author: JUSTICE McGLOON

text:
    C. HUTCHINSON & COMPANY, Plaintiff-Counterdefendant-Appellant, v. E. W. LANCASTER, INC., Defendant-Counterplaintiff-Appellee.
    First District (1st Division)
    No. 82—1795
    Opinion filed November 21, 1983.
    Joseph E. Fitzgerald, of Clarendon Hills (J. Scott Bonner, of counsel), for appellant.
    John M. Burke, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff, C. Hutchinson & Company (Hutchinson), brought a breach of contract action against defendant E. W. Lancaster, Inc. (Lancaster). Defendant filed a counterclaim alleging nonpayment of contract. Following a bench trial, judgment was entered in favor of defendant on the complaint. Judgment was also entered in favor of defendant on its counterclaim in the amount of $16,787.50.

On appeal, plaintiff contends that (1) the trial court’s finding that the design of a pretying machine was the joint responsibility of the parties was against the manifest weight of the evidence; (2) the trial court’s finding that defendant performed all conditions required under the contract was against the manifest weight of the evidence; and (3) the trial court’s award of damages to defendant was erroneous as a matter of law.

We affirm, as modified.

In 1976, plaintiff was in the business of pretying sausage casings for meatpackers. Plaintiff’s customers would send sausage casings to plaintiff. Plaintiff would, in turn, tie the end of the casings and return them to the meatpackers for filling. In an attempt to obtain a machine that would tie casings at a greater speed with lower labor costs, plaintiff contacted defendant, a custom-equipment builder.

In early 1977, representatives of the parties met to discuss the feasibility of designing and building a prototype of a machine that would meet plaintiff’s needs. Those present at the meetings were Jack Lancaster (president of E. W. Lancaster, Inc.), Bogdan Wezio (superintendent of E. W. Lancaster), and Jack Hutchinson (president of C. Hutchinson & Company). Wezio presented sketches to Hutchinson which demonstrated how a machine could be built that would complete the following functions: (1) picking up a casing; (2) pleating or gathering the casing’s end; and (3) tying or clipping the casing. We-zio testified that it was his understanding that defendant agreed to build a machine that would be capable of performing these functions. He further testified that Mr. Hutchinson had subsequently decided to purchase a premade clipping device which could be adapted to the machine instead of having defendant design the clipping aspect of the machine. In April 1977, Hutchinson recommended a Practo clipping machine to accomplish the clipping function. The Practo clipper was subsequently purchased by Hutchinson at his expense.

Later, in June 1977, a proposal drafted by defendant’s attorney was submitted to plaintiff. The proposal, as set forth below, outlined the agreement of the parties and was attached to plaintiff’s verified complaint:

“We, E. W. Lancaster, Inc. agree to develop an automated machine that will take casings from a hopper, transfer to a pleating device, then to a crimping operation. The machine will be built to provide above functions at a rate of 1,500/Hr. to 5,000/Hr. under normal operating conditions.
The machine will be developed with the approval and consent of Hutchinson prior to any manufacturing of parts. Lancaster will keep Hutchinson fully informed of any new ideas or changes and Hutchinson will be available for approval or disapproval.
The design of this machine shall be the joint responsibility of Hutchinson and Lancaster. Hutchinson shall signify acceptance of the design and development of this machine on a monthly basis.
The machine will be built for $18.00 per hour plus 115% of material cost. All patent rights will be property of Hutchinson. Expected cost of this machine to be $35,000 to $50,000, to be invoiced bi-monthly, based on time and material expended.
Lancaster guarantees material and workmanship for the period of one year.
Expected delivery to be September 30, 1977 or sooner.”

The proposal was never executed by plaintiff.

After defendant commenced work on the machine, Hutchinson made routine visits to defendant’s plant to check on defendant’s progress. In July 1978, Hutchinson informed Wezio and Lancaster that he did not consider the machine completed. Shortly thereafter, test runs on the machine were performed at one of plaintiff’s customer’s plants. Hutchinson testified that approximately 35 to 50% of the casings run during the test were found to be defective. However, on cross-examination, he stated that he had told Wezio that the test runs had been successful and that only three of the 500 casings which were retested experienced clip failure.

Additional tests on the pretying machine were run in May 1978 and August 1978. Wezio testified that after the tests performed in May, it was discovered that the clipping device was not functioning properly. He also testified that by August the machine ran satisfactorily. The quality of clip was equal to those originally produced by plaintiff, and all other functions worked properly. At that time, the machine could run at a rate of 1,500 to 5,000 casings per hour. Finally, Wezio testified that Hutchinson decided that heavier-gauge wire should be used. Problems with the clips arose after the heavier wire was used.

Eventually, defendant hired a consultant, Mr. Firth, to help Wezio and Lancaster better understand the nature of plaintiff’s product and the industry in general. Firth observed and tested the machine in 1979 and early 1980. His observations revealed problems with feeding the clips into the clipper, uniformity of clips, and problems in the “pick-up” unit immediately ahead of the clipper. The last test was run in January 1980. Firth testified that the machine did not operate satisfactorily. Although Firth could not identify the problem specifically, he stated that the problems with the clipper had masked other problems with the machine.

Plaintiff continued to pay defendant for his work on the machine through February 16, 1979. Plaintiff filed the instant action in the circuit court of Cook County on April 23,1980.

Initially, plaintiff contends that the trial court’s finding that the design of the pretying machine was the joint responsibility of the parties was erroneous. It argues further that defendant’s obligation under the parties’ agreement included sole responsibility for the design and production of the entire pretying machine. We disagree.

A reviewing court will not substitute its judgment for that of the trial court unless it is against the manifest weight of the evidence. (Uptown Federal Savings & Loan Association v. Kotsiopoulos (1982), 105 Ill. App. 3d 444, 434 N.E.2d 476.) A finding or judgment is not against the manifest weight of the evidence unless an opposite conclusion is clearly evidenced. Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 426 N.E.2d 604.

Review of the evidence presented in the instant case reveals that the trial court’s finding on the parties’ design responsibilities under the contract was not against the manifest weight of the evidence. In reaching our conclusion, we cite our recent decision in American National Bank & Trust Co. v. Erickson (1983), 115 Ill. App. 3d 1026, 452 N.E.2d 3, for the proposition that admissions contained in a verified pleading are binding judicial admissions. An admission has been defined as a voluntary acknowledgement made by a party of the existence of the truth or certain facts which are inconsistent with his claim in an action. (Black’s Law Dictionary 44 (5th ed. 1979).) Plaintiff incorporated the “proposal” quoted above into its verified complaint. Plaintiff relied on the proposal as evidence of the parties’ agreement. The proposal specifically acknowledges that “the design of this machine shall be the joint responsibility of Hutchinson and Lancaster.” Moreover, the evidence adduced at trial clearly supports defendant’s theory that plaintiff was responsible for purchasing the clipping device which malfunctioned and masked other problems which ultimately contributed to defendant’s delay in completing the machine.

Second, plaintiff contends that the trial court’s finding that defendant had performed all conditions under the agreement was contrary to the manifest weight of the evidence. However, our review of the record supports the trial court’s finding.

The proposal, which plaintiff attached to its complaint, provides that defendant and plaintiff would design an automated machine that would pick up casings from a hopper, transfer them to a pleating device and crimp them. Testimony given by witnesses at trial indicates that the machine would also clip the casings. The clipping mechanism would be supplied by plaintiff. The finished machine would produce tied or clipped sausage casings at a rate of 1,500 to 5,000 casings per hour. The evidence presented at trial, concerning the machine’s ability to meet these requirements, is contradictory. However, Wezio testified that by the end of 1978, the machine functioned properly and could run at a rate of 1,500 to 5,000 casings per hour. The only defects which were observed at this time related to the clipping device which was supplied by plaintiff.

It is well established that the trial judge is in a superior position to determine the credibility of witnesses whose testimony is conflicting. (Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 426 N.E.2d 604.) There is ample evidence in the record to support the trial court's finding that defendant performed all of the conditions required under the agreement. Accordingly, we will not substitute our judgment for that of the court below. Thornton v. Williams (1980), 89 Ill. App. 3d 544, 412 N.E.2d 157.

Finally, we turn to the question of the amount of damages to which defendant is entitled. Plaintiff argues that the trial court’s calculation of damages was erroneous and against the manifest weight of the evidence. We agree.

In its counterclaim, defendant alleged that under the terms of the parties’ agreement, plaintiff owed defendant $17,977 in addition to the amount of monthly payments which defendant had already received, $46,577.10. After trial, judgment was entered in favor of defendant on its counterclaim in the amount of $16,787.50.

Plaintiff called an employee of defendant to testify under section 60 of the Civil Practice Act. The employee, who was in charge of keeping defendant’s daily time records, testified that the charges billed to plaintiff for labor and material amounted to $59,028.37. As stated above, plaintiff already paid defendant $46,577.10. The difference between these two figures is the amount still owed to defendant, $12,451.27. The trial court’s award of damages in the amount of $16,787.50 is not supported by the facts in the record and unjustly enriches defendant by $4,336.23. Where the appellate court is convinced that an award is excessive, the court may reverse outright or order a reduction. (Rivenbark v. Finis R Ernest, Inc. (1976), 37 Ill. App. 3d 536, 346 N.E.2d 494.) Consequently, we find that defendant is entitled to damages in the amount of $12,451.27. In this regard, the trial court’s award is affirmed, as modified.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County, and modify the award of damages as set out above.

Judgment affirmed, as modified.

BUCKLEY, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS E. JONES, Defendant-Appellant.
    First District (4th Division)
    No. 82—61
    Opinion filed November 17, 1983.

      Thomas Peters, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Louis E Stalzer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant Thomas Jones, was charged by information with four counts of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a)(1), (2), (3)), one count of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1), and one count of robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 1). Following a jury trial in the circuit court of Cook County, defendant was convicted on all six counts and sentenced to an extended 60-year term for murder and concurrent seven-year terms for the burglary and robbery.

Defendant appeals, presenting eight claims of error. First, he argues that his motion to quash arrest should have been granted because (1) his warrantless arrest violated the fourth amendment search and seizure clause; and, (2) the police lacked probable cause to arrest. Defendant next contends he is entitled to a new trial because (3) the prosecution knowingly withheld discoverable testimony; (4) the trial court admitted hearsay testimony; (5) the trial court admitted irrelevant testimony; and (6) the prosecution used its peremptory challenges to systematically exclude black jurors. Finally, defendant claims that (7) he was denied a fair trial because the prosecutor advised the jury that the defendant had been incarcerated since his arrest; and (8) his motion to suppress fingerprint analysis testimony should have been granted because no proper chain of custody was established. Defendant also contends that his sentence should be modified to the statutory minimum of 20 years because the 60-year sentence imposed by the trial court was excessive.

We affirm the decision of the trial court.

Facts

On June 17, 1978, at approximately 2:30 p.m., Michael Lux, a 65-year-old retired widower, was discovered by his brother Peter lying on the floor of his South LaFayette Avenue apartment with his hands tied above his head and his feet bound, strangled to death. No suspects were taken into custody at that time.

One year later, as the investigation into the homicide of Michael Lux continued, the police learned of a potential witness, Joseph Tallie, who had information about the identity of the offender. On June 11, 1979, Detective Yucaitis and Investigator John Ryan went to the home of Joseph Tallie on South LaFayette Avenue, across the street from the home of the victim. Not finding Tallie at home, the officers left their names and a request that Tallie contact their office. Later that evening, Tallie complied with the request, and the police brought him in for questioning.

Tallie testified at trial that on June 16, 1978, the day before Michael Lux was found dead in his apartment, Tallie had been present at a conversation between Bruce O’Neil, Willie Henderson and the defendant, Thomas Jones (“Tee”) as the four sat talking on Tallie’s front porch. In the course of the conversation, Henderson stated that he, Clyde Rogers and Tee were going to “rip off the old white man” across the street and kill him. At that time, Michael Lux was the only white man living across the street from Tallie. Tallie told the police that the next day, June 17, 1978, he saw the dead body of Michael Lux being carried from the victim’s house. He saw Willie Henderson that evening and said to him, “You .really did what you said you were,” to which Henderson smiled.

Tallie further testified that on August 24, 1978, following his arrest on an unrelated charge, he had been held for several weeks in Cook County jail and that Henderson and Rogers were also incarcerated there. Tallie reported that while in jail, Henderson had told Tallie that Jones, Rogers and he had gone into “the old guy’s home,” referring to Lux, strangled him and taken some television sets. His information was corroborated by the investigators, who ascertained that Michael Lux’ death was by strangulation, a television set had been taken from his home the evening he was murdered, and the records of the burglary unit and those of Cook County jail affirmed Tallie’s information that Clyde Rogers and Willie Henderson were incarcerated in August and September of 1978.

Tallie further informed the investigators that Jones lived on La-Fayette and 120th on the east side of the street, the second house from the south corner, approximately V-k blocks from the victim’s home. Finding that the corroborated facts and the description of Jones’ home constituted probable cause to arrest, the officers proceeded to South LaFayette Avenue. Tallie’s description as to the location of Jones’ house proved accurate.

Two unmarked squad cars bearing four plainclothesmen arrived at Jones’ home at approximately 11 p.m. On cross-examination, Jones described his house as having three trees in front, a porch with five or six wooden steps, and “that is about it.” Two doors, an inside door and a screen door, separate the wooden porch from the inside of the house. When officers Ryan and Yucaitis walked up the steps to the porch of Jones’ house, the screen door was closed, but the inside door was open. The officers knocked on the door. Jones testified that as he came to the door in response to the police knocking, he recognized the plainclothesmen standing on his porch as policemen.

The record reveals divergent testimony as to whether officers Ryan and Yucaitis entered Jones’ home or remained standing on the front porch. The officers testified that Jones opened the screen door, identified himself, and then stepped out onto the porch, where the officers informed him that they wanted to speak with him in regard to “the death of the old white guy.” Jones asserted however, that after he identified himself and began to open the screen door, officers Ryan and Yucaitis stepped through the door and entered his home. Jones testified that Officer Ryan then asked him to step outside so they could have a few words with him. Jones then accompanied the officers to the squad car and was driven to the police station.

At the station, Jones was taken into an interview room and questioned. Present in the room with him were officers Ryan and Yucaitis. Jones initially denied his involvement in the Lux homicide. Detective Yucaitis then left the interviewing room and returned with Joseph Tallie. Ryan testified that upon confrontation with Tallie, Jones admitted knowing him and proceeded to confess to his involvement in the homicide. The assistant State’s Attorney was summoned to Area II headquarters, and in his presence and the presence of Investigator Ryan, Jones made and signed a statement detailing his involvement in the homicide of Michael Lux.

Jones stated that on June 16, 1978, he, Willie Henderson and Clyde Rogers had a conversation on Tallie’s front porch in which they discussed entering the “old man’s house” to burglarize it. Jones admitted that on that evening at approximately 8 p.m., he, Willie and Clyde broke into the victim’s home. They took Michael Lux into the living room. Clyde asked for something with which to tie up the victim. Jones complied by cutting off a piece of electrical cord from a lamp in the victim’s house and giving it to Clyde. Jones stated that Clyde tied up the victim’s hands so the three could walk around the house and decide what to take. During this search of the house, Clyde called Henderson by name in the victim’s presence. Upset by this, Henderson went into the victim’s bedroom and returned with a belt. Henderson put the belt around the victim’s neck and strangled him to death while Jones stood in the room looking on. Jones and the others then took Michael Lux’ television set and car and drove away.

The jury found Jones guilty of murder, burglary, and robbery. The trial court imposed an extended 60-year term for the murder and concurrent seven-year terms for the burglary and robbery. This appeal followed.

Opinion

I

Defendant’s first argument on appeal is that the trial court erred when it denied his motion to quash arrest and suppress evidence. At trial, conflicting testimony was presented as to whether the warrant-less arrest took place inside defendant’s home or outside on his front porch. Defendant contends that he was arrested inside his home; citing Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, he argues that warrantless arrests inside the home absent exigent circumstances are prohibited. Alternatively, defendant contends that the arrest on his front porch is similarly prohibited under the curtilage doctrine.

The arresting officers testified at trial that the arrest took place on defendant’s front porch after he came to the door, recognized the officers as policemen, voluntarily opened the door and stepped out onto the porch. Finding the testimony of the arresting officers to be more credible, the trial court held that the arrest took place outside the home.

It is the function of the trial court to resolve conflicts in the testimony and to determine the credibility of the statements given by witnesses. (People v. Clay (1973), 55 Ill. 2d 501, 504, 304 N.E.2d 280, 282.) A reviewing court will not disturb findings of fact reached by the trial court at a hearing on a motion to suppress evidence unless those findings are manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766, 769.) It is clear from the trial court’s denial of the motion to quash arrest and suppress evidence that the court resolved the conflict in testimony by determining that the testimony of officers Ryan and Yucaitis was more credible than that of defendant Jones. We find no reason to disturb this determination.

Defendant argues in the alternative that the warrantless arrest on the front porch of his residence violated his fourth amendment right to privacy. Defendant reasons that, under the common law doctrine of curtilage, Payton’s prohibition against warrantless arrests in the home extends to his front porch. Defendant correctly asserts that the trial court made no findings of fact in regard to this alternative argument. It is therefore within our province to do so.

The issue of whether fourth amendment protection extends to the curtilage of one’s home has not yet been addressed in this State. Courts of other jurisdictions that have addressed the issue differ as to the working definition of “curtilage.” For search and seizure purposes, the generally accepted definition includes

“those outbuildings which are directly and intimately connected with the habitation and in proximity thereto and the land or grounds surrounding the dwelling which are necessary and convenient and habitually used for family purposes and carrying on domestic employment.” (Black’s Law Dictionary 346 (5th ed. 1979).)

Where this or any working definition of curtilage is employed, the issue of whether a warrantless arrest within the curtilage violates the fourth amendment must be analyzed by applying those principles which govern search and seizure.

The guiding principle behind the constitutional provisions governing searches and seizures is reasonableness, and whether the police have acted reasonably depends on the circumstances of each case. (People v. Abney (1980), 81 Ill. 2d 159, 173, 407 N.E.2d 543, 549.) The test under the Constitution is not whether it was reasonable to procure a warrant, but whether the search or seizure was reasonable. (Cooper v. California (1967), 386 U.S. 58, 61, 17 L. Ed. 2d 730, 733, 87 S. Ct. 788, 790.) In order to invoke fourth amendment protection, defendant must demonstrate an unreasonable government intrusion into his legitimate expectation of privacy. People v. Richards (1983), 94 Ill. 2d 92, 95, 445 N.E.2d 319, 321.

The question in the present case then becomes whether the officers’ warrantless arrest of Jones, under the circumstances of this case, intruded on Jones’ expectation of privacy. This question must necessarily be broken down into two separate inquiries. First, did the officers act unreasonably in effecting the arrest, and second, did Jones, under these circumstances, exhibit an actual (subjective) expectation of privacy. (Katz v. United States (1967), 389 U.S. 347, 361, 19 L. Ed. 2d 576, 588, 88 S. Ct. 507, 516.) With these inquiries in mind, we examine defendant’s reliance on Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, to support his position that the warrantless arrest on his porch was unconstitutional.

In Payton, six officers went to the arrestee’s apartment and, obtaining no response to their knock on the metal door, summoned emergency assistance to gain entry. (445 U.S. 573, 576, 63 L. Ed. 2d 639, 645, 100 S. Ct. 1371, 1375.) Using crowbars to break open the door, the officers entered the apartment and found no one home. The court noted that Payton dealt with “entries into homes made without the consent of any occupant.” (445 U.S. 573, 583, 63 L. Ed. 2d 639, 649, 100 S. Ct. 1371, 1378.) The court held that the fourth amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. Payton v. New York (1980), 445 U.S. 573, 576, 63 L. Ed. 2d 639, 644, 100 S. Ct. 1371,1375.

In the instant case, officers Ryan and Yucaitis walked up the steps to the porch of Jones’ house and found the inside door open. The officers knocked on the closed screen door. When Jones came to the door in response to the knocking, he recognized the officers as policemen prior to opening the door. The trial court resolved the conflicting testimony as to where the arrest occurred by finding that the officers did not enter Jones’ home. Jones, knowing that the officers were policemen, stepped outside onto the porch. The arrest took place on the porch.

In Payton, the officers (1) used force (2) to enter the inner dwelling (3) without the consent of the occupant (4) when no one was home. None of these factors is present in the instant case. The officers here did not act unreasonably. They knocked and asked Jones to step outside. Jones did not exhibit any subjective or reasonable expectation of privacy. The inside door to his dwelling was open. He recognized the officers as policemen. He voluntarily opened the door and stepped outside. At the time Jones stepped outside, the police had no more unreasonably intruded upon his privacy than does a boy collecting for the newspaper or a little girl selling girl scout cookies. (State v. Corbett (1973), 15 Or. App. 470, 475, 516 P.2d 487, 490.) Thus, applying the principles that govern search and seizure, we find the war-rantless arrest of Jones on his front porch did not violate the fourth amendment.

II

Defendant next argues that the police lacked probable cause to arrest because the arrest was based solely on information provided by an informant without a showing of prior reliability. The State refutes this contention, characterizing the informant, Joseph Tallie, as an ordinary citizen whose reliability need not be shown.

The trial court’s finding of probable cause will not be disturbed on appeal unless manifestly erroneous (People v. Borges (1980), 88 Ill. App. 3d 912, 916, 410 N.E.2d 1076, 1080). Probable cause to arrest exists where the facts and circumstances known to the arresting officer are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. Reynolds (1983), 94 Ill. 2d 160, 166, 445 N.E.2d 766, 769.) Evidence sufficient to convict is not required to support a finding of probable cause. People v. Lippert (1982), 89 Ill. 2d 171, 178-79, 432 N.E.2d 605, 608.

Probable cause for a warrantless arrest can be based on information furnished by an informant if the informant’s reliability has been previously established, or if the information is independently corroborated. (People v. Sturdivant (1981), 99 Ill. App. 3d 370, 373, 425 N.E.2d 1046, 1048.) If the informer is a private citizen, not from the criminal milieu, prior reliability or independent corroboration is not necessary. (People v. Hester (1968), 39 Ill. 2d 489, 514, 237 N.E.2d 466, 481.) An informant who has never given information to the police in the past and is not a professional police informant is presumptively a citizen-informant. (People v. Beto (1980), 86 Ill. App. 3d 622, 628, 408 N.E.2d 293, 298.) Similarly, persons who supply information only after being interviewed by police officers, or who give information as witnesses during the course of an investigation are not “informers.” United States v. LaFond (E.D. Wis. 1980), 482 E Supp. 1379,1384.

In the instant case, Joseph Tallie came forward with information only after the police had gone to his home and left their card, requesting that he contact them. He supplied information during the course of the Lux investigation only after being interviewed by the police. The trial court found that Joseph Tallie was not a member of the criminal milieu. These factors negate the necessity to show prior reliability.

Prior reliability is not, in any event, the sole basis upon which probable cause may be established. Independent corroboration is an alternative method of establishing probable cause for a valid, warrant-less arrest. (People v. Kahl (1978), 63 Ill. App. 3d 703, 707, 380 N.E.2d 487, 491.) As the trial court noted, even if Tallie were a member of the criminal milieu, a substantial part of the information he gave the police was verified by independent police corroboration. The investigators were able to corroborate by personal knowledge the cause of the victim’s death and the property taken from his home. Neither investigator had told Tallie these facts prior to obtaining the information from him. The records of the burglary unit and those of Cook County jail affirmed Tallie’s report of his 1978 incarceration and that of Rogers and Henderson. Finally, Tallie provided the police with a description of the location of defendant’s home.

The trial court’s finding of probable cause, based upon the information furnished by Joseph Tallie and the subsequent corroboration of that information by the police, is not manifestly erroneous and will not be disturbed.

HI

Defendant next contends that the State withheld discoverable testimony given by a State’s witness at another trial. Defendant asserts that the prosecution violated Supreme Court Rule 412(a)(i) (73 Ill. 2d R. 412(a)(i)) by withholding the testimony given by Joseph Tallie at the trial of Bruce O’Neil, one of those present on Tallie’s porch during the conversation in which the defendant, O’Neil and Henderson planned to burglarize and kill Michael Lux. The State maintains that Tallie’s testimony against O’Neil in a separate trial for the offense of intimidation was neither relevant nor favorable to the defendant’s defense and that the defendant’s discovery motion was therefore not violated.

Supreme Court Rule 412(a)(i) provides in pertinent part:

“[T]he State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
(i) the names and last known addresses of persons whom the State intends to call as witnesses, together with their relevant written or recorded statements.” 73 Ill. 2d R. 412(a)(1).

Prior to trial, defendant filed a motion for discovery requesting a list of witnesses favorable to the defense. The State’s answer informed defendant that Joseph Tallie might be called as a witness. Defendant was also provided with all reports compiled by the police relating to the homicide of Michael Lux.

At trial, on cross-examination of Joseph Tallie, defense counsel asked if Tallie knew the whereabouts of Bruce O’Neil. Tallie stated he had heard that O’Neil was locked up. Defense counsel proceeded to ask Tallie if he had testified at any trial against O’Neil to which Tallie answered affirmatively. Defendant moved for mistrial on the grounds that the State had withheld Tallie’s testimony and that defendant had been taken by surprise at trial. The trial court denied defendant’s motion.

The trial court has discretion to allow the introduction of undisclosed testimony absent a showing of surprise or prejudice. (People v. Steel (1972), 52 Ill. 2d 442, 450, 288 N.E.2d 355, 360.) Unless the undisclosed testimony is favorable to defendant or material to his guilt, the trial court’s exercise of discretion will not be disturbed on appeal. (People v. Davis (1982), 104 Ill. App. 3d 1027, 1032, 433 N.E.2d 1011, 1015.) Moreover, any objection to the undisclosed testimony will be deemed waived for purposes of review where defendant fails to seek a continuance in order to investigate it. People v. Ferguson (1981), 102 Ill. App. 3d 702, 713, 429 N.E.2d 1321,1329.

Defendant has failed to show how the undisclosed testimony of Joseph Tallie against Bruce O’Neil was material or favorable to his defense. Defendant instead argues that the undisclosed statement was relevant and that its disclosure at trial took him by surprise. Defendant’s relevancy argument fails for two reasons. First, while defendant correctly points out that Supreme Court Rule 412(a)(i) (73 Ill. 2d R. 412(a)(1)) directs the prosecution to disclose all “relevant” written or recorded statements, defendant’s objection at trial was specifically that section 19 of his discovery motion had been violated.

The trial court ruled that section 19 requested only the names and addresses of witnesses favorable to the defense. The State disclosed the name and address of Joseph Tallie as requested. In addition, the trial court found that the police reports and preliminary hearing reports were not favorable to the defense. Second, defendant’s claim of relevancy focuses on how defendant’s trial strategy might have been different had he not been surprised by Tallie’s testimony. Defendant was given the name and address of Tallie prior to trial. Surprise or prejudice is not established if the defendant fails to take advantage of an opportunity to interview a witness and has not attempted to obtain a continuance to do so. (People v. Taylor (1982), 107 Ill. App. 3d 1019, 1022, 438 N.E.2d 565, 567.) Defendant’s failure to interview Tallie or seek a recess or a continuance to investigate his testimony not only negates his claim of surprise but also waives his objection for purposes of review. (People v. Winfield (1983), 113 Ill. App. 3d 818, 838, 447 N.E.2d 1029, 1045.) We therefore conclude that the incomplete disclosure by the State cannot be made the basis for a new trial.

IV

Defendant next contends that the trial court improperly admitted alleged hearsay testimony. Defendant specifically claims as error the admission of (1) Tallie’s testimony of the act of intimidation against him by O’Neil; (2) Officer Ryan’s testimony about the attack by O’Neil and his subsequent arrest and conviction; and (3) Tallie’s testimony about what Henderson said on Tallie’s porch the day before the murder. The State contends that the defendant waived review of these alleged errors by failing to make a proper and timely objection. The State argues alternatively that, in the absence of waiver, the testimony was invited by defense counsel’s trial tactics.

We need not reach the State’s alternate argument, for we agree with the contention that defendant has waived objection to the alleged hearsay testimony for purposes of review. An objection to hearsay testimony must be made at the time of its introduction and should designate the particular testimony and the specific reason for objection. (People v. Patterson (1981), 102 Ill. App. 3d 844, 847, 430 N.E.2d 574, 578.) Objection to hearsay made after opponent’s counsel has elicited the testimony at issue or has completed another question and answer is improper and untimely, as is the mere expressing of continuing, non-specific objections. (102 Ill. App. 3d 844, 848.) Moreover, defendant’s failure to include the hearsay testimony as grounds for a new trial in his post-trial motion waives such objections in the absence of plain error. People v. Boclair (1982), 106 Ill. App. 3d 515, 520, 435 N.E.2d 1237, 1241.

In the instant case, defendant failed to object to Tallie’s testimony regarding the attack by O’Neil until the State had completed two more questions and answers. During the testimony of Officer Ryan, defendant again failed to make timely objection or to state specific grounds for his objections. In addition, in his motion and supplemental motion for a new trial, defendant completely failed to raise as error any of the complained of testimony. Where grounds for a new trial are stated in writing, defendant is limited on review to errors raised therein. People v. Brainerd (1976), 41 Ill. App. 3d 183, 186, 355 N.E.2d 117,120.

Further, the alleged error does not, as defendant argues, rise to the status of plain error in view of the totality of the evidence presented by the State. (People v. Boclair (1982), 106 Ill. App. 515, 520, 435 N.E.2d 1237, 1241.) While failure to include an issue in a written post-trial motion generally results in waiver, this court may review errors that deny the accused a fair and impartial trial under the plain error doctrine. {People v. Tonaldi (1981), 98 Ill. App. 3d 528, 530, 424 N.E.2d 1200, 1202.) An accused, however, is guaranteed a fair trial, not one totally free from error. People v. Blackman (1976), 44 Ill. App. 3d 137, 140-41, 358 N.E.2d 50, 53.

Here, in light of the other evidence offered at trial, we cannot conclude that the admission of the alleged hearsay testimony of Joseph Tallie and Officer Ryan deprived the defendant of a fair trial. Evidentiary offerings included defendant’s voluntary confession as to Ids’ involvement in the planning and execution of the crimes, corroboration of that confession by credible witnesses, and fingerprints found on a lamp in the victim’s home from which defendant ripped an electrical cord that he admits was used to bind the victim. Because the evidence demonstrates that defendant’s conviction was not dependent on the alleged hearsay testimony, any error was rendered harmless, the plain error doctrine is inapplicable, and defendant’s objections are deemed waived.

V

Defendant next contends that he was denied his sixth amendment rights to a fair trial. Citing People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046, rev’d (1983), 99 Ill. 2d 135, defendant claims that the State exercised its peremptory challenges to systematically exclude black jurors, thereby depriving him of a jury representative of a cross-section of the community. The State maintains that it did not discriminate against any specific group of potential jurors. The State asserts that Payne is no longer controlling law in Illinois and cites instead People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220, for the proposition that a defendant may successfully attack the State’s use of peremptory challenges only by establishing a systematic exclusion of black jurors in “case after case.” The State argues that the defendant has failed to show that the State has systematically excluded black jurors on a continuous basis in the prosecution of criminal cases. We agree.

In Williams, our supreme court rejected the holding of Payne and reaffirmed the United States Supreme Court’s ruling in Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824. The court noted that it is essential to our system of trial by an impartial jury that both sides be allowed to exercise peremptory challenges on any selected grounds. (People v. Williams (1983), 97 Ill. 2d 252, 278.) Affirming Swain, the court further noted that a constitutional issue would arise from the systematic exclusion of black jurors by peremptory challenges only where a pattern of such exclusion appeared case after case regardless of the particular circumstances involved. 97 Ill. 2d 252, 278.

Defendant, by his misplaced reliance on Payne, makes no attempt to establish the sort of systematic pattern of discriminatory exclusion required by Williams. Not only does defendant attempt to raise a constitutional issue based exclusively on the facts of the instant case, he attempts to raise such a claim on facts that plainly reveal the presence of three black jurors on the jury that convicted him. For these reasons, defendant has failed to show that the State’s exercise of peremptory challenges deprived him of a fair trial.

VI

Defendant next argues that he is entitled to a new trial on the ground that the jury was prejudiced by the State’s eliciting testimony that defendant had been incarcerated since the day of his arrest. Defendant specifically objects to certain testimony from Joseph Tallie and Officer Ryan.

An accused cannot interject an issue into a case and then argue that it was error to bring the issue to the jury’s attention. (People v. Marino (1980), 80 Ill. App. 3d 657, 666, 400 N.E.2d 491, 498.) On recross-examination of Joseph Tallie, defense counsel elicited testimony that defendant Jones had never intimidated him or told him not to testify. On redirect examination, Tallie responded affirmatively to the State’s suggestion that the reason Jones had never intimidated Tallie was that Jones had been incarcerated since his arrest. Later in the trial, Officer Ryan corroborated the fact of Jones’ incarceration.

The trial court ruled that the testimony was proper because invited by defense counsel’s questioning of Tallie. Both the record and the applicable law support this ruling. A defendant cannot complain of the admission of testimony which was invited by the defendant’s own tactics at trial. (People v. Davis (1977), 53 Ill. App. 3d 424, 432, 368 N.E.2d 721, 727.) A defendant who procures, invites or acquiesces in the admission of evidence, even though it be improper, cannot be heard to complain about it on appeal. People v. Hagen (1978), 63 Ill. App. 3d 944, 948, 380 N.E.2d 954, 958.

It is obvious from a review of the complained-of testimony that defense counsel interjected the issue of Tallie’s acquaintance with O’Neil as well as whether or not defendant Jones had intimidated Tal-lie. Tallie was merely asked by the State to elaborate on answers invited by defense counsel in the State’s effort to bolster the credibility of its witness. Defendant is therefore in no position, on review, to object to the invited testimony.

VII

Defendant next claims that the admission of fingerprint analysis testimony by Officer Krupowicz was error. Defendant argues that the State failed to establish a continuous chain of custody by not introducing the witness who transferred defendant’s prints and the latent lifts from officers Colby and Stella to Officer Krupowicz. The State maintains that a proper foundation was laid by the in-court identification testimony of the officers who prepared the prints.

Proof of a continuous chain of custody is not the sole manner by which to lay a foundation for the admission of evidence susceptible to identification by sight. (People v. Rhodes (1980), 81 Ill. App. 3d 339, 347, 401 N.E.2d 237, 242.) In Illinois the rule is well established that a foundation may be laid either through identification by a witness or through establishing a chain of custody. (People v. Greer (1963), 28 Ill. 2d 107, 113, 190 N.E.2d 742, 746.) It is therefore unnecessary to establish a chain of custody for fingerprint evidence where the officers who prepared the prints identify them in open court. (People v. Thibudeaux (1981), 98 Ill. App. 3d 1105, 1119, 424 N.E.2d 1178, 1191.) To establish a foundation by identification, the witness need only identify an exhibit capable of visual identification and establish that it is in substantially the same condition as it was when prepared. People v. Rhodes (1980), 81 Ill. App. 3d 339, 348, 401 N.E.2d 237, 243.

In the instant case, the latent lifts and defendant’s fingerprint card were capable of visual identification. Officers Stella, Colby and Krupowicz testified that both exhibits had been deposited with the identification section of the police department. Under these circumstances, it may be presumed that the exhibit is in substantially the same condition as it was when prepared. (People v. Rhodes (1980), 81 Ill. App. 3d 339, 347, 401 N.E.2d 237, 242.) Defendant presented no evidence to rebut this presumption. We therefore find that a proper foundation for the fingerprint analysis testimony was laid and that the testimony was properly admitted.

VIII

Defendant finally contends that the 60-year extended-term sentence imposed by the trial court was an abuse of discretion. More particularly, defendant argues that the trial court disregarded the mandate of the Illinois Constitution by failing to give adequate weight to his age and rehabilitative potential. The State maintains that the trial court considered these factors, and, due to the heinous and extremely brutal nature of the crime, properly exercised its discretion.

Sentencing is a matter of judicial discretion. (People v. Byer (1979), 75 Ill. App. 3d 658, 673, 394 N.E.2d 632, 643.) Absent a clear abuse of that discretion, the sentence imposed by the trial court will not be altered on appeal. (People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 545.) The Illinois Constitution requires that sentences be determined according to both the seriousness of the offense and with the objective of restoring the offender to useful citizenship. (Ill. Const. 1970, art. I, sec. 11.) The Constitution does not, however, require the court to give greater weight to the possibility of rehabilitation than to the seriousness of the crime. People v. Novak (1981), 94 Ill. App. 3d 1024, 1031, 419 N.E.2d 393, 399.

Statutory authorization for the imposition of an extended-term sentence arises under section 5 — 8—2 of the Unified Code of Corrections. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2.) Factors in aggravation that may be considered in determining whether to impose a more severe sentence are set forth in section 5 — 5—3.2, which reads in pertinent part:

“(b) the following factors may be considered by the court as reasons to impose an extended term sentence under Section 5— 8 — 2 upon any offender who was at least 17 years old on the date the crime was committed: * * *
(2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty; or
(3) When a defendant is convicted of any felony committed against: * * *
(ii) a person 60 years of age or older at the time of the offense.” Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2.

The trial court noted that defendant was over 17 at the time Michael Lux was strangled to death. The plain language of section 5— 5 — 3.2(b) informs the court that extended-term sentences are properly imposed on offenders who are 17 at the time of the offense. An age factor has therefore been considered both by the legislature and by. the trial court. This defendant and any defendant who is at least 17 at the time of the offense may qualify for an extended-term sentence when certain aggravating factors are present.

The presence of any single factor set forth in section 5 — 5—3.2 is sufficient to support the imposition of an extended-term sentence. (People v. McFarland (1981), 93 Ill. App. 3d 136, 144, 416 N.E.2d 769, 776.) The trial court found that the strangulation murder of Michael Lux was accompanied by exceptionally heinous and brutal behavior. The court also noted that the victim was 65 years old at the time of the murder. In addition, the trial court considered the presentence investigation report and defense counsel's argument, both relevant to rehabilitative potential. The trial court had a sufficient informational and legal basis to support the imposition of an extended-term sentence.

Accordingly, for the reasons set forth, we affirm the judgment of the trial court.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.


author: JUSTICE JOHNSON

text:
    FREDERIC H. EVERLY, Appellant, v. CHICAGO POLICE BOARD et al., Appellees.
    First District (4th Division)
    No. 82—2378
    Opinion filed November 23, 1983.

      James L. Pittman & Associates, of Chicago (James L. Pittman and Peter J. Van Houten, of counsel), for appellant.
    James D. Montgomery, Acting Corporation Counsel, of Chicago (Jerome A. Siegan and Robert J. Dargis, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Appellant, Frederic H. Everly, filed a complaint for administrative review of the Chicago Police Board (Board) decision to discharge him from the police department. The circuit court confirmed the decision of the Board. Everly raises the following issues for review: (1) whether the findings and decision of the Board were against the manifest weight of the evidence; (2) whether his due process right to a fair and impartial hearing was violated by the destruction of material evidence; (3) whether the Board proceedings should have been dismissed based upon conflict of interest of the corporation counsel; (4) whether police department rules 2 and 38 violate due process as void for vagueness; (5) whether the actions taken by the Board constitute a denial of equal protection; and (6) whether his acquittal of the criminal charges filed against him mandates dismissal of the police Board proceedings. We affirm.

On October 20, 1977, Tyrone Neal was shot during a police stop. Everly, a Chicago policeman, was charged with involuntary manslaughter but was acquitted after a jury trial. The transcript of the criminal proceedings was the only evidence submitted at the disciplinary hearing in which Everly was charged with misconduct.

Testimony at the criminal trial established that Isaac Coulter, a Chicago policeman, was working with his partner, Frederic Everly, on October 20, 1977. They drove to 64th and Woodlawn Avenue, in Chicago, and talked to Michael Griggs and Sharon Hodges. Griggs had been beaten and robbed by four or five persons. One of his assailants had worn orange clothes, another was fat, and a third was thin or of medium build. The police drove Griggs and Hodges around to see whether they could find the offenders. At 63rd and Greenwood Avenue, the officers saw three young men, each of whom was about 5 feet 6 inches in height and weighed about 145 pounds. None of the individuals wore orange clothing. The officers told the suspects to stop. They lined up against the wall and Coulter frisked them. Everly was 1 or IV2 feet behind Coulter. Coulter did not know whether Ev-erly had his gun drawn. After searching all three suspects and finding no weapons, Coulter went back to the police car to see whether Griggs could identify any of the suspects. He heard a shot, then turned around. Coulter did not see a weapon in Everly’s hands. One of the suspects, Tyrone Neal, slowly fell to the ground.

Reginald Nunley testified that on the evening of October 20, 1977, he was on his way to a boy’s club when he met 14-year-old Tyrone Neal and Andre Holiday. When they were in the vicinity of 63rd and Greenwood, a police car approached. Officer Everly, who had been driving and who had a gun in his hand, told them to put their hands against the wall. The suspects faced the wall spread-eagled with their hands up. Coulter searched Holiday, then Nunley, then Neal. He did not remove anything from the suspects. Everly stood behind Neal. After the search, Everly asked for identification. He said he would blow the head off anyone who did not have identification. Holiday gave Ev-erly a bus card; Nunley gave him a driver’s permit. Neal said he did not have any identification and turned slightly to his left. Everly raised his hand from his waist to the back of Neal’s head. Everly fired and Neal fell. On cross-examination, defense counsel impeached Nun-ley with a prior burglary conviction.

Andre Holiday, 18 years old, saw Neal on October 20, 1977, at a boy’s club. After they left the club, they met Nunley. At 63rd and Greenwood, a police car stopped and two uniformed officers got out of the car. One officer told them to stand against the wall. Coulter searched them, then Everly asked for identification. Neal said he had no identification and turned his head. His hands were over his head and on the wall. Holiday heard a gun fire and Neal fell.

Elvira Irons testified that on October 20, 1977, she lived at 6318 South Greenwood Avenue in a third-floor apartment. At about 8:30 p.m., she was sitting by her window and looking toward 63rd Street. She saw three youths on the corner. A police car approached and the youths began walking. When two officers got out of the car, the youths went to the side of a wall. The driver of the car had a gun in his hand. The other officer searched the youths and then walked toward the squad car. The driver stepped back; the third youth tilted his head slightly to the left. Irons heard the gun fire, and the youth fell.

Gregory Dune testified that on October 20, 1977, he was employed by an ambulance company. At about 7:30 p.m., he received a call. As the ambulance turned at 63rd and Greenwood, he observed three or four youths lined up against the wall and two uniformed policemen. One was searching the youths while the other held a gun to the head of one of the young men. As the ambulance proceeded down Greenwood Avenue, Dune heard a gunshot. The ambulance returned to the scene, and Dune observed one of the young men lying on the ground. They put him in the ambulance and took him to the hospital. On cross-examination, defense counsel impeached Dune with several prior convictions.

John York, a Chicago policeman, testified that on October 24, 1977, he inventoried a gun and five cartridges. They were destroyed after two months — December 20, 1977. The owner was notified that unless he picked up his property within 30 days, it would be disposed of.

Lamar Blount, a Chicago policeman, received a .38-caliber revolver from Everly at about 10:30 p.m. on October 20, 1977, and inventoried it. He told Everly that he could get his weapon back within 30 days.

Michael Griggs testified that on October 20, 1977, he was robbed and beaten near 61st and University Avenue by two men, one of whom was tall and thin and wore an orange jacket and pants; the other was short and flabby. After the incident, Griggs gave a description of the offenders to Everly. Griggs and Sharon Hodges, his common law wife, rode around the neighborhood in the police car with Everly and Coulter. On Greenwood Avenue, they saw three youths who did not fit the description of Grigg’s assailants. Everly asked Griggs whether the three youths were the offenders; Griggs said, “No.” Everly said the youths looked suspicious anyway and he was going to “check them out.”

Everly jumped out of the car with his revolver drawn. The youths placed their hands on the wall. While Griggs talked with Hodges, he heard a gunshot. Everly had a gun in his hand and a youth fell to the ground. Everly approached the squad car and asked Griggs if he would testify that one of the young men had robbed him. Later that evening, Griggs gave a statement at the police station regarding the shooting. When Everly drove Griggs home, he told Griggs he should not have repeated what he (Everly) had said. On cross-examination, defense counsel impeached Griggs with prior convictions.

Sharon Hodges testified that on October 20, 1977, she and Griggs lived at 6400 South Woodlawn Avenue. Griggs came home around 8:30 p.m. He had been beaten. The police were called and they arrived within a few minutes. Griggs did not want to go to the hospital but agreed to go in the police car to see whether they could find the offenders. After the officer stopped the three youths at 63rd and Greenwood, Hodges heard a gunshot. Everly put his gun in its holster and asked Griggs if he would say that the youths had robbed him. When Everly drove them home later that evening, he told Griggs that he did not have to repeat the statement he (Everly) made immediately after the shooting.

Edward Ganz, a neurosurgeon, was qualified as an expert. On October 20, 1977, he was on call at Billings Hospital, in Chicago. He examined Neal, who was in a coma and had two gunshot wounds in the back of his head. Neal died on November 2, 1977, as a result of irreversible brain damage.

Donald Smith, a Chicago policeman, was qualified as a firearms expert. He examined Everly’s police service revolver on October 21, 1977, and performed certain tests. In Smith’s opinion, the mechanical safeties were functioning properly and the weapon was in good operating condition.

Robert Stein, chief medical examiner for Cook County, performed an autopsy on Tyrone Neal on November 2, 1977. The cause of death was a bullet wound to the head.

Frederic Everly testified in his own defense. He was employed by the Chicago police department on February 19, 1973, as a patrolman. Shortly thereafter, he bought his .38-caliber Smith and Wesson revolver, which had to be repaired.

At about 8 p.m. on October 20, 1977, Everly received a message of a man stabbed at 6400 South Woodlawn. He interviewed Michael Griggs at the latter’s apartment and observed that he had been beaten rather than stabbed. Griggs wanted to look for the offenders because they had taken all of his money. Everly and his partner, Isaac Coulter, Griggs and Sharon Hodges toured the neighborhood in a police car. As the car approached 63rd and Greenwood, Everly observed three youths who were walking north. When they saw him, they turned around and began running. Everly told Griggs, “These might be the ones.” Griggs nodded. When Everly jumped out of the car and shouted, “Police,” the youths stopped. Everly told them to line up against the wall. Coulter patted down the suspects while Everly “covered” Coulter. Everly was four to six feet away from the suspects. While Coulter frisked the third suspect, Tyrone Neal, Everly asked the other two suspects for identification. Everly was looking at their identification and covering Coulter. Neal said he had no identification. Neal suddenly moved his hand and head. Everly turned toward Neal and his revolver discharged. Everly dropped the gun, threw up his hand and said, “Oh, my God.”

Everly never intended to fire his weapon, and he did not point it at Neal. He never asked Griggs to do him a favor. Later that evening, Everly turned in his revolver and cartridges which he never saw again. Everly claimed that before he stopped the three suspects, Griggs never said they were not his assailants.

On cross-examination, Everly could not recall the description of the offenders that Griggs had given. He drew his revolver when he got out of the car, but he did not cock it and never saw it cocked. But, in his firearms usage report dated October 21, 1977, he wrote that his weapon was “apparently cocked.” At trial, Everly stated that his partner was not in his view immediately before the shooting, but in a statement made on October 21, 1977, he said that Coulter was “crossing over changing positions to get to the third person, that’s when the shooting took place.” It was only after the incident that Griggs told Everly that the suspects were not his assailants. '

At the close of his case, Everly made an offer of proof that Roy Swanson, a Chicago policeman, would testify that he received an undated letter from Smith and Wesson recommending the removal of the trigger stop in revolvers of the type Everly had owned.

Although Everly was acquitted of criminal charges, the Board recommended his discharge on the grounds that he violated police rule 2 barring “conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department” and rule 38 which bars “[u]nlawful or unnecessary use or display of a weapon.” On September 12, 1982, the trial court confirmed the Board’s findings and decision. Everly appeals.

The first issue raised by Everly is whether the findings and decision of the Board are against the manifest weight of the evidence. Everly argues at length that his conduct conformed to good police procedure and that he was not responsible for the death of Tyrone Neal. He contends that the only support in the record to sustain the findings of the Board consists of the totally discredited and impeached testimony of convicted felons and purported eyewitnesses who never really observed what happened; that no competent evidence established that he violated departmental regulations or departed from correct police procedures; that nothing in the record suggested that he unlawfully displayed his revolver; that evidence in the record raised doubts about the proper functioning of his weapon; that no legally competent evidence established that a bullet from his revolver struck Neal; that gaps in the chain of custody cast serious doubt as to whose revolver was inventoried; and that Neal’s death was proximately caused by negligent medical care.

We reject Everly’s arguments. The decision of the Board should not be set aside by a reviewing court unless the opposite conclusion is clearly evident. The reviewing court determines only whether there is evidence which fairly tends to support the Board’s decision. In reviewing findings of an administrative agency, courts can only set aside findings if they are against the manifest weight of the evidence. (Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App. 3d 864, 868, 278 N.E.2d 212, 215.) In the instant case, there was sufficient evidence to support the Board’s findings that Everly’s conduct discredited the police department, that he unnecessarily displayed his weapon, and that he should therefore be discharged.

The three suspects stopped by Everly and his partner did not conform to the descriptions of the offenders given by Michael Griggs. The youths offered no resistance and they were unarmed. Although Everly denied at trial that he cocked his weapon, in his firearms usage report, written shortly after the incident, he wrote that his weapon was “apparently cocked.” After the shooting, a firearms expert examined Everly’s revolver and found it in good operating condition. In our opinion, the Board’s findings and decision are not against the manifest weight of the evidence.

Everly next argues that his due process right to a fair and impartial hearing was violated by the wilful destruction of his revolver on December 20, 1977, the day before he was suspended from the police force. Everly contends that he never had the opportunity to marshall facts in support of his most valuable defense, namely, that his revolver malfunctioned.

Again, we reject Everly’s argument. He does not convincingly explain how the failure to introduce the revolver into evidence materially prejudiced his defense. At trial, defense counsel cross-examined the expert witness who testified that the weapon was in good operating condition. Everly testified that shortly after he purchased the weapon it had to be repaired and that he never intentionally cocked the revolver. He made an offer of proof that the gun manufacturer had recalled revolvers of the type he owned. Thus, the Board was aware of Everly’s defense that the handgun malfunctioned. Further, the record reveals that the weapon was destroyed in the course of routine police procedure and before Everly was suspended from the police force. In our opinion, Everly’s due process right to a fair and impartial hearing was not violated by the destruction of his weapon.

Everly argues that the Board proceedings should have been dismissed because the corporation for the city of Chicago had the responsibility of defending him in the civil suit brought by the father of Tyrone Neal, yet prosecuted him in proceedings before the Board. He urges that the mere opportunity that confidences reposed in an attorney could prejudice the client in subsequent proceedings would impinge on the fair and impartial requirement of the due process clause.

Everly’s argument has no merit. He has demonstrated no potential or actual conflict of interest. The evidence submitted to the Board consisted solely of the transcript of the criminal trial in which Everly was represented by private counsel. Therefore, we hold that Everly established no conflict of interest by the corporation counsel.

Next, Everly argues that police rules 2 and 38 are violative of due process as void for vagueness because they do not intelligently apprise those affected by them as to what conduct is proscribed. Accordingly to Everly, the rules vest arbitrary powers in the Board and have a potential chilling effect on permissible behavior.

Everly was discharged from the Chicago police department for violating rule 2 which forbids “[a]ny action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department” and rule 38 which forbids “[u]nlawful or unnecessary use or display of a weapon.”

In our opinion, the meaning of rule 38 is plain and not vague. Rule 2 is similar to a provision upheld by the United States Supreme Court in Arnett v. Kennedy (1974), 416 U.S. 134, 40 L. Ed. 2d 15, 94 S. Ct. 1633. In Arnett, a provision authorizing removal of Federal civil service employees “for such cause as will promote the efficiency of the service” was ruled not void for vagueness even though it did not spell out in detail the conduct that is proscribed. In the instant case, it would be difficult for the Board to anticipate every type of behavior that would either impede police department policy or discredit the department. (Cf. People ex rel. Fahner v. Testa (1983), 112 Ill. App. 3d 834, 837, 445 N.E.2d 1249, 1252, terms inherently not susceptible to precise definition.) We hold that police regulations 2 and 38 are not void for vagueness.

Everly argues that the actions taken by the Board against him constitute a denial of equal protection. He claims that white police officers involved in shooting incidents were not subjected to criminal or disciplinary proceedings; that black Chicago policemen have been charged and punished disproportionately for infractions; and that the Board refused to provide him with records regarding other police shooting incidents. Everly urges that in denying his motion to produce records and his motion to dismiss based on denial of equal protection, the Board committed prejudicial and reversible error.

Again, we reject Everly’s contention. We have examined the record and find only a bare allegation, and no evidence, that the actions of the Board were racially motivated. (Cf. Kurek v. Kavanagh, Scully, Sudow, White & Frederick (1977), 50 Ill. App. 3d 1033, 1038, 365 N.E.2d 1191, 1195, mere filing of lawsuit does not establish cause of action.) We conclude that the Board did not deny Everly equal protection.

Finally, Everly argues that because he was found not guilty in the criminal trial for the involuntary manslaughter of Tyrone Neal, Caliendo v. Goodrich (1975), 34 Ill. App. 3d 1072, 340 N.E.2d 560, mandates that the Board proceedings be dismissed.

Everly interprets Caliendo too broadly. In that case, the appellate court reversed the Chicago police board’s decision to discharge an officer because the record did not support the board’s conclusion that cause existed for the officer’s discharge. (Caliendo v. Goodrich (1975), 34 Ill. App. 3d 1072, 1076, 340 N.E.2d 560.) The court did not reverse because the police officer was found not guilty of criminal charges. In the instant case, there was sufficient evidence to support the decision of the Board. Further, a finding of not guilty in a criminal proceeding does not preclude a civil proceeding based on the same charges since there is a different standard of proof in each proceeding. (Shallow v. Police Board (1981), 95 Ill. App. 3d 901, 908, 420 N.E.2d 618, 624.) We conclude that Everly’s acquittal of the criminal charges filed against him does not require dismissal of the Board proceedings.

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

Affirmed.

ROMITI, RJ., and LINN, J., concur.


author: JUSTICE MEJDA PRESIDING JUSTICE MEJDA

text:
    JAMES WALKER et al., Plaintiffs-Appellees, v. MIDWEST EMERY FREIGHT SYSTEMS et al., Defendants-Appellants.
    First District (5th Division)
    No. 82 — 1239
    Opinion filed July 15, 1983.
    Modified on denial of rehearing December 16, 1983.

      Jacobs, Williams and Montgomery, Ltd., of Chicago (Barry L. Kroll, of counsel), for appellants.
    Philip E. Howard, Ltd., of Chicago (William J. Harte, of counsel), for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff James Walker brought this action to recover damages sustained when he was run over by the rear wheels of a truck-tractor upon which he had been riding and from which he fell. His wife, Josephine Walker, who joined as plaintiff, sought damages for loss of consortium. Plaintiffs’ action sought recovery against the defendants on the theory of negligence. The defendants were Walter Green, the operator of the truck; John Tunstall, Green’s fellow employee; Paul E. DeMuth d/b/a Lowery Trucking Co. (hereinafter Lowery Trucking), lessor of the truck-tractor and Green and Tunstall’s employer; and Midwest Emery Freight Systems (hereinafter Midwest Emery), the lessee of the truck-tractor.

During the trial, plaintiffs moved to strike certain affirmative defenses pleaded by defendants interposing the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) as a bar to plaintiffs’ common law action. The trial court granted the motion after determining, as a matter of law, that plaintiff James Walker was an independent contractor rather than an employee or fellow employee of defendants. From this ruling and from the subsequent verdicts and judgments entered in favor of plaintiffs, defendants appeal.

Defendants have raised several issues claiming prejudicial error; however, the dispositive issue presented is whether the trial court erred in ruling, as a matter of law, that plaintiff was neither an employee of Midwest Emery nor a fellow employee of defendants Green And Tunstall. The pertinent facts are as follows.

On the night of March 24, 1974, four over-the-road truck drivers were present in the Chicago truck depot yards of defendant Midwest Emery. The drivers, plaintiff, David Hardin, defendant Green and defendant Tunstall, had previously driven their respective tractor-trailer combinations to the yards where they were parked. The trucks driven by Green and Tunstall were owned by Paul DeMuth, d/b/a Lowery Trucking. The trucks driven by plaintiff and Hardin were owned by plaintiff. Each of the trucks, with driver, had been leased by their respective owners to Midwest Emery and were, when on the road, operating pursuant to Midwest Emery’s Interstate Commerce Commission Certificate. Plaintiff was both owner and operator of the truck driven by him.

The uncontroverted trial testimony established that the incident resulting in plaintiff’s injury occurred when, in an effort to start the engine of Tunstall’s tractor which could not be started by normal cranking due to the cold, Hardin, Green and Tunstall agreed to tow the nonstarting tractor with a driver in the towed tractor engaging and disengaging its clutch. Hardin’s combination was used as the towing vehicle and the vehicles were connected by an 18-foot chain. Despite several towing attempts with Tunstall at the wheel of the towed tractor, no ignition was achieved. Then plaintiff, who had been performing truck maintenance in the nearby Midwest Emery garage, became involved by mounting the frame behind the cab of Tunstall’s tractor intending to foster ignition by injecting ether into Tunstall’s tractor’s diesel air intake system. Green replaced Tunstall in the cab of the non-starting tractor and Hardin operated the towing combination. Plaintiff testified that Tunstall acted as signalman for the maneuver which followed. The ensuing accident occurred when, after the two vehicles had moved a distance of between 15 to 25 feet, plaintiff was run over by the rear wheels of the towed tractor upon which he had been standing.

The parties’ testimony with respect to the factors causing plaintiff to fall under the truck’s wheels was controverted and need not be fully summarized here. In sum, plaintiff’s version was that the towed truck began to run and then came to a stop. Believing that the truck was not going to move, he began to dismount at which moment the truck unexpectedly jerked, causing him to fall under its rear wheels. Green testified that as the towed truck’s engine began to “kick over,” both vehicles came to rest and did not move again. By that time, plaintiff was on the ground. Tunstall and Green both denied that Tunstall participated in the maneuver as signalman. Hardin did not testify.

Both Lowery Trucking, owner of the towed vehicle, and plaintiff, owner of the towing vehicle, had entered into contractual relationships with Midwest Emery whereby each leased their respective trucks, with drivers, to Midwest under similar lease agreements. Under the terms of plaintiff’s lease agreement, entitled “Equipment Contract,” plaintiff leased a specified tractor to Midwest Emery for a period of not less than one year. The lease could be terminated at Midwest Emery’s option by giving 30 days’ notice to plaintiff. Plaintiff was to pay all operating and maintenance expenses of the tractor, agreed to comply with all applicable safety regulations, and was to be paid a certain percentage of the revenue derived from the operation of the tractor. Midwest Emery agreed to pay plaintiff’s social security taxes and unemployment taxes and to pay directly to plaintiff’s driver his wages. In the event that plaintiff and driver were one and the same, payment of rental and wage was to be by mutual agreement of the parties. A driver was to be provided by plaintiff who was to be his “employee.”

The lease also contained a clause providing that Midwest Emery was “to retain exclusive possession, control and use of said vehicles for the duration of this contract, within the meaning of, and only for the purpose of, compliance with the ruling of the Interstate Commerce Commission.” Midwest Emery further reserved “the right to control the manner, means and detail of and by which the Contractor [plaintiff] *** performs his services as well as the ends to be accomplished ***.” Finally, an additional clause provided:

“It is the intent of the parties that the contract [sic] have the legal rights and legal liabilities which accrue to any independent Contractor, except insofar as the specific provisions of this contract conflict with such status, and further excepting any condition brought about directly by compliance with the law, rules or regulations of any governmental bodies having jurisdiction.”

At the close of the evidence, plaintiff moved to strike and dismiss defendants’ affirmative defenses which alleged that plaintiffs’ negligence action was barred by the Workers’ Compensation Act. It was the defendants’ position that the action was barred because Midwest Emery was plaintiff’s employer and because Green and Tunstall were his fellow servants and co-employees. Plaintiff, referring to the lease agreement, argued that the uncontroverted evidence established that plaintiff was an independent contractor and not an employee or fellow employee vis-a-vis defendants. The trial court, relying primarily on the lack of evidence to support a contrary finding, ruled, as a matter of law, that no employer-employee or fellow employee status was established. Accordingly, the motion striking defendants’ affirmative defenses was granted.

Opinion

Defendants contend that the trial court erred in striking its affirmative defenses because the lease agreements demonstrated as a matter of fact, if not alternatively as a matter of law, that plaintiff was the employee of Midwest Emery rather than an independent contractor and that defendants Green and Tunstall were, in turn, his fellow employees and therefore immune from his common law tort action under the Workers’ Compensation Act. (See Ill. Rev. Stat. 1981, ch. 48, par. 138.5.) Alternatively, defendants contend that the order striking the affirmative defenses was error because plaintiff’s activities fit within the coverage of the Act under the “loaned fellow servant” doctrine. See, e.g., Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 385 N.E.2d 664.

Generally, the question of whether either an employer and employee or a loaned employee relationship exists is a question of fact for the jury, especially where the evidence is conflicting or more than one inference can be drawn from the evidence. (Mosely v. Northwestern Steel & Wire Co. (1979), 76 Ill. App. 3d 710, 394 N.E.2d 1230; Gunterberg v. B & M Transportation Co. (1975), 27 Ill. App. 3d 732, 327 N.E.2d 528; Morgan Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 92, 324 N.E.2d 425.) However, it is settled that where a written contract is claimed to have established the relationship and it is the only factual basis for the claim, and only one inference may reasonably be drawn therefrom, the question becomes one of law. (Gunterberg; Hartley v. Red Ball Transit Co. (1931), 344 Ill. 534, 176 N.E. 751.) The circumstances here make it necessary to determine the relationship of the parties as a matter of law.

It is plaintiff’s position that under the instant equipment lease he was an independent contractor, as a matter of law. In support of his position, he selectively paraphrases a portion of the contract clause which states that the intent of the parties was that plaintiff, as equipment lessor, was to be an independent contractor. An examination of the relevant clause which is set forth in its entirety above, however, discloses that the parties also agreed that no independent contractor status was so intended where either (1) such status was in conflict with other provisions of the agreement, or (2) where “any condition brought about directly by compliance with the law, rules or regulations of any governmental bodies having jurisdiction” excepted such status. Thus, this clause alone is inconclusive as to whether the status of independent contractor exists for all purposes. Moreover, although the intention of the parties must be considered in order to determine whether the employer-employee or independent contractor relationship exists (see Manaban v. Daily News-Tribune (1977), 50 Ill. App. 3d 9, 365 N.E.2d 1045), it is well established that no single factor is determinative on this issue. (See, e.g., Jones v. Atteberry (1979), 77 Ill. App. 3d 463, 396 N.E .2d 104.) The “classic and principal test” to be applied, as noted in the Gunterberg case, is whether the claimed employee has the right to control the manner and method in which his work is carried out, independent of the employer’s control. (27 Ill. App. 3d 732, 738, 327 N.E.2d 528, 533.) And it is the right of control, not the fact of control, that is the principal distinguishing factor. (Gunterberg; see O’Brien v. Industrial Com. (1971), 48 Ill. 2d 304, 269 N.E.2d 471.) In addition to the right to control, other indicia to be considered are the amount of supervision and control, the method of making payment, the right to discharge, the skills required, the source of the materials and tools and the work schedule. See generally Kirkwood v. Industrial Com. (1981), 84 Ill. 2d 14, 416 N.E.2d 1078.

The instant lease, when considered in its totality, particularly those provisions reserving to Midwest Emery “exclusive possession, control and use” of the leased vehicles and the “right to control the manner, means and detail” of plaintiff’s performance of services, clearly establishes an unqualified right in defendant Midwest Emery to control the manner and method of plaintiff’s work. (Emphasis added.) (See Gunterberg.) Moreover, Midwest Emery’s unilateral right to discharge plaintiff upon 30 days’ written notice further evidences its control over plaintiff’s work. (See Gunterberg.) In addition, the lease agreement required Midwest Emery to pay plaintiff’s wages, social security taxes and unemployment taxes and further entitled plaintiff to certain “seniority rights” under any existing union contract. Consequently, from the terms of the lease agreement, we conclude that the relationship established, as a matter of law, was that of employer and employee (Gunterberg; Hartford Accident & Indemnity Co. v. Major (1967), 81 Ill. App. 2d 251, 226 N.E.2d 74) and, therefore, that the trial court’s order striking the affirmative defenses based on the workers’ compensation statute was error.

We note that several court decisions have held, under differing circumstances, that the amount of control required in order to conform the motor vehicle lease agreements to I.C.C. rules and regulations (see 49 U.S.C. sec. 304(e) (1978); 49 C.F.R. sec. 1057.4(a)(4) (1978)), necessarily requires that the lessee assume responsibility “as if the lessee owned the vehicle and employed the drivers.” (Emphasis added.) (Hershberger v. Home Transport Co. (1982), 103 Ill. App. 3d 348, 351, 431 N.E.2d 72, 74; see also Schedler v. Rowley Interstate Transportation Co. (1976), 37 Ill. App. 3d 433, 439, 346 N.E.2d 75, 79 (Dixon, J., dissenting); White v. Excalibur Insurance Co. (5th Cir. 1979), 599 F.2d 50; but see Riddle v. Trans-Cold Express, Inc. (S.D. Ill. 1982), 530 F; Supp. 186, 189 n.5, which opined that any employee status resulting solely from the statutory requirements is a fiction which exists only to insure the lessee’s responsibility to shippers and members of the general public and not to create an employment relationship for workers’ compensation programs.) Our conclusion, however, is independent of these decisions as it rests upon our reading of the terms of the instant lease agreement which we find establishes plaintiff’s employee status for purposes of the Workers’ Compensation Act as a mater of law.

A common law action by an employee against a negligent employer or co-employee is barred if the injuries were accidental and arose out of and in the course of the employment. (Ill. Rev. Stat. 1979, ch. 48, pars. 138.2, 138.5(a); Brooks v. Carter (1981), 102 Ill. App. 3d 635, 430 N.E.2d 566.) The words “arising out of” refer to the origin or cause of the accident and presuppose a causal connection between the employment and the accidental injury; that is, the injury must have had its origins in some risk incidental to the employment. (Chmelik v. Vana (1964), 31 Ill. 2d 272, 201 N.E.2d 434.) The words “in the course of employment” relate to the time, place and circumstances under which the accident took place. (Eagle Discount Supermarket v. Industrial Com. (1980), 82 Ill. 2d 331, 412 N.E.2d 492.) An accidental injury is received in the course of employment when it occurs within the period of employment at the place where the employee may reasonably be in the performance of his duties and while he is fulfilling those duties or engaged in something incidental thereto. (Eagle Discount Supermarket; Chmelik; Brooks.) For the Workers’ Compensation Act to apply both of these elements must be shown to exist. (Fire King Oil Co. v. Industrial Com. (1976), 62 Ill. 2d 293, 342 N.E.2d 1; Stemm v. Rupel (1975), 30 Ill. App. 3d 864, 332 N.E.2d 686, appeal after remand (1979), 68 Ill. App. 3d 211, 385 N.E.2d 1112.) An employer is required to plead and prove, as an affirmative defense, that an action is barred under the Workers’ Compensation Act. Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75, 427 N.E.2d 829.

Although we conclude that the terms of the instant lease agreement establish plaintiff’s “employee” status, it is not conclusive as to plaintiff’s status at the time of the accident for purposes of establishing the affirmative defense under the Workers’ Compensation Act. (See, e.g., Hindle v. Dillbeck (1971), 1 Ill. App. 3d 1021, 274 N.E.2d 594, appeal after remand (1977), 68 Ill. 2d 309, 370 N.E.2d 165.) Since material questions of fact remain under the affirmative defense, namely, whether the plaintiff’s injury was one arising out of, and in the course of, his employment, we cannot rule as a matter of law, that plaintiff’s exclusive remedy for his accidental injury was under the Workers’ Compensation Act. Accordingly, the case must be remanded for a new trial at which defendants may raise the Workers’ Compensation Act as an affirmative defense. By this opinion, however, we intend and express no opinion on the merits of such an affirmative defense raised under the instant facts.

For the foregoing reasons, we reverse the judgment of the circuit curt and remand the cause for further proceedings not inconsistet with this opinion.

Reversed and remanded.

WILSON, RJ., and LORENZ, J., concur.

SUPPLEMENTAL OPINION

PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendants filed a petition for reconsideration or rehearing with respect to certain portions of the modified opinion of this court delivered on December 16, 1983, on denial of plaintiffs’ petition and amendment to petition for rehearing. In order to give full consideration to the points raised by defendants, plaintiffs were requested to file an answer thereto, and defendants were allowed to file a reply.

Defendants’ principal contention is that this court erred in holding that triable issues of fact remain and that these questions are best decided by the trial court. Defendants contend that whether plaintiff’s injuries arose out of and were incurred “in the course of” his employment are questions which should be decided as matters of law in favor of defendants. We cannot agree. Initially, we note that the interests of orderly judicial determination dictate that these questions, which were preempted by the trial court’s ruling striking the affirmative defenses, be presented to the trial court for consideration in the first instance. See generally Carillo v. Jam Productions, Ltd. (1983), 97 Ill. 2d 371, 376, 454 N.E.2d 649.

Moreover, none of the cases which defendants have cited in their petition for rehearing dictate a contrary result. Indeed, defendants’ original brief in this appeal recognized that whether the Workers’ Compensation Act applies in cases such as this is essentially a question of fact for the jury under all the circumstances. The cases on which defendants now rely are distinguishable from the instant case and hence do not control the result. In Chmelik v. Vana (1964), 31 Ill. 2d 272, 201 N.E.2d 434, the plaintiff was injured on the parking lot of his place of employment immediately following his working hours. The supreme court held that the accident occurred in the course of and arose out of the plaintiff’s employment because it occurred on the premises of the employer within a reasonable time before or after work. In the instant case a factual question exists as to whether plaintiff was “at work” for defendant Midwest Emery at the time of the accident. Similarly, in Material Service Corp. v. Industrial Com. (1973), 53 Ill. 2d 429, 292 N.E.2d 367, the supreme court concluded that the icy condition of the employer’s parking lot was a contributing cause of the plaintiff’s death and that plaintiff, who was killed during working hours, was accordingly within the provisions of the Workers’ Compensation Act. As indicated above, whether plaintiff was injured while at work for Midwest Emery or during a “reasonable” time before or after is a question of fact. In addition, defendants have not suggested that any condition of the parking lot in the instant case was a contributing cause of plaintiff’s injuries. In Brooks v. Carter (1981), 102 Ill. App. 3d 635, 430 N.E.2d 566, the plaintiff brought a common law action against his co-employee for injuries sustained in a motor vehicle accident on the employer’s parking lot between work shifts. In that case, as in Chmelik and Material Service Corp., the plaintiff was on the employer’s premises during or within a short time of working hours. In the instant case, whether plaintiff was “at work” for Midwest Emery or for his own benefit or for that of some third party is the subject of conflicting evidence from which competing inferences may be drawn. Accordingly, we find it appropriate to remand this cause to the trial court.

Defendants have also urged that we address the contention raised in their original brief that abandonment of the common law doctrine of contributory negligence as a complete defense violates defendants’ rights to equal protection of the law. There can be little, if any, justifiable reliance on the maintenance of the status quo in the law of torts (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 26,163 N.E.2d 89.) The United States Supreme Court has held that the abolition by statute of the defenses of contributory negligence and assumption of the risk does not violate the principles of “equal protection of the laws.” (Arizona Copper Co. v. Hammer (1919), 250 U.S. 400, 423, 63 L. Ed. 1058, 1068, 39 S. Ct. 553, 557.) We see no reason to distinguish between judicial abrogation of these doctrines and legislative abolishment thereof.

For the foregoing reasons, defendants’ petition for reconsideration of rehearing is denied.

LORENZ and WILSON, JJ., concur.