text:
      In re PETITION FOR FEES IN: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. DAVID “MICK” JOHNSON, Defendant; THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. JOHN L. DORRIS, Defendant; R. C. LANTO, JR., et al., Petitioners-Appellants, v. THE PEOPLE OF THE STATE OF ILLINOIS, Respondents-Appellees.
    Fourth District
    No. 4—82—0109
    Opinion filed November 4, 1982.
    John Gadau, of Champaign, for appellants.
    Thomas J. Difanis, State’s Attorney, of Urbana (Trisha Crowley, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

This matter is again before us on the petition of attorneys Reino Lanto and Paul Wilson, Jr., for fees in connection with their appointment to defend “Mick” Johnson and John Dorris in the circuit court of Champaign County.

On a prior appeal concerning the same subject matter (People v. Johnson (1981), 93 Ill. App. 3d 848, 417 N.E.2d 1062), this court reversed the holding of the trial court and remanded the case for reassessment of fees. The supreme court granted leave to appeal, affirmed this court in that reasonable fees were to be assessed, and remanded to the trial court for that purpose. People v. Johnson (1981), 87 Ill. 2d 98, 429 N.E.2d 497.

Upon remand from the supreme court, the circuit court again considered the matter without holding any further evidentiary hearing. In a lengthy memorandum opinion the circuit court dealt with a variety of factors. It accepted the number of hours stated by petitioners as having been spent in their representation of Johnson and Dorris. It then concluded that the cases were not complex; this finding appears to be based largely on the size of the files and the court’s comment that the bulk of the files was comprised of discovery materials. It also noted that Johnson’s case was dismissed.

The court then turned to a consideration of local conditions and found that there were a large number of competent attorneys in Champaign County ready and willing to accept criminal appointments, and held the supreme court’s concern about a small group inapplicable. In connection with local conditions the court also noted that the budget prepared by the Champaign County Board reduced the appropriation for appointed counsel fees by some 40%. The court found that examination of public defenders’ salaries and the fees awarded to special prosecutors was of little assistance.

The court then turned its attention to specific figures. It was of the opinion that under the supreme court’s decision it could either start upward from fixed overhead costs or downward from the going rate for private counsel. The court complained that it was “left adrift without an oar.” Nonetheless, it elected to start with the overhead figure. It found Lanto’s overhead was $18 per hour and Wilson’s was $21. It then struck a rough average of $20. It next considered hourly rates and found Lanto’s to be $55 to $60, and Wilson’s $75. Other evidence persuaded the court that considering the community generally, the hourly rate should be fixed at $60. Lanto, at the original hearing, testified to a total of 162 hours of which seven were in court; Wilson testified to a total of 255 hours, 35 in court.

The court then awarded Lanto the sum of $4,050 and Wilson $7,740. Simple arithmetic demonstrates that Lanto then received $25 per hour and Wilson $30 per hour. Based on their overhead figures as recited above, their fees become $7 per hour for Lanto and $9 per hour for Wilson.

We do not believe that the trial court properly interpreted the opinion of the supreme court and overlooked the formula laid down in that opinion. We therefore vacate its award.

The parties have argued strenuously that the trial court erred in not convening a further evidentiary hearing upon remand. Specifically, the petitioners complain of the court’s taking judicial notice of local conditions. We believe that the argument is beside the point. The real problem is the failure of the trial court to follow the mandate of the supreme court.

While we believe that it would have been preferable for the trial court to allow argument from the parties on the matters of which it took judicial notice, particularly the local conditions, we cannot say that this notice can be elevated to the level of reversible error. All of the matters considered in addition to what had already been presented at prior hearings were items of public knowledge and particularly within the knowledge and experience of the trial judge. (Compare Welsh v. Welsh (1976), 38 Ill. App. 3d 35, 347 N.E.2d 512.) The situation is unlike that in which a trial judge makes a private investigation of operative evidentiary facts as in People v. Wallenberg (1962), 24 Ill. 2d 350, 181 N.E.2d 143.

The supreme court’s mandate to the trial court was explicit:

“THEREFORE, it is considered by the Court that the judgment of the Circuit Court of Champaign County, BE AFFIRMED IN ALL THINGS AND STAND IN FULL FORCE AND EFFECT, notwithstanding the said matter and things therein assigned for error, and this cause be remanded to the Circuit Court of Champaign County for a redetermination of the attorney fee awards in accordance with views expressed in the opinion attached to this mandate.”

Thus the duty of the trial court was to apply the formula stated in the supreme court’s opinion to the facts generated in the trial court’s record, together with the matters of which the trial court took judicial notice, and arrive at a redetermination. This was a pure mechanical exercise and was necessary only for the reason that no power exists in a reviewing court to order an additur. Supreme Court Rule 366(a)(5) (87 Ill. 2d R. 366(a)(5)) permits a remittitur, but we are aware of no authority permitting additur under the Rule, except in cases of obvious arithmetical error. In the instant case the supreme court apparently felt that local conditions were significant in its formula and these were absent in the record before it.

It is our opinion that the trial court erred in confining its redetermination to a single paragraph in the supreme court’s opinion. That portion of the opinion states:

“Accordingly, we believe that reasonable compensation ‘should reimburse assigned counsel for his overhead and yield something toward his own support.’ (State v. Rush (1966), 46 N.J. 399, 413, 217 A.2d 441, 448.) In the instant case, this was not done. A fee award which is insufficient to cover reasonable office overhead and expenses of trial is clearly unreasonable.” 87 Ill. 2d 98, 105, 429 N.E.2d 497.

Contrary to the trial court’s finding that the supreme court’s opinion permits either escalation from an overhead figure or de-escalation from an hourly rate figure, we believe that the foregoing quotation specifically rejects the overhead approach.

The key to the supreme court’s opinion, its “formula,” is contained in the paragraph following:

“The formula for reasonable compensation should be the hourly fee normally charged for comparable trial court services, less an amount adequate to satisfy the pro bono factor. In determining what constitutes a reasonable fee, the trial court must consider a number of factors, including, but not limited to, time spent and services rendered, the attorney’s skill and experience, complexity of the case, overhead costs, and expenses of trial. Another consideration is local conditions, which refers to the number of attorneys, in a given location, who could be called upon to perform pro bono work. Where there are only a few criminal-trial lawyers in a particular locale, the court must necessarily appoint attorneys from the same select group to represent indigent defendants. This process imposes an unfair burden on that group of attorneys, a burden which is not being shared by all members of the bar. The trial court must also consider this inherent inequity in determining compensation.” 87 Ill. 2d 98, 105-06, 429 N.E.2d 497, 500.

The court dealt with two concepts: “reasonable compensation” and “a reasonable fee.” The former is an abstraction, while the latter is concrete; the former is what ought to be paid, while the latter is what is paid.

At its root “compensation” carries the notion of balancing. In Webster’s Second New International Dictionary 545 (1959), the primary meaning is defined as “[t]hat which constitutes, or is regarded as, an equivalent or recompense.” This is elaborated in Webster’s Dictionary of Synonyms 610 (1st ed. 1951):

“Compensate is often preferred to pay when no legal obligation is implied or no payment for services is expected, because the term stresses a return, usually but not necessarily in money, that is regarded as an equivalent for a service given, for trouble taken, time spent, or the like; as, to compensate a waiter for his cheerful willing service; to compensate a friend for the time he spent in helping one; to compensate a neighbor for taking care of one’s pets during the summer. But in this sense compensate often does not imply an obligation to another or the passing of money; it often suggests a counterbalancing, as of something unpleasant by something pleasant, or of something lost by something gained; ***.”

The court mandated this balancing process: take the hourly rate and balance against it a pro bono factor to determine a “reasonable fee,” the amount in fact to be paid. Under the formula the fee will be less than the compensation. How much less is determined by the factors outlined by the court.

The trial court therefore was in error in its method of computation. Additionally, even if it had used the proper method, we find a clear abuse of discretion. As applied to Lanto, the pro bono reduction amounts to 58.4%; as applied to Wilson, it is 60%. We find these reductions excessive. In our opiinion the reductions in the instant case, based upon all the factors in the record, should not exceed 40%. We make this statement only as dictum since the supreme court rejected the definitive approach used in Wisconsin (331/s% reduction) and in New Jersey (40% reduction).

It remains to be decided what disposition is to be made of this case. As has been indicated, this is its third appearance in the reviewing courts and judicial economy indicates that it should end here. However, as has likewise been indicated, we find ourselves powerless to order an additur, even though we believe that this court possesses the competency to determine fees, a competency which extends to all courts. Welsh.

Therefore, the judgment of the circuit court of Champaign County that fees are due is affirmed, but its redetermination of them under the supreme court’s mandate in Johnson is vacated and the cause is again remanded to that court for another determination under the supreme court’s formula as explicated in this opinion.

Vacated and remanded.

MILLS and TRAPP, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    HAYDEN’S SPORT CENTER, INC., Plaintiff-Appellant, v. EDWIN JOHNSON et al., Defendants-Appellees.
    Second District
    No. 82—544
    Opinion filed November 1, 1982.
    Sam Alschuler and Paul A. Lewis, both of Alschuler, Putnam, McWethy, Funkey & Grometer, of Aurora, for appellant.
    Stephen M. Cooper, of Geneva, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Hayden’s Sport Center, Inc., appeals from an interlocutory order of the circuit court of Kane County denying its motion for a preliminary injunction. Plaintiff’s motion, filed with its complaint, seeks to enjoin defendants Edwin Johnson and Joseph S. Calcione from engaging in the sporting goods business until the court rules on the merits of the suit. Plaintiff alleges in its complaint that Johnson and Calcione breached the restrictive covenants in their employment contracts and their duties as agents not to disclose to third persons confidential matters when they resigned their positions as plaintiff’s salesmen and began to work for a competitor, Pro-Quip, Inc. After a hearing on plaintiff’s motion, the trial court denied the motion from which the plaintiff appeals.

Plaintiff sells sporting goods at retail and at wholesale to schools. Johnson began working for plaintiff in the fall of 1974, and Calcione began in September 1975. As plaintiff’s salesmen, they worked out of a Rockford office concentrating on sales of sporting goods to schools. They resigned their positions within a month of each other and began to work for defendant Pro-Quip, Inc., around March or April of 1982. They presently engage in the same work in the same geographical area as when they worked for plaintiff.

Johnson and Calcione had signed identical employment contracts with plaintiff containing a covenant not to engage in the sporting goods business in the area of Illinois north of Interstate Route 74 for two years upon termination of their employment. The covenant further prohibited them from disclosing information obtained while employees of plaintiff. Calcione testified that he signed his employment contract a year after he began working for plaintiff and after he had received a $1,000 salary increase. At the time he received his salary increase there had been no discussion concerning a written contract and he received no extra money or benefits after signing the contract.

Johnson testified that he signed his employment contract without any objections, believing that if he had refused to sign it, his employment would have been terminated. Plaintiff’s president, Ron Kruse, testified that Johnson signed the contract in May 1976 and had received his salary increase in March of 1976.

Calcione testified that plaintiff had not been doing any business in the area immediately north of Interstate Route 74 prior to the execution of his employment contract but that he later opened an office in that area. Plaintiff’s president testified that plaintiff had been doing business with schools in the Champaign area and the southern counties prior to 1976. He testified that presently plaintiff has offices in Rockford and Champaign, Illinois, and has two salesmen working out of their homes in Arlington Heights and Morton, Illinois.

Defendants Calcione and Johnson, as well as their secretary, each received copies of plaintiff’s “red book” while employees of plaintiff. They were the sole employees in the Rockford office. Although the secretary had a copy of the red book, she had never signed a written employment contract with plaintiff.

The red book contains a description of the products carried by plaintiff, their selling prices for schools, and plaintiff’s actual cost for each item. The red book is a compilation of suppliers’ catalogs and price lists for the product lines sold by plaintiff. The individual suppliers’ catalogs and price lists are available to any wholesaler or retailer who wants to sell that product line. Once a wholesaler determines which product line to sell, a red book type of compilation can be assembled in around five hours. The plaintiff’s cost was listed under a letter code rather than outright, so that a purchaser perusing the red book would not see plaintiff’s cost. The actual cost of ,an item depends upon the quantity purchased from the supplier or manufacturer. All wholesalers are charged the same unit price for the volume purchased, and those prices are set forth in the supplier’s price list. The volume purchased by individual wholesaler or retailer, however, is not readily available to the general public or competitors.

The red book also contains information concerning plaintiff’s “private label” goods. Private label goods are manufactured by a supplier who uses plaintiff’s own labels. It allows plaintiff to be more competitive. When ordering items, schools usually specify items by brand names. Defendants knew the manufacturers of plaintiff’s private label products, but it would be difficult, although not impossible, for the public to find out the manufacturer of a private label good. An experienced sporting goods salesperson could discern the manufacturer of a private label good by examining it.

The red book serves as a useful and convenient sales item. It allows salesmen to have all the needed information in one book without having to carry each supplier’s catalog on a sales call and allows the salesperson to determine plaintiff’s cost in quoting a price to a purchaser. Plaintiff’s sales people have discretion in setting prices and their determination is based on the unit cost found in the red book.

Price is a determining factor in making a sale. School districts look to price and quality in making a purchase, and salesmen attempt to sell at the lowest price needed to make a sale. A salesperson may be able to underbid another salesperson if he knows at what price the other salesperson is able to sell an item. .

Prices for sporting goods change rapidly and Calcione testified that the information contained in the red book would be outdated after 30 to 45 days. The “Illinois school system” publishes a list of comparable items in given bids which is available to school coaches and salespeople. Furthermore, manufacturers publish lists comparing the standards for different lines of sporting goods.

Calcione testified that he did not take the red book with him when he resigned, that the last time he saw it was on the day he resigned, and that he did not copy it. Johnson admitted that he took a red book with him when he left and kept it for around three weeks. Plaintiff’s president testified that when Johnson returned the red book, Johnson stated, “I won’t be needing it any more, I know it by memory anyway.” Calcione further testified that the red book would not be useful while working for Pro-Quip, Inc., because they sell different product lines. There was, however, contradictory testimony concerning the extent of the differences between the product lines sold by Pro-Quip, Inc., and plaintiff.

In addition to the red book, plaintiff maintains “dead files” which contain old orders of clothing or items of a special order nature. These files were kept to resolve billing problems, record what items had been sold service customers, and simplify the reordering of the same item. While an employee of plaintiff, Calcione used old records to determine what a school had purchased in previous years in order to improve his salesmanship. Both Calcione and Johnson testified that they did not take any dead files with them when they resigned. They testified that the information found in the dead files would not be useful to them because Pro-Quip, Inc., sold different product lines. Salespeople could examine and Calcione did, in fact, examine school districts’ invoices to determine what items the school purchased in previous years.

Plaintiff also keeps a card system, started in 1959, containing customer names and contact persons. Computer printout sheets also exist which contain similar information. Defendants did not take any of these items when they resigned. Calcione testified that he did not know plaintiff maintained a customer list; Johnson testified that he knew every customer by memory.

Robert Hawkins, president of Pro-Quip, Inc., testified that he did not have a list of customers before he hired Johnson and Calcione but now he has a list: “what they brought.” Pro-Quip, Inc., had zero percent of the market before it hired Johnson and Calcione. Plaintiff dominated the northern section of Illinois although it had around ten competitors. School districts who purchased from plaintiff were not plaintiff’s exclusive customers.

Calcione testified that since beginning work for Pro-Quip, Inc., he uses an Illinois Coaches’ Directory which lists all the schools and athletic directors. He has contacted those schools in the directory which he had dealt -with while working for the plaintiff and has used contacts he made while working for the plaintiff. He further testified that he has obtained names of potential customers from telephone directories. Now, he deals mostly with the same people he dealt with when the plaintiff’s employee. Johnson testified that the names of potential purchasers are generally available to those in the sporting goods business. Plaintiff’s president testified that although it is no secret who its customers are, it takes a maximum amount of time to find out who purchases sporting goods for a school, the director or an individual coach. According to him, it takes around two or three telephone calls to determine the proper person to contact. Johnson testified that the total time involved in making such an inquiry is 10 to 30 minutes.

The trial court granted defendants’ motion for a directed verdict on the issue of the enforceability of the restrictive covenant after plaintiff rested its case. The court found that the covenant failed because it lacked consideration, but the unfair competition counts were still alive and required defendants to proceed. After the defendants rested, the trial court denied the plaintiff’s motion for a preliminary injunction, finding that there was an insufficient likelihood of plaintiff’s success on the merits to warrant an injunction in that (1) the customer lists were readily available and not hard to discern and (2) the red book, while a helpful price gauge, is not a trade secret because prices change quickly.

The first issue presented is whether the trial court erred in denying plaintiff’s motion for a preliminary injunction.

A party seeking a preliminary injunction needs to show that (1) there is no adequate remedy at law and there will be irreparable injury if the injunction is not granted; (2) the threatened injury to him will be immediate, certain, and great if the injunction is denied while the loss or inconvenience to the defendant is comparatively small and insignificant if granted; (3) there is a reasonable likelihood of prevailing on the merits of the case; and (4) there would be no injurious effect upon the general public. (Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App. 3d 498, 502; Office Electronics, Inc. v. Grafic Forms, Inc. (1978), 56 Ill. App. 3d 395, 398; McCormick v. Empire' Accounts Service, Inc. (1977), 49 Ill. App. 3d 415, 417.) The trial court is vested with a large measure of discretion in the grant or refusal to grant a preliminary injunction and its determination will not be overturned on review absent a showing of the abuse of that discretion. (Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App. 3d 498, 502; Office Electronics, Inc. v. Grafic Forms, Inc. (1978), 56 Ill. App. 3d 395, 398.) A preliminary injunction is an extraordinary remedy and should be granted with the utmost care. Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App. 3d 498, 505; Office Electronics, Inc. v. Grafic Forms, Inc. (1978), 56 Ill. App. 3d 395, 398.

The sole role of an appellate court in addressing the grant or refusal to grant of an interlocutory decree is restricted to a determination of whether the trial judge correctly exercised his broad discretionary powers. (Wessel Co. v. Busa (1975), 28 Ill. App. 3d 686, 690.) Thus, a court of review looks to the sufficiency of the evidence not to determine controverted rights or to decide the merits of the case, but only for the limited purpose of ascertaining whether the trial court abused its discretion. Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 500; Armour & Co. v. United American Food Processors, Inc. (1976), 37 Ill. App. 3d 132, 135.

To show a likelihood of success on the merits, a party is not required to make out a case which in all events will warrant relief in the final hearing. (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 500.) The party need not establish its probable success on the merits because it only seeks to maintain the status quo until the ultimate issue is decided. A preliminary injunction may issue even where serious doubt exists as to the ultimate success of the complaint. (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 501.) All that is necessary is that the petitioning party raise a fair question as to the existence of a right claimed, lead the court to believe that he probably will be entitled to the relief prayed for if the proof should sustain his allegations, and make it appear advisable that the position of the parties should stay as it is until the court has had an opportunity to consider the case on the merits. (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 500; Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App. 3d 498, 508; Office Electronics, Inc. v. Grafic Forms, Inc. (1978), 56 Ill. App. 3d 395, 399-400; Wessel Co. v. Busa (1975), 28 Ill. App. 3d 686, 690.) A preliminary injunction only serves to maintain the status quo — that is, the last, actual, peaceable and uncontested status which proceeded the pending controversy. Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 502; Office Electronics, Inc. v. Grafic Forms, Inc. (1978), 56 Ill. App. 3d 395, 398.

Plaintiff argues that the sole disputed issue is whether the trial court erred in finding that plaintiff failed to raise a fair question as to the existence of the right claimed, i.e., plaintiff’s proprietary interest in his confidential information concerning his customers and sales tools. Defendants argue that plaintiff’s customer information and red book are not trade secrets and thus not a protectable business interest.

Regardless of the theory behind plaintiff’s cause of action, tort or contract, the pivotal question is whether plaintiff has a protectable business interest. (Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 355.) Thus, even though Johnson and Calcione may have breached the restrictive covenants in their employment contracts, plaintiff nevertheless must show injury to its legitimate business interest separate and distinct from defendants’ breach of the restrictive covenant in order to secure its enforcement through injunctive relief; otherwise, such a covenant is deemed an unenforceable attempt to prevent competition per se. Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 765.

A protectable business interest will be found where a trade secret or a near-permanent customer relationship exists which an employee learned of only through his employment and either a “reasonable” restrictive covenant agreement has been executed or a breach of confidentiality has occurred. (Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 356; Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 765.) Illinois courts describe a trade secret as a plan or process, tool, mechanism, compound, or informational data utilized by a person in his business operations and known only to him and such limited other persons to whom it may be necessary to confide in. (ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 92; Schulenburg v. Signatrol, Inc. (1965), 33 Ill. 2d 379, 385, cert. denied (1966), 383 U.S. 959, 16 L. Ed. 2d 302, 86 S. Ct. 1225.) It must relate to something held in secret or confidence and concern the operation of a particular trade or business. (ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 92.) Information will not be considered a trade secret if its contents are generally known within an industry, fully and completely disclosed by the company through its catalogs or literature disseminated throughout the industry, or disclosed by the products themselves. ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 93.

In ILG Industries, the court explained that although there is no exact definition of a trade secret, the Restatement of Torts sets forth factors in determining the existence of a trade secret:

“ ‘(1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.’ ” (49 Ill. 2d 88, 93, citing Restatement of Torts sec. 757, comment b, at 6 (1939).)

Furthermore, whether certain information is a trade secret requires the balancing of competing concerns: protection of a business investment of time, money and manpower against the wrongful appropriation of confidential information by prior employee and an individual’s right to follow and pursue a particular occupation in which he is best trained. ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 93-94.

No business has a proprietary interest in customers, although it may have such an interest in lists of customers which it maintains. (Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 766; Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 714-15.) Such a list, even if copied by an employee, may still not be a protectable interest. (Heatbath Corp. v. Ifkovits (1969), 117 Ill. App. 2d 158, 166-67.) In Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 357-58, the court found that customer lists may be considered a trade secret under proper circumstances and protected as such. The court stated that:

“After reviewing the decisions in this area, we find that Illinois courts have held that a customer list or other customer information constitutes a trade secret in which an employer holds a protectable interest where the list has been developed by the employer over a number of years [citations], the employer developed the list at great expense [citations], and the information was kept under lock and key. [Citations.] However, the same type of information has not been held to be a trade secret where it has not been treated as confidential and secret by the employer [citations], was generally available to other employees [citations], the information was known to those in the field or could be easily duplicated by reference to telephone directories, or professional publications [citations], and where customers did business with more than one company or otherwise changed businesses frequently so that they were known to an employer’s competition. [Citations.]” 99 Ill. App. 3d 353, 358.

The manifest weight of the evidence adduced at the hearing on plaintiff’s motion does not contradict the trial court’s finding that the customer information (card system and computer printout sheet), the dead files, and the red book are not protectable business interests. The information concerning plaintiff’s customers is readily ascertainable from the Illinois Coaches’ Directory and telephone directories. The proper person to contact is easily discovered by telephone calls. The information kept in the dead files is useless to Johnson and Calcione because they sell different product lines (although there is some dispute as to this), and otherwise available by inspecting past invoices of plaintiff’s customers. Although plaintiff contends that its specific lists (the card system and computer printout) were not available to the general public or plaintiff’s competitors, the relevant inquiry is the availability of the information, not the actual lists. (See Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710; McCormick v. Empire Accounts Service, Inc. (1977), 49 Ill. App. 3d 415.) Determining plaintiff’s customers could be accomplished without resorting to extraordinary methods. (See Midwest Micro Media, Inc. v. Machotka (1979), 76 Ill. App. 3d 698; TAD, Inc. v. Siebert (1978), 63 Ill. App. 3d 1001; Armour & Co. v. United American Food Processors, Inc. (1976), 37 Ill. App. 3d 132.) Furthermore, the customers contacted by Johnson and Calcione were based upon their memories. See Kalnitz v. Ion Exchange Products, Inc. (1971), 2 Ill. App. 3d 158 (no injunction warranted where salesman relied on his memory in contacting customers of his former employer and pricing information available from customers themselves).

Similarly, the red book contains information that is readily available to any wholesaler who wants to sell a manufacturer’s product line. It represents a mere compilation of manufacturers’ catalogs and price lists. The only exception concerns “private label” products. However, an experienced salesman could determine the manufacturer of the private label item and thus defeat any of plaintiff’s competitive advantage. The only information which defendants Johnson and Calcione have which is not available to the general public or others in the sporting goods industry is the volume of items purchased by plaintiff from an individual manufacturer. This information determines plaintiff’s actual cost in procuring these items. By knowing plaintiff’s costs, Johnson and Calcione could have the opportunity of underbidding plaintiff. However, the trial court found and the evidence reveals that since prices change rapidly, the information in the red book would be outdated after 30 to 45 days. This rapid change of prices defeats the usefulness of knowing the information in the red book.

Related to the inquiry concerning the extent to which the information is known outside of the particular plaintiff’s business is the value of the information. Since the information contained in the purported trade secrets in the present case is readily ascertainable by plaintiff’s competitors, the value of the information is insignificant. In Heatbath Corp. v. Ifkovits (1969), 117 Ill. App. 2d 158, 166-67, this court stated:

“It is evident that Ifkovits copied the names of the customers from Heatbath rather than going to lists which were legally obtainable for the information. However, it cannot be said that Heatbath was damaged thereby because the names of the customers were publicly available to anyone with no delay or effort involved and that, therefore, there was no advantage gained by copying them.”

The evidence fails to reveal attempts made by plaintiff to keep the information confidential. The red book had been distributed to all plaintiff’s employees in the Rockford office. This distribution included a secretary who had not signed an employment contract with a restrictive covenant. (See Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353.) The purported trade secrets were not kept under lock and key. (See Armour & Co. v. United American Food Processors, Inc. (1976), 37 Ill. App. 3d 132.) Thus, although plaintiff did code the actual costs of his products found in the red book, the code itself was known to all levels of employees. (See Schulenburg v. Signatrol, Inc. (1965), 33 Ill. 2d 379, cert. denied (1966), 383 U.S. 959, 16 L. Ed. 2d 302, 86 S. Ct. 1225; McCann Construction Specialties Co. v. Bosman (1977), 44 Ill. App. 3d 1020.) Furthermore, even if plaintiff showed the existence of certain safeguards, that alone would not establish the confidentiality or secrecy of the information. Packard Instrument Co. v. Reich (1980), 89 Ill. App. 3d 908, 917.

Finally, plaintiff contends that Johnson and Calcione’s knowledge of plaintiff’s customers’ buying habits obtained while employees of plaintiff constitutes a trade secret. This information consists of past purchases of these customers. In Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, the court held that an employee’s prior knowledge of the needs of prospective customers, the type of products which would satisfy those needs, and the proper allocation of the products were protectable business interests. However, the employer’s business dealt with technological data concerning lubricants. The knowledge acquired concerning each customer was unique and acquired only through experimentation and tests. In the present case, the knowledge plaintiff claims to be a trade secret is more generalized and more easily ascertainable. See Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App. 3d 498 (needs of customers not known publicly constitute trade secrets).

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

Judgment affirmed.

SEIDENFELD, P.J., and LINDBERG, J., concur.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERT OWENS, Defendant-Appellant.
    Second District
    No. 81—50
    Opinion filed November 1, 1982.
    Rehearing denied December 3, 1982.

      G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant was charged by indictment filed in the circuit court of Du Page County with attempted murder, two counts of aggravated kidnaping, two counts of aggravated battery, and three counts of armed violence in violation of the Illinois Criminal Code. (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4, 10-2(a)(3), 10-2(a)(5), 12-4(c), 12-4(b)(1), 33A — 2.) During the pretrial period the court was advised that, with the exception of attempted murder, defendant had earlier been indicted in Cook County for the same offenses as a result of the same acts. The defendant moved to have the duplicate charges transferred and consolidated with the pending Cook County charges. The court granted that motion. Later, the circuit court of Cook County dismissed the charges against the defendant and the Du Page County State’s Attorney moved the Du Page Circuit Court to reinstate the charges previously transferred. The court granted that motion and defendant proceeded to jury trial on all counts charged in the original Du Page indictment. The jury found defendant guilty of two counts of armed violence, two counts of aggravated battery, and two counts of aggravated kidnaping and found him not guilty of attempt murder and one count of armed violence. The defendant was sentenced to 12 years for each aggravated kidnaping count and for the two armed violence counts, and five years for each aggravated battery count, these terms to run concurrently.

On October 21, 1979, Filiberto Sanchez was involved in a minor traffic accident with a car driven by Louis Owens. Sanchez, Owens and Michael Kincy, a passenger in the Owens’ car, finding no damage to either car, agreed to have a few drinks together. On their way to a tavern in Cicero, Illinois, the three were joined by an individual on a motorcycle. That individual was later identified as the defendant, Bert Owens. Eventually, the group arrived at Mickey’s Lounge. While at the lounge, Sanchez danced with a woman, later identified as Linda Shelton. After a time Sanchez suggested that he and Shelton go somewhere alone. As they were leaving the lounge, Sanchez was robbed at gunpoint. He later identified defendant as one of his assailants.

After the robbery, Sanchez was forced into his own automobile and taken into Du Page County. Upon reaching an open field located in Du Page County, Sanchez was told to take off his clothes. While he was doing so, Sanchez was knocked unconscious. He was stabbed repeatedly in the abdomen. When Sanchez later regained consciousness he was naked, bleeding profusely and without his car.

I. REINSTATEMENT OF CHARGES

We turn first to defendant’s contention that, having once transferred the charges to Cook County, the Du Page County Circuit Court lacked the power to reinstate these charges. In essence defendant’s position is that transfer in this case amounted to a dismissal for improper venue, and that therefore the court lacked the power to try the case absent a return transfer from the circuit court of Cook County. He cites no case support for this characterization and relies on the opinions in People v. Hill (1966), 68 Ill. App. 2d 369, 216 N.E.2d 212, and People v. McClellan (1977), 46 Ill. App. 3d 584, 360 N.E.2d 1225, claiming that the reinstatement worked to deprive him of his constitutional right to proper venue. These cases are simply in-apposite to the case at bar.

In People v. Hill (1966), 68 Ill. App. 2d 369, 216 N.E.2d 212, the court was presented with a case in which the charging instrument was utterly devoid of any allegation which would establish venue. The court there held that the charge that a crime occurred in a particular county was a material averment and found that the complaint was void due to this omission. The indictment in the case at bar did contain an allegation that the crimes charged were committed in Du Page County. Therefore, the documents were not, as were those in Hill, void ab initio.

Similarly, the reasoning in People v. McClellan (1977), 46 Ill. App. 3d 584, 360 N.E.2d 1225, is not dispositive. In that case a defendant was charged with counts of aggravated kidnaping, armed robbery, and attempted murder. Although the indictment alleged that all three crimes took place in Champaign County, proof adduced at trial showed that the stabbing which formed the basis for the charge of attempt murder took place in Cook County.

In the case at bar the indictments contained an averment that the crime charged took place in Du Page County. No contention is made by defendant that the State’s Attorney was unable to prove that averment at trial. Du Page County was not an improper venue such as were those in Hill and McClellan. Procedurally, the reinstatement of charges was proper. Contrary to defendant’s position, the reinstatement of charges was also proper from a constitutional standpoint. The transfer of charges from one county to another does not automatically implicate the constitutional right to proper venue conferred by section 8 of article I of the Illinois Constitution (People v. Ondrey (1976), 65 Ill. 2d 360). In Ondrey, the court held that the administrative failure to transfer a charge from Williamson County to La Salle County did not render the latter court’s acceptance of the guilty plea and order of imprisonment void. The court noted in dictim that the place of trial was not a jurisdictional matter.

Defendant’s contention that the trial court, having once transferred the case, lacked the jurisdiction or the power to try him on those charges is not supported by the case law. The courts in Illinois have recognized that a circuit court’s power to try a defendant derives from the constitution and is not contingent upon the presence of a viable indictment. Further, it appears, in this case that a valid indictment with a proper allegation of place of the crime charged existed. No motion to quash that indictment was put before the Du Page court. In our opinion, reindictment would have been a useless administrative act. Since no argument can be made that the court lacked jurisdiction and it appears from the record that sufficient proof was adduced to show that the crime was perpetrated in Du Page County, the trial court’s action is affirmed.

II. ADMISSIBILITY OF THE KNIVES

During trial, the State moved the admission of two knives, People’s Exhibits Nos. 24 and 25, into evidence. The first was a knife found and given to police by Edward Vaisvilas. Vaisvilas testified that he had loaned his car to defendant on the date of the offense and had found the knife in the car the following day. The second knife was one which had been seized by police from co-defendant Michael Kincy at the time of his arrest.

Defendant makes two arguments concerning the admission of the knives. First, he contends that this evidence was irrelevant to the victim’s (Filiberto Sanchez) testimony that he did not see the knife. It is defendant’s contention that Sanchez merely “believed” that defendant wore a knife. A reading of the victim’s complete testimony indicates that he testified that both defendant and Kincy wore knives on their belts. Although he did say that he did not “see the knife itself” this statement, taken in context, indicates merely that the victim did not see the blade. The record includes this exchange between Sanchez and the State’s Attorney:

“Q. Similarly, the defendant Bert Owens, did you observe whether or not he had a knife on his person on the night or early morning hours of October 22, 1979?
A. Yes.
Q. Do you know where he carried the knife?
A. On the belt, too, but, you know, his knife looks a little bigger.
Q. You saw that he carried a knife?
A. Yes.
Q. Did you see the knife itself?
A. No.”

Nor does the victim’s inability to testify concerning the actual stabbing render the knives irrelevant. Expert testimony of Dr. Ertl, a surgeon and the victim’s attending physician, indicated that the victim suffered an abdominal injury which could have been inflicted by either one of the knives. Further, a microanalyst testified that Exhibit No. 24, the knife turned in by Vaisvilas, was found to have blood on it. A second microanalyst testified that no blood was found on People’s Exhibit No. 25, the knife seized from Michael Kincy. Given the testimony contained in the record, it cannot reasonably be said that the knives were irrelevant to the case at bar.

The case law establishes that admission of a weapon may be error if there is an absence" of evidence establishing a connection between the weapon and the offense charged. (People v. Pointer (1981), 93 Ill. App. 3d 1064, 418 N.E.2d 1.) In determining whether a sufficient connection has been established, the totality of the evidence must be considered, and no one single factor is completely determinative. (See People v. Jones (1961), 22 Ill. 2d 592.) In Jones, the court held that where an eyewitness had testified that he saw defendant fire a “long-barrelled chrome plated gun,” that the People’s exhibit resembled that gun and the evidence indicated that the gun had been found in the car in which defendant had been arrested, a sufficient connection existed. (Accord, People v. Smith (1952), 413 Ill. 218.) In this case the totality of the evidence is indicative of a sufficient connection, thus justifying admission. Defendant’s reliance on the case of People v. Pointer (1981), 93 Ill. App. 3d 1064, 418 N.E.2d 1, for the proposition that the knives, particularly the one belonging to Kincy, should not have been admitted is misplaced. The defendant there was charged with indecent liberties and there was no evidence that he had either used or carried a gun in that offense. The court held that admission of the gun under those circumstances was error.

The case before us does not present such a scenario. Here Exhibit No. 24 was identified as belonging to Owens, the testimony of Sanchez indicated that Owens had carried a knife during the offense, and the testimony of the pathologist indicated that the blade on that knife could have caused Sanchez’ wound and that blood was present on the blade. Exhibit No. 25, the knife taken from Kincy, was similarly connected to the offense.

Defendant’s second argument concerning the knives focuses on the testimony of Officers Wagge and Biziarek. These officers originally misidentified People’s Exhibit No. 24 as the knife which was taken from Michael Kincy. They later changed their testimony on this point. It is defendant’s position that the effect of this misidentification was to utterly confuse the jury and to vitiate any possible probative value the knives might have had. However, the jury in this case heard both pieces of testimony and as trier of fact, had it within its power to make a determination as to the credibility of either version. The impeachment here effects weight and not admissibility. (People v. Gow (1978), 65 Ill. App. 3d 723, 382 N.E.2d 673.) The trial court did not err in admitting the knives.

III. PROSECUTORIAL COMMENT

During closing argument the State’s Attorney made the following statement:

“And he [defense counsel] says that I want to convict the defendant. I want to see that justice is done. I have a job to do. My job is to prosecute criminal cases. Certainly I believe in what I am doing, but what I believe in this particular case doesn’t make any difference. I wouldn’t be here if I didn’t believe he was guilty, but that’s my decision to make.”

The defendant contends that this statement amounted to a personal vouching by the State’s Attorney for the defendant’s guilt. We disagree.

First, a reading of the complained of statement indicates that the prosecutor neutralized any vouching effect by his assertion that his opinion didn’t matter. Secondly, the record reveals that defense counsel throughout his closing argument hinted that the prosecutor had some personal motive or vendetta in the instant case. Viewed in this light, the prosecutor’s statements were no more than a permissible response to .an issue raised first by the defendant. It was invited comment. People v. Kelly (1975), 25 Ill. App. 3d 753, 324 N.E.2d 82.

The defendant also contends that the prosecutor’s description of him as “hideous” was error. We decline to reverse on this basis. Where the statements made by the prosecutor in closing argument have some basis in the evidence, the prosecutor can reflect unfavorably on the defendant, denounce his wickedness and even indulge in invective. People v. Moore (1956), 9 Ill. 2d 224; People v. Delgado (1975), 30 Ill. App. 3d 890, 333 N.E.2d 633 (holding that a characterization of defendant’s conduct is “reprehensible” did not constitute improper closing argument).

IV. VERDICT FORMS

At the instruction conference, defendant tendered and the trial court refused, separate verdict forms for each count. Instead, the court submitted forms for attempt murder, aggravated kidnaping, aggravated battery based upon great bodily harm, aggravated battery based on the presence of a dangerous weapon, and a single armed violence form listing each of the other three offenses as possible predicate felonies. It is defendant’s contention that, the validity of the armed violence convictions evade review since it cannot be determined which of the felonies served as predicates for the armed violence charges of which defendant was found guilty. Therefore, according to defendant, the armed violence convictions must fall, since it is possible that the jury predicated the armed violence convictions upon the attempt murder, a charge of which defendant was found not guilty.

Defendant cites the newly adopted IPI Criminal Second which mandates the submission of separate verdict forms for each county (Illinois Pattern Jury Instruction, Criminal, No. 26.01 (2d ed. 1981)). We note that that provision had not been adopted at the time of trial in this case.

The trial court instructed the jury as follows on the crime of armed violence:

“A person, or one for whose conduct he is responsible as defined in these instructions, commits the crime of armed violence when while armed with a dangerous weapon he commits any felony under Illinois law.
Attempt murder and aggravated battery and aggravated kidnapping are felonies under Illinois law.
A person is considered armed with a dangerous weapon when he, or one for whose conduct he is responsible, carries on or about his person a firearm or knife with a blade at least three (3) inches in length.”

and

“To sustain the charge of armed violence, the State must prove the following propositions:
FIRST: That the defendant or one for whose conduct he is responsible, committed either attempt murder or aggravated battery, or aggravated kidnapping; and,
SECOND: That the defendant, or one for whose conduct he is responsible, was armed with a dangerous weapon.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt then you should find the defendant not guilty.”

Given these instructions, we find that it is unlikely beyond a reasonable doubt that the jury made a finding of guilty of armed violence predicated upon the one felony of which it found the defendant not guilty, attempted murder.

V. DOUBLE ENHANCEMENT

Defendant initially argued that the armed-violence convictions were twice enhanced by virtue of the identical weapon in violation of the rationale of People v. Haron (1981), 85 Ill. 2d 261. The State responded first that no improper double enhancement exists in this case because kidnaping is a felony without the use of a weapon. Defendant acknowledged that Haron specifically addressed only a misdemeanor enhanced to a felony and then enhanced to armed violence as a result of the same weapon. Defendant maintains, however, that the rationale of Haron is equally applicable to the instant case.

Defendant’s rationale is that defendant was separately charged with aggravated kidnaping by reason of being armed with dangerous weapons, a knife and handgun. Further, defendant contends that the handgun was impermissibly used a second time to elevate the conduct to armed violence.

We observe that the conviction for armed violence in count VII was based upon simple kidnaping, a Class 2 felony (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 1). Furthermore, one of the jury’s verdicts found defendant guilty of aggravated kidnaping based upon the infliction of great bodily harm. These verdicts established both kidnaping and aggravated kidnaping which are felonies without the use of the handgun. The predicate felony used as one of the two elements of the armed-violence conviction was not enhanced by the handgun and knife. We decline to vacate defendant’s conviction for armed violence charged in count VII.

As to the armed-violence conviction charged in count VIII, we conclude that the predicate offense for that charge was aggravated battery based upon the infliction of great bodily harm. Again, the predicate offense charged separately would be a Class 3 felony and no dangerous weapon was necessary to establish that offense as a felony. (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(a).) The handgun and knife were used only to enhance the conduct to armed violence. No Harón violation occurred. See People v. Haron (1981), 85 Ill. 2d 261; People v. Garcia (1981), 103 Ill. App. 3d 779, 783, 431 N.E.2d 1234.

VI. MULTIPLE CONVICTIONS

Defendant initially argued that the four underlying felonies based upon aggravated battery and aggravated kidnaping, and the armed-violence convictions could not stand as they were carved from the identical physical acts. This principle recently was reaffirmed in People v. Donaldson (1982), 91 Ill. 2d 164. Donaldson makes clear that the less-serious offense should be vacated. Consequently, defendant now requests that this court vacate the four predicate felonies rather than the two armed-violence convictions.

However, the State contends that both aggravated kidnaping convictions may stand. Only one kidnaping occurred, and the fact that the same act, stabbing, can be used to enhance a kidnaping by two different methods, use of a deadly weapon and infliction of great bodily harm, does not alter the fact that only one act occurred. Under the mandate of People v. King (1977), 66 Ill. 2d 551, no other result is permitted. An analysis of the elements of the offense is unnecessary in the context of such multiple convictions.

The identical reasoning is applicable to the two aggravated-battery convictions. In this context, the State places emphasis on the additional language of one charge alleging that injuries also were inflicted by striking “about the body with their fists.” However, no evidence to prove that allegation was introduced at trial, and it cannot be considered by this court. In any event the simple fact is that a single act of aggravated battery was committed, and People v. King mandates that only one conviction be entered for that physical act.

Therefore, we vacate the convictions under counts II and III as based upon the same physical act of kidnaping, albeit aggravated by the infliction of great bodily harm, which was the offense upon which the armed-violence conviction on count VII was predicated, which is affirmed. We similarly vacate the convictions under counts IV and V and affirm the conviction for armed violence under count VIII predicated upon aggravated battery. (People v. King.) The vacated convictions are both necessarily included offenses of the respective armed violence convictions and the less serious offenses as .well. People v. Donaldson.

We decline to remand for resentencing on the armed-violence convictions as requested by defendant for the reason that he failed to demonstrate in what manner the trial court may have been influenced in its armed violence sentencing by its sentencing on the convictions which we have vacated. (People v. Myers (1980), 83 Ill. App. 3d 1073, 404 N.E.2d 1082.) Our examination of the record of the sentencing hearing similarly fails to demonstrate such influence.

In sum, we vacate defendant’s two convictions for aggravated kidnaping and two convictions for aggravated battery and we affirm defendant’s conviction for armed violence charged in counts VII and VIII. The judgment of the circuit court of Du Page County is affirmed in part and vacated in part.

Affirmed in part, vacated in part.

SEIDENFELD, P.J., and NASH, J., concur.

       The record is silent as to the reason for this dismissal.


author: Mr. PRESIDING JUSTICE STOUDER

text:
    Richard E. Livengood, Plaintiff-Appellee, v. H. Sargent Howard, Defendant-Appellant.
    (No. 72-149;
    Third District
    April 27, 1973.

      John Cassidy, Sr., of Peoria, for appellant.
    Robert C. Strodel, of Peoria, for appellee.
   Mr. PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal by Defendant, Henry Howard, from a verdict and judgment for $50,000 in favor of Plaintiff, Richard Livengood, entered by the Circuit Court of Peoria County in a medical malpractice action.

The plaintiff, 19 years old at the time the suit was filed, first became aware of an ailment in his left ear in January of 1968, when pain developed and there was a purulent discharge from that ear. At the time he was serving in the U.S. Navy and while on leave in March, 1968, he consulted his family physician, Dr. Dan Bower, who told him that he had a perforated ear that was draining. Soon after he was ordered to Great Lakes, Illinois and treated in the Naval hospital from March until September of 1968. The discharge from his ear continued and he also | had dizzy spells and on occasions “blacked out”. In September, 1968, he was discharged and returned to his home in Peoria.

In the meantime, during July of 1968, he had again consulted Dr. Bower regarding his ear and was advised by Dr. Bower that he should consult Dr. Howard, the defendant in this case, but he did not do so until four months later on November 1, 1968. The physical examination by the defendant revealed an odorous drainage from his left ear and practically no hearing in that ear. The defendant suspected a serious infection in the mastoid bone and because of swelling and distortion he could not see into the inner ear. An x-ray revealed extensive infection and disease in the left mastoid area and the possibility of cholesteatoma, a tumor of skin which develops in the middle ear after there is a hole in the ear drum. When plaintiff visited the defendant again on November 5, he was advised that it was necessary to perform an operation on the mastoid and clear out all the diseased tissue and relieve the pressure. The hearing in that ear had already been destroyed and the plaintiff was advised that failure to operate could result in meningitis, brain absess or death.

The surgery, known as a left radical mastoidectomy, was performed on November 18, 1968. The defendant found granulations, pus and debris which obscured the cranial nerve but which he considered necessary to remove. Because the debris and pus were so thick it could not be removed by air suction. Therefore, defendant proceeded to remove the debris by scraping. During the course of the surgery the nerve became frayed or partially severed. Realizing the frayed nerve should be repaired, he called in Dr. Alcocer, another ear specialist, to help him. Dr. Alcocer, in repairing the injured nerve, used a surgical microscope which afforded magnification up to ten times that of the binocular loop used by defendant. Following the surgery the left side of plaintiff’s face drooped and was paralyzed.

Plaintiff brought this suit to recover damages for negligent performance of the surgery. Tire case went to trial on two counts, one which alleged defendant was negligent, and another which alleged failure to obtain legal consent. The pleadings alleged severance of the seventh cranial nerve, failure to avoid injury to plaintiffs hearing function and failure to repair the hearing function. At the close of plaintiff’s evidence the trial judge directed a verdict in favor of the defendant on Count two. Also on defendant’s motion the court ruled there was a total lack of evidence that any impairment to plaintiffs hearing was caused by the defendant. The plaintiff was permitted to amend his pleading basing his damages solely on facial paralysis resulting from injury to the nerve.

On appeal it is the contention of the defendant there was an absence of competent evidence to support one or more of the essential elements of the plaintiffs case, and therefore, the trial judge erred in denying his motion for judgment notwithstanding the verdict.

The general rule in a malpractice case is that the plaintiff has the burden to prove the proper standard of care imposed upon the defendant and then to prove by affirmative evidence an unskilled or negligent failure to comply with the standard and a resulting injury. Estell v. Baringer, 3 Ill.App.3d 455, 278 N.E.2d 424. See also, Comte v. O’Neil, 125 Ill.App.2d 450, 261 N.E.2d 21.

The evidence produced by the testimony of the plaintiff’s witnesses established a standard of care used by a specialist who practices in the field of medical science with which we are concerned. Dr. David Austin of Chicago, a specialist in ear, nose and throat surgery testified as an expert in behalf of the plaintiff. The defendant’s objection to this evidence is that Dr. Austin had never been in Peoria nor practiced in the Peoria area, and therefore, a standard of surgical procedure in that community was not established. Austin testified that there was a standard applicable to the specialty generally and such a standard prevailed in the central Illinois area. This testimony was supported by that of Dr. Alcocer, a surgeon practicing in Peoria, whose testimony concerning the applicable standard was quite similar to that of Dr. Austin.

Dr. Austin stated that although he though the surgery was necessary for the plaintiff’s welfare, it was risky procedure to remove skin with a curette from the region of the facial nerve, especially without the use of a surgical microscope. He noted it is a standard operation to leave cholesteatoma in the area of the nerve and the end state of the surgery would be the same whether or not the skin is removed.

Dr. Alcocer, who testified on behalf of both parties, was called into the operating room by the defendant to help repair the nerve, bringing with him a surgical miscroscope. He testified that he would never perform a mastoid surgery of the type in this case without a surgical microscope. It is extremely beneficial in allowing a surgeon to perform accurately. He also stated that when granulated tissue is found on or about the nerve, he would not remove these granulations because of the possibility of injury to the nerve. The mere opening of the ear to release the pressure would he a sufficiently beneficial result of the surgery. See Annotation, 76 ALR2d 783.

It was Dr. Howard’s testimony supported by other medical evidence, that an injury to the cranial nerve could be considered an ordinary or incidental result of the surgery even when performed skillfully.

There is a substantial conflict of medical evidence and the verdict in favor of the plaintiff is supported by ample evidence. We are of the opinion that the plaintiff established his case by sufficient evidence and that the trial court did not error in denying the defendant’s motion for judgment notwithstanding the verdict. The test established by Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, was not met by the defendant.

Since the plaintiff presented evidence of both failure to comply with the standard and a resulting injury, it was proper to submit the disputed facts concerning the defendant’s negligence to the jury.

On the authority of Howell v. Briney, 125 Ill.App.2d 246, 260 N.E.2d 858 and Carter v. Winter, 32 Ill.2d 275, 204 N.E. 755, defendant insists that plaintiff was guilty of contributory negligence as a matter of law. Without discussing this issue in any particular detail, we believe it sufficient to say that neither of the foregoing cases is a medical malpractice case and the application of the general rule in such cases offers no support for the claim that plaintiff is contributorily negligent as a matter of law. Plaintiff was unconscious at the time of the surgery and it is the injury to the cranial nerve during surgery which is the gist of plaintiffs cause of action.

Defendant contends his motion for a new trial was improperly denied. The trial errors which he alleges are refusal to give certain instructions, admission of testimony by plaintiff’s mother and admission of evidence of the surgical microscope.

In the original complaint, it was alleged the defendant had caused an impairment to plaintiff’s hearing and also had failed to obtain the informed consent of the plaintiff. At the close of plaintiffs evidence, an amended complaint was filed which excluded any reference to either of these issues. The trial court ruled that the evidence was insufficient to support such issues and consequently they were withdrawn as issues in the trial and no reference was thereafter made to them. Nevertheless the defendant tendered instructions which in substance requested the trial court to advise the jury in the instructions that evidence regarding such issues was not to be considered. Having reviewed the testimony and arguments of the parties, we are of the opinion that the trial court properly exercised its discretion in refusing such instructions. When instructions frame the issues supported by the evidence presented by both sides, the jury is adequately instructed without instructions as to what are not issues in the case.

During direct examination of the plaintiff’s mother while she was testifying on plaintiffs behalf, the following question was asked:

“Now Mrs. Livengood, had you known or were you advised by Dr. Howard there was a risk to the 7th cranial nerve of your son, would you have consented to the operation?”

Mrs. Livengood answered, “No sir”. The defendant objected to the question and answer on grounds that it was an expression of an opinion on an ultimate fact. We agree that the objection was proper and should have been sustained. Since, however, the testimony related to the issue of informed consent which was later removed from the case, there could be no prejudice resulting to the defendant.

Another error which defendant alleges is that he was prejudiced by plaintiff’s repeated reference to the surgical microscope during the trial. It is argued that the defendant’s failure to have or use a surgical microscope had no relation to the defendant’s alleged lack of skill and was therefore prejudicial to him. We are unable to understand in view of the testimony how the defendant can believe that such evidence is unduly prejudicial, because evidence of the microscope and its use were directly related to the ordinary and customary procedure prevailing in the specialty. Defendant was not charged with a failure to use a surgical microscope rather reference to its absence was an incident to a description of skill which defendant could and should have exercised.

Finally, the defendant contends the verdict for $50,000 was excessive and against the manifest weight of the evidence. The evidence on the issue of damages, which was uncontradicted, showed although the paralysis on the left side of the plaintiffs face had improved there was still approximately a 20 percent paralysis which would remain permanent. His face still drooped, his eye watered and was blurry and he could not read for any length of time. It is the jury who determines the amount of damages to be awarded to compensate for injury to a plaintiff (Parham v. Carl W. Linder Co., 36 Ill.App.2d 224, 183 N.E.2d 744) and a reviewing court may not alter this determination unless the size of the verdict clearly indicates that the jury was moved by prejudice or passion. (Tomlinson v. Chapman, 24 Ill.App.2d 192, 164 N.E.2d 240.) We conclude that the jury’s verdict, although substantial, was not the result of passion or prejudice and that evidence was sufficient to support the finding of the jury.

For the foregoing reasons, the judgment of the Circuit Court of Peoria County is affirmed.

Judgment affirmed.

DIXON and SCOTT, JJ., concur.


author: Mr. JUSTICE STOUDER

text:
    Harold W. Herrington et al., Plaintiffs-Appellants, v. The County of Peoria et al., Defendants-Appellees.
    (No. 72-226;
    Third District
    April 27, 1973.

      Joseph Toohill, of Farmington, for appellants.
    Robert S. Calkins, State’s Attorney, of Peoria, (James S. Dixon, of counsel,) for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Peoria County in an action for a declaratory judgment, filed by the plaintiffs-appellants who sought to have an amendatory zoning ordinance declared void for failure to comply with section 3158 of chapter 34, Ill. Rev. Stat. 1969.

The Defendants, Doris Dixon and Geraldine Dixon James, obtained options to purchase property on which they intended to build an automobile race track. The property, which was zoned for agricultural use, adjacent to the Brimfield interchange of Interstate Route 74 in Peoria County. To the east of the property there was other land, however, the other three sides were bounded by public roadways. The plaintiffs, Harold Herrington and others, owned property located on the three public roadways surrounding the defendants’ property but across the road therefrom. The defendants filed petitions to change the zoning of the optioned property to Commercial on one part of the property and Industrial with a Special Use for a motor raceway on another part. Not included in the petitions for rezoning were three strips of land 30 feet in width on the north, west and south borders. By not including the 30 foot strips in the property to be rezoned, such property thus did not abut on any of the three public roadways. After the defendants filed the petitions with the Peoria County Board of Appeals, hearings were held and the rezoning was recommended. The plaintiffs then filed protests with the County Clerk claiming to be owners of more than 20 percent of the frontage opposite the frontage proposed to be altered by the rezoning. This protest was pursuant to section 3158 of chapter 24, Ill. Rev. Stat. 1969 which contains the following language:

“In case of written protest against any proposed amendment, signed and acknowledged by the owners of twenty percent of the frontage proposed to be altered, or by the owners of twenty percent of the frontage immediately adjoining or across an alley therefrom, or by the owners of twenty percent of the frontage directly opposite the frontage proposed to be altered, * * #, filed with the county clerk, such amendment shall not be passed except by the favorable vote of three-fourths of all members of the county board.”

Following the protest, the County Board adopted an ordinance granting the rezoning by a vote of 26 in favor and 9 against.

The present declaratory judgment action was then filed by the plaintiffs, who alleged that the ordinance should be declared void because not approved by three-fourths of the members of the County Board.

It is undisputed that the plaintiffs own more than 20 percent of the frontage directly opposite the frontage proposed to be altered unless the intervention of the 30 foot strips between the proposed rezoning and the public roadways defeats the plaintiffs’ standing to protest. The Circuit Court found that the plaintiffs had failed to prove they were protestors within the statute, because they were not directly opposite any frontage being rezoned. According to the trial court, the ordinance required only a simple majority, which it received.

It has been called to our attention by both parties that the court should adopt certain rules where a matter of statutory interpretation is involved. According to the appellants, the legislature is not presumed to have done a useless thing in enacting a law (Pinkstaff v. Pennsylvania R.R. Co., 31 Ill.2d 518, 202 N.E.2d 512) but is presumed to have passed an effective law. (Linkens v. Furman, 52 Ill.App.2d 1, 201 N.E.2d 645.) Statutes should be construed in a manner which will accomplish the objects sought by their enactment. (Illinois National Bank v. Chegin, 35 Ill.2d 375, 220 N.E.2d 226.) The object of the statute under consideration is to provide a special right to protest to near-by property owners when a zoning change is proposed and it is thwarted if a petition for rezoning can exclude a strip of property which thereby prevents protest by near-by property owners. An act of the legislature will not be construed to result in an absurd, inconvenient or unjust consequence. People v. Hudson, 46 Ill.2d 177, 263 N.E.2d 473.

On the other hand appellees urge that zoning statutes are in derogation of common law and are to be strictly construed in favor of the property owners. (Voisard v. County of Lake, 27 Ill.App.2d 365, 169 N.E.2d 805.) Zoning statutes are subject to strict construction in favor of the right of a property owner to the unrestricted use of his property. (City of Rockford v. Eisenstein, 63 Ill.App.2d 128, 211 N.E.2d 130.) If the property proposed to be rezoned has no frontage then according to the statute there can be no protestors since protestors are specifically defined in terms of frontage. Consistent with the logic of their position, appellees insist that if the property sought to be rezoned is separated from a public roadway by a distance of one inch, one foot, five feet, or thirty feet as in the instant case, property sought to be altered has no frontage and there can be no protestors.

There is no dispute as to the existence of the rules cited by both parties, rather it is the application of the rules to the facts which is in dispute.

The Section of the Counties Zoning Act (Ill. Rev. Stat. 1969, ch. 34, sec. 3158), which is in issue before us, permits a protest by the owners of 20 percent of the frontage directly opposite the frontage proposed to be altered. We are confronted with the question whether this Section of the Statute is applicable where the petition for rezoning does not include a strip of property between the property proposed to be rezoned and the public roadway.

The constitutionality and purpose of legislation which affords special rights to those property owners particularly situated has been approved. (Bredberg v. City of Wheaton, 24 Ill.2d 612, 182 N.E.2d 742.) In Bredberg the statute involved was the Cities and Villages Act (Ill. Rev. Stat. 1957, ch. 24, sec. 73 — 8), which is now section 11 — 13—14 of chapter 24, Ill. Rev. Stat. 1969. This Statute has language identical to that found in the Zoning Provision of the Counties Act.

In the Bredberg case the court, quoting with approval from Farmer v. Meeker, 63 N.J. Super. 56, 163 A.2d 729, observed:

“The statute does not prevent the governing body from amending its ordinance. It merely requires a percentage of vote greater than the usual majority where a proper protest has been filed. That the municipality should exercise extra diligence when it is making important changes in the property rights of citizens who object is obvious, and the Legislature has rightly exercised its discretion in predetermining the precise degree of extra diligence those citizens will be guaranteed. This is in conformity with recognized legislative powers.”

In Village of Bannockburn v. County of Lake, 17 Ill.2d 155, 160 N.E.2d 773, the court applies the same statutory provision with which we.are concerned and in another context defined and applied “frontage”, in terms of access to a public way. We have no quarrel with the definition of “frontage”, but a definition is not dispositive of the issue raised on this appeal.

It is important to note that even though property abuts on a public roadway, it is the property which is being altered and not merely the frontage. Therefore, when the statute uses the words “frontage to be altered” it should be understood that it is the alteration in the use of an area which results in the alteration of frontage or the area of access to a public road.

In determining whether the proposed rezoning of described property will result in the alteration of frontage along a public roadway where the described property is separated from such roadway by an intervening area, the following factors are relevant:

(1) Is the unincluded intervening area limited and capable of definite description?
(2) Will the use of the unincluded property be related to and dependent upon the proposed use of the described property?
(3) After rezoning of the described property will the unincluded property be suitable for use as authorized by the pre-existing and continuing zoning?
(4) May the described property be used in accord with its altered zoning classification independent of and without regard to the use of the intervening area?

If it appears from a consideration of the foregoing factors that the uses of the described property and the unincluded property are mutually dependent and related, the frontage along the highway should be deemed altered by the proposed rezoning so far as the statute affecting the status of protestors is concerned even though the described property may not have a dimension abutting the roadway.

From the evidence we have no difficulty in concluding that the property proposed to be rezoned and the unincluded 30 foot strips are so intimately related and the uses thereof so mutually dependent that the proposed alteration does effect the access or frontage along the public roadways. A contrary holding would be at variance with the purpose and spirit of the law. As a condition of the special use of the premises for a racetrack and in accord with the plans described by the owners, 25 feet of the 30 foot strips will be used as access roads and the remaining 5 feet will be used for trees, shrubs or other screening methods. Without such access over the buffer zone the area proposed to be rezoned would not be useable for the purposes permitted under its new classification, and the buffer zones themselves will no longer be suitable for agricultural purposes as permitted by the unmodified zoning classification.

Because of the absence of Illinois authorities on this subject the appellees have directed our attention to several cases from other jurisdictions. Of these cases only two from North Carolina are sufficiently relevant to require discussion and in our view neither of the cases persuades us that the plaintiffs should be denied the status of protestors. A North Carolina statute provides that the protest must be “by the owners of twenty percent or more * # * of the area of lots * * * immediately adjacent * * * extending one hundred feet therefrom or of those directly opposite thereto extending one hundred feet from the street frontage of such opposite lots * (GS, Sec. 160-176.) In Penny v. City of Durham, 249 N.C. 596, 107 S.E.2d 72, the owners of the tract to be rezoned excluded a 150 foot strip between the zoned property and the street. The owners of more than 20 percent of the land abutting on the opposite side of the street protested. The court concluded that the protestants were not directly opposite the property to be rezoned, because of the intervention of the 150 foot strip. In Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352, which involved the same statute, the owners of the proposed rezoned tract excluded a 100 foot strip on the east side of their property. The protestors owned property east of the excluded strip. Again the court concluded that because of the 100 foot strip the owners did not qualify as protestors.

The North Carolina statute is not comparable to ours. In each of the foregoing cases, the legislative reference to 100 feet appears to have been considered by the court as a legislative declaration, that “one hundred feet” was a legaHy sanctioned buffer or barrier insulating the property from the claims of protestors. Neither case is any authority for the proposition that a buffer strip of any size, no matter how small, prevents the application of the statute.

We feel that the purpose of the statute is not served if a protest of near-by owners can be prevented merely by not including a buffer strip from the rezoning petition. The owner of the buffer zone could later seek to rezone the buffer strip which would in effect create piecemeal rezoning. The court has in the past adopted construction of statutes which wiH avoid piecemeal rezoning or annexation. Chapman v. County of Will, 8 Ill.App.3d 1007, 291 N.E.2d 658, and Town of Normal v. Harter, 5 Ill.App.3d 363, 283 N.E.2d 44.

We conclude that the proposed zoning amendment failed to pass by the requisite vote. Accordingly, the judgment of the Circuit Court of Peoria County is reversed.

Judgment reversed.

SCOTT, P. J., and DIXON, J., concur.


author: Mr. JUSTICE HAYES.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Rudolph Gaines, Defendant-Appellant.
    (No. 55397;
    First District (2nd Division)
    March 20, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (Herbert Becker, Ronald P. Katz, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and George Elsener, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE HAYES.


author: PER CURIAM.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Thomas Clifton Carl, Petitioner-Appellant.
    (No. 57137;
    First District (2nd Division)
    March 20, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, for the People.
   PER CURIAM.


author: Mr. JUSTICE McGLOON

text:
    Estelle Johnson, Plaintiff-Appellee, v. The Chicago Transit Authority et al., Defendants-Appellants.
    (No. 55625;
    First District (3rd Division)
    March 22, 1973.

      James G. O’Donohue, Jerome F. Dixon, and William J. Callahan, all of Chicago, for appellants.
    Albert F. Hofeld and William J. Harte, both of Chicago, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff, Estelle Johnson, brought an action against the Chicago Transit Authority and its bus driver, Marinus Cooper, for personal injuries she sustained while riding as a passenger on a C.T.A. bus driven by the individual defendant. The jury returned a verdict of $32,385 for the plaintiff, and judgment was entered thereon. The trial court denied the defendants’ post-trial motion, and this appeal followed.

The defendants raise two issues. They contend (1) that plaintiff’s attorney made improper and prejudicial remarks during his closing argument to the jury, and (2) that the plaintiff misused the rules of discovery and thereby prejudiced the defendants.

We affirm.

The defendants urge us to consider their first contention in light of their assertion that the issue of liability was close in this case and that, therefore, the record should be error-free in order to sustain the judgment. After carefully reviewing the record, we find that we do not agree with the defendants’ position.

The C.T.A. bus driver, Marinus Cooper, testified that he was driving his bus southbound on Western Avenue in Chicago in the lane closest to tire curb on the morning of May 12, 1964. When he was about 8300 South on Western Avenue the bus scraped against some tree branches which were extending over the street, and two windows of the bus were broken. As a result of this accident, Estelle Johnson, a passanger, claimed that she sustained back and neck injuries when the bus jolted while she was sitting in her seat. The driver did not stop the bus until he got to the next scheduled stop.

Cooper testified that he saw the tree about 100 to 200 feet away before he scraped against it and that at the time of the accident he was going between 20 and 30 miles per hour. He explained that he was unable to avoid hitting the branches and that due to another bus on his left, he could not move his bus out of the curb lane. He also testified that on two earlier runs along Western Avenue that morning he had observed a tree hanging over a neighboring fence at the spot where the accident subsequently took place. That having been substantially the evidence relating to the issue of liability, the jury decided the issue in favor of the plaintiff.

The defendants complain of six instances of improper and prejudicial remarks that the plaintiff’s attorney made during his closing argument to the jury. All the remarks except one pertained to damages. We shall consider each of the six instances separately.

In the first instance the defendants argue that there was an improper formalization of pain and suffering damages which the Illinois Supreme Court had condemned in Caley v. Manicke (1962), 24 Ill.2d 390, 182 N.E.2d 206. In his argument to the jury, plaintiff’s attorney said: “Ladies and gentlemen, I don’t know what the element of pain and suffering is worth. That’s absolutely for you to determine. $30,000 a year? $20,000 a year? $16,000? I don’t know. There are 31 years involved. If you figure that element is worth $650 it comes to $20,000.” The trial court overruled defendants’ objection to the above arguments.

The court in Caley disapproved of a “per diem” argument in which a monetary value for pain and suffering is given to a small unit of time such as a minute or an hour and then an aggregate is arrived at by way of multiplication. The court said that this method produced an “illusion of certainty” to the jury. We believe the argument of counsel in the instant case did not go as far as the argument in Caley.

In two decisions, Fortner v. McDermott (1971), 1 Ill.App.3d 358, 272 N.E.2d 503, and Warp v. Whitmore (1970), 123 Ill.App.2d 157, 260 N.E.2d 45, the court found no reversible error because of an argument of counsel that suggested a monetary value for pain and suffering per year for the number of years of the life expectancy of the plaintiff. Counsel in both cases were careful to avoid giving any Ulusion of certainty and admonished the jury that their figures were merely suggestions. In the instant case, in addition to counsel’s similar admonitions, his argument concerning damages for pain and suffering was merely a part of his entire argument for damages, and we do not think that counsel gave undue emphasis to his remarks.

In the second instance, defendants complain of two statements which they argue were not based on the evidence and were outside the bounds of proper argument. In referring to the expert medical testimony that was presented during trial, plaintiff’s counsel remarked: "They have aU testified that the only thing that can be done is surgery, if it gets to the point where it is needed.” The court overruled the defendants’ objection. Defendants maintain that none of the doctors so testified.

Attorneys have broad latitude during closing argument to draw reasonable inferences and conclusions from the evidence. (Maddox v. Smith (1966), 67 Ill.App.2d 374, 214 N.E.2d 5.) In the instant case plaintiff’s counsel did not exceed the bounds of proper argument. The three expert medical witnesses who testified for the plaintiff indicated that she had a serious back injury that involved a disc. According to the doctors’ opinions, plaintiff was suffering from the possibility of a slipped disc (Dr. Foltz), a herniated disc (Dr. Hirshtick), and a flattened disc pinching a nerve (Dr. Zeitlin). Only two of the expert witnesses, Dr. Hirshtick and Dr. Miller, defendants’ expert, referred to the need for surgery when a ruptured disc is causing considerable discomfort to a patient due to a complicating nerve injury.

The remark complained of was not so improper as to constitute reversible error. Given the conditional nature of the statement, it is hard to conceive of resulting prejudice. The jury knew that six years had passed from the time of the accident until trial, and plaintiff had not undergone surgery. In fact, one doctor commented that the x-rays indicated that her condition had stabilized.

Defendants further complain that another remark misrepresented the evidence in the case. In referring to plaintiff’s condition, plaintiff’s counsel said: “I don’t think she is going to be able to work too much longer with respect to the increasing difficulty she is having with the hand and arm.” The court sustained defendants’ objection. The defendants requested no further action or ruling from the trial court. A reviewing court may set aside a verdict although objections have been sustained to improper remarks of counsel if such remarks were prejudicial. (Clark v. Rowatt (1953), 349 Ill.App. 396, 110 N.E.2d 663.) The remark in this instance does not warrant such action.

In the third instance, plaintiffs counsel commented on the testimony of Mrs. Bamhouse. Defense counsel interrupted and said: “Excuse me, is that Mrs. Barnhouse’s testimony?” Plaintiff’s counsel replied: “Yes, sir. I will read it all if you like.” Defense counsel said: “No,” and made no further objection. Defendants complain that counsel’s response to the question was improper and prejudicial. Defendants argue that because it is improper for an attorney to read an unproven transcript to a jury, it is also improper for an attorney to challenge his opponent to permit him to read an unproven transcript to a jury. We shall consider defendants’ failure to object as a waiver of the objection. We may consider the alleged error in the absence of objection if it is of such a character as to amount to a denial of a fair trial. The remark was not so prejudicial in this instance. McElroy v. Force (1967), 38 Ill.2d 528, 232 N.E.2d 708.

In the fourth instance, plaintiff’s counsel referred to the plaintiff’s testimony as follows:

“She testified to her lost earnings, and she was about $1500 short. How do you explain that, Mr. CaHahan?
Mr. Callahan: Your honor, he asked me a question. I would Hke to have the right to answer.
The court: Overruled.”

The defendants contend that because this was part of plaintiff’s rebuttal argument and defense counsel would not have an opportunity to reply, his inabüity to reply would lead the jury to believe that he had no answer. Under the circumstances, counsel’s question was not improper argument. It was one in a series of rhetorical questions that counsel made in response to defense counsel’s argument. Defense counsel had argued that plaintiff had magnified the severity of her injuries at trial. By pointing out that plaintiff had actually underestimated a portion of her damages, counsel’s question was an invited response to the previous argument. (Andrews v. C.T.A. (1949), 337 Ill.App. 656, 86 N.E.2d 283.) Defense counsel made sure that his inability to reply to the rebuttal argument would not mislead the jury by pointing out to them in his closing argument that trial procedure would not aHow him to reply to opposing counsel’s remarks.

In the fifth instance plaintiff’s counsel commented on defendants’ tactics in caHing Dr. MHIer, a medical expert, to testify:

“We are charged with [sic] every move she makes is in preparation for trial, but they do nothing in preparation for trial, or did they have a doctor who was going to come in and they didn’t like his testimony, so they got Dr. Mfiler? I don’t know.”

The court sustained defendants’ objection and instructed the jury to disregard the remark.

Although counsel's remarks were improper, the court took proper measures to guard against any prejudicial effect on the jury. Under these circumstances, we find no reversible error. Taylor v. Carborundum (1969), 107 Ill.App.2d 12, 246 N.E.2d 898.

In the sixth and final instance, counsel commented on the testimony of one of plaintiff’s witnesses, Martha Wagner, who was riding on the bus at the time of the accident. He stated: “She knows that at about 9500 South Western there is a major limb which overhangs Western Avenue. It’s been there a long time.” Defense counsel objected on the grounds that there was no testimony to that effect and the court sustained the objection. Defendants’ attorney and plaintiff’s attorney then argued the point between themselves until the judge stated, “The jury heard the testimony.”

Defendants complain that counsel misstated the evidence and persisted in voicing his belief in the propriety of the remark even after the court had sustained the objection. Defendants further argue that the final statement of the court lessened the effect of sustaining the objection.

Mrs. Wagner testified that on her way home from work on the day of the accident she noticed that “a big limb,” which was “quite thick,” had broken off the tree in the area where the accident occurred. The comment of counsel was a minor departure from Mrs. Wagner’s testimony.

The evidence was conflicting as to whether the bus scraped against a part of a tree which was uprooted or not uprooted. One theory of the facts supports the inference drawn from Mrs. Wagner’s testimony. The court’s comment indicated to the jury that it was their function to determine the facts in the case and placed the remarks of plaintiff's attorney in the proper perspective. Congiardo v. Bordenaro (1969), 106 Ill.App.2d 374, 245 N.E.2d 884.

Having decided that none of these instances of error warrants reversal, we find no merit in defendants’ contention that when cumulated these errors warrant reversal. The court acted properly in those instances in which it sustained defendants’ objections, and any further action which the court took was effective in protecting the rights of the parties. In the instructions the court told the jury to disregard the statements of counsel which had no basis in the evidence. Those remarks which the court disapproved were not so prejudicial so as to require action beyond that which the court had taken at trial. Ziegler v. Smith (1967), 86 Ill.App.2d 215, 229 N.E.2d 340.

In their second contention, defendants argue that the plaintiff misused the discovery process to their detriment and that, therefore, they entitled to a new trial. Specifically, they claim they were surprised by the testimony at trial of two of plaintiff’s expert medical witnesses, Dr. Foltz and Dr. Hirshtick. They received a medical report of Dr. Foltz dated August 6, 1968, pursuant to a reciprocal order for production entered October 24,1968. This report noted “no evidence of bone destruction” in plaintiff’s condition. At trial, Dr. Foltz testified to the possibility that plaintiff had sustained a slipped disc. Defendants claim they were surprised by this testimony. They also claim they were surprised by the testimony of Dr. Hirshtick whose medical report they received on the eve of trial. Dr. Hirshtick testified that plaintiff had sustained a ruptured disc.

At the conference on instructions near the end of the trial, defense counsel asked for a mistrial on the grounds that plaintiff did not comply with a second reciprocal order for production of May 22,1970, that plaintiff did not produce the report of Dr. Hirshtick until the eve of trial, and that defendants were surprised thereby. The court denied the motion for mistrial.

Upon a closer examination of the circumstances surrounding the pretrial discovery, it becomes apparent that defendants were surprised because of their lack of preparation and not because of plaintiff’s bad faith. Aside from obtaining the report of Dr. Foltz dated August 6, 1968, defendants did not take any steps until the eve of trial on June 17, 1970, to inquire more fully into the nature of plaintiff’s injuries. On plaintiff’s motion, the court entered its order of May 22, 1970, requiring that the parties produce, inter alia, aH data pertaining to the mental and physical condition of the plaintiff before and after the accident. The exchange of information was to take place within five days after entry of the order at the offices of the plaintiff’s attorney. Defendants did not comply with the order, nor did they seek to compel the plaintiff to comply. On the eve of trial plaintiff’s attorney told defendants’ attorney that he was ready to give him a Hst of expert witnesses and the report of Dr. Hirshtick. Defendants’ attorney replied that the next day would be soon enough to receive the report.

Defendants argue that plaintiff lulled them into believing that plaintiff’s injuries were not serious. They point to a conversation which took place on tire eve of trial in the judge’s chambers between the two opposing counsel. Plaintiff’s attorney had increased his settlement demand from $5000 to $25,000. At this point there is a disagreement as to what transpired. At the hearing on the defendants’ post-trial motion for new trial, defendants’ attorney testified that when questioned about the reasons for the increase, plaintiff’s attorney said there was no change in the plaintiffs condition. Plaintiffs attorney testified that defense counsel asked him if there were any changes in the case to which he replied there was none. Both counsel testified under oath.

It was inappropriate for the defendants to rely on the report of August 6, 1968, and the conversation in judge’s chambers to support their conclusions that the plaintiff’s injuries were not serious and that they did not involve a disc disablement. The surprise and prejudice of which the defendants complain was due to them failure to inquire more fuHy into the nature of the injuries by way of the various means avaüable to them for discovery. There is no indication that the plaintiff wilfully concealed any information from the defendants. In this situation we will not grant defendants a new trial. Buckler v. Sinclair Refining Co. (1966), 68 Ill.App.2d 283, 216 N.E.2d 14.

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

Judgment affirmed.

DEMPSEY, P. J., and McNAMARA, J., concur.