text:
    CLEAR-VU PACKAGING, INC., et al., Plaintiffs-Appellants, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Defendant.—(THE ALPER AGENCY, INC., Defendant-Appellee.)
    Second District
    No. 81-480
    Opinion filed March 25, 1982.
    Rehearing denied May 11, 1982.

      Marvin Classman and Nicholas J. Lynn, both of Rabens, Formusa and Classman, Ltd., of Chicago, for appellants.
    Robert S. Soderstrom and Shaun McFarland, both of McKenna, Storer, Rowe, White & Farrug, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

This appeal arises from a dismissal of plaintiffs’ amended complaint pursuant to section 48(1) (f) of the Illinois Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(f).) The sole issue presented for our review is whether plaintiffs’ release of a defendant insurance company for liability under the terms of an insurance policy operated as a release of the defendant insurance broker for liability for its alleged failure to procure a policy in conformance with the plaintiffs’ request.

On June 20, 1978, plaintiffs, Clear-Vu Packaging, Inc. (Clear-Vu), and Plastofilm Industries, Inc. (Plastofilm), filed a two-count complaint against defendants, National Union Fire Insurance Co. (National Union) and the Alper Agency, Inc. (Alper), seeking to recover $2,024,400 in damages which they sustained as a result of a fire on their insured premises. Plastofilm is the sole owner of all outstanding shares of stock in Clear-Vu. Count I of the complaint, directed against Alper, sought a declaration of the rights and liabilities of the parties under the provisions of an insurance binder letter dated April 25, 1977, and subsequent letters and agreements between Alper, Clear-Vu and Plastofilm. This count further requested judgment against Alper in an amount equal to plaintiffs’ total loss suffered less any sum paid by National Union. Count II sought judgment against National Union under the terms of the insurance policy issued to plaintiffs.

On January 19, 1979, plaintiffs filed an amended complaint seeking, in addition to the relief sought in the original complaint, damages against Alper for its improper preparation of plaintiffs’ business interruption claim, and punitive damages against National Union for its refusal to pay plaintiffs’ claim. The punitive damages claim was subsequently dismissed by the trial court. Also, a countercomplaint was filed by Alper against National Union which is not pertinent to this appeal. On December 28, 1979, plaintiffs’ remaining claim against National Union was then dismissed pursuant to a stipulation of the parties that the claim would be litigated in an action between the parties pending in the State of New York. Thereafter, plaintiffs and National Union executed a document, in consideration of $1,250,000 paid by National Union, releasing National Union from all causes of action plaintiffs had against National Union arising out of the insurance policy.

On May 19, 1980, plaintiffs filed an amended count I against Alper. The facts as alleged in that amended count are essentially as follows. Prior to February 17, 1977, plaintiffs requested Alper to obtain insurance coverage for property and business interruption loss for the property and business operations for Clear-Vu which was located at 112 Bruckner Blvd., Bronx, New York, New York. On April 25,1977, plaintiffs received a letter from Alper asserting that arrangements had been made with National Union “to accept on an All Risk Basis an amount of $2,650,000 blanket contents, property of others, and business interruption.” Accompanying the letter was an insurance premium invoice in the amount of $5,762 which plaintiffs promptly paid. The insurance policy issued by National Union, however, did not conform to the agreement between plaintiffs and Alper, and Alper failed to attend to correction of the policy or to advise plaintiffs that a policy could not be obtained in accordance with their agreement. On or about August 6, 1977, a fire occurred at Clear-Vu’s plant and offices in New York, resulting in loss and damage in the total amount of $2,024,400. This amount consisted of a contents loss of $1,311,059 and a business interruption loss of $713,341. Subsequently, plaintiffs were advised by National Union that the policy in force on the date of the fire did not provide blanket coverage but was limited to $1,150,000 for loss of contents and $1,500,000 for business interruption. As a result of the failure of the policy to sufficiently cover plaintiffs’ contents loss, plaintiffs suffered an uninsured loss of $161,059. Plaintiffs prayed for judgment against Alper in an amount equal to the total loss suffered less any sums paid by National Union.

On August 11, 1980, Alper filed a motion to dismiss claiming that plaintiffs’ release of National Union operated to release plaintiffs’ claim against it. The trial court granted Alper’s motion, and plaintiff now appeals.

We note initially that in reviewing a trial court’s order granting a defendant’s motion to dismiss a complaint, we must regard all well-pleaded facts and their reasonable inferences as true. (Wilczynski v. Goodman (1979), 73 Ill. App. 3d 51, 54, 391 N.E.2d 479.) In addressing the issue raised for our review, we must first determine if the release executed between plaintiffs and National Union, on its face, purported to release Alper. The document in question provided that Clear-Vu and Plastofilm in consideration of the sum of $1,250,000 received from National Union “do hereby release and discharge National its successors and assigns, from all actions, causes of actions, * * * whatsoever, in law, admiralty or equity, which against National either Plastofilm or Clear-Vu or both, or their successors or assigns, ever had, now have or hereafter can, shall, or may have, arising out of the occurrence of a fire on August 7,1977, which damaged Clear-Vu’s premises at 112 Bruckner Boulevard, Bronx, New York, or under, by virtue of, or in connection with, a certain contract of insurance between National and Clear-Vu, bearing policy no. 4509158 • ° Manifestly, the document does not purport to release anyone other than “National its successors and assigns.” The intention of the parties controls the scope and effect of the release and such intent is determined from the language of the instrument when read in light of the circumstances surrounding the transaction. (Gladinus v. Laughlin (1977), 51 Ill. App. 3d 694, 696, 366 N.E.2d 430.) Since the document in question does not mention the Alper Agency nor does it state it is in full satisfaction of all of plaintiffs’ claims against all potential parties, we believe it is clear that the parties intended to release only National Union from any liability it might have on the insurance policy. We cannot interpret the language of the release so broadly as to defeat a valid claim not then in the minds of the parties. 51 Ill. App. 3d 694, 696, 366 N.E.2d 430.

Having decided that the document on its face does not release Alper, we must now determine whether Alper was released by operation of law. It is well settled in Illinois that the release of one joint tortfeasor releases all. (Pate v. City of Sesser (1979), 75 Ill. App. 3d 233, 237, 393 N.E.2d 1146; Smith v. Lehn & Fink Products Corp. (1977), 46 Ill. App. 3d 1002, 1009, 361 N.E.2d 661.) This same rule applies to those concurrently hable for a single indivisible injury, not merely those who are technically joint tortfeasors. (Alberstett v. Country Mutual Insurance Co. (1979), 79 Ill. App. 3d 407, 410, 398 N.E.2d 611; Artoe v. Navajo Freight Lines, Inc. (1978), 65 Ill. App. 3d 119, 123, 382 N.E.2d 492.) On the other hand, it has been held that a release given a nontortfeasor does not release another who may be a tortfeasor (Scoggins v. Village of Hartford (1967), 86 Ill. App. 2d 233, 236, 229 N.E.2d 550), and a release of one tortfeasor does not act as a bar to an action against another tortfeasor whose separate tortious conduct results in a separate and distinct injury. Anderson v. Martzke (1970), 131 Ill. App. 2d 61, 67, 266 N.E.2d 137.

Plaintiffs’ complaint against Alper appears to be based on the general rule that an insurance broker is liable for any loss sustained by the principal if he neglects to procure insurance or does not follow instructions when obligated to do so, or if the policy obtained is void or materially defective through the broker’s fault, or if the principal suffers damage by reason of any mistake or act of omission or commission of the broker. (National Boulevard Bank v. Brokerage Resources, Inc. (1976), 42 Ill. App. 3d 940, 943, 356 N.E.2d 988.) It has also been stated that a broker’s liability may be based on a theory of negligence or in contract for failure to perform an agreement to procure proper insurance. (Black v. Illinois Fair Plan Association (1980), 87 Ill. App. 3d 1106, 1111, 409 N.E.2d 549.) Indeed, cases in Illinois seem to reflect both theories of liability. See, e.g., Black v. Illinois Fair Plan Association (1980), 87 Ill. App. 3d 1106, 409 N.E.2d 549, and Gothberg v. Nemerovski (1965), 58 Ill. App. 2d 372, 208 N.E.2d 12.

However, regardless of whether we characterize plaintiffs’ complaint against Alper as sounding in tort or in contract, it is clear that Alper and National Union cannot be seen as joint tortfeasors nor can they be considered concurrently liable for a single, indivisible injury to plaintiffs. An examination of plaintiffs’ amended complaint reveals that the cause of action against National Union was based on National Union’s refusal to pay on the policy of insurance. A suit for failure to pay under a policy of insurance is one founded on breach of contract. (Schewe v. Home Insurance Co. (1980), 80 Ill. App. 3d 829, 831-32, 400 N.E.2d 501.) The alleged failure of National Union to pay on the insurance policy caused injury to plaintiffs that was separate and distinct from the injury which resulted in Alper’s alleged failure to procure a policy in conformance with plaintiffs’ request. See Green v. Helmcamp Insurance Agency (Tex. Civ. App. 1973), 499 S.W.2d 730 (settlement of claim with insurance company does not constitute an election of remedies so as to bar a claim against the broker for failure to provide coverage since the two claims were found to be “separate and distinct”).

In this regard we also note that the rationale for the rule that a release of one joint tortfeasor releases all appears to be in the notion that there can be but one recovery for a single injury. As the court in Manthei v. Heimerdinger (1947), 332 Ill. App. 335, 350, 75 N.E.2d 132, stated:

“ ‘It is an ancient doctrine that a release to one joint trespasser, or a satisfaction from him, discharges the whole. The same doctrine applies to all joint torts, and to torts for which the injured party has an election to sue one or more parties severally. * ° ” If it were not so, a party having a claim against several persons on account of a single tort might sue one and settle the suit, receiving damages; he might then sue another and settle in the same way, and repeat the proceeding as to all but one, and then sue him and recover the whole damage, as if nothing had been paid by the others. A door would thus be opened to a class of speculations that do not deserve encouragement. The rule of law which makes one satisfaction or release a bar to further claims for the same tort is founded in good reason.’ ”

In the present case there is no such danger of double recovery since we have determined that plaintiffs’ amended complaint alleges separate and distinct causes of action against Alper and National Union. Additionally, plaintiffs’ amended count I against Alper prays for “an amount equal to plaintiffs [sic] total loss suffered under this occurrence less any sum. or sums paid or to be paid by National Union with reference to this subject matter.” (Emphasis added.) Since National Union has already paid $1,250,000 in consideration for the release, Alper, if found liable, would only be accountable for the balance between this sum and the sum representing plaintiffs’ total loss. Under these circumstances, there is no danger of double recovery, and the rationale for the above-quoted rule does not apply.

The recent decision in Schrempf v. New England Mutual Life Insurance Co. (1982), 103 Ill. App. 3d 408, is inapposite to the case at bar as in that case the court found that the claim intended to be released included all types of actions. Here, we conclude that the release, though broadly discharging National Union from all actions, suits, etc., was clearly intended to settle only plaintiffs’ claim against National Union arising from the contract of insurance.

Since we have determined National Union and Alper are not joint tortfeasors and are not concurrently liable for a single indivisible injury to plaintiffs, the release of National Union did not act as a release of Alper. See Anderson v. Martzke (1970), 131 Ill. App. 2d 61, 67, 266 N.E.2d 137; Cereal Byproducts Co. v. Hall (1958), 16 Ill. App. 2d 79, 83-84, 147 N.E.2d 383, aff'd (1958), 15 Ill. 2d 313, 155 N.E.2d 14.

Accordingly, the judgment of the circuit court of Du Page County dismissing plaintiffs’ complaint is reversed and the cause is remanded.

Reversed and remanded.

LINDBERG and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE VAN DEUSEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK M. SCHROEDER, Defendant-Appellant.
    Second District
    No. 81-60
    Opinion filed April 7, 1982.

      Arthur H. Zimmerman, of Des Plaines, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendant-appellant, Patrick Schroeder, and co-defendant, Thomas Streck, were charged by information with four counts of deviate sexual assault, one count of aggravated kidnapping, one count of intimidation, one count of attempt (rape), and one count of robbery (Ill. Rev. Stat. 1979, ch. 38, pars. 11 — 3, 10 — 2(a)(3), 12 — 6(a)(1), 8 — 4, 18 — 1). Prior to their trials, both defendants moved to suppress identification evidence and to sever their trials. The trial court denied defendants’ motion to suppress, but granted their motion to sever. In a separate trial, the co-defendant was acquitted. After a bench trial, defendant Schroeder was found guilty on four counts of deviate sexual assault, aggravated kidnapping, intimidation and robbery, resulting in a sentence of 10 years in the Department of Corrections on the four deviate sexual assault convictions and five years on the intimidation conviction, the sentences to run concurrently. Defendant Schroeder brings this appeal.

Defendant initially contends that the identification testimony was vague, doubtful and uncertain, and, therefore, he was not proven guilty beyond a reasonable doubt of any of the charges. We disagree. It is well settled that, where the identification of the accused is at issue, the testimony of a single witness is sufficient to convict, even if the identification testimony is contradicted by the accused, provided that the witness is credible and the accused is viewed under circumstances which would permit a positive identification to be made. People v. Johnson (1980), 94 Ill. App. 3d 200, 206.

The record demonstrates that the victim had ample opportunity to view her assailants in an area adequately supplied with artificial light. The victim could describe certain facial features of the assailants despite their faces being covered most of the time with nylon stocking masks. The degree of attention of the witness was more than casual or passing, in that she was the victim of one of the most personally humiliating crimes. The witness’ description of the person who had initially grabbed her matched the defendant except for the fact that the defendant was lighter than the victim’s estimate and had a distinctive moustache. These discrepancies in the witness’ testimony do not destroy the witness’ credibility, for an identification is usually not made by distinguishing separate features but by the “total impression” made upon the witness. (People v. Moore (1977), 50 Ill. App. 3d 952, 957; People v. Winston (1975), 28 Ill. App. 3d 237, 239.) The record further demonstrates that within three weeks of the offense, the witness picked the defendant out of a lineup of eight individuals with little or no difficulty. Thus, the record does establish that the victim’s identification was positive and precise, and that the failure to detect the presence or absence of a moustache is a minor discrepancy and does not destroy the credibility of the witness. People v. Agosto (1979), 70 Ill. App. 3d 851, 856.

The foregoing evidence also establishes that, considering the total circumstances of the matter, the identification was reliable and admissible even though some suggestive remarks were made during the confrontation procedure. In making this determination we have applied the factors which the United States Supreme Court indicated should be considered in evaluating the likelihood of misidentification, to wit: the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382.

We have reviewed these factors and the evidence in light of any corrupting effect of the alleged suggestive procedures. (Manson v. Brath waite (1977), 432 U.S. 98,116, 53 L. Ed. 2d 140, 155, 97 S. Ct. 2243, 2254.) Although each participant in the lineup wore a wristband with his name printed on it with one-half inch lettering, there was no evidence that any of the witnesses knew the names of the accused at the time. Additionally, although defendant’s attorney heard someone state, “[Ejveryone wants to see 2 and 5 [the two co-defendants] again, right? Everybody 2 and 5,” there was no evidence that any of the witnesses heard this remark. There was testimony that neither of the two detectives who had testified at the hearing heard this statement; moreover, the witnesses were located in an adjacent room. Finally, although all the witnesses to the lineup were placed in the same room, both before and after viewing the lineup, there was no testimony which indicated that the witnesses discussed the accuseds’ descriptions. (People v. Norfleet (1972), 4 Ill. App. 3d 758, 763-64.) We therefore conclude that the trial court was correct in finding that the defendant had failed to sustain his burden in establishing that the lineup procedure was impermissibly suggestive. (People v. Watkins (1970), 46 Ill. 2d 273, 278; People v. Anton (1981), 100 Ill. App. 3d 344, 348; see People v. Jones (1975), 60 Ill. 2d 300, 308.) The trial court did not err in denying defendant’s motion to suppress the identification testimony.

Defendant, citing People v. Beasley (1976), 41 Ill. App. 3d 550, also contends that the acquittal of the codefendant, Streck, raised a reasonable doubt of defendant’s guilt. For a reasonable doubt to be raised on such grounds, it must be shown that the evidence given against both defendants is identical in all respects. (People v. Stock (1974), 56 Ill. 2d 461,465.) This rule has been applied only where the codefendants were tried simultaneously upon the same evidence. (People v. Hill (1978), 65 Ill. App. 3d 879, 886.) The rule is not applicable in a case such as this, where the defendants have received separate trials which were held at different times.

For the reasons stated above the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

SEIDENFELD, P. J., and UNVERZAGT, J„ concur.


author: JUSTICE HEIPLE

text:
    LINDA FORNOFF et al., Plaintiffs-Appellants, v. PARKE DAVIS & COMPANY, Defendant-Appellee.
    Fourth District
    No. 16931
    Opinion filed March 25, 1982.
    Modified on denial of rehearing May 12, 1982.

      Lemmer, Boggs, Knuppel & Krebaum, of Havana, and Londrigan and Potter, P. C., of Springfield (James C. Craven, of counsel), for appellants.
    Gillespie, Cadigan & Gillespie, of Springfield, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

Plaintiffs, Linda and Dale Fornoff, sued Dr. Jack Means and the Abraham Lincoln Memorial Hospital (Memorial) for medical negligence. Additionally, plaintiffs sought compensatory and exemplary damages from defendant Parke Davis & Company (Parke) in a products liability action. This latter suit, based on theories of strict liability and negligence concerned the marketing and distribution of buccal pitocin by Parke. The strict liability count was subsequently withdrawn. A Sangamon County jury returned verdicts of $750,000 for Mrs. Fornoff, and $80,000 for Mr. Fornoff, and against Dr. Means and Memorial. Such verdicts were not appealed. As to the negligence claim against Parke, however, the jury verdict was in favor of defendant and against plaintiffs. It is the propriety of these latter verdicts, and judgments entered thereon, which both plaintiffs ask us to examine in their appeal.

Generally, five issues confront us. They concern the validity of: certain jury instruction; trial rulings on various evidentiary topics; whether the jury verdicts were against the manifest weight of the evidence; dismissal of plaintiffs’ counts for wilful and wanton misconduct; and, the trial conduct of defendant’s counsel. We begin with the chronicle of events precipitating this litigation.

In time we regress to December 1969. Plaintiffs were married, living on and working a farm in Mason County. Mrs. Fornoff, 20 years old, was pregnant, having been so evaluated by her physician, Dr. Means. Two years previous she gave birth to a healthy, male child. A different doctor attended that delivery. Birth of the second child was expected in mid-May 1970. Dr. Means’ records indicate that during Mrs. Fornoff’s pregnancy no unusual complications arose.

In early May, at a regular checkup, Dr. Means told Linda Fornoff he would be out of town on May 16. He would attend a medical convention in Chicago. Linda’s due date was May 15. The physician said if she wanted him to deliver the child he could induce labor artificially by the use of pills she would hold in her mouth. The only adverse effect of the drug, he explained, might be that she would not go into labor and would have to return home. The name of the drug was not mentioned. After discussing the subject with her husband, Mrs. Fornoff consented to this procedure on May 14,1970.

That very evening she entered Memorial. During the next 12-14 hours Dr. Means or hospital staff administered 5400 units of buccal pitocin to Mrs. Fornoff. That is 27 pills. Mrs. Fornoff testified that during this span she experienced violent contractions and called for help. This account was disputed by hospital personnel and Dr. Means, who said the delivery was normal. After a healthy female child was born, Dr. Means left the patient in the care of another doctor.

After the child’s birth, Mrs. Fornoff encountered cramping, mucous discharge from the rectal area, and the inability to defecate. She was given an enema. Upon returning home such problems persisted. She informed Dr. Means. He recommended mineral oil. It did not help. Mrs. Fornoff consulted other doctors. Dr. Means concluded she was neurotic and suggested she seek professional mental health care.

In the fall of 1971, Mrs. Fornoff was hospitalized and treated by Dr. Davidson in St. Louis, Missouri. A specialist in rectal and colon infirmities was summoned. He diagnosed a massive rectal prolapse. Essentially, this means several of Mrs. Fornoff’s internal organs fell down from the places they normally occupy. Major reconstructive surgery and a colostomy were performed. This did not work. The draining continued. Further surgeries, including one inserting wires beneath the colon to support it, were unavailing. She deteriorated physically.

In 1975 Mrs. Fornoff sought the advice of Dr. Charles Ripstein of Miami, Florida. This physician is one of the most renowned colon and rectal surgeons in the world. Due to his expertise he pioneered a surgical technique whereby prolapsed organs in the rectal area could be corrected. This surgical method entails the insertion of a mesh screen in the area of the anal sphincter to support the displaced organs. At the request of the Fornoffs, due to proximity and traveling expenses, Dr. Ripstein recommended Dr. Bruce Thow in Champaign, Illinois, do this type of surgery. Dr. Thow performed a hysterectomy, repaired Mrs. Fornoff’s bladder, and inserted the screen.

Post-operative complications arose. Linda Fornoff suffered fissures in the anal sphincter area. Thereupon, Dr. Ripstein performed a fissurectomy and reconstructive surgery after Mrs. Fornoff’s body rejected, in part, the mesh screen. Crymotherapy, a very painful procedure, which involves freezing of the affected tissue, was also required.

During all of this period of disability, Mrs. Fornoff was limited in caring for her children. She could not completely discharge her household duties. In 1979 her marriage ended by divorce.

Buccal pitocin is an ethical drug which Parke manufactures and distributes. The drug is used to stimulate the uterus, thereby inducing labor and the onset of childbirth. Pitocin is produced naturally in the female’s bloodstream when a child is delivered normally. The chemical equivalent allows ingestion of a greater amount than the body normally generates. Administration of the drug is done intravenously or orally by tablet held in the mouth. The former method is preferred while the latter is more convenient. Memorial did not possess adequate apparatus for intravenous administration of this chemical agent.

Inside the package of buccal pitocin which Parke sold was a six-page insert which informed the doctor of the drug’s fundamental properties, directions on how to use it, warnings, precautions, adverse reactions, and literature for and against its prescription use. Such insert was received in evidence as plaintiffs’ exhibit. On dosage, the insert said: “ADMINISTRATION AND DOSAGE Induction or Stimulation of Labor

Buccal administration of Pitocin in (oxytocin citrate) must be adapted to the patient’s response. Begin by placing a 200 unit tablet in the parabuccal space adjacent to the upper molar teeth. Initial dosage should be limited to one tablet to avoid the possibility of excessive absorption before local vasoconstriction has occurred. Additional tablets are placed in the parabuccal space at half-hour intervals (Fig. 1), alternating between the two cheek pouches, until the desired response is obtained or until a total of 3000 units has been administered without satisfactory results.”

Under precautions and adverse reactions it stated:

“PRECAUTIONS
Strict adherence to the instructions set forth in the preceding paragraphs under Indications and Contraindications is extremely important. As Dillon stated, ‘The complications of oxytocin administration are few when indications and contraindications are carefully followed.’
Administration of oxytocin in the first and second stages of labor in untrained hands is dangerous and only hospital personnel thoroughly trained in its use should administer it. Maternal deaths due. to hypertensive episodes, subarachnoid hemorrhage, rupture of the uterus, and fetal deaths due to various causes have resulted from the injudicious use of parenteral oxytocic drugs in the first and second stages of labor and even for the induction of labor.
ADVERSE REACTIONS
Uterine hypertonicity, spasm, tetanic contraction or rupture has been reported and discussed (12-2) but in nearly all instances, if not all, the drug was used in the presence of conditions listed under Contraindications or at doses in excess of those we recommend.”

This appeal involves the extent of the liability of a drug manufacturer in the marking of its products. It is not a strict liability case. It is a negligence case. Specifically, plaintiffs contend, Parke was negligent in breaching its duty to adequately warn of the possible adverse consequences which result from the improper administration of buccal pitocin.

I. Jury Instructions

The failure to give five of plaintiffs’ tendered jury instructions is alleged as error. They are plaintiffs’ instructions numbered 13, 16,18,19, and 30. We set out here in full these tendered and refused instructions.

“Plaintiffs’ Instruction No. 13
A drug manufacturer owes the medical community the duty to adequately inform them of the risks and dangers of its drugs. In considering whether or not the drug manufacturer met this obligation, you must consider:
(1) Whether the warning was in such form that it could reasonably be expected to catch the attention of the reasonably prudent doctor or hospital in the circumstances of its use;
(2) Whether the content of the warning was of such a nature as to be comprehensible to the average physician and hospital and conveyed a fair indication of the nature and extent of the danger to the mind of the reasonably prudent physician and hospital; and
(3) Whether the warning was made with a degree of intensity that would cause a reasonable physician or hospital to exercise the caution commensurate with the potential danger.”
“Plaintiffs’ Instruction No. 16
In determining whether or not the Defendant, PARKE DAVIS & COMPANY’S, failure to adequately warn the medical community of the dangers of Buccal Pitocin was a proximate cause of the Plaintiffs’ injuries, you must consider whether in light of all the circumstances existing at the time of administration of the drug whether a reasonably prudent doctor or hospital in the Defendants’ position would have administered the drug if adequate warnings had been given to the doctor or the hospital warning them of the dangers of the drug.”
“Plaintiffs’ Instruction No. 18
There was in force in the State of Illinois and the United States of America at the time of the occurrence in question a certain regulation which provided in pertinent part:
(d) Changes of the following kinds proposed in supplemental new-drug applications should be placed into effect at the earliest possible time;
(1) The addition to package labeling, promotional labeling, and prescription drug advertising of additional warning, contra-indication, side-effect, and precaution information.
(2) The deletion from package labeling, promotional labeling, and drug advertising of false, misleading, or unsupported indications for use or claims for effectiveness.
(e) It will be the policy of the Food and Drug Administration to take no action against a drug or applicant solely because changes of the kind described in paragraph (d) of this section are placed in effect by the applicant prior to his receipt of a written notice of approval of the supplemental new-drug application.”
“Plaintiffs’ Instruction No. 19
Under the Federal Food and Drug Administration Regulations, a proposed change in a package insert is considered a supplemental new drug application.”
“Plaintiffs’ Instruction No. 30
In considering whether or not a drug manufacturer was negligent and exercised ordinary care you are instructed that a drug manufacturer is held to the standard of care of an expert.”

In numerical order, we first consider plaintiffs’ instruction No. 13, a non-IPI instruction. Instruction No. 13 is acceptable in part and unacceptable in part. Its introductory sentence that a drug manufacturer owes the medical community the duty to adequately inform them of the risks and dangers of its drugs is an acceptable statement of the law. If the instruction had stopped there, it would have been proper to give it. It was, however, duplicative of another instruction that was given on the same point.

Moreover, the instruction did not stop there. It went on to define adequacy of notice in a somewhat argumentative fashion with language which is, to a degree, biased and nonneutral, e.g., * * to catch the attention of * * *,” ® ° conveyed a fair indication * * and * ° made with a degree of intensity * * This might have been acceptable language in a final argument but was properly disallowed in an instruction from the court.

When considering a non-IPI instruction, trial courts are entitled to some latitude and exercise of judicial discretion. While it might not have been reversible error to give this instruction, neither was it reversible error to refuse it. It is not the trial judge’s duty to prepare or amend instructions. That is the parties’ responsibility. (People v. Grant (1978), 71 Ill. 2d 551, 558.) The trial judge did not commit error when he refused plaintiffs’ instruction as tendered.

Plaintiffs’ instruction No. 16, another non-IPI instruction, is also defective and was properly refused. It is argumentative and presupposes that Parke’s warning was inadequate. It takes the inadequacy of notice as a given fact when it states, “In determining whether or not the Defendant, Parke Davis & Company’s failure to adequately warn the medical community of the dangers of Buccal Pitocin ” ” In truth, the question of adequacy of notice was contested. This instruction eliminates any question on this issue by stating that such notice was inadequate. It then leaves it up to the jury to determine only whether such “inadequate notice” was the proximate cause of the injury. In effect, this instruction would be a directed verdict on the question of adequacy of notice. It was properly refused.

Plaintiffs’ instructions Nos. 18 and 19 were offered to rebut inferences at trial wherein Parke arguably attempted to blame the Federal Food and Drug Administration (FDA) for any failure to warn about buccal pitocin. Such regulations pertain to drug applications filed by Parke for pitocin. Allegedly, the Federal regulations were violated.

Instruction No. 18, as tendered, is a modified pattern jury instruction. (Illinois Pattern Jury Instructions, Civil, No. 60.01, at 251, (2d ed. 1971).) This instruction is also incomplete. It fails to include the last portion of the instruction which says that if a regulation is violated, “e * ° you may consider that fact together with all the other facts and circumstances in evidence in determining ” * negligence.

Plaintiffs’ instruction informs the jury of a Federal regulation, but does not explain how to evaluate a defendant’s compliance or violation of such regulation. Such information must be conveyed to the jury if the effect of the violation is to have any relevance at all. Moreover, part of the recited regulation addresses “° e e false, misleading, or unsupported indications for use ° * *” in marketing drugs like buccal pitocin. This segment of the regulation is irrelevant to the issue joined by the pleadings at the time the instruction was tendered. Instruction No. 18, as well as instruction No. 19 which is based on the former, were correctly refused.

Plaintiffs’ instruction No. 30, another non-IPI instruction, holds a drug manufacturer to the standard of care of an expert but does not attempt to delineate in any fashion what that expert standard of care entails. Thus, the instruction is incomplete and invites total speculation from the jury as to what that standard of expert care might be. No guidance, whatever, was offered to the jury. Had the instruction been complete, we believe it would have been error to refuse it. As the tendered instruction was incomplete, however, it would have been error to give it as tendered. As already indicated, it is the duty of trial counsel and not the court to prepare proper jury instructions.

In IPI Civil No. 1.01, we tell our jurors that they must consider the instructions as a whole, not picking out one instruction and disregarding others. This is a correct proposition of law. The issues instruction that was given in this case adequately informed the jury that the claim against Parke was based on a negligent failure to warn. The burden-of-proof instruction made it clear what the evidence had to show to support this charge. Another instruction that was given referred to the common law duty attendant upon Parke to adequately warn physicians and hospitals of the danger of buccal pitocin. The defense was basically two-pronged. First, that the warning given was adequate. And second, that lack of adequate warning was not, in any event, the proximate cause of the injury, since Dr. Means testified he used pitocin orally on previous occasions and was aware of the package insert information. He said he felt he could continue to administer the drug until the desired response (i.e., the onset of childbirth) occurred, regardless of the dosage recommendation. Thus, the injury occurred because of the doctor’s fault and not that of the drug company. That this theory of defendant Parke was successful is borne out by the jury’s verdicts, which found the doctor and hospital to be at fault and exonerated Parke. Considering the evidence at trial and the instructions as a whole, we think the trial court ruled properly in refusing plaintiffs’ instructions Nos. 13,16,18,19, and 30.

II. Evidentiary Rulings

Parke called Dr. Means to the stand as an adverse witness pursuant to section 60 of the Civil Practice Act. Plaintiffs claim this was error because between codefendants, Parke and Means, no actual adversity was present. Also, plaintiffs complain that codefendant Memorial’s leading questioning of Dr. Means’ medical experts was prejudicial since it unduly emphasized such testimony before the jury on complex, disputed topics.

We have located no authority, and plaintiffs cite none, which declares a preliminary showing of adversity must be made before a codefendant may examine a codefendant as a witness pursuant to section 60. We agree that no technical adversity, in the absence of cross-claims, existed between Memorial, Means, or Parke. Legally, it was the responsibility of each defendant to show his own freedom from negligence. These codefendants did not represent identical interests, and all, none, or one or more of them were potentially liable. In order to succeed in defense it was to each codefendant’s advantage to shift its possible liability to one of the other codefendants. This is sufficient adversity to allow one codefendant to call and cross-examine another codefendant as a witness under section 60. Additionally, any prejudice which may arguably have resulted by a defendant cross-examining a codefendant witness was, or could have been cured, by an effective examination by plaintiffs’ counsel.

It was not reversible error when Dr. Means was cross-examined by Memorial’s counsel after the witness was called in plaintiffs’ case-in-chief under section 60. Memorial’s counsel asked Dr. Means several leading questions. Plaintiffs objected. From the record, the basis for the objection goes to the form of the interrogation, not the validity of the questions. No prejudice inured to plaintiffs from this limited leading questioning.

Plaintiffs next claim errors in the court’s refusal to admit certain medical treatises as substantive evidence.

In Walski v. Tiesenga (1978), 72 Ill. 2d 249, 258-59, it was held that medical treatises are inadmissible to prove an issue of fact. Nonetheless, plaintiffs offered certain medical treatises as substantive evidence in a way that virtually invited the court to refuse their admission, to wit:

“Mr. Londrigan: Judge, I haven’t offered the treatises which express, we believe, authoritative medical opinion in this area. I will offer them, but I’m not going to mislead the court as to what the present status of the law is. I think there are some recent cases in the Supreme Court that indicate possibly that’s what a court would do on review and suggest that standards can be introduced and proven up absent expert medical testimony from a doctor.”

Moreover, the substantive evidence which was covered in the medical treatises was cumulative of plaintiffs’ expert testimony. Thus, the trial judge properly refused this offer. Additionally, these same treatises in fact came into evidence later as impeachment.

The reason for allowing admission of the treatises as affirmative proof is absent in this case. Use of such evidence might be permitted where their exclusion would subject a plaintiff to serious hardship. Such might occur by a plaintiff’s positive showing that securing medical testimony was impossible. In this case, plaintiffs produced ample medical testimony. Furthermore, refusing admission of the treatises to support plaintiffs’ experts’ opinion was not error. An expert witness may always state the basis for his opinion; however, admission of authoritative treatises are only for the purpose of impeaching that expert. The rule prohibiting introduction of medical treatises as substantive evidence is one of long-standing. (Schrag v. Chicago City Ry. Co. (1914), 265 Ill. 338, 341-42.) Because of our supreme court’s reluctance to overrule it (Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, but cf. Wilson v. Clark (1981), 84 Ill. 2d 186, 191), coupled with the availability and testimony of plaintiffs’ experts, neither will we.

Connie Cronin, a Parke computer operator, was called by defendant. She stated she conducted computer searches on all scientific literature in Parke’s possession concerning any relationship between rectal or uterine prolapse and pitocin. The results, based on the use of search terms, proved negative. No objection was raised to this testimony until it was concluded. The court was then asked to strike this testimony since defendant was using negative computer authority to show the absence of scientific evidence linking traumatic childbirth to rectal prolapse. By allowing this testimony to come into evidence without objection, however, any error was waived. Also, plaintiffs renewed their motion to admit their medical treatises as substantive evidence. Both requests were properly denied.

Now plaintiffs claim Mrs. Cronin’s testimony should not have been admitted because it was hearsay, unfounded, inaccurate, and impeached their medical experts unfairly. Each of these specific objections might have formed an adequate basis for excluding such testimony. Although raised in a post-trial motion, they were never raised at trial and were thus waived. (Town of Cicero v. Industrial Com. (1949), 404 Ill. 487, 495.) They are waived.

In Parke’s defense, one of its experts, Dr. Richards, was queried on the FDA’s opinion of the quality of research done in the United States and other countries. Plaintiffs’ general objection was sustained. Parke’s counsel persisted in such inquiry. Obviously resolute, the trial judge sustained another objection. The record shows the trial judge sustained plaintiffs’ objections to this line of inquiry when given the opportunity to do so. Only when Dr. Petrick, Parke’s expert, testified as to his knowledge of the FDA’s requirements for package inserts was plaintiffs’ objection overruled.

On appeal, plaintiffs say such testimony violated hearsay principles and the best evidence rule. Plaintiffs’ objections at trial, however, were not specific. Again, the trial judge was not apprised of the reason for the objection. Any error resulting from the admission of such testimony is waived.

The final evidentiary issue is the exclusion of the FDA’s October-November 1978 Drug Bulletin, which advised against the oral method of using pitocin. The plaintiffs, by an unsuccessful offer of proof, sought to introduce this publication. The document was not prejudicial since it was not a remedial measure taken by Parke, but was a precursor to an FDA notice, issued in December 1978, announcing a hearing for the purpose of disapproving the marketing of buccal pitocin. In such federal regulatory proceedings, naturally, Parke resisted. Eventually, in June 1981, the FDA, by published rule, nullified its intention to seek disapproval of buccal pitocin. If this cause were remanded, it is highly improbable that any of such administrative proceedings exemplifying the FDA’s indecisiveness would be relevant and admissible in evidence. Any error resulting from its inadmission was harmless.

III. The Verdict

Plaintiffs allege the verdicts are against the manifest weight of the evidence. We disagree.

A major area of concern was whether pitocin, when administered orally in large doses was dangerous. Plaintiffs’ experts, Drs. Hillabrand, McCleery, and Ripstein, all expressed the opinion that Mrs. Fornoff’s injuries were the result of overdosage. Parke’s experts, Drs. Thow, Petrick, and Reeves, all testified that such injuries were caused by a congenital, physical defect. In short, the evidence was diametrically opposed. Arguably, the jury might have gone either way on this issue. The rule is well settled that a court should not set aside a verdict merely because the evidence is conflicting. Merely because the jury could have found differently, or because other conclusions might appear more reasonable is no reason to set aside these verdicts. Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 623.

Although plaintiffs claim that Parke was aware, or should be charged with knowledge, that pitocin was dangerous, the record has evidence on both sides of this proposition. The medical evidence supporting plaintiffs’ claim was disputed by Parke’s experts. It was a jury question.

Whether oral pitocin was so unpredictable in its rate of absorption so as to require monitoring, and therefore a warning, was a question for the jury. In short, whether the warnings given were adequate or the failure to give other warnings negligent, were questions which ultimately had to be decided on the facts. In the absence of special verdicts we do not know specifically how these issues were viewed by the jury. The evidence, however, supported the jury’s resolution.

The purpose of buccal pitocin is to stimulate a female’s uterus, thereby inducing labor. Buccal pitocin, allegedly, increases the risk of personal injury when given in large doses. Parke recognized this risk. Their experts testified that women’s sensitivity to the drug were not uniform, and a case-by-case approach was necessary. Accordingly, in its package insert it advised that administration of pitocin must be adapted to the patient’s response. Resolution of the adequacy of this warning was a jury question.

Finally, we fail to find in the record any testimony that Parke encouraged the medical profession to use greater amounts of pitocin than defendant actually recommended. Defendant’s package insert indicates exactly the opposite. With respect to the administration of any medication, some judgment on the part of the medical doctor must be exercised. The issue of Parke’s negligence in not publishing a warning in a maximum dosage schedule was clearly before the jury by way of instruction. Their conclusion on the issue was supported by the weight of the evidence.

IV. Directed Verdicts

On Parke’s alleged wilful and wanton conduct, the trial court took the issue from the jury’s consideration by directing a verdict. Plaintiffs say this was error.

Prior to trial, plaintiffs causes of action for wilful and wanton misconduct were dismissed. Depending on the nature of plaintiffs’ trial proof, the trial judge declared, reinstatement of the stricken counts might be allowed to conform to the proof. At the close of evidence, plaintiffs’ attempts to reinstate such causes of action were denied.

Plaintiffs contend the record shows Parke had actual knowledge of the dangerous propensities of administering pitocin in large doses. Yet, they argue, Parke continued to market the drug suggesting high dosages and the convenience of orally inducing labor.

To constitute a wilful or wanton act the conduct must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the danger, to exercise ordinary care to prevent it or failure to discover the danger through recklessness or carelessness, when it could have been discovered by ordinary care. (Lynch v. Board of Education (1980), 82 Ill. 2d 415, 429, citing Klatt v. Commonwealth Edison Co. (1965), 33 Ill. 2d 481, 488.) The evidence showed that at least two studies questioned the use of pitocin orally. Other studies disputed such findings as did all of defendant’s experts. These conflicting views were all included in Parke’s package insert. Furthermore, the package insert contained discussion of adverse reactions the drug might have on a mother and her child. We find no testimony which shows Parke marketed pitocin with a reckless disregard for the safety of people who might use the drug. Nor do we see any testimony where Parke, directly or indirectly, told physicians that it could exceed the recommended dosage of 3000 units. As a matter of law, the trial court did not err in directing verdicts for defendants. And, as a practical matter, since the jury found no negligence liability, they could not have found any liability for wilful and wanton conduct.

V. Conduct of Trial Counsel

During the course of this hotly contested trial, defense counsel, at several junctures, made remarks inferring that certain of plaintiffs’ scientific exhibits were less credible or subpar because of their foreign origin. And, at one point, one such publication from East Germany was described as a “Communist article.”

Parke claims such inquiry was well within the bounds of a zealous cross-examination. We think such characterizations were excessive but harmless. We note that these remarks were not recurring, and when objected to, were swiftly acted upon by the trial judge. At trial, plaintiffs only objected to such remarks on one occasion. Nor were these assignments of error included within plaintiffs’ post-trial motion. Thus, any alleged error was waived.

For the reasons stated, we affirm the judgments of the Sangamon County circuit court.

Affirmed.

BARRY, P. J., and ALLOY, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES ALOIAN, Defendant-Appellant.
    Third District
    No. 81-232
    Opinion filed March 19, 1982.

      Robert L. Metzler, of Pekin, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, James Aloian, was charged on two separate occasions with the offenses of driving while license suspended and speeding. Following a bench trial in the circuit court of Tazewell County, the defendant was convicted as charged and sentenced to a term of incarceration of 120 days in the Department of Correction’s State Penal Farm.

Two issues are raised by the defendant on appeal: whether the trial judge properly denied the defendant’s motion for a continuance to obtain counsel on the day the defendant’s case was set for trial; and whether the sentence imposed upon the defendant is excessive. We affirm.

Only those facts relevant to disposition of the issues raised on appeal will be included in this opinion. The defendant was charged on October 13,1980, with speeding and driving while license suspended. He posted a $100 bond and was scheduled to appear on October 31, 1980, to plead.

The defendant failed to appear on the date scheduled for plea, and an order forfeiting his bond was entered on November 4, 1980. Notice was sent to the defendant advising him of the forfeiture order and requesting him to appear on December 4,1980. In the meantime, the defendant had retained Hamm & Hanna, Ltd., to represent him. On November 13,1980, a motion filed by the defendant to vacate the bond forfeiture order and bench warrant was granted, and the matter was set for December 5,1980, for appearance and plea.

At the December 5, 1980 appearance, the matter was set for bench trial on January 9, 1981. Prior to this date, the defendant was issued yet another traffic citation on January 7, 1981, for the similar charges of speeding and driving while license suspended. On February 6, 1981, the defendant appeared and pleaded not guilty and waived his rights to jury trial. The charges stemming from the citation issued on January 7, 1981, were continued to April 3, 1981, for bench trial. In the meantime, the bench trial scheduled for January 9, 1981, for the earlier two charges was continued to February 20, 1981. On that date, the bench trial was again continued to April 3,1981, the same day that the bench trial was set for the latter two charges. The continuance from February 20, 1981, to April 3,

1981, was granted on a motion made by the defendant. No appearance on behalf of Hamm & Hanna, Ltd., was ever filed in the cases arising from the January 7, 1981, incident.

On April 3,1981, the date set for trial on all four charges against the defendant, Hamm & Hanna, Ltd., filed a motion to withdraw as attorneys of record for the defendant. This motion was filed only in relation to the charges arising from the incident on October 13, 1980. In its motion to withdraw, the law firm alleged, inter alia, that the defendant had failed to pay them the required retainer fee due.with respect to their representation of him despite the fact that numerous requests were made by the law firm for payment. In granting counsel’s motion to withdraw, the trial judge treated the motion as one to withdraw from all matters then pending as of April 3,1981. The defendant then made an oral motion for a continuance in order to have additional time to obtain another attorney. The court denied the defendant’s motion, noting that approximately five months had elapsed since the first charges had been filed. During that time, the defendant had not paid the required retainer fee to his retained counsel. The trial court then found that the defendant had made a constructive waiver of his right to counsel and proceeded with the bench trial.

The defendant now claims that he was denied his constitutional right to be represented by counsel of his own choice by the trial judge’s denial of his motion for a continuance on April 3,1981. We disagree. Although an accused has a constitutional right to counsel which includes the right to be represented by counsel of one’s own choice (People v. Green (1969), 42 Ill. 2d 555, 248 N.E.2d 116), this constitutional right is not unlimited. It must be balanced against the equally desirable public need for the efficient and effective administration of criminal justice. People v. Elder (1979), 73 Ill. App. 3d 192, 391 N.E.2d 403.

Criminal cases must be tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial. With this goal in mind, all motions for continuance must be considered in light of the diligence shown by the movant. (Ill. Rev. Stat. 1979, ch. 38, pars. 114 — 4(h) and 114 — 4(e).) Whether to grant a motion for a continuance to obtain substitute counsel is a matter left to the discretion of the trial judge. (People v. Solomon (1962), 24 Ill. 2d 586, 182 N.E.2d 736, cert. denied (1962), 371 U.S. 853, 9 L. Ed. 2d 87, 83 S. Ct. 94.) Absent some showing of an abuse of the trial judge’s discretion in reaching a decision on a continuance motion for the substitution of counsel, his decision will not be disturbed on appeal. People v. Langdon (1979), 73 Ill. App. 3d 881, 392 N.E.2d 142.

In the case at bar, the defendant has failed to show any abuse of the trial judge’s discretion in denying his motion for a continuance to obtain substitute counsel. The record reveals that some five months passed after the original charges were filed against the defendant in October 1980. During that time, the defendant sought counsel of his own choice, but refused to pay the original retainer fee to counsel despite numerous requests by counsel that he do so. There is no indication in the record that defendant ever asserted that he could not afford to pay counsel, nor did he ever request appointment of the public defender to represent him. Furthermore, the record reveals that the defendant obviously continued to drive without a license, since he was arrested in January for the same offenses with which he had been charged in October, which included driving without a license. It would appear that the defendant was interested in delaying the bench trial as long as possible.

We conclude that the trial judge correctly and properly weighed the public need for efficient and effective administration of justice against the defendant’s fundamental right to be represented by counsel of his own choice in denying the defendant’s untimely motion for a continuance in order to obtain substitute counsel. People v. Thompson (1981), 93 Ill. App. 3d 45, 416 N.E.2d 1105.

The defendant next maintains that his 120-day term of incarceration at the State Penal Farm was unduly harsh and an abuse of the trial court’s discretion. This argument is without merit. It is obvious that the defendant continued to drive after the charges were placed against him in October 1980. In doing so, the defendant must have known that he was breaking the law by driving without a valid license. Not only did the defendant continue to drive, but he broke the law a second time within three months of the first violation. Under these circumstances, we find that the 120-day term of incarceration is not inappropriate. We will not disturb the sentence, which is the product of judicial discretion and reveals no abuse of that discretion on the part of the trial judge. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

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

Affirmed.

SCOTT, P. J., and ALLOY, J., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD REYNOLDS, Defendant-Appellant.
    Third District
    No. 81-308
    Opinion filed March 19, 1982.

      Robert Agostinelli and Peter A. Cariisona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Defendant Donald Reynolds was indicted for armed robbery. Following a jury trial in the circuit court of Peoria County, he was convicted and sentenced to 20 years imprisonment.

Shortly before 9 p.m. on March 11, 1979, closing time at the Long John Silver’s restaurant which was robbed, a man and several companions entered the establishment. Assistant manager Michael Enerson waited on the man and then returned to his closing duties. At 9:15 p.m. the man came into the office and ordered Enerson, at gunpoint, to lie on the floor. The intruder asked about the alarm system and whether anyone would be coming to the office. He then had Enerson put money in a bag and, after obtaining a key from another employee, opened the safe. The man then ordered Enerson back on the floor and pulled phone wires out of the wall in the office and kitchen. Enerson and the other employees, who had been similarly ordered to lie on the floor during the crime, were then ordered into the walk-in cooler. At trial, Enerson testified that he had never before seen defendant, who himself claimed that he had eaten at the restaurant 40 or 50 times. Two other employees positively identified defendant as the armed robber at a lineup and at trial.

In addition to the identification testimony regarding the instant offense, two other witnesses identified defendant as the perpetrator of similar crimes under the motive, intent, identity, absence of mistake, or modus operandi exception to the general rule prohibiting such testimony. (People v. Romero (1977), 66 Ill. 2d 325, 362 N.E.2d 288.) James Turner testified that at approximately 10 p.m. on May 20, 1979, defendant entered a Long John Silver’s restaurant in Melville, Missouri. Turner was in the back room counting the day’s receipts when defendant approached him with a gun and told him to lie on the floor. Defendant then had him put the money into a bag and, pursuant to an employee’s suggestion, ordered them into the cooler. After ripping out the telephone wires, he departed. John Torris testified that at approximately 11 p.m. on November 21, 1979, defendant, who had been the last customer of the day, approached him with a dark-colored gun. Torris had been about to explain that the Burger King restaurant in Pekin was closed when defendant ordered all employees to lie down in the rear of the establishment. Torris was then ordered to put money in a bag and to open the safe. Defendant ordered the employees into the cooler, ripped off the telephone wires, and departed. Appropriate limiting instructions were offered after each of these victims testified.

Defendant countered the State’s identification by claiming that, unlike the perpetrators of these armed robberies, he did not wear a beard until late April or early May of 1979. Photographs, identified as being taken in late January and early April of that year, showed him to be clean-shaven, as he was at trial. Cheryl Ann Johnson and Joseph Balli, both of whom testified that they saw defendant frequently during the relevant period, corroborated defendant’s testimony. In rebuttal, Laurie Schmidt testified that on February 2, 1979, defendant was in the Ben Franklin store in Seymour, Wisconsin, where she worked, and was wearing a full beard. On cross-examination, she stated that defendant had handed her a note saying he had a gun and wanted money, which she gave him. She also told the police she would never forget the robber’s face. In surrebuttal, defendant denied ever having been in the store.

Defendant also presented an alibi defense. He testified that at the time of the offense he was having a telephone conversation with his fiance, Rhonda Barnacal. Barnacal corroborated his testimony, stating that they talked continually from 8 p.m. to 11 p.m. on the evening in question. Additional facts will be presented in our discussion of the issues,

The first of the six issues presented for our review is whether defendant was denied the effective assistance of counsel. Before turning to this issue, we must address defendant’s contention that a Federal standard should be employed to determine the competency of counsel, and the burden should be on the State to establish the lack of prejudice to defendant. As the Supreme Court of Illinois had declined to adopt a new standard (see People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203, 211-12; People v. Murphy (1978), 72 Ill. 2d 421, 438, 381 N.E.2d 677, 686), so shall we. Therefore the inadequacy of a defendant’s trial counsel entitled him to a new trial if counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the defendant without which the result of the trial would probably have been different. (People v. Watson (1981), 98 Ill. App. 3d 296, 424 N.E.2d 329; People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084; People v. Scott (1981), 94 Ill. App. 3d 159, 418 N.E.2d 805.) This a defendant “must clearly establish.” People v. Georgev (1967), 38 Ill. 2d 165, 168, 230 N.E.2d 851, 854, cert. denied (1968), 390 U.S. 998, 20 L. Ed. 2d 97, 88 S. Ct. 1202.

Defendant contends that he was prejudiced by six acts and omissions. The first was that counsel allegedly disclosed privileged communications and disclosed trial strategies. The disclosure argument is based on the fact that during discovery, defense counsel furnished the State with memoranda of his interviews with witnesses, including defendant. Supreme Court Rule 413(d) (i) (Ill. Rev. Stat. 1979, ch. 110A, par. 413(d) (i)) requires the production of “memoranda reporting or summarizing [such] oral statements.” As for the memoranda reflecting defendant’s statements, they reflected his testimony at trial. We find neither incompetence nor prejudice in this practice, although certainly our holding would differ if a confidential admission or confession were involved. The trial strategies which were disclosed were that defendant would claim he had no beard at the time of the offense, and would present an alibi defense. Supreme Court Rule 413(d) (Ill. Rev. Stat. 1979, ch. 110A, par. 413(d)) requires the former disclosure; Supreme Court Rule 413(d) (iii) (Ill. Rev. Stat. 1979, ch. 110A, par. 413(d) (iii)), the latter. Again we find neither incompetence nor prejudice. People v. Knippenberg (1977), 66 Ill. 2d 276, 362 N.E.2d 681, cited by defendant, is inapposite. Knippenberg involved a situation where the State obtained a summary of what the defendant had told a defense investigator, which was used to impeach the defendant’s trial testimony. No such impeachment was here attempted.

The second alleged instance of incompetence was the failure to interview certain eyewitnesses; however, defendant does not allege that they were aware of any fact which would be exonerating or otherwise helpful to his defense. The same is true regarding the failure to interview one nonoccurrence witness. We fail to see how defendant was thereby prejudiced.

The third contention is that counsel failed to interview witnesses in the presence of a third party or, in the alternative, withdraw from the case. Defendant premises this contention on the basis that certain prior inconsistent statements could not be used for impeachment. While we agree it is the better practice, defendant cites no decision holding the failure to interview witnesses in the presence of a third party to be incompetence. Similarly no decision is cited holding the failure to withdraw and attempt to testify constitutes incompetence. If counsel had elected to follow one of defendant’s recommendations on appeal, it merely would have allegedly established that two witnesses were more certain of their identification at trial than during a lineup, and that Enerson thought the witnesses were lying. Counsel questioned all three about these matters. One witness admitted he was more certain of his identification at trial. The other denied ever being uncertain, and Enerson specifically denied the statement attributed to him. Defendant further does not explain the basis of the purported admissibility of a third person’s recollection of Enerson’s opinion of the veracity of other witnesses. Given these circumstances, we find neither incompetence nor prejudice.

Defendant’s fourth contention regarding his trial counsel’s competence is that testimony regarding his involvement in another crime was elicited. This occurred when counsel cross-examined Schmidt concerning the circumstances under which she observed defendant. Given the very strong identification testimony concerning defendant’s wearing a full beard at a time he claimed to be clean-shaven, counsel was forced to attack the reliability of the identification. This he did by showing Schmidt’s observation was made in an emotionally volatile situation, and that the Wisconsin robber utilized an entirely different modus operandi. Even if we might not have employed this tactic, errors in strategy and of judgment on the part of counsel do not render a representation incompetent. People v. Torres (1973), 54 Ill. 2d 384, 297 N.E.2d 142.

The fifth contention was that counsel suggested in closing argument that defendant had to prove his innocence. During the course of a long hypothetical in which counsel asked the jurors to put themselves in the position of a person falsely accused of a crime, he rhetorically asked, “How are you going to prove your innocence?” In isolation, this might well constitute prejudicial incompetence; however, counsel repeatedly told the jury, during the conclusion of his closing argument, that the State had the burden of proving defendant guilty beyond a reasonable doubt. The jury was then properly instructed by the court. We do not find, under these circumstances, that the question prejudiced defendant to any significant extent.

The final contention regarding incompetence of counsel is that there was a failure to raise in a timely fashion and properly preserve several issues. Without detailing the many arguments in support of this contention, we find it without merit. Considering defendant’s six contentions and the totality of counsel’s conduct at trial (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677), we do not find trial counsel was incompetent to the extent that defendant was so prejudiced that the outcome of the trial was affected. We therefore conclude he received the effective assistance of counsel.

The second issue presented for our review is whether defendant is entitled to a new trial because the State’s knowledge of his alleged confidences and the defense evidence and strategy undermined the integrity of the adversarial system and denied defendant his right to the assistance of counsel. For the reasons stated in our discussion of the first of the previous six contentions, we do not find that defendant is entitled to a new trial because of the discovery disclosures.

The third issue is whether defendant was denied a fair trial and due process of law when the trial court denied his motions in limine to exclude evidence of other crimes and subsequently permitted the State to introduce such evidence under the modus operandi exception to the general rule barring its use. Defendant contends that the evidence of other offenses does not meet the requirement of being substantially similar and having common features with the offense charged. People v. Romero (1975), 31 Ill. App. 3d 704, 334 N.E.2d 305, aff'd (1977), 66 Ill. 2d 325, 362 N.E.2d 288.

All three offenses were armed robberies of fast-food franchise restaurants, and two of these restaurants were Long John Silver’s. The descriptions given by the victims of the other crimes, including the presence of a beard, matched the description of defendant in this case. Each offense occurred at closing time and was perpetrated with a gun, two of which were specifically described as dark colored. In each case, the employees were told to lie on the floor, and the manager or assistant manager was told to place cash in a bag. The employees were always ordered into a cooler, and the telephone wires were always ripped off. In both Long John Silver’s robberies, the robber came directly into the office. In the other crime, the manager had initially approached the perpetrator to tell him the restaurant was closing, so no such opportunity presented itself. Under these circumstances, we find the trial court appropriately denied the motions in limine and admitted this evidence with a proper limiting instruction.

The fourth issue is whether defendant was denied the right to a fair trial where the State, in closing argument, commented on the failure of the defense witnesses to notify the police of their exculpatory evidence. This comment was made in response to defendant’s earlier mentioned hypothetical. Where comments of the State are provoked by defense counsel’s statements in closing argument, a defendant cannot claim that such statements were prejudicial. (People v. Miller (1981), 94 Ill. App. 3d 725, 419 N.E.2d 78; People v. Braxton (1980), 81 Ill. App. 3d 808, 401 N.E.2d 1062, appeal denied (1980), 81 Ill. 2d 584; People v. Matthews (1979), 69 Ill. App. 3d 65, 387 N.E.2d 10.) Furthermore, a prosecutor may argue the inconsistency between the testimony and the conduct of an alibi witness who had the opportunity to make a statement to a police agency on behalf of a defendant, but did not. (People v. Kester (1979), 78 Ill. App. 3d 902, 397 N.E.2d 888, appeal denied (1980), 79 Ill. 2d 633.) We therefore find no denial of a fair trial by the State’s comment.

The fifth issue presented for our review is whether defendant’s sentence should be vacated and this cause remanded because the trial court, in imposing sentence, considered three prior convictions which were reversed and remanded. An accused is entitled to a reconsideration of his sentence where the court, in imposing the sentence, considered a prior conviction which was later reversed. (People v. Henderson (1981), 95 Ill. App. 3d 291, 419 N.E.2d 1262; People v. Beyah (1979), 72 Ill. App. 3d 690, 391 N.E.2d 96; People v. Buckley (1977), 44 Ill. App. 3d 1038, 358 N.E.2d 1327.) We therefore vacate the sentence and remand this cause to the trial court for a new sentencing hearing, with the court ordered to impose the new sentence, if any, retroactive to the prior imposition of sentence. Cf. People ex rel. Willis v. Brantley (1972), 6 Ill. App. 3d 645, 285 N.E.2d 571 (State dismissed cause for lack of evidence).

The final issue presented for our review is whether the trial court abused its discretion in considering, as a statutory factor in aggravation, that defendant’s conduct threatened serious harm. Defendant contends this was improper as the factor is implicit in the offense of armed robbery. This contention has previously been rejected in People v. Robinson (1980), 89 Ill. App. 3d 211, 411 N.E.2d 589, which we cite with approval.

Accordingly, the judgment of the circuit court of Peoria County is affirmed as to defendant’s conviction, vacated as to his sentence, and remanded for resentencing consistent with our views herein.

Affirmed in part, vacated and remanded in part.

SCOTT, P. J., and BARRY, J., concur.


author: JUSTICE SCOTT

text:
    JOHN McGILL, Plaintiff-Appellee, v. JOHNNY BIGGS, Defendant-Appellant.
    Third District
    No. 81-394
    Opinion filed March 19, 1982.
    Timothy C. Evans, of Chicago, for appellant.
    Mark R. Steffen, of Kankakee, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Plaintiff’s mother, Ivory Anderson, died on October 7,1977, leaving him as the surviving joint tenant of certain real estate located in Kankakee County, commonly known as Route 3, Box 446, Momence, Illinois. Plaintiff desired to provide her with a funeral at the Wesley Funeral Home with which his half-uncle, the defendant, was familiar, and plaintiff requested defendant’s assistance in raising the funds necessary which approximated $1,500.

Plaintiff asked defendant to accompany him while he attempted to borrow the money at banks in Momence, Kankakee and Chicago. Defendant accompanied plaintiff in his efforts to borrow the necessary funds for his mother’s funeral but they were unsuccessful.

Plaintiff and defendant then entered into an agreement whereby in return for defendant’s paying the funeral bill for plaintiff’s mother (who was also the defendant’s half-sister) plaintiff would deed the premises to defendant.

Plaintiff was vague as to the nature of the transaction, but testified that defendant told him he would need a quitclaim deed as “collateral.” Plaintiff did not know what a quitclaim deed was but he understood the meaning of “collateral.” Plaintiff testified that he didn’t intend to permanently transfer the title to the property to the defendant. Plaintiff testified that he valued the property at approximately $15,000, while defendant testified he didn’t know the value of the property. Defendant admitted that he knew plaintiff was upset and distressed when the transaction took place.

Plaintiff and defendant went to defendant’s attorney’s office where plaintiff signed a paper he thought was a contract to pay defendant $115 a month for 15 months ($1,725). A warranty deed was prepared by defendant’s attorney and signed by plaintiff when he went to the lawyer’s office on October 9, 1977, two days after his mother’s death. The next day, defendant paid the funeral bill in the sum of $1,473.75.

Plaintiff made one payment to defendant before losing his job and generally falling on hard times by drinking heavily. No further payments were made to defendant. Plaintiff and his family made temporary use of the premises on several occasions after delivery of the deed to defendant at his lawyer’s office. Defendant conceded he did not go to the house after his half-sister died. Plaintiff continued to keep the property in good repair and to pay the 1978 and 1979 taxes on the property and defendant made no attempt to pay any taxes on the property until October of 1980, when his check was returned, indicating that the taxes had already been paid. In January of 1980, plaintiff had offered to pay defendant the balance of the debt but defendant refused payment. In June of 1980, defendant recorded the deed.

Defendant never used the property or interfered with plaintiff’s use until June 1980, when plaintiff discovered that defendant was attempting to list the property for rent with a real estate broker. Plaintiff contacted an attorney, discovered the warranty deed and filed the instant suit to quiet title, the issue being whether the deed was absolute with a contract back to repurchase, or whether it was intended as a mortgage to secure repayment of the funeral bill.

From the trial court’s ruling in plaintiff’s favor (plaintiff was ordered to pay the balance due on the loan of $1,610 plus 5% per annum on $1,473.75 from January 10,1980) that a debt relationship existed between the parties and that the warranty deed was in fact a mortgage, defendant has appealed.

We note initially that it is provided by statute that:

“Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage.” Ill. Rev. Stat. 1977, ch. 95, par. 55.

In order to convert a deed absolute on its face into a mortgage, the proof must be clear, satisfactory, and convincing (Burroughs v. Burroughs (1973), 11 Ill. App. 3d 176, 296 N.E.2d 350), and can come from almost every conceivable fact that could legitimately aid that determination. Each case will depend upon its own special circumstances. Warner v. Gosnell (1956), 8 Ill. 2d 24, 132 N.E.2d 526.

Many circumstances have been recognized or considered by Illinois courts, including the existence of an indebtedness, the close relationship of the parties, prior unsuccessful attempts for loans, the circumstances surrounding the transaction, the disparity of the situations of the parties, the lack of legal assistance, the unusual type of sale, the inadequacy of consideration, the way the consideration was paid, the retention of the written evidence of the debt, the belief that the debt remains unpaid, an agreement to repurchase, and the continued exercise of ownership privileges and responsibilities by the seller. Burroughs v. Burroughs (1971), 1 Ill. App. 3d 697, 274 N.E.2d 376; Burroughs v. Burroughs (1973), 11 Ill. App. 3d 176, 296 N.E.2d 350; Robison v. Moorefield (1952), 347 Ill. App. 508, 107 N.E.2d 278; Havana National Bank v. Wiemer (1975), 32 Ill. App. 3d 578, 335 N.E.2d 506; Warner v. Gosnell (1956), 8 Ill. 2d 24, 132 N.E.2d 526; Illinois Trust Co. v. Bibo (1927), 328 Ill. 252, 159 N.E. 254; Miller v. Thomas (1853), 14 Ill. 428; Wilkinson v. Johnson (1963), 29 Ill. 2d 392, 194 N.E.2d 328.

The defendant contends the trial judge erred in finding a debt relationship when neither party directly testified that plaintiff owed a debt to defendant, or that defendant would reconvey to plaintiff upon payment of such debt. However, direct evidence is not required. In fact, no particular kind of evidence is required. (Burroughs v. Burroughs (1971), 1 Ill. App. 3d 697, 274 N.E.2d 376.) However, a debt relationship is essential to a mortgage.

In the case at bar, there are a number of circumstances which prove the existence of a debt relationship. Plaintiff signed the warranty deed after defendant told him that the only way to get money for the funeral would be to sign a quitclaim deed for collateral. Although plaintiff thought he was signing a contract to pay off the funeral bill, defendant testified that they discussed collateral to get money for the funeral expenses, and came to the agreement that plaintiff would sell his property to the defendant for the amount of the funeral bill and then pay defendant $115 per month for 15 months to get it back. The plaintiff, however, did not intend to sell his property.

The bulk of evidence in this case is the testimony of the plaintiff and defendant. The trial judge believed they were both honest. Their testimony differs, but not substantially. They both had difficulty making responsive answers, but the answers they gave often shed light on the nature of the transaction.

A debt relationship was indicated by defendant’s attempt at collection. Defendant confronted and questioned plaintiff about plaintiff’s failure to make the monthly payments as he had promised. This is a reasonable action for defendant, who was concerned about plaintiff falling behind in his debt payments. It is not reasonable to expect a person obligated to reconvey to be encouraging the other party to exert their “rights.”

Further support of a debt relationship comes from defendant’s own characterization of the agreement to reconvey. Defendant consistently referred to the payments plaintiff could make as “my money.” He spoke in terms of expectation of payment, as if the money to be paid by plaintiff was his already which was owed to him for payment of the funeral bill. This is supported further by defendant’s testimony that upon payment by plaintiff, defendant would “redeem” his property back to him.

Another circumstance to consider is the value of the consideration as compared to the payback amount. The consideration was approximately $1,500 and the total payback amount after 16 months would be $1,725. These figures would be in line with a typical installment loan agreement.

In determining the issue presented in this appeal, we direct our attention to what we deem to be pertinent factors. The inadequacy of consideration has been regarded as a potent or strong circumstance tending to show that a deed was intended to operate as a mortgage and not a sale; and where consideration is grossly inadequate, a mortgage is strongly indicated. Burroughs v. Burroughs (1971), 1 Ill. App. 3d 697, 705.

Here, the consideration was less than 10% of the value of the property.

Several factors regarding the transaction in this case are similar to the circumstances in Burroughs. The property was not advertised or offered for sale. The consideration was not paid to the plaintiff, but was paid to the Wesley Funeral Home for the funeral bill of plaintiff’s mother. In addition, defendant did not even consider the value of the property when he purchased it, or the amount of consideration.

Plaintiff tried to borrow money for his mother’s funeral in three different cities, with no mention of collateral. Defendant offered to go to his friends for help, and plaintiff ended up with defendant in the office of his attorney signing a warranty deed instead of a loan agreement. This situation is similar, but even more significant than the one noted in Burroughs, and should be weighed accordingly.

In Totten v. Totten (1920), 294 Ill. 70, 80, 128 N.E. 295, 299, the court stated: “The fact that the grantor in a deed absolute in form has remained in possession of the property so conveyed and controlled the property after the conveyance is evidence tending to show that the transaction, in fact, was a mortgage, as is also the payment of taxes by the grantor after the conveyance.” The reason for this rule is obvious, since the grantee in an unqualified deed is entitled to immediate possession and becomes liable for payment of taxes. In the instant case the uncontradicted testimony was that plaintiff and his family made use of the premises on several occasions after the delivery of the deed, and that he kept a lock on the door. Defendant conceded he had not been in the house since his half-sister died. Plaintiff paid the 1978 and 1979 taxes and defendant made no attempt to pay taxes until October 1980, when his check for the 1979 taxes was returned because they were already paid. It is clear he attempted to exercise none of the prerogatives of an owner until over two years after the time he claims to have become the owner and at a time when plaintiff was in default on all of the payments on the alleged contract except the first. It is of further significance that defendant failed to take another step usually associated with ownership. He did not record his deed at the time of delivery or until well beyond the time that the 15 months had expired. This delay, while not of great significance standing alone, is a further circumstance, when considered with others, indicating a lack of intention by defendant to claim immediate ownership.

An agreement to reconvey has long been considered a significant factor in distinguishing mortgages from absolute sales. Agreements made in writing at the same time as the conveyance resolve any doubt as to the character of the conveyance in favor of a mortgage. (Illinois Trust Co. v. Bibo (1927), 328 Ill. 252, 159 N.E. 254.) However, the agreement need not be in writing. Miller v. Thomas (1853), 14 Ill. 428.

In the case at bar, the agreement to reconvey was admitted by the defendant to be a part of the deed transaction. If there is doubt as to the intent of the conveyance, it should be resolved in favor of a mortgage.

Any one of these preceding factors should be enough to find the trial court did not commit manifest error. The mass of relevant circumstances clearly and convincingly prove that the intention of the parties was to create a debt arrangement with a security. Based upon these circumstances, the trial judge was correct in finding a debt relationship existed, and that plaintiff’s warranty deed to defendant was a mortgage.

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

Affirmed.

BARRY, P. J., and ALLOY, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHESTER L. SPEARMAN, Defendant-Appellant.
    Third District
    No. 81-423
    Opinion filed March 19, 1982.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

Defendant, convicted of armed robbery and home invasion, was sentenced to 16 years’ imprisonment. His appeal presents a single issue. Defendant claims error in sentencing in that the trial judge considered as a statutory factor in aggravation that defendant’s conduct threatened or caused harm. Defendant urges that since threat of harm or harm itself is implicit in the crimes of home invasion and armed robbery, it was error to consider these elements in aggravation. We disagree. The degree of harm caused or threatened were properly before the trial court and warranted consideration as a sentencing factor.

Affirmed.

SCOTT, P. J., and STOUDER, J., concur.