author: JUSTICE SCHNAKE

text:
    JOHN R. SOMMER et al., Plaintiffs-Appellants, v. UNITED SAVINGS LIFE INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 2—83—0884
    Opinion filed November 14, 1984.

      Robert J. Oliver and Thomas Z. Hodson, both of Connolly, Hickey & Oliver, of Rockford, for appellants.
    Keith Hyzer, of Rockford, for appellee.
   JUSTICE SCHNAKE

delivered the opinion of the court:

On October 26, 1979, plaintiffs filed their original single-count complaint in the circuit court of Winnebago County. In it they sought damages against the defendant, United Savings Life Insurance Co., for the fraudulent misrepresentations of the defendant’s agents in connection with the sale of two life insurance policies to plaintiff Evelyn Sommer on the life of plaintiff John Sommer.

Defendant moved to dismiss on October 30, 1979, based on the five-year statute of limitations for fraud. (Ill. Rev. Stat. 1981, ch. 83, par. 16, now Ill. Rev. Stat. 1983, ch. 110, par. 13 — 205.) With the court’s permission, plaintiffs filed an amended complaint on February 25, 1982. The amended complaint contained five counts, all based upon the same insurance policy transactions. Count I was based on common law fraud, as was the original complaint, and sought compensatory damages. Count II sought recovery of compensatory damages based on the theory of negligent misrepresentation. Count III alleged a violation of section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1975, ch. I2IV2, par. 262), and asked for compensatory damages. Count IV sought compensatory damages based on a violation of sections 149, 401, 423 and 424 of the Illinois Insurance Code (Ill. Rev. Stat. 1975, ch. 73, pars. 761, 1013, 1030 and 1031), and Rule 9.17 of the Illinois Department of Insurance. Count V sought punitive damages for the wilful fraud and wilful violations of the above statutes and rule.

The defendant renewed its motion to dismiss, which was granted on September 1, 1983. The judgment stated that count I failed to advance a valid cause of action for fraud and was also barred by the five-year statute of limitations. Likewise, counts II, IV and V were barred by the five-year statute of limitations. Count III was held barred by the three-year statute of limitations contained in section 10a(e) of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1975, ch. 121V2, par. 270a(e)). It is from this judgment that the plaintiffs appeal.

The elements of common law fraud are clear; there must be (1) a statement of material fact as opposed to opinion, (2) the statement must be untrue, (3) the party making the statement knows or believes it to be untrue, (4) the person to whom the statement is made believed and relied on it and had a right to do so, (5) the statement was made for the purpose of inducing the other party to act, and (6) the reliance of the person to whom the statement was made led to his injury. Zickur v. Irmiger (1973), 15 Ill. App. 3d 805, 807; Bennett v. Hodge (1940), 374 Ill. 326, 332.

The trial court, in dismissing count I for failing to state a cause of action, stated:

“I am going to grant the motion to dismiss Count I of the first amended Complaint. The reason is, it appears to the Court that the basis for the fraud charge is set forth and relied upon in Paragraph 6 of Count I.
And it says that as a consequence of the plaintiffs’ acts of reliance as set forth in Paragraph 6 as a direct and approximate result of the aforesaid false and fraudulent representations as set forth therein.
5, I don’t believe that either Paragraph 5 or 6 state a viable cause of action on the basis of fraud.”

The precise reasons for the trial court’s dismissal of count I are not clear; it appears that the court felt paragraphs 5 and 6 were insufficient. Paragraphs 5 and 6 state:

“5. Defendant through its agent or agents, having knowledge of the facts alleged in paragraphs 3. and 4. of the First Amended Complaint affirmatively, falsely and fraudulently represented to plaintiff, JOHN R: SOMMER, SR., and to plaintiff, EVELYN M. SOMMER, by her agent, JOHN R. SOMMER, the following:

a. On or about September, 1974, the defendants stated the premiums on a certain policy of insurance for $1,000,000 were less than premiums on his existing policies which provided less coverage.

b. On or about September, 1974, although plaintiff, JOHN R. SOMMER, SR. had advised the company’s agent that the insurance applied for was intended to replace insurance with death benefits of at least $700,000.00, the company’s agent completed the application form to indicate the application was not replacement insurance, and when the said plaintiff inquired about that indication, the company, by its agent, stated that was the proper answer for technical reasons the plaintiff could not understand.

c. On or about September, 1974, the defendant stated that, although the policy being offered to the plaintiffs would be too expensive for the purpose it was being sold unless it was a dividend paying policy, the defendant company was then taking action to change the policy to provide for payment of dividends.

d. On or about October 24, 1975, the defendant advised the plaintiffs that the defendant company had taken the action to provide a dividend paying policy, and the plaintiff could benefit from that action, by surrendering the policy purchased from the defendant in 1974, and converting it to a new policy.

e. On or about November, 1975, defendant represented to plaintiff, JOHN R. SOMMER, SR. that he and plaintiff, EVELYN M. SOMMER, could purchase a policy of insurance on the life of JOHN R. SOMMER, SR., with a death benefit as shown in the column headed ‘Death Benefit’ on Exhibit A attached hereto and with an annual cost as shown in the column headed ‘net’ in said exhibit.

6. Defendant, through its agent or agents, by the aforesaid affirmative, false and fraudulent misrepresentations fraudulently induced the plaintiffs to act in reliance, as follows:

a. On or about September, 1974, the plaintiffs executed an application for insurance which stated the insurance applied for was not intended as replacement insurance, when in fact, it was;

b. On or about November, 1974, the plaintiffs purchased from defendant, accepted delivery of a policy of insurance providing a death benefit of $1,000,000.00, and paid premiums therefor;

c. On or about December, 1974, plaintiff, JOHN R. SOMMER, SR. cancelled certain policies on his life with death benefits in excess of $700,000.00 and a cash value in excess of $300,000.00;

d. On or about October, 1975; the plaintiffs surrendered and converted the 1974 policy for another policy and paid premiums therefore; a copy of said policy being attached hereto as Exhibit B;

e. On or about December, 1975, the plaintiffs purchased from defendant, accepted delivery of another policy of insurance providing a death benefit of $1,000,000, and paid premiums, therefor. A copy of that policy is attached hereto as Exhibit C;

f. The plaintiffs failed to purchase other policies of insurance which were less expensive than the defendant’s, which were available in the market in 1974 and 1975, but which were no longer available when the defendant revealed the true nature of its policies.”

Since paragraph 5 sets forth the fraudulent misrepresentations allegedly made by the defendant’s agent and paragraph 6 sets forth plaintiffs’ acts of reliance, we will focus primarily upon the first and fourth elements of fraud set forth above, which were apparently the basis for the trial court’s dismissal of the complaint.

Illinois law is clear that a misrepresentation as to a future promise or intent will not sustain an action for fraud. (Bank of Lincolnwood v. Comdisco, Inc. (1982), 111 Ill. App. 3d 822, 828-29; Tonchen v. All-Steel Equipment, Inc. (1973), 13 Ill. App. 3d 454, 463-64; Hurley v. Frontier Ford Motors, Inc. (1973), 12 Ill. App. 3d 905, 911.) The defendant argues that we should affirm the trial court’s dismissal on this basis because paragraph 5 alleges merely the failure to perform future promises and intent and not a misrepresentation of present or past fact as required to state a cause of action.

We disagree, however, and hold that paragraph 5 sufficiently sets forth representations of past and existing facts. The misrepresentations alleged were made in the present tense. Specifically, paragraph 5(b) alleges that the defendant’s agents told the plaintiffs that the defendant’s policies were not replacement policies for technical reasons that the plaintiffs could not understand. Paragraph 5(c) alleges that the defendant’s agents told the plaintiffs that the defendant company “was then taking action” (in September of 1974) to change the defendant company’s policy to a dividend paying policy. Paragraph 5(d) alleges the defendant’s agents told John Sommer that the defendant company “had taken” action (by October 1975) to provide a dividend paying policy and that he (Sommer) could benefit by converting to the new policy. Paragraph 5(e) alleges that the defendant’s agents told John Sommer that the plaintiffs could now buy an insurance policy with specific benefits at a specific price. All of these paragraphs allege representations of present or past facts and not simply defendant’s failure to perform a future promise made to John Sommer some time earlier. When the defendant represents that it has now taken the action it had previously promised to take, the representations are of an existing or past fact.

Furthermore, even if we were to characterize the allegations of paragraph 5 as merely failures to perform future promises, we would find the allegations sufficient. Illinois recognizes an exception to the general rule of requiring the misrepresentation to go to past or existing facts in allowing a future promise to be the basis for a claim of fraud where that promise is alleged to be part of a general scheme employed to accomplish the fraud. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320; Carter v. Mueller (1983), 120 Ill. App. 3d 314.) Plaintiffs allege such a scheme here.

As to the reliance allegations of paragraph 6, defendant argues that since the misrepresentations were made to the husband, John Sommer, while the policy was owned by the wife, Evelyn Sommer, plaintiffs’ claims of detrimental reliance cannot stand. We cannot agree. Paragraph 5 of the amended complaint alleges that the misrepresentations were made to Evelyn Sommer through her agent, John Sommer. Further, to hold that John Sommer had no right to rely on the misrepresentations because his wife, Evelyn Sommer, was technically named as owner and signed the application would truly be putting form above substance. We believe the allegations here are sufficient to infer that the plaintiffs were acting together, as a couple, when they purchased these insurance policies and therefore they both had a right to rely on the misrepresentations and both have been injured.

Defendant further argues that the plaintiffs’ reliance was not justified because fraud is, in most situations, unavailable to avoid the effect of a written agreement where the complaining party could have discovered the fraud by reading the instrument, and was, in fact, afforded the opportunity to do so. (Belleville National Bank v. Rose (1983), 119 Ill. App. 3d 56, 59.) The plaintiffs argue the rule is inapplicable because they have pleaded facts sufficient to show that the fraud in this case could not have been discovered by merely reading the policy.

As the court noted in Belleville National Bank, the rule has not been applied in those cases where the alleged fraud would not have been discoverable from reading the terms of the document. (119 Ill. App. 3d 56, 60.) Here, the plaintiffs have alleged a complex scheme operated by the defendant’s agents to defraud them. As plaintiffs’ counsel explained at oral argument, this scheme involved misrepresentations of the cost of and amount of the policy’s death benefits, as alleged in paragraphs 5(e) and 9, based on complex computations involving dividends that the policy would allegedly pay out and loans taken against the policy to pay the premiums and purchase additional insurance, as well as interest to be paid on these loans. The complexity of this scheme and the policy itself make it uncertain, at best, that even a close reading of the policy would have disclosed the alleged fraud to the plaintiffs who were not insurance experts, nor is it clear that the misrepresentations were contrary to the terms of the policy. Most of the misrepresentations appear to have been of extraneous benefits not listed or contradicted by the policy itself.

Since it is not clear that the injured party could have discovered the fraud by reading the document, the defendant’s argument is inapplicable. Whether the plaintiffs were justified in relying on the oral representations of the defendant’s agents, considering the uncertainty discussed above, is thus an issue for the jury. Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483.

Defendant’s last reliance argument is that the plaintiffs could not have relied on any statements made after September 1974, since that is when Evelyn Sommer originally applied for a life insurance policy. This argument, in that it posits there was only one act of reliance by the plaintiffs, must be rejected. The plaintiffs have alleged numerous acts of reliance, many of which occurred after September of 1974. These include canceling their current policies in December of 1974, surrendering their original policy with the defendant company to purchase a new policy with the defendant company some time between October and December of 1975, and paying premiums on these policies to the defendant company. Simply put, the plaintiffs have alleged a policy shuffle scheme involving numerous misrepresentations upon which they repeatedly relied until December of 1975.

Defendant lastly argues we should uphold the trial court’s dismissal on the basis that the allegations of damages were insufficient. While this was apparently not the basis for the trial court’s dismissal, the defendant did raise this issue in the trial court and in his brief to this court and, therefore, the issue is properly before us. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.

Defendant relies entirely on the case of Wolford v. Household Finance Corp. (1982), 105 Ill. App. 3d 1102, which upheld the trial court’s dismissal of the plaintiff’s fraud complaint. The plaintiff there alleged he was fraudulently induced to refinance his loan with the defendant when one of the defendant’s agents misrepresented that he would pay less interest by doing so. Plaintiff alleged that he would actually be paying $1,000 more in interest because he refinanced. The court held this was conclusory and so insufficient because the plaintiff failed to set out any specific figures which represented his obligations under the original or new note.

The court made clear in Wolford that the deficiency in the pleadings did not relate to the amount of damages, but rather to the failure to state any facts supporting the legal conclusion that the defendant’s actions injured the plaintiff at all. We interpret this defendant’s arguments, therefore, to be that the present plaintiffs have failed to set forth sufficient facts to show that they were injured at all by the defendant’s misrepresentations.

In an action for fraudulent misrepresentations in the sale of property, the measure of damages is the difference between the value of the property as it is and what it would have been worth if the representations had been true. (Schwitters v. Springer (1908), 236 Ill. 271, 274; Four “S” Alliance, Inc. v. American National Bank & Trust Co. (1982), 104 Ill. App. 3d 636, 640.) Therefore, to show injury, plaintiffs must allege facts which show the value of what they received was not equal to the value of what they were promised.

In this case, we feel the plaintiffs have sufficiently alleged such facts. Paragraph 5(e) of the amended complaint alleges that the defendant’s agents represented that the plaintiffs could purchase a life insurance policy for the amount of death benefits listed in the death benefits column of Exhibit A at the annual cost listed in the net column of Exhibit A. Exhibit A, which was attached to the plaintiffs’ complaint, showed the amount of death benefits would be $964,000 in year No. 2 and rise slowly to $973,000 in year 15. The annual “net” premium for this policy would start at $48,160 for year one, but drop to $21,160 for year two. It would then slowly rise to $30,160 by year 15. The plaintiffs allege in paragraph nine that the premiums did not drop as the defendant’s agents said they would under the agents’ plan of taking loans against the policy to pay the premiums. As plaintiffs’ counsel stated at oral argument, for the premium to drop as the defendant’s agents represented they would, the plaintiffs would have to allow the death benefits of the policy to sink from just under $1,000,000 to $542,000 by year No. 15. This clearly shows that the plaintiffs were injured. If they paid the premiums that the defendant’s agents represented to them, they would have, after 15 years, a policy with just over one-half of the death benefits promised. To receive the death benefits promised, they would have to pay far more than the defendant’s agents represented the cost of this policy to be.

The second basis upon which the trial court dismissed count I was that it was barred by the five-year statute of limitations governing fraud actions. (Ill. Rev. Stat. 1981, ch. 83, par. 16, now Ill. Rev. Stat. 1983, ch. 110, par. 13 — 205.) The trial court apparently felt, and the defendant here argues, that the statute of limitations began to run in September of 1974, thus making the original complaint filed in October of 1979, barred. (It is apparently not disputed by defendant that count I of the amended .complaint related back to the filing of the original complaint in October of 1979, since both state a cause of action under the theory of common law fraud.)

As we stated earlier, however, the amended complaint alleges a scheme to defraud. The scheme consisted of a series of misrepresentations which occurred from September 1974 to at least November of 1975. This scheme did not end in September of 1974, when the first policy was applied for. The allegations in paragraphs 5(e) and 6(e) clearly allege the misrepresentations were made as late as November of 1975, which induced reliance and injury as late as December of 1975, when the most recent policy was purchased and received. Since the five-year statute of limitations therefore began to run in December of 1975, it had not expired in October of 1979, when the original complaint was filed, and the trial court was in error in holding it barred. Starcevich v. City of Farmington (1982), 110 Ill. App. 3d 1074, 1079.

The trial court further dismissed counts II, IV and V on the basis of this same five-year statute of limitations. Since these counts rest on the same factual allegations of count I, we find they are not barred by this statute of limitations for the reasons just stated. The defendant argues, however, that unlike count I, counts II, IV and V of the February 25, 1982, amended complaint did not relate back to the October 26, 1979, filing of the original complaint and therefore, are barred by the statute of limitations.

The sole requirement under our Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 616(b), formerly Ill. Rev. Stat. 1981, ch. 110, par. 46(2)) for allowing a pleading to relate back to the time the original complaint was filed is that the cause of action set up in the amendment grew out of the same “transaction or occurrence” set up in the original pleading. (Metropolitan Trust Co. v. Bowman Dairy Co. (1938), 369 Ill. 222, 229.) Defendant is apparently trying to argue here, however, that sections 2 — 616(a) and 2 — 616(b) are properly read together as only allowing relation back of claims intended to be brought in the original pleading, so that a new theory of recovery, even if based on the same transaction or occurrence, does not relate back. This argument has previously been rejected in a number of cases.

In Geneva Construction Co. v. Martin Transfer & Storage Co. (1954), 4 Ill. 2d 273, the original complaint sought subrogation under the Workmen’s Compensation Act. After the statute of limitations had run, the plaintiff amended the complaint to lead a theory of common law subrogation. The court specifically rejected the defendant’s argument that the amendment did not set up the claim originally intended to be brought and stated:

“To hold today that the right to amend and the relation back of an amendment, when made, depend upon the subjective frame of mind of the pleader would restore the formalistic. approach to amendments to pleadings which the legislature has sought to eliminate. It would minimize the realistic emphasis of paragraph (2) [now (b)] upon identity of ‘transaction or occurrence’ as the touchstone of relation back.” 4 Ill. 2d 273, 289.

A case which is quite similar to the present case is our previous decision in Lautz v. Pier V (1979), 68 Ill. App. 3d 290. The plaintiff there filed his complaint seeking recovery of $10,000 he had paid for stock in the Piper Yacht Club and $4,000 for services rendered prior to his termination, on the theories of breach of contract and fraudulent misrepresentation. After the statute of limitations had run, the plaintiff filed a third amended complaint adding a claim under section 13 of the Illinois Securities Act (Ill. Rev. Stat. 1977, ch. 1211/2, par. 137.13(A)), which allows rescission of a purchase of stock if the sale is consummated in violation of the provisions of the Act. The Act provides that it is a violation to engage in any practice or course of business in connection with the sale or purchase of securities “which works or tends to work a fraud or deceit upon the purchaser ***.” Ill. Rev. Stat. 1977, ch. 121V2, par. 137.12(F).

In holding that the third amended complaint related back to the filing of the original complaint, we stated:

“Section 46(2) of the Illinois Civil Practice Act has been consistently interpreted to not bar an amendment under the statute of limitations even though the amendment relies upon either a statutory form of action or a common law form of action for the first time if the cause of action stated in the amendment arises out of the same transaction or occurrence asserted in a prior timely filed complaint. [Citations.]” 68 Ill. App. 3d 290, 291.

In the present case, we feel there can be no doubt that counts II, IV and V arise out of the same “transaction or occurrence set up in the original pleading.” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 616(b), formerly Ill. Rev. Stat. 1981, ch. 110, par. 46(2).) The original complaint set forth a theory of common law fraud based on the plaintiffs’ purchase of life insurance policies allegedly induced by the misrepresentations of the defendant’s agents. All five counts of the amended complaint are also based on the misrepresentations of the defendant’s agents in the sale of these same policies. The amended complaint simply sets forth additional legal theories for recovery based on the same fraudulent sales transactions.

The only remaining issue is whether count III was barred by the statute of limitations. Count III alleged a violation of section 2 of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121V2, par. 262). The Act supplies its own statute of limitation periods of three years, dated from the time the cause of action accrued. (Ill. Rev. Stat. 1981, ch. I2IV2, par. 270a.) Since count III is also based on the same factual allegations of count I, the statute of limitations began to run on it in December of 1975 for the reasons stated earlier.

The plaintiff argues that the discovery rule applies to this case so that the statute of limitations runs from the date the misrepresentations were discovered. When a defendant raises the statute of limitations in a motion to dismiss, it becomes incumbent upon the plaintiff to set forth facts sufficient to avoid the statute of limitations. (Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527.) The plaintiff alleged that, due to the complex scheme involved, the fraud could not have been discovered until some time in 1976 or 1977. This does not meet their burden. Since the original complaint was filed in October of 1979, the plaintiffs must plead facts showing the fraud was not discovered until October of 1976 if the discovery rule is to save count III. The plaintiffs, in alleging only that the fraud could not have been discovered until some time in 1976 or 1977, have failed to do this. Their allegations show the fraud might have been discovered in 1976 before October 26, in which case count III would be barred by the three-year statute of limitations. Since the plaintiffs have failed in their burden of setting forth facts to avoid the statute of limitations, we find the trial court was correct in dismissing count III.

We do not reach the issue of whether count III could have been saved by the application of our concealment statute (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 215). While the plaintiffs raise the statute as applying to counts II, IV and V, an issue we did not need to reach, they did not raise it as to count III and we, therefore, deem it to have been waived.

For the reasons set forth above, the judgment of the circuit court of Winnebago County is reversed as to counts I, II, IV and V and affirmed as to count III. This cause is remanded for further proceedings consistent with this opinion.

Affirmed in part and reversed in part; cause remanded.

UNVERZAGT and LINDBERG, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE ALLOY

license: Public Domain

text:
    MEMORIAL MEDICAL CENTER, Plaintiff-Appellant, v. MELVIN A. MATTHEWS, Defendant-Appellee.
    Fourth District
    No. 4—83—0704
    Opinion filed November 13, 1984.

      Brown, Hay & Stephens, of Springfield (Robert A. Stuart, Jr., and William F. Trapp, of counsel), for appellant.
    Jerry Doyle Miller, of Bowen, Miller & Tungate, of Olney, and John R. Keith, of Holley, Keith & Mehlick, of Springfield, for appellee.
   PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

The final issue to be decided in this case is whether the defendant Melvin Matthews waived his right to object to venue in Sangamon County, by not making a timely motion to transfer venue. At issue is the construction of section 2 — 104(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 104(b)).

The record discloses that Memorial Medical Center filed its complaint against defendant Matthews on December 8, 1982, in Sangamon County. The basis for recovery in the action was plaintiff’s rendering of medical services to defendant’s wife, subsequently deceased, from September 2, 1981, to September 17, 1981. The action was premised upon the family expense statute (Ill. Rev. Stat 1981, ch. 40, par. 1015).

On December 27, 1982, the defendant, Matthews, by his attorney, entered an entry of appearance and responded to the complaint with a motion to dismiss. No motion to transfer venue or objection to venue was filed or included in the motion to dismiss. Defendant’s first objection to venue was presented, by oral motion, on January 27, 1983. That motion was granted by the trial court. A motion to reconsider the transfer to Wayne County was filed by plaintiff, with the result that the trial court granted the defendant leave to file a written motion to transfer venue. This was done on May 31, 1983. By docket entry on June 8, 1983, the motion to transfer was granted. The plaintiff then sought, and was granted, leave to appeal from the granting of the motion to transfer venue. Although several issues are raised, the question of the timeliness of the motion is dispositive, and we need not address the other issues.

The pertinent statutory provision is section 2 — 104(b) of the Code of Civil Procedure, which states:

“(b) All objections of improper venue are waived by a defendant unless a motion to transfer to a proper venue is made by the defendant on or before the date upon which he or she is required to appear or within any further time that may be granted him or her to answer or move with respect to the complaint, except that if a defendant upon whose residence venue depends is dismissed upon motion of plaintiff, a remaining defendant may properly move for transfer as though the dismissed defendant had not been a party.” Ill. Rev. Stat. 1981, ch. 110, par. 2 — 104(b).

The statutory language is direct and clear; objections of improper venue are waived unless a proper motion to transfer is made on or before a defendant is required to appear or any extension is granted for appearance and moving with respect to a complaint. It has long been the rule that questions of improper venue must be raised promptly. (Wagner v. David (1966), 35 Ill. 2d 494, 221 N.E.2d 248; Bank of Hickory Hills v. Hammann (1982), 108 Ill. App. 3d 834, 837, 439 N.E.2d 1048.) In Nemanich v. Dollar Rent-A-Car Services, Inc. (1980), 90 Ill. App. 3d 484, 487, 413 N.E.2d 178, the court noted that the filing of a general appearance “constitutes a waiver of venue objections,” except for those based upon forum non conveniens. The exception does not apply herein.

In the instant case, the defendant filed his general appearance and motion with respect to the complaint before making any objection to venue. That is undisputed. Also undisputed is that there was no extension of time granted the defendant with respect to appearing or moving on the complaint. Under the circumstances, the objection to venue was waived. Nemanich v. Dollar Rent-A-Car Services, Inc. (1980), 90 Ill. App. 3d 484; Haas v. Pick Galleries, Inc. (1973), 12 Ill. App. 3d 865, 299 N.E.2d 93.

The court has discretion to extend the time for answer or moving with respect to a complaint, thereby indirectly extending the time for filing a motion to transfer venue. Here, as noted, no such extension was granted. The defendant entered his general appearance and moved to dismiss, without first objecting to venue. His objections to venue were thus waived and not properly heard by the court thereafter.

The court erred in granting the motion to transfer venue, which had not been timely filed. Defense objections to improper venue, even if valid, had already been waived.

Reversed and remanded for further proceedings in Sangamon County.

STOUDER and HEIPLE, JJ., concur.


author: JUSTICE MILLER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD M. STEVENS, JR., Defendant-Appellant.
    Fourth District
    No. 4—84—0061
    Opinion filed November 13, 1984.
    Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Linda Welge, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

The defendant, Edward M. Stevens, Jr., was tried by a jury, convicted of two counts of forgery, and sentenced to concurrent terms of five years’ imprisonment. On appeal he argues that his convictions must be reversed because of a fatal variance between the allegations in the charging instruments and the evidence adduced at trial. We affirm.

The defendant was charged first by information and then by indictment with the offenses here. Both counts of the indictment alleged that the defendant committed forgery “in that he knowingly with intent to defraud possessed with intent to issue a check ***.” The checks in question were for $75 each and were refunds of security deposits that a landlord had mailed on June 3, 1983, to two former tenants, Carl Jessen and Frank Luto. Neither Jessen nor Luto ever received his refund check. On June 8 the defendant gave Jessen’s check, bearing a blank endorsement in Jessen’s name, to a friend, Robin Powell, explaining that Jessen owed him money. At the defendant’s request, Powell endorsed the check and cashed it at her bank; she deposited $10, which the defendant owed her, and gave him the remaining money. A few days later the defendant gave Luto’s check, bearing a blank endorsement in Luto’s name, to a friend, Jerald Lott. At the defendant’s request, Lott endorsed the check and cashed it at his bank, giving the defendant the full amount. The defendant’s name did not appear on either check.

Section 17 — 3(a) of the Criminal Code of 1961 provides:

“A person commits forgery when, with intent to defraud, he knowingly:

(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority; or

(2) Issues or delivers such document knowing it to have been thus made or altered; or

(3) Possesses, with intent to issue or deliver, any such document knowing it to have been thus made or altered.” (Ill. Rev. Stat. 1981, ch. 38, par. 17 — 3(a).)

The charges here alleged the defendant’s possession of the checks with the intent to issue them.

On appeal the defendant argues that delivering a check is sometimes different from issuing one, and that the evidence adduced at trial showed his intent to deliver the checks rather than his intent to issue them. In making this argument the defendant relies on the definition of “issue” found in the Uniform Commercial Code, which said, “ ‘Issue’ means the first delivery of an instrument to a holder or a remitter.” (Ill. Rev. Stat. 1981, ch. 26, par. 3— 102(l)(a).) “Delivery” is a “voluntary transfer of possession.” (Ill. Rev. Stat. 1981, ch. 26, par. 1 — 201(14).) The defendant argues that, in giving these checks to friends, he was not making first deliveries and therefore he could not have issued them or had the intent to issue them. The defendant made the same argument in the trial court in his motions for directed verdicts. The trial judge denied the motions; he believed that the defendant’s endorsing the checks with the payees’ names would be acts of issuance. The court seemed to believe that issuance was different from delivery, however, for he refused the State’s issues instructions, taken verbatim from the applicable parts of Illinois Pattern Jury Instructions (IPI), Criminal, No. 13.26 (2d ed. 1981), and gave instead ones proposed by the defendant. The defendant’s instructions differed from IPI Criminal No. 13.26 only in omitting the words “or deliver” from the statement, “That the defendant knowingly possessed, with intent to issue or deliver ***.”

We do not believe that the word “issue,” as it appears in combination with “deliver” in section 17 — 3, is limited to a first delivery, and therefore we decline to apply here the definition of “issue” contained in the Uniform Commercial Code. “Issue” is used in the Uniform Commercial Code as a term of art and carries with it a carefully circumscribed meaning. Under those provisions, “issue” is a first delivery of a negotiable instrument to a holder or remitter. Applying the commercial definition to the word “issue” as it appears in the forgery statute, however, would correspondingly limit prosecutions based on that act to first deliveries of negotiable instruments to holders or remitters. This would be inconsistent with the broad language of the forgery statute, which speaks of “any document” — not just a negotiable instrument — “apparently capable of defrauding another” — not just a holder or remitter. Cf. Shirk v. People (1887), 121 Ill. 61, 11 N.E. 888 (indictment quashed and defendant discharged because allegedly forged contract was outside the class of instruments enumerated in the statute forming the basis for the indictment).

Precedent exists for our decision here not to apply to the forgery statute a definition taken from commercial law. In People v. Epping (1959), 17 Ill. 2d 557, 162 N.E.2d 366, the court considered the argument that typing the payee’s name on the back of a warrant could not constitute a forged endorsement, for the commercial law at that time required that endorsements be handwritten. The court said:

“The definition of ‘forgery’ as contained in our statute does not limit the crime of forgery to an act of endorsing, by forgery, a signature on an instrument in compliance with the Negotiable Instruments Act. [Citations.] The test of an endorsement in a forgery trial is not its legal sufficiency to constitute a valid endorsement under the Negotiable Instruments Act but, rather, the inquiry is to ascertain whether the endorsement renders the instrument capable of defrauding and is made for that purpose.” (17 Ill. 2d 557, 568-69, 162 N.E.2d 366, 373.)

In Epping, then, the court did not limit “endorsement” to its commercial meaning. See People v. Connell (1980), 91 Ill. App. 3d 326, 414 N.E.2d 796, and People v. Addison (1966), 75 Ill. App. 2d 358, 220 N.E.2d 511 (the term “make,” as used in the forgery statute, includes endorsement).

Since Epping was decided, the various statutes dealing with forgery have been codified by section 17 — 3 of the Criminal Code of 1961; the drafters did not intend to change the law, however. (Ill. Ann. Stat., ch. 38, par. 17 — 3, Committee Comments, at 280-81 (Smith-Hurd 1977).) Thus, section 17 — 3 uses two pairs of general terms — “makes or alters” and “issues or delivers” — in place of the virtual thesaurus formerly spread over six separate statutes. (Ill. Rev. Stat. 1961, ch. 38, pars. 151 (“issues or passes” currency), 277 (to “make, alter, forge or counterfeit” or “utter, publish, pass or attempt to pass” records or writings), 278 (“makes, alters, forges or counterfeits” or “utters or passes, or tenders in payment” public securities or bank bills), 279 (to “make, pass, utter or publish” fictitious bills or notes), 280 (“connects together” parts of several bills), 401 (to “steal, embezzle, alter, corrupt, withdraw, falsify or avoid,” “take off, discharge or conceal,” “forge, deface or falsify,” or “alter, deface or falsify” public records).) In the context of section 17 — 3, we see no intended distinction between issuing a document and delivering one. “Issue” and “deliver” have replaced words such as “utter,” but without producing a change in essential meaning; “[t]he words ‘uttering’ or ‘to utter’ have a clear definition in law; they mean substantially ‘to offer’ (People v. Katz (1934), 356 Ill. 440, 445)” (People v. Henderson (1978), 71 Ill. 2d 53, 57, 373 N.E.2d 1338. 1340).

Thus, unlike the language in the prostitution statute, “performs, offers or agrees to perform,” which the supreme court has construed as enumerating three distinct ways of committing the offense (People v. Johnson (1976), 65 Ill. 2d 332, 357 N.E.2d 1166; Ill. Rev. Stat. 1975, ch. 38, par. 11 — 14(a)), the conjunction “or” connects broadly overlapping terms here. To be sure, to the extent that “issue” or “deliver” are synonymous, one of them becomes redundant. The defendant’s suggestion that “issue” be defined as a first delivery is subject to the same objection, however, for under that meaning “issue” is totally subsumed by “deliver.”

Therefore, we conclude that the evidence adduced at trial did not vary from the allegations in the indictment. The defendant was proved guilty of the offenses beyond a reasonable doubt.

Affirmed.

MILLS, P.J., and WEBBER, J., concur.


author: JUSTICE JIGANTI

text:
    MATHEW C. CHADESH, Plaintiff-Appellee, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellant. — RICHARD J. CASPER, PlaintiffAppellee, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellant.
    First District (4th Division)
    Nos. 84—144, 84—145 cons.
    Opinion filed November 15, 1984.

      Gerald J. Porento and John S. Magiera, both of Commonwealth Edison Company, of Chicago, for appellant.
    Joseph P. Costello & Associates, of Chicago, for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

This action arises out of two cases currently pending before the Illinois Industrial Commission (Commission) involving loss of hearing claims brought by the plaintiffs, Mathew Chadesh and Richard Casper, employees of Commonwealth Edison, against the defendant, Commonwealth Edison (Edison). The plaintiffs sought, through the use of subpoenas issued by the Illinois Industrial Commission, certain corporate documents belonging to Edison containing information pertaining to noise level studies conducted and the testimony of Edison’s vice-president. Edison moved to quash the subpoenas before an arbitrator appointed by the Commission. The arbitrator denied its motion to quash. When Edison did not comply with the subpoenas, the plaintiffs then, pursuant to Commission rules, presented the arbitrator with applications to the circuit court of Cook County requesting enforcement of subpoenas, which the arbitrator signed.

The plaintiffs, pursuant to the same Commission rules which authorizes them, as private parties, to bring actions in the circuit court to enforce subpoenas, as opposed to authorizing the Commission to bring such actions, then filed the applications with the circuit court of Cook County. Edison appeared and moved to strike and dismiss the applications and also moved to quash the subpoenas. The trial court granted the plaintiffs’ applications, ordering Edison to fully comply with the subpoenas. This appeal ensued.

Edison raises two issues on appeal. First, Edison contends that the Illinois Industrial Commission, not the plaintiffs, was the proper and necessary party to this circuit court action to enforce Industrial Commission subpoenas. Second, Edison contends that the trial court should have granted its motion to quash the subpoenas due to the plaintiffs’ failure to serve said subpoenas according to proper statutory procedure.

Regarding the first issue, Edison argues that the Commission has exceeded the scope of the rule-making powers granted it by the General Assembly in sections 16 of both the Workers’ Compensation Act and Occupational Diseases Act (Ill. Rev. Stat. 1983, ch. 48, pars. 138.16, 172.51) by promulgating Rule 3 — (4)(d) of the Rules Governing Practice Before the Industrial Commission (1982). Rule 3 — (4)(d) establishes a procedure wherein an adversary party in an underlying Workers’ Compensation or Occupational Diseases Act case is empowered to prosecute in the circuit court actions to enforce Industrial Commission subpoenas. Edison contends that, according to the language in section 16, an action to enforce a Commission subpoena may be brought in the circuit court “on application of any member of the Commission or any Arbitrator designated by the Commission” and that this language authorizes the Commission or an arbitrator assigned by the Commission to be the sole party to bring said actions. Consequently, Edison contends that for the Commission to delegate this power to private parties, as it has through Rule 3 — (4)(d), is beyond the scope of its powers and that, accordingly, Rule 3 — (4)(d) is without force and effect.

We believe that the position espoused by Edison regarding the interpretation of the scope of the rule-making power vested in the Commission is too restrictive. The plain, unambiguous language of section 16 requires that an action in the circuit court to enforce Industrial Commission subpoenas be brought “on application of any member of the Commission or any Arbitrator designated by the Commission.” To construe “on application” as requiring the suit be filed solely by the Commission is an interpretation that is overly burdensome for the Commission. It does not seem to be particularly prudent to require the Commission to become so intricately involved with each case involving enforcement of subpoenas that may eventually be heard before the circuit court. To do so would be an unnecessary allocation of time, manpower and expense. Moreover, the task of bringing an action to the circuit court is not one in which the Commission would necessarily want or need to maintain exclusive control over.

Furthermore, Rule 3 — (4)(d) appears fundamentally sound in its requirement that the Commission or an arbitrator conduct a hearing to review both the merits and the form of the subpoena before granting its approval of the applications. Only after such a hearing has been held can the Commission or arbitrator sign an application, and only then may an action be brought to the circuit court. This procedure provides sufficient safeguards against frivolous suits flooding the already crowded docket of the circuit court, while also saving the Commission needless involvement at each instance.

In further support of its position, Edison draws an analogy between the instant statute and section 62 of the Public Utilities Act (Ill. Rev. Stat. 1983, ch. 1112/3, par. 66). Edison argues that section 62 is substantially similar to sections 16 of both the Workers’ Compensation and Occupational Diseases Acts with regard to circuit court actions to compel compliance with subpoenas from an administrative agency and that the Illinois Commerce Commission, in applying section 62 of the Public Utilities Act, has enacted no rule similar to Rule 3 — (4)(d), but rather brings such actions on its own behalf. (See Illinois Commerce Com. v. Salamie (1977), 54 Ill. App. 3d 465, 369 N.E.2d 235.) Accordingly, Edison argues that because the Industrial Commission operates under a similar statutory provision, it should proceed in the same manner as the Commerce Commission.

This argument is without merit. Each agency is empowered to promulgate procedural rules in order to effectively conduct its business. The fact that the Commerce Commission has chosen not to authorize private parties to enforce subpoenas in the circuit court has absolutely no bearing on how the Industrial Commission should proceed on the same subject. Thus, the Industrial Commission’s Rule 3— (4)(d) will be viewed as valid or invalid wholly independent from what the Commerce Commission does.

Edison also argues that the power conferred on the Industrial Commission by the General Assembly in section 16 relates to matters of procedure only. (Zurich General Accident & Liability Insurance Co. v. Industrial Com. (1927), 325 Ill. 452, 156 N.E. 307.) Edison maintains that by allowing private parties to bring actions to enforce Industrial Commission subpoenas in the circuit court, the Industrial Commission is creating a substantive right in these private parties,, and that based on the Workers’ Compensation and Occupational Diseases Acts and prior case law, administrative agencies may not create substantive rights. Madsen v. Industrial Com. (1943), 383 Ill. 590, 50 N.E.2d 707.

Finally, Edison argues that where there is a conflict between a general provision and a particular and specific enactment within the same statute, as is seen in the conflicting provisions of the general rule-making authority granted the Industrial Commission in sections 16 of the Worker’s Compensation and Occupational Diseases Acts and the particular and specific provision, also in section 16 of these acts, that circuit court enforcement actions shall be brought on application of the Commission itself, that the particular and specific enactment must prevail. Gaunt v. Payes (1965), 57 Ill. App. 2d 331, 205 N.E.2d 766; Revenue Department v. Wakeford Hardware Co. (1954), 2 Ill. App. 2d 66, 118 N.E.2d 627.

Edison’s last two arguments are equally without merit. We agree that the Commission’s rule-making power is one of procedure only. However, we believe that Rule 3 — (4)(d) is a procedural rule that controls the procedure of the enforcement of subpoenas and was promulgated within the proper powers of the Commission. Finally, this court does not find an inconsistency between sections 16 of the acts and Rule 3 — (4)(d) that would require the application of the rule of law wherein if there is a conflict between a general provision and a specific enactment within the same statute that the specific enactment must prevail. Accordingly, Rule 3 — (4)(d) is a valid exercise of the Commission’s powers, and the plaintiffs are proper parties to bring an action in the circuit court to enforce Industrial Commission subpoenas.

Edison’s next issue on appeal is that the plaintiffs failed to follow the proper statutory procedure for serving subpoenas and that the trial court therefore should have granted its motion to quash the subpoenas. Edison argues that section 16 of the Workers’ Compensation Act is nearly identical to section 16 of the Occupational Diseases Act, and provides “the parties applying for [a subpoena from the Industrial Commission] shall advance the office and witness fees provided for in civil actions pending in the circuit court” (Ill. Rev. Stat. 1983, eh. 48, pars. 138.16, 172.51), and that Rule 3 — (4)(c) of the Rules Governing Practice Before the Industrial Commission provides that payment of statutory fees and travel expenses must accompany the service. Edison maintains that these provisions provide that in order for a subpoena issued by the Industrial Commission to have effect and to require compliance, certain fees and expenses must be prepaid. In support of its position, Edison filed with the trial court affidavits from the parties served that indicate that no such payments from the plaintiffs were ever received.

The plaintiffs respond with the argument that Rule 3 — (4)(c) fails to encompass the procedure for subpoenaing a corporate party, so that it therefore becomes necessary for the court to ultimately apply the provisions of Illinois Supreme Court Rule 237(b) to determine whether Edison was properly served. Pursuant to Supreme Court Rule 237(b) (87 Ill. 2d R. 237(b)), the circuit court can only order the payment of subpoena fees if the party is a nonresident of Cook County. The plaintiffs point out that it is clear that Commonwealth Edison is a corporate entity located in Cook County and that therefore the subpoenas need not be accompanied by a fee. Thus, the plaintiffs argue that the subpoenas were properly served and that Edison’s motion to quash was properly denied.

A plain and unambiguous rule of an administrative agency, properly promulgated, is not open to construction, and should be intended to mean what it has plainly expressed. (Chicago Home for Girls v. Carr (1921), 300 Ill. 478, 133 N.E. 344.) We believe that Rule 3-(4Xc) is plain and unambiguous. It simply provides that personal service of a subpoena is required and that payment of statutory fees and travel expenses must accompany service. The mere fact that the rule does not make specific reference to a particular type of party, whether they be individuals, corporations or partnerships, is not evidence of an intent to exclude any one of the classifications of parties from the rule. To interpret the rule to the contraiy is an unnecessary construction of a clearly worded rule. No further construction or interpretation is necessary other than giving the plain language of the rule its ordinary and accepted meaning. Therefore, because payment of the subpoena fees did not accompany their service, this court concludes that the plaintiffs have failed to satisfy the procedure set forth in Rule 3 — (4Xc) and that Edison’s motion to quash the subpoenas should be granted. Based on the foregoing, the trial court is reversed.

Reversed.

LINN, P.J., and ROMITI, J., concur.


author: JUSTICE ROMITI

text:
    INGE SCHROEDER, Adm’x of the Estate of Harvey Schroeder, Deceased, Plaintiff-Appellant, v. REDDICK FUMIGANTS, INCORPORATED, et al., Defendants-Appellees.
    First District (4th Division)
    Nos. 83—31, 83—204 cons.
    Opinion filed November 15, 1984.

      John J. Lowrey and Mary Jo Smerz, both of Law Offices of John J. Lowrey, P.C., of Chicago, for appellant.
    Kurt Carlson, of Jegen & Carlson, of Glen Ellyn, for appellee Reddick Fumigants, Inc.
    Donald R. Harris and William P. Suriano, both of Jenner & Block, of Chicago, for appellee Velsicol Chemical Corporation.
    Raymond R. Cusack and Cornelius J. Harrington III, both of Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellee Mine Safety Appliances Company.
    Lord, Bissell & Brook, of Chicago (C. Roy Peterson, Hugh C. Griffin, and Joan M. Engeman, of counsel), for appellee Great Lakes Chemical Corporation.
   JUSTICE ROMITI

delivered the opinion of the court:

This wrongful death action was brought to recover damages for the death of Harvey Schroeder, by his wife and administratrix of his estate, Inge Schroeder, under a strict liability theory in products liability. The circuit court of Cook County granted summary judgment for defendants Mine Safety Appliance Company, Reddick Fumigants, Incorporated, Velsicol Chemical Corporation, and Great Lakes Chemical Corporation.

We affirm.

Harvey Schroeder was employed by B. Heller & Company as a maintenance manager whose duties included fumigation of Heller’s Bedford Park plant, in which meat cures, tenderizers, and seasonings were produced. On the afternoon of June 1, 1979, Harvey Schroeder and a co-worker, James Bergstedt, prepared to fumigate the plant. According to the deposition of Bergstedt, he and Schroeder checked their gas masks and canisters (which were designed to absorb noxious fumes) before fumigating and observed an expiration date of March 1978 on the canisters. Schroeder stated that they would have to order new canisters the following Monday. The men then fumigated the plant with methyl bromide, utilizing the masks and canisters. The next morning Schroeder reopened the plant, apparently to ventilate any remaining methyl bromide vapors. Shortly thereafter he became ill and was admitted to the hospital. He died hours later of what plaintiff has alleged to be methyl bromide, intoxication.

The mask and canister utilized by Schroeder were supplied by defendant Mine Safety. It is plaintiff’s contention that these products were unreasonably dangerous in that they were inappropriate for methyl bromide fumigation and the warnings and instructions attached to the canister were inadequate. We do not reach the merits of these contentions, because we agree with the trial court’s finding that the proximate cause of Schroeder’s death was his knowing use of an expired gas mask canister, a use which the defendants could not reasonably have foreseen. Although foreseeability is ordinarily a question of fact, it may be decided as a matter of law when the facts demonstrate that the plaintiff could never be entitled to recover. Gasdiel v. Federal Press Co. (1979), 78 Ill. App. 3d 222, 396 N.E.2d 1241.

The gas mask canister at issue here bore the following message:

“DIRECTIONS FOR STORAGE use canister before_if seals are not broken, discard one year after removing seals (OR SOONER, IF CANISTER’S EXPENDED) seal broken_ 19__”

It is undisputed by the parties that one of the blanks was filled in with the date March 1978. Thus, even assuming that this date was the one on which the seal was broken (rather than the date before which the canister was to be used), the canister would have become out of date in March 1979, well before Harvey Schroeder used it in June 1979. It is also undisputed that Schroeder saw the expiration date, explicitly commented on the need to replace the canister, and yet still utilized the expired canister in fumigation. Given these facts, the trial court was justified in granting summary judgment for defendant Mine Safety, as it could not reasonably have anticipated that its product would be used after its expiration date.

Defendants Reddick, Velsicol and Great Lakes were all involved in the manufacture or distribution of methyl bromide. Plaintiff contends that their product was unreasonably dangerous in that it was packaged with inadequate warnings and should have included an odor additive. We agree with the trial court’s determination that the warnings on the cylinder were adequate as a matter of law. In Harris v. Solna Corp. (1974), 16 Ill. App. 3d 1039, 307 N.E.2d 434, the plaintiff brought an action in products liability and negligence, alleging that he suffered injury by exposure to a container of carbon tetrachloride which bore inadequate warnings. The label contained the word “poison,” surrounded by two skull-and-crossbones, along with these statements: “Danger — Volatile Solvent,” “Warning — Harmful Vapor,” “May be Fatal if Inhaled,” “Use with Adequate Ventilation.” The court held that this warning was stated with a degree of intensity that would cause a reasonable man to exercise caution commensurate with the potential danger and so affirmed summary judgment for the defendant. The label on the methyl bromide cylinder in this cause contained in bold-faced type the word “DANGER” with a skull-and-crossbones on either side of the word “POISON.” It also stated:

“VAPOR EXTREMELY HAZARDOUS
HIGHLY VOLATILE CAUSE BURNS
WARNING: Poisonous Liquid and Vapor!
Contact with liquid may produce bums. Do not breathe vapor. Wear a full-face gas mask with black canister meeting specifications of the U.S. Bureau of Mines. Do not get in eyes, on skin, or on clothing.
* * *
FIRST AID TREATMENT-ANTIDOTE
Remove victim to fresh air immediately. Keep victim lying down and warm. Give artificial respiration if breathing has stopped. Call A Physician Immediately!
HARMFUL OR FATAL, IF SWALLOWED.”

Thus the user of this product was clearly warned that he was dealing with a dangerous poison that should not be breathed in and that required the use of a gas mask.

Plaintiff contends that in fact the mask and canister recommended in this warning should not have been used for this type of fumigation. But this allegation is without any factual foundation in the record. Plaintiff relies on the affidavit of Nathan Willen, an industrial hygienist, who stated that the mask and canister supplied by Mine Safety (which were apparently of the type described in the warning) were not “appropriate” for use with methyl bromide. The affidavit does not state that the use of this mask and canister would be unsafe. Nor does it state that the alternate types of masks which it stated were sold by Mine Safety would have been more appropriate or safer. We find that this affidavit was conclusory at best and as such failed to create a factual issue concerning the adequacy of the type of mask recommended. Anderson “Safeway” Guard Rail Corp. v. Champaign Asphalt Co. (1971), 131 Ill. App. 2d 924, 266 N.E.2d 414; 87 Ill. 2d R. 191(a).

Plaintiff has also contended that the defendants should have added an odor additive to what she contends was an odorless product so as to provide for warning to a worker of its presence in the air. But plaintiff has alleged that Harvey Schroeder was injured while wearing a gas mask. He clearly did not need any additional warning that methyl bromide was present, as he was the one who applied it. Indeed, in arguments before the trial court,, counsel for plaintiff conceded that the decedent had been aware that methyl bromide was what he was using. We do not find that this contention presented a bar to summary judgment being entered for the defendants. We also find that our earlier reasoning with respect to summary judgment for defendant Mine Safety also applies to the remaining defendants. The decedent, although cognizant that he was using a dangerous poison requiring the use of a gas mask, nevertheless inexplicably chose to use a mask with a canister that he knew was expired. Neither the manufacturers and distributors of methyl bromide nor the manufacturer of the mask and canister could reasonably have anticipated this use of their products, and thus they could not be held liable for the resulting death.

Finally, plaintiff contends that the entry of summary judgment for the defendant was premature because the defendants had refused to produce certain witnesses for discovery. Had plaintiff believed that more facts needed to be determined prior to a ruling on the motions for summary judgment because of additional necessary discovery, she could have filed an affidavit in compliance with Supreme Court Rule 191(b) (87 Ill. 2d R. 191(b)), setting forth the facts to which she believed these witnesses would testify and her reasons for that belief. Having failed to do this, plaintiff cannot now complain that summary judgment was prematurely granted. Rogers v. Robson, Masters, Ryan, Brumund & Belom (1979), 74 Ill. App. 3d 467, 392 N.E.2d 1365, affd (1980), 81 Ill. 2d 201, 407 N.E.2d 47; Gill v. Chicago Park District (1980), 85 Ill. App. 3d 903, 407 N.E.2d 671.

The judgment of the trial court is affirmed.

Affirmed.

LINN, P.J., and JOHNSON, J., concur.


author: JUSTICE WHITE

text:
    HAROLD MARTIN, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
    First District (3rd Division)
    No. 83—1111
    Opinion filed September 19, 1984.
    Modified on denial of rehearing December 19, 1984.

      Leonard M. Ring & Associates, of Chicago (Leonard M. Ring and Judith E. Fors, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Donald M. Flayton and James D. Jordan, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

The sole issue presented by this appeal is whether our supreme court’s decision in Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538, required the circuit court of Cook County to enter summary judgment in favor of defendant, Chicago Transit Authority (CTA), and against plaintiff, Harold Martin. We hold that it did not.

The depositions before the circuit court upon the CTA’s motion for summary judgment reveal the following undisputed facts. In 1978, Martin was employed by the Chicago police department and was assigned to the department’s Mass Transit Unit. He worked primarily on the CTA’s Jackson Park-Englewood elevated train line. On June 6, 1978, shortly after 9 p.m., Martin boarded the second car of an eastbound CTA train at the Central Avenue station on the Lake Street line. He was off duty and not in uniform, but he was carrying his service revolver. The train had travelled one or two stops when three men boarded the car in which Martin was riding. After the train started to move, one of these men reached into his pocket, pulled out a handgun, and fired a shot into the ceiling of the car. This man announced that the three men were going to take over the train and rob the passengers. Martin responded by drawing his service revolver and simultaneously identifying himself as a police officer. Several shots were exchanged, and Martin was shot in the head, shoulder and leg.

Martin’s complaint alleged negligence on the part of the CTA in that the CTA failed to supply guards, failed to warn passengers of the dangers of riding the Lake Street elevated train, failed to prevent persons armed with weapons from riding its elevated trains, and failed to screen passengers. Martin further alleged that as a direct and proximate result of one or more of these negligent acts or omissions, he was shot and severely injured. The circuit court, relying exclusively on Fancil v. Q.S.E. Foods, Inc., entered summary judgment in favor of the CTA and against Martin. Martin now appeals from the judgment.

In Fancil, our supreme court held that the wife of a police officer who was fatally shot by burglars while making a routine security check of defendant’s grocery store failed to state a cause of action for negligence against defendant, because her amended complaint failed to establish the existence of a duty to exercise reasonable care for the police officer's safety. The amended complaint had alleged, among other things, that defendant had negligently failed to provide adequate lighting in the area of a wire enclosure attached to his building, and that as a direct and proximate cause of defendant’s negligence, burglars concealed themselves on the premises and ambushed the officer while he was in the process of conducting a security check. After stating that Illinois law imposes “upon the possessor of land, as to a policeman or a fireman who is on the premises in the performance of his official duties at a place where he might reasonably be expected to be, the same duty which the possessor of land owes to an invitee” (60 Ill. 2d 552, 556), our supreme court held that the relation between defendant and the decedent was not such as to give rise to a duty owed by the defendant for the protection of the decedent. Our supreme court reasoned:

“The risk to which the decedent was subjected because of the conditions which existed upon the defendant’s premises was the same risk which every police officer encounters while conducting security checks in both residential and commercial areas. The danger of being ambushed by criminals lurking in poorly illuminated areas, in shadows or behind objects is a risk inherent in the occupation. Hence, the danger to which the decedent was subjected was not an unreasonable risk for a police officer. Also the allegations that the decedent and the other officers were armed to protect themselves from burglars whom they might discover while checking the premises for the presence of unauthorized persons establishes that the officers realized the danger inherent in their occupation and protected themselves against it.” 60 Ill. 2d 552, 558.

We believe that the inherent risk principle announced in Fancil should not be extended beyond the limited context of landowner/occupier liability. Martin seeks to impose liability on the CTA, not as a landowner/occupier, but based upon the high degree of care that a common carrier is bound to exercise toward its passengers to prevent injuries which could have been reasonably foreseen and avoided by the carrier (see McCoy v. Chicago Transit Authority (1977), 69 Ill. 2d 280, 285, 371 N.E.2d 625; Katamay v. Chicago Transit Authority (1972), 53 Ill. 2d 27, 29, 289 N.E.2d 623; Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 374, 50 N.E.2d 497).

The inherent risk principle announced in Fancil is analogous to the “fireman’s rule” (Washington v. Atlantic Richfield Co. (1977), 66 Ill. 2d 103, 108, 361 N.E.2d 282), which in Illinois has been limited to the context of landowner/occupier liability (Court v. Grzelinski (1978), 72 Ill. 2d 141, 148, 379 N.E.2d 281). The “fireman’s rule” provides that a landowner or occupier owes no duty of care to a fireman to prevent the fire which necessitated his presence on the premises. (Court v. Grzelinski (1978), 72 Ill. 2d 141, 147; Washington v. Atlantic Richfield Co. (1977), 66 Ill. 2d 103, 108.) In Washington, our supreme court stated: “[T]he function of a fireman is to deal with fires, and he assumes the risks normally associated with that function when he enters upon that employment.” (66 Ill. 2d 103, 109.) In Grzelinski, our supreme court refused to extend the “fireman’s rule” to encompass defendants other than landowners or occupiers. 72 Ill. 2d 141, 148.

In Grzelinski, our supreme court observed that “[t]he ‘fireman’s rule’ originated and developed at a time when the English common law classified the duties of landowners or occupiers according to the status of the person entering the premises: i.e., trespassers, licensees or invitees.” (72 Ill. 3d 141, 147.) The court traced the development of the law in this area and concluded that “the ‘fireman’s rule’ rests not merely on a recognition that certain risks are normally expected in fire fighting, but upon a policy consideration limiting the duty of landowners or occupiers.” (72 Ill. 2d 141, 148.) In rejecting the attempt of the defendants in that case to extend the “fireman’s rule” beyond its limited context of landowner/occupier liability, our supreme court stated:

“The rule cannot be expanded to a free-floating proposition that a fireman cannot recover for injuries resulting from risks inherently involved in fire fighting. To do so would be tantamount to imposing the doctrine of assumption of risk onto the occupation of fire fighting and would be directly contrary to the limited concept of assumption of risk in Illinois. In negligence actions, assumption of risk is confined to those situations involving persons who have a contractual or employment relationship with the defendant. (Citations.) In products liability actions such as this, assumption of risk is a bar to recovery only if the plaintiff is aware of the product defect and voluntarily proceeds in disregard of the known danger. (Citations.) In either case, assumption of risk is an affirmative defense interposed against a plaintiff who voluntarily exposes himself to a specific, known risk, not a preclusion of recovery against a plaintiff whose occupation inherently involves general risks of injury.” 72 Ill. 2d 141, 148-49.

Since our supreme court has refused to expand the “fireman’s rule” to embrace the broad proposition that a fireman cannot recover from any defendant for any injury resulting from those risks inherently involved in fire fighting, we decline to adopt a similar free-floating proposition that a police officer cannot recover for injuries resulting from risks inherently involved in police work. We can see no reason, either in law or logic, why the inherent risk principle applicable to police officers ought to be broader in scope than the inherent risk principle applicable to firemen. Accordingly, we hold that the inherent risk principle announced in Fancil is limited to the context of landowner/occupier liability, and consequently, does not bar Martin’s cause of action, which is premised on the duty of care owed by a common carrier to protect its passengers against an unreasonable risk of physical harm.

For the aforementioned reasons, we conclude that the circuit court of Cook County erred in entering summary judgment in favor of the CTA and against Martin. The judgment of the circuit court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

RIZZI, P.J., and McNAMARA, J., concur.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAM JONES et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 83—1278, 83—1641 cons.
    Opinion filed November 13, 1984.

      James J. Doherty, Public Defender, and Dennis M. Doherty, both of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Thomas D. Bilyk, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

After a bench trial, defendants, Sam Jones and Kirk Reynolds, were each convicted of two counts of armed robbery, two counts of armed violence based on armed robbery, three counts of aggravated battery, one count of armed violence based on aggravated battery, and one count of use of a deadly weapon. On appeal, defendants argue (1) the State failed to prove their guilt of armed violence because it failed to establish a knife used by defendant Jones had a blade of at least three inches; (2) defendants were not proved guilty of certain armed offenses because defendant Reynolds was not shown to be armed at the time of the crime; (3) various convictions should be vacated as arising out of the same acts as other crimes for which defendants were convicted; (4) the trial court erred in not suppressing defendants’ confessions because the State failed to comply with the material witness rule; (5) defendant Jones was denied his sixth amendment rights to counsel at a lineup conducted after criminal charges were filed against him; (6) there was no probable cause for the arrest of defendant Reynolds; and (7) the lineup identification of defendant Reynolds was suggestive and tainted later in-court identification.

We affirm in part and vacate in part.

Terry Foley testified at 12:05 a.m. on December 23, 1982, she was sitting in a car with John Alsterda at 527 West Brompton. The car was parked between two street lamps. Both doors to the car were opened simultaneously from the outside. The interior lights of the car turned on. The lighting conditions in the car were excellent. A man, whom the witness identified as defendant Reynolds, leaned into her side of the car and grabbed her shopping bag and purse. His face was within about six inches of the witness. At the same time, the witness noticed another man struggling with Mr. Alsterda. After between 30 and 60 seconds, the two men ran south and east. She noticed Mr. Alsterda was bleeding. She began to drive to the hospital, when she saw a police car at Cornelia and Lake Shore Drive. She told two police officers in the car of the incident, and continued to the hospital.

At the hospital, the witness met with other policemen. She described her assailant as a black male, between 17 and 20 years old, about 5 feet 10 inches and 180 pounds, clean shaven and wearing a green army jacket and blue jeans. At about 3:15 a.m., the witness went to the police station, where she identified various articles taken in the robbery. At about 4:15, she viewed a lineup, where she identified defendant Reynolds.

On cross-examination, the witness denied that defendant Reynolds “looked damp” in a photograph of the lineup. The witness also denied she was told Reynolds was pulled from Lake Michigan.

John Alsterda testified that a man, whom he identified as defendant Jones, opened his car door, leaned into the car and stabbed him in the elbow and hand four times with a knife the witness described as “six to eight inches, like a filet knife.” The lighting conditions were very good. Jones then asked the witness for his wallet and the keys to his car. After Jones got the wallet and keys, he fled, running east. At the hospital, the witness described his assailant as a black male about 17 to 20, 6 feet 2 inches, 250 pounds, clean shaven, with a protruding jaw, wearing a dark grey or navy wool overcoat.

The witness remained hospitalized. At about 9 a.m. on December 27, the witness identified defendant Jones in a lineup.

Chicago police officer Thomas Keane testified he interviewed defendant Jones at about 3:15 a.m. on December 23, 1982. The witness advised Jones of his Miranda rights. Jones indicated he understood his rights. Thereafter, Jones made a statement confessing to the robbery. Jones stated Alsterda was cut in a struggle for the knife.

Chicago police officer Thomas Sappanos testified he interviewed defendant Reynolds at about 3:15 a.m. on December 23, 1982. He informed Reynolds of his Miranda rights, and Reynolds indicated he understood those rights. Thereafter, Reynolds made a statement confessing to the robbery. Reynolds stated he took Ms. Foley’s shopping bag and purse. He took the loot to a second floor rear porch, where he emptied the contents of the bag and purse. He and Jones then ran to the park. They split up. Reynolds then heard voices. He jumped into Lake Michigan to avoid capture. After being in the water for a period of time, Reynolds cried for help.

Assistant State’s Attorney Robert Bastone testified he interviewed Sam Jones and Kirk Reynolds separately on the morning of December 23, 1982. The witness informed each defendant of his Miranda rights, and each defendant indicated he understood his rights. Neither defendant requested an attorney, and both defendants made statements confessing to the robbery.

The parties stipulated that if Chicago police officers Rodriguez and Riggio testified they would state that at the time of their arrest on December 23, 1982, defendant Jones was a black male, between 17 and 20, 6 feet 2 inches, 250 pounds, clean shaven, and wearing a dark navy overcoat, and that defendant Reynolds was a black male about 17 to 20, 5 feet 10 inches, 180 pounds, and wearing a green army jacket.

First, defendants argue that the State failed to prove them guilty of armed violence because it did not establish the knife used by defendant Jones had a blade of at least three inches.

A person is guilty of armed violence if he commits any felony while armed with a dangerous weapon. (Ill. Rev. Stat. 1983, ch. 38, par. 33A — 2.) Armed with a dangerous weapon includes “knife with a blade of at least three inches in length *** or any other deadly or dangerous weapon or instrument of like character.” Ill. Rev. Stat. 1983, ch. 38, par. 33A — 1(b).

In People v. Hall (1983), 117 Ill. App. 3d 788, 453 N.E.2d 1327, we rejected the argument that the statutory language requires an explicit showing that the knife had a three-inch blade to sustain a conviction for armed violence. We stated In Hall:

“Thus, while a knife with a three-inch blade is per se a dangerous weapon pursuant to section 33A — 1, similar instruments fall within the purview of the statute if it is established that they became a dangerous weapon when used in a manner dangerous to the physical well-being of the individual threatened. [Citation.] Moreover, for purposes of sufficiency of the indictment, we do not find that the absence of blade-length specificity resulted in substantial prejudice to defendant’s ability to prepare a defense.” 117 Ill. App. 3d 788, 802-03.

Defendants argue that Hall is inapposite because in the case at bar, defendants were specifically charged with armed violence based on the use of a knife with a blade of at least three inches. However, defendants were also charged with two separate counts of armed violence based on the use of a dangerous weapon. We conclude from the record before us that any variance between the single charge of armed violence and the proofs thereof did not mislead defendants as to the charges against them nor hamper in their defense. Therefore, any such variance is not fatal. People v. Zuniga (1981), 99 Ill. App. 3d 396, 425 N.E.2d 1094.

Next, defendants argue they were improperly convicted of armed offenses against Terry Foley because the State never established defendant Reynolds was armed at the time of the offense.

It is clear from the record before us that the robberies here involved were not separate acts done by each defendant independently. Rather, the robberies constituted a single common plan by which the defendants simultaneously robbed the victims while one of the defendants was armed with a dangerous weapon. Although the record does not reveal defendant Reynolds was armed, the fact that defendant Jones was armed may certainly have facilitated the actions of Reynolds. It is logical to infer that had Reynolds been thwarted in his attempt to abscond with Ms. Foley’s property, Jones could have assisted his accomplice while Jones was armed. Furthermore, although no weapon was specifically used against Foley, she was certainly within the zone of danger from Jones’ attack against Alsterda with a dangerous weapon while he was sitting next to her. Therefore, we conclude defendants were properly convicted of armed offenses against Terry Foley.

Next, defendants argue various convictions must be reversed as arising out of the same act as other crimes for which defendants were convicted. The State concedes that the convictions for armed violence based on armed robbery must be vacated. See People v. Martin (1984), 121 Ill. App. 3d 196, 459 N.E.2d 279.

However, defendants also contend their convictions for armed violence based on aggravated battery must be vacated. Defendants argue that Alsterda testified he was stabbed three times and that therefore one stabbing has accounted for two convictions for each defendant. However, our reading of the record reveals Alsterda testified he was stabbed four times; three times in the elbow and once in the hand. Therefore, the State has proved four separate acts of aggravated battery which can sustain three counts of aggravated battery and one count of armed violence. See People v. Smith (1983), 114 Ill. App. 3d 1007, 1017-18, 449 N.E.2d 912.

Next, defendants argue their confessions should have been suppressed because the State violated the material witness rule.

At the hearing to suppress defendants’ statements, Chicago police officers Thomas Keane and Thomas Sappanos interrogated defendants Jones and Reynolds, respectively. They each advised the defendants of their constitutional rights, and each defendant indicated he understood his rights. Neither officer threatened either defendant, promised anything to either defendant, struck either defendant, or saw any other officer threaten or strike either defendant. They also each testified that neither defendant complained to them that they had been struck or threatened by other officers.

Assistant State’s Attorney Bastone testified he interviewed defendants individually after they were interrogated by Officers Keane and Sappanos. The witness did not make any threats to either defendant, make any promises to them, nor strike them. He did not see any officer threaten or strike either defendant. Neither defendant complained that they had been beaten by any officers.

Reynolds testified he was pulled out of Lake Michigan by three or four policemen and kicked several times in the side. He was taken to a police station, where he was struck several times in the face, head, and legs. He was taken to the hospital. A nurse gave him some pills and asked the witness whether he wanted to see a doctor. The witness responded “no.” He did not tell anyone at the hospital that he had been beaten. The witness did not tell the assistant State’s Attorney that he had been beaten by police officers.

Defendant Jones similarly testified he was beaten at the time of his arrest. One police officer put the barrel of his gun in Jones’ mouth. The witness was taken to the police station, where he was struck several times by police officers. He did not tell the assistant State’s Attorney that he had been beaten.

On rebuttal, five Chicago police officers testified they were present at the scene of defendants’ arrest and at the times of their interrogation. None of the officers struck or threatened either defendant, nor did any of the officers see any other officer strike or threaten either defendant.

The entire thrust of defendants’ argument is that the State violated the material witness rule because it failed to call the officers who transported Reynolds to the police station and two of the officers who were at the scene of the arrest.

In People v. Monroe (1981), 95 Ill. App. 3d 807, 814, 420 N.E.2d 544, we discussed the application of the material witness rule:

“We have noted that the rule at issue is a practical one, intended to aid the trial court in its determination of voluntariness. Here we find the absence of the witnesses at issue did not impede the trial court’s determination of the voluntariness of defendant's confession and did not impair the defendant in the presentation of the voluntariness issue he chose to raise. Accordingly, we find no basis for overturning the trial court’s decision denying defendant’s motion to suppress his confession.”

In the case at bar, the State produced witnesses to the entire time of defendants’ custody except the period Reynolds was transported to the police station. Furthermore, Reynolds merely testified he was thrown “violently” into the paddy wagon. Therefore, we conclude defendants have not made a threshold showing that the wagon drivers were material witnesses to any alleged coercion suffered by defendants. Under these circumstances, we conclude the trial court had ample basis to determine the statements in question were voluntarily given.

Next, defendant Jones argues he was denied his sixth amendment right to counsel because he was not represented by counsel at the time of his lineup identification, which was conducted after a criminal complaint against Jones had already been filed.

It is as yet unclear whether the right to counsel necessarily attaches upon the filing of a criminal complaint. (People v. Owens (1984), 102 Ill. 2d 88, 464 N.E.2d 261.) Nevertheless, as in Owens, we find it unnecessary to address that issue because the trial court had ample proof to find Jones waived any right to counsel. See People v. Owens (1984), 102 Ill. 2d 88, 102-03.

Next, defendant Reynolds argues there was not probable cause to effect his arrest.

The record reveals Reynolds exactly matched the description Terry Foley gave the police, including complexion, height, weight, and clothing. Furthermore, Reynolds was arrested within an hour of the crime, about four blocks away. Under the totality of the circumstances, we conclude the police had probable cause to effect Reynold’s arrest. See People v. Pendleton (1982), 104 Ill. App. 3d 1104, 433 N.E.2d 1076.

Finally, defendant Reynolds argues the lineup identification was unduly suggestive because he was wearing wet clothing.

Complainant Terry Foley testified she was not aware that Reynolds was pulled from Lake Michigan upon his arrest. She also testified she did not notice that Reynolds was wearing wet clothing at the time of the lineup. Therefore, we do not believe the lineup was unduly suggestive. In any event, any suggestiveness in the lineup was harmless. Ms. Foley testified she observed Reynolds for up to a full minute in excellent lighting conditions in extremely close proximity. Therefore, there was an independent basis for her in-court identification of Reynolds. See People v. Hernandez (1984), 121 Ill. App. 3d 449, 459 N.E.2d 1013.

We deny the State’s motion for costs in defending the instant appeal.

For the foregoing reasons, defendants’ convictions and sentences for armed violence based on armed robbery are vacated, and defendants’ other convictions and sentences are affirmed.

Judgments affirmed in part, vacated in part.

CAMPBELL and O’CONNOR, JJ., concur.


text:
    DONALD L. JOHNSON, Adm’r of the Estate of Ronald M. Johnson, Sr., Deceased, Plaintiff-Appellant, v. MAX E. COLLEY et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—1221
    Opinion filed November 13, 1984.
    Rehearing denied December 12, 1984.

      Gray, Kleczek & Kielian, of Joliet, for appellant.
    John W. Gilligan and John J. Daley III, both of Crooks & Gilligan, Ltd., of Chicago, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff, Donald L. Johnson, as executor of the estate of his son Ronald M. Johnson, Sr., brought a wrongful death action against defendants, All-American, Inc., and Max E. Colley. The jury found defendants liable and assessed damages at $1,282,488.96. However, the jury also found plaintiff’s decedent 60% contributorily negligent and reduced the award accordingly. (See Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886.) Plaintiff appeals, contending (1) the jury finding that decedent was 60% contributorily negligent is contrary to the manifest weight of the evidence; and (2) the trial court erred in not instructing the jury it could consider the worth of decedent’s instruction and moral training to his minor children.

We affirm in part, reverse in part, and remand.

Decedent died as a result of an accident involving three trucks and two automobiles on Interstate 55. At about 5 a.m. on December 30, 1977, a semitrailer truck owned by All-American and driven by Max Colley was stopped so that the trailer completely blocked both southbound lanes of 1-55. Colley did not testify, and there was no evidence to indicate how the truck came to that position. There is also no evidence to indicate what, if any, measures Colley took to warn other drivers. However, it is undisputed that Colley did not place flares near the truck. It is also undisputed that the weather was extremely foggy and visibility was extremely limited.

Decedent, his wife and four sons, ages 13, 12, 7 and 5, were driving to their home in Arizona. Their car struck the side of defendant’s trailer, passed underneath the trailer, and came to rest on the median strip, an undetermined distance beyond the trailer. The top of decedent’s car was sheared off, and decedent suffered fatal head injuries. Moments later, a car driven by David Gallery struck the trailer. Thereafter, two semitrailer trucks, driven by Dean Glesage and James Harris, respectively, separately struck defendant’s trailer. At trial the cases were consolidated. The jury found defendants liable to each plaintiff. Jean Gallery, a passenger in the Gallery automobile, and decedent’s family members were found free from contributory negligence. Dean Glesage was found 55% contributorily negligent, and James Harris was found 20% contributorily negligent. The estate of decedent is the only party-plaintiff to this appeal.

Donald Johnson, decedent’s father, testified his son was a very careful driver. Defendant’s objection to the question was sustained, but there was no motion to strike the answer.

Brett Johnson, decedent’s son, testified he was 12 years old at the time of the accident. He was sitting in the front seat of their car. Although he never looked at the speedometer, the witness remembered they were “going slow.” He did not remember seeing the truck but remembers the impact.

Ron Johnson, decedent’s eldest son, testified he was also in the front seat at the time of the accident. He was trying to sleep. He heard his father say “oh no.” The witness looked up and saw defendant’s truck across both lanes of the highway. He did not see any lights on the truck.

David Gallery testified that the last few miles before he collided with defendant’s truck he had reduced his speed to 10 or 15 miles per hour. About 15 to 20 minutes before the accident, he observed a car with Arizona license plates pass his car. The passing car was not traveling fast.

Robert J. Dartt testified he was an Illinois State trooper at the time of the accident. He was about six miles from the scene of the accident on 1-55. Because of the fog, he traveled at 30-35 miles per hour to ensure his safety.

Initially, plaintiff argues that the jury verdict that decedent was 60% contributorily negligent is contrary to the manifest weight of the evidence.

A reviewing court can reverse a jury ascription of a percentage of contributory negligence if that determination is against the manifest weight of the evidence. Bofman v. Material Service Corp. (1984), 125 Ill. App. 3d 1053, 1061, 466 N.E.2d 1064.

Since Illinois adopted comparative negligence, the plaintiff has no burden to prove absence of contributory negligence. (Mileur v. Briggerman (1982), 110 Ill. App. 3d 721, 728, 442 N.E.2d 1356.) In Kyrouac v. Brockman (1983), 120 Ill. App. 3d 249, 457 N.E.2d 1074, we reversed a jury verdict for defendant and remanded the case with directions to enter a judgment in favor of plaintiff. In Kyrouac, we held that once it is determined that defendant was in plaintiff’s lane of traffic, the defendant has the burden of proof to establish any contributory negligence on the part of plaintiff. Kyrouac v. Brockman (1983), 120 Ill. App. 3d 249, 252. See also Calvetti v. Seipp (1967), 37 Ill. 2d 596, 227 N.E.2d 758; Sughero v. Jewel Tea Co., Inc. (1967), 37 Ill. 2d 240, 226 N.E.2d 28.

In Struthers v. Jack Baulos, Inc. (1977), 52 Ill. App. 3d 823, 368 N.E.2d 148, plaintiff was traveling at about 50 miles per hour when he struck a truck stopped in the passing lane of the highway. (52 Ill. App. 3d 823, 828.) We held as a matter of law that plaintiff was not guilty of contributory negligence:

“It is apparent that plaintiff’s conduct was not contributorily negligent as a matter of law. He was traveling at night along his usual route under adverse weather and visibility conditions when he suddenly came upon the unlighted truck standing in the passing lane of the highway. Although plaintiff applied his brakes when he was first able to see the truck he could not avoid striking it.” 52 Ill. App. 3d 823, 829.

In the case at bar, the defendant has not met its burden of establishing contributory negligence on the part of the decedent. The only evidence indicates decedent was driving slowly. Brett Johnson testified their car was going slowly. David Gallery testified the car with the Arizona license plates was traveling slowly when it passed him. Furthermore, Gallery indicated he was driving at between 10 and 15 miles an hour when he was passed about 15 to 20 minutes before the accident. In opening argument, defendant conceded decedent’s car collided with defendant’s truck moments before Gallery’s car. Therefore, the only inference the jury could draw from this testimony is that decedent was driving at about 10 or 15 miles per hour. Finally, Officer Dartt indicated he believed he was able to ensure his own safety by driving at 30 to 35 miles per hour.

We reject defendant’s argument that the jury could have reasonably inferred decedent was driving at an excessive speed because the top of decedent’s car was sheared off completely. There was absolutely no evidence to indicate what force is necessary to incur such damages from which the jury could have been able to infer decedent’s speed. A jury verdict must be based on the evidence adduced at trial and not mere conjecture or surmise. (Ortiz v. City of Chicago (1979), 79 Ill. App. 3d 902, 908, 398 N.E.2d 1007.) We conclude that-there was no evidence to indicate decedent was contributorily negligent. Therefore, the jury determination that decedent was 60% contributorily negligent must be reversed.

Next, plaintiff argues the trial court erred in not instructing the jury that it could consider the value of decedent’s moral training, instruction and education to his children. See Illinois Pattern Jury Instructions, Civil, No. 31.04 (2d ed. 1971).

In determining the propriety of instructions, they must be considered as a whole to determine whether the jury was fairly informed of the legal principles involved. “Any technical errors which do not cause substantial prejudice will not be deemed grounds for reversal.” Papageorgiou v. F.W. Woolworth Co. (1978), 66 Ill. App. 3d 873, 882, 383 N.E.2d 1346.

In the case at bar, we note that counsel for plaintiff informed this court his clients did not desire a new trial on damages. In light of this fact and the substantial damages awarded by the jury which we have now reinstated, we find that any error in that single instruction did not substantially prejudice plaintiff.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County finding in favor of plaintiff, reverse the jury’s finding that decedent was 60% contributorily negligent, and remand the cause to the trial court with directions to enter judgment on the original award of the jury assessing plaintiff’s damages in the amount of $1,282,488.96.

Judgment affirmed in part, reversed in part; cause remanded.

BUCKLEY, P.J., and O’CONNOR, J., concur.