author: JUSTICE WILSON

text:
    NELLY SIDOREWICZ, a Minor, by Heide Sidorewicz, her Mother and Next Friend, Plaintiff-Appellant, v. DR. JOHN KOSTELNY, M. D., Defendant-Appellee.
    First District (5th Division)
    No. 80-2704
    Opinion filed December 28, 1981.
    Lawrence Jay Weiner and Fredric Bryan Lesser, both of Lawrence Jay Weiner & Associates, and Goldberg & Goldberg, both of Chicago, for appellant.

      Wildman, Harrold, Allen & Dixon, of Chicago (Lenard C. Swanson and Kay L. Schichtel, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

This is an appeal from a jury verdict in favor of defendant in which plaintiff had alleged malpractice. On appeal, she asserts that (1) the trial court erred in preventing her counsel from discussing the anticipated instructions with the jury; (2) reversible error was committed when defendant’s counsel stated to the jury that the court’s failure to direct a verdict against defendant meant that his admission of fault was not an admission of medical malpractice; and (3) reversible error was committed when defendant’s counsel implied that defendant was not insured. A complete recitation of the facts is not necessary here as plaintiff claims no error up until closing arguments.

On November 17, 1976, Nelly Sidorewicz filed a complaint against defendant, an obstetrician and gynecologist, alleging that he had negligently provided medical care to her during her birth, which resulted in an injury to her right brachioplexis.

The day before closing arguments, defense counsel presented a motion in limine restricting the attorneys from implying insurance was or was not involved in this matter.

Closing arguments were held on July 17, 1980, and the following colloquy occurred between plaintiff’s counsel and the trial court:

“MR. GOLDBERG: ° • *
Our burden isn’t like in a criminal case where it has to be beyond a reasonable doubt.
THE COURT: I will instruct the jury on the law.
MR. GOLDBERG: I believe the Court will tell you it’s more probable true than not. That simply means — you recall the scales of justice—
THE COURT: I will instruct the jury on the law.
MR. GOLDBERG: I’m just describing the scales of justice. I’m not—
We have to meet a burden, and it is the type of decision that you and I make every day. It’s the type of decision that we’re asking, under the circumstances, you to follow. It simply means, for example—
THE COURT: I will instruct the jury on the law, and you won’t tell them what it means. That’s the third time, and I don’t want you to proceed.
MR. GOLDBERG: All right. Now, with regard to the plaintiff’s burden of proof, there are three things that we have to prove. One is that the defendant is negligent; and I will get to that in a moment. The second thing is that there are injuries, and the third thing is what is known as proximate cause.
Now, there is uncontradicted testimony, uncontradicted, that the injury is a brachioplexus injury. So, that’s one element that’s proven already.
The next is we have to prove what’s known as proximate cause, that the cause was the conduct, the negligence of Dr. Kostelny brought about the injury.
All of the doctors in this case that have testified, Dr. Kostelny himself included on Section 60, Dr. Miller, Dr. Dodson, all of them have said that if the Cesarean section had been done, the shoulder dystocia and the brachioplexus injury would not have been present.
Now, ladies and gentlemen, a cause simply means that there can be more than one; and you can have a series of acts or events that give rise to it.
THE COURT: Counsel, I don’t want you telling the jury what you think the law means. I will instruct the jury on the law.
MR. GOLDBERG: Yes, your Honor.”

Defense counsel commented to the jury during his closing argument that:

“If during this closing statement I appear to you to be nervous and a little jumpy I’ll tell you honestly, it’s because I am. And I think you can see now that this lawsuit against Dr. Kostelny is a very serious matter.
Dr. Kostelny has just been asked by the plaintiff to have a verdict against him of some $385,000. And as I believe he takes his patients seriously, I as a lawyer try, and I know I have taken my client seriously. And for that reason, I tell you, I’m a little bit jumpy right now.”

And finally, plaintiff claims error in defense counsel’s response regarding defendant’s admission of fault:

“MR. GOLDBERG [plaintiff’s counsel]: At some point after the delivery, Dr. Kostelny went up to Mr. Sidorewicz and had a conversation with him. And what did he say? Dr. Kostelny said to Mr. Sidorewicz, ‘Mr. Sidorewicz, there is a problem with the baby. I’m sorry; it was my fault. I should have done a C-section. If I had done it, there wouldn’t be any problem. But let’s pray to God the baby will be all right. Just don’t tell your wife right now.’
Thereinafter, the next day, he talks to Mrs. Sidorewicz. And what does he say to her? ‘Mrs. Sidorewicz, I’m sorry. The baby had a problem. It was my fault. I should have done a C-section. I knew it was going to be a large baby. If I had done it, this wouldn’t have happened.’
Now, ladies and gentlemen, Dr. Kostelny, I’m sure, didn’t intend the harm. But nevertheless, the point is that when he got on the witness stand, Dr. Kostelny, when I asked him about fault, said —I said, ‘Did you say anything to them about fault?’ He said, ‘Well, it couldn’t have been anybody else’s fault. I was the man in charge. The decisions were mine, so who could I blame? It was my fault.’
# O #
MR. SWANSON [defense counsel]: e • °
I can assure you if that statement were in any way an admission of medical malpractice, this Court has the power and the duty to direct a verdict against Dr. Kostelny and not even let you folks decide it. I think you could safely assume that that has not been done in this case and that question is for you to decide whether there is malpractice on what he did before and at the time of delivery.”

After a verdict in favor of defendant was returned, the court entered judgment for him and plaintiff subsequently moved for entry of a judgment n.o.v., which was denied. This appeal follows.

Opinion

Our initial consideration is whether the trial court committed reversible error when it prevented plaintiff’s counsel from discussing the anticipated instructions with the jury. We believe it has.

We have held that in closing argument, counsel for the parties are permitted to state their belief as to the anticipated instructions and develop their arguments in accordance with these instructions. (Martin v. Allstate Insurance Co. (1981), 92 Ill. App. 3d 829, 416 N.E.2d 347; Ill. Rev. Stat. 1979, ch. 110, par. 67(3).) Unless such remarks are misleading, counsel has a right to express his belief concerning the content of the court’s instructions during closing argument. People ex rel. Paul v. Harvey (1972), 9 Ill. App. 3d 209, 292 N.E.2d 124.

In the pending case, the court interrupted plaintiff’s counsel’s argument sua sponte several times. Nothing in the record regarding counsel’s argument at the time of the interruption indicates that those remarks were going to be misleading. There had previously been an instruction conference and plaintiff’s counsel should have been allowed to develop his argument in accordance with those instructions. Just as this was error in Martin, where counsel was interrupted before she could complete her explanation as to what she believed the law to be, in the instant case, the court’s ruling prejudiced plaintiff’s case as she was not able to place the facts of the case within an appropriate framework from her perspective. We hold it was error sufficient enough to necessitate reversal.

Discussion of plaintiff’s other contentions are not necessary in light of our ruling that the trial court improperly restricted plaintiff’s counsel’s final argument, and based on our belief that these alleged errors will be cured by a new trial.

For the foregoing reasons, we reverse and remand this matter for a new trial and for such other proceedings consistent with this opinion.

Reversed and remanded.

LORENZ and MEJDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DOWNING

license: Public Domain

text:
    PETER F. SCHRIER, Plaintiff, v. INDIANA HARBOR BELT RAILROAD COMPANY, Defendant and Third-Party Plaintiff-Appellee.—(INLAND STEEL COMPANY, Third-Party Defendant-Appellant.)
    First District (2nd Division)
    No. 80-3130
    Opinion filed December 15, 1981.
    Modified on denial of rehearing January 19, 1982.

      Crooks & Gilligan, Ltd., of Chicago (John W. Gilligan, of counsel), for appellant.
    Anna M. Kelly, of Chicago, for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

This third-party action seeking indemnity is before us for the second time. Peter Schrier, plaintiff, instituted a personal injury action under the Federal Employers’ Liability Act (45 U.S.C.A. par. 51 et seq. (1972)) (hereinafter FELA), against his employer, Indiana Harbor Belt Railroad Company (hereinafter Railroad). Railroad filed a third-party complaint seeking indemnity from Inland Steel Company (hereinafter Inland).

The procedural history of this case is involved. We set out only those details necessary for an understanding of the issues currently before this court. Plaintiff Peter Schrier filed a complaint on April 8, 1976, under the FELA against his employer, Railroad, alleging that he sustained injuries in the course of his employment on the premises of Inland. Railroad filed a third-party complaint seeking implied indemnity from Inland under an active-passive theory of indemnity on September 15, 1978. The circuit court dismissed the third-party complaint. This court reversed. Schrier v. Indiana Harbor Belt R.R. Co. (1980), 82 Ill. App. 3d 561, 402 N.E.2d 872.

Railroad, without notice to Inland, took the deposition of plaintiff on February 20, 1979. Inland had filed its appearance on December 5, 1978. Railroad, on November 10, 1980, filed a motion for summary judgment against Inland, based on the theory of express indemnity. Submitted as exhibits with the motion were the deposition of plaintiff, a lease, and a sidetrack agreement, containing language upon which Railroad relied in support of its claim for express indemnity. The parties to these agreements were Inland and the New York Central Railroad. New York Central had the authority to assign its interest without notice to Inland.

Inland filed a motion to quash the deposition of plaintiff and for leave to take plaintiff’s deposition. The circuit court denied the motion to quash, stating that the primary issues in the motion for summary judgment were an indemnity agreement and an interpretation of the law of the state of Indiana. The circuit court then entered judgment on November 25,1980, for plaintiff against Railroad for $50,000, and entered summary judgment for Railroad against Inland on the third-party complaint for $50,000.

Inland filed a notice of appeal on December 8, 1980. On December 10, 1980, Railroad was granted leave by the circuit court to file an amended third-party complaint, alleging the theory of express indemnity. On April 10,1981, we granted Inland’s motion to strike from the record on appeal the amended third-party complaint and, pursuant to Supreme Court Rule 366(a)(1), allowed Railroad leave to file an amended third-party complaint in this court. (73 Ill. 2d R. 366(a)(1).) We subsequently granted Inland leave to file a motion to strike the amended third-party complaint, which motion has been taken with this case for decision.

The issues raised by Inland on appeal are: (i) whether the amended third-party complaint states a cause of action in express indemnity; and (ii) whether the granting of summary judgment was proper, where Inland was not given notice of plaintiff’s deposition which was subsequently used against it. Other issues are also raised, but, in light of our resolution of these issues, they will not be addressed.

I

Railroad’s amended third-party complaint alleges a cause of action based on express indemnity. Inland claims that the third-party complaint does not state a cause of action because Indiana law severely restricts indemnity agreements which indemnify a party for its own negligence. Inland argues that Railroad’s settlement of plaintiff’s FELA claim establishes that Railroad was negligent and thus precludes • Railroad from recovering indemnity from Inland.

The prior appeal in this case held that Indiana law applies to the indemnity claim and is the law of the case. (82 Ill. App. 3d 561, 563, 402 N.E.2d 872, 873.) Indiana law permits a party to contract for indemnity for its own negligence, but requires that the'contract be “clear and unequivocal.” (Indiana State Highway Com. v. Thomas (1976), 169 Ind. App. 13, 346 N.E.2d 252.) Thomas suggests that a reference to the indemnitee’s own negligence is essential. (169 Ind. App. 13, 26-27, 346 N.E.2d 252, 260.) Indemnity was recently allowed where the contract specifically referred to the indemnitee’s own negligence. Center Township v. City of Valparaiso (1981),_Ind. App__, 420 N.E.2d 1272.

The language in the agreements in the instant case clearly does not meet the “clear and unequivocal” standard. Neither of the agreements mentions indemnity for the Railroad’s own negligence. Therefore, if Inland’s contention that Railroad’s settlement of the FELA action establishes negligence on the part of Railroad is correct, the agreements do not provide a basis for express indemnity.

The standards for liability for negligence under the FELA are substantially broader than in a common law negligence action. (Nivens v. St. Louis Southwestern Ry. Co. (5th Cir. 1970), 425 F.2d 114, 118, cert. denied (1970), 400 U.S. 879, 27 L. Ed. 2d 116, 91 S. Ct. 121.) The test is whether negligence on the part of the employer played any part, even the slightest, in producing the injury. Thus, the common law proximate cause standard is greatly reduced. (425 F.2d 114, 118.) The negligence of the employer may consist of breach of its nondelegable duty to provide a safe place to work. This duty exists even when the employees are on the premises of a third party over which the employer has no control. Shenker v. Baltimore & Ohio R.R. Co. (1963), 374 U.S. 1, 7, 10 L. Ed. 2d 709, 83 S. Ct. 1667; Howes v. Baker (1973), 16 Ill. App. 3d 39, 44, 305 N.E.2d 689, appeal denied (1974), 55 Ill. 2d 605.

Therefore, the Railroad may be liable under the FELA for conducting substantially less than common law negligence. Indiana law strictly construes agreements which indemnify a party for its own negligence. Since the FELA judgment does not establish that the Railroad was guilty of common law negligence, the indemnity agreements may not have to be strictly construed. If the Railroad was not negligent under the common law standard, the indemnity agreements may be enforced. We therefore hold that the amended third-party complaint states a cause of action, and the pending motion to strike is denied.

II

In light of the above discussion, it is clear that the trial court should not have granted summary judgment. First, a factual issue exists as to whether the Railroad’s conduct amounted to common law negligence, or whether its FELA liability was based solely on the breach of its nondelegable duty to provide a safe place to work. The circumstances surrounding the occurrence are unclear, due in large part to the covert taking of plaintiff’s deposition. Second, although a trial court is vested with broad discretion in ruling on discovery matters (Hanes v. Orr & Associates (1977), 53 Ill. App. 3d 72, 74, 368 N.E.2d 584), the failure of the trial court to allow Inland to take plaintiff’s deposition clearly amounts to an abuse of discretion. For these two reasons, the granting of summary judgment was improper.

Accordingly, the judgment of the circuit court is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

STAMOS and PERLIN, JJ., concur.

       The lease stated, in part:
      “Lessee will be responsible for and will indemnify, save harmless and defend Lessor, from any and all claims in suits for, and any and all liability, loss, or expense arising from or in connection with damage to or loss of property of Lessor, Lessee, or of agents, servants and employees of either; or of passengers or any other person and from any and all claims and suits for, and any and all liability, loss, or expense arising from or incidental to or in connection with injury or death to persons, including agents, servants, or employees of Lessor or of Lessee, or any other person, all arising out of or incidental to or in connection with this lease or the demised premises.”

       The sidetrack agreement stated, in part:
      “SIXTH: ° ° ° In respect of all loss or damage to property, other than by fire caused as aforesaid, or in respect of injury to or death of persons caused by or in connection with the construction, operation, maintenance, use, presence, or removal of said tracks (a) the Railroad Company shall assume responsibility for and hold the Industry harmless from all losses, damages, claims and judgments arising from or growing out of the sole actionable acts or omissions of the Railroad Company, its agents or employees; (b) the parties hereto shall equally bear all losses, damages, claims, and judgments arising from or growing out of the joint or concurring actionable acts or omissions of both parties hereto, their respective agents or employees; and (c) the Industry shall assume the responsibility for and save the Railroad Company harmless from all losses, damages, claims and judgments arising from or growing out of the sole actionable acts or omissions of the Industry, its agents or employees.”

       In its petition for rehearing, Railroad claims that the trial court’s order did not constitute an abuse of discretion since the time period for discovery had expired. Railroad relies on Circuit Court Rule 3.3, which provides that discovery be terminated 24 months after an action is filed. After 24 months, discovery is permitted only by order. Railroad, however, ignores the trial court’s order, entered September 23,1980, which re-opened discovery from that date until January 31, 1981. Inland’s motion to quash and for leave to take plaintiff’s deposition was filed on November 13,1980.


author: JUSTICE WHITE

text:
      In re MARRIAGE OF DAWN I. FLATOW, Petitioner-Appellant, and ROBERT A. FLATOW, Respondent-Appellee.
    First District (3rd Division)
    No. 79-1290
    Opinion filed December 16, 1981.

      Ann Houser, of Chicago, for appellant.
    Paul C. Ross, of Chicago (John F. Martoccio, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Petitioner Dawn I. Flatow appeals from a final judgment for respondent on the merits and also from an earlier order vacating a default judgment entered against the respondent.

The pertinent facts of this case are as follows. Robert and Dawn Flatow were first married on February 11, 1972. Prior to this marriage Robert purchased a home in Chicago with funds which the trial court found were furnished by his mother, Rose Flatow. In April of 1972, Robert assigned 50% of the beneficial interest in this property to Dawn. On November 21, 1974, a judgment of annulment was granted to Robert on grounds of bigamy. A previous marriage of Dawn’s had not been dissolved at the time the parties were married. The two were remarried approximately six months later. On December 8, 1977, Dawn filed a petition for dissolution of the second marriage and on March 22, 1978, obtained a default judgment for dissolution of marriage. The ex-parte judgment directed Robert to assign his interest in the property to Dawn. According to Robert he first received notice of the proceedings on May 23, 1978, when he received the notice of motion requesting that he assign the house to Dawn. It was at this time that Robert hired an attorney who filed a petition to vacate the default judgment for dissolution of marriage.

On June 19, 1978, Judge Reuben J. Liffshin, who had entered the default judgment for dissolution of marriage, entered an order vacating the judgment and giving Robert leave to file his answer to Dawn’s petition. A few days later this order of Judge Liffshin was vacated by agreement of the parties, and Dawn was given leave to file a response to Robert’s petition to vacate the default judgment. On July 13, 1978, Dawn filed a petition praying for a change of venue from Judge Liffshin. Judge Liffshin denied her petition and set the hearing on Robert’s petition to vacate for August 29,1978. Thereafter, evidentiary hearings were held on a number of court dates. Following the hearing on October 6,1978, Judge Liffshin vacated the default judgment as it related to the property rights of the parties and allowed the judgment for dissolution to stand and continued the matter for hearing on the disposition of property.

Dawn’s first contention is that the trial court erred in granting her husband’s petition for section 72 relief because he had not established grounds therefor by clear and convincing evidence. However, we find that the issue of the propriety of the trial court’s order vacating petitioner’s default judgment is not properly before this court. Rather than bring an immediate appeal from this order, petitioner elected to proceed to trial on the merits. By so doing, she has waived any right to challenge the order on appeal. Supreme Court Rule 304(b)(3) (Ill. Rev. Stat. 1979, ch. 110A, par. 304(b)(3)) provides in pertinent part:

“The following judgments and orders are appealable without the finding required for appeals under Paragraph (a) of this rule:
O O #
(3) A judgment or order granting or denying any of the relief prayed in a petition under Section 72 of the Civil Practice Act (Ill. Rev. Stat. ch. 110, ¶72).”

An order or judgment from which an appeal might have been taken is not reviewable on appeal from a subsequent order entered in the same cause. (Harty v. Kirby (1975), 26 Ill. App. 3d 688, 325 N.E.2d 406; see also Rone v. Boncar Construction Co. (1976), 45 Ill. App. 3d 1, 358 N.E.2d 1315.) Where a final order has been vacated pursuant to a section 72 petition, and the parties go to trial, the party whose judgment was vacated, having failed to prosecute an appeal, is precluded, after the subsequent trial and judgment, from making a collateral attack on the order vacating the first judgment. (Johnson v. Coleman (1977), 47 Ill. App. 3d 671, 365 N.E.2d 102; Halter v. Schoreck (1966), 69 Ill. App. 2d 104, 216 N.E.2d 278.) Petitioner, by choosing not to take timely appeal from the order vacating the default judgment which had been previously entered in her favor, has in effect waived her right to appeal from that order. (Johnson; Holt v. Holt (1979), 71 Ill. App. 3d 87, 388 N.E.2d 1353.) Therefore, this court now lacks jurisdiction to consider the matter. Goldstick v. Saporito (1974), 22 Ill. App. 3d 621, 317 N.E.2d 774.

Dawn also contends Judge Liffshin erred in denying her petition for change of venue. Pertinent statutory provisions regarding change of venue in civil cases (Ill. Rev. Stat. 1979, ch. 110, pars. 501, 503) read as follows:

“§1. A change of venue in any civil action may be had in the following situations:
O O «
(2) where any party or his attorney fears that he will not receive a fair trial in the court in which the action is pending, because " 0 0 the judge is prejudiced against him # °
“§3. ° ° ° A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case ° 0

Dawn’s petition alleged that Judge Liffshin was prejudiced against her. It was filed before the commencement of the hearing on Robert’s section 72 petition to vacate. The right to change of venue on account of alleged prejudice of the trial judge is absolute if the requirements of the statute are met. (Fennema v. Joyce (1972), 6 Ill. App. 3d 108, 285 N.E.2d 156.) Judge Liffshin summarily denied Dawn’s petition on the ground that he had already ruled on substantive matters and that her petition came too late. This Dawn claims was error requiring reversal. In response it is argued on behalf of Robert that the provisions relating to change of venue in civil cases do not apply to proceedings under section 72, citing the case of Kilbride v. Kilbride (1965), 64 Ill. App. 2d 355, 212 N.E.2d 252. In Kilbride the court ruled that the trial court committed no error in denying defendant’s motion for change of venue with reference to that portion of defendant’s petition which asked that the original decree of divorce be vacated. Here the trial judge also proceeded to hearing on Robert’s section 72 petition and vacated the portion of the original decree bearing on property rights. We find no error in this procedure.

On the property disposition issues Judge Rene Goier entered a supplemental judgment for dissolution of marriage which in reference to the marital home contained the following:

“[T]he Court finds that the Petitioner’s consideration for the marital residence fails, and that Petitioner shall reconvey her interest in said real property to the Respondent; said real estate commonly known as 6750 West Bryn Mawr, Chicago, Illinois, and legally described as follows:
° * * and that the Petitioner shall receive the sum of $5,000.00 from the Respondent as and for her interest in said marital property.
# # tt
THAT the Petitioner be and is hereby ordered to execute any and all documents necessary to transfer to the Respondent her 50% interest in the marital residence e *

The supplemental judgment also disposed of other items of marital property including two automobiles.

Dawn challenges the validity of this distribution particularly as it relates to the awarding of the marital residence, claiming that the judge’s decision was arbitrary and contrary to the manifest weight of the evidence. In support of this contention, Dawn argues that a valid gift of one-half of the marital residence was made to her by Robert, and that under Illinois law there is a presumption of gift when a wife is given title to property by her husband, notwithstanding the fact that the property was purchased in whole or in part from a husband’s funds. (Bruin v. Bruin (1966), 72 Ill. App. 2d 51, 219 N.E.2d 68.) The Illinois Supreme Court in In re Marriage of Rogers (1981), 85 Ill. 2d 217, 221-23, 422 N.E.2d 635, reviewed briefly the history of Illinois law relating to gifts between spouses.

“Prior to the advent of the new Illinois Marriage and Dissolution of Marriage Act [Citation], a marital residence held in joint tenancy was generally regarded as owned by both spouses, even if one spouse had furnished all of the consideration for it. The consideration-furnishing spouse was presumed to have intended a gift of one-half of the property. [Citations.] It was said that the gift presumption was one ‘of fact’ which could be rebutted ‘by clear, convincing, and unmistakable evidence that no gift was intended. [Citations.]’
O O #
Under the new act, section 503 classifies property as marital or nonmarital in order to assign or divide it upon a marriage dissolution [Citation], 000
Property acquired by either spouse after the marriage but prior to a judgment of dissolution is ‘presumed’ to be marital property, regardless of how title is held.
# e #
The Act does not purport, however, to change the law regarding interspousal transfers of property owned individually. It does not indicate, by implication or otherwise, any dissatisfaction with prior cases in which the intention of a spouse conveying property was ascertained. It may be anachronistic now to refer to an intent to convey a gift to the other spouse, but it is not improper to refer to an intent to convey a gift to the marriage. Therefore, a marital residence owned by both spouses, even if one spouse has furnished all of the consideration for it out of nonmarital funds, will be presumed ‘in fact’ as marital property, absent convincing rebutting evidence.”

Robert contends that no presumption of gift attaches to his assignment of one-half interest in the home to Dawn because the property transfer was made during a bigamous marriage. His contention finds no support in the Illinois Marriage of Dissolution of Marriage Act, which provides:

“§503 Disposition of Property
(b) All property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed to be marital property * 0 (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 40, par. 503(b).)

The property in question was placed jointly in the names of the parties before their first marriage was declared invalid and was therefore, by the terms of the Act, presumptively marital property. Furthermore, we find from the facts presented that the transfer constituted a valid gift to Dawn notwithstanding the circumstances of the parties’ first marriage. In our view the transfer of property was not made solely in reliance on the existence of a valid marital relationship. In this regard, we take particular note of the fact that Robert sought no relief from the court granting the annulment, to have the property reconveyed to him. Moreover, a second marriage was entered into approximately six months later, and the transfer to Dawn remained unchallenged despite the mandatory language of the Illinois Marriage and Dissolution of Marriage Act, which states:

“§503 Disposition of Property
«* # #
(c) In a proceeding for dissolution of marriage or declaration of invalidity of marriage, 600 the court shall assign each spouse’s non-marital property to that spouse.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 40, par. 503(c).

As a result of this inaction, the property after the judgment of annulment remained in the names of Robert and Dawn, each owning 50%. We find Dawn had that 50% interest before the second marriage. Under section 503(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(a)), property acquired before marriage is nonmarital property. The one-half interest in the residence was Dawn’s nonmarital property and, as such, upon dissolution of the marriage, should have been assigned to her under section 503(c) of the Act.

This case presents the issue: Was there a valid gift from Robert to Dawn? We find that there was. The supplemental judgment, in awarding the residence to Robert, contains the finding that Dawn’s “consideration for the marital residence fails.” A gift is a voluntary transfer of property to another made gratuitously and without consideration. (Black’s Law Dictionary 619 (5th ed. 1979).) To impose on the facts of this case the concept of failure of consideration was error.

For the reasons stated above the supplemental judgment for dissolution of marriage must be reversed and the cause remanded for further dispositional proceedings consistent with this opinion.

Reversed and remanded.

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


author: PRESIDING JUSTICE RIZZI

text:
    MILTON H. TUTTLE, Ex’r of the Estate of Bettye Kummerle, Deceased, Plaintiff-Appellee, v. LUCILLE K. ROSE, Defendant-Appellant.
    First District (3rd Division)
    No. 79-2185
    Opinion filed December 23, 1981.

      Peter G. Frezados, of Regas & Frezados, of Chicago, for appellant.
    Kevin J. Caplis, of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

This action was brought by Milton Tuttle, executor of the estate of Bettye Kummerle, to confirm judgment by confession on a promissory note executed by defendant, Lucille K. Rose, and made payable to the decedent, Bettye Kummerle. The trial court entered judgment in favor of plaintiff. We affirm.

At trial, the only witness was Milton Tuttle. He testified that subsequent to decedent’s death on July 13, 1977, and in the performance of his duties as executor of her estate, he found a promissory note in the amount of $10,000 in decedent’s safety deposit box. The note, which was dated October 24,1974, was executed by defendant and made payable to decedent. The note contained a confession of judgment clause. Tuttle, who had been decedent’s attorney, had seen the note before when decedent gave it to him in June 1975. He put it in her safety deposit box at that time and never removed it during decedent’s lifetime.

After plaintiff rested his case, defendant moved, for a directed finding, arguing that there was no evidence that the amount of the promissory note was still owing as alleged in the complaint. The motion was denied, and defendant did not present any evidence. The trial court entered judgment in favor of plaintiff for $10,000 plus interest, attorney’s fees and costs.

Basically, defendant contends that plaintiff did not prove the essential elements of his cause of action because he did not prove that the note remained unpaid. The evidence establishes that the note was found among decedent’s possessions. The note was introduced into evidence, and defendant does not dispute the genuineness of her signature or the execution and delivery of the note. Defendant argues that plaintiff was required to introduce additional evidence to prove that the note was unpaid.

Section 3 — 307 of the Uniform Commercial Code provides that when the signatures on a note are admitted or established, production of the instrument entitles a holder to recover unless the defendant establishes a defense. (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 307(2).) This means that once the holder produces the instrument, he is entitled to recover in the absence of any further evidence. The defendant has the burden of establishing any defense, including payment, by a preponderance of the evidence. Ill. Ann. Stat., ch. 26, par. 3 — 307, Comment, at 204 (Smith-Hurd 1963); Ill. Ann. Stat., ch. 26, par. 3 — 603, Comment, at 396 (Smith-Hurd 1963); cf. Niehaus v. Niehaus (1954), 2 Ill. App. 2d 434, 442, 120 N.E.2d 66, 70.

In the present case, the evidence was sufficient to establish that plaintiff is entitled to recover on the note. If defendant’s defense was that the note had been paid, the burden of proving payment was on defendant. (Telpner v. Hogan (1974), 17 Ill. App. 3d 152, 157-58, 308 N.E.2d 7, 10-11.) We reject defendant’s argument that plaintiff was required to prove nonpayment of the note by extrinsic evidence because plaintiff alleged in his complaint that the note was not paid. We also reject defendant’s argument that plaintiff had to prove nonpayment of the note because defendant denied in a verified answer that the note was not paid.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA and McGILLICUDDY, JJ., concur.


text:
    DEANA PLESNICAR, a Minor, by Arlene Plesnicar, her Mother and Next Friend, Plaintiff-Appellant, v. ESTHER KOVACH et al., Defendants-Appellees.
    First District (5th Division)
    No. 80-2082
    Opinion filed December 28, 1981.

      Roland C. Upton and William J. O’Connor, both of Chicago, for appellant.
    Schaffenegger, Watson and Peterson, Ltd., and Lenard C. Swanson and Kathy Pinkstaff Saxton, all of Chicago (Jack L. Watson and Wildman, Harrold, Allen & Dixon, of counsel), for appellees.
   JUSTICE WILSON

delivered the opinion of the court:

Plaintiff appeals from an order of the trial court striking counts II, III and IV of her second amended complaint. On appeal, she contends that counts II, III and IV allege proper causes of action against defendants. We affirm the trial court. The pertinent facts follow.

In count I of the complaint, plaintiff, a minor, alleges that she suffered severe and permanent injuries when she was struck by Esther Kovach’s car while she was crossing St. Charles Road in Berkeley, Illinois. Count II was directed against the Village of Berkeley (Village). She alleges that the intersection of St. Charles Road and Wolf Road was unreasonably dangerous in that it carried a high volume of traffic and the traffic lights at no time prohibited the movement of traffic so as to allow a pedestrian to cross this road without being endangered. She further alleged that Village was aware of this danger and the fact that minors attending the junior high school would be required to attempt to cross this intersection. Specifically, the complaint alleges the Village committed these wrongful omissions:

(a) Failed to provide crossing guards to assist minors to cross the said intersection.
(b) Failed to post signs to warn minors of the unusual dangers of the intersection.
(c) Failed to post adequate warnings to minors of the unusual dangers posed by the intersection.
(d) Otherwise carelessly and negligently operated, managed and controlled those portions of the said intersection under its control and the approaches thereto.

Count III alleged that the school district, with knowledge of the dangerous intersection, conducted and invited students to participate in a program of extracurricular activities at the junior high school. Further, the school district, which provided school bus transportation for the students, failed to provide such service for students remaining after regular hours to participate in the extracurricular activities. As such, she was required to walk home after remaining in school as a participant in an extracurricular activity and was injured as she attempted to cross the intersection. Specifically, plaintiff alleges that the school board:

(a) Failed to provide a system of bus transportation to transport students remaining after regular class hours to participate in extracurricular activities to their homes.
(b) Provided a bus system for transportation of students which was defective, in that it did not provide transportation for students remaining after normal class hours to participate in extracurricular activities to their homes.

Count IV contains allegations of wilful and wanton acts and/or omissions on the part of the school district for failing to (1) provide adequate supervision for students upon their dismissal; (2) warn students of the dangerous intersection; (3) provide adequate assistance to students crossing the intersection; and (4) transport students leaving the school after extracurricular activities.

The Village of Berkeley filed its motion to dismiss for failure to state a cause of action. It argued that the operation of the traffic lights at the intersection did not constitute an unusual danger and it had no duty to provide crossing guards.

The school board also made a motion to strike and dismiss, alleging that it had no duty to provide bus service for students participating in extracurricular activities and that the bus system was not defective for failure to do so.

The trial court granted the motion to dismiss counts II, III, and IV, ruling that no legal duty existed and relying on the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 1 — 101 et seq.).

Opinion

Plaintiff initially contends that count II of her complaint properly states a cause of action against the Village in that the Village provided an inadequate traffic control device at the intersection in question and failed to provide crossing guards to assist minors across the intersection.

Our supreme court has held that once a governmental unit “adopts a plan in the making of public improvements,” it owes a duty to a plaintiff to maintain those improvements. (Johnston v. City of East Moline (1950), 405 Ill. 460, 466; Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, 251 N.E.2d 227.) Further, while the Local Governmental and Governmental Employees Tort Immunity Act offers broad protection to actions of governmental units, it does not offer municipalities absolute immunity from tort actions. (Ill. Rev. Stat. 1979, ch. 85, par. 1—101 et seq.; First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 373 N.E.2d 1326.) However, a plaintiff is not relieved of the necessity of stating a cause of action (First National Bank), which in this pending matter, she does not.

It appears that the signals at the intersection were standard traffic lights conforming to the State Manual and Specifications used throughout the State of Illinois. (See Ill. Rev. Stat. 1979, ch. 95/á, par. 11 — 304 et seq.) Thus, a pedestrian wishing to cross the intersection could do so when the signal facing him permitted him to do so, and all vehicular traffic was required to yield to all pedestrians lawfully within the intersection. Plaintiff’s complaint does not allege that the operation of the traffic signals were defective, nor does it allege that the Village failed to maintain the intersection in a reasonably safe manner. Further, plaintiff has not cited any authority wherein the Village has a duty to provide crossing guards for school children at street intersections. Thus, plaintiff has failed to adequately state a cause of action against the Village.

Next, plaintiff asserts that the facts pleaded in count III form the basis of a negligence action against the school board. Essentially, plaintiff alleges that the school district failed to exercise reasonable care in the selection and provision of a bus system for transportation of students. The bus system was defective in that it did not transport children participating in after school extracurricular activities. We disagree.

Section 29 — 3 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 29 — 3) provides that school boards shall provide free transportation to students residing Vii miles or more from any school to which they are assigned. This transportation is provided where walking may constitute a serious hazard to the safety of the students due to vehicular traffic and is not to be provided if there is adequate public transportation. The language of the statute grants the school board authority to make a determination as to what constitutes a serious safety hazard and provides immunity for the school board for decisions made in accordance with the statute. Further, other provisions of the statute allow the school board discretion in providing transportation from any school-sponsored activities. (Ill. Rev. Stat. 1979, ch. 122, pars. 29 — 3.1, 29 — 3.4.) Moreover, the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 1 — 101 et seq.) provides immunity for a public body in the exercise of its discretion. Ill. Rev. Stat. 1979, ch. 85, par. 2 — 201.

Plaintiff principally relies on Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, in seeking to hold the school district liable for failing to exercise reasonable care in the selection of and provision of a bus system for transportation of students. It is plaintiff’s contention that this failure constituted negligence because the system did not transport students who stayed after regular hours to participate in extracurricular activities. It is well settled and plaintiff acknowledges that parents are not liable for injuries to children absent wilful and wanton misconduct. The School Code (Ill. Rev. Stat. 1979, ch. 122, pars. 24 — 24 and 34 — 84a) confers upon educators in loco parentis status and our supreme court has held that this status extends to nondisciplinary as well as disciplinary matters. Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705; Nielsen v. Community Unit School District No. 3 (1980), 90 Ill. App. 3d 243, 412 N.E.2d 1177.

In Gerrity, plaintiff alleged that the school district had negligently provided him with an inadequate and defective football helmet. The trial court dismissed the complaint, but our supreme court held that it was not unduly burdensome or inconsistent with the intended purposes of the immunity conferred by the School Code (Ill. Rev. Stat. 1973, ch. 122, pars. 24 — 24,34—84a) to hold school districts to the duty of ordinary care in the furnishing of equipment for students’ use in school sports events. Thus, the school district was not immune from a student’s suit for ordinary negligence alleging that the district furnished a defective helmet for use at a school football game. Similarly, in Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447, our supreme court upheld a determination of a school district’s liability for injuries sustained by a player in a “powder puff” football game. The court held that the evidence in the case sufficiently indicated that the activity was connected with the school program although the school district contends that it did not authorize or sponsor the game. The school district was required to furnish the proper equipment for the personal protection of the players.

However, the facts of these cases are not analogous to the circumstances in the manner before us. In those instances, the school districts were held liable for negligence in that the provided equipment was not fit for the purpose intended or the school district breached its affirmative duty to provide necessary athletic equipment for the school activity to prevent serious injuries. In the pending matter, plaintiff seeks to hold the school district liable for the absence of bus service, which by statute was discretionary for after-school activities. Plaintiff has not cited any authorities placing any affirmative duty on the school district to supply this missing bus service.

Having considered the statutory language as well as case law and their applicability to the facts of this case, we must determine that plaintiff’s complaint does not provide a basis for a cause of action against the School Board based on “negligence” for failing to provide transportation for after-school activities.

Having determined that the trial court properly dismissed count III of the complaint, we need not address the issue presented by count IV of the complaint which alleges wilful and wanton conduct on the part of the school district.

For the foregoing reasons, the orders of the trial court dismissing counts II, III and IV of plaintiff’s complaint are affirmed.

Affirmed.

SULLIVAN, P. J„ and LORENZ, J, concur.

       The language of plaintiff’s complaint would seek to have the school district provide transportation to all students who participated in after-hour activities.


text:
      In re MARRIAGE OF PAMELA E. COOPER, a/k/a Pamela E. Radick, Petitioner-Appellee, and THOMAS WILLIAM COOPER, JR., Respondent-Appellant.
    First District (5th Division)
    No. 81-1265
    Opinion filed December 28, 1981.

      John E. Cunningham, of Chicago, for appellant.
    Carl A. Champagne, of Chicago, for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

Respondent appeals from the trial court’s order granting petitioner’s request for increased child support payments. Respondent contends that, in modifying the support payments, the trial court erroneously disregarded several relevant considerations under section 505 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 505). We reverse and remand.

Respondent and petitioner were married in 1965. Three children were born during their marriage. The marriage was dissolved on June 8, 1971. Pursuant to the divorce judgment, respondent was ordered to pay $65 per week for child support. At the time, he was earning $165 per week and petitioner was earning approximately $100 a week. The support payments were modified to $60 a week within a year of the divorce judgment.

On December 18,1980, petitioner filed her request for an increase in child support payments, alleging an increase in the children’s financial needs and a corresponding increase in respondent’s ability to pay. Respondent denied the allegations.

A hearing on the petition was held on May 1,1981. Both parties filed income and expense affidavits and testified at the hearing. Petitioner stated that she had remarried and had two children as a result of the second marriage. The three children of the parties’ marriage, at the time of the hearing, were 11, 12, and 14. Petitioner testified that her expenses for them have doubled since the 1971 divorce judgment. They now go to private school, which costs at least $220 per month. Petitioner claims that out of her total monthly expenses of $2,220, $1,500 goes for the children’s expenses. She also testified that she lives in a two-story, five-bedroom residence with her husband and five children. Because she stays at home to care for the five children, she only works part-time as a wallpaper hanger. Her monthly earnings range from $65 to $80.

Respondent, a police officer for over 13 years, earns $1,942.07 monthly gross salary, or $1,342.71 after deductions. His affidavit reflects total expenses of $1,478.08. At the hearing he testified that he sometimes works overtime, which could be averaged at approximately $150 per month. In addition, he earns $50 a month from a part-time job. He has remarried and has one child from his present marriage. He testified that his current wife went to work full time in 1981 to help meet the expenses.

At the conclusion of the hearing, the trial court found respondent’s net monthly income to be $1600 and that 34% of this amount was a fair basis for the support modification. Respondent appeals from that order.

Opinion

Respondent charges that the trial court disregarded the evidence and arbitrarily calculated a percentage of respondent’s income as the basis for the increase, thus ignoring his actual ability to pay. In so doing, the court violated the purpose of section 505(a) of the Act, which provides that the court may order either or both parents to pay a necessary and reasonable amount of support “after considering all relevant factors, including: (1) the financial resources of the child; (2) the financial resources and needs of the custodial parent; (3) the standard of living the child would have enjoyed had the marriage not been dissolved; (4) the physical and emotional needs of the child, and his educational needs; and (5) the financial resources and needs of the noncustodial parent or parents.” Respondent argues that the court failed to consider that the three children’s standard of living has actually risen because they now live in a five-bedroom house and go to private schools, whereas if the marriage had remained intact, the children would not enjoy such benefits. In addition, he argues that the court failed to consider his expenses and the needs of his second family.

Under the Illinois Marriage and Dissolution of Marriage Act, child support may be modified only upon the showing of a substantial change of circumstances. (Ill. Rev. Stat. 1979, ch. 40, par. 510(a); In re Marriage of Schmerold (1980), 88 Ill. App. 3d 348, 410 N.E.2d 629.) To establish such change as would warrant an increase in support, petitioner must show that the children’s needs and the noncustodial spouse’s ability to pay have increased. (In re Marriage of Adams (1981), 92 Ill. App. 3d 797, 416 N.E.2d 316.) In assessing the children’s increased needs, it is proper to consider that they have grown older and that the cost of living has risen, but this must be balanced against the relative ability of the parents to provide for the children. (Schmerold.). Moreover, “[i]t is an abuse of discretion to consider only the father’s income when determining the issue of child support and to ignore the statutory language specifying that the circumstances of the parties should be considered in determining what arrangements would be reasonable and proper.” In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1115, 421 N.E.2d 1308, 1315.

In this case, the parties did file expense affidavits and did testify in court. Nevertheless, the transcript of the May 1, 1981, hearing on the modification petition indicates that the trial court’s consideration of relevant factors under section 505(a) was minimized in favor of the percentage-of-income formula. At the beginning of the hearing the judge told the attorneys that they were “too busy” to spend time in court and that they should follow his guidelines because the court follows them “99% of the time.” The judge further stated, however, that there were other considerations and “under no circumstances would he be locked in on guidelines.” After hearing testimony and considering the affidavits, the court found that respondent’s net monthly income was $1600 and, taking 34% of that figure, ordered him to pay approximately $125 per week in child support.

We recently held that section 505(a) of the Act “does not provide for a normal or standard rate of child support based on a percentage of the noncustodial parent’s income. Rather, the amount of child support is to be determined by accommodating the needs of the children with the available means of the parties.” (In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1114, 421 N.E.2d 1308, 1313.) In Brophy, the trial court had ordered the husband to pay $500 per month, or approximately 36% of his “spendable income.” The trial court went on to state that he used this “low figure” because the husband was remarried and had another child to support, but that normally, the support award would be 40%. On appeal, the husband successfully argued that basing the award on a standard percentage of his income was an abuse of discretion. We noted in Brophy that, although specific findings are not required, it is imperative for the record to indicate that the trial court considered the section 505(a) factors.

The record in the present case reflects that there was some evidence of both parties’ income and expenses before the trial court. We cannot presume that the trial court utterly disregarded respondent’s expenses and obligations to his second family. Nevertheless, we find that the amount of the award in this case is not supported by the evidence, and, to the extent that the trial court perhaps overemphasized the percentage of the income formula, we must reverse the order and remand for a new hearing.

Respondent’s expense affidavit indicates monthly gross income of $1,942.07, net income of $1,342.71, and total expenses of $1,478.08. Although he testified to earning an additional gross monthly amount of $200, based on his fluctuating overtime plus a part-time job, we agree that the trial court’s finding of $1600 net or take-home pay is somewhat inflated. Even assuming that $1600 approximates respondent’s spendable income, however, we note that after subtracting his expenses of $1,478.08, he would have only $122 per month left. This “surplus” amount is substantially less than the court-ordered increase of $285 per month. While the increase in a spouse’s income is an important consideration in modifying child support, it is clearly not the sole factor under section 505(a) of the Act. Therefore, we do not believe that the mechanical application of a percentage formula in this case yielded a just determination of respondent’s ability to pay.

Furthermore, we note that while petitioner testified to expenses for the children of $1500 per month, her affidavit reflects the much smaller sum of $496.25 (which includes a presumably nonrecurring expense of $107 for eyeglasses). This sum is for the clothing, education, medical, and personal expenses of the children. The rest of their expenses, apparently, are based on a pro-rated calculation of the mortgages, taxes, utilities and like costs. It is not clear from petitioner’s affidavit or testimony, however, what percentage of these costs should be allocated to the three children and what portion is for petitioner and her second family.

Hence, we cannot determine with any certainty how much the children’s needs have actually escalated. It is true that petitioner did not request an increase in 10 years and it is quite probable that their needs have increased in that time. Indeed, respondent does not seriously question that their needs have increased. He maintains, however, that at least part of their expenses, such as the private school tuition, should not be chargeable to him. He argues that he cannot afford private school tuition and that had the marriage between him and petitioner continued, the children would not be able to attend private school on his salary. We have held that a court may order a supporting spouse to pay for private schooling, under certain circumstances, even if there are public schools available. (Greiman v. Friedman (1980), 90 Ill. App. 2d 941, 414 N.E.2d 77.) We qualified this statement by recognizing that the child does not have unlimited discretion to attend a private school at her father’s expense and that a court in some circumstances might find it inequitable to require a father to pay the greater expenses. We further noted, in holding that the expenses of “second families” are relevant, that when divorced spouses remarry, they are likely to “pool their resources with those of their second spouses, so that their assets and liabilities are substantially intertwined.” (Greiman v. Friedman (1980), 90 Ill. App. 2d 941, 949, 414 N.E.2d 77, 84.) We conclude that in the instant case, the financial resources and liabilities of both parties were not adequately determined. In view of the court’s reliance on the percentage formula, therefore, we reverse the judgment of the trial court and remand the cause for a new hearing.

Reversed and remanded for further proceedings consistent with this opinion.

SULLIVAN, P. J., and MEJDA, J., concur.

       Respondent states that the private school expense is $90 a week, which would total $360. The $220 figure is listed on petitioner’s expense affidavit, which shows the average expenses for April of 1980. There is a reference in the report of proceedings to an amended affidavit, but it does not appear in the record.


author: PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERMAN BANKS, Defendant-Appellant.
    First District (2nd Division)
    No. 80-850
    Opinion filed December 22, 1981.

      Marc R. Kadish, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Constantine N. Bastounes, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was charged with and, following a bench trial, found guilty of murder. He was sentenced to 25 to 40 years imprisonment. Defendant appeals, raising as issues whether: the trial court properly admitted the testimony of an occurrence witness whose current address or telephone number had not been provided to defendant; the court erred in examining matters outside the record; and defendant was proved guilty beyond a reasonable doubt. For the following reasons we affirm.

Before trial, defendant moved to require the State to either amend its list of witnesses or specify whom it intended to have testify, so that defendant could determine whether to proceed with a jury or bench trial. That motion was denied, and he waived a jury trial “under protest.” The prosecution then sought and received a continuance to the next day, noting that some of its witnesses were to be flown in from out of State.

At trial, Lisa Gillihan, who was living with the victim, Nolan Claire, on November 4, 1977, testified that on that date, upon returning to his apartment at 9:30 p.m., she observed two men standing in front of the door. She knocked and Alfred Taylor admitted her and the two men. Three people, including Taylor, were already in the apartment: Tony Collier, seated on a chair facing the window; Claire, seated on a couch; and Taylor, who was in the kitchen. Gillihan told Claire he had company and that she did not know who they were. Claire then turned, stood, and raised his hands, at which point the larger man shot Claire once with a rifle. The assailant was over six feet tall, wore a brown jacket and had a beard and mustache. On cross-examination Gillihan admitted she had been injected with drugs that night by Claire, and that the apartment lighting had been dim.

After Gillihan’s testimony, the State announced that its next witness would be Anthony Collier. The defense moved to bar Collier’s testimony and for a mistrial on the ground that defendant had not been provided with Collier’s current address in New York, only his last known address in Chicago. Defendant argued that: if he had known Collier was available, he would have requested a jury trial; since he had been informed only of Collier’s Chicago address and that he now lived somewhere in New York City, defendant had surmised that the State had not located Collier, who would not testify; and he was thus misled as to Collier’s availability. Defendant claimed that had he been given Collier’s present address, he would have attempted to interview him. The State responded that it did not know Collier’s current address, only two telephone numbers through which a message to Collier could be forwarded. The court denied defendant’s motion, but granted defense counsel an opportunity to interview Collier, who, however, refused to cooperate.

Collier testified that on November 4,1977, at 8 p.m. he was in Claire’s apartment with Gillihan, Harold Hayes, Taylor and Claire. Gillihan, Hayes and Claire left. Hayes returned at 9:15 p.m.; Claire returned at 9:30 and sat on the couch in the living room; and Collier also sat in the living room, on the chair facing the window. There was a light on in the kitchen and bathroom, and street lights were shining into the window, so that he was able to read. At 9:30 Gillihan returned, and said, “you have company, I don’t know who it is.” Claire replied, “wait a minute, who are you letting in here.” Collier heard another voice say, “what did you say nigger?”, and he turned to face the speakers. Defendant was standing 5 or 6 feet away from Collier and 3 feet from Claire. He saw defendant shoot Claire with a rifle. Gillihan stood 7 or 8 feet from Collier in the same room. Taylor was “nodding” in the kitchen. Defendant wore a long brown trench coat. Collier testified he had known defendant and his family for 7 or 8 years. After the shooting, Collier ran downstairs to call police. Outside he saw defendant and another man 50 to 60 feet away, in a lighted alley. Collier heard defendant ask the other man, “did you see the expression on the mother fucker’s face right before I shot him?” Although Collier called the police that night, he did not talk to them until November 11 or 12 at which time he identified defendant as the assailant.

On cross-examination Collier testified that Claire and Hayes had injected Gillihan with drugs the night of the murder, and they had both taken drugs themselves as did Taylor. He also stated that defendant was the larger of the two men in the apartment.

After closing argument, the court found defendant guilty. Defendant moved for a new trial, alleging that: he was prejudiced by Collier’s having been called as a witness because he was never provided with a list of the actual, as opposed to potential, witnesses to be called; he was not provided with Collier’s actual address pursuant to Supreme Court Rule 412(a) (i) (Ill. Rev. Stat. 1979, ch. 110A, par. 412(a) (i)); nor was he provided with the telephone numbers through which Collier was contacted by the State; and, in giving “New York City” as an address, the State implied it had no means of having Collier testify. The State argued defendant was not prejudiced or surprised by Collier’s testimony since it comported with his preliminary hearing testimony; and Collier was not impeached with regard to his written statement to the police or his preliminary hearing testimony because his testimony comported with both statements. The court denied the motion, stating that defendant’s arguments were substantially the same as in his previous motion for a mistrial; Collier’s testimony at the preliminary hearing was substantially similar to his in-court testimony; and there was no evidence that defendant made any effort to contact or interview witness Gillihan before her testimony. The court also stated, “* ° 6 referring back to the testimony of Mr. Collier at the trial * * * there was no impeachment of his testimony by the attorney for the defendant based on the testimony of the defendant at some prior date, namely, the preliminary hearing * *

Defendant’s motion to reopen the evidence to call Taylor was granted. Taylor testified that on November 4, 1977, he was present in Claire’s apartment at 9 p.m., along with Collier, Gillihan, and Claire. He and Gillihan were in the kitchen, and Claire was in the living room, when Gillihan answered the door and announced two people wanted to speak to Claire. Claire said, “let them in.” They came in and Gillihan returned to the kitchen. Collier was in the bathroom with the door closed. Taylor was sitting at the door in the kitchen, and nothing blocked his view of the living room. One of the two men shot Claire with a rifle. Collier never emerged from the bathroom during the murder. Taylor testified that defendant was not one of the two men in the apartment that night. On cross-examination Taylor stated the shorter of the men in a black coat had the rifle. He, as well as Gillihan and Claire, had taken drugs before the incident; Gillihan had injected herself with drugs. Taylor never told the police what he saw that day. After Taylor’s testimony, the court again found defendant guilty and sentenced him as previously set forth.

Defendant first contends that in failing to supply him with the telephone numbers through which the State had reached Collier, or with Collier’s address, the State failed to comply with Supreme Court Rule 412(a) (i) and with section 114 — 9(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114 — 9(a)). Both require the State to provide defendant with a prosecution witness’ last known address and defendant argues that they must be interpreted to include any means through with a witness may be reached by defendant, including a telephone number. Further, defendant asserts, the State is obliged to update the addresses of any of its witnesses who have moved. Ill. Rev. Stat. 1979, ch. 110A, par. 415(b).

It is within the trial court’s discretion to admit testimony of unlisted witnesses, and the exercise of that discretion will not be disturbed absent a showing by the accused of resulting prejudice or surprise. (People v. Jordan (1967), 38 Ill. 2d 83, 93, 230 N.E.2d 161; People v. Dees (1977), 46 Ill. App. 3d 1010, 361 N.E.2d 1126.) Here, the trial court allowed a listed witness to testify over objection that an incomplete address for the witness was given to defendant. In light of the fact that defendant has not shown that he was surprised or prejudiced thereby, we find no abuse of discretion. (People v. Allen (1971), 132 Ill. App. 2d 1015, 1023, 270 N.E.2d 54. See also People v. Anderson (1977), 46 Ill. App. 3d 607, 614-15, 360 N.E.2d 1371.) Collier was listed as a witness. There is nothing in the record demonstrating that the defense sought to contact Collier either in Chicago or New York. Defendant was informed that witnesses were to be flown in from other States. Defendant made no showing that the unlisted witness could have been impeached had preparation been afforded; indeed, the State’s assertion that Collier’s testimony was consistent with the police statement and his preliminary hearing testimony has not been refuted. He was given the opportunity to interview Collier before he testified. Finally, no continuance was sought to further prepare, but defendant proceeded with the trial. People v. Jordan; People v. Dees.

Defendant claims that the State’s failure to comply with discovery rules prejudiced him by impeding the effectiveness of his cross-examination, relying upon Alford v. United States (1931), 282 U.S. 687, 692, 75 L. Ed. 624, 627-28, 51 S. Ct. 218. Alford held that cross-examination of a witness regarding his residence must be allowed so as to “place the witness in his proper setting.” There is no indication in the record, nor does defendant allege, that he was prevented from cross-examining Collier as to his residence. Defendant also cites People v. Gonzales (1970), 120 Ill. App. 2d 406, 408, 257 N.E.2d 236, in which an indictment was dismissed because the addresses of the State’s witnesses were not provided. The defendant in Gonzales, however, was not furnished with any addresses for the State's witnesses; here, defendant was provided with Collier’s Chicago address. Defendant never inquired about Collier’s address during cross-examination, nor did he otherwise indicate that he was interested in the address for investigative purposes. People v. Keating (1971), 2 Ill. App. 3d 884, 888, 270 N.E.2d 164.

Defendant insists that the State’s alleged noncompliance with the aforementioned sections deprived him of his right to a jury trial, asserting that he would not have waived a jury had he known Collier would be a witness; the State misled him into believing that Collier would not be called by failing to provide his address or telephone number; and his jury waiver was thus not knowingly exercised, relying on People v. Norris (1978), 62 Ill. App. 3d 228, 231, 379 N.E.2d 80. In Norris, the defendant was held entitled to a mistrial where a jury waiver was entered by him under the misapprehension that there were no eyewitnesses to the crime charged. The State, after trial began, added an eyewitness to its witness list and called him to the stand. Norris is inapposite here since Collier was included in the State’s list of intended witnesses.

Defendant next assigns as error the fact that the trial court considered Collier’s preliminary hearing testimony, which was not introduced into evidence, in finding defendant guilty, referring to the court’s statement in its ruling pursuant to defendant’s post-trial motion, that Collier’s testimony at trial was not impeached by his preliminary hearing testimony. Citing cases that hold that a court may not consider matters outside the evidence in determining guilt, defendant insists that the trial court here used the preliminary hearing evidence to bolster Collier’s testimony at trial, particularly when the court compared Taylor’s testimony to Collier’s.

Although a determination made by the trial court based upon its private knowledge or on a private investigation of the court normally constitutes a denial of due process of law (People v. Wallenberg (1962), 24 Ill. 2d 350, 354, 181 N.E.2d 143), not every circumstance in which extraneous or unauthorized information reaches the court requires reversal or a new trial. Such a disposition rests upon whether or not the defendant may have been prejudiced. (People v. Coe (1978), 67 Ill. App. 3d 552, 564, 384 N.E.2d 987.) Reliance on information found dehors the record is not reversible error where there is no evidence that it either misled or entered into the trial court’s determination. (People v. Barnes (1977), 48 Ill. App. 3d 226, 230-31, 363 N.E.2d 50.) Specifically, a denial of due process results only where the trial court has used the information to contradict important evidence offered by the defendant. People v. Jeffries (1962), 26 Ill. 2d 248, 186 N.E.2d 242; People v. Taylor (1968), 95 Ill. App. 2d 130, 137, 237 N.E.2d 797.

It is clear from the instant record that the court did not consider Collier’s preliminary hearing testimony for any purpose either directly or tangentially related to determining defendant’s guilt. The court’s remarks were addressed to defendant’s post-trial claim of prejudice in not having been supplied Collier’s current address or telephone number. The court compared Collier’s trial testimony with his preliminary hearing testimony in order to establish whether, due to the State’s disregard of discovery rules, defendant had been surprised by the content of Collier’s testimony at trial, not to determine defendant’s guilt or innocence. In a bench trial, it is presumed that the judge considered only admissible and disregarded inadmissible evidence in reaching his conclusion. (People v. Harris (1974), 57 Ill. 2d 228, 314 N.E.2d 465; People v. Wallenberg (1962), 24 Ill. 2d 350, 181 N.E.2d 143.) We see no basis here for setting aside that presumption.

Finally, defendant asserts that he was not proved guilty beyond a reasonable doubt. We disagree. Our analysis of the evidence, set forth earlier in this opinion, convinces us that the trial court’s determination well supported the finding of defendant’s guilt beyond a reasonable doubt.

It is neither our duty nor privilege to substitute our judgment as to the weight of disputed evidence or the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses. People v. Novotny (1968), 41 Ill. 2d 401, 412, 244 N.E.2d 182.

For the foregoing reasons, we affirm defendant’s conviction.

Affirmed.

STAMOS and PERLIN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR G. ROBINSON, Defendant-Appellant.
    First District (2nd Division)
    No. 80-1235
    Opinion filed December 22, 1981.

      James J. Doherty, Public Defender, of Chicago (Emily Eisner and Aaron L. Meyers, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Theodore Fotios Burtzos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Defendant Arthur G. Robinson was charged by information with attempted murder (Ill. Rev. Stat. 1975, ch. 38, par. 8 — 4), armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 2), unlawful restraint (Ill. Rev. Stat. 1975, ch. 38, par. 10 — 3), and three counts of aggravated battery (Ill. Rev. Stat. 1975, ch. 38, pars. 12 — 4(a), 12 — 4(b)(1)). At trial, defendant interposed the defense of insanity. (Ill. Rev. Stat. 1979, ch. 38, par. 6 — 2.) A jury found defendant not guilty of attempted murder, but guilty of all other charges. The trial court sentenced defendant to indeterminate sentences of 1 to 3 years for unlawful restraint, 3 to 10 years for aggravated battery, and 10 to 20 years for armed robbery.

Defendant asks this court to determine whether (1) the trial court erred in refusing defendant’s pretrial motion for a separate trial on his claim of insanity; (2) he was denied an impartial jury when the trial court refused to ask the veniremen certain questions offered by defense counsel relating to the insanity defense; (3) certain allegedly erroneous evidentiary rulings prejudiced the insanity defense; (4) the State failed to prove defendant sane beyond a reasonable doubt; and (5) the trial court erred in tendering a certain instruction to the jury regarding the insanity defense.

On the evening of June 22, 1977, Jessie Carter was stabbed by defendant, forced into the trunk of his own car, and driven around parts of Chicago for several hours prior to making an escape. Several days later, defendant was arrested and charged with the offenses involved in this case.

Prior to trial, defense counsel requested a bifurcated trial so that he could separately present the questions of self-defense and the defense of insanity, claiming that these defenses were antagonistic. The trial court denied the motion on the ground that these allegations were insufficient to warrant two separate proceedings.

Jury selection began on May 17,1979. Defense counsel presented the court with seven questions he desired be asked of prospective jurors, aimed at determining the veniremen’s thoughts about the insanity defense. The trial court ruled that only two of the questions could be asked. Although voir dire proceedings followed, this court has not been provided with a transcript or any other type of record of that phase of the trial.

At trial, victim Jessie Carter appeared at the behest of the State. On the evening of June 22,1977, Carter was at a pool hall on the west side of Chicago. He left the hall at about 10 p.m. As he went to his car, Carter heard someone call his name. He looked up and saw defendant, whom he had seen occasionally before. Defendant asked Carter for a ride to defendant’s home. Carter agreed, and defendant entered the car. At that time, defendant asked Carter if he had any money, and Carter stated that he did not. Defendant then asked Carter to perform an act of oral sex upon him and then pay defendant for it. Carter refused. Defendant then asked Carter to wait while he went back into the pool hall for a moment. Three or four minutes later, defendant reentered Carter’s car and asked again for money. Carter repeated that he had none, and defendant pulled a knife. He grabbed Carter around the neck and stabbed him in the ribs. Defendant then told Carter to start driving. The two men drove for several minutes, then defendant instructed Carter to pull over. Carter got out of the car and was told to walk to the trunk. Defendant again requested Carter to perform the oral sex act, but Carter refused. Defendant then took Carter’s money, about $2, and forced Carter into the trunk.

Defendant drove the car for about two hours, stopping on three occasions. Meanwhile, Carter was able to remove the trunk lock. On the last stop, as defendant approached the trunk, Carter quickly flipped the trunk lid open and swung at defendant with a tire jack, knocking the knife out of defendant’s hand. Defendant ran and Carter yelled for help. Eventually, he spotted a police car and was taken to the hospital. Several days later, Carter learned defendant’s full name and related it to the police. On cross-examination, Carter related that defendant was upset and excited at the time he stabbed Carter.

Officer Robert Thorne testified that he and his partner arrested defendant at his home on July 11, 1977. Thorne stated that defendant acted “normal for that area” when arrested, asking Thorne what he was being charged with. On redirect examination, Thorne stated that he averaged 80 arrests per month during his first six years on the force and 10 arrests per month in the following two years. Over objection, Thorne noted that about 85% of those arrestees asked what they were arrested for.

At the conclusion of Thorne’s testimony, the State rested its case in chief.

Defendant’s sister, Ailene Robinson, testified to childhood life in the Robinson family. Robinson described her mother as very strict and domineering. She once punished defendant at the age of 10 by sending him to school dressed in girl’s clothing. Defendant was sent to Chicago State Hospital, a mental institution, at that age. He spent over a year there. About two and then four years later, defendant was sent to Elgin State Hospital. In 1977, defendant was sent to the Madden Mental Health Center in Maywood.

Robinson related that defendant desired to be an artist. She was present when defendant tried to hang himself, and earlier when he jumped out of a window. Defense counsel attempted to ask Robinson about defendant’s attitudes on homosexuality. The State’s objections were sustained.

Dr. Victoria Orfei examined defendant at the Madden Mental Health Center on June 28, 1977, six days after he attacked Carter. She did not make a mental diagnosis. At the exam, defendant was in an agitated, uncooperative state. Defendant told Orfei that he had been attacked by a homosexual on the previous night and “was forced to drink an alcoholic beverage.” Orfei diagnosed only hypertension.

The central witness to defendant’s insanity claim was psychiatrist Marvin Ziporyn. Dr. Ziporyn has practiced psychiatry since 1955. He examined defendant once, for 45 minutes, on May 30, 1978. At that time, he had read reports on defendant’s prior treatment at Madden, and at Elgin in 1963. Dr. Ziporyn stated that knowing a person’s prior history is useful in determining his sanity. The examination of defendant was a standard psychiatric test involving an interview, a physical exam, and a formal mental status exam consisting of specific questions. During this procedure, there was “quite a bit” of discussion about homosexuality. Defendant told Dr. Ziporyn that he had been a constant target of homosexual attack or seduction throughout his life. Defendant said he found homosexuality to be very shameful, extremely distasteful, and unpleasant. Defendant did not specifically deny having engaged in homosexual acts.

During the exam, defendant told Dr. Ziporyn about his version of the events concerning Carter. Defendant stated that Carter made advances upon him, and that he had to defend himself with violence. Dr. Ziporyn did not believe that defendant’s story was truthful. However, he did not find defendant to be deliberately or consciously attempting to fake a mental or other illness.

Dr. Ziporyn’s analysis of the results of the exam indicated that defendant engaged in defense mechanisms to handle his unacceptable strong homosexual desires. Defendant utilized the defense mechanism of projection, whereby he ascribed feelings he did not like about himself to others and transferred blame to those others. Dr. Ziporyn believed that defendant’s problems existed since his childhood, and that he still had the problems. Defense counsel posed a hypothetical to the psychiatrist based upon all the relevant facts of this case. Based upon those facts, Dr. Ziporyn opined that defendant was suffering from a mental disease at the time of the incident which prevented him from appreciating the criminality of his conduct and from conforming his conduct to the requirements of the law. The psychiatrist’s diagnosis was that defendant was then suffering from a paranoid state, a psychotic condition which involves heavy utilization of projection. Dr. Ziporyn believed defendant’s suicide attempts were not a symptom of paranoia, but were the manifestation of the defense mechanism of introjection, whereby anger is turned inward against oneself. Introjection is usually seen hand-in-hand with projection. Paranoid individuals can also be expected to show signs of depression. Dr. Ziporyn’s findings were inconsistent with a diagnosis that defendant was a sociopath, because defendant’s actions evidenced pathology. It is not inconsistent for a paranoid person to engage in some rational behavior.

On cross-examination, Dr. Ziporyn admitted that two examiners could reach different conclusions concerning the same subject. The psychiatrist also stated that he had testified in criminal cases about 20 times in the prior year, more than half of the time for the State, though never for the State in Cook County proceedings. In 45-50% of the cases, Dr. Ziporyn testified that the person was insane. He stated that it is more difficult to determine the mental status of a person at a prior date on which he was not present.

At the conclusion of Dr. Ziporyn’s testimony, the defense rested its case.

Dr. Jewett Goldsmith appeared for the State as a rebuttal witness. Dr. Goldsmith, a psychiatrist, examined defendant by order of the court in July 1978 to determine defendant’s mental status at that time. He was not concerned with defendant’s sanity at the time of the incident giving rise to this case. He diagnosed defendant as suffering from depressive reaction with anxiety at the time of the exam. He did not diagnose a paranoid state or any indication of psychotic behavior. On cross-examination, Dr. Goldsmith stated that the suspicion that defendant had repressed homosexual tendencies presented itself. Attempts by the defense to question the witness about “projection” were met by objections which were sustained.

Dr. Gerson Kaplan has practiced psychiatry since 1959. He stated that he was not paid to make his testimony in court, but examined individuals and testified as to those exams as part of his duties with the Psychiatric Institute of Cook County. Dr. Kaplan examined defendant in November 1977, February and June 1978. The purpose of the initial exam was to determine defendant’s fitness to stand trial and to render an opinion as to his sanity at the time of the offense. This exam took 45 minutes, consisting of questioning and observation. Dr. Kaplan viewed a psychological report of defendant made prior to that time. He related that it was easier to evaluate a person’s sanity the closer the exam was to the time in question. Dr. Kaplan related that defendant did not indicate any depression or severe anxiety at the first exam. There was no evidence that defendant was psychotic; he had no bizarre mannerisms; and his behavior was “strikingly different” from that expected of one suffering from a paranoid state. Dr. Kaplan believed that defendant was able to appreciate the criminality of his actions and conform his behavior to the requirements of the law at the time of the offense. Defendant was diagnosed as an antisocial personality.

A similar exam was made in February 1978. At that time, Dr. Kaplan found no evidence whatsoever of psychosis or of severe depression. His diagnosis mirrored that of the first exam. Dr. Kaplan stated that an antisocial personality is not a mental disease which would excuse one’s culpability for a crime. At the third exam in June 1978, Dr. Kaplan found defendant was never suffering from a paranoid state during the times involved in his examination process.

On cross-examination, Dr. Kaplan stated that he had testified in court several hundred times for both the State and the defense. On redirect, he related that when he “put all the information available together, [he saw] absolutely no evidence for a diagnosis of paranoid state.”

Dr. Ernest Pirón, a psychologist, was the State’s final rebuttal witness. The defense objected to the presence of this witness but was overruled. Dr. Pirón related that he conducted a psychological examination of defendant in November 1977. He found defendant to have an above average range of intelligence. Nothing in the testing indicated that defendant was suffering from a paranoid condition. On cross-examination, Dr. Pirón stated that an intelligent person could suffer from a paranoid state.

I

Defendant argues that the circuit court erred in refusing his motion for a bifurcated trial on the defenses of insanity and self-defense.

As recognized by defendant, the constitution does not require a bifurcated trial in the situation where a defendant seeks to assert both a defense on the merits of a criminal action and a claim of absence of culpability due to mental illness. As well, there is no statutory basis in Illinois providing for such a procedure. (People v. Speck (1968), 41 Ill. 2d 177, 206-08, 242 N.E.2d 208, reversed on other grounds (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2279; see also People v. Newbury (1972), 53 Ill. 2d 228, 236, 290 N.E.2d 592.) However, courts in other jurisdictions have recognized the possibility of substantial prejudice to a defendant where he is forced to proceed before a single fact-finder with such inconsistent defenses. (See United States v. Taylor (D.C. Cir. 1975), 510 F.2d 1283, 1289; Holmes v. United States (D.C. Cir. 1966), 363 F.2d 281, 282; State v. Khan (1980), 175 N.J. Super. 72, 83-84, 417 A.2d 585, 592.) We have previously commented upon the obvious inherent conflicts of resolving the innocence or guilt issue where the insanity defense is raised in the same proceeding as a defense on the merits. (People v. Dread (1975), 27 Ill. App. 3d 106, 115, 327 N.E.2d 175.) We believe the theory underlying our prior comments and this defendant’s argument contains intrinsic merit.

However, we note that those courts which have adopted the type of argument here propounded by defendant utilize a test to determine whether the particular case before them merits granting of a motion to bifurcate. Those courts require defendant to show on the record that he has both a substantial insanity defense and a substantial defense on the merits. (See Contee v. United States (D.C. Cir. 1969), 410 F.2d 249, 250; Houston v. State (Alas. 1979), 602 P.2d 784, 787.) Our examination of the record in this case indicates that defendant failed to make a proper showing of this nature to the trial court. We find no significant evidence which would support this defendant’s assertion of self-defense. Consequently, while we recognize the merit in the theoretical aspect of defendant’s contention, we cannot accept it for application in this particular set of facts. (See State v. Sarinske (1979), 91 Wis. 2d 14, 280 N.W.2d 725.) The trial court committed no error in denying defendant’s motion to bifurcate.

II

Defendant asserts that he was denied an impartial jury when the trial court refused to ask prospective jurors several specific questions relating to the insanity defense which were proposed by the defense counsel.

The record before us contains a transcript of the conference at which defense counsel offered his voir dire questions to the trial court. The record shows that the court accepted two of those questions but rejected the remainder for various substantive reasons. By and large, defense counsel accepted the court’s ruling without argument. Also, defense counsel asked the court whether there were “any other areas dealing with insanity that [the court] would allow [him] to question the jurors on.” The court responded, “I don’t know.” At this point, the court reporter was excused by agreement of the parties. We have no record of the voir dire proceedings, either verbatim transcript or a bystander’s report.

In such circumstances, this court cannot assume merely on the representations of defendant that the trial court’s voir dire examination failed to adequately inquire as to the possible prejudices the veniremen might have against the insanity defense. While it is undisputed that parties have the right to have jurors examined concerning their attitudes toward the insanity defense when such is involved in a case (People v. Moore (1972), 6 Ill. App. 3d 568, 571, 286 N.E.2d 6), the absence of a record of the voir dire makes it impossible for this court to find that this right of the parties was not upheld by the trial court in this case. See generally People v. Bracey (1981), 93 Ill. App. 3d 864, 870, 417 N.E.2d 1029.

Ill

Defendant claims that several evidentiary rulings by the trial court were erroneous and require reversal for retrial.

A.

Defendant contends that arresting officer Thorne’s testimony that defendant appeared normal at the time of his arrest and that 85% of those he arrested ask the reason for their arrest was improper and prejudiced his insanity defense.

A nonexpert, lay witness who has had an opportunity to observe an individual may give his opinion as to the latter’s mental condition at that time so long as his testimony contains sufficient facts and circumstances forming the basis for the opinion. (People v. Kuntz (1977), 52 Ill. App. 3d 804, 809, 368 N.E.2d 114, appeal denied (1978), 67 Ill. 2d 594; see also People v. Mahon (1979), 77 Ill. App. 3d 413, 425, 395 N.E.2d 950.) The question of whether the witness has related sufficient underlying facts and circumstances to serve as a foundation for such testimony is for the trial court to decide, and that decision will not be altered in the absence of a showing of abuse of discretion. (People v. Lechner (1976), 35 Ill. App. 3d 1033, 1041, 342 N.E.2d 820, appeal denied (1976), 63 Ill. 2d 553.) In this case, the record makes clear that the testifying policeman was one of those who had arrested defendant. Certainly, he would have had the opportunity to observe defendant at that time. The officer also related that defendant asked the reason for his arrest, which the officer, an eight-year veteran who had made hundreds of arrests, found to be a typical query of an arrestee. Clearly, these facts and circumstances are adequate support for the officer’s testimony as to defendant’s apparent mental status at that time.

Defendant argues that the officer’s statement concerning other arrestees’ actions constituted an improper reference to other criminal cases. Clearly, this facet of the officer’s testimony was solely in the nature of foundation concerning his prior experience as a policeman and explaining why he believed that defendant’s question made defendant appear normal to him. This testimony merely presented the necessary yardstick against which the jury could measure the witness’ understanding of the term “normal.” Thereafter, it was for the jury to assign weight to this testimony in light of this foundation and the remaining evidence of record. No prejudice to the insanity defense is evident therefrom.

B.

Defendant urges that the trial court erroneously excluded the testimony of defendant’s sister as to her knowledge of defendant’s homosexuality.

This issue was not raised in defendant’s post-trial motion for a new trial. Errors not so asserted are waived. (People v. Dean (1981), 99 Ill. App. 3d 999, 1004, 426 N.E.2d 279.) Given the amount of other expert testimony concerning defendant’s homosexual tendencies and the relation thereof to his mental stability, this evidence would have been essentially cumulative in any event. This court thus need not address the question under the authority of the plain error rule. 73 Ill. 2d R. 615(a); see People v. Baynes (1981), 88 Ill. 2d 225, 231.

C.

Defendant asserts that the trial court erred in preventing him from questioning one of the State’s rebuttal witnesses about the psychiatric defense mechanism theory of “projection.”

This issue was not raised in the post-trial motion and is waived. (People v. Dean.) Nothing in the record supports resort to the plain error rule in order to address the matter. People v. Baynes.

D.

Defendant believes that the trial court should not have permitted the testimony of psychologist Pirón to be admitted at trial.

A properly qualified psychologist may testify as to the nature and results of psychological tests administered by him, particularly where those tests are performed at the request of a psychiatrist who uses them in making his diagnosis. This psychologist may also testify as to his opinion of the patient’s mental condition. (People v. Whitaker (1980), 87 Ill. App. 3d 563, 567, 410 N.E.2d 166, appeal denied (1980), 81 Ill. 2d 605.) Here, Dr. Pirón testified that he had a Ph.D. in psychology and has actively practiced in that field for eight years. He stated that he put defendant through a standard psychological examination, and related some of the results. It is clear that Dr. Kaplan utilized the results of these tests in making his diagnosis. In these circumstances, Dr. Piron’s testimony was clearly admissible. Defendant has misread People v. Noble (1969), 42 Ill. 2d 425, 248 N.E.2d 96, in citing it for the contrary proposition.

E.

Defendant claims that the State improperly attempted to insinuate to the jury that its rebuttal witnesses were witnesses of the court and were thereby impartial.

This matter was not raised in defendant’s post-trial motion and is therefore waived. (People v. Dean.) We also find no basis for addressing the question under the plain error rule. People v. Baynes.

IV

Defendant argues that the State failed to prove beyond a reasonable doubt that he was sane at the time of the crimes.

Once a defendant introduces evidence which if believed creates a reasonable doubt that the defendant possessed the requisite mental capacity to be considered legally sane at the time he committed the alleged crimes, the State must prove beyond a reasonable doubt that the defendant was in fact legally sane at that time. (People v. Foster (1979), 76 Ill. 2d 365, 378-79, 392 N.E.2d 6.) The question of whether the defendant was in fact sane at the time of the offense is for the jury, and their decision will not be reversed unless it is palpably erroneous. People v. Dread (1975), 27 Ill. App. 3d 106, 113.

In his brief, defendant presents an extremely long restatement of the testimony of the witnesses at trial concerning defendant’s mental status on June 22, 1977. Most of the argument is concerned with the allegedly “overwhelming evidence” of defendant’s alleged insanity, which evidence can only be found in the testimony of defendant’s sister, a lay person, and Dr. Ziporyn, a psychiatrist. We see no useful purpose in further recitation of the evidence at this juncture. Examination of the record shows that the diagnosis of defendant’s expert that defendant was insane on the subject date was contradicted by the testimony of the State’s expert. In such circumstances, it was for the jury to resolve this evidentiary conflict. They did so, finding against defendant. Nothing in his argument to this court, which is in essence a closing argument to the jury, demonstrates that the factfinder’s determination was palpably erroneous. Consequently, there exists in this record no reason for finding reasonable doubt as to defendant’s sanity at the time he attacked Jessie Carter.

V

Lastly, defendant asserts that the prosecution’s instruction to the jury concerning the legal definition of insanity was erroneously tendered by the trial court.

The instruction in question is taken verbatim from Illinois Pattern Jury Instruction, Criminal, No. 24.01 (1968) (hereinafter cited as IPI Criminal). Defendant complains that the second paragraph of that instruction “injected into the case the concept of anti-social conduct that was highly confusing and prejudicial in the context of this trial.”

Analysis of the record indicates that defendant did not object to the tender of this instruction during the instruction conference, and in fact relied upon the assumption that it would be tendered in objecting to another instruction. The failure to object at trial to an asserted error in a jury instruction waives the question. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180, 415 N.E.2d 1027.) Additionally, the Committee Note to the IPI instruction directs that the paragraph in question should be given when the evidence shows repeated criminal or other antisocial behavior. (IPI Criminal No. 24.01, Committee Note.) The evidence of record contained the testimony of Dr. Kaplan that defendant had an antisocial personality. Thus, the debated paragraph was properly included in the instruction. No error resulted in the giving of the entire IPI Criminal Instruction No. 24.01.

For all the above reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

HARTMAN, P. J., and PERLIN, J., concur.

       IPI Criminal No. 24.01 reads:
      “A person is insane and not criminally responsible for his conduct if at the time of the conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
      [Abnormality manifested only by repeated criminal, or otherwise anti-social conduct, is not mental disease or mental defect.]” (Brackets in original.)