author:
JUSTICE GREEN
      PRESIDING JUSTICE WEBBER,

text:
    SHIRLEY SEARS, Plaintiff-Appellee, v. JULIE RUTISHAUSER, Defendant-Appellant.
    Fourth District
    No. 4 — 82—0743
    Opinion filed June 13, 1983.
    Modified on denial of rehearing September 14, 1983.
    WEBBER, P.J., concurring in part and dissenting in part.
    Costigan & Wollrab, of Bloomington, for appellants.

      Jerome Mirza & Associates, Ltd., of Bloomington (David V. Dorris and Randall A. Mead, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On August 9, 1977, the plaintiff, Shirley Sears, filed a complaint in the circuit court of McLean County alleging that (1) the defendant, Julie Rutishauser, negligently operated her automobile, and (2) as a direct and proximate cause of the defendant’s negligent acts the plaintiff sustained permanent personal injuries. Following a jury trial, the trial court entered a judgment against the defendant on June 24, 1982, awarding the plaintiff $40,000 in damages. The defendant appeals. We affirm.

On appeal, the defendant maintains that (1) the trial court erred in refusing to allow the defendant to cross-examine one of the plaintiff’s treating physicians about the number and frequency of patient referrals which that physician had received from plaintiff’s counsel, (2) the trial court erred in allowing plaintiff to introduce into evidence certain cross-examination testimony which allegedly was beyond the scope of the defendant’s direct examination, and (3) the closing rebuttal argument of plaintiff’s counsel was so prejudicial as to deny the defendant her right to a fair trial.

Because no question is raised concerning the sufficiency of proof, we discuss the evidence only briefly. The plaintiff testified at trial that at approximately 8:15 a.m. on February 14, 1977, she was proceeding eastbound on Vernon Avenue, a four-lane street in Normal. Noting that the roads were slippery because of a recent snowfall, the plaintiff drove in the lane next to the curb at a speed of approximately 15 miles per hour. Immediately prior to the accident, the plaintiff observed the defendant’s vehicle traveling westbound on Vernon Avenue and estimated its speed at 40 miles per hour. As the defendant’s vehicle drew near it went into a skid, spun around into the eastbound lane, and the right rear portion of the defendant’s vehicle struck the left fender and hood of the plaintiff’s vehicle while both vehicles were still moving.

The defendant’s testimony concerning the circumstances surrounding the accident was substantially similar to that of the plaintiff. However, the defendant did state that after her vehicle hit a patch of ice, crossed the center line and came to rest against the south curb of Vernon Avenue, she had been stopped for less than five seconds when plaintiff's vehicle struck the rear of defendant’s vehicle. The defendant also stated that she had been traveling, at a rate of 25 miles per hour immediately before she encountered the patch of ice.

The plaintiff testified that following the accident she developed pain and stiffness in her neck and in the right top portion of her body. As to her symptoms at the time of trial, the plaintiff stated that (1) her right hand and arm felt as though they were asleep and she had a loss of strength in that arm, and (2) she was unable to raise her right hand or arm above her head and her neck was stiff and painful.

During the approximately five-year period between the automobile accident and the jury trial, the plaintiff was treated by various doctors. At trial, the plaintiff relied primarily on the testimony of three of those doctors. Dr. John Wright testified that, in his opinion, the plaintiff had an acute cervical strain with contractures and disuse changes caused by the automobile accident. In his evidence deposition, Dr. Hugh McMenamin stated that the plaintiff had cervical radiculitis and shoulder encapsulitus, or frozen shoulder. Dr. Donald Rumer, the plaintiff’s treating physician at the time of the trial, stated that (1) the plaintiff had thoracic outlet syndrome, and (2) the plaintiff’s permanent injuries were among the worst he had ever treated.

The defendant introduced the testimony of Dr. Rieber Hovde, the plaintiff’s family doctor at the time of the accident. Dr. Hovde testified that (1) the plaintiff had osteoarthritis which had existed prior to the automobile accident, (2) her injuries resulting from the accident were minor, (3) she had only a slight loss of motion in her neck which was both psychological and physiological in nature, and (4) she did not have thoracic outlet syndrome.

Prior to trial, the defendant filed a motion in limine requesting that the trial court prohibit the plaintiff from offering the testimony of Dr. Rumer, unless the doctor personally appeared at trial and produced the files of all the patients he had treated in the preceding four years on referral from attorney Jerome Mirza. Although Mr. Mirza was not trial counsel, his firm was representing plaintiff. During a hearing on this motion, the defendant argued that she should be allowed to introduce evidence concerning the number and frequency of client referrals from Mr. Mirza to Dr. Rumer in order to question Dr. Rumer’s credibility by showing bias and interest on his part in testifying for the plaintiff, who had also been referred to Dr. Rumer by Mr. Mirza. Relying on the case of Davis v. Gulf, Mobile & Ohio R.R. Co. (1971), 130 Ill. App. 2d 988, 272 N.E.2d 240, the trial court determined that Dr. Rumer could be asked whether he had received other referrals from Mr. Mirza, but he could not be asked about the number or frequency of those referrals.

The defendant argues that the trial court erred in refusing to allow Dr. Rumer to be cross-examined concerning the number and frequency of patient referrals which he had received from Mr. Mirza. The defendant points out that (1) the plaintiff’s expert, Dr. Rumer, and the defendant’s expert, Dr. Hovde, disagreed as to the cause and extent of the plaintiff’s injuries, and (2) this conflict between the experts made the credibility of Dr. Rumer and Dr. Hovde an important consideration.

The Davis case is the only Illinois case dealing with the issue of whether a party’s treating physician may be cross-examined concerning the frequency of referrals he has received from the party’s counsel. Although the final form of the Davis opinion is disputed, the court clearly held that no error resulted merely because the trial court permitted such cross-examination. The court indicated that whether to permit the cross-examination was a matter of discretion for the trial court. Analogy was drawn to McMahon v. Chicago City Ry. Co. (1909), 239 Ill. 334, 88 N.E. 223, where the court held that a similar discretion existed concerning the frequency with which a physician had testified for the various street car lines of Chicago. In McMahon, the trial court had exercised its discretion by allowing the cross-examination. Courts in other States have held that allowance of cross-examination of a physician as to the frequency of referrals to him by the opposing party’s counsel was not error. See Wilson v. Stilwill (1981), 411 Mich. 587, 309 N.W.2d 898, and Ager v. Baltimore Transit Co. (1957), 213 Md. 414, 132 A.2d 469.

We also note that Professors Cleary and Graham state in section 705.2 of their treatise that:

“Inquiry into compensation [of expert witnesses] is a matter of right. [Citation.] Prior employment by the same party may be brought out [McMahon], as well as referrals from the same attorney [Davis]; but refusal to permit questions as to a consistent pattern of testifying for parties with similar interests in other cases has been" sustained. Chicago & Eastern Illinois R.R. Co. v. Schmitz (1904), 211 Ill. 446, 71 N.E. 1050. In the latter situation, if the showing is sufficient to cast substantial doubt on the good faith and integrity of the witness, the inquiry would seem in principle to be allowable within the discretion of the trial judge, despite the risk of collateral issues.” E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 705.2, at 385 (3d ed. 1979).

We conclude that the issue of whether to allow cross-examination of an expert medical witness concerning the frequency of his patient referrals from a party’s attorney is within the discretion of the trial court. However, in this case, the issue involves matters collateral to the question of the extent of the party’s injury. Here, defendant’s offer of proof indicated that Dr. Rumer was uncertain as to the frequency of the referrals. Defense counsel’s request for Dr. Rumer’s records indicated that lengthy questioning might be necessary if the matter was pursued. The trial court seemed to be under the impression that because of the precedent of Davis it “probably” could not properly permit the cross-examination. However, the court’s remarks permit the inference that it would not have permitted the cross-examination even if it had discretion. The court’s ruling was not error.

The defendant’s next contention concerns the introduction of Dr. Hugh McMenamin’s testimony which was relied upon by the plaintiff at trial. This testimony consisted of portions of Dr. McMenamin’s cross-examination by plaintiff during an evidence deposition taken by defendant. The defendant maintains that (1) this cross-examination exceeded the scope of the direct examination conducted by defense counsel in taking the evidence deposition, and (2) the procedure used allowed the plaintiff to present Dr. McMenamin’s entire course of treatment of the plaintiff through the use of leading questions.

Defense counsel’s direct examination of Dr. McMenamin, which dealt primarily with his opinion concerning the use of two drugs prescribed by Dr. Rumer for the plaintiff, included the following questions:

“Q. Did you feel that when you saw this woman and treated her that there would be any guarantee that this particular drug of Prednisone would give any significant relief to her?”

“Q. Now, as far as Prednisone, would you use that in reference to the treatment of a woman with the complaints that she told you about?”

“Q. Isn’t it true that unless you are absolutely up against the wall, that you wouldn’t use Butazolidin in reference to your treatment of this woman?”

The scope of cross-examination is an issue which lies largely within the discretion of the trial court. (Biel v. Wolff (1970), 126 Ill. App. 2d 209, 261 N.E.2d 474.) In propounding the foregoing questions to Dr. McMenamin, defense counsél was delving into the treatment prescribed by Dr. McMenamin for the plaintiff. The trial court did not abuse its discretion in ruling that the plaintiff’s cross-examination of Dr. McMenamin concerning the details of that treatment did not exceed the scope of the direct examination.

Finally, we consider defendant’s assertion that plaintiff’s rebuttal closing argument was so prejudicial as to deny her a fair trial. Plaintiff’s counsel said defense counsel had “just plain misstated” certain matters, that doing so was “inexcusable,” and that the number of times he had done so was such that “it could not have been unintentional.” Plaintiff’s counsel also asserted that defense counsel (1) stated things that were inaccurate, (2) “twisted” things in a way which “just [was not] true,” (3) threw “mud,” (4) did not tell the truth in summarizing the testimony of a physician, and (5) insulted the jury by changing the testimony as often as he did. Near the conclusion of his argument, plaintiff’s counsel stated:

“I am depending on the twelve of you to have remembered that testimony and not let this man get away with changing that testimony in closing argument.”

Defendant argues that the foregoing comments (1) made a direct appeal to the passion and prejudice of the jury, (2) branded defense counsel as a liar, (3) told the jury that the lies were an insult to them, and (4) requested the jury to punish defendant for these lies. In support of these contentions the defendant relies primarily on Manninger v. Chicago & Northwestern Transportation Co. (1978), 64 Ill. App. 3d 719, 381 N.E.2d 383, Cecil v. Gibson (1976), 37 Ill. App. 3d 710, 346 N.E.2d 448, and Paulsen v. Gateway Transportation Co. (1969), 114 Ill. App. 2d 241, 252 N.E.2d 406.

In Manninger, plaintiff’s counsel during his closing argument asserted that defense counsel had prepared the testimony for the defense witnesses and told them what to say in order to defeat plaintiff’s claim. The appellate court concluded that this closing argument accused defense counsel of subornation of perjury and suppression and distortion of evidence and deprived the defendant of a fair trial.

In Cecil, defense counsel in his closing argument referred to plaintiffs’ counsel as a “slick attorney from Chicago” and a “slick hired-hand” and claimed that plaintiffs’ counsel “manufactured” evidence, had a “wild imagination,” and was not worthy of the jury’s trust. (Cecil v. Gibson (1976), 37 Ill. App. 3d 710, 711, 346 N.E.2d 448, 449.) The appellate court determined that defense counsel’s closing argument was grossly prejudicial and denied the plaintiffs their right to a fair trial.

In Paulsen, plaintiff’s counsel during his closing argument referred to defense counsel as “this man who plays fast and loose with the facts in this case.” Plaintiff’s counsel also stated:

“ ‘[Defense counsel] is trying to change the facts by trickery, he is trying to change the situation, he is trying to color the facts, to distort the facts and take them out of context.
But I’m up to his gimmicks, I’m up to his tricks.’ ” (Paulsen v. Gateway Transportation Co. (1969), 114 Ill. App. 2d 241, 245, 252 N.E.2d 406, 408.)

The Paulsen court condemned these remarks and others as having no application to the factual issues of the case and reversed the judgment for the plaintiff. The court stated that the argument was “an unwarranted characterization of defendant’s counsel and a successful effort to belittle, impugn and ridicule him and thus deprive the defendant of fair treatment by the jury.” 114 Ill. App. 2d 241, 247, 252 N.E.2d 406, 409.

Plaintiff’s counsel in Paulsen also accused defense counsel of torturing the plaintiff by asking her if she should have a myelogram and stated that the defendant had put her in the hospital by its negligent conduct and then wanted to “ '*** subject her to this horrifying, terrible ordeal of another jab with the needle into her back ***.’ ” 114 Ill. App. 2d 241, 246, 252 N.E.2d 406, 409.

Here, unlike in Manninger and Cecil, plaintiff’s argument contained no accusations of perjury, suppression of evidence, or creation of “manufactured” evidence. This case is more like Paulsen in that the argument complained of the accuracy with which opposing counsel recited the evidence and stated that opposing counsel had misstated the evidence intentionally. However, here plaintiff’s counsel did not accuse the defense of wishing to torture the plaintiff.

Counsel may, of course, dispute the accuracy of opposing counsel’s interpretation of the evidence and may also comment upon the extent of the inaccuracies. No exact line can be drawn as to how far, beyond that point, one’s argument may go in criticizing opposing counsel’s accuracy. In the heat of trial where each counsel has ridiculed the other’s argument, accusations are often made which would have been better left unsaid. Such was the case here when plaintiff’s counsel stated that defense counsel “did not tell the truth” and made other comments implying that he had lied. However, considering the vigorous nature of the arguments on both sides and the fact that the size of the verdict did not indicate prejudice against defendant, we hold that plaintiff’s argument did not deprive defendant of a fair trial. We need not consider whether defendant waived error in plaintiff’s argument by failing to object or to demand rulings on the objections that were made. No reversible error occurred.

For the foregoing reasons we affirm the judgment entered by the circuit court of McLean County.

Affirmed.

MILLS, J., concurs.

PRESIDING JUSTICE WEBBER,

concurring in part and dissenting in part:

I agree with my learned colleagues that no error occurred in the treatment of Dr. McMenamin’s testimony; however, I differ seriously with them on the matters concerning the cross-examination of Dr. Rumer and the rebuttal argument of plaintiff’s counsel.

The handling of expert witnesses and their cross-examination may be summed up in the old adage, “Whose bread I eat, his song I sing.” One need only scan the professional journals to observe that experts are for hire in the market place on an almost illimitable number of “specialities.” In this era of complex technology and with a litigation explosion of geometric proportions, especially in the fields of products liability and malpractice, these persons are essential for the jury’s understanding of the subject matter of lawsuits. However, the corollary to this proposition is that they are hired partisans and in judging their testimony the jury is entitled to know whence they came. This is especially true when, as in the instant case, the duel of the experts is one-on-one. It would be a rare case today when the expert witness is the saintly country doctor or the kindly county surveyor, known to the whole community including the jury.

It then follows that the widest latitude should be allowed in presenting anything, including relationships with the parties or their counsel, which might affect the credibility of the witness.

I do not read Davis with quite the same aplomb as does the majority. A close inspection of that opinion reveals that much of what was said in it was irrelevant to the precise problem presented. Moreover, the text as set forth in the official reports (Davis v. Gulf, Mobile & Ohio R.R. Co. (1971), 130 Ill. App. 2d 988) is not the final one. The records in the office of the Clerk of the Fifth Appellate District show that the opinion was revised upon denial of rehearing and the revised opinion was filed June 22, 1971. The final version is correctly reported at 272 N.E.2d 240.

In Davis the defendant in cross-examination sought to undermine the credibility of a medical witness by showing that he had referrals from plaintiff’s counsel. Ten individuals were apparently mentioned who either had had, or then had, suits against railroads and were represented by plaintiff’s counsel. In eight of the 10 the doctor remembered the patient or the patient’s name but did not know who had referred him, and in two cases did not remember the patient. In only one case out of seven did the doctor remember testifying against a railroad. In this state of the record “both counsel made reference to the fact that plaintiff’s attorney had sent the plaintiff to consult Dr. Deyton. There was no testimony of the witnesses to support this statement of both counsel.” (Emphasis added.) (272 N.E.2d 240, 243.) “Defendant offered no evidence to support the inference of bias which the specific inquiries raised by suggestion of counsel that each had been referred by plaintiff’s counsel.” 272 N.E .2d 240, 243-44.

In lieu of headnote 1 in the Official Reports (130 Ill. App. 2d 988, 992) the following appears at 272 N.E.2d 240, 244-45:

“In the present case the Doctor was not asked whether he testified only for plaintiffs on cross-examination, but stated that he had received referrals from plaintiffs’ counsel but could not state how many nor whether they could be described as frequent. The Doctor’s admission that he had received referrals from plaintiffs’ counsel raised an inference of bias, and it was the Doctor’s subsequent evasive answers concerning the frequency that allowed the court to exercise its discretion as to whether specific cases should be shown in this particular case. However, the evidence elicited did not support the suggestions that any of the 10 individual cases had been referred by plaintiff’s counsel, and defendant offered no evidence that any of those 10 had been referred by plaintiff’s counsel. In Chicago City Ry. Co. v. Smith, 226 Ill. 178 at page 187, 80 N.E. 716, at page 720, the Court stated:
‘Conceding appellants right of cross-examination to discover the motives, feelings and prejudices of a witness, still we are not inclined to hold that there was any error committed in refusing to allow the cross-examination to be extended to other cases having no connection with the case then being tried.’
In C. & E. I. Railroad v. Schmitz, 211 Ill. 446, 72 N.E. 150, the Court stated:
‘It was also sought by the Appellants to show by direct examination of certain witnesses that the physician in question was interested as a medical man in a large number of personal injury suits against corporations. This class of testimony the trial court refused to admit. Cross-examination upon independent cases of the same character, and about the same time as the principal case, is not allowed.’
From the authorities cited herein, we conclude that under ordinary circumstances, having shown the relationship between the Doctor and plaintiff’s counsel there is no proper basis for going into specific cases, and to do so would be reversible error, however, under the circumstances here present, permitting interrogation with respect to specific cases without the defendant then offering evidence of the relationship in those specific cases was error, but under the circumstances here present, not reversible error.”

From these excerpts it is apparent that the real problem in Davis was not the legitimacy of the cross-examination which produced nothing of value, but the fact that argument was made based on assumptions not established in the record.

The problem in the instant case is that defendant was prevented by the trial court from making a record. Prior to trial, the defendant filed a motion in limine requesting that the trial court prohibit the plaintiff from offering the testimony of Dr. Burner, unless the doctor personally appeared at trial and produced the files of all the patients he had treated in the preceding four years on referral from plaintiff’s attorney. During a hearing on this motion, the defendant argued that she should be allowed to introduce evidence concerning the number and frequency of client referrals to Dr. Burner in order to question Dr. Burner’s credibility and show bias and interest on his part in testifying for the plaintiff who had also been referred to Dr. Burner by her counsel. The defendant noted that Dr. Burner would not be asked to disclose the names of his other patients or identify them in any way, but that the files were necessary for cross-examination about the frequency and number of referrals from plaintiff’s counsel.

The court granted the defendant’s motion in limine in part and denied it in part. The trial court ruled that because of a prior stipulation between the parties, Dr. Burner had to testify in person rather than by evidence deposition. However, the trial court refused to require the doctor to produce records of other patients who had been referred to him by Mr. Mirza. In the opinion of the court, the doctor could be asked whether he had received other referrals from plaintiff’s attorney but he would not be asked about the number or frequency of those referrals.

Defendant was thus denied an opportunity to lay the foundation for showing the bias of Dr. Burner. The motion was renewed at the close of Burner’s direct examination and again denied by the trial court, relying on Davis. As an offer of proof, defendant was compelled to use a deposition made by Burner who was singularly evasive on the subject.

In my judgment Davis does not stand for the proposition that inquiry is forfended into a relationship between an expert witness and counsel; it stands only for the familiar doctrine that matters not in evidence cannot be argued to the jury. The Davis court appeared distracted in its gratuitous discussion of the former.

The older authorities cited in Davis, i.e., Handy, McMahon, Plam beck, belong to an earlier, simpler age. They need reexamination. In my judgment the Michigan and Maryland cases mentioned in the principal opinion, Wilson and Ager, together with the statement of Cleary & Graham, indicate the modern rule. In Wilson it is said:

“An expert witness’s experience testifying in court may influence the manner in which he or she testifies. The same is true for experience in evaluating cases which may come to court. It is thus proper to bring out on cross-examination the number of times a witness testifies in court, or is involved in particular types of cases.
* * *
A showing of a pattern of testimony for a particular attorney in past cases raises a possible inference that the witness has testified in such a manner that he would be hired in future cases.” 411 Mich. 587, 599-600, 309 N.W.2d 898, 902.

To the same effect is a statement by the Ager court:

“This Court has held on many occasions that evidence tending to establish possible interest, bias or prejudice on the part of a witness is admissible as an aid in testing the weight and credit to be afforded his testimony. A situation, almost identical to the one in this case, arose in the Supreme Court of Missouri in the case of Lammert v. Wells, 321 Mo. 952, 13 S.W.2d 547. That Court held that the evidence tended to show the relation existing between the witness and the attorney, and was proper for the consideration of the jury as showing possible interest or bias.” 213 Md. 414, 427-28,132 A.2d 469, 476-77.

In my judgment the proper rule is that while some discretion must be left with the trial court in order to prevent abuse, that discretion is limited. The question should never be settled on a motion in limine. If doubt exists, an offer of proof should be taken from the witness himself. If the party seeking to impugn the testimony of the expert makes a prima facie showing of the relationship, he should then be permitted to present the matter to the jury under the usual and normal rules of cross-examination. The fact that this might be lengthy is no reason for denying the party his opportunity to attack the credibility of the expert. It is just one of the facts of modern legal life.

The trial court in this case was in error on this issue and I would reverse for a new trial on that basis alone.

As to the rebuttal argument, it is true that it did not rise to the level of the invective hurled by John Randolph against Henry Clay, “So brilliant, yet so corrupt, which, like a rotten mackerel by moonlight, shines and stinks.” Nonetheless, in my judgment it exceeded the bounds of propriety. K there is a dispute over the meaning of evidence or inferences to be drawn therefrom, that can be so stated without subtly, or otherwise, vilifying opposing counsel. Such conduct belongs to the days when court was a form of theater and I hope that those days died with the Scopes trial.

I would reverse and remand for a new trial.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    ILLINOIS BELL TELEPHONE COMPANY, Petitioner-Appellant, v. KITTY LEWIS, Defendant-Appellee.
    Fourth District
    No. 4 — 82—0788
    Opinion filed June 27, 1983.
    Rehearing denied September 9, 1983.
    Alfred B. LaBarre, of Ensel, Jones, Blanchard & LaBarre, of Springfield, for appellant.

      Nolan Lipsky, of Petersburg, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

The question: When a telephone company condemns private property, must it follow the provisions of the Telegraph and Telephone Act or must it follow the provisions of the Public Utilities Act?

Illinois Bell answers: Telegraph and Telephone Act.

Lewis responds: Public Utilities Act.

We hold: Both.

These same parties were before this court in the previous case of Lewis v. Illinois Bell Telephone Co. (1981), 98 Ill. App. 3d 1047, 425 N.E.2d 55. In Lewis, we set out the facts that led to that appeal:

“Plaintiff [Lewis] owned the fee simple title to the premises which were a strip of land 55 feet wide and 3,960 [feet] long and constituted the westerly portion of a larger tract. The strip had been dedicated as an easement for highway purposes some years earlier by the plaintiff and a rural public highway existed thereon.
Defendant [Illinois Bell] entered into negotiations with the plaintiff for permission to lay underground telephone cable in the highway easement but these negotiations came to naught. Notwithstanding, defendant proceeded to lay the cable in the easement commencing in May 1980, and ending about July 1980. The forcible entry and detainer suit followed in November 1980.” (98 Ill. App. 3d 1047, 1048, 425 N.E.2d 55, 56.)

The circuit court entered judgment awarding possession of the premises to Lewis. Illinois Bell appealed. We affirmed. We held that Illinois Bell could only take private property by exercising its eminent domain authority. We also stated that the specific enabling legislation which provided Illinois Bell with the power of eminent domain is:

“the Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 1 et seq.) and the delegation of that power to telephone companies under section 4 of ‘An Act relating to the powers, duties and property of telephone companies’ [the Telegraph and Telephone Act] (Ill. Rev. Stat. 1979, ch. 134, par. 20).” (98 Ill. App. 3d 1047, 1050, 425 N.E.2d 55, 58.)

We then remanded the cause back to the circuit court with directions to:

“enter a supplementary order requiring the defendant [Illinois Bell] *** either (1) to agree with the plaintiff [Lewis] upon the amount of compensation to be paid and pay it, or (2) to commence a proceeding in eminent domain to acquire the easements in question ***.” 98 Ill. App. 3d 1047, 1052, 425 N.E.2d 55, 59.

Upon remand, the parties entered into negotiations. They proved fruitless. Illinois Bell then filed a petition for condemnation. Lewis filed a traverse and motion to dismiss the petition. At the hearing on the motion to dismiss, Illinois Bell argued that it had complied with all of the conditions precedent to exercising its eminent domain authority pursuant to the provisions of the Telegraph and Telephone Act. Lewis argued that pursuant to the provisions of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 1112/3, par. 1 et seq.), a hearing before the Illinois Commerce Commission is a condition precedent to the condemnation of private property by a public utility and since such a hearing had not taken place, Illinois Bell’s petition should be dismissed.

Judge Reither agreed with Lewis and granted the motion to dismiss.

Illinois Bell appeals.

We affirm.

Illinois Bell argues that it does not have to follow the eminent domain procedures contained in the Public Utilities Act because the Illinois legislature has provided concurrent authority to condemn under the Telegraph and Telephone Act and the Public Utilities Act. Illinois Bell contends that it may choose which statutory method it wishes to use and it has chosen to follow the procedures in the Telegraph and Telephone Act instead of those in the Public Utilities Act. Lewis maintains that Illinois Bell’s eminent domain authority under the Public Utilities Act is exclusive and that the company does not have any eminent domain authority under the Telegraph and Telephone Act.

Both parties are incorrect.

As we said in Lewis, the source of Illinois Bell’s eminent domain authority is the Telegraph and Telephone Act. When Illinois Bell exercises that authority, however, it must also comply with the provisions of the Public Utilities Act. Section 59 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 1112/3, par. 63) states:

“When necessary for the construction of any alterations, additions, extensions or improvements ordered or authorized under sections 50 *** of this Act, any public utility may enter upon, take or damage private property in the manner provided for by the law of eminent domain.”

Section 50 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 1112/3, par. 50) states in part:

“Whenever the Commission, after a hearing shall find that additions, extensions, repairs or improvements to, or changes in, the. existing plant, equipment, apparatus, facilities or other physical property of any public utility *** are necessary and ought reasonably to be made *** the Commission shall make and serve an order authorizing or directing that such additions, extensions, repairs, improvements or changes be made *** in the manner and within the time specified in said order.”

In 1903, the Illinois legislature first gave telephone companies the power of eminent domain by enacting the Telegraph and Telephone Act. In 1921, the legislature enacted the Public Utilities Act which requires all public utilities to receive Illinois Commerce Commission permission before exercising the power of eminent domain. The 1921 act impliedly repealed the authority given telephone companies in the 1903 act to condemn private property without permission from the State. In 1961, the legislature enacted an amendment to the Telegraph and Telephone Act which placed another restriction on the telephone company’s eminent domain power: If the property is in a highway right-of-way, the company must also obtain the permission of the Illinois Department of Transportation before it exercises its eminent domain authority. See section 4 of the Telegraph and Telephone Act (Ill. Rev. Stat. 1981, ch. 134, par. 20), and section 9 — 113 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 9 — 113.

Therefore, in the case at bench, where Illinois Bell — a public utility — is attempting to condemn property that lies in a highway right-of-way, it may exercise its eminent domain powers under the Telegraph and Telephone Act. First, however, because Illinois Bell is a public utility, it must obtain permission from the Illinois Commerce Commission and second, because the property is in a highway right-of-way, Illinois Bell must also obtain permission from the Illinois Department of Transportation.

Illinois Bell failed to obtain permission from the Illinois Commerce Commission. Ergo, the trial court was correct in granting Lewis’ motion to dismiss Illinois Bell’s petition for condemnation.

Affirmed.

WEBBER, P.J., and GREEN, J., concur.


text:
    THE CHAMPAIGN COUNTY NURSING HOME, by the Board of Supervisors of Champaign County, Plaintiff-Appellant, v. PETRY ROOFING, INC., Defendants-Appellees, et al., Defendants-Appellees.
    Fourth District
    No. 4 — 82—0756
    Opinion filed August 8, 1983.

      Robert R Moore and Robert A. Hoffman, both of Moore & Associates, of Champaign, for appellant.
    Dobbins, Fraker, Tenant, Joy & Perlstein, of Champaign (D. Cameron Dobbins, of counsel), for appellee Petry Roofing, Inc.
    Hurshal C. Tummelson and Jeffrey W. Tock, of Phebus, Tummelson, Bryan & Knox, of Urbana, for appellee English Brothers Company General Contractors.
    Carl M. Webber and Jerome J. Bromiel, both of Webber & Thies, P.C., of Urbana, for appellees Isaksen & Matzdorff, Victor E. Isaksen, and R. H. Matzdorff.
   JUSTICE MILLS

delivered the opinion of the court;

A limitations period is shortened, but by virtue of a savings clause, the relevant statute is applicable only to acts or omissions occurring after its effective date.

Later, the savings clause is repealed.

May the holder of a claim which — but for the savings clause — is barred, successfully maintain an action on the claim which is filed some months after repeal of the savings clause?

No.

We affirm.

FACTS

Between May 1971 and September 1973, defendants, pursuant to contracts with plaintiff, designed and constructed an addition to the Champaign County Nursing Home. On or before April 1, 1978, employees of plaintiff discovered damage to the addition’s roof, gutters and soffit. In July 1979, plaintiff became aware that the damage may have resulted from defects in the design and construction of the addition. On April 16, 1982, plaintiff filed suit against defendants, alleging that the damage to the addition was attributable to various acts of misfeasance and malfeasance on their part in design, construction, and supervision of construction. The circuit court dismissed the suit on December 29, 1982, holding that the action was barred by the applicable statute of limitations.

At the time that the damage was discovered, the relevant statutes of limitations prescribed a five-year limitation period for actions premised on negligent damage to property and a 10-year limitation period for actions premised on written contracts. (Ill. Rev. Stat. 1977, ch. 83, pars. 16, 17.) On November 29, 1979, a special statute of limitations relative to actions based on tort or contract and arising out of the negligent design, planning, construction, etc., of buildings became effective. This legislation prescribed a limitation period of two years from discovery of the relevant act or omission with a maximum limitation period of 12 years from the date of the act or omission. (Ill. Rev. Stat., 1980 Supp., ch. 83, pars. 22.3(a), (b).) The statute further provided: “The limitations of this Section shall apply to all acts or omissions which occur on or after the effective date of this amendatory Act of 1979.” (Ill. Rev. Stat., 1980 Supp., ch. 83, par. 22.3(e).) On September 16, 1981, the statute was re-enacted without the language just quoted. Ill. Rev. Stat. 1981, ch. 83, par. 22.3.

The Code of Civil Procedure, as originally enacted, contained the language of the initial version of former section 21.3 of the Limitations Act (Ill. Rev. Stat., 1980 Supp., ch. 83, par. 22.3) and, thus, the savings clause contained in subsection (e) of former section 21.3 again became effective on July 1, 1982. (See Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214(e).) On July 13, 1982, however, section 13 — 214 of the Code was re-enacted without the savings clause. Ill. Rev. Stat., 1982 Supp., ch. 110, par. 13 — 214.

OPINION

The question of whether a statute operates retroactively, or has prospective effect only, is primarily one of legislative intent. (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 447 N.E.2d 408.) During the debate in the House of Representative on the bill which re-enacted section 21.3 of the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 22.3) without the savings clause, Representative Mautino, the bill’s House sponsor, stated:

“Last year in the 81st General Assembly we passed Public Act 81 — 1169 [section 21.3] which set the statute limitation on construction and repairs on real estate. We put that statute of limitations, it’s to be twelve years after the building and within a two year period for the filing fee [sic].
What this legislation does is allow those buildings built before 1979 to come under the same provisions that we enacted under Public Act 81-1169 ***.
* * *
The legislation [section 21.3] was passed by this General Assembly addressing those new buildings that were put up from 1979. I think the same provision should be enacted under the same statute of repose for those that were built before. I think it’s only fair since we know that those buildings are in good shape. They’ve been standing for more than the 12 years, and it would only affect those that are not under the current law. *** It’s fair and it basically eliminates all those designs and records, etcetera, that some of the architects in buildings and engineers will have to maintain for a lifetime if, in fact, we don’t do this.” (Transcription of House Proceedings, May 18, 1981, at 244-46.)

On the basis of these statements, it is apparent that the legislative intent was that the repeal of the savings clause act as an immediate bar to actions premised on defects in the design and construction of buildings constructed before 1979 which at that time would have been barred but for the savings clause. That the legislature intended the repeal of the savings clause to have immediate effect is also borne out by the deletion of the clause almost immediately after its erroneous inclusion in the Code of Civil Procedure.

Even where there is a clear legislative intent that a statute be given retroactive effect, however, the enactment will not be so applied when to do so would lead to unreasonable or unjust results. (Hathaway v. Merchants’ Loan & Trust Co. (1905), 218 Ill. 580, 75 N.E. 1060.) Whether retroactive application of legislation is permissible is not dependent on such outmoded distinctions as whether vested or nonvested rights are affected, or whether a statute affects rights or merely affects remedies. Rather, such cases must be decided on the basis of whether basic concepts of justice, fairness and equity militate for or against the retroactive application of the statute to a particular class of persons. Generally, retroactive statutes which courts have declared invalid have been deemed “oppressive, impolitic, unjust, arbitrary, do substantial injury, are unreasonable, wanting in equity, [and] inconsistent with ‘the prevailing views of justice.’ ” (Smith, Retroactive Laws and Vested Rights, 5 Tex. L. Rev. 231, 247-48 (1927).) In applying fundamental concepts of justice, fairness and equity to the issue of whether a particular statute of limitations should be retroactively applied to a given class of individuals, the most important inquiry is whether retroactive application gives effect to, or defeats, the bona fide expectations of the members of the class. The competing interests of the affected persons must be carefully weighed in order to arrive at a just result. See Smith, Retroactive Laws and Vested Rights II, 6 Tex. L. Rev. 409, 427, 431 (1928); see also Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 242-43, 447 N.E.2d 408, 416 (Ryan, J., concurring).

In instances where a statute of limitations which shortens the period in which to bring an action is enacted without a savings clause, justice requires that the owner of a cause of action which is barred by the current statute be afforded a reasonable time after its effective date in which to bring his action. (See generally Nergenah v. Norfolk. & Western Ry. Co. (1980), 81 Ill. App. 3d 866, 401 N.E.2d 1154; Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 391 N.E.2d 177.) In such a situation, the holder of a cause of action has little or no advance notice that the period of time for bringing his action is about to draw to a close. Furthermore, the potential defendants — on the basis of case law as developed in decisions such as Nergenah and Cutsingeo — have reason to believe that despite the current limitations period, the claims against them will not be barred until after the claimants have had a reasonable time to file their actions. In such circumstances, the interest of claimants in not having their right to relief immediately cut off by a new statute of limitations outweighs the interest of potential defendants in obtaining the immediate protection of the current statute.

The case sub judice presents a different situation, however. Here, by virtue of its savings clause, the current statute of limitations was not made immediately applicable to the plaintiffs cause of action. It is not unusual for statutes of limitations to include provisions such as this, which are intended to preserve for a short period rights which are in existence as of their effective date. In most instances, the statute expressly states the duration of this period. (See 53 C.J.S. Limitations of Actions sec. 4(b), at 915 (1948).) Although the savings clause at issue here contains no such express statement as to its duration, it was certainly the legislature’s prerogative to bring an end to the applicability of the savings clause after it had been in force for a reasonable period of time.

In the present case, the plaintiff had over 21 months between the effective date of the current statute of limitations and the repeal of its savings clause, and at least 39 months between the date that it discovered the damage and the date of the repeal in which to file suit. Instead of acting with diligence to protect its rights during the time that the savings clause was in force, the plaintiff did nothing. The defendants could reasonably have concluded from plaintiff’s inaction while the savings clause was in force that plaintiff had no intention of enforcing its rights against defendants and could justifiably have regarded the legislature’s repeal of the savings clause as bringing an end to their exposure to liability stemming from plaintiff’s claims.

Under these circumstances the interest of potential defendants in being able to rely on the repeal of a savings clause as a final bar to the claims of others outweighs the claimants’ interest in being able to pursue actions filed several months after repeal of the savings clause.

(In support of its argument that it was entitled to a reasonable period of time following repeal of the savings clause in which to file suit, plaintiff cites the following cases: Moore; Balzer v. Inland Steel Co. (1981), 100 Ill. App. 3d 1071, 427 N.E.2d 999; Jones v. Brill (1981), 97 Ill. App. 3d 943, 423 N.E.2d 930; Nergenah; Cutsinger; and Hupp v. Gray (1978), 73 Ill. 2d 78, 382 N.E.2d 1211. We have carefully examined all of these decisions. None are dispositive of the issue before us, since none of them dealt with the effect of the repeal of a savings clause contained in a statute of limitations.)

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

Affirmed.

WEBBER, RJ., and TRAPP, J., concur.


author: PRESIDING JUSTICE STOUDER

text:
    FERDINAND J. ROEDNER, Plaintiff-Appellant, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Defendant-Appellee.
    Fourth District
    No. 4 — 82—0266
    Opinion filed August 8, 1983.

      Robert C. Nelson, of Belleville, for appellant.
    Susan M. Hickman, of Gillespie, Cadigan & Gillespie, of Springfield, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Ferdinand Roedner, plaintiff, brought this action under the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.) to recover damages from Central Illinois Public Service Company (CIPSC), defendant. After a jury trial in the circuit court of Sangamon County the jury returned its verdict finding the defendant not guilty and the plaintiff appeals.

The plaintiff was employed as a boilermaker by Newton Associates, a conglomeration of contractors serving as the general contractor for the construction of the CIPSC plant near Newton, Illinois, on June 10, 1977. He was 58 years old and had enjoyed good health throughout those years. He was normally employed as a “high rigger,” meaning that his work was usually in the air. On the date in' question he was a working foreman for a rigging gang in the construction process. Pursuant to his duties, he started work on the second shift shortly before 4:30 p.m. He was advised by a supervisor for his employer to walk over to inspect a piece of duct work. The duct work would be lifted by a crane high in the air to be attached to a smoke stack. The piece sat on a working platform called a “fab table.” The tabletop was made up of the flanges of steel beams six to eight inches wide, the top was actually more holes than steel since the distance between the beams was three to four feet. The area around the fab table had been worked into a muddy gob by large rigs running back and forth over the soft dirt mixed with rain. The plaintiff was instructed by his superintendent where to mount the fab table, and he began walking the I beams behind his boss. The beams were slick with rain water and mud from the boots of those on the first shift. When the plaintiff was near the piece of duct work to be inspected, he could no longer walk along the piece of iron but had to cross from stepping approximately three feet from piece to piece. The walking surface was neither planked nor clean. In attempting to step from one beam to another he lost his balance and fell hard straddling the iron, striking his left knee on a cross member under one of the beams and supporting it. There was evidence the plaintiff sustained serious permanent injury to his knee and leg as a result of the incident.

On this appeal the plaintiff argues the trial court erred: (1), in refusing to direct a verdict in plaintiff’s favor at the close of all of the evidence and by refusing to enter judgment n.o.v. after the verdict of the jury had been returned; (2), in declining to grant plaintiff a new trial because of opening statements by defense counsel asserting facts not supported by the evidence; (3), in refusing to grant plaintiff a new trial because the defendant erroneously introduced evidence of contributory negligence and or assumption of risk into the case; (4), in refusing to grant plaintiff a new trial because the court erroneously gave Illinois Pattern Jury Instruction (IPI), Civil, No. 180.18 (2d ed. 1971) tendered by defendant; and (5), in refusing to grant plaintiff a new trial because the testimony of a defense expert was erroneously admitted.

Asserting the applicability of the standard found in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, the plaintiff contends the evidence establishes the liability of the defendant as a matter of law. This action was brought under section 9 of the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 69), which requires that plaintiff prove defendant, owner of the premises in charge of the work, wilfully violated a provision of the Act. Ordinarily these issues present factual disputes to be resolved by the trier of fact (Lyle v. Sester (1981), 103 Ill. App. 3d 208, 430 N.E.2d 699), and in our opinion such rule is applicable to this case.

In his brief the plaintiff has detailed at some length evidence showing CIPSC was in charge of the work. Such evidence includes the underlying contract and certain provisions thereof relating to the rights and duties of CIPSC to inspect the work, direct compliance with safety regulations, etc. It also appeared from the evidence that CIPSC had a staff of approximately 20 nonoperating personnel on the job, 14 of whom were engineers engaged in various activities supporting the owner’s contract duties and obligations. There was also evidence about the construction, purpose and use of the fab table bearing on the question of whether it was a scaffold or other structure within the Act and whether the defendant had wilfully violated the Act. As often occurs, the plaintiff’s discussion of the evidence tends to discuss only the evidence favorable to him or other evidence in its aspect most favorable to him ignoring for the most part any unfavorable evidence. Although such a presentation is understandable, it is not the way in which evidence must be viewed under Pedrick. While we might agree that the evidence would be sufficient to support a verdict in favor of the plaintiff, if that had been the case, that is not the issue before us. Our conclusion is there were factual disputes which should have been submitted to the jury and the jury’s resolution of those disputes in the manner it did is supported by the evidence.

The plaintiff has cited several cases which although of some interest are inapposite to the plaintiff’s principal argument, namely, that liability was established as a matter of law. In Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 394 N.E.2d 403, the factors relevant to “having charge of” the work were discussed at length, but the conclusion of the court was that considering the evidence as a whole it was sufficient to support the judgment of the trial court against the owner school district. Again, in Hausam v. Victor Gruen & Associates (1980), 86 Ill. App. 3d 1145, 408 N.E.2d 1051, the “having charge of” issue was central to the opinion and the factors and cases were reviewed, but the court held that as a matter of law based on all the evidence the architect defendant did not have charge of the work. A summary judgment in favor of the defendant owner was reversed in Carlson v. Metropolitan Sanitary District (1965), 64 Ill. App. 2d 331, 213 N.E.2d 129, and in Westerfield v. Arjack Co. (1979), 78 Ill. App. 3d 137, 397 N.E.2d 451, a judgment against a general contractor was held to be supported by sufficient evidence.

Applying Pedrick, we do not believe the liability of the defendant was established as a matter of law, and we find no error in the trial court’s refusal to enter judgment notwithstanding the verdict.

Plaintiff argues certain remarks of counsel for defendant made during opening statements and closing argument were erroneous and prejudicial. The statements referred to by the plaintiff were those made by defense counsel that the function of the fab table was not to be used as a walkway for workmen.

On this appeal plaintiff asserts the statements of defense counsel are not supported by evidence and should not have been made as part of the opening statement if no evidence was to be introduced thereon. (Schwedler v. Galvan (1977), 46 Ill. App. 3d 630, 360 N.E.2d 1324.) Furthermore, according to plaintiff, in the absence of evidence presented during trial, final arguments referring to facts not supported by evidence were improperly presented to the jury. Although there is some question whether the errors were properly preserved for review by appropriate objection, we fail to see that any error was committed and find that there was an adequate basis in the evidence for the statements which the plaintiff claims are erroneous. There is evidence that the men were instructed not to use the fab tables as walkways but walk around them.

Plaintiff contends reversible error occurred when the defendant interjected the issue of contributory negligence into the case. It is well settled that issues of contributory negligence, assumption of risk, and concurrent fault are not defenses to a Structural Work Act action. (Przybylski v. Perkins & Will Architects, Inc. (1981), 95 Ill. App. 3d 620, 420 N.E.2d 524.) No claim is made that the issue of contributory negligence was directly introduced into the case. According to the plaintiff, it arose indirectly when defense counsel referred to the plaintiff’s job experience. Relying on Basden v. Kiejher Brothers, Inc. (1980), 92 Ill. App. 3d 218, 414 N.E.2d 951, plaintiff insists that the references to experience injected the issue of contributory negligence into the case as a defense.

We have reviewed the various references to the plaintiff’s experience, and under the circumstances of this case we do not see how some references to the plaintiff’s experience could or should have been avoided. One of the principal issues in the case was the construction, purpose and use of the fab table all of which were subject areas within the knowledge of the plaintiff acquired as a consequence of his experience and the nature of his employment over the years. Indeed, it would be difficult if not impossible to describe the plaintiff's activities on the day of the incident without some reference to his experience. We do not believe the remarks in this case are subject to the same criticism as those in the Basden case and consequently we find no reversible error occurred in this case respecting such remarks.

Next the plaintiff argues the trial court erred in giving defendant’s instruction No. 5. This instruction, modeled after IPI Civil No. 180.18 (2d ed. 1971), provided:

“If you decide that the Plaintiff has proved all of the propositions of his case, it is not a defense that something other than a violation of the Structural Work Act by the defendant may also have been a cause of the injury. However, if the sole proximate cause of injury to the Plaintiff was something other than a violation of the Structural Work Act by the defendant, then your verdict should be for the defendant.”

The notes to this pattern instruction indicate the second half of the instruction commencing “*** however, if the sole proximate cause ***” should not be given unless there was evidence introduced to support the proposition. Although there is some contradiction or confusion between the plaintiff’s initial brief and his reply brief as to whether he did object to defendant’s instruction No. 5 when it was tendered, the record does support his final assertion that he did object to the giving of the full instruction. According to the record, plaintiff’s counsel stated: “I object to it, I think that there is no evidence that it was the sole proximate cause.”

On this appeal the plaintiff suggests that there was no evidence that the sole proximate cause of plaintiff’s injury was some cause other than the violation of the Structural Work Act by CIPSC. The trial court believed otherwise and so do we. In fact the plaintiff’s argument only feebly supports this argument in connection with his further assertion that the instruction, even if a correct statement of the law as applied to the evidence, is nevertheless confusing and improperly given because it might be thought by the jury to refer to contributory negligence of the plaintiff. The instruction does not of course refer either to the contributory negligence or assumption of risk of the plaintiff, and this alleged impropriety in the instruction was previously rejected in Zuelsdorf v. Montgomery Ward & Co. (1978), 64 Ill. App. 3d 408, 380 N.E.2d 1130. We conclude there was evidence which justified the trial court in giving the entire instruction, and we do not believe the jury would have been confused or misled by the instruction.

Finally, the plaintiff contends the trial court erred in declining to exclude the testimony of Si Thompson, an expert -witness, who was called by and testified in behalf of the defendant. Thompson, an employee of Newton Associates, was called by the defendant as its last witness. At the time he was called the defendant explained that Tom Hicks, another expert, also an employee of Newton Associates, was unable to be present at that time to testify. The substance of Thompson’s proposed testimony was proffered to the court outside the presence of the jury, but the plaintiff continued to object to the testimony of Thompson because his name had never previously been disclosed to the plaintiff. In response to the numerous interrogatories which had been served on defendant in order to ascertain the names of witnesses, the name of Tom Hicks had been disclosed to the plaintiff as one of the defendant’s proposed experts, and he had been extensively deposed by plaintiff. Not being aware of Thompson, the plaintiff did not have any opportunity to depose him. The trial court overruled the plaintiff’s objection to the testimony of Thompson and he was permitted to testify.

Section 58(3) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 58(3)) creates the statutory duty to disclose the names of witnesses such as Thompson when such information is requested by the opposite party. According to this statute the names and addresses of witnesses shall be submitted “in sufficient time in advance of trial so as to insure a fair and equitable preparation of the case by all parties.” Since Thompson was not disclosed as an expert -witness until the last day of the defendant’s presentation of evidence, it is obvious there is a failure to comply with the disclosure statute.

Where disclosure of a witness has not been made the question remains as to what the trial court should do. The criteria to be considered in determining the necessity or propriety of sanctions are set forth in Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 388 N.E.2d 770. They include surprise to opposing counsel, prejudicial effect, diligence of opposing counsel in seeking discovery, timely objection and good faith.

Applying the foregoing criteria, plaintiff insists the trial court should have excluded the testimony of Thompson as the only appropriate sanction for his late disclosure as a witness and the failure of the court to do so constitutes reversible error. Applying the criteria to the facts of this case, we believe the trial court acted properly, indeed the plaintiff has failed to point out in what manner permitting Thompson to testify was unfair or prejudicial.

At the time Thomspon was called and it was explained that Hicks was unavailable at the time, defense counsel represented that Hicks would be available the next day, but plaintiff’s counsel was not in favor of any delay so the case continued. As indicated earlier, Hicks had been deposed by plaintiff, and plaintiff was well acquainted with the testimony he was expected to give. Thompson’s testimony was quite similar to that of Hicks’ as disclosed by the latter’s depositions, and the plaintiff has not called our attention to any portion of Thompson’s testimony which would not have been presented if Hicks had been the witness. Likewise, no claim is made that the plaintiff was unable to properly cross-examine the witness because it was Thompson rather than Hicks. While the plaintiff may have been surprised at the name of the witness, he was not surprised by the nature and substance of his testimony and has made no claim of prejudice because it was presented by this witness rather than the disclosed witness. Under these circumstances, we agree with the trial court that permitting Thompson’s testimony was appropriate.

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

Judgment affirmed.

ALLOY and SCOTT, JJ., concur.


author: JUSTICE GREEN PRESIDING JUSTICE WEBBER,

text:
      In re K.M.B., a Minor—(The People of the State of Illinois, Petitioner-Appellee, v. K. M. B., Respondent-Appellant).
    Fourth District
    No. 4 — 82—0780
    Opinion filed August 10, 1983.

      WEBBER, P.J., dissenting.
    Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On February 9, 1982, respondent, K. M. B., was before the circuit court of McLean County pursuant to a petition alleging her to be a minor otherwise in need of supervision (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 3) because of her truancy. Before any findings were made at this hearing, the parties requested a general continuance with the minor to be under supervision (Ill. Rev. Stat. 1981, ch. 37, par. 704 — 7). The court continued the case and placed the minor under a supervisory order requiring her to “attend school each and every day, each and every hour of every school day, that she be in attendance.” On February 22, 1982, and June 18, 1982, petitions for rules to show cause contending that the minor had violated the order of continuance were filed. The former was dismissed. The latter was granted and on July 26, 1982, after a hearing, the court found that the minor had violated the terms of the order and was in contempt of court. On September 3, 1982, the court placed the minor on 24 months’ probation conditioned on four days’ imprisonment.

The minor has appealed, contending: (1) The trial court lacked jurisdiction to enter the orders of continuance and contempt; (2) the petition for rule to show cause failed to apprise the minor of the conduct which violated the supervisory order; (3) the order of continuance should have stated that the minor could be absent from school if she had a valid excuse; (4) the order of continuance was not subject to enforcement in an indirect criminal contempt proceeding; (5) the order of continuance did not inform respondent that tardiness would be a violation of the supervisory order; and (6) the contempt sanction imposed constituted cruel and unusual punishment.

The minor’s contention that the trial court lacked subject matter jurisdiction of the proceeding in which the order of continuance was entered is based on the theory that the court’s subject matter jurisdiction is based upon the sufficiency of the original petition. The minor’s argument that the petition was insufficient arises from the statement in the original petition that the minor was truant for 11 days within a period of some 80 consecutive school days. Although section 2 — 3 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 3) provided, at pertinent times, that one category of a minor otherwise in need of supervision was a minor who had been “habitually truant,” the Act does not define that phrase. However, prior to January 1, 1982, section 26 — 2a of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 26 — 2a) stated that an “habitual truant” was “a child subject to compulsory attendance and who [was] absent without valid cause from such attendance for 15 out of 90 consecutive school days.” After January 1, 1982, the reference frame became 10 out of 40 consecutive school days. (Ill. Rev. Stat. 1981, ch. 122, par. 26 — 2a.) The minor maintains that (1) section 26 — 2 of the School Code defines the phrase “habitually truant” for purposes of section 2 — 3 of the Act, and (2) the petition showed on its face that any truancies by the minor were not severe enough to make her an “habitual truant.”

We note that by Public Act 82 — 969 effective January 1, 1983, section 2 — 3 of the Act (Ill. Rev. Stat., 1982 Supp., ch. 37, par. 702.3) was amended to provide that the words “chronic or habitual truant” were to be defined by section 26a — 2 of the School Code. We need not decide whether the previous intent of section 2 — 3 was to incorporate the definition of the School Code because we hold that the variance claimed here between the allegations of the petition and the requirements of section 2 — 3 of the Act, even if the section 26 — 2a definition was incorporated, would not deprive the circuit court of subject matter jurisdiction.

Section 9 of article VI of the Illinois Constitution of 1970 provides that the circuit court has “original jurisdiction of all justiciable matters” with minor exceptions not applicable here. In People v. Gilmore (1976), 63 Ill. 2d 23, 344 N.E.2d 456, the supreme court stated that in a criminal case the circuit court’s subject matter jurisdiction is not dependent upon the sufficiency of the charge. Similarly, in Lopin v. Cul lerton (1977), 46 Ill. App. 3d 378, 361 N.E.2d 6, the court determined that as long as a case presents a justiciable matter the circuit court has jurisdiction of the case and the failure to follow statutory provisions may constitute error, but does not deprive the court of jurisdiction. We have recently spoken upon this change in concept at some length in In re L.E.J. (1983), 115 Ill. App. 3d 993, in holding that the circuit court’s subject matter jurisdiction under the Juvenile Court Act is not dependent upon compliance with statutory provisions concerning notice to parents of the minor. See also In re Estate of Mears (1983), 110 Ill. App. 3d 1133, 443 N.E.2d 289.

In view of the foregoing precedent, we have no hesitation in holding that subject matter jurisdiction was not lacking when the petition alleged that the minor was an habitual truant even if the petition set forth ultimate facts that were, of themselves, insufficient to support the allegation. The court had subject matter jurisdiction to enter the order of continuance and, thus, to make the minor subject to that order.

The minor maintains that her father received no notice of the hearing on the rule to show cause and, as a result, the court lacked subject matter jurisdiction to enter the order of contempt. Although the contempt proceeding was criminal in nature, the minor contends that because of her minority, the Juvenile Court Act procedures should have been followed and her father given notice. Under In re L. E. J., lack of notice to the father would not have deprived the court of subject matter jurisdiction even if compliance with the Act’s procedures was required. In any event, we know of no authority which requires giving notice to the parents of a respondent when the court is exercising its inherent power to punish for contempt. See In re G.B. (1981), 88 Ill. 2d 36, 430 N.E.2d 1096.

We consider the well-known decision in In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428, to be applicable only to juvenile proceedings. There, the United States Supreme Court was concerned with summary procedures often used in juvenile proceedings where the traditional safeguards of a criminal proceeding were ignored. The contempt order was rendered neither void nor erroneous because of any failure to notify the minor’s father.

The minor maintains she was not sufficiently apprised of the conduct she was charged with because the petition for rule to show cause failed to allege that her conduct in not attending school was wilful. We called attention to the importance of an allegation of wilfulness in charging indirect criminal contempt in the case of In re T.V.P. (1980), 90 Ill. App. 3d 800, 414 N.E.2d 209, but we reversed on other grounds. The petition did allege that the minor’s absences were “without authority.” Thus, the petition gave some indication that the minor was being charged with missing classes when she had no valid excuse to do so. Accordingly, the failure to allege wilfulness is not fatal when the issue is raised for the first time on appeal. People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437.

The minor attacks the terms of the continuance order for its failure to provide that she might be properly absent for a reason recognized by section 26 — 2a of the School Code (e.g., illness, family emergency, etc.). Notably, section 4 — 7(6)(k) of the Juvenile Court Act (Ill. Rev. Stat., 1982 Supp., ch. 37, par. 704 — 7(6)(k)), which became effective September 8, 1982, five days after the contempt order, lists as a permissible condition of continuance under supervision, a requirement that the minor “attend school.” Thus, that statutory provision does not set forth the qualifications of such a requirement. Although the continuance order’s provisions were unnecessarily broad for failure to indicate that certain absences might be excused (see In re K.S.Y. (1981), 93 Ill. App. 3d 6, 416 N.E.2d 736), there is some inherent implication in the order that noncompliance on reasonable grounds was permitted by the order. The record gives no indication that the minor here was confused in regard to whether she was required to attend school when she had a reasonable excuse not to do so. The order of continuance did not contain error.

The court entered an oral order of continuance setting forth the conditions of supervision. No written order was ever filed. When a minor is placed on probation or conditional discharge, section 5 — 3(2) of the Act (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 3(2)) requires that the minor be given a certificate setting forth the conditions thereof and section 5 — 3(9) (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 3(9)) provides that rules or orders of the court “must specify the term and conditions of supervision ordered under this Act.” The minor contends that her contempt conviction was erroneous because she never received a written document setting forth the rules of her supervision during continuance.

The minor cites the case of In re Serna (1978), 67 Ill. App. 3d 406, 409, 385 N.E.2d 87, 89. There, a minor was also placed on supervision during continuance under section 4 — 7 of the Act. The court admonished the minor “ ‘to stay out of trouble' ” and “ ‘to listen to his mother and to his probation officer’ ” and stated that a set of rules would be given to him. The appellate court concluded that termination of the minor’s supervision for violating a condition of supervision, about which he was never told, violated due process. The court noted that section 5 — 3(9) required that rules or orders of court specify the conditions of supervision. Here, the court order did specify that the minor was to attend school every day and each hour of the day. Although it is highly desirable that the minor receive a concise written statement of the conditions of supervision, the Act does not expressly so require. Because the record gives no indication that the minor was unaware of what was required of her, clearly no due process violation occurred. We again find no reversible error.

A further problem has arisen in this case because the conditions of the order of continuance made no express reference to the minor being tardy, yet all of the absences shown to have been committed by the minor were actually instances of tardiness. In the case of In re M.C. (1980), 89 Ill. App. 3d 1130, 412 N.E.2d 709, a court direction to a minor to attend school was held to be insufficient to support a finding of contempt for tardiness. However, there was no direction in that case that the minor attend “each and every hour of every school day” as here. Technically, the minor could be less than an hour late in the morning and thus attend during every hour. However, we deem the direction for the minor to attend “each and every hour” to prohibit tardiness. Although the record indicates dispute as to whether there was confusion on the part of the minor’s family as to when school started, the record gives no indication that the minor thought that inexcusable tardiness was not a violation of the order.

The minor’s half brother testified that he had the responsibility for taking the minor to school and that he had thought that school started at 9:10 a.m. when it actually started at 9:05 a.m. He stated that the minor had told him he was wrong, but he did not believe her. He indicated that he did not trust her and was afraid to take her to school before the required time because he thought she might be more likely to leave school if he did so. His testimony was not directly contradicted, as he and the minor were the only persons privy to these alleged conversations and she did not testify.

The trial judge did not believe the testimony, and the minor has not contended on appeal that he was required to do so. The minor was 13 years old at the time of the contempt hearing and had been 12 years old during the period when the tardiness was an issue. She had been before the court in February of the school year when the order of continuance under supervision was entered. Later that month, a rule to show cause was entered against her charging her with the failure to comply with the previous court order on two dates, one of which was February 15, 1982. That rule was discharged without a hearing, but February 15, 1982, was one of the dates upon which she admitted at the contempt hearing that she had been late to school. The minor’s mother testified that the minor had never complained to her that the half brother was not getting her to school on time.

The trial judge could have properly concluded that, considering the age of the minor and the admonitions given her to be regular in her school attendance, it would be most unlikely that she would not complain to her mother if her half brother were regularly making her tardy by failing to get her to school on time. The testimony of the half brother did not preclude a determination by the trial court that the minor’s failure to attend classes on time was wilful.

It is important to recognize that the alleged conduct which originally brought the minor before the court was to be measured by a statutory definition of the word “truant.” However, the conduct alleged to constitute contempt is measured not by statutory definitions, but by the terms of the order as long as those terms involved a requirement that the minor “attend school.” The trial court’s contempt power against a party who disobeys the court order is not limited by a legislative determination as to the responsibility for disobedience to compulsory attendance laws. (See G.B.; In re Baker (1978), 71 Ill. 2d 480, 376 N.E.2d 1005.) The issue is not whether the minor’s conduct was in defiance of parental authority, but whether it was in defiance of the authority of the court.

Finally, the minor maintains that the contempt conviction subjects her to cruel and unusual punishment because truancy is a status and a status cannot be a ground for punishment. (Robinson v. California (1962), 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417.) The issue was not raised below and is waived. (People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.) Furthermore, here, the minor was not being punished for being a member of a group classified as truants, but rather for the failure to perform certain acts, namely attending school regularly. The fact that certain acts of omission or commission are influenced by the status of the actor does not give the actor an eighth amendment defense. (Powell v. Texas (1968), 392 U.S. 514, 20 L. Ed. 2d 1254, 88 S. Ct. 2145.) Although the question of whether the incarceration imposed constituted cruel and unusual punishment was not raised, it is notable that the seminal case of In re G.B. (1981), 88 Ill. 2d 36, 430 N.E.2d 1096, involved the violation of an order for a minor to attend school. The sanction imposed here did not constitute cruel and unusual punishment.

We recognize the volume of cases arising concerning juveniles and of the necessity of disposing of them expeditiously, using forms for petitions, notices, and orders. However, we urge those involved to proceed with precision. Here, the order of continuance made no mention that a reasonable excuse might justify a failure to attend and made no direct reference to tardiness. No written document setting forth the conditions of supervision was given to the minor. The petition for rule to show cause did not allege wilfulness. If notification to a minor’s parents is required for proceedings under the Juvenile Court Act, it is highly desirable that such a parent be notified of a contempt proceeding brought for failure to comply with an order entered under the Act.

We have not found any of the above shortcomings to have prejudiced the minor here and, accordingly, have found no reversible error to have occurred. Our affirmance should not negate our expression of the need for care in this type of case.

We do, however, affirm.

Affirmed.

MILLER, J., concurs.

PRESIDING JUSTICE WEBBER,

dissenting:

I respectfully dissent and suggest that the majority has performed some remarkably facile semantic divagations in order to reach a desired result. This case is fatally flawed both procedurally and substantively.

As to procedure, we have recently spoken at length on the mechanics of contempt in People v. Mowery (1983), 116 Ill. App. 3d 695, and there is no need to rehash that opinion here. In the case at bar we have nothing but an oral order from the bench and a petition for rule which fails utterly to allege that the respondent’s conduct was wilful. The majority places a narrow focus on In re T.V.P. (1980), 90 Ill. App. 3d 800, 414 N.E.2d 209, in an apparent effort to avoid the salutary admonition in that opinion that contempt should be used sparingly in supervisory cases. We have also condemned the parallel system of juvenile justice growing out of the contempt power. In re K.S.Y. (1981), 93 Ill. App. 3d 6, 416 N.E.2d 736.

A random parol order followed by a deficient petition yielding severe punishment is scarcely something to inspire unlimited confidence in the system.

More significant in my judgment is the failure of the trial court and the majority to comprehend the nature of truancy. They place the entire burden on the child, while the law is that truancy is the responsibility of the parents. In Chicago Board of Education v. Kouba (1976), 41 Ill. App. 3d 858, 866, 354 N.E.2d 630, 636, it is stated:

“We think truancy may be defined as the wilful unexcused refusal of a pupil to attend school in defiance of parental authority and in violation of an applicable compulsory school attendance law.” (Emphasis added.)

It is true, as the majority notes, that “habitual truant” is defined in section 26 — 2a of the School Code, but it is of greater importance that the penalty for such conduct is laid upon the person having custody or control of the child under section 26 — 10 (Ill. Rev. Stat. 1981, ch. 122, par. 26 — 10). The sole evidence on behalf of the State was the minor’s attendance record at school; she did stipulate to it; and it showed the number of times tardy. The majority lays emphasis on the testimony of the half brother, who was 22 years old and appeared on behalf of the minor. He did state that he ignored the minor’s protests, but also stated that he really “wasn’t clear” on what time classes commenced. The minor’s mother also testified on her behalf and stated that she had no idea why the brother conceived the notion that school began at 9:10 rather than 9:05; she stated further that she did not realize that the minor was being tardy until so notified by the school authorities near the end of May. The tardiness began in February. If, as the majority holds, it was unlikely that the minor would not complain to her mother, why is it likely that the school authorities would allow the condition to perpetuate itself over a period of three months? Even if we assume that the trial court did reject all of the minor’s evidence, as it was privileged' so to do, there is nothing left in the record except the minor’s attendance record, a mute piece of paper which tells us nothing about the minor’s motivations, whether wilful, negligent, mistaken, careless, involuntary, or any other frame of mind. The evidence in no way sustains the trial court’s order and finding.

The cold fact of the matter is that this minor received the worst of three forces, all arrayed against her: her brother, the school, and the courts.

The majority also holds that her conduct was not truancy but disobedience of a court order. Just how an act which would not be culpable in the absence of a court order becomes so by virtue of that order escapes me. If the court orders a minor not to sneeze and he does so, presumably he may be punished. It is only one more reason for harnessing the contempt power.

As a matter of philosophy, I find it depressing to observe that truancy, being a school problem under the School Code, has been grafted onto the juvenile justice system because the school authorities have been unable to solve it. Just why a circuit judge possesses more expertise is a question not answered by the statute.

I would vacate the contempt order and sentence.


author: PRESIDING JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PATRICK DENNIS DAVIS, Defendant-Appellee.
    Fourth District
    No. 4 — 83—0049
    Opinion filed August 10, 1983.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Rebecca White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant was charged in the circuit court of Vermilion County with two counts of residential burglary in violation of section 19 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3). The counts were severed for trial and he was convicted by a jury of the offense under the first count. The second count was then allotted for trial and the State filed a motion in limine seeking to introduce into evidence at the second trial defendant’s conviction in the first for the purpose of showing his intent. Defendant filed a similar motion seeking to prohibit the use of the prior conviction for impeachment.

The trial court held an extremely attenuated hearing on the State’s motion and denied it with the brief statement, “I don’t think it should go in, in this case.” No argument was held, and no specific ruling made, on defendant’s motion. The State has appealed the ruling on its motion pursuant to Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)). The certificate required by People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501, has been filed.

The defendant has first argued that the appeal should be dismissed because it is from a simple evidentiary ruling, not from an order of suppression, citing People v. Flatt (1980), 82 Ill. 2d 250, 412 N.E.2d 509. We do not agree. Flatt indicated that it might be difficult at times to distinguish between an evidentiary ruling and an order of suppression, but also made a primary distinction between a ruling in the course of trial and a ruling in limine. The ruling in Flatt was in the course of trial; the ruling here is in limine; hence, Flatt is inapposite.

Defendant has also argued that the exclusion of the prior conviction would not substantially impair the State’s case and hence we should not consider it. We find no fiat in Young for this court to second-guess the prosecutor. The supreme court stated directly, “Our intention *** is not to formulate a standard by which courts may determine the appealability of a particular order. *** Instead we rely solely upon the good-faith evaluation by the prosecutor of the impact of the suppression order on his case.” People v. Young (1980), 82 Ill. 2d 234, 247, 412 N.E.2d 501, 507. See also People v. Jones (1981), 102 Ill. App. 3d 238, 429 N.E.2d 1094.

In its brief the State argues both the intent and the impeachment theories. Since the notice of appeal specifies that it is appealing “An order suppressing ‘other crimes’ evidence to show the intent of the defendant in entering a dwelling,” we decline to consider the impeachment theory.

As to the merits of the case, the record is totally inadequate for us to make a considered decision. “It is elementary that where a party desires to have a judgment reviewed it is incumbent upon him to present in the record the proceedings and judgment sufficient to show the errors complained of.” (Knecht v. Sincox (1941), 376 Ill. 586, 589, 35 N.E.2d 68, 69.) “Where the appeal record fails to comply with the requirements of statutes or rules of court, an appellate court may dismiss the appeal, affirm the judgment, or take other action.” 4A C.J.S. Appeal & Error sec. 1100 (1957).

In the instant case, as indicated above, we have only the bare-bones statement of the trial court and consequently we are deprived of the benefit of his thinking on the matter. We believe that if the State is to appeal under Supreme Court Rule 604(a) (87 Ill. 2d R. 604(a)), a formal judgment order of the kind specified in section 114 — 12(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 12(e)) is desirable. In Young the supreme court held that the scope of interlocutory appeals by the State was not defined by section 114 — 12, but we perceive no logical reason why the mechanics of such an appeal should not follow the procedures outlined therein.

The State has thus failed to carry its burden and lacking any other information, we indulge the familiar presumption in favor of the finding of a trial court. Its order is therefore affirmed.

Affirmed.

MILLS and MILLER, JJ., concur.