text:
    NANCY E. FRAHER, Plaintiff-Appellee, v. LOREN R. INOCENCIO et al., Defendants-Appellants (Dale Fulk, Plaintiff).
    Fourth District
    No. 4—83—0280
    Opinion filed January 5, 1984.
    Rehearing denied February 15, 1984.

      Costigan & Wollrab and Livingston, Barger, Brandt, Slater & Schroeder, both of Bloomington, for appellants.
    Fellheimer, Fellheimer, O’Dell & Travers, Ltd., of Pontiac (Robert M. Travers, of counsel), for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

The trial court granted plaintiff Fraher a new trial in her suit to recover damages for her personal injuries and lost earnings caused by a car collision. This court granted the defendants’ petition for leave to appeal under Supreme Court Rule 306 (87 Ill. 2d R. 306). The property damage claims of plaintiff Fulk, whose car Fraher was driving and wrecked in the accident, have been concluded and are not at issue here.

The jury, instructed on comparative negligence, found that Fraher suffered $3,000 in damages and attributed to her 92% of the combined negligence, leaving a verdict of $240. The trial judge granted Fraher’s motion for a new trial because one of the defense lawyers, in his closing argument, violated an order in limine prohibiting comments on Fraher’s consumption of alcohol the night of the accident. The defendants argue that the improper remark was invited by the closing argument of Fraher’s lawyer. Alternatively, the defendants argue that the trial court should have accepted their offer of an additur of $2,760 rather than grant the new trial; the proposed additur consisted of the amount by which Fraher’s negligence reduced her damages of $3,000. We agree with the defendants that the remark could have affected only the jury’s determination of Fraher’s negligence, and that the additur will cure the error.

The accident at issue here occurred about 11 p.m. October 13, 1980, on a two-lane, north-south, county blacktop near Campus, Illinois. The events leading up to the accident are for the most part undisputed. Fraher and six acquaintances — defendant Peterson and five of his friends — drove from Dwight to Campus in two cars to go to a tavern, which happened to be closed. Fraher was driving a car owned by her boyfriend, plaintiff Dale Fulk, and carrying one passenger; defendant Peterson was driving the other car and carrying four passengers. While the Fraher-Peterson group was parked at a grain elevator in Campus, defendant Inocencio drove by, yelling an obscenity or two. Peterson took offense and chased Inocencio; they traveled north about four miles; estimates of the speed of the chase varied; one passenger in Peterson’s car testified that they went as fast as 90 to 100 miles per hour. Inocencio tapped on his brakes and Peterson hit the back of Inocencio’s car. This collision is not an issue here. Peterson then passed Inocencio and stopped. Peterson and at least one other person in his car got out and headed toward Inocencio’s car, which also had stopped. In fear, Inocencio threw his car into reverse, staying in the northbound lane. While this was going on, Fraher was following the same route. She saw Inocencio’s backup lights go on, tried to pass him, and hit him instead. The collision destroyed the car Fraher was driving, knocked out five of her front teeth, and caused her to miss several days’ work. None of the persons in Peterson’s car saw the collision.

Fraher sued defendant Inocencio for negligence and defendant Peterson for negligence and wilful and wanton misconduct. Every count alleged intoxication and deviations from traffic laws or from common sense. Before trial the plaintiffs filed several motions in limine. Two of these motions are important here: one was to exclude evidence and remarks on whether Fraher was using a seat belt when the accident occurred, and the other to exclude evidence and remarks on Fraher’s consumption of alcohol before the accident. The court conditionally granted these motions but explained that the defendants could introduce evidence on these points if they showed that using a seat belt ■ would have lessened Fraher’s injuries or if they showed that Fraher was intoxicated when the accident occurred. The defendants introduced evidence on seat belts but not on Fraher’s intoxication.

The objectionable comment by defendant Inocencio’s lawyer occurred in this section of his closing argument:

“So we get into a situation Loren is intoxicated because of the fact that he admitted truthfully to the officer that he had been drinking some five hours before the accident. Now, the plaintiff who takes a drunk in the car with her and goes from one tavern to another and is accompanied by five other drunks and then they stand up here and they argue, but no one says she wasn’t intoxicated — I mean that she was intoxicated. You didn’t hear anyone say like they were saying about Loren that she hadn’t been drinking.”

The trial court sustained the plaintiffs’ objection to the reference to Fraher and instructed the jurors to disregard it. The defendants argue that the plaintiffs’ lawyer invited the comment by his own remarks on the subject in closing argument:

“Let’s look at Mrs. Fulk, Nancy Fraher at the time. You heard a concerted effort by the attorneys for the defendants to make it seem as if she was with this group of gentlemen that evening at the 17-47 Bowl. You recall all these questions about well, was everybody buying rounds, was everybody in the same condition. Remember that? They are trying to suggest to you, to imply to you, that she, in fact, was in the same condition as these individuals were that evening, and that is not the truth, because every time one of these individuals was asked by me well, was she buying the rounds, do you mean to include her in that group? No, she wasn’t with us, she was there, that is it. There is no evidence concerning her intoxication. But you did hear this effort and I believe you are going to hear the effort to imply that in closing argument.”

The defendants argue first that the remark in question was fair reply to the plaintiffs’ closing argument, which invited a response like the one that was made. The remark exceeded the scope of the invitation, however, and therefore was improper. Because Fraher was not intoxicated when the accident occurred, the trial court granted the motion in limine on the subject of her consumption of alcohol before the accident. This meant that the jury would not hear any evidence that she had been drinking. Thus, the plaintiffs’ lawyer properly and accurately argued that there was no evidence of Fraher’s intoxication; this remark did not violate the order in limine. The remark by defendant Inocencio’s lawyer, however, did violate that order. His statement about the lack of evidence on the subject, “You didn’t hear anyone say like they were saying about Loren that she hadn’t been drinking” — an allusion to the testimony that Inocencio did not drink any alcohol after 6 or 6:30 the night of the collision — implied that Fraher had been drinking. This went beyond any invitation to reply that was contained in the argument of the plaintiffs’ lawyer and prejudiced Fraher’s right to a fair trial.

The decision whether to grant a new trial is reserved to the trial judge’s discretion (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 416 N.E.2d 268), and improper closing argument that causes prejudice may be grounds for a new trial (Crutch-field v. Meyer (1953), 414 Ill. 210, 111 N.E.2d 142). We must determine in what way Fraher was prejudiced by defense counsel’s remark and whether the defendants’ proposed additur would be an appropriate alternative to a new trial.

Whatever prejudicial effect the improper remark had was limited to the jury’s determination of Fraher’s own negligence. The remark could not have influenced the jury’s finding that Fraher suffered damages of $3,000. The jury reached that figure because, as the evidence established and defense counsel argued, by the time of trial Fraher had not replaced her lost teeth, though two years had passed since they were ruined, and so far had suffered little financially — just her lost pay for several days and some small medical and dental bills. Defense counsel’s implication that Fraher was drinking before the accident could have had no bearing on the jury’s computation of the damages that the accident caused her. The prejudicial effect of the remark came when the jury determined the extent of Fraher’s own negligence. Only then would the jury have considered her conduct preceding the collision and the implication that she was drinking.

As an alternative to granting a plaintiff a new trial, additur traditionally has been limited in Illinois to rectifying the omission of a liquidated or easily calculated item of damages. (Ross v. Cortes (1981), 95 Ill. App. 3d 772, 420 N.E.2d 846; Bernesak v. Catholic Bishop (1980), 87 Ill. App. 3d 681, 409 N.E.2d 287.) In Carr v. Miner (1866), 42 Ill. 179, an action in assumpsit, the jury’s only error was allowing the plaintiff 6% interest on his award rather than 10%. The defendant agreed to an additur, and the trial judge denied the plaintiff’s motion for a new trial. On appeal the plaintiff argued among other things that his motion for a new trial should have been granted. The supreme court affirmed the trial judge’s decision. The court said:

“The evidence showed that defendant always recognized his liability to pay ten per cent interest, and under the statute he could bind himself for that rate by agreement. This the jury should have allowed. The court below, it seems, took this view of the case, and intimated that he would grant a new trial unless defendant in error would consent to increase the verdict to $996.75, which seems to be about the difference in the two rates of interest. To this defendant in error consented and the motion was overruled. If there were no other grounds requiring a new trial to be granted, and we see none, then, when that was corrected, there was no error in overruling the motion. It was a case in which the amount could be calculated with certainty when the basis was found. The practice is one that should be sparingly indulged, and should never be adopted except in clear cases.” 42 Ill. 179, 191-92.

The defendants have offered the full and easily ascertainable amount by which the jury found Fraher’s negligence to reduce her damages, and we need not trace the prejudicial effect of the remark any further. In the present case, the defendants’ proposed additur corrects the error that would otherwise require a new trial; their offer to pay Fraher’s damages in full, unreduced by the amount of her own negligence, undoes the prejudice caused by the remark. Therefore, we conclude that the trial court erred in not allowing the defendants to submit the additur as an alternative to a new trial.

Upon the defendants’ filing in this court in the next 30 days an additur of $2,760, we shall remand the cause for entry of judgment of $3,000 in Fraher’s favor; otherwise, we shall affirm the trial court’s judgment granting Fraher a new trial.

Additur ordered; otherwise affirmed.

TRAPP and GREEN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MILLS

license: Public Domain

text:
    EVERETT M. BAILEY, JR., et al., Petitioners-Appellants, v. THE STATE BANK OF ARTHUR et al., Respondents-Appellees.
    Fourth District
    No. 4—83—0422
    Opinion filed December 30, 1983.

      John P. Ewart, of Craig & Craig, of Mattoon, for appellants.
    Samuels, Miller, Schroeder, Jackson & Sly, of Decatur (Darrell A. Woolums and Gary E. Campbell, of counsel), for appellees Leta Jane Shelton, Lee H. Bailey, and Rita June Bailey.

      Hurt & Brinkoetter, of Decatur (Albert E. Hurt, of counsel), for appellee The State Bank of Arthur.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Will contest.

Undue influence.

Lack of testamentary capacity.

Procedural questions only are presented.

Affirm and reverse in part, and remand.

PLEADINGS

Petitioners initiated this suit by filing a petition to contest the will of Billie D. Bailey, alleging unsound mind and memory and undue influence. A motion to dismiss was heard and allowed with leave granted to petitioners to file an amended petition. A memorandum reflecting this decision was filed December 14, 1982, and the written order was filed January 12, 1983, requiring an amended complaint to be filed on or before January 14. Petitioners filed a first amended petition containing two counts on January 20. Count I centered around a cause of action for lack of testamentary capacity, alleging an “impaired mind and memory.” Count II centered around a cause of action for undue influence, alleging that decedent’s mother had urged him to make the will.

Respondents filed motions to dismiss the first amended petition and they were heard on April 20. On May 13, the trial court filed a memorandum opinion ruling that the motions were allowed, the order was final, there was no just reason to delay an appeal, and called upon the respondents’ attorney to prepare and submit a proposed order. On May 17, petitioners filed a motion asking leave to file a second amended petition and a notice of hearing on same for June 1. Prior to the hearing, petitioners filed a tender of a proposed second amended petition and a notice of hearing on same for June 1. This document contained one count only revolving around a claim that decedent lacked testamentary capacity, which alleged the bulk of the previous grounds but also added allegations of lifelong mental retardation as well as claims of delusions and hallucinations on the date of the alleged execution of the will. Respondents filed motions to strike petitioners’ motion for leave to file a second amended petition and a notice of hearing on said motions for June 1 also. In these motions, respondents asserted that the first memorandum opinion was a final order and that therefore petitioners have no right to file a second amended petition. Petitioners filed a response to this document asserting that the memorandum opinion was not a final order and therefore they did have a right to seek leave to file a second amended petition.

On June 1, all pending matters were heard and the trial judge made rulings and entered orders as follows: (1) Respondents’ motion to strike petitioners’ motion to file a second amended petition was allowed; (2) respondents’ motions to dismiss the first amended petition were allowed, with a special finding that there was no just reason to delay appeal pursuant to Supreme Court Rule 304 (87 Ill. 2d R. 304). Although the written order does not indicate the reasons for denying leave to file a second amended complaint, the record of the hearing reveals the trial court’s view that the memorandum opinion was tantamount to a final order. The court apparently denied leave to file the second amended complaint based on the operation of section 2 — 616(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 616(a)) which indicates that amendments to pleadings are to be allowed prior to final judgment.

We are called upon to decide two matters. First, whether the allegations of the first amended petition were sufficient to support the proposed will contest. If none of the allegations were sufficient, the trial court properly dismissed the amended complaint. The second matter before us is the effect of the trial court’s memorandum opinion which called for a written order to follow. If this is viewed as a final order, petitioners were apparently precluded from attempting to amend the petition a second time and the decision of the trial court refusing leave to amend was manifestly correct. We turn now to these two issues, noting that petitioners’ notice of appeal does not raise the court’s dismissal with leave to amend the petitioners’ first complaint, thereby waiving that issue.

UNDUE INFLUENCE

In their briefs to this court, petitioners primarily set out cases delineating the elements required to prove allegations of undue influence and indicate that based on the liberal construction of pleadings generally adhered to in Illinois, the petition adequately set forth the elements of a cause of action to void Billie Bailey’s will. Respondents respond that courts in Illinois require petitioners urging undue influence in will contests to set forth their specific statements of facts in their petitions. The cases of Sterling v. Kramer (1957), 15 Ill. App. 2d 230, 145 N.E.2d 757, and Heavner v. Heavner (1930), 342 Ill. 321, 174 N.E. 413, support respondents’ positions. The following language of the Sterling case indicates that the complaint in the instant case was inadequate to state cause of action for undue influence in a will contest:

“An analysis of [the Illinois] cases indicates the general rule in Illinois to be that the pleading of undue influence in a will contest must contain a specific recital of the manner in which the free will of the testator was impaired at the time the instrument was executed. A mere conclusion that the testator was influenced by the persuasive or dominant nature of one of the beneficiaries is not sufficient.” (15 Ill. App. 2d 230, 234, 145 N.E.2d 757, 759.)

The first amended petition, in count II, alleges the following:

“8. That on December 18, 1943, and immediately prior thereto, the mind and memory of Billie D. Bailey was impaired. Immediately prior to the execution of said purported last will and testament, Leta D. Bailey, the mother of said Billie D. Bailey, traveled to Camp Wolters, Texas, and met with Billie D. Bailey and suggested and requested that he make said purported last will and testament. By virtue of the mental impairment of Billie D. Bailey and the inducement of Leta D. Bailey for Billie D. Bailey to make said purported last will and testament, Billie D. Bailey was caused to make a disposition of his property that was not his free and voluntary act.”

The allegations concerning undue influence were dropped from the second amended petition. As we view the Sterling case, the allegations here were not sufficient to state a cause of action to set aside a will based on undue influence. As such, the trial court ruled properly in dismissing this count of the complaint.

LACK OF TESTAMENTARY CAPACITY

In dealing with the count alleging lack of testamentary capacity, petitioners again set out cases delineating the elements of this ground for contesting a will and cite to us cases referring to the principle of the liberal construction of pleadings. Respondents agree that petitioners have properly recited the elements of lack of capacity but urge that since there is a dearth of cases dealing with the adequacy of pleadings required to state a cause of action for lack of testamentary capacity, we should adopt the Sterling case as a proper case to which to analogize in concluding that the allegations here were insufficient to state a cause of action to overturn a will based on the testator’s lack of capacity. However, a case developed by our research adequately details the pleadings necessary to state a cause of action for lack of testamentary capacity. In American Bible Society v. Price

(1886), 115 Ill. 623, 635-36, 5 N.E. 126, the court said:

“The bill, it has been seen, charges that the testator had become, and was at the time of the making of the will, of unsound mind and memory, thus, in effect, simply putting in issue his testamentary capacity, which, by our statute, is defined to be that of being of a prescribed age, and ‘of sound mind and memory.’ The only material question, manifestly, under this allegation, was whether the writing produced was the product of an unsound mind and memory. The specific name applied to describe that unsoundness, the means whereby the unsoundness was caused, or how it came about that the unsound mind and memory caused this writing to be drawn and signed, were matters of evidence that need not be alleged, and, if alleged, need not be proved. In any view, if allegations in these respects misled the proponents of the will, they should, when evidence of unsoundness of mind not alleged was offered, have made that specific objection, so that the court could, if necessary, have allowed the requisite amendments, and have given such extensions of time as were necessary to allow all parties ample opportunity to meet the issues.”

This view is echoed by the supreme court in the case of Anlicker v. Brethorst (1928), 329 Ill. 11, 160 N.E. 197, the court stating that it was not necessary for a bill to name specifically the particular kind of unsoundness of mind nor the cause of mental unsoundness, since these are matters of evidence and need not be alleged.

Based on American Bible Society and Anlicker, the first amended complaint in this case stated a cause of action for a will contest based on lack of testamentary capacity but did not state a cause of action grounded in undue influence. We hold therefore that the lower court properly dismissed count II of the petition based on insufficient allegations to support a claim of undue influence but erred in dismissing count I which contains sufficient allegations to support a will contest based on lack of testamentary capacity.

Our inquiry is not ended at this point, however. Respondents have raised an additional argument based on waiver and inability to amend. Respondents argue that, petitioners have worked themselves into a procedural cul-de-sac. They first urge that petitioners cannot complain about the ruling dismissing the first amended complaint because any complaints such as this were waived by filing a second amended complaint. They then argue that the petitioners cannot complain about the ruling on the motion for leave to file a second amended complaint because the memorandum opinion of the trial court was a final order which precluded all attempts at amendment.

WAIVER

In Villareal v. Trevino (1961), 30 Ill. App. 2d 77, 173 N.E.2d 582, the court was faced with an action wherein plaintiff Villareal as administratrix filed a second amended complaint seeking damages based on a violation of the Dramshop Act. Plaintiff’s first complaint had been dismissed by the trial court. The court noted that instead of standing on the complaint, allowing the court to enter judgment against her and then appealing (which the court noted was the proper way in which such a complaint should be tested), the plaintiff instead obtained leave and — in due course— filed an amended complaint. The court stated that a plaintiff waives his objection to an order sustaining a motion to strike a complaint when he abandons his complaint and files an amended complaint. Under these circumstances, the original complaint ceases to have any importance in the record so far as the validity of the action is concerned. This view is restated in the second case cited by respondents here. In Henkhaus v. Barton (1977), 56 Ill. App. 3d 767, 769, 371 N.E.2d 1166, 1168, the court stated that “[b]y the filing of the second amended complaint plaintiffs have waived the right to attack the dismissal of the earlier filed complaints.”

In light of these cases and those relied upon therein, it seems clear that the law in the State of Illinois is that the filing of a second amended complaint waives any complaints about dismissals of preceding complaints. In the instant case, however, no second complaint was ever filed. Rather, the trial court denied leave to file a second amended complaint.'

This takes the case much closer to the procedural circumstances in Erickson v. Walsh (1973), 11 Ill. App. 3d 99, 296 N.E.2d 36. In Erickson, plaintiff sought to file an original amended complaint but the trial court denied leave. Plaintiff then made an oral motion for leave to file a proposed two-count second amended complaint, which request was also denied. Plaintiff urged that the trial court erred in denying the request to file successive complaints. On appeal, the court noted that by asking leave to file a second amended complaint, upon the trial court’s denial of leave to file the first amended complaint, the plaintiff had abandoned the first amended complaint and thus waived any contentions of error concerning the court’s ruling thereon. Since the plaintiff in Erickson had waived complaints concerning the first complaint, the court went on to examine the proffered second amended complaint and found that based on “the nature of the pleadings presented,” the trial court had properly denied leave to file since the second amended complaint’s averred cause of action was in comparative negligence, a concept not recognized at the time in Illinois. (11 Ill. App. 3d 99, 104, 296 N.E.2d 36, 39.) We find that the negative inference arising from this reasoning is that had the second cause of action been recognized in Illinois, it would have been error for the trial court to deny leave to file. Under this view, since the second amended complaint before us sufficiently stated a single cause of action for a will contest based on lack of testamentary capacity, it was error for the trial court to deny leave to file the second amended complaint.

AMENDMENT

It is at this point that respondents’ preclusion from amendment argument is thrown into the mix and must be met.

Respondents urge that the substance of the trial court’s first memorandum opinion was such that it must be construed as a final order. If it is so construed, section 2 — 616(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616(a)) apparently precludes the amendment of pleadings after a final order is entered. This would make the trial court’s decision unassailable in respondents’ view.

They rely on West v. West (1979), 76 Ill. 2d 226, 390 N.E.2d 880, in support of their argument that the original memorandum opinion was a final order despite the fact that it calls for a written order to follow, and that no written order was entered until after the court denied the petitioners’ motion for leave to file a second amended complaint. In West, the court determined that a judgment could not be affected by the passage of a statute during the period of time between the pronouncement of the judgment and the entry of the written order reflecting it. West does not speak to the issue of amended complaints. West specifically states that it does not decide whether the plaintiff could have perfected an appeal based on the memorandum opinion had it not been finalized in a written order.

In all likelihood, had petitioners here sought to appeal the dismissal of their claim prior to the entry of the written order dismissing their cause, the appeal would have been dismissed as premature. See Grisson v. Buckley-Loda Community Unit School District No. 8 (1973), 11 Ill. App. 3d 55, 296 N.E.2d 624.

Ergo, we hold that for the purpose of amending a complaint, no final order precluding amendment of the pleadings is entered in the case until the written order directed by the trial judge’s memorandum opinion is actually entered. In the case before this court, no final order was entered, and hence section 216 of the Code of Civil Procedure did not bar amendment of the pleadings. Therefore, the circuit court was not precluded from considering petitioners’ second amended complaint by virtue of the finality of his memorandum opinion.

We reverse and remand for consideration of petitioners’ second amended complaint in light of this opinion.

Affirmed in part, reversed in part, and remanded with directions.

TRAPP and GREEN, JJ., concur.


text:
    RUSSELL OGG, Special Adm’r of the Estate of Jana Louise Welch, Deceased, Plaintiff-Appellee and Cross-Appellant, v. THE CITY OF SPRINGFIELD et al., Defendants—(The City of Springfield, Defendant-Counter-plaintiff-Counterdefendant and Third-Party Plaintiff-Appellee and Cross-Appellee; Coast Catamaran Corporation et al., Defendants and Counterdefendants-Appellants and Cross-Appellees; John Homier, Third-Party Defendant; Philip Henrici, Counterplaintiff and Third-Party Defendant-Appellee and Cross-Appellant; James Henneberry, Counterdefendant).
    Fourth District
    No. 4—83—0069
    Opinion filed January 5, 1984.

      Grady E. Holley and John L. Swartz, both of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, P.C., of Springfield, for appellants.
    Richard G. French, of French, Rogers, Kezelis & Kominiarek, P.C., of Chicago, for appellee Philip Henrici.
    Frederick P. Velde, of Heyl, Royster, Voelker & Allen, of Springfield, for appellee City of Springfield.
    Londrigan & Potter, P.C., of Springfield, for appellee Russell Ogg.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

A sailboat accident on Lake Springfield.

Two deaths.

A products liability suit against the sailboat’s manufacturer.

A jury verdict for the plaintiffs.

We affirm.

I. The Facts

A. THE ACCIDENT

On a Sunday afternoon in the middle of August, Philip Henrici, Jana Welch, and Donna Ballweg set out sailing on Lake Springfield in a Hobie Cat catamaran. Henrici was controlling the main sail and manning the tiller. Welch was operating the jib sail. The trio sailed south on the lake and then came about and headed north. Because the center channel of the lake was crowded with power boats and skiers, Henrici guided the Hobie Cat through the water along the shore.

Suddenly, the rear of the Hobie Cat dipped down momentarily and Henrici received a tremendous electrical shock. Then the main sail’s boom fell, hit him on the right arm and came to rest on the tiller crossbar which connected the two rudders. Henrici crawled forward to where Welch and Ballweg were sitting and started to haul the main sail the rest of the way down. As he did so, he looked up and saw that the mast of the Hobie Cat had become entangled in some low hanging power lines strung across the lake. The boat rocked, the mast touched the lines, and bright blue bubbles rose from the water around the boat.

The trio remained calm. Several persons in a passing power boat stopped and offered their assistance. At first, Henrici declined but then he agreed to allow them to tow the Hobie Cat away from the power lines. But before the would-be rescuers could throw Henrici a tow rope, the waves began to rock the sailboat and the mast struck the power lines several times. Each time the mast hit the lines, the sailboat shuddered as the electricity passed through it and bright blue flames erupted from the mast and yellow flames shot out of both ends of the boat. Flames began rolling out from beneath the center of the boat.

Everyone on both boats became very excited and began screaming. Someone yelled for the trio to jump into the water. In an apparent panic, Ballweg jumped off the front of the Hobie Cat and Welch jumped off the back. Henrici remained on the sailboat and threw Ballweg a life jacket. Welch began swimming toward the power boat. The Hobie Cat rocked and its mast hit the power lines. The electricity traveled through the boat and into the water. Both girls went limp and slipped beneath the water.

Henrici was rescued and taken to a hospital. The bodies of the girls were later recovered by divers. The coroner’s report was that the cause of their death was electrocution.

B. THE HOBIE CAT

The sailboat the trio was sailing the day of the accident was a Hobie Cat 16 catamaran, manufactured by Coast Catamaran Corporation, a subsidiary of Coleman Company, Inc. The Hobie Cat is a twin-hulled sailboat. On top of the two hulls and connecting them together is a square aluminum frame. A canvas, trampoline-type surface — commonly called a wing — is stretched across the aluminum frame. The entire assembly is supported by four aluminum posts which run down into the hulls.

Two parallel rudders, connected by an aluminum tiller crossbar, are used to steer the Hobie Cat. Each rudder is capped with an aluminum tiller head, which is connected to an aluminum tiller which, in turn, is connected to either end of the tiller crossbar. A long hiking stick is attached to the center of the tiller crossbar, thereby enabling the person operating the rudders to sit on either side of the wing.

An aluminum mast rises from the front of the aluminum frame and is attached to the boat at a metal mast base. The Hobie Cat has two sails — a main sail in the rear and a jib sail in the front. The main sail is connected along its bottom to an aluminum boom and the boom attaches at a right angle to the mast at a' hinged joint. A warning sticker on the mast reads:

“Caution
Aluminum mast and other metal components conduct electricity. Coming in contact and/or near an electrical power line can cause serious injury or death! Stay away from overhead electrical power lines when sailing and/or launching this boat.”

C. THE PROCEDURE BELOW

(Note: Due to the complex nature of the procedure below and in the interest of brevity, only the most general procedural steps will be outlined here. All other relevant procedural facts will be discussed in the analysis of the issues.)

Acting as special administrator of Jana Welch’s estate, her father, Russell Ogg, brought suit against Coleman Company, Inc., and the city of Springfield. He later amended his complaint to add Coast Catamaran Corporation as a defendant. He alleged that the city had committed several negligent and wilful and wanton acts with regard to the maintenance of the power lines over Lake Springfield. His claims against Coast and Coleman were based on his allegations that the Hobie Cat was manufactured and distributed in an unreasonably dangerous condition. He alleged that the design of the sailboat using aluminum components allowed electricity entering the mast to travel through the boat and into the water, thereby endangering persons in the water.

The city filed a third-party complaint against Henrici and he in turn filed a claim against both the city and Coast. In his countercomplaint, Henrici alleged that witnessing the deaths of the two girls had caused him great mental and emotional anguish, resulting in physical illness. Before the accident, Henrici had suffered from Crohn’s disease, necessitating surgery. He claimed that the stress he suffered as a result of the accident caused the worsening of his condition.

Coast and Coleman filed counterclaims against the city seeking contribution for the amount of any judgment entered against them in favor of Ogg. They also filed cross-claims against Henrici seeking the same. Henrici then filed a counterclaim against Coleman. The trial judge later granted Henrici’s motion to dismiss Coast and Coleman’s cross-claims.

A trial was held and the jury returned a verdict in favor of Ogg for $100,000 and Henrici for $175,000. The jury also found that Coast and Coleman had not acted wilfully and wantonly and therefore did not assess any award against them for punitive damages. The trial judge later granted the city’s motion for a judgment n.o.v. as to Coast and Coleman’s claims for contributions.

After several unsuccessful post-trial motions by each of the parties, Coast and Coleman appealed seeking a new trial on the issue of liability, and Ogg and Henrici cross-appealed seeking a new trial on their claims for punitive damages.

II. Coast And Coleman’s Appeal

A. COLEMAN’S LIABILITY

1. PARENT COMPANY LIABILITY

In the first issue on appeal, Coleman argues that the judgments entered against it must be reversed because the plaintiffs, Ogg and Henrici, failed to prove that it was the manufacturer of the Hobie Cat and therefore it is under no liability for any injuries caused by the boat. We disagree.

• In Illinois, the law is clear that a company which holds itself out to the public as the manufacturer of a product is liable for the injuries caused by that product if it is found to be unreasonably dangerous. (Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155.) Also, a parent company which participates in the manufacture, marketing, and distribution of an unsafe product, or which derives economic benefit from placing it in the stream of commerce, or which is in a position to eliminate the unsafe character of the product is liable for the loss caused by the product. Hebel v. Sherman Equipment (1982), 92 Ill. 2d 368, 442 N.E.2d 199.

The jury in the present case heard testimony that in 1976 Coleman acquired all of Coast’s stock and installed one of its own officers as chairman of the board and president of Coast. Coleman then instituted a policy requiring product development committee meetings every month at Coast. The committee was responsible for all design changes in Coast’s existing products, including the Hobie Cat 16. Chief executive officers from Coleman received copies of the committee’s minutes and attended several of the meetings. In addition, the Hobie Cat 16 instruction and assembly manuals issued in 1978 — the year of the accident — stated that the Hobie Cat was a Coleman Company product.

After hearing the above evidence, the jury found Coleman liable for the injuries caused by the accident. Because Coleman exercised some control over the design of the Hobie Cat, was identified in certain Hobie Cat literature, and received economic benefit from the sale of the boats, such facts provided a sufficient basis for the jury’s finding.

2. STATUTE OF LIMITATIONS

Next, Coleman argues that Henrici’s judgment against it must be reversed because Henrici’s cause of action was barred by the statute of limitations. When Henrici filed his claim against Coast, he did not name Coleman as a defendant. Later, Coleman filed a claim seeking contribution from Henrici and after the applicable'statute of limitations had run, Henrici amended his complaint to name Coleman as a defendant.. When the trial judge granted Henrici’s motion to dismiss Coleman’s claim, Coleman filed a motion to dismiss Henrici’s claim against it, alleging that his claim was barred by the statute of limitations. Coleman’s motion was denied.

On appeal, Henrici argues that Coleman waived the statute of limitations when it filed its claim against him. Coleman contends that because its claim against Henrici was dismissed, the waiver of the statute of limitations was rescinded. Henrici is correct.

Section 13 — 207 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 207) states in pertinent part:

“A defendant may plead a *** counterclaim barred by the statute of limitation, while held and owned by him or her, to any action, the cause of which was owned by the plaintiff or person under whom he or she claims, before such set-off or counterclaim was so barred, and not otherwise.”

Section 13 — 207 does not contain a requirement that the claim which initiates the waiver must be successful or withstand a motion to dismiss in order for the waiver to remain in effect. Instead, the saving clause simply provides that if a party files a claim, he must sacrifice the protection of the statute of limitations.

The saving clause opens the door and exposes the initiating party to otherwise stale claims. The clause does not contain a provision which closes the door if the initiating party’s claim is later dismissed. In sum, once the statute of limitations is waived, it remains waived even if the claim which triggered the waiver is later dismissed.

B. JURY INSTRUCTIONS

Coast and Coleman both argue that, under our supreme court’s recent decision in Coney v. J. L. G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197, the trial judge erred when he refused to instruct the jury that Henrici’s total amount of damages should be reduced in proportion to the amount of his contributory negligence. Coney, however, was not the law when the trial judge instructed the jury, when he entered judgment on the jury's verdict, or when he denied Coast and Coleman’s post-trial motions. The law during that period was that ordinary contributory negligence was not a defense to a strict products liability claim. (See Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.) And because we believe that Coney should not be applied retroactively, it is not necessary for us to . decide whether Coney changed that rule.

Although the supreme court did not state in Coney whether the decision should be applied retroactively or prospectively, in the past the supreme court has applied decisions which radically change existing' tort law prospectively. (E.g., Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886; Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437.) And in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 27, 163 N.E.2d 89, 97, the supreme court stated, “an overruling decision should be given only prospective operation whenever injustice or hardship due to reliance on the overruled decisions would thereby be averted.”

The situation in the present case clearly meets that test. Therefore, we hold that the new rule in Coney should be applied prospectively. Consequently, the trial judge did not err when -he refused to give the contributory negligence instructions.

Coast and Coleman also argue that the trial judge erred when he refused to instruct the jury concerning Welch’s alleged contributory negligence. This issue was waived, however, by Coast and Coleman’s failure to raise it in their post-trial motions. Furthermore, as we just discussed, the law at the time of the trial was that ordinary contributory negligence was not a proper defense to a strict products liability claim. No error.

Coast and Coleman also argue that the trial judge should have instructed the jury that it was their position that Henrici assumed the risk of using the sailboat. Coast and Coleman, however, never tendered an assumption-of-risk instruction. After failing to tender such an instruction, Coast and Coleman cannot now argue on appeal that it should have been given. No error.

C. CONTRIBUTION

During the extensive procedural gamesmanship which preceded the trial, Coast and Coleman filed counterclaims seeking contribution from both Henrici and the city of Springfield. The trial judge dismissed the counterclaims against Henrici and granted the city’s motion for a judgment n.o.v. on the counterclaims against it. On appeal, Coast and Coleman argue that under the supreme court’s decision in Coney, they should have been allowed to seek and receive contribution from Henrici and the city. Because we have already determined that Coney does not apply in this case, we must decide this issue using pr e-Coney law.

The law in pr e-Coney cases was that a strict products liability defendant may seek contribution only from a party who contributed to the plaintiff’s damages either by misusing the product or by assuming the risk of using an unsafe product. (E.g., a plaintiff’s employer who improperly used a machine or assumed the risk of using a defective machine.) See Skinner; Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, 374 N.E.2d 455.

Because the city did not use the sailboat in any manner, under pr e-Coney law it is not liable for contribution for the damages caused by the boat. And, although it is apparent that Henrici used the Hobie Cat, Coast and Coleman have failed to raise or prove that his misuse or assumption of the risk contributed to Welch’s injuries. Consequently, the trial judge did not err when he dismissed the counterclaims against Henrici or when he granted the city’s motion for a judgment n.o.v.

D. FEASIBLE ALTERNATIVE DESIGN

1. BURDEN OF PROOF

During the trial, the plaintiffs, Ogg and Henrici, attempted to establish that a safer, feasible alternative design for the Hobie Cat existed. For example, they questioned several witnesses concerning their familiarity with other boat designs and concerning the possible performance of electrical tests on certain nonmetallic components of other sailboats. They also brought to the attention of the jury the fact that other designs incorporate different features which have different electrical properties from those incorporated in the Hobie Cat. In sum, they attempted to demonstrate to the jury that a safer, feasible alternative design existed and that if the alternative design had been used in constructing the Hobie Cat, the accident would not have happened.

Coast and Coleman moved for a directed verdict arguing that Ogg and Henrici had failed to prove the existence of a safer, feasible alternative design. Their motion was denied. On appeal, they argue that it was error for the trial judge to refuse to direct a verdict in their favor. They maintained that because the plaintiffs raised the issue of whether a safer, feasible alternative design existed, the plaintiffs then had the burden of proving that such a design actually did exist. Coast and Coleman argue that the plaintiffs failed to meet that burden.

We agree that Ogg and Henrici failed to prove the existence of a safer, feasible alternative design. And although we are somewhat inclined to agree with Coast and Coleman’s position that such failure necessitates a directed verdict in their favor, that is not the law as stated by our supreme court. Consequently, we must resolve this issue in- Ogg and Henrici’s favor.

Our supreme court has repeatedly stated that in order to prove a prima facie products liability case, the plaintiff must prove three elements: (1) that the condition of the product was a proximate cause of the plaintiff’s injury; (2) that the condition was unreasonably dangerous; and (3) that the condition existed at the time the product left the defendant’s control. (See Coney; Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 412 N.E.2d 959; Bejda v. SGL Industries, Inc. (1980), 82 Ill. 2d 322, 412 N.E.2d 464.) Our supreme court has never included the existence of a feasible alternative design as one of the elements a plaintiff must prove in order to succeed in a products liability case. In fact, in Palmer, the supreme court ruled that evidence of an alternative design is admissible as proof of one of the required elements.

The supreme court in Palmer stated that the dangerousness of a product is usually proved in one or both of two ways: either by introducing evidence that when the product was used in the customary manner, injury resulted; or by introducing evidence of the existence of a safer, feasible alternative design. Thus, the existence of an alternative design becomes not an element of proof but instead merely one method of proving one of the elements of proof — that the product was unreasonably dangerous. Consequently, the trial judge in the present case did not err when he refused to direct a verdict in Coast and Coleman’s favor.

Nevertheless, it appears patently unfair to us to allow a plaintiff to cloud the jurors’ minds with the idea that a safer, feasible alternative design exists without also requiring him to prove that such a design does actually exist. Under the law as it now stands, a plaintiff by simply raising the issue of an alternative design can throw the practical burden on the defendant to disprove its existence. If the defendant cannot or chooses not to meet that burden, the jurors go to the jury room believing that an alternative design exists whether or not it actually does.

It appears to us that a fairer rule would be to require a plaintiff who raises the issue of whether an alternative design exists to carry the burden of proving that it does. If the plaintiff chooses not to raise the issue, then he need only prove the three elements outlined above. If, however, he chooses to raise the issue, then he must prove a fourth element — that a safer, feasible alternative design does exist. But until our supreme court addresses this problem, we can do no more than flag this problem and voice our concern.

2. POST-ACCIDENT OCCURRENCES

During the trial, the plaintiffs entered into evidence several documents concerning activities and occurrences which took place after the accident. Coast and Coleman argue that the plaintiffs failed to connect these exhibits to any material issue in the case. We disagree.

By entering the exhibits, the plaintiffs were attempting to show the existence of a safer, feasible alternative design. Although it is uncertain how far a few of these documents actually went toward demonstrating the existence of such a design, they were all admissible for that purpose. See Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859.

3. THE FIBERGLASS TILLER CROSSBAR

In another effort to demonstrate that an alternative design existed, Ogg introduced a fiberglass tiller crossbar into evidence. Coast and Coleman argue that it was error for the trial judge to allow Ogg to introduce the exhibit. Once again, we disagree.

Courts have long favored the use of demonstrative evidence to help the jury to better understand the issues in a case. (Hubbard v. McDonough Power Equipment, Inc. (1980), 83 Ill. App. 3d 272, 404 N.E.2d 311.) The overriding considerations in admitting demonstrative evidence are relevancy and fairness. (Lake County Forest Preserve District v. Vernon Hills Development Corp. (1980), 85 Ill. App. 3d 241, 406 N.E.2d 611, aff’d (1982), 92 Ill. 2d 72, 440 N.E.2d 848.) The admissibility of demonstrative evidence is a matter within the trial judge’s discretion and his ruling will not be disturbed absent a clear showing that he abused that discretion. Becker v. Aquaslide ‘N’ Dive Corp. (1975), 35 Ill. App. 3d 479, 341 N.E.2d 369.

The admission of the crossbar was relevant to the question of whether a safer, feasible alternative design existed. And we can find nothing unfair about the manner in which it was introduced. No error.

E. MISCELLANEOUS EVIDENCE QUESTIONS

1. PRIOR CALIFORNIA CASE

During the trial, Ogg elicited testimony from a Coast employee concerning a prior case in California involving a Hobie Cat electrocution accident. On appeal, Coast and Coleman argue that this testimony was immaterial and that it was introduced in a manner that was unfairly prejudicial. We disagree.

The testimony was relevant to show Coast and Coleman’s prior knowledge of the dangerous condition of the Hobie Cat. And we can find nothing in the manner in which it was elicited which unfairly prejudiced either Coast or Coleman. Furthermore, Coast and Coleman waived this issue by failing to make a proper and timely objection at trial. The only objection their counsel made while the testimony was being elicited was that it was hearsay. Nothing was mentioned about relevance or unfair prejudice. Ergo, these objections cannot now be raised here. No error.

2. IMPEACHMENT OF WITNESSES

In an attempt to impeach several of Coast and Coleman’s witnesses, Ogg’s counsel read into the record excerpts from those witnesses’ discovery depositions. On appeal, Coast and Coleman argue that the material was not impeaching and that the trial judge erred in allowing it to be read into evidence.

The test for determining whether a prior statement is sufficiently inconsistent to be used for impeachment purposes is whether the inconsistency is great enough to contravene the witness’ direct testimony on a material matter. (Grabner v. American Airlines, Inc. (1980), 81 Ill. App. 3d 894, 401 N.E.2d 1196; Goldstein v. Hertz Corp. (1973), 16 Ill. App. 3d 89, 305 N.E.2d 617.) Matters of impeachment are within the discretion of the trial court. Law v. Central Illinois Public Service Co. (1980), 86 Ill. App. 3d 701, 408 N.E.2d 74.

In the present case, Mr. Campbell, an employee of Coast, testified that there was an ongoing project between 1976 and the date of the accident to find a design change to eliminate the electrocution hazard in the Hobie Cat. Ogg’s counsel read a statement by Campbell from his deposition that there was no such ongoing project. Ogg’s counsel asked Campbell if he had any documentation of certain work performed in the attempt to find a safer alternative design. Campbell testified that such documentation did exist. Ogg’s counsel then read an excerpt from Campbell’s deposition where he stated that he did not have any such documentation. Campbell also testified that certain other records on the electrocution problem did exist but that he did not know where they were filed. Ogg’s counsel read a portion of Campbell’s deposition where Campbell stated that he did not know of any such records.

Mr. Lee, another employee of Coast, testified that he did not know whether there was an active engineering project at Coast in the years 1976 and 1977 which was directed at solving the electrocution problem. Ogg’s counsel then read an excerpt from Lee’s deposition where he stated that there was no such project at Coast. Lee also testified that he never ordered any material for electrical tests on the tiller crossbar. Ogg’s counsel read an excerpt from the same deposition where Lee stated that a tiller crossbar had been ordered for testing purposes.

In sum, all of the witnesses’ prior statements were sufficiently inconsistent with their direct testimony to be used for impeachment purposes. The trial judge did not err by allowing Ogg’s counsel to read them into evidence.

3. PARTY ADMISSIONS

Hobart Alter, the designer of the Hobie Cat and one of the original owners of Coast, testified at the trial. After he had been excused as a witness, Ogg’s counsel read into the record, as purported admissions, excerpts from Alter’s deposition. On appeal, Coast and Coleman argue that the trial judge erred by allowing the excerpts to be read into evidence. We disagree.

Alter presently is an employee of Coast. His statements pertain to his duties before and after Coleman acquired Coast. Those statements were relevant to the issue of whether Coleman was aware of the electrocution problem with the Hobie Cat before and/or after it bought Coast. Also, it was not error to admit the statements from his deposition into evidence after he had been excused as a witness. (See Security Savings & Loan Association v. Commissioner of Savings & Loan Associations (1979), 77 Ill. App. 3d 606, 396 N.E.2d 320; Rose v. City of Chicago (1942), 317 Ill. App. 1, 45 N.E.2d 717.) No error.

4. SUFFICIENCY OF MEDICAL TESTIMONY

Next, Coast and Coleman argue that Henrici’s judgment against them must be reversed because he failed to prove a causal link between the accident and his subsequent bowel surgery. Again, we disagree.

Henrici presented three medical experts who testified that the stress of the accident was great enough to cause his bowel condition to worsen to the point where surgery was necessary. Their testimony was sufficient to allow the jury to find that a causal link between the accident and the surgery existed. See Dixon v. Industrial Com. (1975), 60 Ill. 2d 126, 324 N.E.2d 393; National Castings Division of Midland-Ross Corp. v. Industrial Com. (1973), 55 Ill. 2d 198, 302 N.E.2d 330.

F. DAMAGES

On appeal, Coast and Coleman have raised three issues concerning the damages the jury awarded Ogg. First, they argue that the testimony concerning Welch’s future earnings should not have been allowed into evidence because it was too speculative. Secondly, they maintain that it was error for the trial judge to instruct the jury that in assessing damages it could consider the society Welch provided her parents. Thirdly, they argue that it was error for the trial judge to instruct the jury that it could consider the pain and suffering Welch experienced before she died.

During oral arguments in this court, however, Coast and Coleman’s counsel informed us that it is their position that if we are unwilling to remand this cause for a new trial on both the question of liability and the question of damages, they do not want a new trial on the damages question alone. Therefore, because these three issues go only to the question of damages and because we are not remanding for a new trial on the liability question, it is not necessary that we address them.

III. Ogg And Henrici’s Cross-appeal

A. DISCOVERY

On cross-appeal, both Ogg and Henrici argue that Coast and Coleman violated the discovery rules by purposefully withholding several documents. Ogg and Henrici maintain that these documents would have convinced the jury that Coast and Coleman acted wilfully and wantonly. They argue that these documents were not discovered by them until after the trial was over and that after their discovery, the trial judge should have granted them a new trial on their punitive damages claims.

We note initially that Ogg brought his claim for punitive damages under the Survival Act. (Ill. Rev. Stat. 1981, ch. IIOV2, par. 27 — 6.) Our supreme court recently held in Froud v. Celotex Corp. (1983), 98 Ill. 2d 324, that under its earlier decision in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509, a common law claim for punitive damages cannot be brought pursuant to the Survival Act. In Froud, the court refused to overrule its position in Mattyasovszky that common law claims for punitive damages do not survive the death of the decedent. Accordingly, we will not grant Ogg’s request for a new trial on his claim for punitive damages.

In order for newly discovered evidence to warrant the granting of a new trial, it must be of such a conclusive character that it will likely change the result if a new trial is granted. (Kaster v. Wildermuth (1969), 108 Ill. App. 2d 288, 247 N.E.2d 431; Powers v. Browning (1954), 2 Ill. App. 2d 479, 119 N.E.2d 795.) The decision whether to grant or deny a motion for a new trial rests within the discretion of the trial judge. (Estate of Whittington v. Emdeko National Housewares, Inc. (1981), 96 Ill. App. 3d 1007, 422 N.E.2d 26.) And his ruling will not be reversed unless it is clear that he has abused his discretion. Lode v. Mercanio (1979), 77 Ill. App. 3d 150, 395 N.E.2d 1014.

It is not apparent from the record that the documents in question were purposefully withheld in violation of discovery rules. Furthermore, after a careful review of the documents, we are not convinced that their introduction at a new trial would likely change the result. Consequently, we find that the trial judge did not abuse his discretion when he refused to grant Henrici a new trial.

B. MANIFEST WEIGHT OF THE EVIDENCE

Next, Ogg and Henrici argue that the jury’s finding that Coast and Coleman’s conduct was not wilful and wanton is against the manifest weight of the evidence. After a thorough consideration of the entire record, we find that the jury’s decision that Coast and Coleman’s conduct was not wilful and wanton is not against the manifest weight of the evidence.

A jury’s verdict should not be disturbed unless that verdict is contrary to the manifest weight of the evidence. (Guthrie v. Van Hyfte (1966), 36 Ill. 2d 252, 222 N.E.2d 492; Martin v. Kralis Poultry Co. (1973), 12 Ill. App. 3d 453, 297 N.E.2d 610.) And a jury’s verdict is against the manifest weight of the evidence only if it is wholly unwarranted by the evidence or clearly the result of passion or prejudice. Looft v. Missouri Pacific R.R. Co. (1982), 104 Ill. App. 3d 152, 432 N.E.2d 1152; Davelis v. Central Engineering Co. (1980), 86 Ill. App. 3d 593, 408 N.E.2d 218.

In the present case, the jury heard a great deal of testimony which tended to demonstrate that Coast and Coleman persisted in manufacturing and marketing the Hobie Cat long after they learned of the electrocution hazard. The recordshows that Coast learned about the hazard soon after it began marketing the sailboat and that Coleman had known about the hazard at l^ast since 1976 when it purchased Coast. The record also reflects that Coast and Coleman chose to issue warnings about the hazard instead of changing the design to eliminate the hazard.

The jury, however, also heard much testimony which tended to show that it was neither safer nor feasible to use all nonmetallic parts in the Hobie Cat. The jurors heard testimony that it was impossible to design a catamaran without using metallic parts that was strong enough to withstand rough waves without breaking up. There was also testimony that it was not possible to design the sailboat so that persons in the water and persons on the boat would both be safe from electrocution.

It is clear, therefore, that the jury’s verdict is supported by the record and that it was not the result of passion or prejudice.

IV. Conclusion

Since we have found no reversible error, we affirm.

Affirmed.

TRAPP and WEBBER, JJ., concur.


author: JUSTICE TRAPP

text:
    FARMERS & TRADERS STATE BANK, Plaintiff-Appellant, v. J. THOMAS JOHNSON, Director, Department of Revenue, Defendant-Appellee.
    Fourth District
    No. 4—83—0415
    Opinion filed January 11, 1984.

      Mariann Pogge-Strubing, of Springfield, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Fredric D. Tannenbaum, Assistant Attorney General, of counsel), for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Farmers & Traders State Bank (Taxpayer) brought this action to review the 1981 assessment of a deficiency by the Illinois Department of Revenue (Department). Taxpayer challenges the Department’s inclusion of interest earned from 1975 through 1977 on certain Government National Mortgage Association (GNMA) securities (Ginnie Maes) and on Federal National Mortgage Association (FNMA) securities (Fannie Maes). The trial court upheld the Department’s position and this appeal followed.

The issues on appeal are: (1) Whether the interest earned on Ginnie Maes is constitutionally immune or statutorily exempt from State taxation; (2) whether the interest earned on Fannie Maes is constitutionally immune or statutorily exempt from State taxation; (3) whether the Department’s hearing procedure denied Taxpayer due process of law since the hearing examiner also represented the Department; and (4) whether the burden of proof was improperly placed on Taxpayer at the administrative hearing.

On July 23, 1980, the Department issued a- notice of deficiency to Taxpayer in the amount of $12,777.73. Taxpayer filed a protest contesting disallowance of the following as base income subtractions: (1) For the year 1975, $73,600.02 interest earned on Fannie Mae certificates and $5,280.28 in interest earned on Ginnie Mae certificates; (2) in 1976, $125,493.29 in interest earned on Fannie Mae certificates and $7,091.36 in interest earned on Ginnie Mae certificates; and (3) in 1977, $99,087.51 in interest earned on Fannie Mae certificates and $16,623.86 in interest earned on Ginnie Mae certificates. Between December 1980 and April 1981, the appointed hearing officer sent six letters to Taxpayer delineating the authorities and documents on which the Department would rely in the administrative hearing.

On April 29, 1981, the administrative hearing was opened. Prior to continuing the hearing on plaintiff’s motion, the hearing officer presented some 36 exhibits on the record, including case authorities considered and Department records pertaining to Taxpayer. The proceeding was continued on May 20,1981.

On May 20, 1981, the hearing officer stated the Department had presented a prima facie case by admitting certain exhibits into evidence and taking official notice of others. Taxpayer moved for a dismissal on constitutional and procedural grounds. Dennis Little, Taxpayer’s representative, testified on Taxpayer’s behalf.

On November 4, 1981, the hearing officer signed his report ruling against Taxpayer on the issues raised. On December 2, 1981, the Director of Revenue issued a decision affirming the hearing officer’s report. On January 5, 1982, Taxpayer filed this suit. The trial court upheld the agency’s decision.

The first question raised by this appeal is whether the interest earned on Ginnie Mae certificates issued under 12 U.S.C. sec. 1721(g) (1976), guaranteed by GNMA and backed by the full faith and credit of the United States, is constitutionally immune from State taxation or constitutes “other obligations of the United States” and is therefore exempt from State taxation under 31 U.S.C. sec. 742 (1976). We find that the interest earned is not exempt for either reason.

The question of whether Ginnie Mae certificates themselves are subject to State taxation was resolved against the taxpayer in Montgomery Ward Life Insurance Co. v. Department of Local Government Affairs (1980), 89 Ill. App. 3d 292, 411 N.E.2d 973. Therein the court described the operation of the Mortgage Backed Securities Program: A financial institution or a mortgage servicing company assembles or acquires a pool of government insured or guaranteed mortgages. GNMA enters into a “Guaranty Agreement” with that party (issuer). GNMA agrees to guarantee timely payments of principal and interest and the issuer agrees to remit in a timely manner all payments required by the terms of the securities. The private issuer is primarily liable to make the payments required by the securities and must proceed with due diligence in collecting the proceeds from the pool. When amounts equal to scheduled payments are not collected, the issuer has a duty to advance from its own funds amounts equal to the payments which should have been collected. This private issuer actively manages and controls the pool of mortgages backing the securities and is paid a fee for its services in administering the pool based on and payable from the interest portion of each monthly installment. If the issuer fails to make timely payments, the security holder’s sole recourse is against GNMA. However, GNMA may treat the issuer’s failure to make required payments as an event of default under the Guaranty Agreement and has the option of extinguishing the issuer’s interest in the pooled mortgages and becoming owner of those mortgages subject only to the unsatisfied rights of the security holders. See New York Guardian Mortgagee Corp. v. Cleland (S.D.N.Y. 1979), 473 F. Supp. 409; and New York Guardian Mortgagee Corp. v. Cleland (S.D.N.Y. 1979), 473 F. Supp. 422.

The Montgomery Ward court reasoned as follows:

“Under the rule first enunciated in M’Culloch v. Maryland (1819), 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579, all properties, functions and instrumentalities of the Federal government are immune from State and local taxation. (See Smith v. Davis (1944), 323 U.S. 111, 113, 89 L. Ed. 107, 110, 65 S. Ct. 157, 158-59.) To make this implied constitutional immunity explicit, Congress has provided for the exemption from State and local taxes for certain written obligations in 31 U.S.C. sec. 742 (1976). That section provides:
‘Except as otherwise provided by law, all stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local authority. This exemption extends to every form of taxation that would require that either the obligations or the interest thereon, or both, be considered, directly or indirectly, in the computation of the tax, except nondiscriminatory franchise or other nonproperty taxes in lieu thereof imposed on corporations and except estate taxes or inheritance taxes.’

The basis of this statutory exemption is ‘the fact that a tax upon the obligations of the United States is virtually a tax upon the credit of the Government, and upon its power to raise money for the purpose of carrying on its civil and military operations.’ Hibernia Savings & Loan Society v. City and County of San Francisco (1906), 200 U.S. 310, 313, 50 L. Ed. 495, 496, 26 S. Ct. 265, 266.

* * *

The credit instrumentalities of the United States recognized by the Supreme Court as constitutionally exempt from State and local taxation have been characterized by ‘(1) written documents, (2) the bearing of interest, (3) a binding promise by the United States to pay specified sums at specified dates and (4) specific Congressional authorization, which also pledged the faith and credit of the United States in support of the promise to pay.’ (Smith v. Davis (1944), 323 U.S. 111, 114-15, 89 L. Ed. 107, 110, 65 S. Ct. 157, 159.) Such credit instrumentalities are issued in the exercise of the power of Congress to borrow money on the credit of the United States to finance an essential governmental function.” 89 Ill. App. 3d 292, 296-97, 411 N.E.2d 973, 976. See also Smith v. Davis (1944), 323 U.S. 111, 119, 89 L. Ed. 107, 113, 65 S. Ct. 157, 160.

In Montgomery Ward, the court found that since the private issuer is primarily liable to make the monthly interest payments and ultimately repay the principal on Ginnie Maes, payment of the obligation by GNMA is contingent and, as such, indirect and speculative. In addition, the court found that the Ginnie Maes were not issued by a government agency to borrow money on the credit of the United States to finance an essential governmental function but were guaranteed by GNMA to facilitate their marketability and encourage investment in them by private parties. The court concluded the Ginnie Mae certificates are not within the category of obligations issued by the Federal government where an immediate and direct debt is incurred by the United States which it alone makes a binding promise to pay and, therefore, are not within the meaning of “other obligations” in 31 U.S.C. sec. 742 (1976).

Taxpayer urges that 31 U.S.C. sec. 742 (1976) codified only a portion of the holding of M’Culloch v. Maryland (1819), 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579, and that the interest earned on Ginnie Maes is constitutionally immune from State taxation under the M’Culloch decision. M’Culloch involved a tax enacted by Maryland on the issuance of bank notes, essentially a discriminatory tax on a national bank in the jurisdiction. The Supreme Court found a connection between the bank and the powers granted to lay and collect taxes, borrow money, regulate commerce, declare and conduct a war, and raise and support armies and navies. The court held that the Maryland tax interfered with the exercise of valid Federal action and that the State did not have power to tax a valid Federal instrumentality which would subject the operations of the Federal government to State control. The decision carried a limitation on its reach, however:

“This opinion does not deprive the states of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the state, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the state. But this is a tax on the operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the government of the Union to carry its powers into execution. Such a tax must be unconstitutional.” (Emphasis added.) (17 U.S. (4 Wheat.) 316, 436-37, 4 L. Ed. 579, 609.)

As the Montgomery Ward court found the Ginnie Mae certificates were neither constitutionally immune from State taxation nor exempt therefrom under 31 U.S.C. sec. 742 (1976), we hold that the interest earned on Ginnie Mae certificates is likewise neither constitutionally immune from State taxation nor exempt under 31 U.S.C. sec. 742 (1976).

We next consider Taxpayer’s argument that the interest earned on Fannie Mae certificates is constitutionally immune from State taxation or constitutes “other obligations of the United States” and are therefore exempt from the State taxation under 31 U.S.C. sec. 742 (1976). The analysis applied above in considering the interest earned on Ginnie Mae certificates is also applicable here. Congress created FNMA intending the agency to operate as a reserve market for mortgage investors and to facilitate the distribution of the government capital available for home mortgage financing. (12 U.S.C. sec. 1716 (1976).) In 1968, Congress transferred ownership of FNMA to the private sector. (12 U.S.C. sec. 1718 (1976).) The Department relies on the language of title 12 U.S.C. sec. 1719(b) (1976) to demonstrate congressional intent not. to guarantee FNMA obligations, including Fannie Mae certificates:

“The [FNMA] shall insert appropriate language in all of its obligations issued under this section clearly indicating that such obligations, together with the interest thereon; are not guaranteed by the United States and do not constitute a debt or obligation of the United States or of any agency or instrumentality thereof other than the corporation.” (12 U.S.C. sec. 1719(b) (1976).)

Title 12 U.S.C. sec. 1719(e) (1976), pertaining to FNMA subordinated or convertible obligations, mandates that such obligations carry similar language indicating that such obligations, together with the interest thereon, are guaranteed solely by the corporation.

Considering the characteristics of the instrumentalities which are exempt from State taxation, discussed in Smith v. Davis (1944), 323 U.S. 111, 89 L. Ed. 107, 65 S. Ct. 157, Fannie Maes do not carry a binding promise by the United States to pay specified sums at specified times. Neither do Fannie Maes have congressional authorization pleading the full faith and credit of the United States in support of the promise to pay. Indeed, the language of 12 U.S.C. sec. 1719(b) (1976) reflects congressional intent to the contrary. Moreover, Fannie Maes are not used to secure credit for the government, but to attract private capital so that government credit would not be necessary. Montgomery Ward; 12 U.S.C. sec. 1721(b) (1976).

The language of title 12 U.S.C. sec. 1719(d) (1976), regarding mortgage-backed securities, referred to by the court in Montgomery Ward, must be considered in conjunction with the aforementioned subsections. Subsection (d) provides: “Securities issued by the corporation under this subsection shall, to the same extent as securities which are direct applications of or obligations guaranteed as to principal and interest by the United States, be deemed to be exempt securities within the meaning of laws administered by the Securities and Exchange Commission.” We conclude that this language compares securities issued under subsection (d) to securities which are direct obligations of, or obligations guaranteed as to the principal and interest by, the United States, for the limited purpose of laws administered by the Securities and Exchange Commission.

We hold that the interest earned on Fannie Maes is not exempt from State taxation under 31 U.S.C. sec. 742 (1976). Likewise, the previously quoted passage of the M’Culloch decision suggests that that case does not extend to the interest earned on Fannie Mae certificates. We therefore hold that the interest earned on these Fannie Mae certificates is not constitutionally immune from State taxation.

Taxpayer next asserts that the administrative hearing procedure, wherein the hearing officer also represented the Department, violated Taxpayer’s due process rights. The Department’s hearing procedures have withstood constitutional challenge on due process grounds in Sundstrand Corp. v. Department of Revenue (1975), 34 Ill. App. 3d 694, 339 N.E.2d 351, Lakeland Construction Co. v. Department of Revenue (1978), 62 Ill. App. 3d 1036, 379 N.E.2d 859, Howard Worthington, Inc. v. Department of Revenue (1981), 96 Ill. App. 3d 1132, 421 N.E.2d 1030, and American Acoustics & Plastering Co. v. Department of Revenue (1982), 107 Ill. App. 3d 616, 437 N.E.2d 419. We deem these cases controlling.

Finally, Taxpayer objects that the Department’s decision upheld the hearing officer’s ruling that the burden of proving a deduction or exclusion in a civil tax case is on the taxpayer. Taxpayer argues that he is exempt as a matter of right under M’Culloch and the supremacy clause of the constitution, rather than as a matter of legislative grace by statutory exemption and, therefore, he has no burden to prove an exemption. Taxpayer’s protest raises a question of law, not fact. A reviewing court is not bound by the conclusions of law of the department or the trial court. (Danison v. Paley (1976), 41 Ill. App. 3d 1033, 355 N.E.2d 230.) The interest on Ginnie Mae and Fannie Mae securities either is immune or exempt from taxation or it is not.

Section 904(a) of the Illinois Income Tax Act provides that the findings of the department regarding a deficiency on the part of the taxpayer shall be prima facie evidence. (Ill. Rev. Stat. 1981, ch. 120, par. 9 — 904(a).) Taxpayer was afforded advance notice of authorities and documents on which the Department relied at hearing and was allowed to present its. evidence and arguments. We find no error in this case.

Affirmed.

GREEN and MILLER, JJ., concur.


author: PRESIDING JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAIMIE RODRIGUEZ, Defendant-Appellant.
    First District (5th Division)
    No. 82—1607
    Opinion filed December 16, 1983.
    Rehearing denied February 3, 1984.

      Steven Clark and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Louis F. Stalzer, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant was found guilty of burglary (111. Rev. Stat. 1981, ch. 38, par. 19 — 1) and sentenced to an extended term of 10 years. On appeal, defendant contends that: (1) the trial court erred in denying his motion for a continuance predicated on the sudden death of his 14-year-old daughter; (2) the State injected improper and prejudicial evidence which suggested that defendant had committed prior crimes; and (3) the State’s improper comments during closing argument prejudiced defendant’s right to a fair trial. For the reasons stated below, we affirm the judgment of the trial court.

Defendant was charged with the burglary of Midwest Wire Specialties Co., Inc. (MWS), Chicago, during which a quantity of blank payroll checks was taken. Pursuant to the record, the parties first appeared before the trial court on March 3, 1982, and after seven continuances, were scheduled to commence jury selection on May 24, 1982. On that date, defendant presented a motion in limine requesting a one-week continuance on the ground that he was suffering from extreme mental distress as the result of his daughter’s death from cancer the previous day, and, as a result, his ability to make trial strategy decisions, such as jury selection, was extremely impaired. In response, the court stated that accommodations would be made for defendant to attend the wake and funeral. However, the motion for continuance was denied on the grounds that (1) the illness was not sudden; (2) defendant knew that his daughter had cancer, thus, had time to prepare himself mentally for this eventuality; (3) defendant failed to present any evidence to establish that people are physically or mentally incapacitated as a result of such a tragic event; and (4) defendant failed to prove that to proceed would prejudice his right to a fair trial.

Thereafter, John Radzak, MWS plant manager, testified that upon arriving at the plant on November 13, 1981, approximately 6:45 a.m. he noticed that one of the plywood panels had been knocked out of the rear garage lift door, leaving an opening approximately two feet wide. Inside the plant, Radzak noticed that the main office door was hanging by one hinge and the lock was pulled out, all of the plywood on the office side was ripped out of the wall, desk and cabinet drawers throughout the offices were ransacked, and the washroom and closet doors were open. He immediately notified the police about the break-in, but did not report anything stolen as nothing appeared to have been taken.

Radzak further stated that MWS employs approximately 35 people, all of whom he knows. To his knowledge, defendant was never employed at MWS. Radzak then identified several obsolete MWS payroll checks which the company had stopped using in December 1980, but he did not recognize the signature on any of them. Further, Radzak did not recognize the photo identification card purportedly issued by MWS and stated that MWS has never issued employee identification cards of any kind.

On cross-examination, Radzak stated that until the president of MWS told him on November 13 that some blank obsolete payroll checks had been removed from a cardboard box that she kept in a closet outside her office, he did not know such checks even existed. Radzak had never seen defendant on the MWS premises and did not see defendant take the payroll checks.

Next, Marion Sitkiewicz, president of MWS, testified that when she arrived at the plant on November 13, 1981, she was told that there had been a burglary, but that nothing had been taken. At that point, she asked if anyone had checked the box of blank obsolete payroll checks which were on the shelf in the coat closet. The checks were packaged chronologically in plastic-wrapped bundles of 50. As she looked through the checks, Sitkiewicz noticed that a series of 250 checks were missing from the middle of the box. After calling the bank to stop payment, Sitkiewicz called the police, informed them about the missing checks and gave them the check numbers. From approximately two weeks following the burglary until the beginning of February 1982, Sitkiewicz received approximately 30 calls from angry local business people. Others came to MWS in person, complaining about stop-payment checks they had received. Sitkiewicz then identified the checks from the missing series, stating that the dollar-amount stamp used on the front of the checks was different from that which had been used by MWS. Further, the signature on the checks was not that of Radzak which it purported to be. In fact, Radzak had never had authority to sign payroll checks. Sitkiewicz also confirmed that MWS has never issued employee identification cards or printed caps.

On cross-examination, Sitkiewicz stated that in addition to herself, only the bookkeeper would have known about the existence of the blank payroll checks. When the checks arrived from the printer, the numbers were verified to be certain none were missing. The box which contained the checks had only the number sequence written on it and had been on the closet shelf since December 1980. The closet does not lock and is accessible to anyone who is working in the main office. Sitkiewicz had never seen defendant on the MWS premises and did not see him take the checks. On redirect, Sitkiewicz stated that, prior to November 13, 1981, she had never received complaints from local businessmen about payroll checks from the missing series.

Fred Lauback, evidence technician for the Chicago police department, testified that because of the pervasive oil-smoke mist which covered virtually every surface in the MWS plant and offices, he was unable to procure any fingerprints.

Next, John Iberle, manager of New Division Pulaski Currency Exchange (the Exchange), Chicago, testified that on November 28, 1981, defendant attempted to cash an MWS payroll check, made out to Jaimie Rodriguez. For identification, defendant gave Iberle his Illinois driver’s license and social security card. Because Iberle had never cashed an MWS payroll check, he telephoned a currency exchange located near MWS to verify the company’s existence and also checked the serial number against the “fraud card” issued by the Currency Exchange Association. When he noticed that the serial number on the check presented by defendant was one of those reported stolen, he dialed the police and locked the front door via an electrical switch in his office. While he was trying to get through to the police, another customer tried to enter the Exchange, but could not because the door was locked. Iberle told defendant to tell the other customer that the Exchange was closed and continued trying to reach the police. Suddenly, Iberle heard loud noises from the front of the Exchange and saw defendant kicking out the glass panel on the door. At that point, Iberle unlocked the door, but defendant escaped through the kicked-out panel anyway. When the police arrived, Iberle gave them the MWS payroll check plus defendant’s driver’s license and social security card.

Rosie Ramos, cashier at Balaban Furniture Store, Chicago, testified that on December 6, 1981, approximately 6 p.m., defendant purchased a television set on layaway, using a MWS payroll check for down payment and receiving change from the transaction. For identification, defendant gave Ramos a photo employee identification card purportedly from MWS. The picture on the card was of defendant. On December 8, approximately 6 p.m., defendant returned to make another payment on the television set. Again, he made the payment with a payroll check from MWS, showed his identification card and received change. Two days later, approximately 8:30 p.m., defendant, wearing a white painter’s hat with the MWS name on the front, returned to make his final payment. This time, however, because Ramos had been informed by the store’s bank that defendant’s payroll checks were bogus, she summoned the police and told the sales manager to keep defendant busy until they arrived. At trial, Ramos identified the two MWS payroll checks that she had cashed and identified the photo identification card as depicting defendant.

Next, Victor Rivera, Chicago police officer, testified that when he arrested defendant at Balaban Furniture Store on December 10, 1981, he found an MWS payroll check in defendant’s right sock. Rivera then identified the check he had removed from defendant’s sock and identified defendant as the person he had arrested.

David Wechsler, owner of two retail clothing stores in Chicago, testified that on December 24, 1981, defendant purchased approximately $100 worth of clothing from one of his stores with an MWS payroll check from which he received change. Wechsler then identified defendant as the purchaser and identified the check he had used to pay for his purchases. Several days later, Wechsler received a similar check from his bank, marked “stop payment,” which had been used to pay for purchases at his other store. When Wechsler called MWS, he was referred to detective Culbertson who later showed Wechsler a photo array from which Wechsler recognized defendant.

Next, Detective Lawrence Culbertson of the Chicago police department testified that when Wechsler showed him the bogus MWS payroll check, he recognized it as one taken during a burglary at the MWS plant in November. Based on Wechsler’s description of the customer and information on file regarding the attempted MWS check cashing at the New Division Pulaski Currency Exchange, Culbertson showed Wechsler 12 photographs of “white Hispanics” from which Wechsler identified defendant. There was a number, but no name, on the front of each photograph. On January 19, 1982, Culbertson obtained a warrant for defendant’s arrest for forgery.

Next, Gus Kardaras, owner of T & C Meat Market, Inc., Chicago, testified that on January 22, 1982, defendant attempted to pay for his groceries with a payroll check, using an MWS employee card for identification. The photograph on the card matched the customer’s face. While Kardaras was attempting to verify the telephone number which appeared on the check, defendant left the store, leaving his identification card behind. Because of the unusual circumstances, Kardaras called the police and later gave them the payroll check and the identification card. At trial, Kardaras identified the check and the identification card as those presented to him by defendant.

Next, Detective Joseph Mohan of the Chicago police department testified that he became aware of the MWS burglary during one of his routine checks of the clipboard located at headquarters which contains information regarding crimes committed in the area. As a detail man, it is Mohan’s function to watch the clipboard for any crime patterns and pursue those that develop. On January 25, 1982, Mohan noticed a supplementary report to the original MWS burglary which indicated that a person by the name of Jaimie Rodriguez was known to have possession of MWS payroll checks. Mohan then ran a computer check on Rodriguez to see if he had any outstanding warrants from which Mohan could obtain an address. On February 3, 1982, after a nine-day search, Mohan located defendant, placed him under arrest and took him to police headquarters where he was interviewed by Mohan in the presence of Mohan’s partner. When Mohan asked defendant how he came into possession of the payroll checks, defendant admitted that he had broken into a wire factory located in Chicago by kicking in a door panel on the overhead rear door and had taken a handful of checks from the factory offices. As a result of his admission, defendant was charged with burglary. On cross-examination, Mohan stated that no court reporter was present during the confession, no one attempted to get a written statement and Mohan did not take notes during the interview.

After the State rested its case, defendant moved for a mistrial based on: (1) Culbertson’s prejudicial testimony; (2) the State’s improper reference to defendant’s silence; and (3) the State’s characterization of defendant as a burglar and its verbal attacks on defense counsel’s integrity. The motion was denied. Defendant then rested his case. Subsequently, judgment was entered on the jury’s verdict, all post-trial relief was denied and defendant was sentenced to an extended term of 10 years’ imprisonment. Defendant’s timely appeal followed.

Opinion

We shall first address the issue as to whether the trial court erred in denying defendant’s motion for continuance. The granting or denial of a request for additional time is a matter to be determined after a careful examination of the particular facts and circumstances surrounding the request (People v. Rivera (1978), 64 Ill. App. 3d 49, 52, 380 N.E.2d 1018, 1020-21), and is addressed to the sound discretion of the trial court (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4(e)), whose disposition will not be disturbed absent a showing of prejudice. People v. Thibudeaux (1981), 98 Ill. App. 3d 1105, 1113, 424 N.E.2d 1178.

In the case at bar, the trial court expressed its sympathy to defendant regarding his daughter’s death and stated that defendant would be granted the necessary time to attend the wake and funeral. However, because no evidence had been presented to establish prejudice to defendant or to establish that people in such a tragic situation are incapacitated from movement or from thinking to the extent that they would be considered incompetent to stand trial, the motion was denied. Defendant argues that news of his daughter’s death impaired his judgment to the extent that his input during the “difficult jury-selection decisions” was adversely affected. We find no merit in this argument. First, defendant fails to indicate how the composition of the jury would have differed had he been in a “normal” frame of mind. Second, defense counsel was given 10 challenges which, according to the record, do not appear to have been exhausted. Certainly if inclusion of a bank “embezzlement officer” and a security investigator appeared to be detrimental in any way to defendant’s position, defense counsel would have exercised his challenges. To suggest that defendant, a lay person, could select a more appropriate jury than could an experienced attorney is untenable. During oral argument, defense counsel even admitted that counsel, not the defendant, has the final decision regarding a tendered jury. Thus, because defendant’s allegation of prejudice is grounded on pure conjecture with no evidence of actual prejudice having been shown, it is our view that the trial court’s denial of the motion for continuance was proper.

In this regard, we find defendant’s reliance on People v. Lott (1977), 66 Ill. 2d 290, 362 N.E.2d 312, to be misplaced. In Lott, the State presented a surprise rebuttal witness who testified that defendant had admitted to him in the presence of others that he had committed the armed robbery for which he was on trial. Defense counsel’s request for a continuance to locate the witnesses to the alleged admission was denied. The supreme court affirmed the appellate court’s reversal of the circuit court on the ground “that the denial of a continuance, on the grounds of surprise, to procure surrebuttal witnesses prejudiced the accused’s opportunity to adequately defend.” (66 Ill. 2d 290, 300.) By contrast, in the present case, the denial of a continuance did not violate defendant’s substantive right to properly defend.

Next, defendant contends that he was denied the right to a fair trial by the admission of evidence of other crimes or other acts of misconduct committed by him. Specifically, defendant cites four instances of allegedly prejudicial testimony: (1) Detective Culbertson’s statement that when shown defendant’s driver’s license at the currency exchange, he recognized defendant’s photograph; (2) photographs shown by Culbertson to Wechsler for identification purposes on January 8, 1982, had numbers on them; (3) Detective Culbertson’s comment that the photographs shown to Wechsler were of “white Ms-panic gentlemen that have had contact with the police department;” and (4) Detective Mohan’s statement that, through a computer check, he had found outstanding warrants against defendant.

First, we find nothing prejudicial about either Culbertson’s recognition of defendant’s photograph or the occurrence of numbers on the photographs. Detective Culbertson’s statement which indicated that he had seen defendant previously did not necessarily imply a criminal record. (People v. Rogers (1940), 375 Ill. 54, 59, 30 N.E.2d 77.) There are any number of innocent ways in which they could have had contact. Further, the numbers on the photographs could have been merely sequential numbers for purposes of numerical order, i.e., one through 12. There is nothing in the record indicating that they were police numbers. When a question to that effect was raised, it went unanswered. Moreover, we concur with the trial court that neither instance was elaborated upon or highlighted in any way. “They were [merely] small things that were brought out,” none of which rose to the level of reversible error.

Further, we do not find Detective Culbertson’s statement that the photos shown to Wechsler were of “white hispanic gentlemen that have had contact with the police department” to have prejudiced defendant. By the time Culbertson showed the photo array to Wechsler on January 8, 1982, defendant had been arrested for deceptive practices as the result of the Balaban Furniture Store incident. Testimony to this effect had been elicited during the examination of Officers Manshreck and Rivera, both of whom testified prior to Culbertson. Thus, the fact that the individuals (including defendant) in the photo array were described as having had previous contact with the police did not inform the jury of anything it had not already learned through prior testimony. Accordingly, we conclude that Culbertson’s comments did not prejudice defendant’s right to a fair trial. Further, because defendant failed to include Detective Mohan’s reference to warrants as error in his motion for new trial, he has waived that issue for review. People v. Thomas (1983), 116 Ill. App. 3d 216, 221, 452 N.E.2d 77.

Finally, we find People v. Stover (1982), 89 Ill. 2d 189, 432 N.E.2d 262, upon which defendant relies, unpersuasive of his position. In Stover, the supreme court held that the prosecutor’s inquiry into defendant’s previous acquaintance with the arresting officer was error because there was no reason for the inquiry other than to imply prior criminal activity. As discussed, the comments objected to in the present case were either innocent of any criminal implication or suggested only that which had already been put into evidence.

Next, defendant contends that he was denied a fair trial due to allegedly improper comments made by the prosecution during closing argument. First, relying on People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773, defendant claims that the prosecution’s repeated comments that testimony by State witnesses was unimpeached and uncontroverted constituted reversible error. In Connors, the prosecutor did not limit himself to commenting on the uncontradicted nature of the evidence. He also stated that no one had testified to the contrary, ignoring the fact that defense counsel had produced one witness. Consequently, the court held that error had been committed because the prosecutor’s comment was in contradiction to the evidence. We find Connors factually distinguishable from the case at bar and adhere to the well-settled legal tenet that comment upon the uncontradicted nature of testimony is a permissible summary of the evidence, and is not tantamount to a comment upon defendant’s failure to testify. (People v. Cobb (1981), 97 Ill. App. 3d 615, 618, 422 N.E.2d 1106.) Accordingly, we find no error or unfair prejudice in the prosecutor’s remark.

Defendant further assigns as error the prosecutor’s reference to defendant’s alias and his repeated verbal attacks on defense counsel’s integrity. Regarding the alias, defendant argues that because there was no testimony as to an alias, it was not a proper subject for closing argument. Preliminarily, we note that although no testimony regarding the use of alias names was given at trial, reference to defendant’s use of an alias appears on two arrest reports which are made a part of the record. Although the record is not clear as to whether these reports were submitted to the jury, whether they were or not is academic in light of the fact that defendant’s objections to the mention of an alias and also to the alleged personal attacks against defense counsel were promptly sustained by the trial court, and the prosecution was reprimanded by the trial court for those alleged attacks, thereby curing any error which may have occurred. People v. Cobb (1981), 97 Ill. App. 3d 615, 618, 422 N.E.2d 1106.

Defendant also argues that the prosecution’s remarks concerning the lack of fingerprint evidence were improper. While it is true that the defense did not “harp on fingerprints” in its argument, testimony regarding lack of fingerprints was brought out at trial. Thus, the prosecution is entitled to argue that evidence and any reasonable inferences derived therefrom. People v. Hicks (1981), 101 Ill. App. 3d 238, 242, 427 N.E.2d 1328.

Finally, defendant argues that because “the evidence was actually close and conflicting *** as to the charge of burglary,” the prosecutor’s improper arguments unfairly “tipped the scales.” Our conclusion that the prosecutor’s comments were either not improper or, if improper, were promptly cured by the trial court, obviates the need to discuss this allegation except to state that, in our opinion, the evidence overwhelmingly supported the jury’s verdict. Accordingly, we affirm the judgment of the circuit court of Cook County.

Affirmed.

LORENZ and MEJDA, JJ., concur.