author: PRESIDING JUSTICE McNAMARA

text:
    LILO FRANKENTHAL, Adm'x of the Estate of Harry J. Frankenthal, Deceased, Plaintiff-Appellant and Cross-Appellee, v. GRAND TRUNK WESTERN RAILROAD COMPANY et al., Defendants-Appellees—(Grand Trunk Western Railroad Company, Defendant and Cross-Appellant).
    First District (3rd Division)
    No. 82—2139
    Opinion filed December 14, 1983.

      Leonard Ring and Associates, of Chicago (Leonard M. Ring and Judith E. Fors, of counsel), for appellant.
    James R. Gannon and Paul V. Esposito, both of Chicago (Lewis, Over-beck & Furman, of counsel), for appellees.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff brought this action against defendants Grand Trunk Western Railroad Company and Bruce McTague, its engineer, seeking to recover for the death of her husband following a train collision with decedent’s automobile. A jury returned a verdict in favor of defendant McTague. It also returned a verdict in favor of plaintiff against Grand Trunk in the amount of $100,000 but reduced that amount to $5,000 on its finding that the decedent was 95% at fault and Grand Trunk was 5% at fault. The trial court denied post-trial motions and entered judgments on the verdicts. On appeal plaintiff contends that the trial court committed reversible error in excluding testimony of decedent’s careful habits and in instructing the jury. She also contends that the judgments in favor of McTague and finding decedent 95% at fault are against the manifest weight of the evidence. Grand Trunk has filed a cross-appeal contending that the trial court erred in not directing a verdict in its favor or in not granting its motion for judgment notwithstanding the verdict, in denying its motion to strike the testimony of plaintiff’s medical expert, and in instructing the jury. Grand Trunk also contends that plaintiff’s action under the survival act is barred by the statute of limitations.

The accident occurred at South Park Avenue in South Holland, Illinois. South Park is a four-lane road which runs north and south and is intersected by two Grand Trunk railroad tracks. The tracks are at a slight angle from southeast to northwest. The northern set of tracks handles westbound train traffic and the southern set of tracks handles eastbound train traffic. As a train approaches proceeding westbound, it rounds a curve. The track is then straight for approximately a mile and a quarter before the South Park intersection and straight for approximately one-third to one-half mile after the intersection. About one-quarter mile east of South Park is a railroad crossing at 167th Street. To the west of South Park is the Thornton Junction where the Grand Trunk tracks are intersected by tracks of another railroad.

The South Park crossing is surrounded by both commercial and residential property. As a vehicle approaches heading north, the visibility to the right is reduced by trees and homes along the track. The crossing is protected by gates with flashing lights and cantilevered lights. Also posted are signs indicating a railroad crossing and that there are two sets of tracks. The gates and lights are activated as the trains move over an electrical circuit some distance before the crossing. There is no dispute that on the day of the accident the gates had lowered and the lights were flashing at the South Park crossing.

Grand Trunk’s passenger train 155, involved in the occurrence, originated in Port Huron, Michigan. With McTague as engineer, the train proceeded to Chicago. It approached South Park at about 8 a.m. on January 26, 1971. The train was traveling at 79 miles per hour but McTague started service reduction of the automatic brakes before reaching South Park in order to slow the train to 60 miles per hour when it reached the Thornton Junction. Just prior to the collision the train was traveling approximately 73 miles per hour.

Decedent left his home shortly before 8 a.m. and drove north on South Park Avenue. According to Bob Worthington, the train fireman, decedent’s automobile approached the crossing at about 30 to 40 miles per hour without stopping. Worthington also noticed a freight train coming east on the other set of tracks. As decedent drove around the lowered warning gates and across the tracks, Worthington yelled at McTague to apply the emergency brakes.

Nancy Hendrickson, the driver of a southbound automobile on South Park, saw the decedent’s vehicle on the tracks only an instant before it was struck by the train. She testified that the gates at South Park were frequently lowered for long periods of time without a train crossing. On the morning of the accident, before decedent went around the gates, she saw three or four other vehicles go around the gates during approximately a 10-minute wait. As decedent drove across, his automobile was struck in the right rear and thrown into the southbound lane of traffic, breaking the gate and striking Hen-drickson’s automobile.

Decedent suffered serious injuries requiring 50 days of hospitalization. He died 20 days after his release from the hospital.

On appeal plaintiff initially contends that the trial court erred in refusing to admit testimony regarding the careful habits of the decedent. We do not agree.

In excluding such testimony, the trial court properly relied on the long-accepted principle that careful habits testimony is allowed to establish decedent’s due care prior to the accident only when there are no eyewitnesses to the occurrence. (Newell v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1914), 261 Ill. 505, 104 N.E. 223; Lo-bravico v. Checker Taxi Co. (1967), 84 Ill. App. 2d 20, 228 N.E.2d 196.) In the present case, two eyewitnesses, Hendrickson and Worthington, observed the occurrence. While Hendrickson’s testimony related only to an instant before the collision and thereafter, Worthington’s testimony described the events leading up to and following the collision. Plaintiff argues, however, that Worthington’s testimony was impeached and was unworthy of belief. Our review of the record does not reveal that his testimony was impeached. Moreover, merely because Worthington’s credibility was attacked does not in itself justify the use of careful habits testimony. (Petro v. Hines (1921), 299 Ill. 236, 132 N.E. 462.) A holding that careful habits testimony would be admissible any time the credibility of the eyewitness was challenged, as plaintiff argues, would obliterate the rule holding such testimony generally not admissible. The trial court correctly excluded the careful habits testimony.

Plaintiff next argues that the trial court erred in giving certain defendants’ instructions to the jury and in refusing to give certain instructions tendered by her.

Defendants’ instruction No. 4, Elinois Pattern Jury Instruction (IPI), Civil, No. 73.01 (2d ed. 1971), given to the jury over plaintiff’s objection, is as follows:

“A railroad crossing is a place of danger. If you believe from the evidence that as the decedent was approaching the crossing he knew, or, in the exercise of ordinary care should have known, that a train approaching the crossing was so close to the crossing that it would be likely to arrive at the crossing at about the same time as the decedent’s vehicle, then it was the duty of the decedent to yield the right of way to the train.”

The committee notes on use advise that this instruction should not be given in cases where the automatic gates were up or the flashing lights were not operating at the time of the accident. Plaintiff contends that since the gates and signals at the South Park crossing were frequently lowered for long periods of time when no trains were approaching, the crossing was defective and that thus the instruction was improperly given to the jury.

It is undisputed that at the time of this accident when the decedent approached the crossing, the gates were lowered and the lights were flashing. The safety devices operated exactly as they were intended and were not defective. The purpose of crossing gates is to warn of a train’s approach. (Langston v. Chicago & North Western Ry. Co. (1947), 398 Ill. 248, 75 N.E.2d 363.) While evidence that the gates lower when trains were not crossing was admissible as bearing on decedent’s state of mind and conduct, that evidence did not negate decedent’s duty to exercise ordinary care and to yield the right of way to the train. Defendants’ instruction No. 4 correctly stated the principles applicable to the present case and the trial court properly gave the instruction to the jury.

Plaintiff also contends that the trial court erred in giving defendants’ instruction No. 10, IPI Civil No. 60.01. The instruction incorporated a section of the Illinois Rules of the Road (Ill. Rev. Stat. 1979, ch. 95V2, par. 11 — 1201), and set forth a motorist’s duty to stop at railroad crossings.

In the trial court, plaintiff objected to the instruction on the ground that the crossing was defective. On appeal, she contends that a judicial modification has been placed on the statute insofar as the failure to look and listen before proceeding may be excused by the surrounding circumstances; in this case, the fact that the gates sometimes lowered when no train was imminent. (See Langston v. Chicago & Northwestern Ry. Co. (1947), 330 Ill. App. 260, 70 N.E.2d 852.) Plaintiff further argues that the jury could have incorrectly believed that there were no circumstances under which a vehicle could proceed under a lowered crossing gate.

Objections to instructions must be specific. (87 Ill. 2d R. 239(b); Bean v. Norfolk & Western Ry. Co. (1980), 84 Ill. App. 3d 395, 405 N.E.2d 418.) In addition, where the party complains an instruction was not given which should have been, he must tender a proper instruction or the objection is waived. (87 Ill. 2d R. 366(b)(2)(i); Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 385 N.E.2d 664.) Plaintiff did not tender an instruction incorporating what she believed was a judicial modification of the statute, and she has waived any objection.

Plaintiff next contends that the trial court erred in refusing to give the jury her instruction No. 8, based on IPI Civil No. 5.01, which concerns the inference which may be drawn from the failure to produce evidence. Plaintiff tendered this instruction because defendants did not produce a Grand Trunk timetable which specified speed limits for its trains.

Worthington testified that the train speed of 79 miles per hour was permitted under the timetable. There was no evidence that

the timetable would have contradicted the direct testimony, and the court properly refused to give the instruction. Feigl v. Terminal R.R. Association (1975), 30 Ill. App. 3d 55, 332 N.E.2d 416.

Plaintiff further contends that the court erred in refusing to give plaintiff’s instruction No. 30. The instruction incorporated certain portions of section 14 of “An Act in relation to fencing and operating railroads” (Ill. Rev. Stat. 1969, ch. 114, par. 70). The statute dealt with obstruction of railroad crossings.

Section 14, at the time of the present accident, applied only to trains which were stopped at a crossing. (See People v. Indiana Harbor Belt R.R. Co. (1981), 102 Ill. App. 3d 811, 430 N.E.2d 104.) The trial court properly refused to extend the statute to the facts of this case, and there was no error in refusing to give plaintiff’s instruction No. 30.

Plaintiff next contends that the jury verdict in favor of defendant Bruce McTague, the engineer, is against the manifest weight of the evidence. At trial, plaintiff maintained that McTague negligently operated the train at a dangerous rate of speed under the prevailing conditions. Those conditions included the facts that the crossing gates were defective, that the surrounding area was commercial and residential, and that the accident occurred during the morning rush hour when more traffic was present.

A verdict is not against the manifest weight of the evidence unless it is palpably erroneous and wholly unwarranted. (Kern v. Uregas Service of West Frankfort, Inc. (1980), 90 Ill. App. 3d 182, 412 N.E.2d 1037.) On appeal, the court will examine the record to determine a basis upon which the verdict can be supported. (Slowik v. Schrack (1979), 77 Ill. App. 3d 42, 395 N.E.2d 753.) The court will not substitute its judgment for that of the jury unless the evidence favoring the opposite conclusion is clearly evident. DePaepe v. Walter (1979), 68 Ill. App. 3d 757, 386 N.E.2d 875.

The law does not impose a specific speed limit for trains. In the interest of rapid, efficient train service, trains may be operated at speeds which are consistent with a due regard for the safety of passengers and the safety of persons passing over railroad tracks. (Pro-venzano v. Illinois Central R.R. Co. (1934), 357 Ill. 192, 191 N.E. 287.) McTague had the right to assume that motorists approaching the tracks would exercise due care for their own safety. Provenzano v. Illinois Central R.R. Co.

The record amply supports the jury’s verdict in favor of McTague. Worthington testified that McTague .was complying with the speed limits set by Grand Trunk and that he immediately applied the emergency brake when Worthington called out a warning. The jury heard testimony that the gates were lowered and the lights were flashing to warn of an approaching train. The verdict in favor of McTague is not against the manifest weight of the evidence.

Plaintiff finally contends that the verdict finding decedent 95% at fault and Grand Trunk 5% at fault is against the manifest weight of the evidence. Our review of the record and the courts’ reluctance to disturb a jury verdict absent a finding that it is wholly unwarranted require us to uphold the verdict.

Plaintiff points out that since the jury found in favor of McTague its verdict against Grand Trunk had to be based on a finding that Grand Trunk negligently maintained the South Park crossing. Plaintiff presented evidence indicating that Grand Trunk had been notified its trains waiting to enter the train yards were causing the crossing gates to lower unnecessarily for long periods of time and causing motorists to go around the lowered gates. Plaintiff thus argues that Grand Trunk’s conduct was as equally responsible, if not more, as that of decedent. This argument overlooks other evidence presented to the jury. The jury heard testimony that the gates were lowered and the lights were flashing at the time of the accident, that the train’s bell, whistle and light were activated, that decedent passed several stopped vehicles, that he did not stop at the crossing, that the train tracks were straight for over a mile to the east of the crossing, that a driver’s view was partially obstructed, that approximately 35 trains passed that crossing every day, and that the day in question was cool and clear. Based on these facts, the jury could reasonably find that decedent was almost entirely responsible for the accident.

We turn now to a consideration of Grand Trunk’s cross-appeal. We consider first Grand Trunk’s contention that plaintiff’s survival action is barred by the statute of limitations.

We are asked to decide whether an amendment to the pleadings in a case refiled pursuant to section 24 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 24a), relates back to the date of the original filing or the date of refiling. Grand Trunk asserts that the amendment relates back to the refiling, and that the survival action, which is the subject of the amendment, is not timely. Plaintiff urges that the amendment relates back to the original filing in 1972.

Plaintiff’s 1972 complaint alleged a cause of action for wrongful death. In 1974, our supreme court recognized that a cause of action for injuries survives even though the decedent died as a result of those injuries. (Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 308 N.E.2d 583.) Plaintiff’s suit was dismissed for want of prosecution in 1977 and was refiled within one year. The refiled complaint incorporated a new claim under the survival act (Ill. Rev. Stat. 1969, ch. 3, par. 339), as interpreted in Murphy, for damages suffered from January 26, 1971, the date of the accident, until April 4, 1971, the date of decedent’s death. Defendant argues that the amendment relates back to the 1977 filing and that since it was not filed within two years of the Murphy decision, it is barred. For purposes of this appeal, the new count is taken as an amendment.

Initially, we reject plaintiff’s argument that Grand Trunk has waived the issue. The record discloses that the trial court considered the statute of limitations defense at the close of plaintiff’s case and at the hearing on the post-trial motion. The issue was preserved for appeal.

Section 24 of the Limitations Act provides:

“In the actions specified in this Act or any other act or contract where the time for commencing an action is limited, if *** the action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff, his heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after *** the action is dismissed for want of prosecution.” (Ill. Rev. Stat. 1977, ch. 83, par. 24a.)

Section 24 allows the plaintiff to refile the identical cause of action. (Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480.) Grand Trunk argues that the new action is separate and distinct from the first filing and plaintiff may not use section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616), to “jump lawsuits.”

Section 2 — 616(b) allows a party to amend pleadings and include a cause of action which grew out of the same transaction or occurrence in the original pleadings. The cause of action to be added by amendment must have been timely when the original complaint was filed. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616(b).) Both section 24 and section 2 — 616 are remedial in nature and should be construed liberally. (Roth v. Northern Assurance Co. (1964), 32 Ill. 2d 40, 203 N.E.2d 415; Kristan v. Belmont Community Hospital (1977), 51 Ill. App. 3d 523, 366 N.E.2d 1068.) The purpose of section 2 — 616 is to prevent a party from losing a cause of action due to technicalities. Wilfong v. W.A. Schickedanz Agency, Inc. (1980), 85 Ill. App. 3d 333, 406 N.E.2d 828.

Clearly, if the suit had not been dismissed and refiled, the trial court could have permitted plaintiff to amend her complaint to include the survival action. The amendment arises out of the same train accident and Grand Trunk was afforded a sufficient opportunity to investigate the circumstances upon which plaintiff was attempting to impose liability. (Cain v. New York Central R.R. Co. (1962), 35 Ill. App. 2d 333, 182 N.E.2d 910.) Plaintiff should not be penalized for availing herself of the provisions of section 24. Where Grand Trunk had knowledge of the transaction and the amendment arises out of that transaction, the purposes of section 2 — 616 are met. We hold that an amendment to the pleadings relates back to the original filing where the suit had been dismissed and refiled in accordance with section 24.

Grand Trunk also contends that the trial court erred in denying its motion to strike the plaintiffs allegations of negligence, denying its motion for a directed verdict, and denying its motion for judgment notwithstanding the verdict.

The standard for judgments n.o.v. and directed verdicts was set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504. Judgments should be entered or verdicts directed only where “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” 37 Ill. 2d 494, 510, 229 N.E.2d 504.

Defendant argues that the verdict in favor of McTague indicates that the finding against Grand Trunk must be based on the allegation that Grand Trunk negligently maintained the crossing. From this it follows, according to Grand Trunk, that the jury improperly considered evidence that the crossing gates lowered at some prior occasion when no trains were approaching and that Grand Trunk cannot be found negligent because the crossing gates properly operated on the day of the accident. We hold, however, that the verdict in favor of McTague does not preclude a finding of negligence against Grand Trunk in establishing a 79 mile-per-hour speed limit for its trains. When the evidence is viewed most favorable to plaintiff, the jury verdict against Grand Trunk is amply supported by the record.

Grand Trunk next contends that the trial court erred in refusing to strike the testimony of Dr. Miesz regarding the cause of decedent’s death.

Decedent had suffered a heart attack in 1953, and he had a 12-year history of arteriosclerotic disease. He was hospitalized for 50 days after the accident and died suddenly 20 days later after complaining that he was not feeling well. The death certificate listed the immediate cause of death as a myocardial infarction caused by coronary arteriosclerotic heart disease.

The testimony of a medical expert need not be based on absolute certainty, but only a reasonable degree of medical and scientific certainty. (Nowicki v. Union Starch & Refining Co. (1971), 1 Ill. App. 3d 92, 272 N.E.2d 674; Redmon v. Sooter (1971), 1 Ill. App. 3d 406, 274 N.E.2d 200.) An expert is not permitted to guess or speculate. Simon v. Lumbermens Mutual Casualty Co. (1977), 53 Ill. App. 3d 380, 368 N.E.2d 344.

Dr. Miesz gave his opinion, based upon a reasonable degree of medical and surgical certainty, that the accident was causally related to decedent’s death. He stated that because of a lack of an autopsy, he had to deduce or speculate as to the immediate cause of death, but that it was a medical probability that but for the accident, that which was the immediate cause of death would not have occurred. The doctor’s testimony was sufficient to remove his opinion from the range of mere conjecture and speculation. The trial court properly denied Grand Trunk’s motion to strike the doctor’s testimony regarding the cause of decedent’s death.

We conclude that plaintiff was entitled to recover from Grand Trunk on her negligence count and that plaintiff presented sufficient evidence as to the causal relationship between the accident and decedent’s death. Thus, we reject Grand Trunk’s contention that the trial court erred in instructing the jury according to plaintiff’s instruction No. 21, IPI Civil No. 31.04, relating to the damages suffered by plaintiff.

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

Judgment affirmed.

WHITE and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEAN DeSAVIEU, Defendant-Appellant.
    First District (5th Division)
    No. 81—2694
    Opinion filed December 9, 1983.
    Rehearingdenied January 11, 1984.

      Steven Clark and Bradley Bridge, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and James J. Bigoness, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Following a jury trial, defendant was convicted of murder and sentenced to a term of 40 years. On appeal, he contends that (1) the trial court should have instructed the jury, sua sponte, on voluntary manslaughter; (2) his conviction should be reduced to voluntary manslaughter; (3) he was denied his right to a fair and impartial jury when the court refused to ask the supplemental questions he submitted for voir dire examination; (4) he was deprived of his rights to be present at all stages of trial and to effectively communicate with counsel when he was prevented from seeing the juror cards; (5) he was denied his sixth amendment right to confront witnesses against him when he was prevented from (a) cross-examining a crucial State witness regarding his prior conviction and current use of drugs and (b) impeaching that witness with evidence of a motive to testify falsely; (6) prosecutorial misconduct before the grand jury deprived him of due process; (7) he was denied a fair trial as a result of the prosecutor’s (a) introduction of irrelevant and prejudicial evidence concerning decedent’s family and occupation, (b) improper references to decedent as “the victim” and (c) repeated misstatements of law; and (8) the trial court’s refusal to consider his claim of self-defense as a factor in mitigation resulted in an excessive sentence.

Robert Dean, a long-time friend of both decedent and defendant, testified that after leaving a bar he and defendant walked to the 35th Street “L” station. While they were waiting for a train, Raymond Johnson joined them and an argument ensued between defendant and Johnson during which the two men grabbed each other and began to wrestle. In the struggle, defendant was pushed by Johnson and fell onto the train tracks where, without engaging in further discussion, he drew a pistol and fired at Johnson, who was standing about 10 feet from the edge of the platform. As Johnson fell backward, defendant jumped onto the platform and fired two more shots at him. Johnson then tried to tackle defendant and he was shot again, after which defendant left the station. Approximately 45 seconds later, a train arrived. Dean admitted that prior to making a statement to the police he had a conversation with decedent’s brother, John Johnson, a county law enforcement officer, but denied that he was threatened or that he had testified at the grand jury hearing because of any such threat. Dean also denied that decedent had prevented defendant from getting up from the tracks or that defendant had asked whether Johnson was serious about threatening to keep him (defendant) on the tracks.

Douglas Grier testified that while waiting for a train at the 35th Street “L” station, he saw defendant and decedent “tussling.” In the struggle, defendant was knocked off the platform onto the tracks, where he drew a gun and fired at Johnson who was standing a few feet from the edge of the platform trying to talk to defendant. After hearing a shot and a “click,” Grier saw Johnson spin around and fall down. Defendant then climbed on the platform, walked toward Johnson, and kicked him. After the two men resumed “tussling,” Grier heard two more shots and saw Johnson fall again. As defendant left the station, a train arrived. Grier stated that defendant fired slightly upward from his position on the tracks and that Johnson was standing at least two, but not 10, feet from the edge of the platform.

Dr. Mitra Kalelkar testified that Johnson sustained two gunshot wounds, either of which could have been fatal. One bullet entered decedent’s lower abdomen and the other entered the back of his neck; each coursed slightly downward. Dr. Kalelkar noted that decedent also had a small abrasion on his forehead. The doctor stated that a downward abdominal wound would not be caused by a bullet fired upward from a distance of three to four feet if the victim was standing upright, but that it was possible that decedent wás stooped over when he was shot in the abdomen and that any hard part of his clothing, such as a pants zipper, could affect the course of the bullet. In any event, she could not exactly state from the wounds the position Johnson had been standing in at the time he was shot in the abdomen.

Officer Petak testified that on June 12, 1980, at the police station, Dean said he knew who had shot Raymond Johnson and that, upon Dean’s request, he (Petak) called decedent’s brother John because Dean said he feared defendant and would say nothing else until John was present.

Defendant, who had previously been convicted of armed robbery, aggravated battery, and attempted armed robbery, testified that after leaving a bar where he drank only one-half a glass of beer, he went to the 35th Street “L” station. He met Dean there and, as they waited for a train, Johnson approached and asked him (defendant) to buy a dance ticket. When he refused, Johnson — who appeared drunk — began to call him names. As he started to walk away, Johnson grabbed him, pushed him against a partition, and punched him. He slipped and fell with his back toward Johnson, who then hit him in the side of the face and pushed him onto the train tracks. Johnson then assumed a wrestler’s stance, crouching over with his hands extended, less than one foot from the edge of the platform. He (defendant) looked down the tracks and saw a train approaching. He told Johnson that a train was coming, and Johnson replied, “I’m a fireman. I save lives. It’s about time I take one.” Defendant then asked Dean, who was nearby on the platform, whether Johnson was serious, and Dean replied, “Serious as cancer.” He drew his gun and asked Johnson to back up because the train was coming. When Johnson would not move, he fired at him but the gun misfired. He fired a second shot, and Johnson stumbled backward but did not fall down. He then placed the gun in his coat pocket and climbed back onto the platform and, when Johnson lunged at him, he struck him with the gun. Johnson lunged once more, and he fired the gun again attempting to shoot Johnson in the buttocks but the bullet struck him in the back of the neck. Johnson continued to struggle, and he shot him once more — after which, with Dean’s assistance, he propped Johnson up near the pillar. The train then arrived and he left the station, boarded a bus, and went home. Defendant stated also that while on the tracks he was in fear for his life because after Johnson refused to allow him back on the platform he saw the lights of an oncoming train and realized that the electrified third rail and the traffic-filled Dan Ryan Expressway were behind him.

After his arrest five days later, defendant made a statement to an assistant State’s Attorney. Later, at the station, Dean told him (defendant) that John Johnson, Officer Petak, and other police officers “got him in the police station and told him things he was going to have to say, or that he would be charged.”

Defendant admitted that he disassembled his gun and threw it in Lake Michigan; that he knew the trains would stop at every station at that time of night; and that at the time of his arrest he told Officer Petak that he knew nothing about the killing, but that subsequently he told Petak what had occurred. In rebuttal, Petak testified that defendant had not mentioned seeing the lights of an oncoming train or that, after firing the first shot at Johnson, he put the gun into his coat pocket.

Opinion

We first consider defendant’s contention that the trial court erred by failing to instruct the jury, sua sponte, on voluntary manslaughter. The jury was instructed as to self-defense; and defendant concedes that against the advice of his counsel, he expressly directed him not to tender a manslaughter instruction and that he signed a waiver form to that effect. However, he now argues that the court should have submitted that instruction on its own initiative, over his objections. We disagree.

We believe that People v. Taylor (1967), 36 Ill. 2d 483, 224 N.E.2d 266, is dispositive of this issue. There, it was held that the trial court’s failure to give a manslaughter instruction where none was tendered cannot be asserted as a ground for reversal on review. The court stated, “it was not the duty of the [trial] court to submit issues and questions to the jury which the parties, by their action, said they did not desire passed upon.” (36 Ill. 2d 483, 488, 224 N.E.2d 266, 269.) In People v. Lewis (1981), 97 Ill. App. 3d 982, 423 N.E.2d 1157, relying on Taylor, we made the same ruling, and we also noted that the decision by counsel as to whether a manslaughter instruction should be submitted is a tactical one involving various strategy considerations which would militate against imposing a duty to instruct the jury sua sponte.

Turning then to defendant’s further argument that the trial court failed to determine whether his waiver was knowingly and intelligently made, we note that the trial court was informed by defendant’s counsel that he had prepared a manslaughter instruction but that defendant refused to allow him to tender it. Additionally, it appears that counsel presented a waiver signed by defendant to that effect. Defendant does not deny that he told his counsel not to present the instruction nor does he deny that he signed the waiver. We believe, under these circumstances, that there was a knowing and intelligent waiver by defendant.

Defendant alternatively contends that his conviction should be reduced from murder to voluntary manslaughter, maintaining that the evidence shows, at most, that the killing was the result of either a mutual struggle or his unreasonable belief that self-defense was necessary. However, it appears to us that there was ample evidence to support the murder conviction. Defendant testified that after he climbed back onto the platform, Johnson lunged at him and attempted to throw him back onto the tracks; that Johnson was stronger and larger; and that it was in the course of his attempt to repel Johnson’s attack that he shot him again. However, the testimony of other witnesses is contradictory. Dean stated that defendant jumped back onto the platform and, with gun in hand, pursued and shot at Johnson who was behind a pillar, and Grier stated that Johnson had been disabled from the first shot and that it was defendant who then kicked him and renewed the struggle. Furthermore, defendant’s claim that he was weakened by a recent illness is uncorroborated, and the evidence indicates that he and Johnson were close in size and weight. Moreover, defendant’s assertion that he was in fear for his life because he saw an approaching train is overcome by testimony of Grier, that defendant did not look left or right as he stood on the tracks; of Dean, that defendant did not attempt to remount the platform before he shot Johnson; and of both Grier and Dean, that defendant had left the platform before the train arrived. The credibility of witnesses and the weight to be given their testimony is a matter for the trier of fact, and we will not substitute our judgment where there is evidence which supports their findings. People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631.

Defendant next contends that the trial court’s refusal to ask the supplemental questions he had submitted for voir dire examination prevented him from ascertaining the potential biases and prejudices of prospective jurors. He argues that this was a denial of his constitutional right to an impartial jury which requires reversal of his conviction. We disagree.

It is well settled that although a litigant is entitled to a trial by an impartial jury (People v. Jackson (1977), 69 Ill. 2d 252, 371 N.E.2d 602, there is nothing in the constitutional guarantee of this right which prevents reasonable regulation of the manner in which jurors are selected (People v. Lobb (1959), 17 Ill. 2d 287). The plain language of Supreme Court Rule 234 which governs voir dire examination provides, in pertinent part:

“The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate ***. Questions shall not directly or indirectly concern matters of law or instructions.” (Emphasis added.) 87 Ill. 2d R. 234.

This rule was amended in 1975 to emphasize the duty of the court to manage the voir dire process (see Ill. Ann. Stat., ch. 110A, par. 234, Committee Comments, at 178 (Smith-Hurd 1981 Supp.)) and departs from the former rule which gave the parties the right to supplement the judge’s examination (see Ill. Ann. Stat., ch. 110A, par. 234, Supplement to Historical & Practice Notes, at 178 (Smith-Hurd 1981 Supp.).) Thus, the decision concerning supplemental questions is within the discretion of the trial court (People v. Barnes (1982), 107 Ill. App. 3d 262, 437 N.E.2d 848), and so long as it exercises its power with reasonable regard for the rights of the accused, it fulfills the requirements of the law (People v. Phillips (1981), 99 Ill. App. 3d 362, 425 N.E.2d 1040). While there is no precise formula for determining whether a juror possesses the requisite impartiality, the standard for evaluating the court’s exercise of discretion “ “*** is whether the means employed to test impartiality have created “a reasonable assurance that prejudice would be discovered, if present.” ’ ” People v. Washington (1982), 104 Ill. App. 3d 386, 390, 432 N.E.2d 1020,1024.

Here, defense counsel submitted 10 supplemental questions, eight of which probed the attitude of the jurors toward the concept of self-defense and their possible prejudice against defendant because of his prior convictions. The trial judge rejected these questions because they concerned matters of law about which the jury would be instructed, but he did ask a modified version of counsel’s two remaining questions regarding potential bias against defendant if the evidence showed he was carrying a gun at the time of the homicide, and several jurors who expressed such prejudice were excused by the court. In addition, the jurors were asked numerous questions concerning their backgrounds, families, occupations, associations, and experiences, and whether they could be impartial and follow the law as instructed. Each juror was also given an opportunity to staté any reason why he or she could not be fair.

It is our view that the court conducted a thorough voir dire examination which afforded defendant ample opportunity to discover any biases the jurors may have had, and that the court properly exercised its discretion in refusing to pose the specific supplemental questions submitted.

With respect to the jury selection process, defendant also contends that his constitutional right to be present at all stages of trial requires that he be able to effectively communicate with counsel, which he could not do because he was precluded from seeing the biographical juror cards. However, no request was made that he be shown the cards, but in a sidebar conference during voir dire examination, the prosecutor asked the court “whether you want the defendant to see the cards.” Before any response was made, defense counsel said, “I wouldn’t let him see the cards *** I never let the defendant see the cards.” Thus, while the cards were made available to defendant’s counsel, it appears that they were not shown to defendant solely because his counsel did not want him to see them. Such circumstances require us to reject defendant’s contention.

Defendant also asserts that he was deprived of his sixth amendment right to confront witnesses against him by the restriction of his cross-examination of State’s witness Dean regarding his past plea of guilty to possession of heroin and his current drug usage.

Although confrontation of witnesses through cross-examination is a matter of right (People v. Pizzi (1981), 94 Ill. App. 3d 415, 418 N.E.2d 1024), the latitude to be afforded in such examination is a matter largely within the discretion of the trial court (People v. Vanda (1982), 111 Ill. App. 3d 551, 444 N.E.2d 609), and, absent a clear abuse thereof resulting in manifest prejudice to defendant (People v. Jones (1979), 70 Ill. App. 3d 338, 387 N.E.2d 1010), the trial court’s determination will not be disturbed on appeal (People v. Brown (1980), 91 Ill. App. 3d 582, 414 N.E.2d 1165).

When the State moved to exclude evidence of Dean’s criminal background, the following exchange took place:

“DEFENSE COUNSEL: Since this is the first time I heard of it [Dean’s guilty plea], I hadn’t planned on putting it in my cross examination *** I will leave it to Your Honor’s disgression [sic].
THE COURT: What do you have to say, if anything, relative to your being informed of this at this time?
DEFENSE COUNSEL: Well, the only thing I could say, Judge is that this is a little bit of a surprise but not a surprise that will hinder me in any great way in my cross-examination.”

This colloquy establishes that defendant’s attorney acknowledged the trial court’s discretion and, without further discussion, acquiesced to the court's subsequent ruling excluding the evidence. He thereby-waived any error for purposes of review.

However, even assuming arguendo there was no waiver, we reject defendant’s assertion that Dean’s plea of guilty constituted a conviction under the standard set forth in People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, under which the credibility of a witness may be impeached by evidence of a prior conviction if the crime was punishable by imprisonment in excess of one year. At the time Dean pleaded guilty to possession of heroin, it was a Class 3 felony carrying a sentence of two to five years; but the court, without entering judgment, sentenced him to one year’s probation under section 410(a) of the Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56V2, par. 1410(a)). If a person so sentenced fulfills the terms and conditions of his probation, section 410(e) provides that “the court shall discharge the person and dismiss the proceedings against him.” (Emphasis added.) Section 410(f) then states that “discharge and dismissal under this section is not a conviction for purposes of this Act or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.”

Thus, under the provisions of section 410, no adjudication of guilt is made at the time probation is imposed. It is only in cases of failure to successfully fulfill the terms and conditions of probation that a conviction is entered.

In an analogous situation, our supreme court, interpreting section 10 of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56V2, par. 710), which contains language nearly identical to that of section 410 of the Controlled Substances Act, stated in People DuMontelle (1978), 71 Ill. 2d 157, 163, 374 N.E.2d 205, 208, that “treatment under the first offender statute does not amount to a conviction ***. Any other conclusion is not only contrary to the inescapable statutory language but also emasculates the legislative intent to provide a unique and innovative punitive scheme for first offenders by excising their treatment from the general provisions of the Unified Code of Corrections ***.” Therefore, it is our view here that the sentence of probation imposed under section 410(a) of the Controlled Substances Act is not a conviction and would not be unless the terms and conditions of the probation are violated.

Defendant, however, argues that the State had a duty to show that the terms and conditions of Dean’s probation were not violated. However, we have consistently held that it is the party seeking to impeach who must show that there was a prior conviction. (People v. Yost (1980), 78 Ill. 2d 292, 399 N.E.2d 1283.) Here, because there was no showing that a conviction was entered, cross-examination as to Dean’s prior plea of guilty was properly excluded.

With respect to defendant’s assertion that the trial court erred in restricting cross-examination of Dean concerning his use of drugs, it appears that in a sidebar conference following the prosecutor’s objection to the question, “[a]re you a narcotics user?” defense counsel conceded the impropriety of the question and thus waived any error for purposes of review. (People v. Lamparter (1977), 56 Ill. App. 3d 823, 371 N.E.2d 997.) However, defendant also argues that his counsel’s failure to pursue this line of inquiry by substituting the word “addict” for the word “user” amounted to incompetence. We find this argument to be without merit. It is an elementary rule of trial procedure that for the purpose of impeachment, a witness may be examined concerning his drug addiction as affecting his credibility. (People v. Dixon (1961), 22 Ill. 2d 513, 177 N.E.2d 224.) However, where there is no evidence of addiction, the attempt to impeach a witness on that basis has been held to be “improper unless the examiner is prepared to make a showing to support the intended questions.” (People v. Brown (1966), 76 Ill. App. 2d 362, 373, 222 N.E.2d 227, 232.) As stated in People v. Irish (1966), 77 Ill. App. 2d 67, 74-75, 222 N.E.2d 114, 117:

“The cross-examiner may direct the attention of the witness to the time, place and substance of an alleged inconsistent statement and ask the witness if he made such a statement. This lays the foundation for subsequent impeachment. If the witness denies that he made such a statement, it is the duty of the defendant and his lawyer to produce evidence that the conflicting statement was actually made. It sometimes happens that such questions are asked solely for the purpose of sowing suspicion in the minds of the jurors. This is an impropriety, and the trial court should deal with it by admonishing the lawyer that he must not ask the question unless he has evidence to support its implications and by an instruction to the jury if so desired by counsel.”

Here, the record establishes that the trial judge expressed his willingness to allow that question if defense counsel stated that he was prepared to present proof thereof if Dean denied addiction. Counsel then abandoned that line of questioning, and we conclude therefrom that no proof of Dean’s addiction was available and that the court properly exercised its discretion in limiting this portion of the cross-examination. Defendant now maintains that counsel could have presented proof by asking Dean to roll up his sleeve. However, defendant was not entitled to such a physical examination of the witness, and in the absence of anything in the record to indicate what a view of the witness’ arm would have revealed, we will not indulge in speculation on this point. See People v. Conley (1983), 118 Ill. App. 3d 122, 454 N.E.2d 1107.

Defendant further contends that he was improperly prevented from impeaching Dean with testimony concerning an alleged statement by him that he had been pressured by the decedent’s brother, John Johnson, to testify against defendant. This contention, however, is contradicted by the record.

During direct examination of defendant, after the court sustained several of the prosecutor’s objections concerning the substance of the conversation in which the alleged statement was made, the following colloquy occurred:

“DEFENSE COUNSEL: What else did Dean say to you?
DEFENDANT: Dean said they got him in the police station and told him things he was going to have to say, or that he would be charged.
PROSECUTOR: Objection.
DEFENSE COUNSEL: When you say they, John Johnson and others?
DEFENDANT: John Johnson, Officer Petak and other officers in the police station. May I continue?
DEFENSE COUNSEL: No. I have no further questions at this time.”

Thus, the record reveals not only that the court made no ruling on the prosecutor’s objection but also, contrary to defendant’s contention, that the substance of the conversation was presented to the jury in his answer.

Defendant also maintains that he was denied due process by prosecutorial misconduct during the grand jury hearing. In a pretrial motion to dismiss, defendant asserted that during the grand jury proceedings the prosecutor allowed the introduction of “perjured or deceptive” testimony by Officer Petak that he (defendant) had admitted shooting Johnson, and he argues that he was denied due process when the prosecutor did not disclose the remainder of his post-arrest statement which explained that the shooting had occurred in self-defense.

After a hearing on the motion, the trial court found that Petak’s statement was not perjurious because there was no question that defendant shot Johnson and, while Petak’s testimony concerning the statement was not complete, it was given as a responsive answer to a specific question posed by a grand juror. There thus appears no misconduct that could be ascribed to the prosecutor. See People v. Kline (1981), 99 Ill. App. 3d 540, 425 N.E.2d 562.

Furthermore, to support dismissal of a charge, prosecutorial misconduct before a grand jury must result in actual and substantial prejudice (People v. Mack (1982), 107 Ill. App. 3d 164, 437 N.E.2d 396), and the burden of proving such misconduct is on the defendant (People v. Stanley (1981), 95 Ill. App. 3d 910, 420 N.E.2d 727). Here, the trial court correctly noted that because Dean’s testimony, as given, provided a sufficient basis from which the grand jury could infer that defendant acted in self-defense, he was not prejudiced by the State’s failure to present the entire text of his statement to Petak.

Defendant also contends that he was denied a fair trial when the prosecutor introduced irrelevant and prejudicial evidence and made repeated misstatements of the law.

Defendant first maintains that the presentation of testimony concerning decedent’s wife and son, the prosecutor’s statement that Johnson was going home to his family when he was killed, the introduction of a family photograph, and references to decedent as “Firefighter Johnson” and “the victim” were calculated efforts to arouse the passions of the jury by reinforcing the image that defendant was responsible for breaking up a happy family and depriving society of a valuable citizen.

We initially see that defense counsel’s failure to object to the majority of these alleged errors denied the court the opportunity to cure any harm resulting therefrom, and thus constituted a waiver of defendant’s right to review. (People v. Brown (1982), 107 Ill. App. 3d 576, 437 N.E.2d 1240.) With respect to those allegations properly preserved for appeal, we note that while our supreme court has expressed disapproval of prosecutorial references to decedent’s family and his standing in the community, which have no relevance to defendant’s guilt or innocence (People v. Wilson (1972), 51 Ill. 2d 302, 281 N.E.2d 626; People v. Bernette (1964), 30 Ill. 2d 359, 197 N.E.2d 436), it has also held that such improper remarks do not necessarily entitle defendant to a new trial where the evidence is otherwise sufficient to support the conclusion that the errors did not contribute to the guilty verdict (People v. Wilson). Considering the totality of the evidence in this case, we cannot say that references to “the victim,” his occupation, or family, although improper, were so inflammatory as to have affected the jury’s ability to rationally evaluate the facts in issue.

Defendant additionally asserts that the prosecutor misstated the law on self-defense when he argued that shooting Johnson from the “L” tracks was not necessary because defendant failed to use available means of escape. He maintains that the prosecutor thereby misled the jury into believing that the law obliges a person to attempt escape prior to using deadly force.

Although we agree that retreat or escape is not a requirement of the statute governing the use of force in self-defense (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 1; People v. McGraw (1958), 13 Ill. 2d 249, 149 N.E.2d 100), we disagree with defendant’s conclusion that the prosecutor misstated the law. In a murder trial, where an accused affirmatively raises self-defense and presents some evidence thereof, the State must then establish — along with all other elements of the offense — that the killing was not justified under the statute. (People v. Agüero (1980), 87 Ill. App. 3d 358, 408 N.E.2d 1092.) One requirement of section 7 — 1 is that the degree of force used must be “necessary to prevent imminent death or great bodily harm.” It appears that the prosecutor’s arguments were directed toward the factual issue of whether, in the light of defendant’s options, which included climbing up a nearby ladder or taking shelter under the platform edge, it was necessary to shoot Johnson in order to remove himself from the path of an oncoming train.

Defendant also contends that the prosecutor improperly argued that “one shot is self-defense, two shots, murder.” While it is true that the mere fact that multiple shots were fired does not negate a claim of self-defense (People v. Chapman (1977), 49 Ill. App. 3d 553, 364 N.E.2d 577), the issue presented is whether, as defendant argues, Johnson was the aggressor after the first shot was fired. Even where the victim was initially the aggressor, use of deadly force is not justified where he has been disarmed or disabled. (People v. Limas (1977), 45 Ill. App. 3d 643, 359 N.E.2d 1194.) Here, although defendant testified that the second shot was fired in the course of a continuing struggle throughout which Johnson was the aggressor, witnesses Dean and Grier both testified that defendant was the aggressor when, after wounding Johnson, he climbed back onto the platform in pursuit of the decedent who had already retreated to the pillars in the middle of the platform. Thus, the question was not whether, as a matter of law, multiple shots negate self-defense, but whether, under the facts, multiple shots were necessary for his self-defense. The State may argue its theory of the case so long as its comments are supported by the evidence (People v. Smith (1982), 111 Ill. App. 3d 895, 444 N.E.2d 801), after which it is the function of the jury as triers of fact to decide whether the evidence is sufficient to establish that defendant acted in self-defense (People v. Fields (1978), 65 Ill. App. 3d 278, 382 N.E.2d 337). Since the testimony of Dean and Grier supports the prosecutor’s argument, the statement complained of was not improper.

Finally, defendant contends that the trial court’s refusal to consider his claim of self-defense as a factor in mitigation resulted in the imposition of an excessive sentence.

It is well settled that “the standard of review of a sentence claimed to be excessive is whether in fact the trial court exercised its discretion and, if so, whether this discretion was abused.” (People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 545.) Our supreme court also stated, in People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882, that the sentencing judge, having presided over the entire trial, is normally in a better position to determine the appropriate punishment than is a court of review, and that a reasoned judgment depends upon many factors including defendant’s credibility, demeanor, general moral character, past criminal record, and potential for rehabilitation.

Defendant argues, however, that the trial court erroneously believed that because a voluntary manslaughter instruction had not been tendered, he was precluded from considering evidence of a mutual quarrel or defendant’s belief that he was acting in self-defense. However, at the sentencing hearing, defendant was allowed to make a lengthy statement on his own behalf, after which the trial court discussed the jury’s verdict and explained the bases of his sentencing decision. In reviewing the evidence, he specifically commented that the killing occurred “without any justification or cause” despite defendant’s assertions to the contrary. He also evaluated defendant’s demeanor, character, and “track record for violence” in determining that “a long sentence is necessary to serve the ends of justice in this case.” We conclude therefrom that the court thoughtfully and properly considered the relevant factors in mitigation, as well as those in aggravation, prior to imposing sentence, and thus we find no abuse of discretion requiring a reduction of sentence.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

WILSON, P.J., and LORENZ, J., concur.


author: JUSTICE HARTMAN

text:
    AMERICAN INTERNATIONAL HOSPITAL, Plaintiff-Appellant, v. CHICAGO TRIBUNE COMPANY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 82—714
    Opinion filed December 20, 1983.

      Donald T. Morrison & Associates, P.C., of Waukegan (Donald T. Morrison and Joseph T. Morrison, of counsel), for appellant.
    Reuben & Proctor, of Chicago (Lawrence Gunnels and Charles J. Sennet, of counsel), for appellees Chicago Tribune Company and William Gaines.
    Fraterrigo, Best & Beranek, of Wheaton, for appellee The Joint Commission on Accreditation of Hospitals.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, American International Hospital (Hospital), appeals from an order of the circuit court of Cook County dismissing with prejudice its three count amended complaint for defamation against defendants Chicago Tribune, William Gaines (collectively Tribune) and the Joint Commission on Accreditation of Hospitals (JCAH). The principal issues raised on appeal include whether: the transfer of venue to Cook County was proper; the allegedly libelous article was true; and, the amended complaint states a cause of action for defamation.

For the reasons hereinafter presented, we affirm in part, vacate in part and remand.

On the same day that the disputed article was published, September 19, 1980, the Hospital filed its complaint in the circuit court of Lake County. On November 18, 1980, pursuant to the Tribune’s timely motion, the court transferred the cause to the Cook County circuit court. There the circuit court dismissed the complaint but granted the Hospital leave to file an amended complaint. The subject of the original and amended complaint was an article, reproduced as follows:

Zion hospital refused accreditation by panel

By William Gaines

A CHICAGO*AREA hospital under Investigation fof providing controversial and sometimes questionable treatments to cancer patients has been refused accreditation by the Joint Commission on the Accreditation of Hospitals [JCAH!, The Tribune learned Thursday.

The accreditation committee of the commission decided not to renew the accreditation of American International Hospital, a 93-bed hospital in. Zion, as the. result of findings in its June survey of the hospital. The hospital was notified of the decision earlier this month and may appeal the decision, a commission spokesman said.

A Tribune Task Force investigation disclosed last March that the hospital

was attracting desperate cancer victims from throughout the country by offering controversial and sometimes unproven therapies.

THE TASK FORCE ais» disclosed that the doctor who started a highly experimental cancer treatment program at the hospital had been disqualified from participation in a state medical aid program in New York because of unacceptable medical practices.

Loss of accreditation does not mean the hospital will be forced to close. Accreditation by the JCAH, a private, national agency funded by hospitals, assures a hospital of eligibility in Medicaid and Medicare programs and of rec-

Continued on gage 4, col. 1

Commission denies Zion hospital its accreditation

Contiinued from page one

ognition by most insurance companies. Without accreditation, a hospital must apply for federal inspection before qualifying for Medicaid or Medicare.

Loss of JCAH accreditation generally means the hospital loses standing in the professional community and its public image is marred, the commisiosn spokesman said. However, the spokesman said the JCAH does, not make public its survey finding.

DONALD MORRISON, a lawyer for American International, said the JCAH decision had nothing to do with Ibe hospital's cancer treatments but rather reflected JCAH criticism of the hospital's housekeeping and record-keeping practices. He said the hospital is appealing the decision.

“It's not a big deal,” Morrison said. “I am confident that it will be straightened oiti. It's of a minor nature. There’s nothing wrong with this hospital”

However, Morrison declined to make

public the findings of the JCAH accreditation survey.

The hospital and its doctors also have been under investigation by the Illinois Department of Public Health and the Illinois Department of Registration and Education.

At a meeting of the Illinois Hospital Licensing Beard in June,.state investigators and special consultants hired by the state Department of Public Health expressed concerns about the hospital's use of Laetrile; its use of a medical procedure called hyperthermia, a highly experimental procedure in which a patient's body temperature is raised to 108 degrees in an effort to kill cancer cells; and its use of coffee enemas.

The use of Laetrile is part of an unconventional cancer treatment offered at American International that officials there call .the “metabolic” program.

The program can Include a special diet, large doses of vitamins, enzymes, coffee enemas, and sometimes Laetr"é.

Count I of the amended complaint alleged, inter alia, that: the Hospital’s accreditation with JCAH had been continuously maintained without any interruption from 1976 to the present time; a one-year accreditation may be granted for only three consecutive years; based upon an error in JCAH records, JCAH believed that the Hospital had been granted three prior one-year accreditations consecutively, and on that basis decided not to accredit the Hospital; a decision by the accreditation committee to revoke a hospital’s accreditation (preliminary adverse decision) does not become final until 20 days after a hospital receives notice of it and then only if the hospital chooses not to appeal or abandon an appeal; if the hospital appeals the preliminary adverse decision, the hospital’s previous accreditation remains in effect while the appeal is pending; the Hospital appealed the preliminary adverse decision on September 10, 1980; and on November 4, 1980, the accreditation committee withdrew its preliminary adverse decision and accredited the Hospital for a one-year period.

In addition to the foregoing allegations, count II alleged: prior to the publication of the disputed article, the Tribune published a task force report in which it asserted that the Hospital offered highly suspect and questionable treatment to cancer patients; the publication of the article in dispute was part of a continuing effort of the Tribune to discredit the Hospital; and the article was written and published for the purpose of adding credibility to the prior inaccurate and misleading report. Pursuant to defendants’ motion, on March 18, 1982, the amended complaint was dismissed with prejudice. This appeal followed.

I

The Hospital challenges the Lake County court order transferring venue to Cook County. The Tribune responds that, since the Hospital’s notice of appeal cites neither the order transferring venue nor the Lake County circuit court, it violates Supreme Court Rules 303(c)(l)(i) and (2) (87 Ill. 2d Rules 303(c)(l)(i), (2)). This court, the Tribune contends, lacks jurisdiction to review the order transferring venue.

The appeal from a final judgment draws into question all prior nonfinal orders which produced the judgment. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433, 394 N.E.2d 380.) The Hospital here appeals from the final judgment entered on March 18, 1982. Because the court’s prior ruling on venue was interlocutory {Executive Commercial Services, Ltd. v. Daskalakis (1979), 74 Ill. App. 3d 760, 393 N.E.2d 1365; cf. HI. Ann. Stat.¡ ch. 110A, par. 306 (Smith-Hurd 1981)) and contributed to the March 18 judgment, we retain jurisdiction to review its validity. See Consolidation Coal Co. v. Bu-cyrus-Erie Co. (1980), 93 Ill. App. 3d 35, 37, 416 N.E.2d 1090, vacated on other grounds (1982), 89 Ill. 2d 103.

Turning to the merits of the venue issue, the Hospital contends that the applicable venue statute (Ill. Rev. Stat. 1981, ch. 110, par. 7(4), now par. 2 — 103(d)) unconstitutionally distinguishes between resident and nonresident defendants. That section provides:

“Every action against any owner, publisher, editor, author or printer of a newspaper *** for libel contained in that newspaper *** may be commenced only in the county in which the defendant resides or has his, her or its principal office or in which the article was composed or printed, except when the defendant resides or the article was printed without this State, in either of which cases the action may be commenced in any county in which the libel was circulated or published.”

A statute is presumed to be valid and the burden is on the party challenging it to show its unconstitutionality. {Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 303, 395 N.E.2d 1376.) While the passage of time is not conclusive as to the constitutionality of a statute, it creates a strong presumption against its invalidity. {Makowicz v. County of Macon (1980), 78 Ill. 2d 308, 311, 399 N.E.2d 1302.) Since section 7(4) was enacted 46 years ago, in 1937, it enjoys a strong presumption of validity. (See Ill. Ann. Stat., ch. 110, par. 7, Historical and Practice Notes, at 67 (Smith-Hurd 1968).) The classification employed here is sufficiently reasonable to withstand constitutional attack. A nonresident newspaper may be inconvenienced by being sued in any county in which the libel was circulated, but the difference to it between one such county and another is likely to be less than to a resident newspaper. The Hospital has failed to show that the challenged classification is so arbitrary or unreasonable as to be repugnant to due process of law. Mapes v. Hulcher (1936), 363 Ill. 227, 230-31, 2 N.E.2d 63.

The Hospital’s reliance on Power Manufacturing Co. v. Saunders (1927), 274 U.S. 490, 71 L. Ed. 1165, 47 S. Ct. 678 (Holmes and Bran-déis, JJ., dissenting) is unjustified. In Saunders the venue statute treated foreign corporations without reasonable basis and arbitrarily. (See American Motorists Insurance Co. v. Starnes (1976), 425 U.S. 637, 645, 48 L. Ed. 2d 263, 271, 96 S. Ct. 1800, 1804.) Under that venue statute plaintiffs were permitted to sue foreign corporations in any county of the State, whereas the instant statute allows nonresident newspapers to be sued only in those counties of the State where the libel was published or circulated. Moreover, as Justice Holmes cogently stated for the Supreme Court in Bain Peanut Co. v. Pinson (1931), 282 U.S. 499, 501, 75 L. Ed. 482, 491, 51 S. Ct. 228, 229, “The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” Accordingly, the Hospital’s equal protection argument cannot be sustained. See Starnes; Pinson.

The Hospital urges that it will not receive impartial treatment from Cook County judges because of their purported dependence on the endorsement of the Tribune Company for retention elections. This argument must also be rejected. The suggestion that a judge would disregard the obligations of his office in the hope of securing a newspaper endorsement is patently untenable.

The Hospital maintains, in the alternative, that even assuming the statute’s validity, venue may still be obtained in Lake County. It observes that under the applicable special venue statute, quoted in full above, a libel action against a newspaper may be commenced “*** only in the county in which the defendant resides or has his or its principal office or in which the article was composed or printed ***.” (Ill. Rev. Stat. 1981, ch. 110, par. 7(4).) It further notes that section 6(1) of the Act (now section 2 — 102(a)) provides in part that, for purposes of venue, an Illinois corporation “*** is a resident of any county in which it has its registered office or other office or is doing business.” The Hospital urges that since the Tribune Company is doing business there, it is a resident of Lake County, for purposes of section 7(4). This conclusion cannot be sustained.

Section 7(4) deals specifically "with “any owner, publisher, editor, author or printer of a newspaper or magazine” for libel which they may have uttered. It provides that a newspaper may be sued in “the county in which the defendant resides” (emphasis added), thereby contemplating that a newspaper will have but one residence. Section 6 is a general definition section which states that a corporation “is a resident of any county in which it has its registered office or other office or is doing business.” (Emphasis added.) Adoption of the Hospital’s argument would require us to ignore the specific subject matter of section 7, and further would require us to construe the word “the” to mean “any.” (Cf. Ill. Ann. Stat., ch. 110, par. 7, Historical and Practice Notes, at 67 (Smith-Hurd 1968) (“[Although by definition a private corporation is a 'resident' of specified counties for venue purposes (Ch. 110, sec. 6(1)), and therefore clearly falls within the multiple defendant provisions of sections 5 and 9, no similar definition appears in section 7”).) Further, if a defendant newspaper could be sued in any county in which it had “its registered office or other office or is doing business,” then section 7(4)'s proviso allowing venue in which defendant has “its principal office” also would be rendered superfluous and redundant. In order to effectuate the express intention of the legislature (People v. McCoy (1976), 63 Ill. 2d 40, 44, 344 N.E.2d 436), we hold that the general definition of corporate residence set forth in section 6 does not affect the specific subject matter of section 7(4). Accordingly, venue was properly transferred to the circuit court of Cook County.

II

The Hospital argues that the gist of the article was that it had been denied or refused JCAH accreditation, which was false. The Tribune counters that the article is nonactionable.

The preliminary question of whether an article may be actionable in libel is a question of law. (See Restatement (Second) of Torts sec. 614(1) (1977); Troman v. Wood (1975), 62 Ill. 2d 184, 189, 340 N.E.2d 292.) Under the most recent supreme court decisions, a written statement is to be read in context with the words and implications therefrom given their natural and obvious meaning and the statement may be innocently interpreted if this can be done reasonably. Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195; Fried v. Jacobson (1983), 99 Ill. 2d 24.

The circuit court considered the instant amended complaint under the innocent construction rule announced in John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105, cert, denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148. This rule was expressly modified subsequently by the supreme court in Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195, and Fried v. Jacobson (1983), 99 Ill. 2d 24, as previously noted. The supreme court, in vacating and remanding the decision in Fried v. Jacobson back to the circuit court for reconsideration under the Chapski rule of construction, observed:

“Inconsistency, inequity, and confusion resulted from dozens of appellate court cases interpreting and applying the rule. The principal criticism being that, because of the rule’s mandatory language, courts generally strained to find innocent meanings of words where a defamatory meaning was far more reasonable. Therefore, this court was persuaded that a modification of the rule was necessary to protect the individual’s interest in vindicating his good name and reputation, while allowing the first amendment guarantees that ‘breathing space’ essential to their faithful exercise. (92 Ill. 2d 344, 350-51.) The rule, as modified, is:
‘[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff.’ 92 Ill. 2d 344, 352.
As above noted, it appears that the trial and appellate courts did not apply the rule as modified by Chapski. The plaintiff here should have the opportunity to have the trial court make that determination.” (99 Ill. 2d 24, 28-29.)

In accordance with the foregoing, the Hospital should have the opportunity to have the circuit court consider its amended complaint under the rule enumerated in Chapski v. Copley Press, and its dismissal, therefore, must be vacated and remanded.

Ill

The JCAH contends that the Hospital’s brief is directed solely at the Tribune newspaper article and that, therefore, the Hospital has waived the right to argue any ground for reversal of the order dismissing the amended complaint as to the JCAH. In its motion before the circuit court, the JCAH incorporated by reference the motion to dismiss filed by the Tribune together with the affidavits and briefs in support thereof. The Hospital observes that its initial brief addresses the issues raised by the Tribune’s motion to dismiss which were the basis for the circuit court’s order.

A reviewing court’s responsibility for a just result and for the maintenance of a sound and uniform body of precedent may sometimes override considerations of waiver. (Hux v. Roben (1967), 38 Ill. 2d 223, 225, 230 N.E.2d 831.) Given the procedural posture of this controversy, and the interest in assuring legal uniformity and a fair outcome, the merits of the circuit court’s order dismissing the amended complaint as it pertains to JCAH must be considered.

Count III alleged, inter alia, that: the JCAH composed a false and libelous letter or spoke false and slanderous words to the Tribune; and the false matter so communicated was that the Hospital had been refused accreditation. On appeal, the JCAH incorporates into its brief all arguments and defenses advanced in the Tribune’s brief. Illinois law no longer recognizes any substantive differences between libel and slander. (American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 629, 435 N.E.2d 1297; Mitchell v. Peoria Journal-Star, Inc. (1966), 76 Ill. App. 2d 154, 159, 221 N.E.2d 516.) The additional allegation of slander against JCAH, therefore, is not material. Since the substance of the alleged JCAH communication was the same as that published by the Tribune, the principles set forth in part II of this opinion compel a similar result as to count III.

For the given reasons, the judgment of the circuit court is affirmed in part, vacated in part and remanded with directions to consider the amended complaint as to all defendants under the rule of construction enunciated in Chapski v. Copley Press.

Affirmed in part, vacated in part and remanded.

DOWNING, P.J., and STAMOS, J., concur.

      The allegation was corroborated by the affidavit of Dr. George Graham, a vice-president of JCAH, submitted by the Tribune in support of its motion to dismiss the original complaint.