author: JUSTICE BARRY SCOTT, J., JUSTICE STOUDER,

text:
    REBECCA MARIE REED, Adm’x of the Estate of John Alan Reed, Deceased, Plaintiff-Appellant, v. WILBUR WALLACE FLEMING, d/b/a Butler’s Supper Club, Defendant and Third-Party Plaintiff-Appellee (Lyle Mahr et al., Third-Party Defendants).
    Third District
    No. 3—84—0258
    Opinion filed April 25, 1985.

      STOUDER, J., dissenting.
    William C. Davis, Jr., of Lewistown, for appellant.
    Roger R. Clayton and Nicholas J. Bertschy, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

This suit was brought under the Liquor Control Act (Ill. Rev. Stat. 1981, ch. 43, par. 135) by Rebecca Marie Reed, widow of John 'Alan Reed. John was killed as a result of a one-car accident in Fulton County. A motion for summary judgment by defendant Wilbur Wallace Fleming was initially denied, but on reconsideration the motion was granted on the ground that plaintiff failed to produce any evidence that the accident was proximately caused by the deceased’s intoxication. Plaintiff appeals. We reverse.

The relevant facts as they appear in the record on appeal are as follows: During the week of December 4-5, 1981, John Reed was working the third shift at Sherex Chemical Co. in Peoria County. On the morning of December 4, Reed returned home from his employment around 7 a.m., ate and went to bed. Around 3:30 p.m., his wife, Rebecca, awakened him before leaving for work and arranged for Reed to take the children to her mother’s home for the night. Reed was scheduled to begin work again at 10:20 that evening. When Rebecca finished work around 10:30 p.m., she stopped at Cheri’s tavern in Canton and learned that her husband had not gone to work as scheduled, but had been drinking with a friend. It appears that Reed had telephoned his supervisor at Sherex earlier in the evening to say that he was having car trouble and would be late for work. He then proceeded to several drinking establishments. Around midnight Rebecca left Cheri’s tavern in search of her husband. She checked at several taverns before reaching Butler’s Supper Club in Morton around 1 a.m. There she found Reed at the bar, drinking a beer. The two argued about Reed’s failure to go to work on time. Reed said he was only two minutes from the plant gate and he planned to leave the tavern at “a quarter till 2:00” to be there at 2:20. Reed ordered two more beers for himself and Rebecca, and when she rejected hers, he proceeded to drink all three, including the one he already had. According to Rebecca, Reed had glassy eyes and slurred his words. He staggered when he got off the stool to buy cigarettes. He returned with the wrong brand. Rebecca was of the opinion that Reed was intoxicated. She was still angry with her husband when Reed ordered yet another beer for himself. Rebecca left Butler’s at 1:45 a.m. At 4 a.m. of December 5, 1981, John Reed was found dead at the scene of a one-car accident about 15 miles from Butler’s at a point where the highway forms a broad curve between Butler’s and the Reeds’ home. Reed’s automobile was overturned in a ditch, and Reed’s fatally injured body lay several feet away. Rebecca explained that the road was the same route Reed had traveled to and from work for the past five years.

Body fluid samples taken by the coroner indicated that Reed’s blood alcohol content was .285%. The coroner also observed that the body exuded a strong odor of alcohol. No skid marks were noted on the highway to indicate the reason Reed’s vehicle left the road. No eyewitnesses to the accident were discovered, and no details of the decedent’s activities between 1:45 a.m. and 4 a.m. are available.

Plaintiff initiated her action against defendant Wilbur Wallace Fleming, doing business as Butler’s Supper Club, in May of 1982, alleging loss of means of support for herself and her two children, Timothy and Cappi Kearns, caused in consequence of the intoxication of John Reed. Fleming filed a third-party complaint against several other dramshop proprietors who allegedly sold alcoholic beverages to the decedent during the evening of December 4 or early morning of December 5, 1981. The third-party complaint was dismissed on motion of the third-party defendants. The instant appeal raises no issues with respect to the third-party action. Our discussion, therefore, relates solely to the propriety of granting defendant Fleming’s motion for summary judgment.

Defendant Fleming’s theory in moving for summary judgment and on appeal is that, since there were no eyewitnesses who could attest to any erratic driving by the decedent, a jury verdict for the plaintiff could never be upheld because a conclusion that Reed’s intoxication caused the accident would necessarily be based upon pure speculation. In other words, plaintiff’s evidence would be insufficient as a matter of law to prove the proximate causation element of the statutory-cause of action.

Defendant relies primarily on two factually similar cases decided by the second district in which dramshop defendants successfully established their entitlement to directed verdicts. (Reese v. Roth (1978), 62 Ill. App. 3d 937, 379 N.E.2d 932; Rose v. Brozman’s Tavern, Inc. (1981), 102 Ill. App. 3d 1087, 430 N.E.2d 282.) The trial court, on reconsideration of its denial of defendant’s motion for summary judgment, relied on these decisions in ruling in defendant’s favor as well. A third dramshop case, Jackson v. Navik (1976), 37 Ill. App. 3d 88, 346 N.E.2d 116, is urged by plaintiff as a factually analogous situation which should control our disposition. Without denying the existence of factual similarities between the instant case and those cited by defendant, we agree with plaintiff that the principles set forth therein fail to compel the same result when applied to the situation under consideration here. Before discussing these three cases, we will set forth a few of the principles underlying the granting or denial of summary judgment in this case.

Our analysis necessarily focuses upon whether the pleadings, affidavits and depositions of record pose any genuine issue of material fact. If they do not, the movant is entitled as a matter of law to judgment in his favor. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005; Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 411 N.E.2d 229.) The harshness of this remedy has given rise to the corollary rule that if there exists any doubt as to the movant’s right to summary judgment, that doubt must be resolved in favor of the nonmovant so that evidence may be presented to the trier of fact. (Cato v. Thompson (1980), 83 Ill. App. 3d 321, 403 N.E.2d 1239.) An order by the trial court granting summary judgment will be reversed on review if it is determined that a material question of fact exists.

The elements of the statutory tort cause of action as pleaded by plaintiff are established upon: (1) proof that the decedent was intoxicated at the time of his death; (2) proof that defendant sold intoxicating liquor to the decedent; (3) proof that the liquor contributed to the decedent’s intoxication; (4) proof that intoxication was a proximate cause of the decedent’s death; and (5) resultant injury to the plaintiff’s means of support. As indicated above, the basis for the trial court’s entry of summary judgment in this case was the plaintiff’s failure to allege sufficient facts to support her allegation of proximate causation (element 4). The court’s written opinion, however, specifically found sufficient evidence of intoxication (element 1). It is, therefore, our task to determine whether the pleadings, affidavits and depositions filed in this case raise a genuine issue as to whether the decedent’s intoxication was a proximate cause of the automobile accident in which he was killed.

Careful scrutiny of relevant precedent as cited by the parties on appeal discloses that summary judgment for the defendant should not have been granted in this case.

In Reese v. Roth (1978), 62 Ill. App. 3d 937, 379 N.E.2d 932, plaintiff’s decedent, Reese, was killed when his automobile collided with another driven by Edward Bedal, who also died as a result of the collision. Bedal’s passenger, Beebe, survived and his testimony was admitted at trial. The evidence concerning the events of the day immediately preceding the accident established that Bedal had drunk six bottles of beer during the afternoon and evening prior to 1 a.m. on September 1, 1974, when he left the defendants’ tavern in his car. Thereafter, during the ride, Beebe observed Bedal drink three more cans in the car before Beebe fell asleep. Beebe testified at trial that Bedal had weaved the car within its own lane and did not seem in control. Bedal was “pretty high” but not totally “out of it,” and at one point during the ride, Beebe had said to Bedal, “You f— up.” However, Beebe had no recollection of the collision and could not therefore relate his remark to erratic driving. Beebe did not regain consciousness until he found himself in the hospital.

Evidence at trial conflicted as to what direction the two vehicles were headed prior to colliding. Testimony concerning a gouge mark on the pavement at the scene of the accident and oil spilled on the road was inconclusive to establish in which lanes the vehicles were traveling at the point of impact.

The appellate court concluded that under the circumstances presented in Reese, a jury’s determination as to the cause of the collision, the position of the vehicles prior to impact and the events leading up to the collision would be based upon “pure speculation and conjecture.” Reasoning that the proof failed to establish that intoxication was the cause of the collision, the reviewing court reversed the trial court’s denials of defendants’ motions for a directed verdict and for judgment notwithstanding the verdict, and ordered the entry of judgment for the defendants.

Rose v. Brozman’s Tavern, Inc. (1981), 102 Ill. App. 3d 1087, 430 N.E.2d 282, was decided three years later by the second district and resulted in an affirmance of the trial court’s granting of defendant’s motion for a directed verdict on the following facts. Plaintiff’s decedent, Moland, was a passenger in a vehicle driven by Eddy Stumbo the evening of September 2, 1978, when the car the two men were in missed an “S” curve, struck a bridge abutment and overturned. Evidence admitted at trial established that Stumbo had drunk four or five vodka and grapefruit juice drinks during the afternoon at the defendant’s tavern.

The issue on appeal was “whether the logical inference from the fact of the occurrence itself, that is the fact that Stumbo lost control of his car going around a curve — [was] in itself sufficient evidence of unusual or erratic behavior to raise the issue of intoxication and bar a directed verdict.” (Emphasis added.) (102 Ill. App. 3d 1087, 1090, 430 N.E.2d 282, 284.) The court then reviewed several dramshop cases in which the sufficiency of evidence of intoxication had been challenged on motions for directed verdicts (Hagopian v. First Venture, Ltd. (1980), 90 Ill. App. 3d 951, 414 N.E.2d 85; Weeks v. Witek (1975), 33 Ill. App. 3d 916, 339 N.E.2d 43; Bohnen v. Wingereid (1979), 80 Ill. App. 3d 232, 398 N.E.2d 1204; Weiner v. Trasatti (1974), 19 Ill. App. 3d 240, 311 N.E.2d 313; Felker v. Bartelme (1970), 124 Ill. App. 2d 43, 260 N.E.2d 74; Lang v. B.I.T., Inc. (1981), 96 Ill. App. 3d 37, 420 N.E.2d 767) and concluded that in each case wherein directed verdicts for the defendant had been reversed, the reviewing court had found “either competent opinion evidence based on observation that the individual in question was intoxicated, or evidence of some erratic, unusual behavior by such person soon after consuming alcohol on defendant’s premises.” (Rose v. Brozman’s Tavern, Inc. (1981), 102 Ill. App. 3d 1087, 1091, 430 N.E.2d 282, 285.) Significantly, the court also reviewed its earlier opinion in Reese and stated, “This court [in Reese] rejected the conclusion that the patron of Pastime Inn had been intoxicated and reversed the judgment against the tavern on the ground that there was insufficient evidence from which the jury could conclude that the collision was due to intoxication.” (Emphasis added.) (102 Ill. App. 3d 1087, 1092, 430 N.E.2d 282, 286.) Similarly, the evidence in Rose established some drinking and a subsequent accident but lacked any showing of Stumbo’s intoxication. Accordingly, the court affirmed the trial court’s judgment for the defendant.

Finally, we consider the facts of Jackson v. Navik (1976), 37 Ill. App. 3d 88, 346 N.E.2d 116. In Jackson, the injured person, plaintiff’s husband, consumed several drinks in the defendants’ taverns the night and early morning prior to an afternoon diving accident. The evidence of intoxication included Jackson’s testimony that he had consumed over 10 drinks in the defendants’ taverns before Jackson, his brother and a friend, Knudson, bought and drank a bottle of vodka on Jackson’s boat. They were later refused service in a bar and bought a second bottle of vodka, which was three-quarters consumed by the time they reached a sandbar, where they anchored the boat around 3 p.m. Jackson dived off the end of the boat, hit his head on the sandbar and was rescued, unconscious, by his friends. He suffered from quadriplegia as a result of the incident.

Other facts indicated that Jackson was a good swimmer and diver and was familiar with the area of the accident and the sandbar from prior experience. The trial court granted defendants’ motion for judgment at the close of plaintiff’s evidence, holding that there was neither sufficient proof of intoxication at the time Jackson left the defendant’s tavern nor proof of proximate causation.

On appeal, the second district appellate court reversed, finding both of the trial court’s conclusions contrary to the manifest weight of the evidence. The court, in reviewing the issue of proximate causation, observed as follows:

“ ‘[I]t is only where the cause of injury or death would have occurred regardless of intoxication that it can be held as a matter of law the intoxication is not the proximate cause.’
* * *
Here a drunk takes a headfirst dive into a sand bar, in an area with which he is familiar, and then suffers a paraplegic injury. It is difficult to perceive what more evidence is required to sustain the burden of proving causal connection. The usual-burden of proof would seem to be no greater than to show that it was more probable that the event was caused by intoxication than that it was not. See IPI 2d No. 21.01.” (37 Ill. App. 3d 88, 94-95, 346 N.E.2d 116, 122.)

The Jackson court further rejected the trial court’s conclusion that medical testimony was essential to prove a causal connection between the accident and Jackson’s injury. Accordingly, the court remanded the cause of action for loss of means of support for a new trial before another judge.

For reasons that follow, we find that relevant facts in the present case more nearly resemble Jackson than they do Reese and Rose.

Plaintiffs in both Reese and Rose failed to present sufficient facts from which a jury could reasonably conclude that the driver’s intoxication had reached a level from which they could infer that driving ability would be affected. In neither case was the driver’s blood alcohol content introduced into evidence. In neither case was there evidence of unusual conduct from which intoxication could be inferred. In both cases there was evidence only of some drinking of alcohol at the defendants’ establishments and a later fatal accident. To reach a verdict favorable to the plaintiffs in such cases, the jury would have to infer the fact of intoxication and then infer further that the subsequent accident was caused by intoxication. It is this stacking of inferences that rendered verdicts for the plaintiffs in Reese and Rose vulnerable to attack as being based upon “pure speculation or conjecture.”

By contrast, sufficient evidence of the injured party’s intoxication was introduced in Jackson to survive defendants’ motion to dismiss at the close of plaintiff’s case and is alleged in the pleadings, affidavits and depositions in the present case so as to survive defendant’s motion for summary judgment. In Jackson, as here, the injured person was familiar with the area where the accident occurred. It appears that Jackson’s conduct was sufficiently unusual to result in his not being served at the last tavern the group stopped at before the accident. The act of diving off the end of a boat anchored on a sandbar further supports the conclusion that the diver was acting in an erratic manner due to his intoxication. The quantity of alcohol consumed immediately prior to the accident was sufficient to permit reasonable minds to conclude that intoxication would necessarily result. Given the evidence of Jackson’s intoxication and the circumstances testified to, the injuries suffered were reasonably foreseeable. Since the facts of Jackson as adduced at trial were sufficient to support the conclusion that Jackson’s accident was the natural and probable consequence of his intoxication (see Danhof v. Osborne (1957), 11 Ill. 2d 77, 142 N.E.2d 20), the reviewing court found it was error for the trial court to direct judgment for the defendants.

Similarly, and unlike Rose and Reese (as clarified by the court’s analysis in Rose), there is direct evidence of intoxication in the present case both from observation by the plaintiff about two horn’s prior to the accident and from the coroner’s observation and blood alcohol test results shortly after Reed’s death.

The record before us contains evidence that the decedent’s blood alcohol level following the accident far exceeded the statutory level for driving under the influence (Ill. Rev. Stat. 1983, ch. 95x/2, par. 11 — 501(a)(1)). In addition, the decedent’s appearance and conduct when last seen by the plaintiff were sufficiently unusual to indicate intoxication at that point. There is no contradictory evidence of record on the issue of the decedent’s intoxication prior to the accident. Based upon the matters of record, the trial court correctly found that sufficient evidence of intoxication had been produced by plaintiff to place that issue before the jury.

Our review of the pleadings, depositions and affidavits convinces us, however, that the issue of proximate causation cannot be determined as a matter of law, and we must, therefore, reverse the judgment for defendant entered by the circuit court. An automobile accident is a reasonably foreseeable occurrence when an intoxicated person takes the wheel of an automobile. Whether he falls asleep while driving or fails to exercise care in the operation of the car, the likelihood that a drunk driver will cause injury to himself and/or others certainly is not beyond the realm of reasonable foreseeability. The fact that the decedent in the present case was allegedly familiar -with the highway he was traveling when his vehicle left the road at the curve and the lack of evidence supporting any other credible explanation for the accident would support an inference that the accident in question was proximately caused by the fact, if found, of the decedent’s intoxication. Under these circumstances, a question of fact is obvious concerning proximate causation.

It cannot be said that a jury finding that the accident was proximately caused by the decedent’s intoxication would be based upon pure speculation and conjecture rather than upon reasonable inferences from direct and circumstantial evidence of the facts here presented. Defendant’s motion for summary judgment should not have been granted.

For the foregoing reasons, we reverse the judgment of the circuit court of Fulton County and remand this cause for further proceedings.

Reversed and remanded.

SCOTT, J.,

concurs.

JUSTICE STOUDER,

dissenting:

I disagree with the result reached by the majority. The majority relies solely upon Jackson v. Navik (1976), 37 Ill. App. 3d 88, 346 N.E.2d 116, which I believe is factually distinguishable from this case. In Jackson, the second district states that absent proof that injury or death was caused by something other than intoxication, a court cannot determine the absence of proximate cause as a matter of law. This proposition is not adhered to by other courts in this State or in subsequent decisions of the second district. Furthermore, this broad statement was not required by the facts in the Jackson case. I, therefore, believe that the majority ignores the weight of.authority in this area, and I would have affirmed the trial court.

As the majority opinion states, Jackson involved a diving accident witnessed by several members of a boating party who knew Jackson to be a good swimmer who was familiar with the sandbar and knew him to be intoxicated. On the other hand this case involves a situation where there were no witnesses to the accident and no witnesses to the deceased’s behavior immediately preceding the accident. Therefore, it would be impossible in this case for a jury to determine that intoxication was the cause of the accident, unlike in Jackson where a jury could have determined that intoxication was the proximate cause of the accident.

Furthermore, the court in Jackson stated the following theory which I find no support for in subsequent cases. The court stated that

“it is only where the cause of injury or death would have occurred regardless of intoxication that it can be held as a matter of law the intoxication is not the proximate cause.” (Jackson v. Navik (1976), 31 Ill. App. 3d 88, 94, 346 N.E.2d 116, 122.)

This theory presumes that intoxication is the proximate cause of the injury or death absent proof to the contrary. In both Rose v. Brozman’s Tavern, Inc. (1981), 102 Ill. App. 3d 1087, 430 N.E.2d 282, and Reese v. Roth (1978), 62 Ill. App. 3d 937, 379 N.E.2d 932, where no evidence existed as to the cause of the accident, the second district held that the tavern was not liable as a matter of law. In both cases the court found that a jury cannot base its decision purely upon speculation, as there must be some evidence as to the cause of the accident. Accord, Lang v. B.I.T., Inc. (1981), 96 Ill. App. 3d 37, 420 N.E.2d 767.

I find this case more closely analogous to the facts in Reese v. Roth, where Bedal, the driver of one of the automobiles involved in a two-car collision, was alleged to be intoxicated. The only survivor was the passenger in Bedal’s car, who testified that Bedal was not in control of his vehicle, the car was weaving and swerved to avoid another car, and Bedal had drunk three beers while in the car before the passenger fell asleep. Both drivers were killed and there were no witnesses to the collision. Despite seemingly overwhelming evidence of intoxication, the court in Reese remanded with instructions to enter a directed verdict in favor of the defendant, because no evidence was presented or could have been presented from which a jury could determine the actual cause of the accident. In the instant case, where no evidence as to the cause of the accident exists, any determination of proximate cause must be based upon speculation.

The result reached by the majority runs the risk of imposing absolute liability upon dramshops for injury or death whére some party involved has been drinking, despite the fact that no proof exists that intoxication was the actual cause of the injury or death. In Danhof v. Osborne (1957), 11 Ill. 2d 77, 142 N.E.2d 20, the supreme court cautioned against such broad application of the Liquor Control Act (Ill. Rev. Stat. 1981, ch. 43, par. 135). The court stated:

“The line must be drawn somewhere, for the statute obviously does not impose absolute liability or make the dramshop owner responsible for every injury incurred by a person to whom he sells liquor.” (11 Ill. 2d 77, 84,142 N.E.2d 20, 24.)

I, therefore, would have affirmed the decision of the trial court granting summary judgment because I do not believe that proximate cause was or can ever be proved in this case, and "without such proof an “in consequence” case can never stand. See Danhof v. Osborne (1957), 11 Ill. 2d 77, 81, 142 N.E.2d 20, 22.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    WILLIAM MARSHALL, Plaintiff-Appellant, v. THOMAS R. ELLISON et al., Defendants (The City of Mattoon, Defendant-Appellee).
    Fourth District
    No. 4—84—0603
    Opinion filed April 30, 1985.

      John P. Geismann, of Highland, for appellant.
    M. John Hefner, Jr., of Harlan Heller, Ltd., of Mattoon, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The plaintiff, William Marshall, sued for injuries that he suffered when a truck hit him while he was walking on Route 45 in the city of Mattoon. Count I, against Thomas and Ruby Ellison, owners of the Wagon Wheel Package & Tap, was brought under section 6 — 21 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1983, ch. 43, par. 135). This count was later dismissed after a settlement. Count II, against the city of Mattoon, alleged its police officers were negligent in failing to protect the plaintiff when they knew or should have known that he was intoxicated. The trial court granted summary judgment in the city’s favor, and the plaintiff appeals. At issue is whether the city owed the plaintiff any duty.

The plaintiff’s accident occurred on December 5, 1980. The depositions and affidavits in the record reveal the following facts. Prior to the accident, the plaintiff had been drinking beer at the Wagon Wheel tavern. Bartenders there noticed him enter between 3:30 and 4 p.m. He departed at 7 or 7:30 p.m. According to the three bartenders, none of the plaintiff’s actions indicated he was incapacitated or intoxicated. One of the bartenders did yell at the plaintiff when he threw a cue stick, but she assumed he was simply upset after losing a game of pool. Another bartender spoke with the plaintiff shortly before he left. That bartender stated the plaintiff had no difficulty walking, talking or handling money.

David Griffith, a Mattoon police officer, was on patrol alone on December 5. At 8:13 p.m., he and an officer in another car were dispatched on a call. The police log indicates the call was in reference to a drunk. Griffith responded that he was in the area at 8:19 p.m., and the dispatcher informed him that the individual was walking southbound on Route 45. Griffith and the other officer made several trips up and down Route 45 but were unable to locate the person.

At 8:37, Griffith and the other officer were dispatched to a motel in reference to a family fight. Griffith, traveling north on 45 in the left lane at a high rate of speed, observed a white male walking south in the right lane. The individual was three to six feet from the curb. Griffith stopped his car in the left lane, opened the door, and told the individual to get off the roadway. The man threw up his hands as an acknowledgement to the officer’s directive and stepped off the road. Nothing indicated to Griffith that the individual was intoxicated. After the individual had taken a few steps onto the grass, Griffith proceeded to the motel. The entire encounter with the unidentified man lasted 10 to 15 seconds. Griffith testified that he would not recognize the individual he saw that night. Griffith arrived at the motel, which was about one-half to three-quarters of a mile away, at 8:40. At 8:44, two other officers were dispatched to the scene of the plaintiff’s accident.

Due to his injuries, the plaintiff had difficulty remembering the accident and communicating his recollections. He did, however, remember an encounter with a Mattoon policeman who told him to “[p]ull it back.” The plaintiff estimated he had consumed 20 beers and some whiskey that day. A doctor at the hospital measured the plaintiff’s blood alcohol level at .28%.

In his complaint, the plaintiff alleged the city’s police officers were negligent in: (1) attempting to aid the plaintiff and protect his safety and failing to continue with the attempt; (2) failing to remove the plaintiff from the highway; and (3) violating section 12(b) of the Alcoholism and Intoxication Treatment Act’ now section 15(b) of the Alcoholism and Substance Abuse Act (Ill. Ann. Stat., ch. HV-k, par. 6315(b) (Smith-Hurd Supp. 1983)). The city maintains summary judgment was proper because it owed no duty to the plaintiff. Whether under the facts of a case such a relationship exists between two parties as to require a legal obligation be imposed upon one for the benefit of the other is a question of law for the court to decide. Summary judgment is proper when only a question of law is involved. Barnes v. Washington (1973), 56 Ill. 2d 22, 26-27, 305 N.E.2d 535, 538.

The general rule is that a municipality and its employees are not liable for failure to supply general police or fire protection. Exceptions to this rule have been found only in cases where the municipality was under a special duty to a particular individual. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 363, 243 N.E.2d 214, 216.) Absent a special duty, therefore, a municipality will not be held liable for its failure to exercise a governmental function designed for the public health and safety. (Stigler v. City of Chicago (1971), 48 Ill. 2d 20, 24, 268 N.E.2d 26, 29.) A general duty would put the police in the position of guaranteeing the personal safety of every member of the community. The general rule simply embodies the conclusion that a police department’s negligence is not the legal cause of harm committed by another. Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 445, 410 N.E.2d 610,612.

The plaintiff urges us to adopt the rationale of the Massachusetts Supreme Court in Irwin v. Town of Ware (1984), 392 Mass. 745, 467 N.E.2d 1292. In Irwin, the plaintiffs alleged police officers had negligently failed to take into protective custody an automobile driver who was intoxicated and who subsequently caused an accident resulting in harm to the plaintiffs. The accident occurred approximately 10 minutes after police had stopped the intoxicated driver but allowed him to go. The town argued the police officers owed only a duty to the general public to enforce statutes with respect to intoxicated drivers. The court, however, concluded the public duty rule was no bar. The court decided a special relationship exists between a police officer who negligently fails to remove an intoxicated motorist from the highways and a member of the public who suffers an injury as a result of that failure.

In finding a special relationship, the Irwin court relied primarily on the foreseeability of the harm to a member of the public from an officer’s failure to act.

“Where the risk created by the negligence of a municipal employee is of immediate and foreseeable physical injury to persons who cannot reasonably protect themselves from it, a duty of care reasonably should be found.” 392 Mass. 745, 756, 467 N.E.2d 1292,1300.

We decline to adopt the approach taken by the court in Irwin. First, we know that most courts have refused to find a cause of action in similar cases. (See Jackson v. Clements (1983), 146 Cal. App. 3d 983, 194 Cal. Rptr. 553; Everton v. Willard (Fla. App. 1983), 426 So. 2d 996; Crosby v. Town of Bethlehem (1982), 90 App. Div. 2d 134, 457 N.Y.S.2d 618; Fusilier v. Russell (La. App. 1977), 345 So. 2d 543; Ivicevic v. City of Glendale (1976), 26 Ariz. App. 460, 549 P.2d 240; Massengill v. Yuma County (1969), 104 Ariz. 518, 456 P.2d 376; but see Huhn v. Dixie Insurance Co. (Fla. App. 1984), 453 So. 2d 70.) “The special duty required to maintain the action cannot be established by the mere fact that someone with whom the officer had prior contact subsequently injured the plaintiff.” (Shore v. Town of Stonington (1982), 187 Conn. 147, 156, 444 A.2d 1379, 1383.) Nor should a cause of action arise simply because the officer had prior contact with the plaintiff himself.

In addition, our supreme court has warned against confusing foreseeability with the concept of duty and in using foreseeability to find a duty.

“Professor Leon Green discusses foreseeability in distinguishing between the judge’s rule in determining the duty owed and a jury’s rule in determining the violation of the duty by stating:
‘[Hjowever valuable the foreseeability formula may be in aiding a jury or judge to reach a decision on the negligence issue, it is altogether inadequate for use by the judge as a basis of determining the duty issue and its scope. The duty issue, being one of law, is broad in its implication; the negligence issue is confined to the particular case and has no implications for other cases. There are many factors other than foreseeability that may condition a judge’s imposing or not imposing a duty in the particular case, but the only factors for the jury to consider in determining the negligence issue are expressed in the foreseeability formula.’ Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401,1417-18.
Thus, although foreseeability is generally accepted as the test to be applied by a jury in determining if a duty has been violated, in defining the scope of the duty, other elements must be considered by the court.” (Mieher v. Brown (1973), 54 Ill. 2d 539, 544, 301 N.E.2d 307, 309-10.)

The existence of a duty ultimately depends upon choices between competing policies. Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 445, 410 N.E.2d 610, 612.

Most importantly, the result reached in Irwin is contrary to the established law of this State. In Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 440 N.E.2d 942, aff’d in part and rev’d in part (1983), 98 Ill. 2d 158, 456 N.E.2d 116, a minor was injured when the car in which he was riding struck a speed limit sign. She and her father sued county and municipal governments for negligently failing to post patrols or install speed control equipment in the area. The plaintiff alleged the sign was constantly and repeatedly used for the purpose of clocking vehicles moving in a quarter-mile distance at speeds which greatly exceeded the legal limit. The driver of the car was using the sign for that purpose when he lost control. The plaintiffs argued the defendants owed them a special duty to enforce speed restrictions in the area.

The appellate court found no special duty was owed to the plaintiffs. The court held:

“In order for a municipality to owe a special duty toward an individual as contrasted with the public at large, the following requirements must be met: (1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or wilful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality.” (109 Ill. App. 3d 400, 407, 440 N.E.2d 942, 947.)

The court noted that even assuming the plaintiffs met the first three requirements, they made no allegation which would lead to the conclusion that the minor’s injuries occurred while she was under the direct and immediate control of the defendants. In this case, the plaintiffs’ complaint contains the same defect. On appeal in Curtis, the plaintiffs urged the supreme court to find that the defendants did owe the plaintiffs, individually, a duty to patrol or otherwise deter speeding. The supreme court simply stated the appellate court’s treatment of the issue was both adequate and correct. 98 Ill. 2d 158, 165, 456 N.E.2d 116,120.

The plaintiff argues section 15(b) of the Alcoholism and Substance Abuse Act created a special duty in his favor. The statute provides:

“A person who appears to be incapacitated while in a public place by alcohol and who shows symptoms of the physical disabilities or the emotional and social disabilities associated with alcoholism on probable cause shown shall be taken into protective custody by the police and forthwith brought to a detoxification facility or other facility customarily available for detoxification. If no detoxification facility is readily available he shall be taken to an emergency medical service customarily used for incapacitated persons. The police, in detaining the person and in taking him to a detoxification facility, are taking him into protective custody and shall make every reasonable effort to protect his health and safety. In taking the person into protective custody, the detaining officer may take reasonable steps to protect himself. A taking into protective custody under this Section is not an arrest. No entry or other record shall be made to indicate that the person has been arrested or charged with a crime.” (Ill. Ann. Stat., ch. HV-k, par. 6315(b) (Smith-Hurd Supp. 1983); formerly Ill. Rev. Stat. 1981, ch. 91V2, par. 512(b); also Ill. Rev. Stat. 1977, ch. 9IV2, par. 512(b), effective July 1, 1976.)

The plaintiff contends the Act was designed for the benefit of aleoholies and intoxicated persons engaged in public drunkenness rather than for the benefit of the public as a whole. (See Ill. Ann. Stat., ch. HV-k, par. 6302 (Smith-Hurd Supp. 1983).) The city points to section 15(g) as evidence that the legislature did not intend to create any additional civil liability under the Act. Section 15(g) states that no authorized person acting in good faith and without negligence in connection with the detention, discharge, or taking into protective custody of an individual under the Act shall incur any liability, civil or criminal, by reason of these acts. Ill. Ann. Stat., ch. lll1^, par. 6315(g) (SmithHurd Supp. 1983).

The issue is whether the legislature intended to create a private duty under the Act. The distinction between a public and private duty depends on the many policy considerations which lead the law to determine whether interests of a particular type are entitled to protection against conduct by officials. (Shore v. Town of Stonington (1982), 187 Conn. 147, 152-53, 444 A.2d 1379, 1382.) When a statute is involved, the more specific and narrow the duty required by the statute, the more likely it is that the duty has been narrowed from a general duty to the public to a specific duty to an individual. Oleszczuk v. State (1979), 124 Ariz. 373, 377, 604 P.2d 637, 641.

In construing a similar statute, the court in Rodriguez v. City of Cape Coral (Fla. App. 1984), 451 So. 2d 513, held that neither a city nor its police officer could be held liable for not taking an intoxicated person into protective custody under the statute. The court decided the determination of whether to take an individual into protective custody must be left to the officer’s discretion.

“The determination of whether a person appears to be incapacitated is an officer’s judgmental decision which is limited by time, lighting conditions, communications and other circumstances.” 451 So. 2d 513, 516.

Like the Florida statute, section 15(b) requires an officer to exercise his professional judgment in determining whether an individual appears to be incapacitated. We do not believe the public interest would be served by allowing a jury of laymen with the benefit of 20/ 20 hindsight to second-guess a policeman’s decision. Shore v. Town of Stonington (1982), 187 Conn. 147,157, 444 A.2d 1379,1384.

The plaintiff asserts the use of the word “shall” in the statute implies a mandatory obligation. “Shall,” however, does not have an exclusive, fixed or inviolative meaning; while it ordinarily suggests the mandatory, it may properly be construed in a directory sense, depending upon the intent of the legislature. (In re Application of Rosewell (1983), 97 Ill. 2d 434, 440-41, 454 N.E.2d 997, 999-1000.) We believe the legislature simply intended to give police authority to take an incapacitated person into custody rather than to create a special duty. Protecting intoxicated persons is not a policeman’s only responsibility, nor did section 15(b) make it his predominant one. The police still owe a duty to protect the general safety of all persons. They are “charged with the preservation of public order and tranquility, the promotion of public health, safety, and morals, and the prevention, detection, and punishment of crimes.” (Black’s Law Dictionary 1041 (5th ed. 1979).) The very nature of law enforcement requires that an officer have freedom to exercise his discretion. In the present case, Griffith was responding to an emergency call when he encountered the individual on the road. To impose liability upon him or the city would render his duty under section 15(b) paramount to all of his other duties. We conclude the legislature did not intend to create a cause of action under this statute for a failure to take a person into protective custody.

Finally, we agree with the trial court that section 15(b) was not applicable under the facts of this case. Although it is uncontradicted that the plaintiff was intoxicated, the statute requires probable cause shown that the person appear incapacitated by alcohol. “ ‘Incapacitated by alcohol’ means that a person, as a result of the use of alcohol, is unconscious or otherwise exhibits by his overt behavior, or by his extreme physical debilitation, an inability to care for his own needs or recognize the obvious danger of his situation or make a rational decision with respect to his need for treatment.” (Ill. Ann. Stat., ch. HV-k, par. 6304.12 (Smith-Hurd Supp. 1983).) Nothing in the record suggests Griffith had probable cause to believe the person he encountered was incapacitated by alcohol. Furthermore, section 15(b) requires the individual to display symptoms of the physical, emotional, or social disabilities associated with alcoholism. None of the evidence indicated the plaintiff was an alcoholic or displayed any of the disease’s symptoms. While these contentions were raised in the complaint, they are not supported by evidentiary facts in the affidavits or depositions, and, therefore, summary judgment was appropriate. Bennett v. Raag (1982), 103 Ill. App. 3d 321, 431 N.E.2d 48.

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

Affirmed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE STROUSE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL ZAMBETTA, Defendant-Appellant.
    Second District
    No. 83—468
    Opinion filed April 29, 1985.

      George P. Lynch, of Chicago, and Philip E Locke, of Locke, Tellefsen & Learn, of Glen Ellyn, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STROUSE

delivered the opinion of the court:

The defendant, Michael Zambetta, was convicted of unlawful delivery of a controlled substance, cocaine, in violation of section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56x/2, par. 1401(a)(2)), possession of a controlled substance (Ill. Rev. Stat. 1979, ch. 56x/2, par. 1401(b)), and armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) after a jury trial in Du Page County. After denying the defendant’s motion for judgment of acquittal and renewed motion for mistrial, the trial court sentenced the defendant to prison terms of three, six, and eight years to run concurrently, and fined him $5,000 plus court costs. He appeals raising five assignments of error: (1) whether the trial court properly denied defendant’s motion for severance, (2) whether the trial court properly denied defendant’s motion to identify or produce the informant, (3) whether the defendant was properly required to elect a defense prior to trial, (4) whether the State proved the defendant’s guilt beyond a reasonable doubt, and (5) whether the trial court erred in denying the defendant’s motion for a mistrial after an allegedly prejudicial newspaper article was read by jurors during the trial.

On the evening of November 3,1980, Agent Wayne Fieroh traveled to the home of Donald Svendson, 401 Spring Hill Road, Roselle, for the purpose of purchasing cocaine. He was accompanied by Jason “Slick,” a government informant. Upon Fieroh’s arrival, Svendson approached their car and indicated to Fieroh the cocaine had not arrived. Shortly thereafter, a vehicle driven by Antonio Mannarino pulled into the driveway behind Fieroh’s car. Mannarino advised Fieroh that his “uncle” would arrive shortly driving a Cadillac, and in exchange for Fieroh’s $4,400, would give Mannarino the cocaine.

Minutes after Mannarino’s arrival, a yellow Cadillac, driven by the defendant, in which codefendant, Joseph Irmen, was a passenger, pulled alongside the street curb in front of Svendson’s home. Fieroh and Mannarino headed down to the end of the driveway toward the Cadillac, while Svendson straggled a few feet behind. The defendant, Irmen, Fieroh, Mannarino and Svendson participated in or were in a position to observe and participate in the ensuing drug transaction. Jason “Slick” remained in Fieroh’s car more than 100 feet away and was neither present nor participated in any further conversation that evening. The defendant, Irmen and Mannarino had just left defendant’s apartment where they obtained the cocaine used in the drug transaction.

While seated in the Cadillac, the defendant and Irmen conversed with Mannarino and Fieroh, who stood outside the car next to the rolled-down passenger window. When Fieroh asked for the cocaine, defendant responded, “We’re not dealing with you, we’re dealing with him” (indicating Mannarino). When Fieroh renewed his request for the cocaine, the defendant stated to Irmen, “Go ahead and give him the package.” Irmen then handed a white envelope containing cocaine to Mannarino, who in turn handed it to Fieroh in exchange for $4,400. Mannarino then hopped into the Cadillac with the defendant and Irmen and drove away. Minutes later, the three were pulled over and arrested.

After the arrest, as the defendant, Irmen and Mannarino stood outside the Cadillac, a fully-loaded revolver in a holster was discovered in the Cadillac’s glove compartment. The testimony revealed the glove compartment was unlocked when the car was searched. An arresting officer testified the defendant made no move to acquire the revolver.

After the parties’ opening statements, the defendant moved for severance, claiming Irmen’s opening statement revealed a defense antagonistic to the defendant’s. The court denied this motion. The defendant maintains he was denied a fair trial by the court’s refusal to sever his case from Irmen’s. The defendant’s motion to sever outlined his defense, that the State could not prove him guilty beyond a reasonable doubt. The defendant contended Irmen would testify that Irmen neither provided nor sold the drugs, but that defendant both supplied the drugs and ordered Irmen to transfer the drugs. In fact, Irmen testified that defendant handed him an envelope containing cocaine and instructed him to hand it over to Mannarino. Irmen further testified that he told Fieroh to hand over the money to either the defendant or Mannarino, and not him. He claimed that throughout the transaction, he didn’t know a drug deal was actually “going down” but that he only responded to the defendant’s orders. Irmen asserted he was involved in the transaction to receive repayment of a loan made to Mannarino. The defendant neither testified nor introduced evidence at trial.

The State argues that the defendant’s failure to state why the defense would be antagonistic precludes his right to a severance. The defenses were antagonistic; Irmen’s testimony was not critical to the case against the defendant but was merely cumulative, repeating testimony already received from Fieroh and Mannarino.

The court in People v. Lee (1981), 87 Ill. 2d 182, established that prior to allowing a severance, a detailed and specific showing of antagonism, including a detailed recitation of what the defendant’s defense would be, must be made to the court. (People v. Lee (1981), 87 Ill. 2d 182, 188; see, e.g., People v. Braune (1936), 363 Ill. 551, 553-54.) The defendant’s “mere apprehension” and conclusion that a conflict exists does not meet the Lee standard. (See People v. Yonder (1969), 44 Ill. 2d 376, 386; see also People v. Goodman (1979), 75 HI. App. 3d 369, 372.) The court in Lee called for a severance only when the defendants could not realistically be aligned on the same side. (People v. Lee (1981), 87 Ill. 2d 182, 187.) Thus, without truly inconsistent and antagonistic defenses, a severance must be disallowed. 87 Ill. 2d 182,187-88.

People v. Daugherty (1984), 102 Ill. 2d 533, 544, suggests that antagonism exists when each defendant denies his participation while simultaneously blaming his codefendant. The facts in Daugherty reveal that in a case based wholly upon circumstantial evidence, severance should have been granted where each defendant accused the other of the crime while professing his own innocence. (102 Ill. 2d 533, 545.) The closing argument in Daugherty “produced a spectacle where the People *** stood by and witnessed a combat in which the defendants attempted to destroy each other.” (People v. Daugherty (1984), 102 Ill. 2d 533, 547, citing People v. Braune (1936), 363 Ill. 511, 557.) The supreme court in Daugherty concluded that based on the information available to the trial judge, the inherent risk of prejudice was apparent and severance should have been granted. 102 Ill. 2d 533, 547.

The facts compelling severance in Daugherty are dissimilar to the facts of the instant case. The conflict here bore no resemblance to the outright “finger-pointing” in Daugherty. While the codefendant’s testimony implicated the defendant in the drug transaction, it did not exonerate his own participation. The codefendant testified that he and Mannarino arranged for a cocaine transaction in which the defendant was the supplier. The codefendant at no time pinned the blame exclusively on the defendant, nor did the defendant blame the codefendant. Meanwhile, the defendant argued as his defense that he was not guilty because the delivery of cocaine was made to Mannarino rather than to Fieroh, as the information charged. He stressed that this fact precluded a finding of his guilt. The court in Lee held where a defendant relies solely upon the State’s inability to prove him guilty, and the codefendant testifies the defendant forced him to commit the offense charged, the defendant has not been prejudiced by a joint trial and his motion for severance during trial is properly denied. (People v. Lee (1981), 87 Ill. 2d 182, 189.) Thus, following the standards expressed in Lee and Daugherty, the defendant’s defenses are not “classically” antagonistic so as to warrant a severance.

Even if the defendant and codefendant’s defenses are antagonistic, denial of the severance motion is proper because the codefendant’s testimony was merely cumulative of the evidence presented at trial. (See People v. Lee (1981), 87 Ill. 2d 182, 189.) Independent of the codefendant’s testimony, Mannarino and Agent Fieroh both identified the defendant as the supplier of the cocaine. Mannarino’s testimony as to the defendant’s role in the delivery of cocaine was consistent with the codefendant’s testimony. Fieroh testified the defendant asked Mannarino where the money was for the cocaine deal. After stating that he and his codefendant were dealing with Mannarino and not Fieroh, the defendant directed the codefendant to hand the cocaine to Mannarino, who in turn handed it to Fieroh in exchange for $4,400. At the defendant’s direction, Mannarino then hopped into the car with defendant and codefendant and drove away. The defendant was implicated in the drug transaction through direct testimony rather than circumstantial evidence, as in Daugherty. Although slight inconsistencies exist, the testimony of both Mannarino and Fieroh established that Fieroh paid for the cocaine and that the codefendant delivered it at the defendant’s direction and approval to Mannarino, who delivered it directly to Fieroh.

The defendant next asserts the production and identification of the informant was critical in preparing an entrapment defense. The defendant urges that the informant wás both a witness and key participant in the drug transaction. This allegation is entirely unsupported by the record. The record reveals the informant arrived with Agent Fieroh at the location of the sale but remained in Fieroh’s car for the duration of the transaction. Fieroh testified the informant sat facing the opposite direction in Fieroh’s parked car, over 100 feet away from the Cadillac where the sale was made. He was not within hearing range of the transaction. Further, not only did the transaction occur at night, which would have impaired the informant’s vision, but also both Mannarino and Svendson stood near to the transaction so as to have blocked the informant’s vision.

The facts herein do not coincide with the facts in cases requiring disclosure of the informant’s identity. The Supreme Court in Roviaro v. United States of America (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623, held where the informant had taken a material role in bringing about the petitioner’s possession of heroin, the identity of the informant must be tendered to the petitioner for preparation of his defense. The court believed the informant to have taken a material role when the informant was the sole participant with the petitioner in the transaction charged, might be a material witness as to whether the petitioner knowingly transported the drugs as charged, and was the only witness in a position to amplify or contradict the testimony of the government witness. (353 U.S. 53, 64-65, 1 L. Ed. 2d 639, 647-48, 77 S. Ct. 623, 629-30.) Thus, disclosure of the informant’s identity was required.

In People v. Lewis (1974), 57 Ill. 2d 232, the supreme court enunciated the Roviaro standard holding that disclosure would be required when an informer acted in a dual role of informer-participant. (57 Ill. 2d 232, 235.) In Lewis, only three persons were present at the alleged drug sale, i.e., the purchasing agent, the defendant, and the informer. (57 Ill. 2d 232, 235.) The court stated since the informer was the only witness in a position to amplify or contradict the testimony of the government witness, the defendant should have been allowed to interview him. People v. Lewis (1974), 57 Ill. 2d 232, 238; see also People v. Thornton (1984), 125 Ill. App. 3d 316, 318; People v. Rinaldo (1976), 34 Ill. App. 3d 999, 1001; People v. Perez (1974), 25 Ill. App. 3d 371, 374-75.

The facts herein indicate the informant did not witness the drug transaction; therefore, he was unqualified to testify as to its substance. Further, the record reveals that other people, i.e., Mannarino, Svendson, and Irmen, were present to corroborate or contradict Agent Fieroh’s testimony. Their testimony as to the defendant’s role in the transaction was entirely consistent with Fieroh’s. Finally, defendant’s assertion that the informant’s identity would have allowed an entrapment defense is meritless. The informant did not know of the defendant prior to the transaction. The testimony revealed the informant had never spoken to the defendant, and no negotiation between the informant and defendant occurred prior to or at the time of the drug transaction. The informant’s only involvement in the transaction was to identify the location of the sale, and to indicate the going rate for two ounces of cocaine. Thus, reviewing the facts of this case in a light most favorable to the defendant, the motion for production and identification of the informant was properly denied.

The defendant next argues he was denied his right to a fair trial by having to elect his defense five months prior to trial. The defendant stated in his discovery answer that his possible defenses were entrapment, alibi, reduced responsibility, a general denial of guilt, and that the State could not prove him guilty beyond a reasonable doubt. He asserts Supreme Court Rule 413(d) (87 Ill. 2d R. 413(d)) allows him to plead these inconsistent defenses. Citing the committee comments, the defendant contends that notice of defenses to the State “may include alternative and inconsistent defenses.” (87 Ill. 2d R. 413(d).) After omitting the alibi defense, the defendant was ordered by the court to determine before trial whether or not he would rely on an entrapment defense. Begrudgingly, the defendant produced a motion which asserted his defense as a general denial of guilt. The defendant insists the court erred in requiring him to elect this defense, and he was thus prejudiced at trial.

In support of his claim, the defendant cites People v. Gracey (1982), 104 Ill. App. 3d 133, a case actually supportive of the State’s position. In Gracey, the defendant failed to reveal any defense to the State prior to trial in accord with Supreme Court Rule 413(d) (87 Ill. 2d R. 413(d)). During trial, much evidence as to the defendant’s intoxication and propensity for violence was heard. As a sanction for failure to comply with Supreme Court Rule 413(d), the court disallowed the defendant's jury instruction regarding self-defense and intoxication defenses. The appellate court reversed, holding “[bjecause of the extensive evidence indicating possible intoxication and justification defenses, we feel that exclusion of these defenses produced substantial prejudice to the defendant and that his conviction, without the opportunity to present an adequate defense, represents a possible miscarriage of justice.” (People v. Gracey (1982), 104 Ill. App. 3d 133, 137.) Unlike Gracey, the testimony taken at trial in the present case does not reflect any evidence of entrapment. The defendant herein made no tender of a jury instruction regarding entrapment. There is no evidence in this record which indicates any entrapment.

Since the defendant answered with inconsistent defenses, the court was proper in requiring the defendant to modify his answer with more facts or to elect a defense. Without further information as to witnesses or events, we cannot say that the trial court improperly required the modification of an answer to pretrial discovery in this case. The election of a defense was merely the result of failing to set forth facts or other information required pursuant to the discovery order of the court.

Further, in People v. Fleming (1971), 50 Ill. 2d 141, 144, the supreme court stated where the defendant has denied commission of a crime he cannot also plead entrapment as a defense. Such an attempt is logically inconsistent because entrapment requires that the defendant admit commission of the offense yet plead he was tricked, conned, or forced into committing the offense. (See 50 Ill. 2d 141, 144-45.) Recognizing this inconsistency, the court herein acted properly in requiring the defendant to elect a defense.

The defendant next contends that his conviction should be reversed since the State failed to prove his guilt beyond a reasonable doubt. His four theories in support of this contention are, first, that no evidence suggests he delivered the cocaine to Agent Fieroh, second, that the jury was not properly instructed as to the delivery charge, third, that no proof established that he possessed the revolver and, fourth, that no evidence established that he was armed.

In order to sustain a conviction for the offense of unlawful delivery of 30 or more grams of cocaine, the State must prove beyond a reasonable doubt that the defendant knowingly delivered or possessed with the intent to deliver 30 grams or more of any substance containing cocaine. (See Ill. Rev. Stat. 1979, ch. 56x/2, par. 1401(a)(2).) As the statute indicates, the offense is committed when one delivers cocaine to another. The material element of the offense is delivery, not the identity of the purchaser.

The defendant urges that since he made a delivery to Mannarino and not to Fieroh as charged, he cannot be found guilty. He urges his delivery to Mannarino was a separate transaction in an unrelated conspiracy. In support of his position, he cites People v. Bueno (1966), 35 Ill. 2d 545, a case in which the supreme court reversed a conviction because the indictment charged the defendant with a sale of drugs to one person when the sale was actually to another. In Bueno, the indictment charged the defendant with the sale of narcotics to Nicoletti when the evidence revealed the sale was made to Wright. The testimony showed that Nicoletti gave money to Wright who, outside the presence of Nicoletti, bought narcotics from the defendant. The court held that because no evidence demonstrated the defendant had any knowledge of the ultimate purchaser, the conviction must be reversed. People v. Bueno (1966), 35 Ill. 2d 545, 547-48; see also People v. Sullivan (1962), 23 Ill. 2d 582, 583-84 (conviction for sale of heroin to Hart, as charged, reversed where evidence showed the defendant sold to his codefendant who in turn sold to Hart outside the defendant’s presence); People v. Davis (1958), 13 Ill. 2d 211, 213-14 (reversal of defendant’s conviction for selling drugs to minor as charged where drugs were sold to a third person who was not an agent of the minor, and who was not in the company of the minor when the defendant sold the drugs).

The record reveals that the defendant delivered cocaine to Mannarino, who immediately handed it to Fieroh. All of the parties were present when this took place and knew Fieroh was the ultimate purchaser. Mannarino was merely a conduit for the transfer to Fieroh. On a theory of accountability the State must prove beyond a reasonable doubt that: (1) the defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of an offense; (2) this participation must have taken place either before or during commission of the offense; and (3) it must have been the concurrent, specific intent to promote or facilitate the commission of the offense. (People v. Schlig (1983), 120 Ill. App. 3d 561, 570.) The evidence disclosed at trial irrefutably places the defendant at the scene of the drug transaction, and the defendant’s behavior reveals that he “shared the common illegal purpose” and made affirmative acts to promote the sale of cocaine. See 120 Ill. App. 3d 561, 570.

The defendant next claims the court erred in refusing to tender his instruction to the jury relating to the delivery charge. The jury was given an Illinois Pattern Jury Instruction relating to the delivery. The defendant’s instruction read, in part, “to sustain the charge of delivery *** the State must prove that the defendant knowingly delivered *** cocaine *** to Wayne Fieroh.” The defendant maintains he was deprived his theory of defense by the court’s refusal to tender this instruction which named Fieroh.

The statute mandates a conviction when a defendant knowingly delivers or possesses with the intent to deliver 30 grams or more of cocaine. (See Ill. Rev. Stat. 1979, ch. 56V2, par. 1401(a)(2).) The record reveals the defendant knew Fieroh to be the purchaser of the cocaine. Because the record reveals no factual basis which could support the defendant’s instruction, the defendant was not prejudiced by the trial court’s giving of the IPI instruction, and its refusal of his instruction, which named Fieroh.

The defendant next argues he was not proved guilty beyond a reasonable doubt of possession of the revolver because no evidence reveals that he knew the loaded revolver was in his glove compartment. The State suggests the defendant retained constructive possession of the revolver. Where the defendant does not have personal physical possession, yet has the intent and capability to maintain control and possession, and the defendant knows of the presence of the weapon, the defendant can be said to have constructive possession. People v. Turnbeaugh (1983), 116 Ill. App. 3d 199, 205; People v. McNeely (1981), 99 Ill. App. 3d 1021,1023-24.

The defendant owned and was driving the Cadillac in which the revolver was found. The defendant had exclusive control of the Cadillac, which shows he had constructive possession of the revolver. (See People v. McNeely (1981), 99 Ill. App. 3d 1021, 1025.) Further, the evidence indicates he had only one passenger, the codefendant, in the front seat of the car nearest to the glove compartment. The testimony reveals this passenger was only a recent acquaintance of the defendant, and was only in the defendant’s car at the defendant’s suggestion. The defendant would have had the opportunity to observe the codefendant’s behavior while in his car. No evidence was produced that indicated the codefendant had anything to do with the revolver in the glove compartment. Given these facts, it may be concluded that the defendant knew of the revolver’s location in the glove compartment and constructively possessed it.

The defendant also maintains that his conviction of armed violence must be reversed because he was not armed during his delivery of cocaine. The evidence adduced at trial establishes that at the time of the drug sale, the defendant was seated in the driver’s seat of his Cadillac only a few feet away from the glove compartment where the revolver was located. Arguably, if the sale had gone “sour,” the defendant had ready access to his weapon. The evidence reveals the glove compartment was unlocked, and the fully loaded revolver was positioned in a shoulder holster. In People v. Smith (1978), 71 Ill. 2d 95, a case bearing similarity to the facts herein, the court concluded that a revolver was immediately accessible to the defendant even though it was found in a locked glove compartment in his car; the defendant was found neither to be inside the car nor to have the key. (71 Ill. 2d 95, 101-02.) The court held that for purposes of section 24 (Ill. Rev. Stat. 1975, ch. 38, par. 24 — l(a)(10)), a weapon is “immediately accessible” if it is in such proximity to the accused as to lie within easy reach so that it is readily available for use. People v. Smith (1978), 71 Ill. 2d 95, 101-02; see also People v. McKnight (1968), 39 Ill. 2d 577, 580-81.

The court in People v. Haron (1981), 85 Ill. 2d 261, 268, held the “mere physical presence of a weapon while a crime is being committed is thought to be a sufficient threat to warrant proscription” of the charge of armed violence. Based upon the evidence at trial, the State proved the defendant guilty beyond a reasonable doubt of armed violence.

The defendant further argues he was unfairly denied his right to a fair trial when a potentially prejudicial newspaper article was read by three jurors during trial. The facts adduced at trial indicate that the article concerned the smuggling of cocaine by persons referred to as “mules,” whereby the “mules” would ingest balloons filled with cocaine and then carry the contraband into the United States. The article referred to the gruesome deaths suffered by these couriers when the balloons exploded in their stomachs. The substance of the article is entirely unrelated to the facts of this case. Further, no evidence suggests that “mules” were in any way employed by the defendant. Nonetheless, the record reveals that the trial court was alarmed at the potential prejudice the article could have on the jurors. Thus, the court interrogated the jurors as a group. Through questioning, the court found three jurors who had seen or read the articles. The court then questioned those jurors individually, and outside the presence of the other jurors. Through this polling, the court was assured that the jurors would be able to render a fair and impartial verdict. The court then admonished the jury to consider solely the evidence and testimony heard in the case in rendering their verdict.

When an allegation of prejudicial publicity is raised, it is the trial court’s duty to examine the nature of the publicity to determine its potential for prejudice. (People v. Perez (1981), 98 Ill. App. 3d 64, 67.) If the court finds the publicity to be potentially prejudicial, then a polling of the jurors must occur; however, if the court determines the publicity is not prejudicial, there is no need to poll the jury. (People v. Perez (1981), 98 Ill. App. 3d 64, 67; see also People v. Cole (1973), 54 Ill. 2d 401, 414-15; People v. Knippenberg (1979), 70 Ill. App. 3d 496, 499-500.) No prejudice results to the jurors where the allegedly prejudicial article does not refer to the defendant or the cause specifically, but only to a general class of offenders. (People v. Fowler (1981), 98 Ill. App. 3d 202, 205; People v. Perez (1981), 98 Ill. App. 2d 64, 67.) Where the presumably prejudicial articles bore no direct relation to the defendants and the charges against them, the jury need not even be polled. People v. Fowler (1981), 98 Ill. App. 3d 202, 204; People v. Perez (1981), 98 Ill. App. 3d 64, 67.

The facts herein reveal the nature of the allegedly prejudicial article was unrelated to the defendant and the charges against him. Even so, when the court became aware that a few jurors may have read the possibly prejudicial article, the court took the precautionary measure of a thorough questioning of those jurors. Subsequently, the court became convinced that the jurors would render a fair verdict. After thoroughly admonishing the jurors to consider only the evidence and testimony in the case, the court denied the defendant’s motion for mistrial and the trial proceeded. The defendant was afforded a fair trial, and the trial court did not abuse its discretion in denying defendant’s motion for mistrial.

The defendant’s conviction is affirmed.

Affirmed.

LINDBERG and UNVERZAGT, JJ., concur.


author:
JUSTICE TRAPP MILLS, J.,
      PRESIDING JUSTICE GREEN,

text:
    DEPARTMENT OF DRIVER SERVICES, SECRETARY OF STATE, STATE OF ILLINOIS, Plaintiff-Appellee, v. SECRETARY OF STATE MERIT COMMISSION, STATE OF ILLINOIS, Defendant (Earl Smock, Defendant-Appellant).
    Fourth District
    No. 4—84—0042
    Opinion filed May 6, 1985.
    Rehearing denied June 4, 1985.
    GREEN, P.J., dissenting.
    Manion, Janov, Edgar, Devens & Fahey, Ltd., of Hoopeston (Paul T. Manion, of counsel), for appellant.
    Stratton & Nardulli, of Springfield, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant Smock appeals from an order of the circuit court of Sangamon County, sitting in administrative review (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.), which reversed the order of the Secretary of State Merit Commission of the State of Illinois (Commission) suspending him from his position with plaintiff Department of Driver Services of the Illinois Secretary of State (Department) for 90 days. This suspension was in addition to a suspension previously imposed by the Department, and constituted the maximum suspension the Commission could permissibly impose under section 9 of the Secretary of State Merit Employment Code (Ill. Rev. Stat. 1983, ch. 124, par. 109). The circuit court ordered Smock’s discharge from employment consistent with the Department’s position. The discharge order has been stayed pending this appeal.

The issue before this court is the propriety of the circuit court’s reversal of the Commission’s decision.

The guidelines have been stated by the supreme court in Department of Mental Health & Developmental Disabilities v. Civil Service Com. (DuFrenne, appellant) (1981), 85 Ill. 2d 547, 426 N.E.2d 885. The court described a two-step process for a reviewing court in dealing with an administrative agency’s (here, the Commission’s) decision whether or not to discharge an employee: (1) to determine whether the agency’s findings of fact are contrary to the manifest weight of the evidence, and (2) to determine whether the findings of fact provide a sufficient basis for the conclusion that cause for discharge does or does not exist. The latter is not tested by manifest weight of the evidence, but whether the decision is arbitrary, unreasonable, or unrelated to the requirements of the service. Sutton v. Civil Service Com. (1982), 91 Ill. 2d 404, 438 N.E.2d 147; Department of Mental Health & Developmental Disabilities v. Civil Service Com. (Mars, appellant) (1982), 103 Ill. App. 3d 954, 431 N.E.2d 1330; Secretary of State v. Kunz (1983), 116 Ill. App. 3d 736, 739, 452 N.E.2d 387, 389.

Section 11 of the Personnel Code prohibits the discharge of employees except “for cause.” (Ill. Rev. Stat. 1983, ch. 127, par. 63blll.) There is no statutory definition of “cause.” “Cause” has been judicially defined as “ ‘some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public policy recognize as good cause for his no longer holding the position.’ ” (Department of Mental Health & Developmental Disabilities v. Civil Service Com. (DuFrenne, appellant) (1981), 85 Ill. 2d 547, 551, 426 N.E.2d 885, 887.) As this court stated in Parkhill v. Illinois Civil Service Com. (1978), 58 Ill. App. 3d 291, 292, 374 N.E.2d 254, 256, such shortcoming need not be directly connected with the performance of the work; however, it must not be trivial, arbitrary, or unreasonable. The question of whether cause for discharge exists should be determined by the administrative agency (here, the Commission), and the agency’s decision as to cause will not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of service. Department of Mental Health & Developmental Disabilities v. Civil Service Com. (DuFrenne, appellant) (1981), 85 Ill. 2d 547, 426 N.E.2d 885.

With these general precepts in mind, we consider the facts which were before the Commission in rendering its determination on the issue of cause for discharge in this case.

In the case at bar, the first step is not controverted. The parties do not contest the findings of fact nor that the charges against Smock were proved. Hence, the second step of the analysis is the determinative issue in this case.

Smock supervised the Department’s driver facility in Hoopeston. During the requisite time period, the staff of the small facility included Mr. Bane from October 1974 through May 1979, Ms. Parsons beginning in May 1978, and Ms. Shore beginning in September 1974. Smock worked at the facility as an examiner beginning in 1974, and was promoted to the position of supervisor in June 1976. Smock also served as mayor of Hoopeston and chairman of the Vermilion County Democratic party.

On June 15, 1981, the Department initiated discharge proceedings against Smock following a 29-day suspension from May 19 to June 16, 1981. The charges (1) alleged operation of a city office from the Department’s facility during business hours, including installation of a city phone at the facility and conduct of political affairs there during business hours; (2) alleged operation of a political office from the Department’s facility during business hours, including installation of a political headquarters’ phone at the facility, conduct of political affairs and registration of voters there, attendance at political meetings on State time, and maintaining a political file at the facility; and (3) misuse of State employees in conducting city and political business on State time.

As no specific rules of conduct were placed in evidence, the hearing officer considered Smock’s alleged conduct as against general standards of reasonableness and the specific prohibitions of “An Act to define and regulate political activity by merit employees of the State and to repeal an Act herein named” (Act) (Ill. Rev. Stat. 1983, ch. 241/2, pars. 38s through 38v).

The hearing officer found that the evidence proved 12 allegations of the bill of particulars filed in support of the Department’s charges.

First, around December 21, 1979, a telephone line registered to the political party was installed in Smock’s office at the Department facility. This line was answered by State employees on State time per Smock’s instructions. (According to the testimony, employees were directed to answer this phone “Vermilion County Democratic chairman’s office.”) This phone line was removed around November 10, 1980. Second, around March 9, 1978, a phone line registered to the mayor’s office was installed in Smock’s office at the Department facility. Department employees answered this phone on State time at Smock’s direction. (According to the testimony, employees were directed to answer this phone “the Mayor’s office.”) This phone line was removed around April 22, 1981. Mr. Graves, Smock’s superior, testified the line was removed after he learned of its existence when Hoopeston police were picketing the Department facility. The hearing officer opined that installation of these phone lines went well beyond the realm of reasonableness in keeping personal business from interfering with that of the Department, and that Smock knew that he was not to use State employees to conduct personal business, as he had previously been disciplined for such conduct. Smock testified that he had previously been suspended for one week without pay for use of a State employee for non-Secretary of State business.

Third, from around May 3, 1977, until January 6, 1981, when removed by another employee, Smock maintained political files in the Department facility. The hearing officer found that the political files were maintained by Department employees at Smock’s order, and that a number of the documents, typed by facility employee Parsons, contained violations of the Act.

Fourth, with regard to a motorcycle purchased to be raffled for the benefit of the Vermilion County Democratic party, between May 30, 1980, and July 16, 1980, Smock sold, and ordered facility employees Shore and Parsons to sell, raffle tickets at the facility on State time for the benefit of the political party. The hearing officer found this was a clear violation of the Act.

Fifth, around Saturday, March 21, 1981, Smock ordered facility employee Shore to appear at his house to stuff envelopes with materials related to political or mayoral activity on State time. The hearing officer found that this amounted to a blatant abuse of authority and a violation of the Act.

Sixth, around April 19, 1981, Smock ordered facility employee Shore to handwrite a letter regarding a precinct committee meeting and make photocopies of it on State time. The hearing officer found that this was a clear violation of the Act.

Seventh, in April 1981, Smock sent a facility employee, Shore, to photocopy jingles to be used by political callers for the upcoming election. The hearing officer found this was abuse of authority over a subordinate.

Eighth, during the week of March 30, 1981, Smock ordered facility employees Shore and Parsons to write “Sorry I missed you” on the back of his political and mayoral brochures on State time at the facility. The hearing officer found that this was both an abuse of authority and a violation of the Act.

Ninth, Smock ordered facility employee Parsons to type political and mayoral material for him at the facility using State equipment and on State time, of which more than a dozen examples were placed into evidence. The hearing officer found this was an abuse of authority and that some of the documents were in violation of the Act.

Tenth, while at the facility and during office hours, Smock sold facility employee Shore a “silver card” dated 1979 for a $25 contribution to the Democratic party. The hearing officer found this was a violation of the Act.

Eleventh, around March 28, 1978, Smock ordered facility employee Shore, while at the facility and on State time, to prepare a list of Democratic precinct committeemen. The hearing officer found that Smock’s admission that he had asked Shore to prepare such a list on her “comp” time sufficiently substantiated Shore’s testimony so as to support Smock’s guilt of this allegation.

Twelfth, around October 7, 1980, Smock ordered facility employee Parsons to go to Shore’s home to process a voter registration on State time. The hearing officer found this appeared to be an improper use of a State employee.

In addition to the above, several facts as found by the hearing officer, whose findings were affirmed by the Commission, are noted. First, according to the testimony, it was not unusual for there to be periods of the day when no patrons were present at the facility, and usually personal and political activities were conducted during the slack periods. Second, Parsons testified she was specifically told that if anyone approached her desk, she should open a drawer and put all the political work she was doing in the drawer, so that no one was to see the political work that she was doing at the facility. Third, Shore testified that in 1978, when Parsons complained she was doing more political and personal work than Department work, and that Springfield would not know she was working at the facility, Smock told Shore to place Parsons’ employee number into the computer on about every fourth application to show Parsons as having processed such applications. Shore followed these instructions for a time, later stopping because she was afraid they would be caught if someone complained about a mistake on a driver’s license.

In addition, the testimony shows that when Smock was questioned about whether he sold Shore the “silver card” for the Democratic party at the facility, he answered “It could be and it could not. It was her job, too, so whether — whether she bought it on state time I don’t remember.”

On November 23, 1981, the hearing officer found that, in the acts proved, Smock had violated the standard of reasonableness in the conduct of his personal affairs vis-a-vis those of the Department, and/or the prohibitions of the Act, and that he had involved his subordinates in such activities. The hearing officer rejected Smock’s denial of having ordered the participation of subordinates in the activities, stating that a superior’s request is normally deemed to be an order. Further, the hearing officer noted an incident wherein Smock had apparently “made life miserable” for employee Parsons after her refusal to type a political letter for him.

The hearing officer concluded that Smock’s conduct shown in the record reflected (1) an unreasonable attempt to conduct personal and political business in conjunction "with his duties as a Department employee, and (2) coercion of subordinates to assist in these activities. The hearing officer ruled the activities both numerous and blatant enough to warrant Smock’s discharge.

In December 1981, the Commission remanded the cause to the hearing officer for a further hearing on the proposed penalty, which was conducted on December 29, 1981. According to the facts as found by the hearing officer, the daughter of facility employee Shore had worked at the facility for several days in December 1979 and January 1980 while the office was open to the public, stuffing envelopes and typing political campaign material. She received payment from the political organization through a check signed by Smock. Facility employees Parsons and Shore testified that during the 1980 judicial election period, after Smock failed to complete a candidate’s petition earlier, Smock directed them to sign the petition right- and left-handed with names he read from the telephone directory. Smock kept political funds in the facility safe, with employees depositing such funds to personal or political party bank accounts. Smock testified in his own behalf that he had had a small business in Hoopeston for about 28 years, had been acting postmaster for about SVz years, a sales tax investigator for about three years, and, for the past eight years, manager of the Hoopeston driver’s facility. He had served on the Vermilion County Board of Review for 11 years, was a member of the Jaycees and the Lions, president of the Danville Chamber of Commerce, and had served on the United Fund and March of Dimes committees as well as other activities. In addition, the testimony of area citizens was offered in Smock’s support. Smock had no recollection of the nominating petition which Parsons and Shore testified about.

Several additional matters of evidence are noted. First, the Department’s performance evaluations on Smock were received into evidence. The evaluations, which had been completed prior to the April 1981 discovery of the Hoopeston mayor’s office telephone line into Smock’s Department office, rated him as meeting or exceeding expectations in specified categories. (Performance reports of June 16, 1974, to January 8, 1975; January 8, 1975, to May 31, 1976; August 8, 1975, to October 1, 1977; October 1977 to June 1979; and October 1979 to June 12, 1980, wherein supervisor said Smock was “continuing to do a fine job.”) The last evaluation, covering the period from June 1980 to June 1981, not participated in by Smock, rated Smock for the first time as needing improvement in the categories of productivity, use of time, human relations, and leadership, as meeting expectations in other categories, and exceeding expectations in no category. Second, Mr. Graves, Smock’s Department supervisor, acknowledged that about four years earlier, the supervisor of the Pontiac facility had complained about an examiner working for the station who was mayor, where persons were coming in and calling in to see the examiner in his mayoral capacity. Graves had reported it to his office and the examiner had thereafter, apparently, been able to eliminate the interference of his mayoral function with his Department position. Asked whether he knew that the examiner had received a three-day suspension for employee abuse at the time of his conflict as mayor of Pontiac, Graves answered that he had not known it but his supervisor had made him aware of it. Third, we note the following exchange when Smock was questioned as an adverse witness:

“Q. And isn’t it a fact that whenever you were expecting a visit from [Department officials] from Springfield, you ordered the girls to clean up from public view any and all political or mayoral artifacts that were—
A. In the first place, I’d answer no because you have no way of knowing when anybody is coming. And as to your second question, it wasn’t only for that, it was for anybody. We went over that once before, too. That this is not to be out before the public, whether it be [a Department official] or John Doe that walked in the door. So it had no — it made no difference ***.”

The hearing officer, in a report of February 8, 1982, stated by way of analysis:

“The evidence presented by [Department] at the hearing on aggravation and mitigation indicated that [Smock] had used both the Secretary of State premises and Secretary of State employees for more political activities than those for which he was charged and found guilty. The evidence also tended to show that [Smock] made some attempt to prevent his superiors from knowing of these activities. The evidence garnered from all of the hearings proved that [Smock] had indeed turned the Hoopeston Drivers facility into a ‘mini’ political party headquarters.
Many upstanding citizens of the Hoopeston area testified for [Smock] in mitigation. They spoke highly of him as an individual and spoke highly of his civic concerns and activities. The Hearing Officer has no doubt that [Smock] is a fine member of the community and has nobly performed his civic duties. This does not mitigate his abuse of his position with the Secretary of State, and in no way excuses the activities which occurred at the facility under his supervision.”

The hearing officer noted that Smock had previously been issued a suspension for using a State employee for his personal business, and that most of the incidents of which Smock was found guilty involved illegal and unauthorized use of State employees. The hearing officer concluded that the magnitude and quantity of the proved offenses warranted discharge.

On March 9, 1982, the Commission met and found the charges proved, but split two-to-one on the appropriate penalty. The majority held that the charges warranted only a 90-day suspension in addition to that previously imposed by the Department, with the Commission’s chairman concluding that the charges warranted Smock’s discharge from his position with the Department.

On March 11, 1982, the Department filed this action in administrative review, seeking to reverse the Commission’s decision. On April 5, 1982, defendant Smock filed an answer and a counterclaim which was subsequently dismissed on May 7, 1982. After the filing of briefs and argument on March 7, 1983, the case was remanded to the Commission by a court order of March 11, 1983, so that the Commission could articulate the basis for its decision of March 9, 1982. On April 18, 1983, the Commission majority issued a modified decision, which inserted the following paragraph:

“Because there was no evidence of a poor work record, and [Smock] had an excellent group of character witnesses attesting to his value to the community, we determined that his good record should to some extent offset his wrongful conduct.”

This decision of the Commission was filed with the circuit court on June 15, 1983. After hearing argument on October 26, 1983, the court, by order filed October 31, 1983, found that the Commission’s action in ordering Smock suspended for a period of 90 days rather than ordering discharge was arbitrary, unreasonable, and unrelated to the requirements of service. The court, therefore, ordered Smock’s discharge from his employment with the Department.

On November 15, 1983, defendant Smock filed a motion to vacate the judgment order, or, in the alternative, requesting the court to enter an order staying enforcement of its discharge order pending appeal. On December 22, 1983, the trial court denied defendant’s motion to vacate the previous judgment, and stayed the judgment of dismissal pending Smock’s appeal. This appeal followed.

Defendant Smock maintains that the Commission’s decision to suspend rather than discharge him was not arbitrary, unreasonable, and unrelated to the requirements of service, as found by the circuit court, and it must be reinstated. (Secretary of State v. Kunz (1983), 116 Ill. App. 3d 736, 452 N.E.2d 387; Department of Mental Health & Developmental Disabilities v. Civil Service Com. (Mars, appellant) (1982), 103 Ill. App. 3d 954, 431 N.E.2d 1330.) He asserts that, although certain of his activities were clearly forbidden under law and the rules of the Secretary of State, since they would not have been unethical, immoral, illegal, or improper if performed outside the Department facility, they were not of such a nature as to make discharge the only appropriate penalty. He contends that facility customers were not inconvenienced or affected by his activities and, as the activities had no effect on service rendered at the facility, it cannot be said that his discharge is necessitated by the “requirements of service.” Similarly, he argues that the Commission’s decision to suspend rather than discharge him cannot be said to be arbitrary or capricious, as the record contains evidence supporting the analysis upon which this choice of penalty rested, i.e., a lack of poor work record, an excellent group of character witnesses, and the Commission’s determination that his good work record should to some extent offset his misconduct. He further claims that the fact that he violated the Act does not require his discharge, citing Kunz and DuFrenne. As additional authority in support of his position, defendant cites Department of Labor v. Chaney (1984), 122 Ill. App. 3d 197, 460 N.E.2d 820.

There is no significant contention that the charges were not proved. The standard of judicial review of administrative decisions in this category of cases and the issue presented here is whether the sanction of suspension imposed by the Commission is arbitrary, unreasonable, or unrelated to the needs of the service.

The employee, Smock, makes no claim that the sanction is arbitrary or unreasonable. Upon the argument of the Secretary that the sanction is unreasonable and unrelated to the needs of the service, we note that the two-to-one vote of the members of the Commission reflects differing views of the conduct of the employee and that each view has some support under the evidence of record.

Extensive examination of precedent in this State discloses no instances where there has been an ultimate judicial reversal of the order of the Civil Service Commission on the ground that the Commission had failed to impose the sanction of discharge. On the contrary, the precedent of judicial opinions discloses that decisions of the Commission to discharge have been reversed where the charges proved were “so trivial as to be unreasonable or arbitrary.” See Department of Mental Health & Developmental Disabilities v. Civil Service Com. (DuFrenne, appellant) (1980), 86 Ill. App. 3d 1072, 1074, 408 N.E.2d 775.

In the latter case, the employee was charged with the use of unnecessary force when he struck a patient of a mental hospital. The Commission noted the mitigating circumstances of extreme provocation and ordered the suspension of the employee. Under administrative review, the circuit court ruled that, as a matter of law, the conduct of the employee required his discharge. The appellate court affirmed the circuit court, but the supreme court reversed the judicial orders, noting that the Commission had found the employee’s performance to be satisfactory prior to the conduct which was charged, and the Commission had further found that under such circumstances, the conduct did not show sufficient cause for discharge, with the result that the supreme court could not say that the sanction was unreasonable, arbitrary, or unrelated to the needs of the service.

The legislature has placed the function of the discipline of State employees in the administrative department, both as to establishing the standards and requirements of the service, and as to the sanctions imposed when violations are found. The courts have no role as a superior commission, and the question of whether cause for discharge exists is to be determined by the administrative agency. In Department of Mental Health & Developmental Disabilities v. Civil Service Com. (DuFrenne, appellant) (1981), 85 Ill. 2d 547, 552, 426 N.E.2d 885, 887, the opinion expressly stated:

“We therefore hold that the agency’s decision as to cause will not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of service.”

In Department of Labor v. Chaney (1984), 122 Ill. App. 3d 197, 460 N.E.2d 820, the employee was charged with receiving unauthorized unemployment benefits. Upon hearing of the charges, the Commission ordered suspension of the employee. The trial court reversed the order of the Commission and ordered discharge. The appellate court reversed the trial court and affirmed the Commission’s order of suspension. That opinion concluded that the finding of the Commission that there had been an uneven application of an unwritten departmental policy “[so that the court could not] say that the Commission, in opting for a 90-day suspension rather than discharge, acted unreasonably or arbitrarily, or selected a type of discipline unrelated to the needs of the service.” Department of Labor v. Chaney (1984), 122 Ill. App. 3d 197, 203, 460 N.E.2d 820, 823.

In Secretary of State v. Kunz (1983), 116 Ill. App. 3d 736, 452 N.E.2d 387, there was proof of charges that the supervisor of a driver license facility had slept during the business hours and violated certain regulations of the department. The Commission ordered the sanction of suspension and upon administrative review, the circuit court affirmed the Commission. The appellate court affirmed the circuit court, pointing out that under the Administrative Review Act, it was not the function of the judiciary to conduct a trial de novo or to substitute its judgment for that of the administrative agency in determining the proper sanction. Pointing out the deference which the courts accorded the sanction imposed administratively the opinion stated:

“In a broad sense, it is the civil counterpart of the deference which a reviewing court must pay to a trial court’s criminal sentence. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.” 116 Ill. App. 3d 736, 739, 452 N.E.2d 387, 390.

Here, as is shown by the divided vote of the members of the Commission, views as to the proper sanction for the employee conduct may differ. There was an administrative conclusion of mitigating circumstances that Smock’s work record was well regarded in his department and there was administrative recognition of the employee’s desirable public standing within the community. However the merits of the conclusion of the majority of the Commission may be viewed, this court cannot say from this record that the order of the Commission is arbitrary, unreasonable, and unrelated to the needs of the service.
For the reasons stated, the order, of the circuit court which reversed the order of the Commission is reversed; the order of the Commission is affirmed; and the cause is remanded to the Commission.

Reversed; remanded to the Commission.

MILLS, J.,

concurs.

PRESIDING JUSTICE GREEN,

dissenting:

I conclude that the “requirements of the service” necessitate that the employee be discharged. Accordingly, I would affirm the decision of the circuit court.

The violations were severe and of a nature that are likely to be committed, as here, by an able person of excellent character who is also very loyal to his or her political party organization. If the admirable qualities of the offender are permitted to have substantial mitigating weight, it will be difficult to deter similar conduct. Where the conduct has continued after reprimand, the employing State agency should be permitted, as a matter of law, to discharge the employee.