author: JUSTICE KARNS

text:
    STEPHEN LAKIN, Plaintiff-Appellee, v. M. E. GORRIS, Chief of Police of Wood River, et al., Defendants-Appellants.
    Fifth District
    No. 82-249
    Opinion filed April 5, 1983.

      James E. Schrempf, of Alton, for appellant M.E. Gorris.
    Robert F. Quinn, of Wood River, for appellant Board of Fire & Police Commissioners of Wood River.
    Thomas F. McGuire, of Long Grove, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Defendants, M. E. Gorris, chief of police of Wood River, and the Board of Fire and Police Commissioners of Wood River, appeal from the judgment of the circuit court of Madison County reversing the board’s decision to affirm the three-day suspension of the plaintiff, Stephen Lakin, imposed by Gorris.

On July 26, 1980, plaintiff was suspended for three days by Gorris for violation of police department Rule 5 — 1.08 defining conduct constituting neglect of duty. Plaintiff appealed the suspension to the board. Hearings were held by the board on August 20, September 3 and September 4, 1980. On September 9, 1980, the board found that the evidence supported the three-day suspension. On administrative review of the decision, the circuit court of Madison County reversed, finding that although the factual findings were not contrary to the manifest weight of the evidence, the conduct did not evidence a substantial shortcoming that would justify a three-day suspension.

Defendants raise three issues on appeal. One, whether the trial court’s review of an administrative board’s determination upholding a police chiefs three-day suspension against an officer for neglect of duty is constitutionally permissible. Two, whether on administrative review the trial court erred by applying an incorrect legal standard in reviewing an administrative board’s decision upholding a three-day suspension. Three, whether the Board’s decision upholding the police chief’s imposition of a three-day suspension of plaintiff is arbitrary, unreasonable and unrelated to the requirements of the service where the findings of fact made by the board are not in dispute.

Before addressing the issues raised by defendants on appeal, it is necessary to address plaintiff’s argument concerning the findings made by the board.

In the board’s findings, facts concerning an incident that occurred on July 10, 1980, were included, but the formal charges made by Gorris related only to a July 23, 1980, incident. Plaintiff argues that such inclusion without formal charges impairs his statutory and constitutional rights.

It is true that the plaintiff was not formally charged with the July 10, 1980, incident. It is also true that findings relating to July 10, 1980, were included in the board’s decision. We find any error because of this inclusion to be harmless. Therefore, we will consider' the suspension as relating only to the July 23, 1980, incident and will review the record accordingly.

Lakin was charged, and the evidence establishes, that on July 23, while on duty, plaintiff parked his patrol car at a remote area of the city dump, known as the “Burn Lot.” Plaintiff got out of his car to urinate and then sat in the car for three to four minutes to contemplate some personal problems. Plaintiff’s commander, who observed plaintiff as he sat in the parked car, noticed that plaintiff’s head was laid back against the headrest and that his eyes were half-closed and his mouth open. The commander testified that plaintiff appeared to be asleep. Rule 5 — 1.08 of the rules and regulations of the board proscribes conduct that constitutes neglect of duty and defines “sleeping, loafing or being idle” as such conduct.

The first issue raised by defendants on appeal is that the trial court’s review of the three-day suspension is “unconstitutional.” In essence the defendant’s contention is that once a trial court on administrative review applies the manifest weight of the evidence test and finds that the administrative agency’s findings of fact were not contrary to the manifest weight of the evidence, that court cannot then review the agency’s decision pertaining to cause to suspend for three days without unconstitutionally intruding upon the function of the agency.

It is true that a court on administrative review must first determine whether or not the agency’s findings of fact are contrary to the manifest weight of the evidence. (See, e.g., Hale v. Hellstrom (1981), 101 Ill. App. 3d 1127, 428 N.E.2d 1197; Kreiser v. Police Board (1976), 40 Ill. App. 3d 436, 352 N.E.2d 389, aff’d (1977), 69 Ill. 2d 27, 370 N.E.2d 511.) We agree with the circuit court’s determination that the findings of the board are not contrary to the manifest weight of the evidence. However, defendants raise a question as to the propriety of the circuit court’s review of the board’s decision that cause to suspend existed.

Defendants argue that the trial court on administrative review should approach the question of cause to suspend for three days as a question of fact. Thus, if the findings of fact relied upon by the board in sustaining the suspension are not contrary to the manifest weight of the evidence, the trial court on administrative review cannot substitute its judgment for that of the board on the question of cause to suspend. Additionally, defendants argue that the legislative intent apparent in the applicable statutory provision, when read together with pertinent case law, requires that a trial court on administrative review use only the manifest weight of the evidence test when reviewing a suspension of five days or less.

Plaintiff argues that the applicable statutory provision requires the question of cause in all cases to be a question of law and therefore reviewable. Plaintiff also argues that the judicial application and interpretation of the statute establishes that the question of cause to suspend is reviewable by a trial court on administrative review.

We conclude that this issue does not raise a question of constitutionality, but rather is one of statutory construction. The applicable statutory provision of the Illinois Municipal Code (111. Rev. Stat. 1981, ch. 24, par. 10 — 2.1—17), provides in pertinent part:

“Except as hereinafter provided, no officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. *** The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time. In case an officer or member is found guilty, the board may discharge him, or may suspend him not exceeding 30 days without pay. The board may suspend any officer or member pending the hearing with or without pay, but not to exceed 30 days. If the Board of Fire and Police Commissioners determines that the charges are not sustained, the officer or member shall be reimbursed for all wages withheld, if any. * * *
* * *
The provisions of the ‘Administrative Review Act,’ approved May 8, 1945, and all amendments and modifications thereof, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the board of fire and police commissioners hereunder. The term ‘administrative decision’ is defined as in Section 1 of said ‘Administrative Review Act.’
Nothing in this section shall be construed to prevent the chief of the fire department or the chief of the police department from suspending without pay a member of his department for a period of not more than 5 days, but he shall notify the board in writing of such suspension. Any policeman or fireman so suspended may appeal to the board of fire and police commissioners for a review of the suspension within 24 hours after such suspension, and upon such appeal, the board may sustain the action of the chief of the department, may reverse it with instructions that the man receive his pay for the period involved, or may suspend the officer for an additional period of not more than thirty days or discharge him, depending upon the facts presented.”

We read the statute to permit, within the guidelines of the Administrative Review Act, judicial review of an agency’s decision as to cause to suspend or discharge. We do not interpret the last paragraph of the statute to affect in any way the reviewability of the question of cause. It appears that the last paragraph was added in order to allow a chief of fire or police to suspend an officer for up to five days without authorization from the board of fire and police commissioners. However, the same review procedures are available in a five-day suspension case that are available in a discharge case. The Illinois Supreme Court decision in Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885, did not consider the power of the circuit court on administrative review to consider the question of cause to suspend. The court did make it clear that deference will be given by the court to the decision of the administrative agency, but it implicitly decided that review of an agency’s decision as to cause can be reviewed in all cases. 85 Ill. 2d 547, 551, 426 N.E.2d 885, 887.

Therefore, we hold that the statute authorized the circuit court’s review of the question of cause to suspend.

Defendants next contend that the circuit court erred by applying an incorrect legal standard when reviewing the decision of the board. Defendants contend that the application, by the circuit court, of the “substantial shortcoming” test to the question of cause to suspend is error.

Defendants argue that the “substantial shortcoming” test is the appropriate legal standard used by the court to define cause for discharge and that its application should be limited to discharge cases. Defendants further argue that the seriousness of the violation or the kind of conduct involved in the case of a suspension for five days or less should not be the same as the conduct involved in a discharge case. Finally, defendants argue that the court in Department of Mental Health pronounced the appropriate test to be applied to an administrative agency’s decision in cases involving suspension for five days or less.

Plaintiff argues that this court’s decision in Zinser v. Board of Fire & Police Commissioners (1961), 28 Ill. App. 2d 435, 172 N.E.2d 33, is controlling on this issue and therefore, that the “substantial shortcoming” test is the proper standard in a suspension case.

“Substantial shortcoming” as defined by the courts in Illinois is that “which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.” (See, e.g., Jenkins v. Universities Civil Service Merit Board (1982), 106 Ill. App. 3d 215, 221, 435 N.E.2d 804; Kreiser v. Police Board (1976), 40 Ill. App. 3d 436, 352 N.E.2d 389, aff’d (1977), 69 Ill. 2d 27, 370 N.E.2d 389.) We agree with defendants that the application of this test should be limited to discharge cases and is not useful in determining whether a suspension was appropriate under the facts.

In Department of Mental Health, the Illinois Supreme Court stated:

“We agree with the appellate court decisions finding that the question of whether cause for discharge exists should be determined by the administrative agency. We therefore hold that the agency’s decision as to cause will not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of service.” (85 Ill. 2d 547, 552, 426 N.E.2d 885, 887.)

Deference is to be given to the administrative agency’s determination of cause to discharge while providing for limited judicial review of that decision. This deferential policy must extend into the suspension context. Therefore, we hold that the circuit court on administrative review erred by applying the “substantial shortcoming” test to the question of cause to suspend for three days. Further, we hold that the proper standard in reviewing cause to suspend for five days or less is the “arbitrary, unreasonable or unrelated to the requirements of the service” test announced in Department of Public Health.

Our decision is not inconsistent with our opinion in Zinser. There we held that by disobeying a proper order, a group of firemen were properly suspended for 10 days. By applying the rule in Zinser to the facts of the present case, a three-day suspension was warranted for the misconduct of the plaintiff. However, in light of the pronouncement made by the Illinois Supreme Court in Department of Mental Health, we feel that it is best to articulate the proper standard of review in accordance with that case.

The final issue raised by defendants is whether the board’s decision upholding the police chief’s imposition of a three-day suspension against plaintiff is arbitrary, unreasonable or unrelated to the requirements of the service where the findings of fact are not in dispute.

Defendants argue that plaintiff’s actions on July 23, 1980, were intentional and in violation of the “neglect of duty” provision of the police department rules and regulations. Additionally, defendants argue that the intentional misconduct of plaintiff was sufficiently related to the requirements of the service to sustain a three-day suspension.

Plaintiff argues that any neglect or idleness that took place on July 23, 1980, lasted for such a short period of time that no serious impairment to the function of the department occurred.

As we have stated above, we believe that the “arbitrary, unreasonable or unrelated to the requirements of service” standard set forth in Department of Mental Health is applicable to an administrative agency’s decision to suspend for five days or less. The board found that cause to suspend for three days existed because of plaintiff’s actions on July 23, 1980. From our review of the record, we cannot say that the board’s decision upholding the imposition of a three-day suspension against plaintiff was arbitrary, unreasonable or unrelated to the requirements of service.

For the above stated reasons, the judgment of the circuit court of Madison County is reversed and the order of the defendant board is reinstated.

Reversed.

HARRISON, P.J., and WELCH, J., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL HUDSON, Defendant-Appellant.
    Fifth District
    No. 81—386
    Opinion filed March 21, 1983.
    Randy E. Blue and Kent Bartholomew Mann, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Stephen E. Norris and Karen L. Stallman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Following a jury trial in the circuit court of Madison County, the defendant was convicted of home invasion and armed robbery. He was sentenced to 12 years’ imprisonment on each count, the sentences to run concurrently. From this judgment, the defendant appeals, and argues (1) that the evidence introduced at trial was insufficient to prove that he entered the dwelling place of another without permission, and (2) that he was denied a fair trial when the prosecutor asked several witnesses about an unrelated shooting incident involving the defendant.

The State’s evidence consisted primarily of the testimony of Carl Levering. On October 1, 1980, he was alone at his Glen Carbon home when he heard someone at the door. Upon opening it, he saw the defendant, whom he recognized because the defendant had been at Levering’s house with Levering’s friend Kevin Sanders two days previously. The defendant asked Levering if he had seen Kevin Sanders recently, and then asked him if he could come inside to discuss purchasing marijuana. Levering invited the defendant into his house.

Once both men were inside, Levering told the defendant that, even though he had shared marijuana with Sanders, the defendant and others two days before, he did not sell marijuana. This conversation took place just inside Levering’s front door, and lasted for about a minute. After that time, Levering recalled, Linroy Sanford entered the house and asked Levering if he could go into the kitchen. Levering acquiesced, and watched Sanford walking around in the kitchen, presumably to get a drink of water. Levering recognized Sanford because he too had been at his house with the defendant and Kevin Sanders.

About 10 seconds after Sanford entered his house, Levering saw a third man approach the front door. He had not seen this man before, but later identified him as John Hardy. Hardy stepped inside and suggested to the defendant that it was time for them to leave. Levering turned around to look at Hardy and discovered that Hardy was pointing a gun at him. He glanced back at the defendant and observed that he also held a gun. The men informed him that they intended to hold him up.

Hardy and the defendant frisked Levering and then ordered him into his bedroom and told him to lie down on the bed. While two of the men searched his house for valuables, the third man, whom he could not see, kept watch on him. At one point, Levering was informed that he would be killed if he did not cooperate, and someone hit him on the head with a pistol or rifle. After several minutes, the defendant led Levering back into the living room, where he was bound with a telephone cord and left with a stocking stuffed in his mouth. Levering eventually freed himself and called the police.

At trial, the defendant did not deny having been at Levering’s home on October 1, 1980, with Sanford and Hardy, or two days previously with Kevin Sanders, Sanford and others. He contended, though, that on the first visit to the Levering residence he purchased marijuana from him, and, after smoking it later, he discovered that it was “bad.” On October 1, he went to Levering’s house with Sanford and Hardy to get his money back. The defendant testified that he told Levering that he wanted a refund, although he would accept more marijuana, if it was of better quality than the earlier batch. When Levering brought him some marijuana from another room, he handed it to the defendant, who refused to pay him and then left. According to the defendant, Levering did not chase him or attempt to strike or shoot at him, but only replied that he would “get” the defendant. The defendant stated that he and Sanford were inside Levering’s house, but John Hardy remained in the car. Hardy also testified to that effect.

In rebuttal, the State called Glen Carbon Police Chief Bill Moore and Robert Marlin of Police-Community Relations, Inc., both of whom were present at defendant’s extradition hearing in Omaha, Nebraska. Moore and Marlin testified that, at that hearing, the defendant had stated under oath that he was not in Illinois on the date of the offense. The State also called Linroy Sanford as a rebuttal witness. He stated that on October 1, 1980, he and the defendant walked up to Levering’s house while Hardy waited in the car. According to Sanford, the defendant and Levering were talking, and then arguing, about marijuana when the defendant pulled a pistol on Levering. Sanford claimed that he was surprised by this, and he fled from the house and waited outside with John Hardy for 10 or 15 minutes while the defendant and Levering could be seen moving from room to room. The defendant emerged from the house with a trash bag filled with marijuana and a shotgun. Sanford stated that, during the ride home, the defendant gave him Carl Levering’s high school graduation ring. When Sanford was arrested in the early morning hours of October 2, that ring was found in his possession.

At his first assignment of error, the defendant does not challenge the jury’s assessment of the credibility of the witnesses. Instead, he insists that the State’s evidence was insufficient to prove him guilty of home invasion. He notes that the four occurrence witnesses agreed that Levering let him into the house, while the home-invasion statute explicitly requires that the entry of a dwelling place be “without authority.” (111. Rev. Stat. 1981, ch. 38, par. 12 — 11(a).) We observe that no accountability instructions were given at trial and thus it cannot be claimed that if John Hardy’s entry of Levering’s house was made without permission, then the defendant is accountable for that entry.

The People respond that the defendant has waived the issue of the alleged failure of proof of his guilt beyond a reasonable doubt because the defendant did not file a post-trial motion. (People v. Thiel (1981), 102 Ill. App. 3d 28, 429 N.E.2d 565.) But even upon consideration of this argument, we find the State’s evidence sufficient to sustain the defendant’s conviction of home invasion.

In People v. Fisher (1980), 83 Ill. App. 3d 619, 404 N.E.2d 859, defendant Fisher phoned Harris, an acquaintance of his, offered to give Harris a ride to a party that evening and told him that he would stop by Harris’ apartment with some friends later that evening. About an hour later, Fisher arrived at the apartment with codefendant Hawkins, whom he introduced to Harris as “Sonny” and another person, who was introduced as “Mack.” Harris invited the three inside to join him and his roommate, Dawkins, for some wine in the living room. At one point, Hawkins used the washroom at the apartment, and, another time, Dawkins observed Fisher return to the living room from the apartment’s dining room. Harris and Dawkins testified that after the guests had been at the apartment for 15 or 20 minutes, “Mack” and Hawkins pulled guns on them. Fisher bound and gagged them and items were taken from their persons and their apartment. At trial, Fisher and Hawkins claimed that Fisher had called Harris to purchase marijuana from him, and that, after they arrived at the apartment, “Mack” sampled some of the marijuana, found it to be of inferior quality and then they left.

On this evidence, Fisher and Hawkins were convicted of burglary. One of their contentions on appeal was that the State’s evidence did not show that they entered the apartment without authority. The court rejected this argument, stating that the authorization given by Harris and Dawkins to enter the apartment was limited to the purpose of a social visit, and, once that authority was exceeded when the three men pulled weapons on them, bound and gagged them and took their property, the consent for the entry was vitiated. It was recognized that this so-called “limited authority” doctrine had previously been applied in the reported decisions in Illinois only to the burglary of a building open to the public. However, the court found no reason to deny application of that rule to the burglary of a private residence.

Like the burglary statute (111. Rev. Stat. 1981, ch. 38, par. 19— 1(a)), the home invasion statute specifically requires that the entry of a building be “without authority.” Although, as the defendant argues, criminal statutes should be strictly construed in favor of the accused, it is also true that where the same words appear in different parts of the same statute, they will be given a consistent interpretation, absent legislative intent to the contrary. (People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171.) The defendant does not contend that the General Assembly intended the words “enters *** without authority” to take on a different meaning for home invasion than they do in a burglary prosecution, and we find no indication that such an inconsistent interpretation was desired.

Since we conclude that “without authority” should mean the same under the burglary and home invasion statutes, the result reached in Fisher is persuasive authority in this case. As in Fisher, the men in the case at bar came to the private residence of a social acquaintance, and were allowed to enter the residence through the invitation of an occupant. In both cases, the men did not exceed the authority granted them, at least for a time, but later did so when they drew weapons upon their hosts, then bound and gagged them and stole their property. If the entry in Fisher was “without authority” under the burglary statute, then the defendant’s entry of Carl Levering’s home must be deemed “without authority” under the home invasion statute as well. The State’s evidence was therefore sufficient to prove the defendant guilty of that offense beyond a reasonable doubt.

Finally, the defendant argues that two questions asked by the prosecution denied him a fair trial. In cross-examination of the defendant, the prosecutor asked whether the defendant and Linroy Sanford had been involved in a shooting incident the night of the offense. The defendant did not deny this, but stated that Sanford had shot at him. The prosecutor asked John Hardy if he had been “involved in any kind of dispute at all that night” with the defendant. Hardy denied any dispute. The defendant also referred to the incident in his cross-examination of Linroy Sanford, but Sanford also stated that the defendant had not shot at him.

The People correctly note that the defendant, acting pro se, did not object to the prosecution’s questions concerning this incident, nor, as discussed above, did the defendant file a post-trial motion. Thus, these questions will not constitute grounds for reversal unless they rise to the level of plain error. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233; People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227; People v. Hammond (1977), 48 Ill. App. 3d 707, 362 N.E.2d 1361.) We cannot say that plain error has occurred. In none of the answers to the objectionable questions was it in any way intimated that the defendant had shot at Linroy Sanford, or had done anything which could be considered an unrelated crime. In fact, defendant’s answer to the question put to him about the incident can only be seen as having benefited him, as it suggested that Sanford, who was called as a State’s witness in rebuttal, was responsible for the shooting incident. We find nothing to have prejudiced the defendant in that examination and therefore will not consider it as plain error.

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

Affirmed.

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


author: JUSTICE KARNS PRESIDING JUSTICE HARRISON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN ROBERTS, Defendant-Appellant.
    Fifth District
    No. 81—414
    Opinion filed March 22, 1983.
    HARRISON, P.J., dissenting.
    John B. Moores and Ray Tasell, Assistant Public Defenders, of Murphysboro, for appellant.
    John Clemmons, State’s Attorney, of Murphysboro (Martin N. Ashley and Frank J. Bieszczat, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Defendant, John Roberts, appeals from a judgment of conviction entered after a bench trial in the circuit court of Jackson County. The defendant was found guilty of the offense of reckless driving in violation of section 11 — 503 of the Illinois Vehicle Code (111. Rev. Stat. 1981, ch. 951/2, par. 11 — 503). He was fined $100 plus the costs of the proceeding.

The sole issue on appeal is whether the Illinois Uniform Traffic Ticket and Complaint, the charging instrument, was insufficient because it failed to inform the defendant of the nature and elements of the offense of reckless driving.

The facts are not in dispute. On March 27, 1981, the defendant was issued a traffic ticket for reckless driving. The Illinois Uniform Traffic Ticket and Complaint provided for in Supreme Court Rule 552 (73 Ill. 2d R. 552) is a preprinted form which provides a small amount of space for describing the nature and elements of the offense charged. Officer Donald Hawk of the Southern Illinois University Police Department, who charged defendant, wrote on the face of the ticket that defendant had committed the offense of “Reckless Driving” and cited section 11 — 503 of the Illinois Vehicle Code. By checking the boxes in the lower portion of the ticket, the officer noted that there was cross, oncoming and pedestrian traffic present, that the highway type was two and four lanes and that it was a school area. None of the boxes describing the nature of the violation were checked, and there was no description of the alleged act of reckless driving provided by the officer.

At trial, at the close of the State’s case, the defendant moved for dismissal challenging the sufficiency of the complaint. The motion was denied. Defendant was found guilty and fined. Defendant subsequently filed a motion in arrest of judgment which was denied.

The defendant contends that the complaint upon which he was tried and convicted violated his constitutional right to be informed of the nature and elements of the offense charged. (111. Const. 1970, art. I, sec. 8; U.S. Const., amend. VI.) The defendant also asserts that the complaint failed to meet the requirements of section 111 — 3(a) of the Code of Criminal Procedure (111. Rev. Stat. 1981, ch. 38, par. 111 — 3).

Section 111 — 3 reads as follows:

“a) A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.”

The ticket issued to the defendant failed to comply with section 111 — 3(a)(3).

In People v. Griffin (1967), 36 Ill. 2d 430, 223 N.E.2d 158, the supreme court recognized that the offense of reckless driving was vague and could be committed by a multitude of acts. In Griffin, defendant was charged with the offense of reckless driving by driving his automobile “with a willful and wanton disregard for the safety of persons or property,” the language of the statute as it then existed. (111. Rev. Stat. 1965, ch. 951/2, par. 145.) In Griffin the supreme court reversed defendant’s conviction and said:

“People v. Green [(1938), 368 Ill. 242, 13 N.E.2d 278], avoided these uncertainties in all instances by requiring that the charge of reckless driving state the ‘nature and elements’ of the offense, in the sense of the particular acts relied upon. This requirement is not burdensome, for the prosecution must know the specific acts it proposes to prove, and an otherwise serious double jeopardy question is avoided.” 36 Ill. 2d 430, 434, 223 N.E.2d 158, 160.

When a defendant is charged with reckless driving, he must be advised of the particular act that comprised the offense.

In People v. Chitwood (1976), 42 Ill. App. 3d 680, 356 N.E.2d 592, rev’d on other grounds (1977), 67 Ill. 2d 443, 367 N.E.2d 1331, we said that:

“The United States and Illinois constitutions both afford a criminal defendant the right to be informed of the nature and cause of the accusation against him. (U.S. Const., amend. VI; 111. Const, art. I, sec. 8). The purpose of this guarantee is to allow defendant to prepare his defense and to plead a subsequent judgment as a bar to future prosecutions arising out of the same conduct.” 42 Ill. App. 3d 680, 681, 356 N.E.2d 592, 594-95.

In Chitwood, the defendant was tried and convicted of reckless driving. There was issued an Illinois Uniform Traffic Ticket and Complaint which charged him with reckless driving in violation of section 11 — 503 of the Illinois Vehicle Code and stated the time and location of the offense. The facts of Chitwood are strikingly similar to the case at bar with one important exception. In Chitwood, the defendant attacked the sufficiency of the complaint for the first time on appeal. We stated that “if the defendant had raised this defect in the trial court, reversal of his conviction would now be required.” 42 Ill. App. 3d 680, 682, 356 N.E.2d 592, 595.

In the case at bar, the defendant did attack the sufficiency of the complaint at trial. We find no requirement in the reported cases that he challenge the sufficiency of the complaint prior to trial or that he request a bill of particulars. He filed a motion to dismiss at the close of the State’s case which was denied. The defendant also filed a motion in arrest of judgment. It, too, was denied. Based on the holdings in Griffin and Chitwood, we conclude that the complaint was not sufficient to inform the defendant of the offense of which he was accused. The complaint does not describe the particular act that may have made up the offense of reckless driving. The judgment of conviction must be reversed.

This does not mean that the Uniform Traffic Ticket and Complaint cannot be used to charge a person with reckless driving. However, the complaint must specify what particular act constituted the reckless driving. This is not an unreasonable requirement. In People v. Burch (1974), 19 Ill. App. 3d 360, 311 N.E.2d 410, the arresting officer specified, by filling in appropriate blanks and spaces on the ticket, that the defendant recklessly passed three cars on a two-lane highway with oncoming traffic. It was held that the complaint was sufficient because it specifically described the reckless conduct alleged to have been performed by the defendant.

The State contends that People v. Tammen (1968), 40 Ill. 2d 76, 237 N.E.2d 517, is controlling. In Tammen, the defendant was charged with the offense of drag racing, not with reckless driving. The Illinois Supreme Court held that the words “drag racing” and the citation to the proper statutory provisions of the Illinois Vehicle Code were sufficient to inform the defendant of the nature and elements of the offense charged.

The difference between the offense of drag racing and reckless driving was pointed out in People v. Brausam (1967), 83 Ill. App. 2d 354, 227 N.E.2d 533. In Brausam, the court noted that the Illinois Vehicle Code clearly defined drag racing. The court also stated that:

“The charge of ‘drag racing’ does not include the multitude of different acts which could leave the defendant uncertain as to the particular act which constituted the basis of the offense charged. Such offense is not susceptible of the uncertainty which might result from a charge of ‘reckless driving.’ ” 83 Ill. App. 2d 354, 365, 227 N.E .2d 533, 539.

We agree that the purpose of the Uniform Traffic Ticket and Complaint is to expedite the handling of traffic cases, quasi-criminal cases and misdemeanors. However, we do not believe that the judicial system will be overburdened by requiring an officer to describe on the ticket the particular act that constitutes the offense of reckless driving. Accordingly, the judgment of conviction of the circuit court of Jackson County is reversed.

Reversed.

KASSERMAN, J., concurs.

PRESIDING JUSTICE HARRISON,

dissenting:

I respectfully dissent.

It seems to me that the issue of appeal in this case has been decided adversely to the defendant by our supreme court in People v. Tammen (1968), 40 Ill. 2d 76, 237 N.E.2d 517. Implicit in the supreme court’s ruling in People v. Tammen is the determination that the right to request a bill of particulars affords adequate protection to the defendant. People v. Domovich (1980), 91 Ill. App. 3d 870, 414 N.E.2d 290.


author: JUSTICE JONES

text:
    DALE HOGA et al., Plaintiffs-Appellants, v. CHARLES CLARK et al., Defendants-Appellees.
    Fifth District
    No. 81—454
    Opinion filed March 28, 1983.

      Marvin W. Goldenhersh, of Goldenhersh & Goldenhersh, P.C., of Belleville (Marvin Barnes, of counsel), for appellants.
    No brief filed for appellees.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiffs, Dale and Irene Hoga, appeal from a judgment of the circuit court of Madison County finding them in “indirect civil contempt” of court and sentencing them to five and four months in jail respectively. Plaintiffs were found to have violated a previous order of the court enjoining them from interfering with the construction of a fence separating their property from that of defendants Charles and Beulah Clark. In this appeal plaintiffs contend (1) the trial court erred in denying their motion for change of venue based upon prejudice of the trial judge; (2) the evidence against them was insufficient to support the court’s finding of contempt; and (3) the punishment imposed by the trial court was inappropriate and not supported by the record.

Initially, we note that the defendants-appellees have not filed a brief in this court. We will, however, consider the merits on the appeal pursuant to the authority of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The proceedings giving rise to this appeal were commenced on June 12, 1980, when the plaintiffs filed a complaint for injunctive relief to prevent the defendants from encroaching upon their property. The parties own adjoining lots located in Langen Heights subdivision, Madison County, Illinois. The complaint alleged that the defendants had threatened to encroach upon the plaintiffs’ property by building a fence that would be partly on their lot. The defendants filed an answer to the complaint and a counterclaim in which they alleged that the plaintiffs had encroached upon the defendants’ property and had thwarted efforts to survey the premises by cutting lines and moving survey stakes and iron pipes left by the surveyors.

In an order entered October 30, 1980, the trial court noted that the issue of ownership and boundaries of the subject property had been settled by an order entered in a previous suit on November 7, 1977. The court ordered that the parties be bound by this previous determination of ownership and enjoined each of the parties from “harassing, bothering, interfering with, molesting, striking, or at any way contacting any of the opposite parties ***.” The court further stated that “each of the parties is enjoined from at any way encroaching upon the property of the other as described and allotted by [the November 1977 order] or from moving any survey stakes, iron pipes or other indicia of the boundaries of [the respective lots].” The court additionally stated that it would retain continuing jurisdiction of the parties and the subject matter of the suit.

On January 30, 1981, upon stipulation of the parties, the court ordered that the parties arrange to have the subject property surveyed so that permanent stakes could be placed at the lot corners to establish the boundaries of the respective lots. On April 7, 1981, the defendants filed a motion to enforce this order, alleging that the plaintiffs had refused to pay their portion of the survey costs. The court entered an order on April 20, 1981, directing the plaintiffs to pay for the survey, which was to be made within 30 days.

On July 28, 1981, an evidentiary hearing was held on the enforcement of the court’s order of October 30, 1980. The court found “that the plaintiffs Dale and Irene Hoga have wilfully refused to obey this court’s order and are in contempt of court.” The order of July 28, 1981, continued as follows:

“A. The defendants shall be unmolested by the plaintiffs during the erection of a fence along the property line dividing the parties’ property according to the court ordered survey.
B. The plaintiffs shall not trespass across lot 43 of the defendants’ property.
C. Defendants' contractor is permitted to remove any portion of plaintiffs’ fence which crosses defendants’ property for the purpose of erecting defendant’s fence.
D. The court reserves the issue of punishment for the plaintiffs’ contempt until further hearing of this court.
E. Plaintiffs are warned that any harassment of the defendants’ agents or of the defendants or any further violation of this court’s order will subject them to an immediate hearing on the issue of contempt.
F. Plaintiffs shall be responsible for any acts of their agents in violation of this order.”

The plaintiffs filed a motion to reconsider this order which was denied on July 30,1981.

On August 11, 1981, the defendants filed a petition for contempt citation in which they recited the provisions of the order of July 28, 1981, and stated:

“Contrary to said order, plaintiffs have repeatedly trespassed on defendants’ property since the entry of said order, have threatened defendants with firearms, have threatened and harassed defendants and defendants’ contractor building the fence with clubs, have uprooted one fence post and almost uprooted a second fence post, and continually along with other members of their family threatened defendants and voiced their total defiance and contempt of the court, the order of July 28, 1981, and Judge Hildebrand.”

In a later petition the defendants additionally alleged that, on August 27, 1981, the plaintiffs had destroyed a substantial portion of the defendants’ fence.

On August 31, 1981, the plaintiffs filed a motion for change of venue, alleging prejudice on the part of trial judge Thomas Hildebrand, who had entered the previous order in the case. The court denied this motion and the cause proceeded to trial on the defendants’ contempt petition.

At a hearing held on September 3, 1981, defendant Beulah Clark testified that following the court’s order of July 28, 1981, she and her husband contracted with B & L Fence Company to have a fence erected along their property line. During the building of that fence, plaintiff Irene Hoga was present every day harassing the contractors and threatening them with lawsuits. Plaintiffs’ son Robin Hoga cut the guide strings used by the contractors to lay the fence, but Irene Hoga was not present when the cutting was going on. Both the Ho-gas and the Clarks called the sheriff on several occasions when the things got “out of control” and the workers could not work. The Bogas also had the State Police come out to look over the court’s order when the contractors first began work on the fence.

During the construction of the fence a couple of fence posts disappeared, but Mrs. Clark did not see what happened to them. On the evening of August 27 after the fence was completed, Mrs. Clark was in her ceramics shop waiting on a customer when she heard the breaking of the fence. She ran out and saw Irene Hoga and her son Robin breaking the fence. Irene was using a lead pipe which she carried all the time. Dale Hoga was present and stated that the Clarks had stolen his waterline by putting the fence over it and that the Ho-gas were going to destroy the fence. Dale Hoga did nothing at the time, however, because the sheriff arrived and calmed things down. Another portion of the fence was later damaged, but Mrs. Clark did not see how that was done.

Mrs. Clark testified that since the court hearing on July 28, Dale and Irene Hoga had told both the Clarks and their contractors that Judge Hildebrand was “nothing” and that there was no way he could control the Hogas to keep them off the disputed property. In addition, both Dale and Irene Hoga had trespassed on the Clarks’ property every day.

On cross-examination Mrs. Clark stated that since the hearing on July 28, there had been no incidents between the parties involving firearms.

Defendant Charles Clark testified that after the contractors set the steel posts for the chain link fence, he saw Randy Hoga, the plaintiffs’ son, remove one of the posts, but he did not see Dale or Irene Hoga that evening. He did not observe any other damage being done to the fence and did not hear either of the Hogas comment on the court’s order of July 28.

The defendants’ son, Victor Clark, testified that he observed the Hogas, mainly Randy and Irene, harassing the workers who were building the fence. Dale Hoga was there on a couple of occasions. On the night of August 27, Robin Hoga tried to run him down in his car as he (Victor) was standing on the Clark’s parking lot. Victor then went inside to phone the police and heard the Hogas beating on the fence but did not observe them.

Randy Jett, an employee of Mrs. Clark, was present on the evening of August 27 and saw Irene Hoga jab at the fence with a club or iron pipe and damage the fence.

Plaintiff Irene Hoga testified on her own behalf that she did not believe the court’s order of July 28 was final because her attorney had told her he would go back into court to get another survey of the disputed property line. She denied having threatened or molested the workers constructing the fence and stated that she never encouraged her children to commit aggressive acts toward the Clarks. Mrs. Hoga stated that she had not knowingly trespassed on the Clarks’ property because it had never been established where the property line was.

It was Irene Hoga’s testimony that Victor Clark was responsible for damaging the fence on the night of August 27. Victor came onto the Hogas’ property that evening, and when Dale Hoga told him to leave, Victor threw a piece of sewer rock at him, injuring him on the side. The police were called and when they arrived, Victor was on the fence tearing it down. Mrs. Hoga stated that she wouldn’t touch the fence and was glad it was up.

Dale Hoga testified finally that he never encouraged any of his family to damage the fence and knew of no damage caused by any family member. He did not encourage anyone in his family to molest or harass the workers putting up the fence and had not personally trespassed upon the Clarks’ property.

At the conclusion of the testimony, the court found that “damage was done to the fence either by the Hogas or persons acting at their direction [and] that Mrs. and Mr. Hoga did deliberately [and with intent] intimidate and harass the persons constructing that fence.” The court further noted that, in its order of July 28, it had found the Ho-gas in contempt for moving the surveyors’ pins and cutting and moving their lines. The court then entered its written judgment as follows:

“The Court having heard the testimony of witnesses and arguments of counsel does hereby find Dale Hoga and Irene Hoga to be in indirect civil contempt based upon their actions in causing and allowing to be caused harassment and molestation of the persons constructing a fence pursuant to the July 28, 1981 Court Order and for damage done to the fence by them and by their agents and hereby sentences them as follows: For the contempt of Court resulting from their actions subsequent to July 28, 1981, and for their actions which resulted in a finding of contempt on July 28, the sentencing of which was deferred pursuant to paragraph (d) of the Court’s Order that date, the Court does hereby order that the Plaintiff Dale Hoga be committed to the custody of the Madison County Sheriff for a term of five months and that the Plaintiff Irene Hoga be committed to the custody of the Madison County Sheriff for a term of four months, mittimuses and commitments to issue instanter. ***”

The plaintiffs have appealed from this judgment, citing several contentions of error. Before we consider these issues, however, it is necessary to determine the nature of the contempt here involved. While the trial court expressly found that the plaintiffs were guilty of “indirect civil contempt,” we believe the plaintiffs’ acts may be more properly characterized as constituting indirect criminal contempt. The distinction between civil and criminal contempt, though exceedingly difficult to apply, is nevertheless important due to the procedural and substantive requirements which attach to each.

It is generally said that criminal contempt consists of acts tending to lessen the dignity or impede the process of the court, and such proceedings are instituted to vindicate the authority of the court. Civil contempt ordinarily consists of failing .to do something ordered by a court in a civil action for the benefit of the opposing litigant, and proceedings are instituted to compel or coerce obedience to the order or decree. (People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 173 N.E.2d 417; People v. Marcisz (1975), 32 Ill. App. 3d 467, 334 N.E.2d 737, modified, on other grounds (1976), 65 Ill. 2d 206, 357 N.E.2d 477.) Whereas imprisonment for civil contempt is coercive in nature and can generally be avoided by compliance with the court’s order, imprisonment for criminal contempt is imposed to punish for past contumacious conduct and usually consists of a definite term. (People v. Marcisz.) Contempt may be further classified as direct or indirect depending upon whether the contemptuous acts occur within or out of the presence of the court. Eden v. Eden (1975), 34 Ill. App. 3d 382, 340 N.E.2d 141.

In considering whether the plaintiffs’ contempt in the instant case was civil or criminal, then, we must determine whether, in the totality of the circumstances, the proceeding was coercive or punitive in nature. (People v. Marcisz; In re Marriage of Miller (1980), 88Ill. App. 3d 370, 410 N.E.2d 649.) While the contempt at issue arose out of the commission of acts prohibited by court order in a civil action, this alone does not render it civil in nature. (See Aurora Steel Products v. United Steelworkers (1981), 94 Ill. App. 3d 97, 418 N.E.2d 492.) Indeed, as the Marcisz court noted, “it is difficult to conceive how a consummated act of violating an expressly prohibitory injunction could be dealt with in a coercive manner.” (32 Ill. App. 3d 467, 473, 334 N.E.2d 737, 741.) In People v. Marcisz an estranged husband had been enjoined from going to his wife’s residence. Upon his second disobedience of the injunction, he was found to have been in criminal contempt. The court stated that although the husband’s imprisonment was undoubtedly of benefit to his wife, the opposing litigant, the contempt finding was based upon the husband’s wilful violation of the court’s order. In view of the nature of the husband’s conduct and the punishment imposed, the court found that he was guilty of criminal contempt. Cf. Aurora Steel Products v. United Steelwork ers, where a labor union’s actions in violation of a prohibitory injunction constituted criminal contempt; see also People ex rel. Illinois State Dental Society v. Taylor (1971), 131 Ill. App. 2d 492, 268 N.E.2d 463; American Cyanamid Co. v. Rogers (1974), 21 Ill. App. 3d 152, 314 N.E.2d 679.

In the instant case we find similarly that the nature of the plaintiffs’ conduct and the type of punishment imposed indicate that the plaintiffs’ contempt was criminal rather than civil. In finding the plaintiffs in contempt, the trial court specifically referred to the Ho-gas’ past actions in damaging the fence and intimidating and harassing the persons constructing the fence. Indeed, the court stated that such actions were deliberate and intentional, thus fulfilling the intent requirement of criminal contempt. (See People v. Edwards (1979), 69 Ill. App. 3d 626, 387 N.E.2d 969.) Further, the punishment imposed was for a definite term with no provision whereby the plaintiffs could purge themselves of contempt by complying with the court’s order. The disparity of the sentences themselves indicates a punitive purpose, and this is borne out by the trial court’s comment in sentencing the plaintiffs that “a less severe sentence may be in order [for Mrs. Hoga] but not by much.” We believe, therefore, that the circumstances surrounding the court’s finding of contempt belie its characterization of that contempt as civil and that the plaintiffs’ contempt was instead criminal in nature. Since the contemptuous acts were committed outside the presence of the court, the contempt may be further characterized as indirect.

Turning then to the plaintiffs’ contentions of error on appeal, we first consider whether, in light of the standards applicable to indirect criminal contempt proceedings, the trial court erred in denying the plaintiffs’ motion for change of venue based upon prejudice of trial judge. Although such proceedings are not strictly criminal in nature, a motion for substitution of judge in a case involving indirect criminal contempt is governed by section 114 — 5 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1979, ch. 38, par. 114 — 5) as well as by section 21a of “An Act to revise the law in relation to change of venue” (111. Rev. Stat. 1979, ch. 110, par. 552, now 111. Rev. Stat. 1981, ch. 110, par. 2 — 1001(m)). (People v. Wright (1974), 20 Ill. App. 3d 96, 312 N.E.2d 727; Payne v. Coates-Miller, Inc. (1979), 68 Ill. App. 3d 601, 386 N.E.2d 398.) As the instant contempt finding did not arise from an attack on the conduct or character of the trial judge, the latter provision has no application here. The plaintiffs, however, seek to invoke the venue provision pertaining to criminal cases, contending that under the rule that venue provisions are to be liberally construed, their motion should have been allowed where the record showed a good faith basis for the allegation that Judge Hildebrand was prejudiced against them.

While it is true that a motion for substitution of judge is to receive a liberal rather than strict construction, the movant must comply with the statutory requirements for the motion and must file it at the earliest practicable moment. (People v. Ganci (1978), 57 Ill. App. 3d 234, 372 N.E.2d 1077; see People v. Spurlark (1978), 67 Ill. App. 3d 186, 384 N.E.2d 767.) Moreover, such a motion must be filed before the trial judge has ruled upon a substantive issue of the case, as a litigant may not delay until he has ascertained the court’s attitude on the merits of the case before seeking a change of venue based on prejudice. (People v. Lawrence (1963), 29 Ill. 2d 426, 194 N.E.2d 337; People v. Evans (1979), 75 Ill. App. 3d 949, 394 N.E.2d 710.) In the instant case the plaintiffs did not file their motion for substitution of judge until three days before the September 3, 1981, hearing on the contempt petition. However, Judge Hildebrand had already found the plaintiffs in contempt on July 28, 1981, for violation of an order in the underlying case. The September 3 hearing involved further acts of contempt and did not constitute a new proceeding for purposes of a section 114 — 5 motion for substitution of judge. The plaintiffs could not wait until the judge had ruled adversely to them in enforcing its order and then claim prejudice on the part of the trial judge. Thus, the court’s finding on July 28 constituted a substantive ruling in the criminal contempt proceeding that rendered the plaintiffs’ subsequent motion untimely. See People v. Ganci.

We note, moreover, that the plaintiffs’ motion contained no specific allegations to indicate prejudice on the part of Judge Hildebrand, and the record is void of any evidence, either by way of supporting affidavit or testimony, that the plaintiffs could not receive a fair trial before Judge Hildebrand. (Cf. People v. Breitweiser (1976), 38 Ill. App. 3d 1066, 349 N.E.2d 454, where the defendant’s section 114 — 5(c) motion for substitution of judge was properly denied in the absence of supporting affidavit or testimony.) The burden rests not upon the court to justify retention of a case before it, but upon the one seeking substitution of judge to show that prejudice will result if his motion is not granted. (People v. Vance (1979), 76 Ill. 2d 171, 390 N.E.2d 867; People v. Ganci; People v. Breitweiser.) In their brief on appeal, the plaintiffs seek to substantiate their claim of prejudice by reference to Judge Hildebrand’s actions during the hearing of September 3, 1981, on the contempt petition. Our review of the record, however, fails to convince us that Judge Hildebrand expressed prejudice against the plaintiffs. We therefore find no error in the trial court’s denial of the plaintiffs’ motion for substitution of judge.

The plaintiffs next contend that the evidence adduced at the hearing on September 3 was insufficient to support the court’s finding of contempt. They note initially that the court failed to specify in its order the facts upon which the contempt finding was based. This, however, does not constitute error where, as here, the record contains a report of proceedings which affords an adequate basis for review. (People v. Jashunsky (1972), 51 Ill. 2d 220, 282 N.E.2d 1.) Rather, this court may look to the record in the instant case, which contains both the petition alleging specific acts of contempt and the testimony of the defendants’ witnesses, to determine whether the court’s finding of contempt is substantiated. See People v. Brigkam (1964), 47 Ill. App. 2d 444, 198 N.E.2d 106; Hellige v. Hellige (1977), 50 Ill. App. 3d 209, 365 N.E.2d 220.

Upon our review of the record, we are unable to say with certainty that the evidence was sufficient to support the trial court’s finding of contempt. As we have noted previously, the nature of the plaintiffs’ conduct and the nature and purpose of the punishment imposed by the court lead to the conclusion that the plaintiffs were found to be guilty of criminal rather than civil contempt. As such, they were entitled to be proved guilty beyond a reasonable doubt. (People ex rel. Chicago Bar Association v. Barasch; People v. Edwards.) From the court’s characterization of the plaintiffs’ contempt as “civil,” however, it follows that the trial court applied a “preponderance of the evidence” standard applicable to such proceedings (see People ex rel. Rusch v. Fusco (1947), 397 Ill. 468, 74 N.E.2d 531; 12 Ill. L. & Prac. Contempt sec. 78 (1955)). It is axiomatic that factual disputes requiring evidence to be weighed are solely the province of the trier of fact. (See Spidle v. Steward (1980), 79 Ill. 2d 1, 402 N.E.2d 216.) In the instant case, the evidence of the plaintiffs’ actions was controverted and much of it was circumstantial in nature. Thus, while we find that the record contains evidence upon which the trial court could have based a finding of criminal contempt, it is not for this court to determine, in light of the strong indication to the contrary, that the trial court did, in fact, find the plaintiffs to be guilty beyond a reasonable doubt of criminal contempt. (Cf. Aurora Steel Products v. United Steelworkers, where the reviewing court, in the absence of any indication as to what standard of proof the court used in reaching its finding of contempt, found that evidence which “clearly” indicated that contemptuous acts had been committed was sufficient to prove beyond a reasonable doubt that the defendant was guilty of criminal contempt.) We therefore remand this cause to the trial court to determine whether, under the applicable standard of proof, the evidence was sufficient to render the plaintiffs guilty of criminal contempt.

The plaintiffs finally contend that the sentences of five months’ imprisonment for Dale Hoga and four months’ imprisonment for Irene Hoga was unsupported by the evidence. It is well settled that the punishment to be imposed in cases of contempt is a matter within the sound discretion of the trial court. (People v. Brown (1975), 30 Ill. App. 3d 828, 333 N.E.2d 476; see 12 Ill. L. & Prac. Contempt sec. 102 (1955).) Here, the punishment imposed was reasonable in light of its purpose to punish past misconduct which constituted an affront to the dignity of the court and served to impede its process.

Upon our review of the record, however, we find no basis for the imposition of a longer sentence for plaintiff Dale Hoga. From the defendants’ testimony, it appears that Dale Hoga’s only actions in violation of the court’s order were trespassing on the defendants’ property and making verbal threats toward them. He was not implicated in damaging the fence or interfering with its construction. Further, the evidence is insufficient to show that Robin or Randy Hoga acted as his agents. Since the sentences were based in part upon the actions of the plaintiffs which resulted in the July 28 contempt finding, a more severe sentence for Dale Hoga may have been justified by his actions at that time. However, the court made no specific findings of fact in its July 28 order, and we have no record of the July 28 proceedings on review. On the basis of the record before us, then, we find that the trial court abused its discretion in imposing a more severe sentence for Dale Hoga.

For the foregoing reasons, the instant cause is affirmed in part and reversed in part, and we accordingly remand it to the trial court for proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part; and remanded.

KASSERMAN and EARNS, JJ., concur.


text:
    RICHARD L. DODSON, Plaintiff-Appellant, v. RONALD B. SHAW et al., Defendants-Appellees.
    Fifth District
    No. 82—332
    Opinion filed March 22, 1983.

      Robert D. Owen and W. Scott Murphy, both of Owen, Roberts, Susler & Murphy, P.C., of Decatur, for appellant.
    James B. Wham and Richard A. Cary, both of Wham & Wham, of Centraba, for appellees.
   JUSTICE KARNS

delivered the opinion of the court:

Richard L. Dodson, plaintiff, brought this action against Shaw Contractors and Builders, defendant, alleging negligence and violations of the road construction injuries act (111. Rev. Stat. 1981, ch. 121, par. 314.1 et seq.). Judgment was entered on a jury verdict in favor of defendant in the circuit court of Fayette County, and plaintiff appeals.

In May of 1973, the State of Illinois requested bids for the proposed improvement of Camp Creek bridge located on the eastbound lanes of Interstate 70 east of Vandalia, Illinois. Defendant’s bid was accepted and a construction contract was signed by the parties. The contract included standard State specifications for bridge construction and mandatory Federal provisions.

Construction began on the southernmost of the two lanes of the bridge in January of 1974. During the construction, traffic was directed to the north lane of the eastbound lanes by use of temporary traffic control devices. Pursuant to the contract, defendant painted a solid white traffic control line in the south lane. The lane was 880 feet long, beginning at the south edge of the south lane and angling towards the center line. The traffic control line merged with the center line at a point approximately 100 feet west of the bridge. Barricades were also placed at an angle in the south lane, and a temporary guardrail was placed on the center line of the bridge. The State, through the resident engineer for the job, approved defendant’s temporary traffic control measures.

Before construction on the south lane was completed, an Arkansas Best Freight (ABF) tractor-trailer collided with the northeast bridge approach guardrail when traveling through the north lane. The guardrail was 100 feet long and was designed to protect errant vehicles from striking the concrete bridge abutment. The collision tore out a large segment of the guardrail, leaving the bridge abutment unprotected. ABF paid defendant for removal and replacement of the guardrail; however, it was not replaced until construction on the bridge was complete, some time after plaintiffs accident.

In November, construction on the south lane was completed and the temporary guardrail and barricades were removed. A decision was made by the resident engineer and defendant’s job superintendent not to attempt removal of the white traffic control line. Removal had proved difficult in the past and it was believed the line would be worn away by traffic. However, the line did not wear as planned and on December 12, jenite, a thick black liquid, was applied in an attempt to cover the line. The jenite failed so that on the date of plaintiff’s accident the traffic control line was still visible. Several other attempts to eradicate the line were made following the accident.

Plaintiff’s accident occurred on a dark and wet night in January 1975. Earlier in the evening, plaintiff and a friend, Dennis Moreland, drove from Pana, Illinois, to Vandalia, sharing a marijuana cigarette as they drove. In Vandalia, they each had a couple of beers while playing pool. About 6:30 p.m. they left, and after driving around Vandalia for a short time, plaintiff and Moreland set out for Effingham on 1-70. According to plaintiff’s testimony, he stopped the car just outside Vandalia so that Moreland could test drive the car. Moreland took over control of the car, smoking another marijuana cigarette as he drove. Plaintiff did not smoke but remembered feeling a little sick to his stomach. As they approached the Camp Creek bridge at about 60-65 miles per hour, plaintiff saw the traffic control line and said something to Moreland about it. Moreland, thinking they were to follow it, cut sharply to the left, causing the rear of the car to slide to the right. As the car continued to slide, plaintiff saw the gap in the guardrail but did not see the bridge abutment. The car then struck the bridge in a northerly direction, causing the bridge abutment to be driven four feet into the front of the car.

Police and medical personnel arrived at the accident scene shortly. Plaintiff was found pinned in the car just to the right of the steering wheel, his head through the windshield. Moreland was hanging from the passenger door. The driver of the wrecker and an ambulance attendant smelled alcohol at the scene. Both fall and empty beer cans were found in the car and near the wreckage.

Plaintiff was taken to Fayette County Hospital in Vandalia and was then transferred to Decatur, Illinois. He remained in a coma for 11 days. After regaining consciousness, plaintiff was unable to recall any details of the accident for a four- to six-week period. Thereafter, plaintiff progressively regained his memory. He was discharged from the hospital on March 24, 1975; although, he has continued to see doctors for headaches, dizziness and stiffness. Dennis Moreland is unable to remember anything about the accident.

The first issue raised by plaintiff on appeal is that the jury’s verdict in favor of defendant on the road construction injuries act count (Ill. Rev. Stat. 1981, ch. 121, par. 314.1 et seq.) was against the manifest weight of the evidence. In our opinion the act does not apply to the plaintiff’s claimed violations of the act at the Camp Creek construction site at the time of the accident.

The act’s purpose is to protect workmen and the general public from injury or death during construction or repair of bridges and highways within the State of Illinois. (Vegich v. McDougal Hartmann Co. (1981), 84 Ill. 2d 461, 419 N.E.2d 918.) Section 1 of the act provides:

“All construction work upon bridges or highways within the State of Illinois shall be so performed and conducted that two-way traffic will be maintained when such is safe and practical, and when not safe and practical, or when any portion of the highway is obstructed, one-way traffic shall be maintained, unless the authorized agency in charge of said construction directs the road be closed to all traffic.” (111. Rev. Stat. 1981, ch. 121, par. 314.1.)

Other sections of the act require the contractor to provide flagmen or traffic signals at construction sites where one-way traffic is utilized (111. Rev. Stat. 1981, ch. 121, par. 314.2) and require proper signs or barricades when highways or bridges are closed to all traffic (111. Rev. Stat. 1981, ch. 121, par. 314.4). Section 6 of the act imposes liability on contractors and drivers of motor vehicles for injuries to persons occasioned by knowing and wilful violations of the act. 111. Rev. Stat. 1981, ch. 121, par. 314.6.

Although we acknowledge that the act, as a safety statute, is to be liberally construed (Kreke v. Caldwell Engineering Co. (1982), 105 Ill. App. 3d 213, 221, 433 N.E.2d 1337, 1343-44), we cannot ignore the plain language of the act. It is obviously concerned with the unusually dangerous situation where a highway is closed altogether (Ill. Rev. Stat. 1981, ch. 121, pars. 314.2, 314.3), or there is only one lane of traffic for use by vehicles traveling in opposite directions (111. Rev. Stat. 1981, ch. 121, pars. 314.2, 314.3). Neither situation was present at Camp Creek, where two-way traffic was maintained at all times, and the statute is, therefore, inapplicable.

Should we adopt plaintiff’s construction of the act, it would be applicable to almost any accident that one could conceive that occurred while construction work of some sort was being performed on any highway or bridge in this State, even though at the time of the accident the roadway was open to two-way traffic. An analysis of the provisions of the act would render them meaningless when applied to situations where the roadway was open to two-way traffic.

Plaintiff’s instructions told the jury that the construction injuries act provided that all construction work upon bridges and highways “shall be so performed and conducted that two-way traffic will be maintained when such is safe and practical” and that a contractor must comply with this act. The jury was told in general terms that the defendant violated the act if the work on the bridge at 1-70 was so performed that two-way traffic was maintained when it was not safe and practical. The jury was further told that failure to replace the guardrail and remove the white line were violations of the act if found to be the proximate cause of plaintiff’s injuries.

But the construction injuries act only states that two-way traffic will be maintained if safe and practical and if not, one-way traffic shall be maintained unless closed by the State authorities. If one-way traffic is maintained, the act is specific as to the duty of a contractor. He must provide flagmen, signals and traffic control devices to warn approaching motorists that only one lane is open.

Regardless of the applicability of the act, plaintiff’s tendered instructions, which were overly favorable to plaintiff, were given by the court, and the jury found that defendant did not commit a knowing and wilful violation of the act and that the presence of the white line and the absence of a guardrail had nothing to do with the accident. If the driver had followed the white line, he would simply have been directed into the northernmost lane of the two lanes reserved for eastbound traffic. The duty of a contractor under the act is limited to providing flagmen and traffic signals where one-way traffic is maintained and barricades and signs where the roadway or bridge is closed altogether. Plaintiff does not argue that the highway should have been closed, as indeed defendant would have been powerless so to do, nor does he argue that flagmen or signals should have been furnished by defendant. We simply do not agree with his argument that the presence of the white line and the absence of the guardrail were wilful violations of the construction injuries act as a matter of law. Nor could we agree, in any event, that these two conditions constituted a proximate cause of plaintiff’s injuries as a matter of law.

The second issue raised concerns the common law negligence claim. Plaintiff’s alleged acts of negligence were the same as the claimed violations of the construction injuries act; that defendant was negligent by failing to remove the white traffic control line and by failing to repair or replace the northeast bridge approach guardrail. The jury returned a general verdict in favor of defendant and by special interrogatory determined that plaintiff was not the sole proximate cause of his injuries.

Defendant initially claims it was under no duty to remove the traffic control line or replace the guardrail as it complied with the State highway department’s plans and specifications in performing the work. We disagree. Defendant has a common law duty to protect the traveling public from dangerous conditions created by its construction activities. (Mora v. State (1977), 68 Ill. 2d 223, 369 N.E.2d 868; Koches v. Chicago & Illinois Midland Ry. Co. (1983), 112 Ill. App. 3d 851.) We decline to read Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368, relied upon by defendant, so broadly as to preclude the imposition of common law duties here simply because defendant had complied with the specifications in his contract with the State. In Blasius, the supreme court held that an independent contractor who fabricated a chattel, a highway sign, is under no duty to third persons if he strictly complies with the contract specifications provided to him by the State, unless they result in an obviously dangerous condition. (74 Ill. 2d 203, 209-10, 384 N.E.2d 368, 371.) While it is true that the State did not require defendant to replace the guardrails at Camp Creek until completion of the project, the State did so because it had no reason to anticipate that they would be damaged prior to completion. When the ABF truck damaged the guardrail, we believe that the defendant could not rely on the State’s failure to require replacement to escape any potential liability as a matter of law.

Plaintiff contends that the evidence also shows, even when viewed in a light most favorable to defendant, that defendant was negligent and his negligence was a proximate cause of plaintiff’s injuries.

We turn first to defendant’s failure to remove the white traffic control line. There is an abundance of evidence to support a finding that defendant was not negligent. The record indicates that the removal of the lines has always been a problem. In fact, there was testimony that sandblasting, a method used only after all others have failed, leaves a white line of its own on the roadway. Since the evidence shows defendant made every feasible effort to remove the line, the jury could reasonably conclude that defendant was simply not negligent. The jury may also have been persuaded by the State’s figures showing that thousands of vehicles had traveled safely over the Camp Creek bridge while the line was visible.

The jury could consider the slight angle of the line in determining that it was not a proximate cause of plaintiff’s injuries. The line was 880 feet long and ended approximately 100 feet from the bridge. It angled from the south edge of the double lane to the center line, a distance of only 12 feet. Finally, it is to be remembered that plaintiff was the only witness to the accident and in view of his severe head injury and resulting retrograde amnesia, the jury was free to reject his testimony that Moreland swerved the car in reaction to the line. In short, the jury could conclude that the presence of the line simply had nothing to do with the accident.

We now turn to the bridge approach guardrail. The evidence established that the guardrail was designed to prevent potential accidents of the kind of head-on collision with a bridge abutment that plaintiff argues occurred here. Of course, the jury was not required to adopt defendant’s version of the occurrence.

Moreover, even if one could conclude that the failure to replace the guardrail was negligence, the jury could find that defendant’s negligence was not a proximate cause of plaintiff’s injury. Plaintiff has argued the proximate cause issue vigorously, claiming that the jury was misled as to the proper focus of proximate cause. He insists that the question is not who caused the accident but what caused the injuries. He then argues that the jury had to find defendant’s negligence at least a proximate cause of his injuries since had the guardrail been replaced, plaintiff would have suffered no or substantially fewer injuries. Plaintiff supports his theory that the jury was misled, by the instructions, which we would note are largely the plaintiff’s and in defense counsel’s closing argument, to which we would further note no objection was made. He also notes that the jury’s confusion was demonstrated when it returned a general verdict that was inconsistent with its response to the special interrogatory.

We are not persuaded by plaintiff’s analysis. Whether plaintiff focuses on his injuries or the accident, there is simply no conclusive or compelling evidence that had the guardrail been replaced, it would have prevented what occurred.

Expert testimony established that a guardrail will redirect an errant vehicle weighing 4,000 pounds that strikes the guardrail at 60 miles per hour at a 25° angle of impact. The expert stressed, however, that when any one factor is exceeded there is a high probability that the guardrail will not work as designed. Plaintiff’s evidence does not conform to the formula. Plaintiff’s own testimony was that they may have been going 65 miles per hour. More important, plaintiff presented no evidence that the angle of impact was 25° or less. When a car traveling at 60-65 miles per hour strikes at an angle beyond 25°, the guardrail itself becomes a hazard, causing severe injury or death. We also observe that when plaintiff elicited the expert’s opinion during an offer of proof of the difference in plaintiff’s injuries had the guardrail been replaced, the hypothetical assumed an angle “of not more than a couple of degrees.” Finally, there was evidence that the car may have struck the bridge abutment and not have struck the guardrail had it been there. It should be clear from this discussion that plaintiff’s expert testimony which concluded that plaintiff would have suffered substantially fewer injuries had the guardrail been replaced was properly excluded. Without evidence of the angle of impact, the opinion was made without proper foundation.

Inasmuch as the jury could well conclude that the condition of the line and guardrail was not a proximate cause of plaintiff’s injuries, it is unnecessary to address plaintiff’s claim that defense counsel misled the jury by focusing on the cause of the accident rather than on the extent of plaintiff’s injuries. No objection was made to defendant’s argument and plaintiff’s theory was fully argued to the jury. We will, however, discuss plaintiff’s claim that the instructions were in error and that the general verdict and special interrogatory were inconsistent.

Plaintiff’s specific complaint is of the use of the words “sole proximate cause” in the instructions. It is true that under the comparative negligence doctrine of Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, the jury cannot be required to find only one proximate cause. The instructions, all from Illinois Pattern Jury Instructions (IPI), Civil (2d ed. 1971) were not in error in this regard. The definition of proximate cause included the language, “It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.” (IPI Civil No. 15.01.) Whenever the words “sole proximate cause” were used in the instructions, the jury was not being asked to find a sole cause, but instead were told, for instance, that if someone other than defendant was the sole proximate cause of the injuries, then the verdict must be for defendant. This is a correct statement of the law. We also point out that plaintiff’s objections to the instructions, when made, were rarely directed to the sole proximate cause language.

We next consider whether the jury’s general verdict was inconsistent with its negative response to the following special interrogatory, “Was Richard Dodson guilty of negligence, which was the sole proximate cause of his injuries?”

A general verdict and a special interrogatory will not be found inconsistent except if they are clearly and absolutely irreconcilable. (Cohen v. Sager (1971), 2 Ill. App. 3d 1018, 1019, 278 N.E.2d 453, 455.) We find no inconsistency in this case. A most persuasive reason for the interrogatory answer is that the jury found no credible evidence of just what did cause the accident. Plaintiff was the only eyewitness, and his testimony was discredited by an expert who concluded that plaintiff’s memory of the accident was permanently lost due to his severe head injury. With lack of evidence, the jury could not conclude whether Dodson was the sole proximate cause of his injuries. The jury could also decide, although such a conclusion would belie the physical evidence, that Moreland was the driver of the car and that he was a cause of the injuries.

Another issue raised concerns the expert testimony to which we have referred earlier. Dr. William Landau, an eminently qualified neurologist, testified that plaintiff suffered from traumatic retrograde amnesia, the loss of memory of events leading up to a traumatic accident. Landau explained that the duration and permanence of retrograde amnesia is dependent upon the severity of the head injury. In plaintiff’s case, the head injury was so severe that plaintiff remained in a post-trauma coma for 11 days. As a result, plaintiff’s memory was slow to return and some memory loss was permanent. Plaintiff’s neurologist, Dr. John L. Hubbard, testified to the same effect.

Landau further testified that considering the severity of plaintiff’s head injury, it was not possible for plaintiff to have the kind of detailed memory of the accident he demonstrated while testifying. Landau testified that plaintiff’s detailed testimony is explained by a phenomenon known as confabulation. A patient who confabulates is attempting to fill in the gaps in his memory caused by retrograde amnesia. It is this testimony that plaintiff objects to as invading the province of the jury on an ultimate issue, the memory and credibility of a witness.

We emphasize that the cases favor the permissive use of expert testimony in all types of cases where the jury would be aided in its understanding of the facts. Expert testimony will be admissible even when directed toward an ultimate issue since the jury is free to reject the testimony. (People v. Slago (1978), 58 Ill. App. 3d 1009, 1015-16, 374 N.E.2d 1270, 1275.) The subject of retrograde amnesia has been held a proper subject for expert testimony. People v. Rice (1975), 40 Ill. App. 3d 667, 671, 352 N.E.2d 452, 456; Pool v. Day (1936), 143 Kan. 226, 53 P.2d 912.

Plaintiff further contends that his memory cannot be challenged by another witness. Ordinarily a witness’ memory is tested by cross-examination and one witness is not permitted to judge the truthfulness of another’s testimony. (Ryan v. Monson (1961), 33 Ill. App. 2d 406, 415-16, 179 N.E.2d 449, 454.) However, where credibility of a witness’ memory is due to abnormalities, such as retrograde amnesia, a witness may testify to facts which, if believed by the jury, would discredit the witness. Fries v. Berberich (Mo. App. 1944), 177 S.W.2d 640, 643.

Finally, plaintiff argues that defense counsel, after the court had ruled there was insufficient evidence to establish intoxication, argued to the jury that plaintiff was intoxicated at the time of the accident. However, in reviewing the record, it is apparent that defense counsel merely asked the jury to consider how much plaintiff had to drink. In light of the fact that plaintiff, apparently as part of his trial strategy, chose to open up the subject of intoxication, as well as marijuana use, and the fact that plaintiff made no objection during closing, we can find no error in defense counsel’s remarks.

Unfortunately, a large part of both parties’ briefs has been devoted to allegations of misconduct by counsel. While we will not address each of the complaints, which we find to be groundless, we make the following comments.

Plaintiff has particularly emphasized an incident involving several pages of documents entitled, “Required Contract Provisions — All Federal Aid Construction Contracts,” which are included in every contract where the government provides a substantial part of the funds. Although the provisions were a part of the Camp Creek contract, they were not discovered until near the end of plaintiff’s case in chief. Plaintiff claims defendant intentionally withheld the provisions and as a result he was prejudiced in presenting his case.

We cannot accept plaintiff’s argument. The colloquy in the record makes it clear that defense counsel was as surprised as plaintiff that the provisions existed. In addition, plaintiff’s counsel did not claim intentional wrongdoing at the time. Plaintiff’s counsel stated, “I am not raising *** an inference in the record that you are *** attempting to hide anything.”

There was also no prejudice to plaintiff. The provisions only reiterated the common law duty that a contractor must take any action reasonably necessary to protect the safety of the public. We also point out that plaintiff did not claim prejudice nor ask for discovery sanctions or a mistrial.

We next consider plaintiff’s allegation that defendant, during voir dire of a witness concerning several of plaintiff’s exhibits, intimated that plaintiff had altered and concealed material evidence in connection with the exhibits. We conclude that if defendant’s voir dire was improper, and we do not believe it was, the situation was corrected by the court’s statement to the jury that “all of the photographs testified to *** including the notations on sheets of paper to which the photographs were once attached have been previously furnished to counsel for the defendant by counsel for the plaintiff and they have not been modified in any way or respect.”

We have carefully reviewed the remaining allegations of misconduct and the record and conclude that none warrant reversal or discussion. The trial court is to be commended for the manner in which it conducted this long and difficult trial.

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

Affirmed.

HARRISON, P.J., and WELCH, J., concur.