author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY LEE HUGHES, Defendant-Appellant.
    Fifth District
    No. 81—16
    Opinion filed September 22, 1982.

      Randy E. Blue and Daniel M. Kirwan, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert W. Matoush, State’s Attorney, of Salem (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, Larry Lee Hughes, was charged by information with the murder of Kevin Queen. Defendant was initially tried in September 1980, but a mistrial was declared due to the jury’s failure to reach a verdict. At a second trial, held in late October 1980, the jury found defendant guilty of the offense of murder and he was sentenced to 24 years’ imprisonment. On appeal defendant raises the following issues: (1) whether the trial court erred by not instructing the jury sua sponte regarding voluntary manslaughter and self-defense; and (2) whether this cause must be remanded for resentencing because the trial court considered, as an aggravating factor in imposing sentence, that defendant’s conduct caused or threatened serious bodily harm to the deceased.

The State called Richard Simer of the Centralia police department as a witness for the purpose of identifying photographs of the deceased and Jim’s Tavern, which is located on McCord Street in Centralia, Illinois.

Ranee Ryan testified that while he was tending bar at Jim’s Tavern during the early morning hours of May 31, 1980, four young, black males came in. One of the four black youths approached the bar and ordered a six-pack of beer. Mr. Ryan identified this individual as the defendant and said that he was wearing a black vest, a large brimmed hat and a gold earring in his left ear. Mr. Ryan stated that he had never seen defendant before but recognized the other three black males whom he identified as Daniel Franklin, William Glenn, and Bert Cunningham. Mr. Ryan testified that Mr. Glenn wore a red jacket with his name on the back and that Mr. Franklin wore a light tan jacket and a black beret. Mr. Ryan could not recall Mr. Cunningham’s apparel.

Mr. Ryan asked defendant for identification because he believed him to be underage. Defendant produced an outdated driver’s permit and Mr. Ryan refused to serve him liquor. Defendant became perturbed and persisted in his request for beer. Mr. Ryan refused to discuss the matter further and he turned his back on defendant.

Subsequently, Mr. Ryan heard some noise at the back of the tavern and he turned and saw a large number of people running out the back door. Mr. Ryan went to the back door to investigate and as he stepped outside, he observed defendant across the alley with a gun in his hand. Defendant was about 12 to 14 feet away and the area was illuminated by a street lamp and three lights on the exterior of the tavern. Defendant fired two shots in the direction of Mr. Ryan and Greg Campbell, a patron of the tavern who was standing near Mr. Ryan. Mr. Ryan saw Mr. Franklin and Mr. Cunningham behind defendant but did not see Mr. Glenn. After firing the shots, defendant ran around the corner out of Mr. Ryan’s view. Almost immediately, Mr. Ryan heard two more gun shots. He ran around the corner and saw Kevin Queen lying on the sidewalk. Mr. Ryan turned Mr. Queen over and noticed a hole in his shirt with blood around it.

Greg Campbell testified that he was in the tavern when the four young, black males came in. He said that defendant wore a gold earring in his left ear, dark clothes, and a black felt hat with a brim. After the bartender refused to serve the four youths, they became angry. As they were leaving, Mr. Campbell’s mother walked in. Defendant, at the time, was “cussing pretty bad” and Mr. Campbell’s mother told him to watch his language. In response, defendant swore at the woman. Kevin Queen and others ran out after defendant. Greg Campbell stated that outside the tavern in the illumination of the street lamp and tavern lights he observed defendant running along the alley about 15 to 20 feet away. Defendant turned and fired two shots at Mr. Campbell and Mr. Ryan. Defendant kept running and a moment later Greg Campbell heard two more shots. When Greg Campbell reached the sidewalk, he saw Mr. Queen lying on the ground.

On cross-examination, Greg Campbell testified that of the four young blacks he knew only William Glenn prior to the incident. He said that Mr. Glenn wore a red jacket and possibly a dark hat. Greg Campbell denied that it was Mr. Glenn who shot at him and Mr. Ryan.

Rick Campbell, Greg’s brother, testified that he, his wife Lisa, and his father were outside Jim’s Tavern when the four young blacks arrived. Sometime later, he heard a shot and saw defendant, who was wearing dark clothes, a black hat with a brim, and an earring in his left ear, running with Mr. Queen close behind him. Defendant fired a second shot and then ran around the corner followed by Mr. Queen. Rick Campbell ran to the corner and saw defendant turn around and shoot Mr. Queen, who was four or five feet from defendant at the time. Defendant turned back around and then ran away. Rick Campbell said he had a clear view of the shooting, that there was sufficient street lighting to enable him to see defendant, and that he saw defendant’s face in the flash of the gun. He estimated that at the time the shooting occurred, he was approximately 20 feet from the defendant. Rick Campbell said he never saw a black man with a red jacket in the area of the shooting and that he had mistakenly told police that the gunman’s name was Daniel Franklin.

James Roberts, a forensic scientist, testified that he had examined the shirt and pants worn by Mr. Queen and concluded that because there was no gunpowder residue on them, the gun was probably not fired from extremely close range.

Lisa Campbell testified that she saw three black males enter the tavern. She heard some commotion and saw some people running. She heard a gunshot and saw flames from a second discharge of the gun. She caught a glimpse of the gunman, who was standing in the alley pointing his weapon toward the rear door of the tavern. She could not positively identify the man she observed but remembered that he was wearing dark clothing. Mrs. Campbell said that she knew both Mr. Glenn and Mr. Franklin and neither of these individuals was the gunman.

Karl Wilson testified that he was in the tavern when the four black youths entered. He recalled that defendant was wearing a black shirt, dark pants, a black wide-billed hat and an earring in his left ear and that defendant presented identification to Mr. Ryan. As the four youths were departing, Rick Campbell’s mother told them not to use profanity. When one of the black youths responded by calling Mrs. Campbell a name, Mr. Wilson and others jumped up and pursued the four black youths out the back door. As soon as he got outside, Mr. Wilson heard shots. Mr. Wilson said he ran toward the corner of the alley and McCord Street and while doing so heard one or two more shots. When he rounded the corner, he saw Mr. Queen lying on the ground.

Bert Cunningham testified that he, Mr. Glenn, Mr. Franklin and defendant were leaving through the back door of Jim’s Tavern after defendant was unable to get served when Mr. Glenn began arguing with a woman. When they got outside, some white people came out of the tavern and started chasing them. Mr. Cunningham and Mr. Franklin headed toward the corner of the alley. Mr. Cunningham heard defendant tell someone to “get back” and then heard some shots. Both Mr. Cunningham and Mr. Franklin got down on the ground until the shooting stopped. When Mr. Cunningham got up he saw a man lying on the sidewalk. Some white people came from the alley and accused Mr. Cunningham and Mr. Franklin of the shooting so they ran away. Mr. Cunningham stated that he could not say where Mr. Glenn was at the time of the shooting.

Daniel Franklin testified that as he and the other black youths were leaving Jim’s Tavern, Mr. Glenn called a woman a bitch and four or five white men jumped over the tables and began chasing them. Mr. Franklin heard a shot and when he got outside, he saw defendant being chased by some white men. Defendant shot into the air and a number of white men retreated, but Mr. Queen continued to pursue defendant. Defendant fired two shots and Mr. Queen fell to the ground. After Mr. Franklin saw Mr. Queen fall, he and Mr. Cunningham ran away. Mr. Franklin said that Mr. Glenn wore a red sweatjacket with his name on the back and, perhaps, a baseball cap. He said defendant wore black clothing and a round derby hat.

Cletus Feig, a Centralia police officer, testified that he was called to the vicinity of Jim’s Tavern the morning of May 31 and found Mr. Queen lying on the sidewalk on McCord Street. Mr. Queen did not speak but appeared to be conscious.

Dr. Gordon Johnson, a medical doctor and pathologist, testified that he performed an autopsy on Mr. Queen’s body. He said that the cause of death was loss of blood caused by a gunshot wound in Mr. Queen’s chest. He also testified that there was a bullet wound in Mr. Queen’s right thigh.

Roger Campbell, one of the ambulance personnel, testified on behalf of defendant. He said Mr. Queen was conscious when he was placed in the ambulance and complained of pain a number of times. According to Mr. Campbell, while in the emergency room at St. Mary’s Hospital, Mr. Queen said that it was Mr. Glenn who had shot him and that Mr. Glenn was wearing a red shirt.

Jim Brown, an emergency medical technician, also testified for the defense. He accompanied Roger Campbell in the ambulance and corroborated his testimony. According to Mr. Brown, at the hospital Mr. Queen stated that “the young Glenn boy in the red shirt” was the person who shot him.

In rebuttal, Dr. Pedro T. Durian, the emergency room physician who treated Mr. Queen at St. Mary’s Hospital, testified that when Mr. Queen arrived he was semi-comatose, had virtually no blood pressure, and was in a state of “profound shock.” Dr. Durian said that a person in this condition would likely be confused and have impaired memory.

Officer Feig was recalled by the State and testified that he spoke with Mr. Queen at the emergency room in St. Mary’s Hospital. According to Officer Feig, Mr. Queen seemed to be babbling and was kind of glassy eyed, “kind of like a person that was intoxicated.”

At the initial instructions conference, the trial court asked whether the defense wanted an instruction on voluntary manslaughter. The trial court noted that at defendant’s first trial a discussion was had as to whether a voluntary manslaughter instruction should be given and that defendant elected to submit the case to the jury without such an instruction. When the trial court inquired as to whether the defense wished such an instruction to be given at the instant trial, defense counsel responded that he and defendant had discussed the matter several times but had not, at that time, reached a decision. Subsequently, the following colloquy occurred:

“THE COURT: All right I will show that we are having a further instruction conference outside the presence of the jury at the conclusion of all the testimony and after a denial of the Motion for Directed Verdict, at the close of the evidence. Mr. Becker, have you had a further consultation with your client, the Defendant, relative to the instructions as to the offense of manslaughter and the verdict form as to manslaughter?
MR. BECKER [defense counsel]: Your Honor, the defendant and I have gone over that, and I have told the Defendant what penalties for voluntary and involuntary manslaughter are. We have discussed whether or not they should be tendered, and what effect they would have if they are tendered; particularly the fact that it would give the jury an opportunity, if they so chose, to find him guilty of a lesser included offense with a lesser penalty. I think the defendant knows what those penalties are.
I have the instructions prepared. They could be tendered if he so chose. We talked about it, and I told him what I thought about the case, and we talked about it at the last case and decided not to do it, and I believe he has decided not to do it this time.
THE COURT: Is that correct, Mr. Hughes?
MR. HUGHES: Yes.
THE COURT: All right, so that there is no misunderstanding, what your attorney is suggesting is that the jury be instructed as to the criminal offense of murder only and that they be given only two forms of verdict; one guilty of murder, one not guilty of murder. Now is that your understanding?
MR. HUGHES: Yes.
THE COURT: Now the penalty for murder is substantially higher than that of manslaughter. The penalty for murder in the event of your being found guilty, your conviction, could be for a term of years not less than 20 nor more than 40 for a fixed and determinate number of years between 20 and 40 with 40 being the maximum. It could be for your natural life, do you understand that?
MR. HUGHES: Yes.
THE COURT: Now the penalty for voluntary manslaughter; voluntary manslaughter is a Class-2 felony, and in the event of your being found guilty and convicted of the offense of voluntary manslaughter, you could be sentenced to a period of imprisonment in the penitentiary for not less than three (3) or more than seven (7) years for a fixed and determinate number of years between three (3) and seven (7), with seven (7) being the maximum. Do you understand that?
MR. HUGHES: Yes.
* * *
THE COURT: all right, now if you go to the jury, as is being suggested by your attorney at this time, then you are either saying to the jury, you are either finding me guilty of murder or finding me guilty of nothing. Do you understand that?
MR. HUGHES: Yes.
THE COURT: Now if you would tender to me, and I would offer to the jury, instructions on voluntary manslaughter, and for that matter involuntary manslaughter, then the jury would have the option of finding you not guilty of all three offenses or finding you not guilty of murder but guilty of voluntary manslaughter or involuntary manslaughter; do you understand?
MR. HUGHES: Yes.
THE COURT: Now I am sure you have discussed this with your attorney, and he has discussed it with you; if you submit to the jury instructions other than murder, meaning voluntary manslaughter or involuntary manslaughter, then you do give them an option and a choice, and it might make it more easy for them to come in with a verdict of guilty. However, if you submit to them only an instruction on murder and a verdict on murder, verdict form on murder, then you are going for broke. You are either going to be found guilty of murder or you are going to found not guilty of anything. Do you understand that?
MR. HUGHES: Yes.
THE COURT: Now I presume that is exactly what you have discussed with him, is that right, Mr. Becker?
MR. BECKER: That is correct, Your Honor.
THE COURT: Now do you have any question about that?
MR. HUGHES: No.
THE COURT: I can tell you if you offered me an instruction and a verdict form on voluntary manslaughter, I would give it. I think that under the testimony that certainly there is evidence that you were being chased, that you were not the aggressor. If you were, in fact, the assailant as claimed by the State, that you were not the aggressor, that you were being chased. You are a young black person, you were being chased by several white persons who had come out of the tavern, had been drinking; and you would be entitled to an instruction as to the right of self-defense; and I would give such an instruction if you so requested.
Now it is my understanding of the law that if you do not submit such an instruction then it would not be error for one not to be given; however, it is my further understanding of the law that if I believe that the evidence is such that the trier of fact could find you guilty of either murder or manslaughter, then I have a right to give it over your objection, except in such cases as where the defense of the defendant is either alibi or mistaken identity. Then you have a right to refuse such an instruction. In this case it appears to the Court that your defense, of course, is a question of mistaken identity; that you were not the one, that it was another individual who committed this act, and for that reason I will not give the instruction over your objection, but I will give it if you request it. Do you understand what I have said?
MR. HUGHES: Yes.
THE COURT: Now do you want to discuss this with your attorney anymore before you finally decide? Do you want to take a minute and talk with him, Mr. Becker, in view of the things I have said and see if there is any change in his position?
MR. BECKER: If you have any questions about anything, now is the time to ask me or the State’s Attorney, the Court Reporter, the Clerk or anybody. If you have a question now is the time to ask it. If you want to talk to me some more I will talk to you.
THE COURT: You can talk outside our presence. All right, let the record show that the defendant is present. Since my last conversation with the defendant he has gone outside the presence of the Court and had a further discussion with his attorney, Mr. Becker.
MR. BECKER: Your Honor, the defendant has advised me that he still wants to proceed with the two forms of verdict, either guilty of murder or not guilty of murder.
THE COURT: He does not wish to have any instruction on manslaughter?
MR. BECKER: That is correct, and the substance of our conversation, for the record, had to deal with what effect giving the voluntary or involuntary manslaughter instruction, if the Court would see fit to give the involuntary manslaughter instruction, would have with respect to our defense of mistaken identity.
THE COURT: All right, now that is your decision, Mr. Hughes?
MR. HUGHES: Yes.
THE COURT: Do you simply want to present two forms of verdict, either guilty or not guilty of murder?
MR. HUGHES: Yes.”

Defense counsel’s closing argument presented a mistaken identity defense. Defendant tendered no instruction on either voluntary manslaughter or self-defense and the trial court did not instruct the jury sua sponte on these matters. The jury found defendant guilty of murder.

A sentencing hearing was had on December 12, 1980. In sentencing defendant, the trial court mentioned the following aggravating circumstances: (1) defendant’s conduct caused and threatened serious harm to Mr. Queen; (2) defendant had a history of prior delinquency in the form of one theft conviction and two burglary convictions; (3) the sentence was necessary to deter others; and (4) defendant was carrying a concealed weapon and took deliberate aim when he shot Mr. Queen. In mitigation, the trial court noted that there was some provocation and that this tended to excuse or justify the defendant’s actions. Defendant was sentenced to imprisonment for a term of 24 years.

Defendant first urges that the trial court erred by failing to instruct the jury sua sponte concerning the lesser offense of voluntary manslaughter and the affirmative defense of self-defense. We reject these contentions.

Where, as here, the evidence in a murder case would support a verdict of manslaughter but the defendant does not request a manslaughter instruction, it is within the trial court’s discretion whether or not to give such an instruction. (People v. Taylor (1967), 36 Ill. 2d 483, 489-92, 224 N.E.2d 266, 270-71.) We find Taylor dispositive of defendant’s contention that the trial court erred by failing to instruct on the issue of voluntary manslaughter. As in Taylor, the defense chose not to request a voluntary manslaughter instruction. The trial court conducted a very detailed inquiry as to whether the defense desired a voluntary manslaughter instruction and both defense counsel and defendant informed the trial court that no such instruction would be tendered. The defendant, having elected to defend on the basis of mistaken identity, had a right not to have the jury instructed as to manslaughter. (36 Ill. 2d 483, 489, 224 N.E.2d 266, 270.) We hold that it was not error for the trial court not to give a voluntary manslaughter instruction on its own initiative. People v. Allen (1976), 35 Ill. App. 3d 342, 346-47, 341 N.E.2d 431, 435.

Parenthetically, compared with the numerous reported cases in which this issue has been considered, the instant case appears most clearly to depict the dilemma confronting the trial judge in determining whether a voluntary manslaughter instruction should be given. Here, the defendant, while maintaining throughout the trial that he was innocent, is heard to complain in a court of review that his killing of the decedent amounted to less than murder and that it was error not to instruct the jury sua sponte as to the elements of the lesser offense and to provide a verdict form to enable the jury to return a finding of guilty on the lesser offense. Adding to the court’s dilemma is the fact that defendant’s first trial had resulted in a mistrial because the jury was unable to agree on a verdict. The record indicates that the trial court, recognizing the dilemma confronting it, quite capably admonished defendant as to the choices available to the defense, permitted the defendant to make his choice, and as a consequence did not deprive defendant of his independent strategy decision. In this regard, it seems a certainty that defendant would have urged that he was deprived of his defense had the court given the voluntary manslaughter instruction and forms of verdict sua sponte and had defendant been convicted of that offense. We conclude that the trial court in the case at bar gave the defendant precisely what the record establishes he bargained for.

Defendant alternatively contends that the trial court erred by not instructing the jury sua sponte on the issue of self-defense. The defendant’s failure to present the self-defense issue to the trial court and to tender instructions concerning such a theory constitutes a waiver of the issue. (People v. Worsham (1975), 26 Ill. App. 3d 767, 771-72, 326 N.E.2d 134, 137-38; People v. Martin (1977), 46 Ill. App. 3d 943, 955, 361 N.E.2d 595, 603; see People v. Huekstead (1982), 91 Ill. 2d 536.) We are not persuaded by defendant’s argument that the failure to instruct the jury sua sponte as to self-defense amounts to plain error. As our supreme court recently observed in People v. Huekstead, the plain error exception to the waiver rule is limited to situations where “grave error” has been committed or the case is “factually close.” (91 Ill. 2d 536, 545-46.) Neither of these tests is satisfied in the instant case. Defendant chose to defend on the basis of mistaken identity and, hence, elected not to instruct the jury on self-defense. We cannot say that it was “grave error” for the trial court to comply with defendant’s desire not to instruct the jury on self-defense. Indeed, had the trial court done so, it would have compromised the defense based on mistaken identity because self-defense assumes that defendant committed the act for which he is being tried. (See People v. Lahori (1973), 13 Ill. App. 3d 572, 577, 300 N.E.2d 761, 764-65.) Additionally, we find that the case at bar is not “factually close” regarding the issue of self-defense. To justify the use of deadly force the defendant must have a reasonable belief that the action was necessary to prevent imminent death or great bodily harm. (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 1.) The only evidence which would support a conclusion that defendant had a reasonable belief that deadly force was necessary is the fact that Mr. Queen was chasing him. Mr. Queen had not injured defendant nor did he threaten him prior to the shooting. Moreover, Mr. Queen was alone and unarmed when he was shot. There is very little evidence that defendant’s actions were justified on the basis of self-defense and no close factual question was presented.

Defendant also contends that the trial court improperly considered, as a factor in aggravation, that defendant’s conduct caused or threatened serious bodily harm to Mr. Queen because such factor is necessarily present in every murder. The State argues, inter alia, that it is not impermissible for the trial court to consider the force employed and the physical manner in which the victim’s death was brought about. (People v. Andrews (1982), 105 Ill. App. 3d 1109, 1112-13, 435 N.E.2d 706, 708.) We agree with the State and, following our analysis and decision in Andrews, find that the trial court committed no error. In rendering sentence, the trial court noted that defendant carried a gun, took deliberate aim at Mr. Queen and fired two shots. These considerations lend support to its conclusion that defendant intentionally caused or threatened serious harm to Mr. Queen.

For the foregoing reasons, the judgment of the circuit court of Marion County is affirmed.

Affirmed.

JONES and HARRISON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ALLOY

license: Public Domain

text:
    TERRI L. JONES, Adm’r of the Estate of Brandy Lee Jones, Deceased, Plaintiff-Appellee, v. RICHARD W. KARRAKER, M.D., Defendant-Appellant.
    Third District
    No. 81—744
    Opinion filed September 21, 1982.
    Rehearing denied October 21, 1982.

      Stuart R. Lefstein, of Katz, McAndrews, Durkee, Balch & Lefstein, of Rock Island, and James E. Whitmire, Jr., of McGehee, Boling & Whitmire, Ltd., of Silvis, for appellant.
    Michael J. Warner, of Braud, Warner, Neppl & Westensee, of Rock Island, and Stephen S. Buckley, of Peoria, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

The defendant, Dr. Richard Karraker, appeals from the judgment of the circuit court in this medical malpractice action against him. The action was brought, for recovery under the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, pars. 1 through 2.2), by Terri Jones, administrator for the estate of Brandy Lee Jones. Terri Jones was the mother of Brandy Jones, and the action was based on the death of the unborn fetus. The jury returned a verdict against the defendant in the amount of $125,000. On appeal, the defendant argues (1) that the court erred in refusing to admit into evidence the evidence deposition of one of the defense’s expert witnesses; (2) that the jury’s verdict was excessive as a matter of law; (3) that the court improperly granted plaintiff’s motion in limine excluding all references to the putative father; and (4) that the defendant, as a matter of law, is not liable because he used his best judgment in an emergency situation.

A brief recitation of the salient facts will suffice, with any further development of the factual background to be presented as necessary during analysis of the issues. Plaintiff Terri Jones became pregnant in January 1978 when she was 18 years of age. It was her first pregnancy. She contacted Dr. Richard Karraker, the defendant, in July of that year, and he became her obstetrician. Her first visit with the doctor occurred in mid-July, and during the examination the doctor noted a potential problem resulting from the below normal size of Terri Jones’ pelvic area. The doctor indicated that cesarean section was a possibility, due to the mother’s pelvic size, and he also noted that October 22 was the expected date of delivery. Office visits between July and November occurred, and a pelvimetry exam (X ray of the mother’s pelvis) was made, indicating that it would be very risky for the baby to pass through the delivery canal in a normal fashion. Neither a glucose tolerance test to determine diabetes, a condition often associated with larger babies, nor an ultrasound test, which would have indicated the size of the' baby, was utilized by the defendant doctor, though both were available.

On November 21, 1978, almost four weeks past the expected delivery date of the baby, plaintiff Terri Jones admitted herself to Mo-line Public Hospital, in labor. Two weeks past term is indicative of potential problems with delivery. It was established that prior to admission, Dr. Karraker had determined that the baby was above average in size, and that a normal delivery would put both baby and mother at high risk. This was again confirmed during his initial examination at the hospital, although he found the initial dilation to be “fairly good” and the baby’s heart tone good. Although faced with a high risk delivery, and aware of the potential problems with a normal delivery, the doctor nevertheless did not alert nurses or hospital personnel to schedule a cesarean section. Neither did he order fetal monitoring for the baby, which would have registered the baby’s condition on a continuous basis. The doctor left the hospital after the examination, which occurred around 8:30 a.m., and returned to his office. He checked with the hospital several times during the morning to inquire of the patient’s progress in labor.

At approximately noon, the doctor returned to the hospital, where he found the baby’s heart tones had begun to drop alarmingly. The baby was in distress, and the mother was removed to the delivery room. No cesarean section was ordered at that time, the doctor testifying at trial that he felt there was insufficient time for the procedure. At 12:16 p.m., a prolapsed cord was noted. This is a condition where the umbilical cord becomes compressed between the baby and the mother’s pelvis. Dr. Karraker attempted to push the baby back up the birth canal and off the cord. He was unsuccessful, as the baby was stuck, being too large for the mother’s pelvis. The doctor then attempted to remove the baby from the womb, through the use of forceps, but he was unsuccessful. The last heartbeat of the fetus was noted at 12:35 p.m. In order to remove the dead fetus through the normal birth canal, the shoulders had to be broken. At trial, Dr. Karraker admitted that had a cesarean section been performed at 12 noon, there was nothing to suggest that the mother would have had anything other than a normal, live baby.

The plaintiff presented two expert witnesses to establish the lack of care on the part of Dr. Karraker in his handling of this pregnancy and this delivery. In addition, several of the attending nurses testified for the plaintiff. The nurses testified that they were not instructed by the doctor to present the plaintiff with a surgical consent for cesarean section, and that the doctor did not alert them to the possibility of cesarean section. One nurse further testified that electronic fetal monitoring was available at the hospital at that time, but Dr. Karraker did not order it in this case. The plaintiff’s experts testified, in detail, that the doctor failed to meet the standards of care applicable to him in this case, in that (1) he failed to adequately evaluate the baby, as to its size and health, and that (2) he failed to perform the cesarean section at a proper time, where there was a documented and recognized disproportion between the size of the baby and the size of the birth canal. The experts discussed at length the tests which should have been administered to adequately evaluate the baby, and their conclusions that not performing the cesarean section earlier was a deviation from accepted and applicable standards of practice for obstetricians.

The defendant doctor testified and, in addition, the expert testimony of another obstetrician was presented. While admitting that had he performed a cesarean section at noon, the mother would likely have had a normal, live baby, the doctor stated that it was his practice of letting patients progress in labor, even in cases of cepholopelvic disproportion, in order to check their progress. The defendant’s expert witness, while concluding that he had met the requisite standards of care, did acknowledge the usefulness of the suggested, but unused, evaluative tests for the baby, and also the advisability of a cesarean section when the baby was found to be in distress. He also stated that a cesarean section could have been performed at any time after entry of the mother into the hospital in the morning. Although the evidence varied somewhat, the record indicates that had a cesarean section been ordered at noon, the baby would have been removed at or around 12:25 p.m., a full 10 minutes prior to death. In addition to the oral testimony of an expert witness, the defense also sought to introduce into evidence, the evidence deposition of another expert, Dr. Norman Powell, in which Powell concluded that Dr. Karraker had met the requisite standards of care in his care and treatment. A motion to strike the evidence deposition was filed and heard by the court. On the basis of the motion, the evidence deposition was not permitted to be introduced into evidence.

Other than its viability, the characteristics of the fetus were not presented by the plaintiff. Neither did the defense offer evidence on the question of damages. The jury was instructed that there was a presumption of pecuniary loss in the death of a minor, or fetus, and, on the evidence, as instructed, it returned a verdict for the plaintiff in the amount of $125,000. From the judgment of liability, and the damage award, the defendant now appeals.

The first issue presented is whether there was error committed by the court in refusing to permit the defense to introduce into evidence the evidence deposition of Dr. Powell. Objection was made to the deposition on the basis that Dr. Powell, in stating his conclusions, relied upon medical records that were not admitted into evidence. At the deposition, objection was made to Dr. Powell’s conclusions, based upon the insufficient foundation for the medical records relied upon, and that they constituted hearsay statements not in evidence. At the deposition, defense counsel sought to introduce the hospital records without foundation, which attempt was objected to by counsel for the plaintiff. The objections were renewed in the motion to strike, after defense counsel sought to introduce the deposition at trial.

Initially, we are faced with arguments by both parties that the issue is waived by the other. We reject any waiver by either side. The defense contends that the plaintiff waived objections to the deposition by failing to specify the basis of their objection during the deposition. (73 Ill. 2d R. 211(c)(1).) However, as noted above, the record indicates that plaintiff’s counsel did object to any reliance by Dr. Powell upon the medical records, because the records had an insufficient foundation and were hearsay statements not in evidence. We find that the plaintiff did not waive the objection, that it was specific enough, and that it was properly advanced again by way of the motion to strike the deposition testimony. Plaintiff’s argument, on the other hand, is that the defense waived the issue of the propriety of the judge’s ruling on the deposition by failing to make an offer of proof and failing to lay an adequate foundation. The record is clear, however, that the defense offered the deposition into evidence, and it is clear as well that the trial court regarded such offer as a sufficient offer of proof, as against his denial of its admissibility. The question as to waiver by failure to lay a foundation is more troublesome, for the trial court specifically advised defense counsel that the deposition could be retendered, if the hospital records were admitted. No attempt was made to lay a foundation for their admission, however. Although we find a possible basis for application of the waiver rule by virtue of this failure by defense counsel, we nevertheless choose to address the merits of the trial court’s ruling excluding the evidence deposition.

The trial court, in denying admission to the deposition, relied upon the Illinois Supreme Court case of Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322. In that case, the court changed the evidentiary law in Illinois by adopting Federal Rules of Evidence 703 and 705, which, as relevant herein, permit opinions by experts to be based upon facts not in evidence. (84 Ill. 2d 186, 193.) The court stated in the opinion that it was changing the law in Illinois, so that medical experts could testify as to their medical opinions in a case, based upon hospital records, even where the records are not admitted into evidence. However, the new rule which was adopted in Wilson v. Clark was given prospective application only, and the court refused to apply it to the Wilson v. Clark case itself. In the case before them, the court found that the trial court had committed reversible error by permitting an expert to testify as to his opinion, where it was based upon hospital records admitted without an adequate foundation. (84 Ill. 2d 186, 195-96.) The new rule announced was to be applicable to complaints or trials after September 1, 1981. Since trial in the case before us was concluded on July 31, 1981, it was not within the ambit of Wilson’s prospective application. Rather, the rule existing prior to the change, that being the rule applied in Wilson, applied in the instant case. Under that rule, it was improper for an expert to base his conclusions upon hospital records not properly admitted into evidence. Thus, the trial court correctly denied admission of Powell’s deposition.

The defense attempts to prevent this result by arguing that Wilson did not, in fact, effectuate any change in Illinois law. It is argued that the law prior to Wilson was actually the law which the court announced, with prospective application, in Wilson itself, with reliance placed upon the case of Chiero v. Chicago Osteopathic Hospital (1979), 74 Ill. App. 3d 166, 392 N.E.2d 203. It is an interesting argument, but unpersuasive. The rule in Illinois prior to Wilson was as it was stated to be in Wilson, and as it was applied in Wilson. The Supreme Court of Illinois remains the court of last resort in the State, and the rule existing before the change in Wilson was that stated by the court therein, Chiero notwithstanding. Given that, the defense next argues that it was incumbent upon plaintiff’s counsel, at the time of the deposition; to specifically inform the defense of the time limitations in the Wilson case, and that counsel’s failure to do so constituted a waiver of the foundation and hearsay objections to Dr. Powell’s deposition. We have already concluded that the objections by plaintiff’s counsel were sufficiently specific. Counsel was not required to furnish the defense with copies of the cases upon which it was relying. Nor are we persuaded by defense’s unfairness argument, where any reliance by plaintiff’s experts on the records was unobjected to by the defense.

We turn next to the defense contention that the court committed reversible error in granting the plaintiff’s motion in limine, preventing defense counsel from eliciting or attempting to elicit testimony or evidence concerning the father of the deceased fetus, or the fact that the plaintiff was not married during her pregnancy. The defense, which objected to the restrictions on numerous occasions, argues on appeal that by preventing mention of the father, the jury was prejudiced in the plaintiff’s favor. In their briefs, a principal argument between the parties is on the question of whether, under the Wrongful Death Act, an illegitimate father is “next of kin,” so as to be entitled to a share of any judgment award, based upon his loss. While an interesting question, it is not properly before us in the instant case, for the father, so far as the record shows, took no part in this action, made no appearance, and made no claim to any judgment award. Thus, there is no proper issue as to whether he would be considered “next of kin” under the act, so as to be entitled to a share of the judgment award. Under the circumstances of the instant case, we find the evidence as to the father’s name or existence, or the fact that the mother was unmarried, to be matters of little relevance as between these parties. What relevance such evidence would have is outweighed by the potential prejudice to the plaintiff of the jury being apprised of the illegitimacy of the infant. We find no error in the court’s decision to grant plaintiff’s motion in limine.

The third issue, on the question of liability, is whether a judgment in favor of the defendant doctor should be ordered, as a matter of law, based upon his having used his best judgment under the circumstances. (See Spike v. Sellett (1981), 102 Ill. App. 3d 270, 430 N.E.2d 597.) As was stated in that case:

“If a doctor has given a plaintiff the benefit of his best judgment, assuming that judgment to be equal to that ordinarily used by reasonably well-qualified doctors in similar cases, he is ' not liable for negligence, even if that judgment is erroneous.” (102 Ill. App. 3d 270, 273.)

The. difficulty with application of this rule in the instant case, as suggested by defense counsel, is that there was sufficient evidence in the record to establish that Dr. Karraker’s judgments (not to use fetal monitoring and not to proceed expeditiously with the cesarean section) were not judgments equal to those ordinarily used by reasonably well-qualified doctors in similar situations. There was a question of fact on the issue, and we will not disturb the jury’s resolution of that question. The evidence was sufficient to establish that by his acts and omissions Dr. Karraker breached the medical standards of care applicable to him in the circumstances of this case.

The final issue, and the most troublesome one, is that concerning the size of the verdict. The defense contends that the jury’s award of $125,000 was excessive and the product of passion and prejudice. The plaintiff argues that the jury was properly instructed and that the question of damages is peculiarly for the jury to decide. In the instant case, the record shows that the only evidence before the jury on the question of damages was the fact that the fetus was viable and that, absent defendant’s malpractice, the evidence indicated that the plaintiff would have had a normal, healthy baby. The plaintiff’s counsel chose not to present other evidence of the baby’s characteristics, and it is questionable what value such evidence (baby’s sex or average human life expectancy) would have had. The more usual considerations, physical and mental characteristics and habits of industry, are largely unavailable in the case of the death of an unborn but viable fetus. In this case, plaintiff essentially relied upon the rebuttable presumption of pecuniary loss which is applicable in cases of the death of a minor, or unborn but viable fetus. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.) The defense, for its part, offered no evidence in rebuttal, which is also understandable, since it did not dispute the evidence of viability or that the baby would have been healthy. It had no counter evidence on the question of pecuniary losses. The result is a substantial verdict based almost entirely upon the presumption of pecuniary loss. In reality, there is really nothing herein in the way of supporting evidence relating to the pecuniary loss suffered from this death. The question before this court is whether, on the basis of the record, this verdict should be affirmed or reversed, with a remittitur.

Problems in this area were anticipated, but left unresolved, by the Illinois Supreme Court when it construed the Wrongful Death Act as applying to the deaths of viable but unborn fetuses. (Chrisafogeorgis v. Brandenberg (1973), 55 Ill. 2d 368, 304 N.E.2d 88 (majority opinion and dissent).) The difficulty in this area with damages has also been apparent in cases involving the death of infants and other very young children. While the statutory scheme provides compensation to the next of kin for pecuniary losses as a result of a wrongful death, it is extremely difficult to provide satisfactory evidence directed to the issues of earning power and probable contribution to the parents, in the case of an infant or young child. Therefore, as noted, the courts have created a rebuttable presumption of pecuniary loss, which is usually accompanied by some supporting evidence. The supporting evidence, for the most part, however, often has little or no affirmative relevance to the issues, being anticipated earning power and probable contribution to the parents. That an infant or young child was a healthy, well-behaved and industrious child, with a long life ahead of him, provides little in the way of specific direction or guidance to the jury, faced with the question of pecuniary loss to the parent or parents. On the other hand, negative characteristics, if they may be so termed, are better guides, for where the defense rebuts the presumption with evidence that the child was unhealthy, or unlikely to live beyond minority, then such evidence may bear specifically and directly on questions of earning capability and potential for contribution. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 238-39.) In the more common case, that is where there is the presumption plus supporting evidence of a healthy, alert and well-behaved child, in fact, such evidence adds little in the way of foundation to the jury’s determination as to pecuniary loss, based upon earning power and contribution. Such supporting evidence, if it serves a purpose, is useful in that it affords trial judges or reviewing courts something in the record to rely upon when leaving the question to the sound discretion of the jury. The truth in this area, and one based upon wise policy, is that wide latitude is given fact-finders on damages, and where there is a reversal by a reviewing court, it is often not based upon a specific evidentiary basis, but upon a conclusion, within its discretion, that the award was simply too high or too low.

With these considerations in mind, and accepting that the presumption of pecuniary loss alone establishes a prima facie case of damages, which the defendant may rebut (Flynn v. Vancil (1968), 41 Ill. 2d 236), and that damages are peculiarly for the jury, we turn to the issue in the case at bar.

In 1964, this court, in Maca v. Rock Island-Moline City Lines, Inc. (1964), 47 Ill. App. 2d 31, 197 N.E.2d 463, affirmed a $30,000 verdict, the maximum allowable at the time, for the wrongful death of a seven-year-old child, where the supporting evidence indicated that the boy was healthy, average, well-behaved and industrious, with his entire life ahead of him. In the instant case, almost 15 years and several inflationary spirals later, there is nothing to indicate that the deceased baby in the instant case would have been anything but a healthy, average, well-behaved child, with his entire life ahead of him. While we may have awarded a considerably smaller sum, we find the question properly to have been for the jury, and we will not disturb its award.

We add that the question of damages in the death of a minor or an unborn fetus is one which we believe the supreme court, and the legslature, should address, and we urge the Hlinois Supreme Court to review the question presented.

Affirmed.

SCOTT and HEIPLE, JJ., concur.


author:
JUSTICE ALLOY
      PRESIDING JUSTICE BARRY,

text:
    HENRY GUTIERREZ, JR., Plaintiff-Appellant, v. RONALD E. SCHULTZ, Defendant-Appellee.
    Third District
    No. 81—355
    Opinion filed September 24, 1982.
    Rehearing denied October 21, 1982.

      BARRY, R J., dissenting.
    Louis F. Pignatelli, of Pignatelli, Pignatelli & Ripley, of Rock Falls, for appellant.
    Richard M. Batcher, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

Plaintiff Henry Gutierrez, Jr., appeals from the dismissal of his negligence complaint against defendant Ronald E. Schultz. Gutierrez had filed his action against Schultz as a result of injuries he had sustained when struck by a truck driven by Schultz in December 1978. After filing of the complaint, Schultz responded with a section 48 motion to dismiss (Ill. Rev. Stat. 1979, ch. 110, par. 48), asserting as an affirmative defense that the claim by Gutierrez had been released. Attached to the motion to dismiss was a copy of a draft, in the amount of $6,000, payable to Gutierrez from Allstate Insurance, and endorsed by Gutierrez. A hearing on the motion to dismiss was held, and at the conclusion of the hearing the court entered its order dismissing the complaint, with prejudice. On this appeal, plaintiff Gutierrez argues (1) that the court erred in not permitting parol evidence on the question of the intent of the parties with respect to the draft; (2) that the court erred in not permitting parol evidence on the question of the issues of fraud, misrepresentation, and mutual mistake in connection with the draft; and (3) that the court erred in concluding that the draft was, in fact, a release of the claims.

The record reveals that Gutierrez was injured in December 1978, while walking across a Sterling, Illinois, street. He was struck by a truck, driven by defendant Ronald Schultz. He later filed a negligence action against Schultz, alleging severe and permanent injuries and asking for damages of $15,000. Schultz responded with the filing of a section 48 motion to dismiss, alleging that Gutierrez had, on or about November 15, 1979, accepted a draft from his insurer, Allstate Insurance Company, in the amount of $6,000, as a release of any and all claims arising from the prior accident. Attached to the motion was a copy of the draft, which stated on its face that it was “In payment of any and all claims including bodily injury arising from accident of 12-12-78 in Sterling, Illinois.”

At the hearing on the motion to dismiss, plaintiff’s counsel sought to introduce certain evidence relating to the circumstances surrounding the acceptance and negotiation of the Allstate draft. The court sustained the motion of defense counsel to exclude such evidence, premising its ruling upon the parol evidence rule and the failure of plaintiff to plead in avoidance of the affirmative defense prior to the hearing. An offer of proof was made. Plaintiff testified that while he was still in the hospital, after the accident, an Allstate adjuster visited him. The adjuster informed him that the company was concerned about the extent of his injuries and that he needn’t worry, because they would take care of everything, including medical and hospital expenses, lost wages, and other damages, including replacement of glasses and clothing. The adjuster, according to the offer of proof, also told the plaintiff not to worry, that if he needed money, Allstate would advance it to him. When specifically asked if the adjuster offered to pay lost wages, Gutierrez indicated that he had. Gutierrez testified that the total lost wages as a result of the accident was $14,000. The medical bills, in total, amounted to about $2,500. Gutierrez continued the offer of proof, testifying that about two weeks before he received the draft, alleged to be a full and complete release, he had another conversation with the insurance adjuster. Gutierrez told the adjuster that he would settle for a fair deal, meaning lost wages, bills, and medical expenses. No agreement for a $6,000 settlement was arrived at during that visit, according to Gutierrez. Some two or three weeks after this conversation, Allstate sent Gutierrez a draft check for $6,000, which contained on its face, in normal size print, the following: “In payment of any and all claims including bodily injury arising from accident of 12-12-78 in Sterling, Illinois.” Gutierrez testified that when he received the check and cashed it he did not believe that he was settling his claims. He indicated that he had informed the adjuster previously that he was not satisfied with their offer. Gutierrez testified that he felt the check was in partial payment only. Gutierrez also testified, on the offer of proof, that some two or three weeks after he got the draft check, he received a release form from Allstate for him to sign. He testified that he did not sign the release, but threw it in the garbage.

Immediately upon conclusion of the offer of proof, the court stated its opinion that the check was a release of all claims, including bodily injury, and that the plaintiff’s endorsement of it estopped him from pursuing the negligence action. Although the court had sustained objections to the evidence concerning the circumstances surrounding the endorsement of the Allstate draft, it nevertheless stated its opinion that Allstate did not intend to perpetrate any fraud or advance any misrepresentation. The court also concluded that there was no mutual mistake of fact. The court then dismissed the complaint with prejudice. From that dismissal, Gutierrez appeals, arguing that the draft was not a release, and that the court erred in not permitting evidence relating to the circumstances surrounding its receipt and endorsement. We reverse and remand.

The rules with respect to releases and covenants not to sue have been repeatedly stated:

“A release or a covenant not to sue, in essence, is the abandoning of a claim to the person against whom the claim exists, and where the release or covenant is executed with knowledge of its meaning, causes of action covered by the release or covenant are barred. (See Ogren v. Graves (1976), 39 Ill. App. 3d 620, 622, 350 N.E.2d 249.) Defenses which may be asserted to vitiate a release or covenant not to sue include fraud in the execution, fraud in the inducement, mutual mistake and mental incompetence. (Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App. 3d 35, 37, 356 N.E.2d 639.) Once the defendant establishes the existence of the document, legal and binding on its face, the burden shifts to the plaintiff to prove it invalid by clear and convincing evidence. Meyer v. Murray (1979), 70 Ill. App. 3d 106, 111, 387 N.E.2d 878.” (McComb v. Seestadt (1981), 93 Ill. App. 3d 705, 706, 417 N.E.2d 705.)

The court in Meyer v. Murray (1979), 70 Ill. App. 3d 106, 111, also noted:

“The wording or form of the document, no matter how all-encompassing the language appears to be, will not preclude it from being set aside.”

In Willis v. Reum (1978), 64 Ill. App. 3d 146, 147, 381 N.E.2d 46, the court noted:

“In Illinois the words of a release will not prevent inquiry into the circumstances to ascertain whether the release was fairly made and accurately reflected the intentions of the parties [citations] and releases of personal injury claims may be set aside when there is a mutual mistake of fact and the circumstances, when finally known, present unconscionable results.”

See Newborn v. Hood (1980), 86 Ill. App. 3d 784, 408 N.E.2d 275.

On the other hand, caution must be used when setting aside releases. As the First District reiterated in McComb v. Seestadt (1981), 93 Ill. App. 3d 705, 708:

“ ‘[T]his so-called liberal trend must exist in harmony with a policy of encouraging the settlement of personal injury claims and the forbearance of litigation entirely. [Citations.] It is especially important to maintain this latter principle in our progressively litigious society where cases are mounting in our overburdened courts. If a release or covenant is to be lightly disregarded, then the peaceful settlement of claims becomes realistically impossible. Prospective litigants cannot or will not negotiate settlements if the law will not give effect to their executed settlement of claims. [Citations.] It is perhaps for these reasons that public policy favors the peaceful and voluntary resolution of claims; where there appears to have been such a resolution by virtue of a release or covenant, a presumption of its validity is created. [Citations.]’ ”

The threshold issue in the instant case is not whether the release should be set aside based upon fraud or mutual mistake, but whether there was a release at all. The plaintiff argues that the court erred in not considering his evidence concerning the circumstances leading up to and surrounding his endorsement of the check. Plaintiff’s position is that this evidence indicated that it was not his intention, by endorsing and cashing the check, to release and fully settle his claim. He argues that the evidence in the offer of proof raised a question of fact on the issue of whether the parties intended the check to be a full and complete release. The insurer argues that the check on its face clearly and unambiguously evidences an intent to release and settle all claims arising from the accident. In so arguing, it concludes that the document is unequivocally a release and settlement of all claims and that any evidence to the contrary is impermissible. We disagree, and conclude that plaintiff’s evidence ought to have been considered, since it was relevant to the issue of the intentions of the parties with respect to the check.

In Gladinus v. Laughlin (1977), 51 Ill. App. 3d 694, 366 N.E.2d 430, the court was confronted with clear words of release on the back of an endorsed check, which endorsement had been placed there by the plaintiff. Plaintiff had filed suit subsequent to cashing the check and the defendant pleaded the release as a bar to the action. The trial court agreed, and granted a motion to dismiss, based upon the release. On appeal, wherein that dismissal was reversed, the appellate court concluded that the words of general release were to be limited by specific references, in that case by reference to a code, on the face of the check, indicating payment for property damage only. (51 Ill. App. 3d 694, 696.) As another basis for reversal, the court noted:

“Illinois courts have uniformly held that the intention of the parties controls the scope and effect of the release; such intent is determined from the language of the instrument when read in light of the circumstances surrounding the transaction. [Citations.]” (51 Ill. App. 3d 694, 696.)

The court then examined the facts surrounding execution of the check and determined that the words of general release were not to be given effect. (51 Ill. App. 3d 694, 697.) Similarly, in Florkiewicz v. Gonzalez (1976), 38 Ill. App. 3d 115, 347 N.E.2d 401, the following language appeared on the back of a check endorsed and cashed by plaintiff, “ ‘Endorsement of this draft constitutes a release in full for account as stated herein.’ ” (38 Ill. App. 3d 115, 118.) In addressing the issue as to the effect of the words of release, the court stated:

“In determining whether the language on the reverse side of the check issued August 23, 1971, was a release of all parties, this court must look to rules of contract construction. We shall therefore consider the words used, the amount paid, the intention of the parties and the substance of the agreement. [Citation.]” 38 Ill. App. 3d 115, 118.

In those cases the language with respect to release, while general, was clear and direct, and it was on the reverse side of the check, where an endorser would be sure to notice it, before endorsing. In the instant case, the language on the check did not use the words release, discharge, settle, or even payment in full. Furthermore, the language of release (“In payment of any and all claims including bodily injury arising from accident of 12-12-78 in Sterling, Ill.”) herein was in regular size print in the middle of the front of the check. We are not dealing in this case with a document entitled release and settlement, but rather with a document whose primary stated purpose and whose outward formal characteristics indicate that it is merely a check. Even assuming that the language used would be understood by the layman as a release and settlement, it would be inappropriate to assess that language divorced from the document as a whole, both its substantive and formal aspects. This document, except for the sentence with respect to what the payment was being made for, was in all other respects a check. We find it conceivable and reasonable, in light of the form of the document and the language used (“in payment of” without clear mention of release, settle, or discharge), that plaintiff herein felt that the check he received was merely payment towards his claim, and not full payment evidencing a final settlement and release of his claim. The document, examined in its entirety, is equivocal as to the intentions of both parties with respect to its endorsement. In addition, the evidence of surrounding circumstances, which ought to have been considered on the issue of intentions, indicates that the insurance agent had represented that the company would take care of everything, including lost wages. It also indicates that plaintiff understood the check to be partial payment of his claim, and not final and complete payment. The evidence in the record, before us as a result of the offer of proof, raises a genuine issue of fact as to whether it was the intention of the parties that endorsement of the check would constitute a full and complete settlement of plaintiff’s claim and be binding as a release of that claim.

Since a genuine issue of fact was raised as to whether the check document was a release, and since plaintiff had filed a jury demand, the motion to dismiss, based upon the release, ought to have been denied, without prejudice to the defendant’s raising the release issue by way of answer. Ill. Rev. Stat. 1979, ch. 110, par. 48(3); Denton Enterprises, Inc. v. State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 506, 396 N.E.2d 34; Penington v. Jones (1977), 46 Ill. App. 3d 65, 67, 360 N.E.2d 566.

Because we have determined that the motion to dismiss ought to have been denied as a result of the factual issue on the parties’ intentions with respect to the check document, we need not reach the questions relating to fraud and mutual mistake, matters which would have the effect, if shown, of avoiding the release. We do note, for future reference of the parties, that such matters are required by section 43(4) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 43(4)) to be set forth in the pleadings if a party will be relying upon them to avoid an assertion, made by way of pleadings, by the other party. Thus, if plaintiff is met with the affirmative defense of release by way of defendant’s answer, it will be incumbent upon him to raise the fraud and mutual mistake grounds by appropriate pleading.

We reverse the dismissal of the complaint, having concluded that the motion to dismiss ought to have been denied, and remand for further procedure consistent with the views expressed in this opinion.

Reversed and remanded, with directions.

STOUDER, J., concurs.

PRESIDING JUSTICE BARRY,

dissenting:

I respectfully dissent. Defendant filed a motion to dismiss plaintiff’s complaint for personal injuries arising out of an accident in Sterling, Illinois, asserting in the motion plaintiff’s release of all claims. At the hearing on the motion, plaintiff without having responded to the motion, merely argued that the purported “release” was “a mistake,” thereby seeking to avoid the release. The trial court refused to admit evidence of the parties’ intentions and ruled that plaintiff’s claim is barred by his release. The majority opinion reviews the evidence contained in an offer of proof and concludes that there was a genuine issue of fact as to whether plaintiff intended his indorsement of the check to be a release of all claims. I disagree.

The $6,000 draft was filled out by a typewriter. The name of plaintiff as claimant was listed just below the name of defendant Schultz as insured. Just under plaintiff’s name in the same size type, next to the words “In payment of,” were the words “Any and all claims including bodily injury arising from accident of 12-12-78 in Sterling, HI.” I cannot believe that any reasonable person would interpret that statement to mean anything other than what it says; that the payment was intended to bar all personal injury claims of plaintiff arising out of the accident. A release is effective without the use. of any particular form, and in the absence of any ambiguity, there is no cause for considering parole evidence as to the intention of the parties. In my view, there is no factual issue as to whether there was a release, and the trial court did not err in dismissing the complaint. I would affirm.


author: JUSTICE LONDRIGAN

text:
    ANNE M. NEWMARK et al., Plaintiffs-Appellants, v. WILLIAM HARTMAN et al., Defendants-Appellees.
    Fourth District
    No. 17611
    Opinion filed September 30, 1982.
    Rehearing denied October 28, 1982.

      Balbach & Fehr, of Urbana, for appellants.
    Moore, Nelson & Stipp, of Hoopeston (William E. Nelson, of counsel), for appellees.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

On August 29, 1977, Anne M. Newmark fell while she was retrieving three suits left at her front door by defendant William Hartman, an employee of Garber’s Modern Cleaners of Champaign, which defendant Joseph Hamburg partly or wholly owns. The trial court granted the defendants’ motion for summary judgment, ruling that their acts had not proximately caused the plaintiffs’ injuries.

The plaintiffs’ amended complaint, filed October 28, 1981, comprises two counts: the first is brought by Anne Newmark in her own behalf and seeks damages for her personal injuries; the second count is brought by Anne Newmark and the First National Bank in Champaign as executors of the estate of Mrs. Newmark’s husband, Nathan, who died January 25, 1981, and seeks damages for his loss of consortium occasioned by his wife’s injuries. According to the amended complaint, at 6:30 p.m. on the day of the accident Hartman left clothing “on the closing mechanism at or near the top of the front screen door” of the Newmarks’ home; directly after Hartman left, Mrs. New-mark tried to retrieve the clothing by standing on a kitchen stool but fell.

The amended complaint alleges that Hartman committed four negligent acts: (1) he left the clothing outside the home “without authorization and in an unreasonably dangerous condition and in an unreasonably dangerous location for a person of” Mrs. Newmark’s size; (2) he left the clothing “in the screen door closing mechanism,” which was too high for Mrs. Newmark to reach, “thereby creating an unreasonably dangerous condition for a person of” Mrs. Newmark’s size, which Hartman knew or should have known; (3) he left the clothing on the mechanism, where it “would be difficult to remove because the hangers could become lodged in the mechanism, or caught between the door frame and the mechanism, or require unusual force for their removal, thereby creating an unreasonably dangerous condition for a person of” Mrs. Newmark’s size, which Hartman knew or should have known; and (4) he left the clothing “in a place where the defendants could reasonably foresee that the plaintiff, Anne M. Newmark, might injure herself in retrieving” it.

The amended complaint also alleges that the Newmarks had never authorized Hartman or anyone else to leave clothing at the front door or anywhere else outside the home, that on each of the previous times Hartman delivered cleaning to the Newmarks he had given it to Mr. or Mrs. Newmark at the door or inside their home, and that Hartman and Hamburg knew that Mrs. Newmark was short and had trouble moving.

The defendants’ motion for summary judgment argues that Mrs. Newmark’s fall was “proximately caused by her intervening actions” rather than by the defendants’ acts, that the defendants owed Mrs. Newmark no duty of care, and that the accident was unforeseeable. The motion quotes several passages from Mrs. Newmark’s discovery deposition, taken November 7, 1980, when she explained that a stroke in May 1974 had left her with “a slight limp” in her left leg and “a slight weakness” in her left arm; she used a cane to walk. According to the quoted excerpt she agreed with defense counsel that “there was no real urgency about this cleaning.” After Hartman left the cleaning and drove off, Mrs. Newmark decided to bring the clothing, three expensive suits, inside. She got a stepstool — she had not used one for a year — hooked the screen door so that she would not fall through it, and stepped up on the stool, supporting herself on the window molding. The three items were tied together and were heavy and knocked her off; she had not anticipated this. Mrs. Newmark did not seek anyone’s help in retrieving the clothing.

In answer to the motion the plaintiffs submitted an affidavit by Mrs. Newmark and excerpts from Mrs. Newmark’s and Hartman’s depositions. In her affidavit Mrs. Newmark asserts that on August 29, 1977, she was in good health, excepting the effects of the stroke, which Hartman knew about, and that Hartman had delivered cleaning to her home “possibly as many as 12” times in the year preceding that day. Mrs. Newmark also asserts that she never gave Hartman permission to leave clothing outside the door and that Hartman had never previously done that. That day Hartman hung the clothing on the device that closes the door, about seven feet above the floor. According to Mrs. Newmark’s deposition — the same one used by the defendants — she was born August 28, 1910, and is five feet tall. Besides the stroke she also suffered from angina but never needed to take medicine for that. Hartman, who always delivered the clothing by three in the afternoon, knocked at the Newmarks’ door about 7 p.m. the night of the fall. Mrs. Newmark was the only person home, and she got her cane and went to answer the door, which took her about a minute or two; when she got there she saw Hartman in his truck “backing out the driveway just ferociously.” Mrs. Newmark shouted and flashed the porch light several times but Hartman did not stop. She had never given Garber’s or Hartman permission to leave clothing at her home when no one was there.

The plaintiffs also excerpted Hartman’s deposition. Hartman was 49 years old and had worked at Garber’s for 21 years, where he was paid by commission. He will not leave clothes at a home unless the customers tell him in advance that it is all right to do that; without this permission he will return the clothing to Garber’s. Hartman explained that when the Newmarks were home he would enter the house and hang the cleaning inside a closet or drape it over a chair. He also said that for the delivery in question here Mrs. Newmark had told him that she needed the clothing quickly and that on this one occasion he was to leave it at the door, unattended, if no one answered. Hartman remembered only that Mrs. Newmark was thin and walked with a cane. On the day of the fall Hartman hung the clothing — the hangers were tied together — on the device that closes the storm door; the device was at the top of the door in the corner. He did not see or hear Mrs. Newmark, who always answered the door promptly.

The trial court granted the defendants’ motion, finding as a matter of law that the defendants had not proximately caused the harm. We affirm the trial court’s decision, though on the basis that there was no breach of duty.

The concept of proximate or legal cause may be expressed in terms of duty. (Prosser, Torts sec. 42 (4th ed. 1971).) The advantage gained by translation is that duty, unlike proximate cause,- focuses attention on the nature and limits of the defendant’s obligation rather than on chains of events, which beg to be confused with actual cause. Rephrased in terms of duty, then, the question becomes whether the defendants were obligated to protect Mrs. Newmark from falling.

The defendants’ duty here was not broad enough to include the accident that occurred; stated another way, the defendants did not breach their duty to use ordinary care for the safety of the plaintiff. In Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233, the court said:

“After the event, hindsight makes every occurrence foreseeable, but whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.”

Measured against this formula, the circumstances here did not give rise to a duty to protect Mrs. Newmark from what occurred. The defendants were obligated to prevent only foreseeable accidents; the more likely risk was to the clothing, for it could have been damaged by rain or stolen. What actually occurred was unlikely.

Furthermore, a party’s duty is limited to guarding against risks that are unreasonable (Cunis v. Brennan (1974), 56 Ill. 2d 372, 376, 308 N.E.2d 617, 619; Barnes v. Washington (1973), 56 Ill. 2d 22, 26, 305 N.E.2d 535, 538); any risk to Mrs. Newmark’s safety posed by Hartman’s leaving the clothing at the door was reasonable. The defendants therefore did not breach their duty. Although the parties disagree whether Mrs. Newmark instructed Hartman to leave this particular batch of clothing at the door in the event no one seemed to be home, the intended manner of delivery has no bearing on the scope of the defendants’ duty. Hartman’s employer established the rule against leaving clothing unattended without the customer’s permission, and the plaintiffs do not allege that the rule is intended to protect customers from falls (see Mick v. Kroger Co. (1967), 37 Ill. 2d 148, 224 N.E.2d 859). Summary judgment on this question would have been appropriate under the record hére. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497.) We therefore conclude that the defendants did not breach their duty to use ordinary care for the safety of Mrs. Newmark and affirm the decision of the trial court.

Affirmed.

GREEN, P. J., and WEBBER, J„ concur.