the findings of the trial court in each case as against the manifest weight of the evidence and remand with directions that findings of reasonable cause be entered by the trial court.

Reversed and remanded.

SEIDENFELD, RJ., and LINDBERG, J., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL A. GROTTI, Defendant-Appellant.
    Fifth District
    No. 81—652
    Opinion filed February 17, 1983.
    Randy E. Blue and Dan E. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

      William Percy, State’s Attorney, of Nashville (Stephen E. Norris and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Following a bench trial in the circuit court of Washington County, the defendant was convicted of driving while license suspended. He was sentenced to nine months’ probation, the first seven days to be served in the Washington County jail. He appeals from his conviction and sentence and argues that his conviction was the product of an illegal arrest.

The sole witness at defendant’s brief trial was Thomas Lantner, former police chief of Ashley, Illinois. On February 14, 1981, he stopped the defendant, who was driving in Ashley, and asked for his driver’s license, which had been suspended. The defendant was then arrested. On direct examination, Lantner stated that he stopped the defendant’s vehicle because it matched the description of a vehicle seen “hot rodding up through town” about two weeks earlier. The people who had observed this activity did not give Lantner a description of the driver.

On cross-examination, Lantner admitted that the defendant had not violated any law in his presence, that no charges had been filed against him and that he had no warrant to arrest the defendant. In fact, he stated that he stopped the defendant because he wanted to talk to him. After this testimony, defense counsel moved to dismiss the charge against the defendant because the evidence showed that the arrest of the defendant was made without probable cause. This motion was denied.

The People argue that the defendant’s motion was properly denied as untimely because section 114 — 12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 12(b), (c)) requires a motion to suppress evidence to be made in writing before trial. However, as the defendant correctly notes, section 114 — 12(c) specifically allows motions to suppress to be made during trial (People v. Strompolis (1971), 2 Ill. App. 3d 289, 276 N.E.2d 464), and states that such a motion need not be made before trial if opportunity to do so did not exist “or the defendant was not aware of the grounds for the motion.” Nothing in the record indicates that the defendant was aware before trial, or even that he should have been aware before trial, that his initial stop could have been made without probable cause. In fact, it does not appear that this issue was presented until Chief Lantner testified at trial. Under these circumstances, the defendant’s motion was timely. People v. Thomas (1967), 88 Ill. App. 2d 71, 232 N.E.2d 259.

In Delaware v. Prouse (1979), 440 U.S. 648, 661, 59 L. Ed. 2d 660, 672, 99 S. Ct. 1391, 1400, the Supreme Court held that the fourth amendment is violated if a driver is stopped on a public highway and his license and registration are checked “[w]hen there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations — or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered ***.” Here, Chief Lantner’s uncontradicted testimony shows that the defendant did not violate any traffic laws or regulations in his presence and that Lantner had no reason to believe that the defendant was unlicensed or his vehicle was unregistered. As in Prouse, there was no specific reason to stop this defendant, because there was a “total lack of circumstances connecting defendant to a crime ***.” (People v. Lang (1978), 66 Ill. App. 3d 920, 925, 383 N.E.2d 782, 786.) Nor does the suggestion that the vehicle which the defendant drove was seen “hot rodding” provide cause to stop the defendant, given that the observation had been made two weeks earlier and no description of the driver was given to Lantner. (Compare People v. Kunath (1981), 99 Ill. App. 3d 201, 425 N.E.2d 486.) Moreover, it is difficult to discern which portions of the Illinois Vehicle Code or local ordinance if any, were violated by the “hot rodding,” whatever the complaining citizens may have meant by that term. The testimony of Chief Lantner is conclusive proof that the stop of the defendant was made without any articulable facts to justify it, and accordingly, defendant’s conviction must be reversed as the fruit of that illegal stop. The judgment of the circuit court of Washington County is therefore reversed.

Reversed.

HARRISON, P.J., and EARNS, J., concur.


author: JUSTICE LINN

text:
    PHILLIP R. THOMPSON, Plaintiff-Appellant, v. E. ALLEN BERNARDI et al., Defendants-Appellees.
    First District (4th Division)
    No. 82—358
    Opinion filed February 17, 1983.
    Bell, Boyd & Lloyd, of Chicago (Charles G. Albert, of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Orisha Kulick Zeliski, Assistant Attorney General, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Phillip Thompson, appeals from an order of the circuit court dismissing his complaint for administrative review (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.) for want of jurisdiction because of his failure to file the complaint “within 35 days from the date that a copy of the decision sought to be reviewed was served upon [him].” (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 103.) The sole issue is whether the trial court erred in concluding that plaintiff did not file his action for administrative review within the jurisdictional time limit.

The Administrative Review Act (the Act) governs appeals from decisions of the defendant, the Board of Review of the Illinois Department of Labor (the Board). (Ill. Rev. Stat. 1981, ch. 48, par. 520.) The Act provides:

“Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby. The method of service of the decision shall be as provided in the Act governing the procedure before the administrative agency ***.” (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 103.)

The applicable notice statute, section 804 of the Unemployment Insurance Act, states that notice of the Board’s decisions “may be given and be completed by mailing the same to the last known address of the person entitled thereto.” Ill. Rev. Stat. 1981, ch. 48, par. 474.

On May 21, 1981, plaintiff filed a complaint for administrative review of a decision by the Board denying him unemployment compensation. Defendants responded with a motion to dismiss for want of jurisdiction. The motion to dismiss alleged that the Board served plaintiff with a copy of its decision by mailing it to him on February 20, 1981, and that his right to appeal expired 35 days later. Plaintiff answered that he did not receive a copy of the decision by mail and was in fact unaware that any decision had been made until April 17, 1981. He argued that the 35-day period for filing a notice of appeal did not begin to run until April 17, 1981, when he discovered the entry of the decision.

The trial court held a hearing on the questions whether the Board had in fact mailed the decision to plaintiff and, if so, whether plaintiff could rebut the presumption that he had received it. At the hearing three employees of the Board, its chief hearing referee and two clerical staff members, testified in detail about the Board’s procedures to insure that its decisions are mailed to the parties. Defendants introduced into evidence a list of those decisions that the Board issued and mailed on February 20, 1981. This list included the decision in plaintiff's case. Defendants also introduced into evidence a copy of plaintiff’s decision, which bore the date stamp “February 20, 1981” indicating that the decision had been mailed to the parties on that date.

Plaintiff was then called by defendants as an adverse witness. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102.) He acknowledged that the address shown on the decision was his mailing address and that he had on prior occasions received mail from the Department. However, he denied having received a copy of the decision. Plaintiff said that he had repeatedly called the Board, but was not told that a decision had been made in his case. When he called on or about April 16, 1981, an unidentified employee told him that a decision had been made, but refused to disclose any details to him over the telephone. Plaintiff thereupon asked his attorney to check the status of his case. On April 17, 1981, the attorney informed him that the Board had rendered an adverse decision, which plaintiff appealed within 35 days from that date. The trial court noted the difficulty of proving that a mailed document was actually received and of rebutting the presumption of receipt that arises from proof of mailing. After taking the matter under advisement, the trial court granted defendants’ motion to dismiss and plaintiff has appealed.

Plaintiff’s contention on appeal is that when a party who wishes to appeal from an adverse decision of an administrative agency fails to receive a copy of the administrative decision, the 35-day jurisdictional time limitation for filing a complaint cannot begin to run until that party receives actual notice of the decision. His theory is that the trial court’s dismissal of his complaint as untimely must have been premised upon a finding that the date of mailing, rather than the date of receipt, determines the date when the 35-day period begins to run. (See Chin v. Department of Public Aid (1979), 78 Ill. App. 3d 1137, 398 N.E.2d 135, and Thompson v. Civil Service Com. (1978), 63 Ill. App. 3d 153, 379 N.E.2d 655, holding that where the administrative agency is required only to give notice of its decisions by regular mail, and the party aggrieved by the decision actually receives it within the 35-day period, the period begins to run on the date the decision was mailed. In a footnote in Thompson, the court suggested that the result might be different if the aggrieved party could show that he never received the mail concerning the adverse administrative decision.) Plaintiff reasons that he would be denied due process if the period for appealing were allowed to expire before he received notice that a decision had been made.

We need not address the issue as framed by plaintiff because we believe it is premised on a faulty rationale. Plaintiff has made the assumption that in rebutting the presumption of receipt of the Board’s decision by denying it, he simultaneously proved that he did not receive notice of the decision until April 17, 1981. However, plaintiff’s assumption is not consistent with the law. Having rebutted the presumption of receipt, plaintiff may yet have failed to avoid the jurisdictional impact of his failure to file his complaint within 35 days of the decision’s mailing. As stated in Orrway Motor Service, Inc. v. Illinois Commerce Com. (1976), 40 Ill. App. 3d 869, 872, 353 N.E.2d 253, 255, citing Winkfield v. American Continental Insurance Co. (1969), 110 Ill. App. 2d 156, 160, 249 N.E.2d 174, 176, “the mailing of a properly stamped and properly addressed letter raises a presumption that the letter was received by the addressee. If the addressee denies the receipt of the letter then the presumption is rebutted and receipt becomes a question to be resolved by the trier of fact.” (Emphasis added.) Therefore, we will review the evidence presented by plaintiff on the factual question of his receipt of notice of the Board’s decision.

Plaintiff testified at the hearing that he did not receive notice of the Board’s decision, although on prior occasions he had received mail from the Department of Labor at his mailing address and, in general, he had no difficulty with his mail at that address. He further alleged that he continuously called the Board on unspecified dates and spoke with unknown persons who erroneously advised him that no decision had been made in his case, until his telephone call on April 16,1981.

It was the duty of the trier of fact to assess plaintiff’s credibility. The trial court was not bound to believe plaintiff but could, in its discretion, either accept or reject his testimony. As a court of review, we will not interfere with the trial court’s resolution of the factual issue of whether plaintiff received the decision. In this case, the trial court rejected plaintiff’s testimony, finding that he in fact had timely notice of the Board’s decision and that his complaint was not filed until after his right to administrative review had expired.

The instant case is distinguishable from those cases cited by plaintiff (e.g., Chin v. Department of Public Aid (1979), 78 Ill. App. 3d 1137, 398 N.E.2d 135, and A-1 Security Services, Inc. v. Stackler (1978), 61 Ill. App. 3d 285, 377 N.E. 2d 1199) wherein the aggrieved parties were able to prove conclusively the date on which they received the notice in question because it had been sent by registered or certified mail, return receipt requested, which specified the date of delivery to them. In this case, plaintiff’s only means of proving or disproving receipt of notice was his own testimony, which the trial court was not obligated to believe.

The judgment of the circuit court is affirmed.

Affirmed.

ROMITI, RJ., and JOHNSON, J., concur.


author: JUSTICE JONES HARRISON, RJ.,

text:
      In re MARRIAGE OF VICKI OMELSON, a/k/a Vicki Nichols, Petitioner, and ROBERT G. OMELSON, Respondent-Appellant. — (Lori Omelson, by Vicki Omelson, her Mother and Next Friend, Petitioner-Appellee.)
    Fifth District
    No. 82—45
    Opinion filed February 18, 1983.
    HARRISON, P.J., specially concurring.
    John R. Sprague, of Sprague, Sprague & Ysursa, of Belleville, for appellant.
    Robert E. Wells, Jr., of Pessin, Baird & Wells, of Belleville, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Respondent father appeals from an order of the trial court which granted a petition to change the surname of his minor daughter to that of the new husband of his ex-wife, the mother of his child. We reverse.

The respondent, Robert G. Omelson (father), and Vicki Omelson (mother) were.married on May 5, 1972, in St. Clair. One child, Lori, the petitioner, was bom of the marriage on May 6, 1975. A judgment of dissolution of marriage was granted to the mother in St. Clair County on February 5, 1980. The judgment of dissolution granted custody of Lori to the mother and conferred visitation rights upon the father, including every weekend from 5 p.m. Friday to 10 p.m. Sunday, certain holidays and four weeks during the summer months. The judgment directed the father to pay $35 per week for support of the child.

The mother married Michael Nichols on June 7, 1980, four months following the dissolution. The father remarried in April 1981. Following her remarriage, the mother and Lori became residents of Collins-ville in Madison County. On July 21, 1980, the child, Lori Anne Omelson, by her mother as next friend, filed a petition in the circuit court of Madison County for an order changing her surname to Nichols. At the time this petition was filed, Lori Anne was barely five years old and had resided in the Nichols’ home about seven weeks. As required by the applicable statute (Ill. Rev. Stat. 1979, ch. 96, par. 3), notice of the filing of the application for change of name was given by publication. The father was then living and working in Joliet, Illinois, and he learned of the name-change petition from a friend who had seen the publication notice. The father first filed an answer and an affirmative defense in the Madison County proceeding. Two weeks later, in the same St. Clair County case in which the parties had been granted a dissolution of their marriage, the father obtained an order of permanent injunction which restrained the mother “from proceeding with her Petition for Change of Name in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois, in Case No. 80-MR-214 until the further order of this Court.” The order of permanent injunction was entered on September 11, 1980.

On September 28, 1981, the daughter, Lori Omelson, by her mother and next friend, filed a second petition for change of her surname to Nichols. The second petition was filed in the same St. Clair County case in which her parents had obtained a dissolution of their marriage and in which the injunction against the Madison County name-change proceeding was obtained. Lori’s petition alleged, in its substantive part, that she had “incorporated” into the Nichols household after her mother’s marriage, that upon commencing school she has chosen to use the surname of Nichols and that it is in her best interest that her surname be changed to Nichols. Accompanying Lori’s petition for change of name was a petition for the mother for an injunction against the father which prayed that he be enjoined from appearing at Lori’s school, communicating with Lori’s school, disrupting Lori’s education, attempting to exercise his right of visitation without the required advance notice and removing Lori from the State of Illinois.

The father filed a response to the petition for change of name in which he answered both the petition for change of name and the mother’s petition for injunction. He asserted, in substance, that he wanted his daughter to continue the use of Omelson as her surname, that it was not in the best interest of Lori that her surname be changed to Nichols and that the mother had been guilty of wilful and contumacious conduct in interfering with and denying him his rights of visitation. The father’s response ended with a prayer that the petition for change of name be denied and that the mother be held in contempt of court. Hearing was held, followed by a judgment entered November 9, 1981, in which the court found that “it is in the best interest of the parties’ minor child that her surname be changed to Nichols; that Vicki Nichols has frustrated respondent’s attempt to exercise his right of visitation with said minor child and is in contempt of court.” The dispositional portion of the judgment (1) changed the name of the child to Lori Nichols and (2) sentenced the mother to two weeks in jail but stayed the jail sentence indefinitely with the proviso that the contempt would be purged by compliance with the terms of visitation until the child reaches the age of 18 years. Post-trial motions were denied, and the father appeals that portion of the judgment which granted the change in the surname of the child.

This case is one of first impression in Illinois for we find no case in which the issue here has been directly presented. However, the issue has been alluded to in three cases. In Solomon v. Solomon (1955), 5 Ill. App. 2d 297, 125 N.E.2d 675, the court held that the matter of a change of name of a minor child of divorced parents is a matter incidental to the custody of the child and that the court which had jurisdiction of the divorce under the Divorce Act (not cited, but probably Ill. Rev. Stat. 1953, ch. 40, par. 1 et seq.) could entertain a petition for injunction to enjoin the custodial parent from instituting any proceeding to change the name of a minor child of the parties. The court observed:

“In determining whether or not any restraint should be put upon plaintiff’s action in aiding the minor child to change his name, of course the first and most important consideration before the trial court should be the welfare of the child. The matter is within the discretion of the court. The question of the propriety of the trial court’s order is not before us and upon it we express no opinion.” (5 Ill. App. 2d 297, 301-02, 125 N.E.2d 675, 678.)

In Lawrence v. Lawrence (1980), 86 Ill. App. 3d 810, 408 N.E.2d 330, the court considered an appeal from the denial of a petition of a divorced mother for a finding that her ex-husband was not the father of a minor child born during wedlock. Part of the case before the trial court included a change of name of the minor obtained in a separate proceeding brought by the mother without the knowledge of her ex-husband. The trial court entered an order which held that the mother was estopped from challenging the paternity of the minor and directed the mother to change the minor’s name back to that of her ex-husband. In affirming, the court gave full credence to the statement in the Solomon case that the most important consideration in a proceeding to procure a change of name for a minor is the best interest of the child. In Weinert v. Weinert (1982), 105 Ill. App. 3d 56, 433 N.E.2d 1158, the court considered an appeal from an order which dismissed, without an evidentiary hearing, a petition to modify a divorce decree. The basis of the ex-husband’s petition was that there had been a change in the financial condition of both parties and that the ex-wife had remarried and was using the surname of her present husband as the surname of his children, who were in the custody of the ex-wife. The appellate court reversed and remanded for an evidentiary hearing, stating with regard to the name change:

“Petitioner’s further allegations that the children refused to visit with and acknowledge petitioner as their father, and the unfortunate possibility respondent may have interfered with petitioner’s visitation rights so to keep the children and her new husband as a family unit to the exclusion of petitioner, may also establish substantial changes in circumstances warranting modification of petitioner’s obligation. ***
We turn finally to the matter of the use by the children of their stepfather’s surname. Respondent argues the children have a common law right to take any name they may choose, citing Reinken v. Reinken (1933), 351 Ill. 409, 184 N.E. 639. However, the court there noted this right is not absolute and must not interfere with the rights of others (351 Ill. 409, 413, 184 N.E. 639, 640). The interest of petitioner that his sons bear his surname would appear to qualify their right to use their stepfather’s surname where the latter has not adopted them and is not legally burdened with an obligation of support. (See Solomon v. Solomon (1955), 5 Ill. App. 2d 297, 125 N.E.2d 675; Hall v. Hall (1976), 30 Md. App. 214, 351 A.2d 917.) *** While the trial court did find that the interests of the children would best be served by allowing them to use the stepfather’s surname as they have for the past few years, that determination should be reached only after a hearing where evidence, rather than allegations, can be adduced by both parties. [Citations.] We do not intend by our comments to suggest that conclusion should be reached by the trial judge after a hearing.” 105 Ill. App. 3d 56, 60, 433 N.E.2d 1158, 1160-61.

There is no lack of cases from other jurisdictions that have considered the issue presented. The common thread that runs through these cases is that the best interest of the child must govern a determination whether or not to grant a change of name. (E.g., Sobel v. Sobel (1957), 46 N. J. Super. 284, 134 A.2d 598; Degerberg v. McCormick (1963), 41 Del. Ch. 46, 187 A.2d 436; West v. Wright (1971), 263 Md. 297, 283 A.2d 401; see Annot., “Rights and remedies of parents inter se with respect to the names of their children,” 53 A.L.R.2d 914 (1957).) Since the above-cited Illinois cases assert the same principle, it is the criterion by which this case must be decided. To state the issue briefly, is it in the best interest of Lori Omelson that her surname be changed to Nichols?

The contexts in which the cases have considered whether the best interest of a child will be served by granting a change of name vary widely. Cases involve children who have been abandoned, abused, sexually molested, fathered by one convicted of a heinous or notorious crime, born out of wedlock, and so forth. In such instances it is almost always held that a child’s best interest would be served by granting a change of name. See West v. Wright.

We consider in this case, however, the more ordinary circumstance of a dispute involving divorced parents, both of whom have remarried and established separate households. Both parents love the child and both want the best for her. The father is current in his support payments and exercises his right of visitation with reasonable frequency, in view of the fact that he is now a resident of Crown Point, Indiana. The father very much wants Lori to continue to bear his surname. The mother had custody and is charged with the day-today guidance, care and nurture of the child. The mother’s new husband has children by another marriage who occupy the same household and bear his surname of Nichols. The mother determined that Lori would be spared embarrassment, annoyance, derision and ridicule by her peers and would share a deeper sense of belonging to the newly cast family if her name were changed to Nichols. Thus this proceeding. The background described has presented itself with some frequency in the cases, and from them general rules and guidelines have evolved which present what we feel is a well-reasoned majority rule.

Initially we would comment that although the petition for change of name is brought in the name of Lori, she is of such tender years that she could have no independent judgment in the matter and would be wholly subject to the suggestion and desire of her mother. Accordingly, we regard the proceeding as instituted and prosecuted by the mother. (Degerberg v. McCormick; Lazow v. Lazow (Fla. App. 1962), 147 So. 2d 12; Mark v. Kahn (1956), 333 Mass. 517, 131 N.E.2d 758.) Thus, further questions arise: whether the mother seeks to advance her own interest in bringing the petition and whether the mother’s interest is also in the best interest of the child? Although the interests of mother and child will frequently coincide, they can frequently diverge. It is a generally accepted rule that there should be no conflicting interests between the infant and the party representing him. (Clarke v. Chicago Title & Trust Co. (1946), 393 Ill. 419, 66 N.E.2d 378; Millage v. Noble (1929), 334 Ill. 315, 166 N.E. 50.) The situation could present a conflict of interest and care must be taken, especially where the minor is of tender years, to assure that some purpose of the custodial parent does not taint the determination of the child’s best interest. For instance, the mother may be prompted to petition for a name change in order to punish the ex-husband and father, to prove her enduring devotion to her new husband, to show her new husband that all ties to her former marriage are broken, to present to the community a facade of a unitary family, or to hide the fact that the mother had previously been through a divorce. Some credence for the last is found in a news account of the mother’s remarriage which is in evidence. It gave the mother’s maiden name and the name of the bride as Victoria Saul, although that name had not been restored to her in the dissolution judgment. The same news item stated that Lori Anne Nichols served as flower girl but made no mention of the fact that Lori Anne was the daughter of the bride. The announcement was that of a marriage in a church on June 6, 1981. The mother had married Nichols in a civil ceremony on June 7, 1980. The judgment was entered changing Lori’s surname to Nichols on November 9, 1981. Such machinations serve to render suspect the mother’s motives in seeking a change of name for Lori. Admittedly, none of these possible motives are necessarily suggested by the evidence, and we neither presume nor infer them. Nevertheless, in determining whether the change of name is in the best interest of child, it is well to consider whether the interests of others are sought to be served by the proceeding.

The “right” of a father to have his children bear his surname has not gone without attention in the change of name cases. The California case of In re Marriage of Schiffman (1980), 28 Cal. 3d 640, 643, 620 P.2d 579, 581, 169 Cal. Rptr. 918, 920, notes that surnames have been used at least since the Norman Conquest and discusses the historical background and rationale for the custom which assigns the surname of the father to his children. The notion that a natural father has a right to have his children bear his surname receives scant credence in the more recent cases dealing with the subject. Rather, such issues are considered more in the light of the best interest of the children rather than with regard to some right of the father. A discussion of the father’s “right” to have his children bear his surname is found in the New Jersey case of In re Application of Lone (1975), 134 N.J. Super. 213, 220, 338 A.2d 883, 887, where the court stated:

“To [the] extent that the paternal ‘right’ represents a recognition of a father’s interest in perpetuating his own name or in protecting his ego or in preserving his perceived male prerogatives, it may have little or no relevance to the best interests of the child or the propriety of a name change. But to the extent the ‘right’ recognizes the father’s interest in maintaining his relationship with his child for their mutual benefit, it becomes highly relevant.
Cases in other jurisdictions have expressed the father’s ‘right’ in just such terms. In Degerberg v. McCormick, supra, the court noted that authority ‘recognizes that a change of surname of a child of divorced parents may contribute to estrangement of the child from his father’, relying in part upon psychiatric testimony presented to that court that an attempted change of name ‘created a “wedge” ’ in the child’s relationship with his father, and that his continued use of the stepfather’s name ‘will have a serious, adverse effect upon the child’s development in his formative years.’ Similarly in Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758, 53 A.L.R.2d 908 (Sup. Jud. Ct. 1956), the court expressed the view that
The bond between a father and his children in circumstances like the present is tenuous at best and if their name is changed that bond may be weakened if not destroyed. *** A change of name may not be in the child’s best interest if the effect of such change is to contribute to the further estrangement of the child from a father who exhibits a desire to preserve the parental relationship. [131 N.E.2d 758, 762.]
And in Robinson v. Hansel, Minn., 223 N.W.2d 138 (Sup. Ct. 1974), the same considerations were stated in the following language:
*** courts have traditionally tried to maintain and to encourage continuing parental relationships. The link between a father and child in circumstances such as these is uncertain at best, and a change of name could further weaken, if not sever, such a bond. [223 N.W.2d 138,140].”

We turn to the evidence in this case. In her testimony the mother gave as reasons for the name change Lori’s wish for such, the probability of stigma from living in a household where everyone but she would have the surname of Nichols, and the adverse peer pressure that would result from Lori’s attendance at a small Catholic school where the divorce by her parents would be apparent because of the difference in names. The mother presented no evidence to suggest that the father had abandoned Lori, that there was a lack of interest in her on the part of the father, or that the father had been guilty of any misconduct toward Lori or others.

The facts presented are very close to those in In re Application of Lone. There, the mother advanced three reasons why the change of name of the child should be granted; first, that to require him to live with a name different from his mother and brother would be to ask this child to carry a burden through his formative years that could very well have highly negative psychological implications; second, that Lone had abandoned his child; and third, that bureaucratic red tape would create chaos if formal recognition was not given to a name which the child might use informally. The court summarily dealt with the second and third reasons. As to the first reason, the court found that it implied essentially that growing up in the Dec family as the only Lone would set the child apart, at least in his own mind, and that among his peers his name would create confusion and embarrassment for him. In essence, that is the argument of the mother here. In language appropriate to the case under consideration and, we think, expressive of a great majority of the cases of similar context, the court in the Lone case disposed of the foregoing argument as follows:

“Whether using language of paternal ‘right’ or these more relevant terms relating to the child’s well-being, the cases of other jurisdictions almost uniformly have rejected contentions that a child’s psychological health requires that his name conform to that adopted by his mother on remarriage. See, e.g., Degerberg v. McCormick, supra; Mark v. Kahn, supra; Robinson v. Hansel, supra; West v. Wright, supra; Application of Trower, supra; Application of Shipley, supra; Application of Hinrichs, supra; Marshall v. Marshall, 230 Miss. 719, 93 So. 2d 822 (Sup. Ct. 1951); Reed v. Reed, 338 P.2d 350 (Okla. Sup. Ct. 1959); contra, Newman v. King, supra; In re Adoption of McCoy, 31 Ohio Misc. 195, 60 Ohio Op. 2d 356, 287 N.E.2d 833 (C.C.P. 1972).
The apprehensions which reasonably arise as to the possible effects of a name change, like the contrary apprehensions expressed by plaintiff, are persuasive and serious. A change of name imposed upon a child could represent to him a rejection by his father; or evidence that his father is deserving of rejection or contempt; or an attempt by his mother to deceive him as to his true identity; or a statement by his mother and stepfather that his true identity is a shame and embarrassment to them and others. Such consequences could be enormously harmful to the child. They are, of course, conjectural, but no less so than are the ‘psychological implications’ foreseen by plaintiff.
The record thus generates only two conflicting groups of speculations as to the possible effects of a name change. No expert testimony has been offered, and no academic literature has been found, to assist in the weighing of these speculations. The realities are that the child’s present name represents his identity, his paternity and a remaining bond with his father. There is no sound basis to conclude that any tampering with these realities would advance the best interests of the child.” (In re Application of Lone (1975), 134 N.J. Super. 213, 220-21, 338 A.2d 883, 887-88.)

Not cited in Lone but to the same effect is Lazow v. Lazow (Fla. App. 1962), 147 So. 2d 12, 14, where the court stated:

“To change the name of a minor son so that he no longer bears his father’s name is a serious matter, and such action may be taken only where the record affirmatively shows that such change is required for the welfare of the minor. Society has a strong interest in the preservation of the parental relationship, Application of Shipley, 26 Misc. 2d 204, 205 N.Y.S.2d 581 (1960); Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758, 53 A.L.R.2d 908, and a possible adverse effect on the relationship between father and child is a valid ground for refusing to change the name of a 12 year old child. At this tender age a child is not capable of making an intelligent choice in the matter of his name. See Mark v. Kahn, supra; In re Epstein, 121 Misc. 151, 200 N.Y.S. 897 (1923).”

As pointed out in Robinson v. Hansel, cited in the Lone case, “Whatever the nature of the ‘harassment’ of the children by their peers, it would seem that it was in this case surely no more severe than [that] faced by thousands of other similarly situated children in a day when broken homes have become commonplace.” (Robinson v. Hansel (1974), 302 Minn. 34, 37, 223 N.W.2d 138, 141.) This, too, is particularly appropriate here where the mother fears peer harassment at Lori’s small Catholic school. We note, however, that the mother’s fear rises no higher than apprehension; there is no evidence.

The mother’s new husband, Michael Nichols, is not required to support Lori and has no legal responsibility toward her. Even if the change of name is granted Lori, her father must continue to support and educate her, extending through college. (Ill. Rev. Stat. 1979, ch. 40, par. 513; Greiman v. Friedman (1980), 90 Ill. App. 3d 941, 414 N.E.2d 77.) The father would continue to have rights of visitation with Lori, including four weeks during the summer. What of her “embarrassment” before her peers when she visits with a father whose name differs from hers? What of Lori’s new name if her mother’s second marriage is ended by divorce and she marries again? And in the event of the mother’s untimely death, custody of Lori would probably revert to her father.

In view of the record before us, which shows a father who maintains an active interest in his daughter, loves her, continues to support her and has committed no wrong toward her, the granting of a name change to Lori would further no purpose other than that of a temporary, and superficial, expedient. The majority rule as expressed in the Lone case must be applied. The best interest of Lori will be served in this case by denying the change of name, awaiting her maturity and leaving the decision whether to change her name to her at a time when she will be aided by her own desires and perceptions.

Reversed.

KASSERMAN, J., concurs.

HARRISON, RJ.,

specially concurring:

While I concur in the result reached in the majority opinion, I cannot concur in the discussion of possible motives of the mother which, as admitted by majority, are not necessarily suggested by the evidence. Nor can I concur in the conjecture regarding the mother’s possible remarriage. These dicta are totally irrelevant to the resolution of the controlling issue in the case, which was properly decided by application of the best interest of the child standard.


author: PRESIDING JUSTICE McNAMARA

text:
    MELVIN DELK, Plaintiff-Appellant, v. THE BOARD OF ELECTION COMMISSIONERS OF THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (3rd Division)
    No. 83—267
    Opinion filed February 9, 1983.
    Thomas F. Geselbracht, Robert W. Gettleman, and James A. Geocaris, all of Chicago, for appellant.
    Michael Levinson, of Chicago, for appellee Board of Election Commissioners of the City of Chicago.
    Hardy & Young, of Chicago (LaQuetta J. Hardy, of counsel), for appellee Iola McGowan.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Melvin Delk filed a petition with the Board of Election Commissioners (hereinafter the Board) of the city of Chicago objecting to the nomination papers of respondent Iola McGowan. The Board granted respondent’s motion to overrule the objections, and petitioner appeals the trial court’s affirmance of that decision.

On January 10, 1983, petitioner, a registered voter of the 29th Ward of the city of Chicago, filed the petition with the Board objecting to the nomination papers of respondent for election to the office of alderman of that ward. The petition alleged that respondent was ineligible because she did not reside in the 29th Ward; that her nomination papers were insufficient because they falsely asserted residency at 5839 Midway Park; and that her statement of candidacy was false, fraudulent and perjurious because it stated that she was a qualified registered voter residing at the Midway Park address. Petitioner alleged that respondent was not a resident at 5839 Midway Park either at the time she filed her nomination papers and statement of candidacy or at the time she registered to vote at that address. Petitioner requested that respondent’s name be stricken from the list of candidates for alderman, and that her name not appear on the ballot.

On January 14, 1983, the Board conducted a hearing on the objections. Respondent, called by petitioner as an adverse witness, testified that she executed a contract for the purchase of the Midway Park premises from the United States Department of Housing and Urban Development (HUD) in July 1982. She abandoned her then permanent abode at 3835 West Arthington Street at the end of August 1982 and moved into the Midway Park premises on September 1, 1982. She brought along furniture and clothes. On September 9, 1982, she changed the address on her driver’s license to 5839 West Midway Park. On October 5, 1982, she registered to vote at the new address. The closing for purchase of the premises occurred on November 9, 1982, and at that time the majority of windows were boarded up. It was not until November that respondent filed for a change of address for mail delivery.

Respondent testified that, although she had no gas, electricity, or phone service until November, she was spending four or five nights a week there during September and October. Other nights she spent at the homes of relatives. She used portable lights and a kerosene stove for heat. Her husband, Adam McGowan, was working on the premises and spent even more time there during these months. Work done included a new roof, downspouts, gutter work and garage repair. They also made internal changes. They had a couch, table, a few chairs, a television set and a crockpot for cooking. Respondent stated that she had emergency electrical service which would become permanent after certain electrical repair was completed.

Petitioner introduced an affidavit, dated January 13, 1983, by the custodian of Commonwealth Edison’s record of customer electrical service, asserting that there was no record of electrical service to the Midway Park premises for 1982.

Petitioner also introduced photographs of the premises which were taken on December 31, 1982. Most of the windows were boarded up and at least one was broken. The photographer, Arthur Turner, testified that he knocked at the door around 11:30 a.m. on December 31 but there was no answer. He also was at the premises earlier in December and again one week prior to the hearing.

Three neighbors testified as to their own observations. All three passed the premises at various times on a daily basis. None had ever observed any lights. In mid-November one witness noticed that some of the boards had been removed from a few windows and that a workman was going in and out to a small pickup truck. Another witness stated that the roof was being repaired in mid-December. All three witnesses testified to a statement by respondent’s adult son at a block club meeting in late November that respondent was trying to get into the Midway Park residence by the holidays but that she probably would not be able to take up residence there until after the first of the year.

At the close of petitioner’s case, respondent’s motion to certify her candidacy was granted by the Board. On January 18, 1983, petitioner sought to reopen the hearing based upon newly discovered evidence. The evidence consisted of an affidavit from a HUD inspector indicating that he had inspected the property several times during September and October, 1982, and found it completely empty and unoccupied. In requesting that the hearing be reopened, petitioner stated that he was diligent. The HUD documents were not delivered until a few minutes before the hearing, and petitioner did not learn the name of the HUD inspector until the day after the hearing.

In a letter of January 19, 1983, the Board denied petitioner’s motion to reopen the hearing on the ground that its decision was final subject to judicial review (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 10), and the Election Code makes no provision for rehearing.

On January 26, 1983, the trial court upheld the decision of the Board, finding that it was not against the manifest weight of the evidence. It held that the Board’s exclusion of certain evidence was not prejudicial to petitioner and that the Board had properly refused to reopen the hearing.

On appeal petitioner contends that the Board’s refusal to consider the motion to reopen the hearing violated due process; that the Board applied an improper standard in determining that petitioner had not presented a prima facie case that the respondent’s registration and residency were false; and that the Board erred in excluding certain evidence offered by petitioner.

We first address petitioner’s contention that the Board erred in excluding relevant evidence. The Board excluded certain real estate documents as irrelevant and other exhibits showing respondent’s or her husband’s residence at other addresses as having no bearing on the issue before it.

The issue was whether respondent resided at the Midway Park address from October 5, 1982, through December 27, 1982, when she filed her statement of candidacy. On December 27, respondent asserted under oath that she was a qualified registered voter at the Midway Park address. Since she had registered at the Midway Park address on October 5, a finding that she was qualified registered voter was essential to validate her statement of candidacy and required a finding that she did in fact reside at the Midway Park address not only on December 27, but also on October 5. Ill. Rev. Stat. 1981, ch. 46, par. 3 — 1.

Under the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 3 — 2), for voting purposes residence means permanent abode, a person’s principal dwelling place. Two elements are necessary to create a residence: physical presence and intent to remain there as a permanent home. (Stein v. County Board of School Trustees (1967), 85 Ill. App. 2d 251, 229 N.E.2d 165, aff'd (1968), 40 Ill. 2d 477, 240 N.E.2d 668.) Although declarations of intent are admissible as evidence thereof, acts and surrounding circumstances should be given more weight in making the factual determination of intent. (Miller v. Police Board (1976), 38 Ill. App. 3d 894, 349 N.E.2d 544; Stein v. County Board.) Consequently we believe that the Board improperly excluded circumstantial evidence presented by the petitioner which was relevant to the issue of respondent’s residency on the dates in question.

Petitioner presented a HUD circular offering for sale several properties, including 5839 Midway Park, stating as a condition of the offer of sale that “[n]o one is to enter the property to make repairs or to rehabilitate it until after the sale is closed and the deed is recorded.” The Board found the evidence to be irrelevant on the issue of whether the candidate actually resided there prior to the closing. While not conclusive proof on the issue, the document constituted probative evidence and should have been considered and weighed against conflicting statements made by respondent.

Other rejected evidence included a HUD appraisal of the property, dated August 1981, which concluded that the property was not habitable in its present condition. Because of its date, the appraisal was of less probative value. Nevertheless, since respondent purchased the property directly from HUD one year later, the appraisal has relevance to the question of whether respondent could have resided in the premises prior to the repairs being made.

The Board excluded circumstantial evidence that respondent and her husband resided at another address during the time in question. The Board rejected the husband’s driver’s license which showed his residence to be another address, and it rejected utility records which indicated service to the respondent at another address and a different mailing address for respondent and her husband. We do not agree with the Board’s finding that evidence in regard to the husband’s residence was not relevant. In light of respondent’s testimony that she and her husband lived together, evidence of another residence for the husband was relevant on the question of respondent’s residence. Connelly v. Gibbs (1983), 112 Ill. App. 3d 257; Miller v. Police Board.

We likewise reject the Board’s position that evidence of other residences is irrelevant because, “for the purpose of a right to maintain a voter registration,” a person can have “more than one residence.” We do not believe that a person may have a permanent residence in two places at the same time. (Anderson v. Pifer (1924), 315 Ill. 164, 146 N.E. 171; Stein v. County Board of School Trustees; Miller v. Police Board.) Consequently, evidence of other residences was relevant and should have been considered and weighed against the candidate’s own assertion of residence at 5839 Midway Park.

Although the exclusion of any one of these documents may not have unduly prejudiced petitioner, we find that the cumulative effect of their exclusion was sufficiently prejudicial to warrant a new hearing. While the Board had no authority to grant the rehearing requested by the petitioner based on newly discovered evidence (Pearce Hospital Foundation v. Illinois Public Aid Com. (1958), 15 Ill. 2d 301, 154 N.E.2d 691; Oliver v. Civil Service Com. (1967), 80 Ill. App. 2d 329, 224 N.E.2d 671), in view of our findings, the Board will be able to grant a full and immediate hearing on the objections.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause is remanded to the Board of Election Commissioners of the City of Chicago for a hearing on petitioner’s objections.

Reversed and remanded.

O’CONNOR and WHITE, JJ., concur.


author: JUSTICE CAMPBELL

text:
      In re MARRIAGE OF GERALD LEE WANIC, Petitioner and Plaintiff-Appellant, and JEANETTE JUNE WANIC, Respondent and Defendant-Appellee. — (Marshall Brodien, Defendant-Appellee.)
    First District (1st Division)
    No. 82 — 414
    Opinion filed February 14, 1983.

      Melvin B. Lewis, of Chicago, for appellant.
    Berks, Berks & Marcus, of Des Plaines, for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Gerald Wanic brought this action for criminal conversation (Ill. Rev. Stat. 1979, ch. 40, par. 1951 et seq.), against defendant Marshall Brodien, the alleged father of a child born to defendant Jeanette Wanic during her marriage to plaintiff, and for fraud against defendants Brodien and Jeanette. Plaintiff appeals from an order of the trial court, which dismissed count II of plaintiff’s amended complaint. On appeal, plaintiff raises the following issues: (1) whether plaintiff’s claim for criminal conversation is barred by the two-year statute of limitations (Ill. Rev. Stat. 1979, ch. 83, par. 15); and (2) whether plaintiff’s complaint is sufficient to state a cause of action for fraud.

On September 18, 1980, plaintiff filed a complaint in the circuit court of Cook County seeking in the first count the dissolution of his marriage to defendant Jeanette Wanic, which count is not at issue in the instant appeal. The parties were married on April 16, 1967. Count II of plaintiff’s complaint alleged that defendant Marshall Brodien was the father of one of the five children born to defendant Jeanette Wanic during her marriage to plaintiff and that both defendants Brodien and Jeanette Wanic intentionally defrauded plaintiff to support the child and to pay the expenses of his wife’s delivery of the child. Plaintiff’s complaint alleged that Jeanette became pregnant on or about January 26, 1977, as a result of sexual relations with defendant Brodien, and that a child whose natural father was Brodien was born on October 26, 1977. On the motion of defendant Brodien, the court ordered that plaintiff’s second count be stricken. Plaintiff then filed an amended count II alleging criminal conversation against defendant Brodien and fraud against defendants Brodien and Jeanette Wanic.

Part A of plaintiff’s amended count II alleged that defendant Brodien was the natural father of the child born to Jeanette on October 26, 1977. Plaintiff also alleged that on or about July 14, 1980, he learned for the first time that he was not the biological father of the child and that previously, he did not have knowledge of the sexual relations between his wife and Brodien. Part B of count II alleged defendants Brodien and Jeanette Wanic agreed to cause plaintiff to believe that he was the natural father of the child born to Jeanette. As evidence of this agreement, plaintiff alleged that both defendants agreed as follows: (1) that defendant Brodien would not be expected to assume any financial obligation for the child; (2) that his wife provided plaintiff with medical pamphlets which indicated that pregnancy was possible despite plaintiff’s use of contraceptive precautions, thereby forestalling plaintiff’s suspicions that he might not be the biological father of the child; (3) that during Jeanette’s pregnancy, plaintiff met defendant Brodien at Brodien’s restaurant and that both defendants pretended that their relationship was a casual one; (4) that Jeanette knew that the child’s blood type was consistent with Brodien’s paternity and inconsistent with plaintiff’s paternity of the child; (5) that plaintiff was informed by an anonymous telephone caller that he was not the father of the child and that upon informing Jeanette that he would have a blood test to verify or disprove paternity, Jeanette informed plaintiff that Brodien was the father of the child; and (6) that Brodien and Jeanette subsequently acknowledged that Brodien was the father of the child. Plaintiff sought damages from Brodien for the support of the child and the expenses of the delivery of the child. Plaintiff also requested punitive damages.

Defendant Brodien filed a motion to dismiss plaintiff’s amended count II of the complaint pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45). Defendant Brodien contends that plaintiff’s claim for criminal conversation was barred by the two-year statute of limitations because the action was brought more than two years after the alleged cause of action accrued. As to Part B of plaintiff’s amended count II, defendant Brodien contended that the complaint failed to set forth any misrepresentations which gave rise to plaintiff’s cause of action and that plaintiff failed to allege that he relied upon any of the claimed misrepresentations. Defendant Brodien also argued that the action was, in essence, one to establish the paternity of the child and that pursuant to the Paternity Act (Ill. Rev. Stat. 1979, ch. 40, par. 1351 et seq.), plaintiff lacked standing to contest paternity. Defendant Jeanette Wanic also filed a motion to strike and dismiss plaintiff’s amended count II, in which motion she stated that she incorporated by reference defendant Brodien’s motion.

The trial court granted defendants’ motion to dismiss plaintiff’s amended count II. Plaintiff subsequently filed a motion to vacate the court’s order of dismissal and sought leave to file a second amended count II. The trial court denied plaintiff’s motion to vacate and for leave to amend the complaint. Plaintiff appeals from both of the foregoing orders.

Plaintiffs amended complaint seeks recovery for criminal conversation and fraud. Defendant Brodien, in his motion to dismiss the amended complaint, admits all well-pleaded facts and all reasonable inferences which may be drawn from the facts. (Denkewalter v. Wolberg (1980), 82 Ill. App. 3d 569, 402 N.E.2d 885.) Additionally, a reviewing court must determine whether the allegations of the complaint, when viewed in the light most favorable to plaintiff, are sufficient to state a claim upon which relief may be granted. Konicki v. Village of Hinsdale (1981), 100 Ill. App. 3d 560, 427 N.E.2d 325.

The first issue raised by plaintiff requires us to determine whether the expiration of the two-year limitations period bars recovery by plaintiff for criminal conversation. Plaintiff cites recent Illinois Supreme Court cases in which a discovery rule has applied in determining when the statute of limitations begins to run. (See Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976; Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864; Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869.) From plaintiff’s complaint, it appears that the alleged act of criminal conversation occurred on or about January 26, 1977, or approximately three years and eight months prior to the institution of this action on September 18, 1980. In determining whether to apply the discovery rule to a particular cause of action, the supreme court has employed a test which balances the increase in the difficulties of proof with the passage of time against the hardship to plaintiff who is unaware of his cause of action. See Nolan v. Johns-Manville Asbestos; Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656.

Two of the three Illinois Supreme Court cases cited by plaintiff present compelling situations in which the application of a discovery rule was necessary to prevent a serious hardship to plaintiff. In the third supreme court case, the supreme court applied a discovery rule to the two-year statute of limitations in an action against a pharmaceutical company and concluded that the action was brought more than two years after plaintiff knew or should have known of an actionable wrong.

Knox College v. Celotex Corp. involved an action against the manufacturer of a roofing system which was installed in a building of plaintiff. Shortly after the installation of the roof in 1970, the roof began to leak and was repaired from time to time. In 1976, plaintiff was informed by a roofing contractor that the leaking may have been a result of deficiencies in defendant’s roofing system. The trial court dismissed plaintiff’s complaint for fraud and tortious misrepresentation against defendant because the five-year statute of limitations had run. (Ill. Rev. Stat. 1977, ch. 83, par. 16.) The supreme court concluded that a discovery rule should be applied to the statute of limitations. The supreme court stated that plaintiff was aware of the roof problems almost from the beginning, but that it was necessary to remand the action to the circuit court for a factual determination of when the statute of limitations began to run. The court also noted that the discovery rule has been applied in cases to prevent harsh results which occur from a literal reading of the statute.

In Nolan v. Johns-Manville Asbestos, plaintiff, an asbestos worker for Johns-Manville since 1941, brought an action in strict liability for lung injuries sustained as a result of prolonged exposure to defendants’ products. Plaintiff first experienced breathing difficulties in 1957 and, in 1973, plaintiff’s condition was finally diagnosed as asbestosis. Within two years from this diagnosis, plaintiff filed the lawsuit. The trial court granted summary judgment for defendants because the action was not brought within the two-year limitation period. (Ill. Rev. Stat. 1977, ch. 83, par. 15.) The supreme court concluded that a discovery rule should be applied and that the statute of limitations begins to run at the time plaintiff knows or reasonably should have known of his injury and its wrongful cause. The court recognized that the problems of proof increase over time, but that there was a hardship to plaintiff who neither knew or should have known that he was injured, especially where the time of injury could not be pinpointed. The supreme court reversed the trial court’s order granting summary judgment and remanded the action for a factual determination of when the statute of limitations began to run.

In Witherell v. Weimer, plaintiff brought an action against, inter alia, a contraceptive pill manufacturer for alleged negligence, strict liability and breach of warranty. Plaintiff began taking defendant’s birth control pills in 1966. After a short while, she began to experience leg problems. Plaintiff’s condition deteriorated over time and, in 1973, she discontinued the use of the pills for a month. In 1978, plaintiff filed the lawsuit. The trial court dismissed the tort claims against the manufacturer because plaintiff failed to bring suit within the two-year limitation period. (Ill. Rev. Stat. 1977, ch. 83, par. 15.) The court also dismissed the warranty claim as it had not been brought within the four-year limitation period. (Ill. Rev. Stat. 1977, ch. 26, par. 2— 725(1), (2).) The supreme court affirmed the dismissal of the action by the trial court because, in the factual context alleged by plaintiff, she should have been alerted more than five years prior to bringing the action that her injury was due to actionable conduct by the manufacturer.

In each of the foregoing cases, it ..appears that the Illinois Supreme Court made a case-by-case determination of whether to apply a discovery rule to the statute of limitations. Nolan and Witherell involved instances where plaintiff became ill as a result of the tortious conduct of defendant. The plaintiffs in those two cases were aware of their respective illnesses for more than two years prior to the filing of the action. In Nolan, the issue of when plaintiff knew or reasonably should have known that his injury was wrongfully caused was a factual issue to be determined on remand. In Witherell, the facts alleged by plaintiff indicated that she was aware that her injury was wrongfully caused at least five years prior to filing the action. Similarly, in Knox College, plaintiff was aware of the leaking problem almost from the beginning, but there existed an issue of fact as to when plaintiff knew or should have known that the problem was due to actionable conduct by defendant. In each of these three cases, the difficulties of proof do not appear to be greatly increased because of the passage of time. In applying a discovery rule to these three cases, the supreme court concluded that the hardship to plaintiff was outweighed by the increase in the difficulties of proof. See also Rosny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656.

Contrary to the foregoing three cases, an action for criminal conversation is a disfavored action. By statute, the legislature has recognized that an action for criminal conversation “has been subjected to grave abuses and has been used as an instrument for blackmail by unscrupulous persons for their unjust enrichment ***.” (Ill. Rev. Stat. 1979, ch. 40, par. 1951.) In the instant case, plaintiff has not advanced any compelling reasons which would warrant the application of a discovery rule to the two-year limitation period, especially in light of the strong public policy against such an action. Further, it appears that the difficulties of establishing the alleged adultery increase substantially over the passage of time. Under the facts and circumstances presented by plaintiff herein, we conclude that the discovery rule as it pertains to an action for criminal conversation is not applicable and that, therefore, plaintiff’s cause of action is barred as it was brought more than two years after the alleged actionable conduct. Ill. Rev. Stat. 1979, ch. 83, par. 15.

Plaintiff’s second contention is that the trial court erred in dismissing Part B of his amended count II for failure to state a claim upon which relief may be granted and in denying plaintiff leave to file his second amended complaint. In his complaint, plaintiff alleged the existence of an agreement between defendants Brodien and Jeanette Wanic to defraud plaintiff. According to plaintiff, defendants agreed that Brodien would not incur any expenses for the child; that Jeanette provided plaintiff with pamphlets which indicated that it was possible for Jeanette to conceive despite plaintiff’s use of a contraceptive device; that defendants pretended that their relationship was casual; that Jeanette knew the child’s blood type was consistent with defendant Brodien’s blood type, but not plaintiff’s blood type; that plaintiff was informed by anonymous telephone calls that he was not the father of the child; and that defendants admitted that Brodien was the father of the child.

In Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599, 601, the supreme court set forth the elements of fraud as follows: “(1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance.” In addition, fraud may involve the concealment of what is true as well as an assertion of what is false. (Dendrinos v. Dendrinos (1978), 58 Ill. App. 3d 639, 374 N.E.2d 1016.) Mere silence usually does not amount to fraud unless a person has a duty to speak in which case the failure to disclose material information amounts to a fraudulent concealment. (Crowell v. Bilandic (1980), 81 Ill. 2d 422, 411 N.E.2d 16.) Further, the facts constituting an alleged fraud must be pleaded with sufficient specificity, particularity and certainty. Goldberg v. Goldberg (1981), 103 Ill. App. 3d 584, 431 N.E.2d 1060.

Our review of Part B of plaintiff’s amended count II leads us to conclude that the trial court did not err in dismissing Part B. Plaintiff did not plead his claim with sufficient specificity or particularity. Plaintiff also failed to plead any facts which would tend to show inducement or scienter by defendants or reliance by plaintiff. Insofar as plaintiff’s complaint may be read as one for fraudulent concealment of his cause of action, the facts alleged set forth no more than mere silence by defendants and do not plead a duty to speak on the part of either defendant. Therefore, by the standards which we have set forth, the trial court properly dismissed Part B.

As to plaintiff’s contention that the trial court improperly denied leave to file his second amended complaint, the record discloses that the primary difference between the two pleadings is that in the second amended complaint, plaintiff alleges that he supported the child upon the belief that he was the natural father of the child. Plaintiff’s second amended complaint suffers from the same defects and infirmities as the first amended pleading filed in this action. Therefore, we conclude that the trial court properly denied plaintiff leave to file his second amended complaint.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and GOLDBERG, J., concur.


author: PRESIDING JUSTICE ROMITI

text:
    LILLIT DEIKE, Plaintiff-Appellant, v. SEARS, ROEBUCK AND CO., Defendant-Appellee.
    First District (4th Division)
    No. 82—760
    Opinion filed February 10, 1983.

      Lawrence W. Leek and Joseph S. Witkowski, both of Chicago (David A. Novoselsky, of counsel), for appellant.
    Arnstein, Gluck & Lehr, of Chicago (Arthur L. Klein, Paul L. Leeds, and Jeffrey D. Hupert, of counsel), for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The plaintiff was injured when she slipped in defendant’s store, allegedly on a puddle of water. The jury returned a verdict for plaintiff in the amount of $89,000. The trial court granted a new trial holding that it had erred in withdrawing the issue of plaintiff’s negligence from the jury. Plaintiff appeals (73 Ill. 2d R. 306(a)), contending:

(1) the trial court erred in holding that the question of plaintiff’s negligence was a question for the jury to decide;

(2) that under the doctrine of comparative negligence the trial court should have limited the retrial solely to the issue of what percentage, if any, of negligence should be assessed against the plaintiff for the occurrence.

We find no error and affirm.

On December 6, 1977, plaintiff was shopping at the Sears store in Oak Brook, Illinois. It was snowy outside. She went down to the lower level of the store to purchase a box of Christmas ornaments. After she made the purchase she walked along, looking straight ahead and at the Christmas trees, lights and gifts. She stated that if there had been a sign warning her the floor might be wet, she would have been more careful and would have looked down to see if the floor was wet. As she was walking and looking at the store items, she slipped and fell, allegedly on a puddle of water about IV2 feet long “kind of oblong.” She did not see the puddle until after she fell.

Plaintiff was the only occurrence witness. A report of the Sears nurse, who died before the trial, stated there was no foreign object or substances on the floor which would have caused plaintiff’s fall.

I

Plaintiff agrees that since she was looking at the displays, she could have walked more carefully by scanning the floor directly ahead of her as she walked. But plaintiff contends she was under no duty to do so and as a matter of law cannot be found negligent for failing to do so since a store expects its customers to look at the display counters instead.

As has been repeatedly held in Illinois, the question of a plaintiff’s negligence is preeminently one for the jury to decide (Warner v. City of Chicago (1978), 72 Ill. 2d 100, 378 N.E.2d 502; Borus v. Yellow Cab Co. (1977), 52 Ill. App. 3d 194, 367 N.E.2d 277, and cases cited therein), and this is true where the plaintiff has slipped and fallen on some object in defendant’s store or fallen on defendant’s premises. (Linde v. Welch (1981), 95 Ill. App. 3d 581, 420 N.E.2d 490; Asplund v. Pavlick (1953), 1 Ill. App. 2d 220, 117 N.E.2d 408, appeal denied (1954), 2 Ill. 2d 631; Dowling v. MacLean Drug Co. (1928), 248 Ill. App. 270; Mondl v. F. W. Woolworth Co. (1961), 12 Wis. 2d 571, 107 N.W.2d 472.) It may be that the jury will decide that plaintiff was not negligent in failing to look at or even glance at the floor where she was walking. But that is for the jury to decide.

II

The granting of a new trial is a matter lying within the discretion of the trial court, and this court may not reverse unless there is a clear abuse of discretion. (Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 357 N.E.2d 500; Kerns v. Lenox Machine Co. (1979), 74 Ill. App. 3d 194, 392 N.E.2d 688.) Likewise where the court may grant either a full retrial or a partial retrial, whether to grant such a limited retrial is also in the sound discretion of the trial court. (Liodas v. Sahadi (1977), 19 Cal. 3d 278, 562 P.2d 316, 137 Cal. Rptr. 635; Caterpillar Tractor Co. v. Beck (Alaska 1981), 624 P.2d 790.) In addition, a limited retrial should not be granted if it would be prejudicial to either party. (Rogers v. Chicago & Northwestern Transportation Co. (1978), 59 Ill. App. 3d 911, 375 N.E.2d 952, appeal denied (1978), 71 Ill. 2d 615.) A limited retrial should be granted only if it is clear that no injustice will result. (Liodas v. Sahadi (1977), 19 Cal. 3d 278, 562 P.2d 316, 137 Cal. Rptr. 635.) A request for such a trial should be considered with the utmost caution, and any doubts should be resolved in favor of granting a complete retrial. Liodas.

Even assuming, arguendo, that a partial retrial can ever be granted when the trial court erroneously fails to submit the issue of plaintiff’s negligence to the jury, the trial court did not abuse its discretion here in granting a complete retrial since it is not clear that no injustice would result from a partial retrial. In a partial retrial such as plaintiff is seeking, the jury would be instructed that defendant had already been found negligent but that it was to determine the extent of such negligence and also determine if the plaintiff was negligent and, if so, to what degree. But such an instruction would be prejudicial to a fair trial. (Caterpillar Tractor Co. v. Beck (Alaska 1981), 624 P.2d 790; Juvland v. Mattson (1971), 289 Minn. 365, 184 N.W.2d 423.) The prejudice would be aggravated in this case because the evidence was close on the question of liability. Liability in this type of case is dependent on the existence of a foreign object causing the plaintiff to fall. The only evidence of the existence of the puddle was that of the plaintiff. Defendant introduced evidence that no puddle existed. Because of the trial court’s action, the plaintiff was able to argue to the jury, over defendant’s objection, that the trial court had ruled as a matter of law that the plaintiff was not negligent. Since falls are usually due to someone’s carelessness, this argument could have confused the jury and led it to believe it must disregard any evidence there was no puddle or that the fall was not due to defendant’s carelessness but to plaintiff’s. Additionally, the trial court’s granting of a new trial was proper because of plaintiff’s improper statements in closing argument. Counsel repeatedly argued, over defendant’s objection which was sustained, that if plaintiff’s pre-existing disability had been aggravated by the accident, defendant was liable not for the amount of the aggravation but for the total disability.

In short, it is not necessary for this court to determine whether a limited retrial could ever be granted when the trial court erroneously fails to submit the issue of plaintiff’s negligence to the jury. We believe, after a review of the entire record, that it was not an abuse of discretion for the trial court in this case to grant a total retrial.

Judgment of the trial court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.