author: JUSTICE WELCH JUSTICE KASSERMAN,

text:
    PATRICK H. BERRY, Plaintiff-Appellee and Cross-Appellant, v. AMERICAN COMMERCIAL BARGE LINES et al., Defendants-Appellants and Cross-Appellees.
    Fifth District
    No. 82—4
    Opinion filed May 27, 1983.

      KASSERMAN, J., dissenting.
    Dunham, Boman & Leskera, of East St. Louis (Howard Boman and Eric C. Young, of counsel), for appellants.
    William E. Brandt, of William E. Brandt & Associates, of Granite City, and George J. Moran, Sr., of Callahan & Moran, of Trenton, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff Patrick Berry was employed as a first class shipfitter at facilities operated by subsidiaries of American Commercial Barge Lines (ACBL) on the Mississippi River at Alton, Illinois. On November 29, 1973, he was working on an inclined metal surface known as a slope sheet on barge vessel S — 127 which had been brought to ACBL’s floating drydock for repairs. While assisting a welder in replacing a metal patch on that surface, the plaintiff was temporarily blinded by the flash from the arc of the welder’s rod when the welder accidently struck an arc in front of the plaintiff. He then lost his balance and attempted to descend the slope sheet so that he would not fall, but his foot became caught on a piece of metal called a scab, which is welded temporarily onto metal surfaces to give repair workers more secure footing. The plaintiff fell, injuring his left knee.

On December 10, 1973, the plaintiff again sustained injuries to that knee. He was assigned to do repair work in the port side shaft alley of the motor vessel R.W. Naye, which had also been brought to the floating drydock. As he was heating shaft couplings with a rosebud torch, he slipped on grease which had accumulated on the floor of the shaft alley compartment.

The plaintiff brought suit in the circuit court of Madison County against ACBL and two of its subsidiaries, Jeff Boat, Inc., and Louisiana Dock Boat Co., Inc. (La. Dock), to recover for his injuries. This action was based, inter alia, on general principles of negligence and maritime law and on the Jones Act (46 U.S.C. sec. 688 et seq.). The case was submitted to the jury against ACBL and La. Dock under the Jones Act counts, and the jury awarded the plaintiff $250,000 in damages against both defendants. Judgment was entered upon that verdict. Defendants ACBL and La. Dock appeal from that judgment against them, and the plaintiff has brought a cross-appeal in which he requests that, if it is determined that he is not covered by the Jones Act as a matter of law, then the court’s order dismissing his maritime and negligence counts should be reversed.

The defendants present three assignments of error: (1) The trial court should have directed verdicts in their favor because the evidence introduced at trial fails to show that the plaintiff was a “seaman.” (2) The court erred in giving certain instructions proferred by the plaintiff, and (3) the court should have granted defendants’ motion for a mistrial, based upon the conduct of plaintiff’s counsel in examining a witness called by him under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60), now section 2 — 1102 of the Code of Civil Procedure.

The first argument made by the defendants presents another variation on the Jones Act “riddle,” as characterized by the Fifth Circuit (Ardoin v. J. Ray McDermott & Co. (5th Cir. 1981), 641 F.2d 277, appeal after remand (5th Cir. 1982), 684 F.2d 335; Offshore Co. v. Robison (5th Cir. 1959), 266 F.2d 769), namely, “When is a maritime worker a seaman?” More accurately, this case asks, “When is a jury question presented concerning whether a shipfitter injured while working on vessels on a floating drydock is a seaman?” The solution to this “riddle” requires more “clues,” in the form of the facts of this case.

The facilities at which the plaintiff was employed were located on the Mississippi River at the foot of Plum Street in Alton, Illinois. They consisted of office, machine and mechanical barges, as well as two floating drydocks. The barges were permanently secured to pylons by cables, and one would obtain access to the barges through a walkway from shore. The record indicates that none of the facilities at Alton were located ashore.

Although both floating drydocks could be moved from place to place, neither had any motive power, and they would have to be transported by a motor vessel. The drydocks were attached to large steel arms by cables. A vessel needing repair would move close to a dry-dock, or, if it were not self-propelled, it would be brought to the dry-dock, generally by the ACBL motor vessel Little Giant. The drydock would then be partially submerged, allowing the vessel to enter, and raised again, the vessel along with it.

The plaintiff was first hired by ACBL as a laborer and deckhand on the Little Giant. In that capacity, he was required to use lines and wires to attach the Little Giant to other vessels. Eventually, the plaintiff was promoted to second class fitter, and then again to first class fitter. As a fitter, he worked with torches and sledge hammers to fit steel into place on vessels in need of repair. However, he also continued to handle lines and wires, even when he worked on the drydock, because the vessels brought to the drydock had to be secured. The plaintiff recalled that he usually operated lines and wires about twice a day. Gary Bidwell, who was with the plaintiff on the R.W. Naye on December 10, 1973, and who had been employed by ACBL, always as a first class welder, testified that when he was assigned to work on a drydock, he would work with lines as the drydock was raised or lowered.

The plaintiff did not sleep on board any vessel or other facility. He lived ashore, reported for work as scheduled and received assignments to repair whatever motor vessels or barge vessels were in need of repair. These assignments could require him to work on a vessel in the drydock or on a vessel afloat in the Mississippi. He could perform repairs on a vessel belonging to ACBL or one of its subsidiaries, or on a vessel belonging to a concern unconnected with ACBL. The La. Dock and Jeff Boat Companies “provide the bulk of service” for ACBL and its barge companies, according to ACBL’s vice-president and general counsel, but their facilities are operated independently and thus do repair and fabrication work on non-ACBL vessels. The R.W. Naye and the barge vessel S — 127, on both of which the plaintiff was injured, were owned and operated by ACBL or subsidiaries. At the time of his injuries, the plaintiff was employed by La. Dock, being the ACBL subsidiary concerned with ship repair, and his paychecks reflected that ACBL acted as the paying agent for La. Dock.

Recovery under the 1920 amendment to the Merchant Marine Act, commonly known as the Jones Act, is limited to “any seaman” suffering personal injury in the course of his employment or to the personal representative of any seaman who dies as a result of such injury. (46 U.S.C. sec. 688.) The provisions of the Act itself do not define the term “seaman,” although there are many decisions which purport to do so. Because the question of whether an individual is a seaman for purposes of the Jones Act depends upon the facts of the particular case and the activity in which he was engaged at the time of the injury (Desper v. Starved Rock Ferry Co. (1952), 342 U.S. 187, 96 L. Ed. 205, 72 S. Ct. 216), it is only when the underlying facts are undisputed and the record reveals no evidence from which reasonable persons might draw conflicting inferences, that this question should be decided as a matter of law. Ardoin v. J. Ray McDermott & Co.; Burns v. Anchor-Wate Co. (5th Cir. 1972), 469 F.2d 730.

In deciding whether a plaintiff’s status as a seaman presented a jury question, the authorities under the Jones Act have been virtually unanimous in applying the following three-part test to various sets of facts: (1) that the plaintiff was injured upon a vessel in navigation, (2) that the plaintiff was aboard that vessel primarily to aid in navigation, and (3) that the plaintiff had a more or less permanent connection with that vessel or with a specific group or fleet of vessels. (Abshire v. Seacoast Products, Inc. (5th Cir. 1982), 668 F.2d 832; Baker v. Pacific Far East Lines, Inc. (N.D. Cal. 1978), 451 F. Supp. 84; Griffith v. Wheeling Pittsburgh Steel Corp. (3d Cir. 1975), 521 F.2d 31, cert. denied (1976), 423 U.S. 1054, 46 L. Ed. 2d 643, 96 S. Ct. 785; Offshore Co. v. Robison.) This test rests upon several unexplained definitions such as the terms “navigation” and “aid to navigation.” But, in this case, it is the term “vessel” which the defendants claim presents a threshold issue, resolution of which in their favor as a matter of law would obviate applying the three-part test.

The plaintiff contends that the defendants presented their case in the trial court under the theory that the R.W. Naye, the barge S — 127 and the floating drydock could be considered “vessels” by the jury and thus they should be prevented from denying their status as vessels to this court. However, in moving for a directed verdict, the defendants raised the issue of whether the plaintiff was not a seaman as a matter of law, and the defendants are correct that the status of the drydock as a vessel is an integral part of that question. Moreover, the defendants’ written post-trial motion specifically argued that there was no evidence to prove the existence of any vessel in navigation. Thus, the theory that the floating drydock is not a vessel as a matter of law is not a contention which was never presented to the trial court.

Essentially, the defendants insist that the floating drydock upon which the plaintiff worked was not a vessel as a matter of law, and therefore, the plaintiff could not be a seaman. The defendants accurately note that the Federal courts have developed the rule that a floating drydock is not a vessel as a matter of law when it is moored and in use as a drydock. (Nevel v. Todd Shipyards Corp. (N.D. Cal.), 1978 Am. Maritime Cases 2230; Keller v. Dravo Corp. (5th Cir. 1971), 441 F.2d 1239, cert. denied (1972), 404 U.S. 1017, 30 L. Ed. 2d 665, 92 S. Ct. 679; Chahoc v. Hunt Shipyard (5th Cir. 1970), 431 F.2d 576, cert. denied (1971), 401 U.S. 982, 28 L. Ed. 2d 333, 91 S. Ct. 1198; Atkins v. Greenville Shipbuilding Corp. (5th Cir. 1969), 411 F.2d 279, cert. denied (1969), 396 U.S. 846, 24 L. Ed. 2d 96, 90 S. Ct. 105; compare United States v. Moran Towing & Transportation Co. (4th Cir. 1967), 374 F.2d 656, vacated on other grounds sub nom. United States v. Bethlehem Steel Co. (1968), 389 U.S. 575, 19 L. Ed. 2d 775, 88 S. Ct. 689 (floating drydock under tow in navigable waters held to be a vessel); Bernardo v. Bethlehem Steel Co. (2d Cir. 1963), 314 F.2d 604 (judgment entered on jury verdict in favor of defendant and affirmed on appeal, thus status of floating drydock as not a vessel as a matter of law, not presented); contra, Rogosich v. Union Dry Dock & Repair Co. (3d Cir. 1933), 67 F.2d 377.) But this proposition is fatal to the plaintiffs claim only if the plaintiff does not contend to have been attached to any other vessel or fleet of vessels. For example, in Nevel, Chahoc and Atkins, it does not appear that the drydock workers maintained that they were members of the crew of the vessels they were repairing or of a fleet containing those vessels. In Keller, the court held that the disabled vessel upon which the plaintiff worked had been removed from navigation, and thus could not support a claim of unseaworthiness. Similarly, in Cook v. Belden Concrete Products, Inc. (5th Cir. 1973), 472 F.2d 999, cert. denied (1973), 414 U.S. 868, 38 L. Ed. 2d 116, 94 S. Ct. 175, the stationary construction platform on which the plaintiff was injured was held to be indistinguishable from a floating drydock, and there was no other vessel to which the plaintiff could be attached as a seaman, because the plaintiff was working on an uncompleted barge when he was injured. (See also Buna v. Pacific Far East Line, Inc. (N.D. Cal. 1977), 441 F. Supp. 1360 (paint float upon which plaintiff worked not a vessel, plaintiff had no more or less permanent connection with vessel being painted).) Other cases in which the plaintiff worked on a permanently attached floating platform, but did not work on a vessel temporarily on that platform, are of no assistance to the defendants. Watkins v. Pentzien, Inc. (5th Cir. 1981), 660 F.2d 604, cert. denied (1982), 456 U.S. 944, 72 L. Ed. 2d 467, 102 S. Ct. 2010; Leonard v. Exxon Corp. (5th Cir. 1978), 581 F.2d 522, cert. denied (1979), 441 U.S. 923, 60 L. Ed. 2d 397, 99 S. Ct. 2032; Blanchard v. Engine & Gas Compressor Services, Inc. (5th Cir. 1978), 575 F.2d 1140; Powers v. Bethlehem Steel Corp. (1st Cir. 1973), 477 F.2d 643, cert. denied (1973), 414 U.S. 856, 38 L. Ed. 2d 106, 94 S. Ct. 160.

More analogous to the facts at bar is Mietla v. Warner Co. (E.D. Pa. 1975), 387 F. Supp. 937. In that case, the plaintiff was employed as a barge attendant, whose- duties included keeping loaded barges free of water, checking the towing gear and looking for safety violations. He was assigned to maintain the barges which tied up to Pier 55 or to a permanent floating dock known as barge No. 4, both of which facilities the plaintiff conceded were not vessels. Nonetheless, the district court held that the plaintiff’s status as a seaman was for the jury to decide, because the plaintiff could be considered to be a member of the crew of the barges which he tended. Mietla stands for the principle that a plaintiff who frequently works on a structure which is not a vessel is not precluded from being a seaman, if, in his employment he is assigned to vessels in navigation. In the present case, this means that, if the plaintiff met the three requirements of being a crew member of the R.W. Naye or the S — 127 or a fleet which contained them, the fact that he repaired them while on a moored floating drydock does not deny him recovery under the Jones Act. These three requirements must now be examined in greater detail.

(1) Were the R.W. Naye and the barge S — 127 “vessels in navigation?” It is not contested that the motor vessel and the barge are, in fact, vessels. Nor does their presence in the drydock for repairs mean that they were not in navigation at the time of the plaintiff’s injuries. (Bodden v. Coordinated Caribbean Transport, Inc. (5th Cir. 1966), 369 F.2d 273; Keymon v. Tennessee Towing Co. (6th Cir. 1961), 296 F.2d 785.) The defendants do not represent the Naye and the S — 127 as having been removed from service for a season or other substantial period of time (compare Garcia v. Universal Seafoods, Ltd. (W.D. Wash. 1978), 459 F. Supp. 463; Desper v. Starved Rock Ferry Co.; Hawn v. American S. S. Co. (2d Cir. 1939), 107 F.2d 999, with Sweeney v. American Steamship Co. (6th Cir. 1974), 491 F.2d 1085) or as undergoing repairs of such a major character as to amount to a withdrawal from navigation (Wixom v. Boland Marine & Manufacturing Co. (5th Cir. 1980), 614 F.2d 956; see also Delome v. Union Barge Line Co. (5th Cir. 1971), 444 F.2d 225, cert. denied (1971), 404 U.S. 995, 30 L. Ed. 2d 547, 92 S. Ct. 534). Therefore, the jury could properly determine that these vessels were in navigation when the plaintiff was injured.

(2) Was the plaintiff acting “primarily in aid of navigation” of those vessels at the time of his injuries ? In keeping "with the remedial purposes of the Jones Act, the phrase “primarily in aid of navigation” has been construed far beyond its natural meaning to include such personnel as hairdressers (Mahramas v. American Export Isbrandtsen Lines, Inc. (2d Cir. 1973), 475 F.2d 165) and waitresses (Buford v. Cleveland & Buffalo Steamship Co. (7th Cir. 1951), 192 F.2d 196), “as well as other persons not subject to being tattooed like ordinary seamen.” (Perez v. Marine Transport Lines, Inc. (E.D. La. 1958), 160 F. Supp. 853, 855.) All that is necessary is that the duties of the plaintiff must have contributed to the vessel’s function or to the accomplishment of its mission. Baker v. Pacific Far East Lines, Inc.; Wilkes v. Mississippi River Sand & Gravel Co. (6th Cir. 1953), 202 F.2d 383, cert. denied (1953), 346 U.S. 817, 98 L. Ed. 344, 74 S. Ct. 29.

The defendants are correct that, in determining whether the plaintiff acted primarily in aid of navigation as a fitter, his assigned tasks as a deckhand on the Little Giant are not relevant. (White v. Louisiana Menhaden Co. (E.D. La. 1980), 498 F. Supp. 126.) It is also well accepted that, although the throwing and securing of lines is normally a seaman’s chore, a plaintiff who occasionally engages in that task is not necessarily a seaman. (South Chicago Coal & Dock Co. v. Bassett (1940), 309 U.S. 251, 84 L. Ed. 732, 60 S. Ct. 544; Salgado v. M.J. Rudolph Corp. (2d Cir. 1975), 514 F.2d 750; Griffith v. Wheeling Pittsburgh Steel Corp.) The significant question in the second portion of the “seaman” test is therefore whether the plaintiff, when performing the duties of a fitter, contributed to the function of the vessels which were in drydock or to the accomplishment of their mission.

Other decisions have held that plaintiffs employed in various repair capacities were primarily aiding in navigation. (Porche v. Gulf Mississippi Marine Corp. (E.D. La. 1975), 390 F. Supp. 624 (plaintiff welded pipe to be laid from barge); Braniff v. Jackson Ave.-Gretna Ferry, Inc. (5th Cir. 1960), 280 F.2d 523 (plaintiff employed as master mechanic on ferries); Lukos v. Chesapeake & Ohio Ry. Co. (W.D. Mich. 1954), 120 F. Supp. 296 (plaintiff assigned general cleaning and painting duties); Rogosich v. Union Dry Dock & Repair Co. (plaintiff was carpenter on floating drydock); contra, Specht v. Pittsburgh Coal Co. (W.D. Pa. 1975), 432 F. Supp. 717; Chapman v. M/G Transport Services, Inc. (W.D. Pa. 1977), 432 F. Supp. 723.) The results reached in these cases comport with the broad reading which the courts have given to the phrase “in aid of navigation.” In a strictly logical sense, the work performed by a shipfitter or similar repair worker is preparatory to, and is the first step towards rendering a vessel ready again for navigation or preventing it from being removed from navigation. It would be incongruous to hold that such a worker, who has a direct connection with making or keeping a vessel navigational, is not “primarily in aid of navigation” as a matter of law, while allowing the jury to determine that other seaside workers, whose connection with navigation is indirect at best, are seamen. The proper rule, derived from the authorities listed above, is that whether a plaintiff acted “primarily in aid of navigation” at the time of his injury is a jury question if the plaintiff was a repair or maintenance worker who was directly connected with keeping a vessel in navigation or preparing it to retain navigational capacity. As the plaintiff in this case met this criterion, resolution of the second part of the “seamen” test was properly left to the jury.

(3) Did the plaintiff have a “more or less permanent connection” with the R. W. Naye and the barge S — 127 or with a specific group or fleet of vessels which contained them? This issue is the heart of the defendants’ challenge to the court’s failure to direct a verdict in their favor. The plaintiff does not argue that he had any sort of permanent attachment to either the Naye or the S — 127, individually, nor does this record present facts to support such a claim. Consequently, the issue posed by this branch of the “seaman” test is if a jury question is presented concerning whether the plaintiff was “more or less permanently connected” with a fleet containing the Naye and the S — 127. The defendants contend that no such connection was established, as a matter of law, and point to several decisions which they claim are analogous to the facts at bar.

In Baker v. Pacific Far East Lines, Inc., the plaintiff served as a replacement member of a shoregang, which was assigned to cleaning, maintenance, painting and other duties on the defendant’s vessels. Although approximately 90% of the plaintiff’s employment time was spent upon barges and other vessels, he “rarely spent more than several consecutive hours aboard any given vessel” (451 F. Supp. 84, 88), and could not identify which ships he cleaned or maintained on any given day, or even the ships upon which he was injured. The district court held that the plaintiff’s connection with any group of vessels was insufficiently permanent to justify a finding that he was a seaman, at least in part because the defendant’s fleet consisted of between 500 and 1,000 barges. See also Buna v. Pacific Far East Line, Inc., in which the plaintiff, also employed by the same defendant as a shoregang worker, attested that his shoreside tasks included, inter alia, moving furniture in the defendant’s office building, painting stripes in the defendant’s parking lots and performing maintenance in the defendant’s storerooms and office.

The plaintiffs or plaintiffs’ decedents in Bertrand v. International Mooring & Marine, Inc. (W.D. La. 1981), 517 F. Supp. 342, worked as members of an anchor-handling and mooring crew, thereby performing classical mariner’s work. They were injured in an auto accident in the course of their employment. As members of the anchor-handling and mooring crew, they spent between 90 and 100% of their work hours aboard vessels, readying them for their employer to use them to work on offshore drilling vessels. These men lived aboard the vessels for the duration of their assignments, but those assignments would range from several hours to about seven days, the average assignment lasting between four and five days. The court found that none of these workers had any sort of permanent connection with a specific group of vessels, and directed verdicts in their employer’s favor. Yet, it was also noted in the opinion that the employer did not own any vessels, and even if an independent division of the defendant-employer did own five vessels, the evidence revealed that one of the men had worked on one of these vessels twice, while another had worked on one of them only once.

Baker and Bertrand are examples of two categories of decisions which are of little relevance to the facts at bar. The first of these consists of those cases in which the plaintiff was truly a “casual worker upon the water” (South Chicago Coal & Dock Co. v. Bassett (1940), 309 U.S. 251, 260, 84 L. Ed. 732, 738, 60 S. Ct. 544, 549), by virtue of the amount of time the plaintiff spent on land in the course of his employment, or the nature of his duties while ashore. (Baker; Buna; White v. Louisiana Menhaden Co. (plaintiff, normally employed on fishing vessel, was assigned to perform maintenance work at defendant’s harbor facilities during four-month off season); Fazio v. Lykes Brothers Steamship Co. (5th Cir. 1978), 567 F.2d 301 (plaintiff, as member of shoregang, could work on no vessel at all on any particular day); Rotolo v. Halliburton Co. (5th Cir. 1963), 317 F.2d 9, cert. denied (1963), 375 U.S. 852, 11 L. Ed. 2d 79, 84 S. Ct. 111 (plaintiff and similar employees spent 80-90% of work time as welders at base shop on land); Thibodeaux v. J. Ray McDermott & Co. (5th Cir. 1960), 276 F.2d 42 (plaintiff, as welder in defendant’s fabricating division, customarily worked on vessels under construction, conversion or outfitting).) The second category of cases includes those in which the plaintiff had only a temporary connection with the vessel upon which he was injured, and in addition, could not identify a specific group of vessels to which he could claim permanent attachment. (Bertrand; Guidry v. Continental Oil Co. (5th Cir. 1981), 640 F.2d 523, cert. denied (1981), 454 U.S. 818, 70 L. Ed. 2d 87, 102 S. Ct. 96; Richardson v. Norfolk Shipbuilding & Drydock Corp. (E.D. Va. 1979), 479 F. Supp. 259, aff’d (4th Cir. 1980), 621 F.2d 633; Lotzman v. Oxyness Shipping Co. (1978), 93 Misc. 2d 461, 402 N.Y.S.2d 964; Ross v. Mobil Oil Corp. (5th Cir. 1973), 474 F.2d 989, cert. denied (1973), 414 U.S. 1012, 38 L. Ed. 2d 250, 94 S. Ct. 378; Thomas v. Peterson Marine Service, Inc. (5th Cir. 1969), 411 F.2d 592, cert. denied (1970), 396 U.S. 1006, 24 L. Ed. 2d 499, 90 S. Ct. 562.) Some cases are, of course, distinguishable from this one because they contain elements of both of these categories.

The defendants do not specifically contest the distinctions between the second group of decisions and the present case. However, they question whether the plaintiff can be considered as not “land-based.” Instead of defining a shore-based worker as one who spends a significant portion of his work time on land or who undertakes tasks traditionally performed on land while ashore, the defendants urge that a shore-based worker is one “who is not exposed to the hazards of the sea.” They note that in other cases in which maintenance workers were properly found to be more or less permanently connected with a fleet of vessels, those vessels were operational when the plaintiff worked on them, thereby exposing the workers to the hazards of the sea. (Bazile v. Bisso Marine Co. (5th Cir. 1979), 606 F.2d 101, cert. denied (1980), 449 U.S. 829, 66 L. Ed. 2d 33, 101 S. Ct. 94; Mietla v. Warner Co.; Braniff v. Jackson Ave.-Gretna Ferry, Inc.) From this observation, the defendants conclude that the plaintiff, who worked on vessels which were in and out of operation, and who spent much of his time working on a floating drydock, is a shore-based worker as a matter of law.

But, accepting defendants’ suggestion that a maintenance worker must be assigned to work on operational vessels in order to satisfy the “permanency” requirement of the “seamen” test would be to read into that requirement a condition the case law does not explicitly mandate. It would also lead to the application of conflicting maxims under two different portions of the “seamen” test, inasmuch as a vessel in drydock for repairs is a vessel in navigation, even though, under the defendants’ theory, a plaintiff who worked on a fleet containing that vessel could not be permanently attached to that fleet. Moreover, the amount of time a worker spends on land and the nature of his duties while ashore are more accurate indices of whether a worker is “land-based” than is the operational capacity of the ship he is on when he is injured. Under these criteria, it cannot be said that the plaintiff was “land-based” as a matter of law. Furthermore, the plaintiff did not do all of his work while on the drydock. He also repaired vessels afloat in the Mississippi, and was thus “exposed to the hazards of the sea,” even if he was not when he was injured.

Other cases mentioned by the defendants to justify entry of directed verdicts in their favor are factually different from the present case, even if they do not fall easily into either of the categories of cases mentioned above. In Specht v. Pittsburgh Coal Co., the plaintiff was injured while performing repair work from scaffolding alongside the M/V D.J. Johnson. The plaintiff did not claim to be permanently connected with the Johnson, which was not owned by his employer, but he did assert the existence of such a connection with the towboat M/V Elizabeth. However, in a deposition taken two years after the accident, the plaintiff admitted that he had not been aboard the M/V Elizabeth for the past three or four years. He also stated that his employment included work in a shop on shore as well as assignments on board vessels. In Chapman v. M/G Transport Services, Inc., decided by the same court which decided Specht, the plaintiff was employed by the defendant as a welder for only two weeks, and had he worked any longer, he would have had to join the United Steelworkers of America. While upon one of the defendant’s barges at the end of that period, he was injured. The court found his connections with that vessel, as in Specht, to be temporary as a matter of law.

A review of the facts in this case shows that the plaintiff, contrary to many of the claimants in the decisions analyzed above, spent all of his work time on board vessels, or on the floating dry-dock, and none of his time ashore. It is not contended that his duties entailed anything other than the repair of vessels or the securing of lines on the vessels to be repaired or on the floating drydock. While the plaintiff serviced vessels in addition to those owned by ACBL or its subsidiaries, the record does not indicate the frequency of such repairs, except for the statement of ACBL’s wee-president and general counsel that La. Dock and Jeff Boat provided the bulk of service for ACBL and its barge companies. Moreover, the number of vessels in the fleet to which the plaintiff insists he was attached, which also “might have some bearing on a jury determination that he was or was not a seaman” (Mietla v. Warner Co. (E.D. Pa. 1975), 387 F. Supp. 937, 939; see also Baker v. Pacific Far East Lines, Inc.), is not apparent of record. Given this information, the permanency of the plaintiff’s connection to an ACBL fleet is indeed a close issue, yet it cannot be said that there is no evidence from which reasonable jurors might draw conflicting inferences concerning that question. Even marginal claims under the Jones Act are properly left to the jury (Smith v. Massman Construction Co. (5th Cir. 1979), 607 F.2d 87, 89), and therefore, the nature of the-plaintiff’s connection with an ACBL fleet was correctly entrusted to their determination in this case. Because an analysis of the three elements of being a Jones Act seaman shows that the plaintiff did not fail to satisfy any of these elements as a matter of law, the defendants were not entitled to directed verdicts in their favor.

The defendants’ second assignment of error consists of a group of seven arguments pertaining to certain of the plaintiff’s instructions which were given to the jury. These arguments will be addressed in the order presented in the defendants’ brief.

(1) The defendants challenge the accuracy of plaintiff’s instruction No. 19, which defines the term “vessel” as follows:

“The primary meaning of the term ‘vessel’ is that of any watercraft or other contrivance used, or capable of being used, as a means of transportation on water.
The term ‘vessel’ also includes, however, various special purpose craft (such as barges) which do not operate as vehicles for transportation but rather serve as movable, floating bases for stationary operations. If a structure is buoyant and capable of being floated from one location to another it may be found to be a vessel even though it may have remained in one place for a long time and even though there are no plans to move it in the foreseeable future.”

The defendants insist that this is an improper definition of a vessel because it does not require the jury to consider “the purpose for which the craft was constructed and the business in which it is engaged.” (Cook v. Belden Concrete Products, Inc. (5th Cir. 1973), 472 F.2d 999, 1001, cert. denied (1973), 414 U.S. 868, 38 L. Ed. 2d 116, 94 S. Ct. 175.) They also view this instruction as allowing the jury to consider as a vessel anything that floats.

The plaintiff argues that these objections were not preserved for purposes of this appeal. He characterizes defendants’ objection to this instruction as only general in nature and therefore insufficient to save for review the defects listed above. (Casbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 406 N.E.2d 544; Mathis v. Burlington Northern, Inc. (1978), 67 Ill. App. 3d 1009, 385 N.E.2d 780; 87 Ill. 2d R. 239(b).) At the instruction conference, defendants’ counsel stated that he objected to plaintiff’s instruction No. 19 because it did not properly state the law, and because the evidence did not show that the barge, drydock or the R.W. Naye fit plaintiff’s definition. He also disagreed with the clause “which do not operate as vehicles for transportation but rather serve as movable, floating bases for stationary operations.”

Whether these objections are specific enough to preserve the defendants’ challenges to plaintiff’s instruction No. 19, those challenges must be deemed waived for another reason. To save an objection to an instruction, it is incumbent upon a party to tender a proper instruction, otherwise that objection is waived. (Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 385 N.E.2d 664; Department of Public Works & Buildings v. Klehm (1973), 56 Ill. 2d 121, 306 N.E.2d 1, cert. denied (1974), 417 U.S. 947, 41 L. Ed. 2d 667, 94 S. Ct. 3072; 87 Ill. 2d R. 366(b)(2)(i).) The record does not indicate that the defendants offered their own definition of a vessel, nor does their brief contain such a definitional instruction. Because a trial court has, in general, no duty to give instructions which were not requested by the parties (Chicago Land Clearance Com. v. Darrow (1957), 12 Ill. 2d 365, 146 N.E.2d 1; City of Chicago v. Baird (1971), 132 Ill. App. 2d 644, 270 N.E.2d 259, aff'd (1972), 52 Ill. 2d 512, 288 N.E.2d 110), defendants’ objections to plaintiff’s instruction No. 19 have been waived.

(2) The defendants next maintain that plaintiff’s instruction No. 21 inaccurately defined the term “member of a crew,” which phrase is synonymous with the Jones Act requirement of being a seaman. That instruction read as follows:

“The proposition of whether the plaintiff was a member of a crew of a vessel at the time of the accident is a question of fact which you must determine, just as you determine all questions of fact in the case.
You may find that the plaintiff was a member of a crew of a vessel if you find: (a) that the plaintiff’s employment related to a vessel having a specific function (or mission); and, (b) that the plaintiff had a part in the operations of the vessel, whether it be related to the vessel’s transportation or to the performance of its function (or mission).
It is not essential that the plaintiff be assigned to any particular vessel. He may have duties which require him to serve on numerous vessels, and you may still find that he is a member of the crew of the particular vessel involved in this case.
One whose employment takes him on to a vessel may be found to be a member of the crew, even though his stay aboard is expected to last only for a very short period.
You may find that the defendant [sic] is a member of the crew of a vessel even though the vessel has not moved on the water at any time during the plaintiff’s employment, and even though there are no plans to move it at any time in the foreseeable future.
There must, however, be more than an irregular connection between the plaintiff and some vessel in order that he may be found to be a member of the crew. If the plaintiff were a mere passenger being transported to a place of work which is not connected with a vessel he is not a member of the crew of the vessel in which he is being transported, even though his employer owned that vessel and was transporting the plaintiff for its own purposes.”

At the instruction conference, defendants’ counsel objected to the instruction as being an inaccurate statement of the law. He offered instead an instruction, defendants’ No. 12, which stated that “[a] person is a crewman if: (1) he is more or less permanently attached to a vessel or fleet of vessels; (2) the vessels are in navigation; and (3) his primary and natural duty is to serve as an aid to navigation.” Thus, contrary to the plaintiff’s assertions, the defendants have preserved their objections to plaintiff’s instruction No. 21.

A short explanation concerning the source of this instruction is necessary. Unlike the courts in this State, the Federal courts do not have a set of standardized instructions comparable to the Illinois Pattern Jury Instructions. Nor, due to the relative infrequency of Jones Act cases in the courts of this State, do the Illinois Pattern Jury Instructions contain jury instructions on. issues peculiar to the Jones Act. As a result, attorneys who try Jones Act cases must rely upon unofficial compilations of jury instructions, extracted by scholars from relevant cases. One of the most widely used of these sets is E. Devitt & C. Blackmar, Federal Jury Practice & Instructions (2d ed. 1970) (FJPI). Plaintiff’s instruction No. 21 is a verbatim transcription of the definition of “member of a crew” found in section 96.03 of FJPI, even to the erroneous reference to “defendant” instead of “plaintiff” in the fourth paragraph.

The defendants claim that plaintiff’s instruction No. 21 does not require the jury to find that (1) the vessel upon which the plaintiff was employed was in navigation, and (2) that he had a more or less permanent connection with the vessel. They also argue that the last paragraph only requires the jury to find that the plaintiff was associated with some vessel for some time, instead of having a permanent connection with a vessel, unless they found him to be a passenger.

It has been stated that reliance on general compilations of jury instructions, such as FJPI, is not without dangers, because no authors can have a comprehensive knowledge of all fields of law upon which juries may be instructed. (Peymann v. Perini Corp. (1st Cir. 1974), 507 F.2d 1318, 1324 n.2, cert. denied (1975), 421 U.S. 914, 43 L. Ed. 2d 780, 95 S. Ct. 1572.) Difficulties may also be presented in the use of quotations from published opinions which were never intended to be quoted directly as jury instructions. (Bernardo v. Bethlehem Steel Co. (2d Cir. 1963), 314 F.2d 604, 609.) However, the reported decisions show that plaintiff’s instruction No. 21 does in fact contain an accurate statement of the law, and that it is defendants’ instruction No. 12 which is misleading.

As noted above, the phrases “in navigation” and “primarily in aid of navigation” have been construed beyond their natural or literal meanings. Thus, defendants’ tendered instruction No. 12, which submits those words to the jury without defining them, would be unduly restrictive. It has been said that, in instructing a jury under the Jones Act, a court must disabuse the jurors of the notion that a seaman is necessarily a “man with a tattoo, who walks with a rolling gait, wears bell-bottom trousers and handles, reefs and steers the vessel.” (Marine Drilling Co. v. Autin (5th Cir. 1966), 363 F.2d 579, 580.) Defendants’ instruction No. 12 fails to accomplish this task. Offshore Co. v. Robison.

Instead, the phrase “primarily in aid of navigation” has been defined as requiring that the duties of the plaintiff must have contributed to the vessel’s function or to the accomplishment of its mission. (Baker v. Pacific Far East Lines, Inc.; Wilkes v. Mississippi River Sand & Gravel Co.) Jury instructions which have been worded in accordance with that definition have been consistently approved by reviewing courts. (Willis v. Titan Contractors Corp. (Tex. Civ. App. 1981), 625 S.W.2d 69, writ of error refused; Marine Drilling Co. v. Autin; Williamson v. Daspit Brothers Marine Divers, Inc. (5th Cir. 1964), 337 F.2d 337; Tipton v. Socony Mobil Oil Co. (5th Cir. 1963), 315 F.2d 660, rev’d on other grounds (1963), 375 U.S. 34, 11 L. Ed. 2d 4, 84 S. Ct. 1.) Also, the Committee on Pattern Jury Instructions of the Fifth Circuit’s District Judges Association has incorporated this language into its recommended Jones Act instruction. (Committee on Pattern Jury Instructions, Dist. Judges Assoc., Fifth Cir.,' Pattern Jury Instructions (Civil Cases), Federal Claims Instruction 7A — Jones Act — Unseaworthiness (1980) (hereinafter Fifth Cir. Instruction 7A).) The defendants’ objections to the second paragraph of plaintiff’s instruction No. 21 are not well taken, for that paragraph adequately explains the requirement that the plaintiff have been aboard a vessel primarily to aid in navigation.

Nor is this instruction’s definition of the “permanent attachment” requirement reversible error. While it would have been preferable for the court to require the jury to find that the plaintiff was more or less permanently attached to a vessel or group of vessels or that he performed a substantial part of his work aboard that vessel or group of vessels, in those words (Willis v. Titan Contractors Corp.; Marine Drilling Co. v. Autin; Williamson v. Daspit Brothers Marine Divers, Inc.; Tipton v. Socony Mobil Oil Co.; Fifth Cir. Instruction 7A; see also Arundel Corp. v. Jasper (1959), 219 Md. 519, 150 A.2d 415), the phrase “more than an irregular connection with some vessel” is not improper language in a Jones Act instruction. (Stafford v. Perini Corp. (1st Cir. 1973), 475 F.2d 507, 510, 511.) Additionally, the reference to a passenger being transported to a place of work does not dilute the requirement of the plaintiff’s connection with a vessel, and appears to be mere surplusage under the facts of this case.

(3) The defendants further argue that plaintiff’s instructions Nos. 13 and 20B erroneously referred to the defendants as vessel owners or operators rather than employers, and contend that it is only the employer-employee relationship to which Jones Act liability may attach. However, at the instruction conference, defendants’ counsel did not object to plaintiff's instruction No. 13 on the ground that it did not use the word “employer.” Moreover, defendants’ instruction No. 6A, which was offered as an alternative to plaintiff’s instruction No. 20B, also referred to the defendants as “vessel owners.” Consequently, the defendants will not be heard to complain of this language in these instructions.

(4) It is also asserted that plaintiff’s instruction No. 18A was defective in that it did not specify which vessel to which the plaintiff claimed permanent attachment. The record of the instruction conference does not reflect that this instruction was objected to because of that omission, and this argument has also been waived.

(5) The defendants claim that the first three paragraphs of plaintiff’s instruction No. 17A duplicated plaintiff’s instruction No. 16A in its entirety. This objection was not made at the instruction conference, and has therefore not been preserved for purposes of this appeal.

(6) The court gave plaintiff’s instruction No. 12A, which is from section 80.16 of FJPI. It read as follows:

“Since a corporation can act only through its officers or employees, or other agents, the burden is on the plaintiff to establish, by a preponderance of the evidence in the case, that the negligence of one or more officers, or employees, or agents, of one or more of the defendants (other than the plaintiff) was a proximate cause of any injuries and consequent damages sustained by the plaintiff.
Any negligent act or omission of an officer, or employee, or other agent, of a corporation, in the performance of his or her duties, is held in law to be the negligence of the corporation.”

The defendants objected to this instruction, as they do in this court, because there is an adequate instruction in Illinois Pattern Jury Instructions (IPI), Civil (2d ed. 1971). They offered as an alternative defendants’ instruction No. 8, from IPI Civil No. 50.11, which stated, “The defendants are corporations and can act only through their officers and employees. Any act or omission of an officer or employee within the scope of his employment is the action or omission of the defendant corporation.”

Supreme Court Rule 239(a) provides, in general, that whenever an Illinois Pattern Jury Instruction contains an instruction applicable to the case, and the court determines that the jury should be instructed on that issue, “the IPI instruction shall be used, unless the court determines that it does not accurately state the law.” (87 Ill. 2d R. 239(a).) It is not suggested that IPI Civil No. 50.11 was on a subject upon which the jury should not have been instructed, that it was inaccurate, or that FJPI No. 80.16 was necessary to “amplify or clarify” IPI Civil No. 50.11. (Lay v. Knapp (1981), 93 Ill. App. 3d 855, 417 N.E.2d 1099.) Therefore, IPI Civil No. 50.11 should have been given. It should be noted that plaintiff’s instruction No. 12, which was approved by the court before it was withdrawn by the plaintiff, was a modified form of IPI Civil No. 50.11.

However, a violation of Supreme Court Rule 239(a) is not automatically reversible error. (Law v. Central Illinois Public Service Co. (1980), 86 Ill. App. 3d 701, 408 N.E.2d 74; Hitt v. Langel (1968), 93 Ill. App. 2d 386, 236 N.E.2d 118.) The defendants do not contend that FJPI No. 80.16 is partial, misleading or argumentative. (Siebert v. Grana (1968), 102 Ill. App. 2d 283, 243 N.E.2d 538.) In fact, both FJPI No. 80.16 and IPI Civil No. 50.11 present the identical proposition of law that a corporation is responsible .for the acts of its employees undertaken within the scope of their employment, even if that proposition is discussed in slightly different language. The only significant distinction between the two instructions is that FJPI No. 80.16 refers specifically to the negligence of the employees of a corporation, while IPI Civil No. 50.11 refers in more general terms to “any act or omission” of those employees. It is difficult to envision any prejudice which could have accrued to the defendants from the erroneous giving of plaintiffs instruction No. 12A.

(7) The defendants’ final instructional issue is somewhat difficult to understand. They argue that the court erred in giving “instructions nos. 9 and 10,” but the instructions reproduced in their brief as objectionable are plaintiff’s instruction No. 9 and defendants’ instruction No. 10. Yet, even if it is assumed that it is plaintiff’s instruction Nos. 9 and 10 with which defendants take issue, it is also unclear what instruction they supposedly tendered as an alternative. They contend that they “offered an adequate instruction on the matter, IPI 3.01,” but IPI Civil No. 3.10 is on the impeachment of a witness by prior inconsistent statement or conduct, which was not an issue in this case, and the instruction reproduced in the brief as IPI Civil No. 3.01 is actually the first sentence of plaintiff’s instruction No. 10, which is IPI Civil No. 15.01.

The defendants insist that the instructions Nos. 9 and 10 (presumably plaintiff’s instructions Nos. 9 and 10, being IPI Civil Nos. 12.04 and 15.01) “were submitted to the jury though there was no evidence that implied that a third party, not as [sic] party to the suit, was to blame for the injury to the plaintiff.” However, even though it has been held that this combination of instructions should not be given unless there is some evidence that something other than the negligence of the defendant proximately caused the plaintiff’s injuries (Notes on use to IPI Civil Nos. 12.04 and 15.01; Perry v. Chicago & North Western Transportation Co. (1977), 54 Ill. App. 3d 82, 369 N.E.2d 155), this does not appear to have been the position taken by defendants’ counsel in objecting to plaintiff’s instruction No. 9 at trial. He averred that “there is evidence in the case that the vessels involved were not owned by American Commercial Barge Lines, that it [sic] was owned by others; that the condition of the vessel itself might have been the proximate cause of the alleged injury to the plaintiff, and that the jury could so find.” This statement is an accurate assessment of some of the evidence presented at trial, especially the testimony of ACBL’s vice-president and general counsel, who suggested that the vessels could be owned by ACBL’s parent company, American Commercial Lines, Inc., which was not a party to the suit. Under the relatively ambiguous status of the ownership of the vessels involved, no error was committed in the giving of these instructions.

The defendants’ last assignment of error is that the court should have declared a mistrial during plaintiff’s examination of Michael Sheehan, ACBL’s manager of training and safety. In their brief, defendants contend that plaintiff’s counsel “exhibited hostile tone” toward that witness and defense counsel, “made other improper remarks” directed toward defense counsel, and also “engaged in improper questioning and improper courtroom behavior.” They do not specify the remarks and questions characterized as improper, but merely list several pages of the record. Their post-trial motion was even less specific, contending only that “the court erred in allowing plaintiff’s counsel to ask unreasonably argumentative questions and to engage in other prejudicial conduct by way of his own statements and comments during the testimony of Michael Sheehan.” While it may be questionable whether defendants’ allegations are specific enough to preserve this alleged error for purposes of this appeal, a review of the pages of the record on which defendants find objectionable material fails to reveal grounds for reversal.

For the reasons presented above, the judgment of the circuit court of Madison County is affirmed in its entirety.

Affirmed.

WHITE, J., concurring.

JUSTICE KASSERMAN,

dissenting:

It is my opinion that the trial court erred in giving plaintiff’s instruction No. 21; therefore, I must respectfully dissent.

The majority in its opinion recognizes that it is essential to a proper determination of the question of whether plaintiff was entitled to maintain this action under the Jones Act that the jury be accurately instructed as to the proper definition of the words “seaman” and “member of the crew.” It is my opinion that plaintiff’s instruction No. 21 fails in this respect; therefore, the giving of such instruction constituted reversible error.

The authority cited as authorizing plaintiff’s instruction No. 21 was E. Devitt & C. Blackmar, Federal Jury Practice & Instructions sec. 96.03 (2d ed. 1970); however, an examination of this publication indicates that it is a compilation of statements made in various cases in the Federal courts (Slatton v. Martin K. Eby Construction Co. (8th Cir. 1974), 506 F.2d 505; Braniff v. Jackson Ave.-Gretna Ferry, Inc. (5th Cir. 1960), 280 F.2d 523; Stanley v. Guy Scroggins Construction Co. (5th Cir. 1961), 297 F.2d 374; Senko v. LaCrosse Dredging Corp. (1957), 352 U.S. 370, 1 L. Ed. 2d 404, 77 S. Ct. 415; Texas Co. v. Savoie (5th Cir. 1957), 240 F.2d 674). It is noteworthy that none of the quoted statements were given in the process of instructing the jury but were statements of law recited in the courts’ decisions. While the quoted portions of the various statements were proper statements of the law, they do not purport to be the basis for an instruction. Further, not all of the elements contained in plaintiff’s instruction No. 21 are based on direct quotes from these cases.

The perils resulting from a court relying on compilations such as Federal Jury Practice & Instructions are best stated in Peymann v. Perini Corp. (1st Cir. 1974), 507 F.2d 1318, in which the court in a footnote stated:

“We have frequently expressed our apprehensions with respect to general compilations of jury instructions. See, e.g., McMillen v. United States, 1 Cir., 1967, 386 F.2d 29, at 32. They are dangerous because no authors, however erudite, can have a comprehensive substantive background in all fields. In sec. 93.05 of Devitt & Blackmar there is a suggested special interrogatory, supposedly, (but, on investigation not), supported by authority, that would be jettisoned by any admiralty lawyer.” 507 F.2d 1318, 1324 n.2.

Defendant’s instruction No. 12, which was refused by the court, stated:

“A person is a crewman if: (1) he is more or less permanently attached to a vessel or fleet of vessels; (2) the vessels are in navigation; and (3) his primary and natural duty is to serve as an aid to navigation.”

Defendant’s authority for such instruction was Richardson v. Norfolk Shipbuilding & Drydock Corp. (E.D. Va. 1979), 479 F. Supp. 259, a United States District Court decision based on the decisions in Whittington v. Sewer Construction Co. (4th Cir. 1976), 541 F.2d 427, and South Chicago Coal & Dock Co. v. Bassett (1940), 309 U.S. 251, 84 L. Ed. 732, 60 S. Ct. 544.

In Ardoin v. J. Ray McDermott & Co. (5th Cir. 1981), 641 F.2d 277, the Circuit Court of Appeals for the Fifth Circuit addressed this issue and stated:

“In McKie v. Diamond Marine Co., 204 F.2d 132 (5th Cir. 1953), we set forth a definition of the phrase ‘member of the crew’ which, although restated and refined since, still articulates the basic compass of the term ‘seaman’ as used in the Jones Act. [The McKie court stated:]
‘The essential and decisive elements of the definition of a “member of a crew” are that the ship be in navigation; that there be a more or less permanent connection with the ship; and that the worker be aboard primarily to aid in navigation.’
204 F.2d at 136. This definition has been our guide as we have attempted to resolve numerous riddles concerning the status of various types of ambiguous-amphibious workers involved in the offshore petroleum industry. See Offshore Co., v. Robison, 266 F.2d 769 (5th Cir. 1959) (‘When is a roughneck a seaman?’). In this case the riddle is revived in the form of the question ‘When is a structural welder a seaman?’ ” 641 F.2d 277, 280.

It is my conclusion that plaintiff’s instruction No. 21 fails to set forth the requirement that the ship be in navigation and fails to fully set forth the essential elements of “seaman” as set forth in Ardoin. Further, it accentuates matters which are not relevant to the instant case. Therefore, I am of the opinion that plaintiffs instruction No. 21 should have been refused by the trial court and defendants’ instruction No. 12 should have been given.

For the foregoing reasons, I would reverse the judgment of the trial court and remand for new trial.

      Justice White was assigned to the panel on rehearing in place of Justice Scholz who retired from the bench on December 6,1982.


source: Caselaw Access Project

author: JUSTICE STAMOS JUSTICE STAMOS

license: Public Domain

text:
    ROXANNE SADAT, Plaintiff-Appellant, v. AMERICAN MOTORS CORPORATION, Defendant-Appellee.
    First District (2nd Division)
    No. 82—1052
    Opinion filed April 12, 1983.
    Supplemental opinion filed on denial of rehearing May 31, 1983.

      Randall D. Schmidt and Richard Henderson, both of Chicago (Edwin F. Mandel, Legal Aid Clinic, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey and Paul B. O’Flaherty, Jr., of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff Roxanne Sadat appeals from the trial court’s dismissal of her complaint for a mandatory injunction. The complaint sought an order which would have compelled defendant American Motors Corporation to comply with the terms of a warranty which it extended to plaintiff in connection with her purchase of a new American Motors car. Plaintiff’s sole contention on appeal is that the Magnuson-Moss Warranty Act (the Act) (15 U.S.C. sec. 2301 et seq. (1976)) authorizes consumers to maintain an action for an injunction to enforce the terms of a warranty without requiring them to plead or prove that irreparable harm will occur if the injunction does not issue or that the remedy at law is inadequate, and that therefore the trial court erred in dismissing her complaint for failure to plead the prerequisites for equitable relief.

On April 3, 1979, plaintiff purchased a new 1979 AMC Concord from an AMC dealer. The car was covered by a 1979 “AMC Full 12 month/12,000 mile New Car Warranty” which was issued by defendant.

During the period that the warranty was in effect, the car exhibited several defects. The brakes often faded or were difficult to engage, the steering column vibrated excessively, the transmission slipped from park to reverse, the engine leaked oil, the car dieseled after the engine was turned off, and the passenger compartment was permeated with the smell of exhaust.

Plaintiff brought the car to the dealer on seven occasions, and the dealer’s mechanics attempted to repair the various defects. None of these defects, however, were ever satisfactorily repaired.

Section 104(a)(4) of the Magnuson-Moss Warranty Act provides that a full warranty, such as the warranty in the instant case, must meet certain minimum standards, one of which is the provision that:

“if the product (or component part thereof) contains a defect or malfunction after a reasonable number of attempts by the warrantor to remedy defects or malfunctions in such product, such warrantor must permit the consumer to elect either a refund for, or replacement without charge of, such product or part (as the case may be).” 15 U.S.C. sec. 2304(a)(4) (1976).

After all attempts to repair the car had failed, plaintiff requested a replacement without charge. Defendant refused to replace the car, and plaintiff brought a complaint seeking a mandatory injunction which would require defendant to replace the car or give her its cash equivalent. Plaintiff’s complaint also sought a judgment for costs.

On April 8, 1982, the trial court granted defendant’s motion to dismiss the complaint, holding that the complaint was insufficient in that it did not allege that irreparable harm would occur if the injunction were not granted, or that there was no adequate remedy at law.

Plaintiff appeals from that order.

The sole question presented by this appeal is whether a complaint for a mandatory injunction which does not allege the traditional prerequisites for equitable relief may nevertheless state a cause of action under the Magnuson-Moss Warranty Act. (15 U.S.C. sec. 2301 et seq. (1976).) Plaintiff contends that the congressional intent of the Act is that consumers should be able to obtain a “statutory injunction” against warrantors who fail to fulfill obligations imposed on them by the Act, and that such relief should be granted merely on a showing that a violation of the Act has occurred. Defendant contends that the fact that equitable relief is available to consumers under the Act does not authorize the courts to dispense with the traditional requirements for the granting of such relief.

Section 110(d) of the Act provides that:

“a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief—
(A) in any court of competent jurisdiction in any State or the District of Columbia; or (B) in an appropriate district court of the United States ***.” 15 U.S.C. sec. 2310(d) (1976).

Plaintiff contends that the reference to “equitable relief” in section 110(d) authorizes the court to grant a mandatory injunction against any warrantor who fails to comply with the obligations imposed by a warranty, regardless of whether irreparable harm will occur if the injunction is not issued and whether there is an adequate remedy at law. In support of this contention, plaintiff cites several cases in which statutes which specifically authorize the issuance of injunctions in order to enforce their provisions have been interpreted as requiring only a showing that the statute has been violated for the injunction to issue. Those cases are distinguishable from the instant case for two reasons.

First, the statutes which have been held to authorize the issuance of an injunction on a showing of a statutory violation alone do so in clear language. A representative example of such a statutory provision can be found in the Magnuson-Moss Warranty Act itself. Section 110(c) of the Act provides that the Attorney General or the Federal Trade Commission may bring an action

“to restrain (A) any warrantor from making a deceptive warranty with respect to a consumer product, or (B) any person from failing to comply with any requirement imposed on such person by or pursuant to this chapter, or from violating any prohibition contained in this chapter. Upon proper showing that, weighing the equities and considering the Commission’s or Attorney General’s likelihood of ultimate success, such action would be in the public interest and after notice to the defendant, a temporary restraining order or preliminary injunction may be granted without bond.” 15 U.S.C. sec. 2310(c) (1976).

It cannot be doubted that if Congress had meant for consumers to be able to obtain permanent injunctive relief from violations of the Act on less than the traditional showing, it could have set out the showing that would be required in such actions in the same manner that it prescribed the showing required before governmental bodies could obtain preliminary injunctive relief to restrain violations of the Act. Instead, Congress merely provided that consumers could bring an action for “equitable relief.” When that provision is read together with the provision relating to the powers of the Attorney General and the Commission, it becomes apparent that the contention that the use of the succinct phrase “equitable relief” creates a dispensation from the traditional requirements of an action in equity demands a strained construction of the phrase and the provision that embodies it.

The second reason why the Act cannot be construed as authorizing the issuance of a “statutory injunction” in favor of consumers is simply that no statute has ever been construed as relaxing the requirements for the issuance of injunctive relief in actions between two private parties seeking to enforce solely private rights. The majority of cases in which a statute has been interpreted as authorizing the issuance of an injunction on a showing of a statutory violation alone are cases in which a public official or body was the plaintiff, and where that official or body was authorized by the statute to use injunctions as a tool of enforcement. (See People ex rel. Carpentier v. Goers (1960), 20 Ill. 2d 272, 276, 170 N.E.2d 179; People v. Keeven (1979), 68 Ill. App. 3d 91, 96-97, 385 N.E.2d 804; City of Highland Park v. County of Cook (1975), 37 Ill. App. 3d 15, 20, 344 N.E.2d 665; see also Commodity Futures Trading Com. v. Hunt (7th Cir. 1979), 591 F.2d 1211, 1220, cert. denied (1979), 442 U.S. 921, 61 L. Ed. 2d 290, 99 S. Ct. 2848, and cases cited therein.) In City of Highland Park, the court stated that while the contention that equitable relief cannot be awarded without a showing of irreparable injury

“is a sound theory where a private party is the plaintiff, it is not when a city or another public body brings the action, alleging violation of its ordinances and State statutes, with resulting damages to its residents.” 37 Ill. App. 3d 15, 20.

The theory underlying the willingness of the courts to issue statutory injunctions to public bodies to restrain violations of a statute is that harm to the public at large can be presumed from the statutory violation alone. (See People v. Keeven (1979), 68 Ill. App. 3d 91, 96, 385 N.E.2d 804.) Although some statutes do authorize the issuance of a “statutory injunction” in favor of a private party plaintiff (see, e.g., Ill. Rev. Stat. 1981, ch. 85, par. 1245), such statutes uniformly deal with situations in which the defendant is a public body or official which must be restrained from acting in a fashion which would violate the statute which prescribes the duties and powers of the body or official. (See Oscar George Electric Co. v. Metropolitan Fair & Exposi tion Authority (1982), 104 Ill. App. 3d 957, 965, 433 N.E.2d 958; Atchison, Topeka & Santa Fe Ry. Co. v. Lennen (10th Cir. 1981), 640 F.2d 255, 259-60.) As we previously noted, there are apparently no cases in which a court interpreted a statute as authorizing a “statutory injunction” in a situation where both the plaintiff and the defendant were private parties litigating private rights.

A situation that is analogous to that presented by the instant case may be found in Rondeau v. Mosinee Paper Corp. (1975), 422 U.S. 49, 45 L. Ed. 2d 12, 95 S. Ct. 2069. In that case, the defendant acquired a substantial number of shares of stock of the plaintiff company in violation of the disclosures requirements of the Williams Act (15 U.S.C. sec. 78m(d)(1) (1976), amending the Securities Exchange Act of 1934). The plaintiff sought an injunction to prevent the defendant from voting any of the stock so acquired for a period of five years. The injunction was granted despite the fact that the plaintiff could show no injury, irreparable or otherwise, resulting from the defendant’s failure to make the required disclosures. On appeal to the United States Supreme Court, the court first noted that the implied right of action that is available to litigants under the Securities Exchange Act of 1934 and the Securities Act of 1933 includes the right to make use of any of the procedures that are normally available to a litigant asserting a more traditional cause of action. The court stated that although an injunction could be issued in an action under those acts:

“it by no means follows that the plaintiff in such an action is relieved of the burden of establishing the traditional prerequisites of relief ***.
*** the conclusion that a private litigant could maintain an action for violation of the 1933 Act meant no more than that traditional remedies were available to redress any harm which he may have suffered; it provided no basis for dispensing with the showing required to obtain relief.” 422 U.S. 49, 63, 45 L. Ed. 2d 12, 23-24, 95 S. Ct. 2069, 2078.

Likewise, we hold that Congress’ express authorization for the grant of equitable relief in private actions under the Act does not mean that the plaintiff need not establish the requirements for the granting of equitable relief.

Plaintiff contends that a determination that consumers must establish irreparable injury and the inadequacy of the legal remedy in order to obtain an injunction under the Act would run counter to the intent of the Act to give consumers effective methods to enforce the terms of warranties. While it is true that the average consumer of mass produced goods will be unable to show that a breach of warranty has caused irreparable injury and that the remedy at law is inadequate, the Act’s authorization of equitable relief is hardly the only, or the most effective, remedial mechanism contained in the Act. A consumer who successfully brings an action under the Act may be awarded costs and attorney fees for the action under section 110(d)(2). (15 U.S.C. sec. 2310(d)(2) (1976).) The Act also allows consumers with small claims to aggregate their claims in order to meet the jurisdictional amount necessary to maintain a class action in district court. Therefore, although the average consumer would be limited to an action for damages alone under the Act, the maintenance of that action is far more practical than the maintenance of a more traditional cause of action seeking a similarly modest recovery. Therefore, we find that our determination that a consumer must prove the traditional prerequisites for equitable relief does not run counter to the intent of the Act or in any way rob it of remedial effect.

For the reasons expressed herein, the judgment of the circuit court is affirmed.

Affirmed.

DOWNING, P.J., and PERLIN, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE STAMOS

delivered the opinion of the court:

The points raised in plaintiff’s petition for rehearing prompt us to clarify two portions of our original opinion.

First, we shall expand on our view of the nature of the right to “refund or replacement” created by section 104(a)(4) of the Act. That section sets forth the minimum standards which must be met by any full warranty offered in connection with the sale of consumer goods. Although plaintiff contends that this section, read together with the authorization of an action for “equitable relief” contained in section 110(d), authorizes the grant of a mandatory injunction requiring the replacement or refund of the purchase price of a defective product covered by a warranty regardless of whether the remedy at law is inadequate or the harm is irreparable, we do not agree. We view section 104(a)(4) as creating a contractual right on the part of consumers for the replacement of or refund of the purchase price of defective products which are covered by a full warranty. The warrantor’s failure to allow the consumer to elect replacement or refund gives rise to an action at law for breach of warranty in which the consumer must prove only that a defect in the product exists which the warrantor was unable to repair after a reasonable number of attempts. Thus, the elements of the consumer’s action for breach of warranty are defined by the contractual rights which are created by this section. In the instant case, plaintiff’s complaint, though styled as a complaint for a mandatory injunction, is better viewed as a complaint for specific performance of the “refund or replacement” provision of her warranty. The existence of this contractual right, however, does not mean that the right is specifically enforceable without reference to the traditional prerequisites of equitable relief.

Therefore, we view Congress’ authorization of an action for equitable relief in section 110(d) as authorizing private actions by consumers to enforce the contractual rights created by the Act to the same extent as they would be able to enforce contractual rights at common law. As was noted in our original opinion, other provisions of the Act make the maintenance of an action under the Act significantly easier and financially more feasible than the maintenance of similar actions at common law.

Plaintiff also points out that although our original opinion indicates that no statute authorizes the issuance of a statutory injunction between private parties seeking to enforce private rights, title VII of the Civil Rights Act of 1964 (42 U.S.C. sec. 2000e et seq. (1976)) authorizes the issuance of an injunction in actions between private parties after the plaintiff has shown that unlawful and discriminatory employment practices have taken place. (See 42 U.S.C. sec. 2000e — 5(g) (1976).) However, injunctive relief is available to private party plaintiffs under that statute only when the plaintiff has exhausted all administrative remedies; when administrative action is still pending, the plaintiff must prove that irreparable harm will result if an injunction is not issued. (See Middleton-Keirn v. Stone (5th Cir. 1981), 655 F.2d 609, 611-12.) The plaintiff in such a situation can be seen as acting not only on his own behalf, but also in the stead of an administrative agency which has declined to take action. Additionally, the willingness of the Federal courts to presume the existence of irreparable harm in such cases is a reflection of the gravity of the evil which title VII seeks to remedy:

“Whenever a qualified Negro employee is discriminatorily denied a chance to fill a position for which he is qualified and has the seniority to obtain, he suffers irreparable injury and so does the labor force of the country as a whole.” United States v. Hayes International Corp. (5th Cir. 1969), 415 F.2d 1038, 1045.

We are unable to say that the provisions of the Magnuson-Moss Warranty Act require the same type of sweeping pronouncement of public policy as the provisions of title VII of the Civil Rights Act of 1964, and we can see no reason why the presence of irreparable harm should be presumed whenever the terms of a warranty of a consumer product are breached.

For the reasons stated herein, plaintiff’s petition for rehearing is denied.

Denied.

DOWNING, RJ., and PERLIN, J., concur.

      In this connection, we note that it is by no means certain that the parties to a contract may make the provisions of the contract specifically enforceable by expressly providing that the contract shall be enforceable by specific performance. A grant of specific performance may still be precluded by the presence of an adequate remedy at law and an absence of irreparable harm. See Dobbs, Remedies sec. 12.5, at 825 (1973); MacNeil, Power of Contract and Agreed Remedies, 47 Cornell L.Q. 495, 520-23 (1962).


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS et al., Plaintiffs-Appellants, v. ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 82—2385, 82—2447 cons.
    Opinion filed April 25, 1983.
    Rehearing denied May 31, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Judith S. Goodie, Assistant Attorney General, of counsel), for the People.
    Randall D. Schmidt and Stefan H. Krieger, both of Mandel Legal Aid Clinic, of Chicago, and Richard Henderson, law student, for appellant South Austin Coalition Community Council.
    Laurence D. Lasky, Paul M. Murphy, and Douglas A. DiPalma, all of Isham, Lincoln & Beale, of Chicago, for appellee Commonwealth Edison Company.

      Tyrone C. Fahner, Attorney General, of Springfield (Hercules F. Bolos and E. King Poor, Assistant Attorneys General, of counsel), for appellee Illinois Commerce Commission.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The present appeal arises out of an interim rate increase granted to Commonwealth Edison Company by the Illinois Commerce Commission. On January 8, 1982, Edison filed a request for a general rate increase of 805 million dollars with the Commission. Edison also requested that approximately one-half of the proposed increase go into effect immediately on an interim basis pending a final decision by the Commission on the permanent rate increase. The Commission held extensive hearings on the temporary rate increase during which the present plaintiffs, the People of the State of Illinois (People) and the South Austin Coalition Community Council (SACCC), intervened. On May 6, 1982, the Commission entered an interim order granting a temporary rate relief of 324 million dollars. The order also provided that any revenues collected pursuant to the temporary rates were subject to refund with interest if the temporary rates were later found to be excessive after a full hearing on the permanent rate increase.

Both SACCC and the People filed petitions for a rehearing which were denied and both filed separate actions in the circuit court appealing the interim order of the Commission. The cases were consolidated and leave to intervene as a respondent was granted to Edison. The Commission and Edison filed motions to dismiss SACCC’s and the People’s appeals, arguing that the interim order was not final and therefore was not subject to review by the circuit court. On September 28, 1982, the court granted the motions to dismiss.

The separate appeals of SACCC and the People from the dismissal below were consolidated. The only issue raised on appeal is whether the circuit court had jurisdiction to review the interim order of the Commission.

Review of the decisions of the Illinois Commerce Commission is governed exclusively by the provisions of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. lll2/3, par. 1 et seq.), with section 68 of the Act furnishing the procedures for setting aside an order of the Commission (Ill. Rev. Stat. 1981, ch. lll2/3, par. 72). Appeals from orders of the Commission are purely statutory and must be prosecuted in accordance with the requirements set forth in section 68. (Scherer Freight Lines, Inc. v. Illinois Commerce Com. (1962), 24 Ill. 2d 359, 181 N.E.2d 134; Private Tele-Communications, Inc. v. Illinois Bell Telephone Co. (1975), 31 Ill. App. 3d 887, 335 N.E.2d 110.) This section provides in pertinent part:

“Sec. 68. Within 30 days after the service of any order or decision of the Commission refusing an application for a rehearing of any rule, regulation, order or decision of the Commission, or within 30 days after the service of any final order or decision of the Commission upon and after a rehearing of any rule, regulation, order or decision of the Commission, any person or corporation affected by such rule, regulation, order or decision, may appeal to the circuit court of the county in which the subject-matter of the hearing is situated, or if the subject-matter of the hearing is situated in more than one county, then of any one of such counties, for the purpose of having the reasonableness or lawfulness of the rule, regulation, order or decision inquired into and determined.” Ill. Rev. Stat. 1981, ch. 111%, par. 72.

Plaintiffs contend that section 68 should be given a literal interpretation and that any order refusing an application for rehearing of any order entered by the Commission should be appealable. We find that both the case law and sound principles of statutory construction mandate rejection of plaintiffs’ contention.

In construing section 68 of the Public Utilities Act, this court is required to determine and follow the intent of the legislature. (Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 262 N.E.2d 450.) To that end, we are obligated to do more than mechanically apply the language of a statute to a given situation; the consequences which would result from one construction or another must also be taken into account. (Carey v. Elrod (1971), 49 Ill. 2d 464, 275 N.E.2d 367.) In particular, the legislature is presumed to not intend absurd, unjust or unreasonable consequences. Herbert v. Board of Fire & Police Commissioners (1981), 97 Ill. App. 3d 1138, 423 N.E.2d 1298.

Permitting an appeal of any order of the Commission upon refusal of an application for rehearing would result in endless delays and a breakdown of administrative rate-making procedures. Such unreasonable consequences cannot represent the intent of the legislature. Therefore, in accord with the previously alluded to principles of statutory construction, we must reject the literal interpretation of section 68 urged by plaintiffs.

A similar result was reached in Candlewick Lake Utilities Co. v. Illinois Commerce Com. (1978), 65 Ill. App. 3d 185, 382 N.E.2d 88. There the plaintiff appealed from an order of the Commission directing discovery of certain documents and a denial of a motion for rehearing. The court, in affirming the dismissal, held that a literal interpretation of section 68 should be rejected in favor of a more common sense construction limiting appeals to final orders of the Commission. In reaching that conclusion the court noted:

“Under the interpretation argued by the appellant, a party may appeal from the denial of a petition for the rehearing of any order whether final or not. However, if the petition for rehearing is granted, even if the order remains unchanged, the party can only appeal if the order is final. There is no sense to such a distinction and we do not believe the legislature intended to make one.” (65 Ill. App. 3d 185, 188.)

We agree with the rationale advanced in Candlewick and, accordingly, hold that section 68 limits appeals to final orders of the Commission.

In the present case the interim order appealed from fails to meet the requirements of finality necessary for-the circuit court to have jurisdiction. A final order is one which either terminates the litigation between the parties on the merits or disposes of the rights of the parties in regard to the entire controversy or some definite part thereof. (In re Marriage of Zymali (1981), 94 Ill. App. 3d 1145, 419 N.E.2d 487.) The interim order of the Commission clearly fails to dispose of the rights of the parties with respect to the granting of the temporary rate increase. The order provided for a subsequent final determination of the propriety of granting the temporary rates after the more extensive hearings on the permanent rate increase were concluded. The order also contained a provision for refunding with interest any excess revenues collected by Edison if the Commission later found the temporary rates were improperly granted.

Clearly, subsequent action by the Commission could render this appeal unnecessary. Permitting immediate review of this patently interlocutory order would only result in a needless waste of scarce judicial resources. We further note that judicial review of the interim rate increase would be available after a final order is entered by the Commission on the permanent rate increase. In light of this fact, the inefficiency which would be engendered by permitting appeals from temporary rate increases of this type is all the more apparent.

Finally, plaintiffs argue that the temporary rate increase threatened irreparable harm to Edison’s low-income customers and that immediate review of the interim order should therefore be permitted. In support of this contention, plaintiffs rely on the fact that the temporary rate increase would raise the average utility bill approximately $3 per month. Consequently, Edison’s customers living on marginal incomes would be forced to forego basic necessities in order to pay the increased rates. Plaintiffs argue that under these circumstances a future refund will not make Edison’s low-income customers whole.

Although threatened irreparable harm may render an otherwise interlocutory order appealable (Columbia Broadcasting System, Inc. v. United States (1942), 316 U.S. 407, 86 L. Ed. 1563, 62 S. Ct. 1194), we find that the requisite level of harm has not been demonstrated. The plaintiff’s only witness on the impact of the proposed rate increase on low income customers testified that any amount of temporary rate relief would cause irreparable harm. While it cannot be disputed that an increase in utility rates falls more heavily on the poor, more of a showing of irreparable harm must be made in order to render the interim order appealable. This is particularly true in view of the relatively small increase in the average consumer’s utility bill attributable to the temporary rate increase. See Friends of the Earth v. Public Service Com. (1977), 78 Wis. 2d 388, 254 N.W.2d 299.

Accordingly, the order of the circuit court dismissing the appeal is affirmed.

Affirmed.

McGLOON and GOLDBERG, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK VILLAREAL, Defendant-Appellant.
    Second District
    No. 81—1019
    Opinion filed May 5, 1983.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, and Harry E. Johnson, of Batavia, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The defendant, Frank Villareal, was charged by complaint with battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3(a)(1)) and two counts of resisting a peace officer (Ill. Rev. Stat. 1979, ch. 38, par. 31 — 1); he was also charged in a traffic citation and complaint with operating a motor vehicle without a valid Illinois registration sticker (Ill. Rev. Stat. 1979, ch. 95V2, par. 3 — 701(1)). Subsequently, he was convicted of battery, both counts of resisting a peace officer, and having an invalid registration sticker. The defendant was sentenced on the battery charge to 30 days in the county jail and also to a one-year term of probation for the battery and each of the resisting offenses, the terms of probation to be served concurrently. Also, he was ordered to pay $35 in court costs for each of the preceding three offenses. Lastly, he was ordered to pay $20 in court costs as a result of his conviction of having an invalid registration sticker. The defendant appeals.

The defendant first contends on review that the trial court, by requiring the public defender to go to trial only four hours after he was appointed to represent the accused, effectively denied the defendant his right to counsel. The gravamen of his contention is that the four-hour hiatus gave the public defender time to conduct only the most cursory interview with the defendant.

Every criminal defendant is entitled to a reasonable time and a full opportunity to prepare his defense for trial. (People v. Hambleton (1948), 399 Ill. 388, 393.) However, it is equally clear that where counsel made no motion for a continuance or postponement of the trial, he cannot be heard to complain later that he was not allowed sufficient time to prepare a defense. If he needed time to prepare, he should have moved the trial court for a continuance or postponement for a reasonable period to enable him to make his preparation. (People v. Berglin (1923), 309 Ill. 488, 490; accord, People v. Reed (1977), 55 Ill. App. 3d 397, 402.) Thus, in light of the absence of a request for a continuance of the cause to give counsel additional time to confer with the defendant or to investigate and subpoena witnesses, the defendant’s contention that he was effectively denied his right to counsel by the trial court’s action must be rejected, for the trial court had no reason to believe that additional time was needed for preparation or that any prospect existed for fruitful investigation. People v. Coleman (1970), 45 Ill. 2d 466, 468, cert. denied (1970), 400 U.S. 845, 27 L. Ed. 2d 82, 91 S. Ct. 91; see People v. Sulton (1970), 130 Ill. App. 2d 1098, 1103.

The second contention which the defendant argues before this court is that he did not knowingly and understanding^ waive his right to have a jury trial on the four offenses with which he was charged. Section 103 — 6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 6), which implements the constitutional guarantees of the right to trial by jury, provides that each person charged with an offense shall have the right to a jury trial unless the defendant understanding^ waives that right in open court. (People v. Coleman (1978), 59 Ill. App. 3d 1050, 1052; People v. Miller (1977), 55 Ill. App. 3d 1047, 1050.) The rule is applicable in cases involving a misdemeanor which is punishable by a fine only. People v. Murff (1979), 69 Ill. App. 3d 560, 562-63, citing 55 Ill. App. 3d 1047, 1050.

While the trial court may not perfunctorily discharge its duty to explain the right to a jury trial to an accused, an explanation of the ramifications of a waiver of that right is unnecessary unless there is an indication that the accused did not understand his right to a trial by jury. (People v. Stolfo (1977), 46 Ill. App. 3d 616, 618; People v. Ruiz (1976), 42 Ill. App. 3d 969, 972.) However, it is well established that the trial court must ensure that the defendant made a knowing and understanding waiver of his right to a jury trial. (People v. Brownstein (1982), 105 Ill. App. 3d 459, 462; People v. Walton (1979), 77 Ill. App. 3d 905, 906.) Lastly, it is axiomatic that the waiver of the right to a trial by jury cannot be presumed from a silent record. People v. Brownstein (1982), 105 Ill. App. 3d 459, 462; People v. Montgomery (1981), 96 Ill. App. 3d 994, 999; People v. Rettig (1980), 88 Ill. App. 3d 888, 889; People v. Gaston (1971), 132 Ill. App. 2d 900, 901; People v. Bradley (1970), 131 Ill. App. 2d 91, 93.

Here, after informing the accused that he had been charged with battery and two counts of resisting a peace officer, the trial court asked the defendant whether he wished to be tried by the court or a jury. The defendant responded that he wanted the court alone to conduct the trial. The court below also inquired whether the defendant understood the concept of a jury trial, and the accused replied that he did. Then the court told the defendant to sign a jury waiver form if that is what he wanted to do, and that, if he did so, he would be waiving and relinquishing his right to have a jury trial.

The récord, both common law and the report of proceedings, reflects that the defendant signed a written jury waiver form relative to the charges of battery and resisting a peace officer. Although the defendant was not represented by counsel at the time he executed the jury waiver, the record indicates that the defendant was 20 years old at the time and was sophisticated in the sense that he had extensive prior contact with the criminal justice system. In fact, between 1978 and the time of the instant offenses, he had been found guilty of crimes on at least seven occasions, including the offenses of obstructing a peace officer, battery, theft over $150, unlawful possession of cannabis, and having an invalid vehicle registration. The accused’s prior involvement with the criminal justice system may be utilized to determine his understanding of this matter. People v. Stolfo (1977), 46 Ill. App. 3d 616, 618-19; see People v. Richardson (1965), 32 Ill. 2d 497, 500.

In sum, the trial court did not expressly ask the defendant in this case whether he understood that he had the right to a jury trial and whether he desired to waive that right; similarly the court did not explicitly conclude that the defendant knowingly and intelligently waived his right to a jury trial. (Compare People v. Gray (1981), 96 Ill. App. 3d 757, 758.) However, the court’s remarks reasonably apprised the defendant that he was entitled to a jury trial if he so chose, the defendant stated he understood the nature of a jury trial, and he signed a written jury waiver regarding the charges of battery and resisting a police officer (two counts). Given the totality of the facts and circumstances of this case, we conclude that, with respect to those charges, the defendant knowingly and understandingly waived his right to a jury trial. (See, e.g., People v. Herrera (1972), 6 Ill. App. 3d 898, 900-01; People v. Bradley (1970), 131 Ill. App. 2d 91, 93-94.) However, for the reasons explicated below, we reach a different conclusion with respect to the petty offense of operating a motor vehicle without a valid registration sticker (see Ill. Rev. Stat. 1979, ch. 95V2, pars. 1 — 300, 3 — 701; Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—2(c)).

At the outset, it should be emphasized that there is no indication in the record that the defendant was ever arraigned on the invalid registration sticker charge. It is also noteworthy that the public defender apparently was not aware that the defendant had been charged with that offense until after the trial court had pronounced that the defendant was guilty of the registration sticker violation. However, because the defendant did not object in the trial court to the failure to arraign him on that charge, he would be precluded from raising that issue on appeal had he attempted to do so. People v. Sanders (1980), 80 Ill. App. 3d 809, 813; see Ill. Rev. Stat. 1979, ch. 38, par. 113 — 6.

Turning now to the specific question of whether the defendant knowingly and understandingly waived his right to a jury trial on that charge, the record reflects only that the notation “JW” appears in the upper righthand corner of the half-sheet for the trial date. The trial transcript itself is totally devoid of any indication that the trial court explained that the defendant had a right to a jury trial regarding the invalid registration sticker charge or that he was otherwise apprised of that right. In fact, there is no evidence that the trial court ever informed the defendant that he was charged with the offense in question. Thus, even if this court were to accept the presence of the letters “JW” as evidencing the trial court’s statement that the defendant had waived his right to a jury trial, that indication alone is insufficient to demonstrate a knowing and understanding waiver in light of the particular facts and circumstances here. (See People v. Montgomery (1981), 96 Ill. App. 3d 994, 999-1000.) Accordingly, the conviction of operating a vehicle without a valid registration sticker must be reversed, the order imposing $20 in court costs vacated, and the cause remanded for further proceedings.

The defendant’s last assignment of error is that the complaint, as amended, was fatally defective. In particular, he asserts that the order of the trial court, which, upon the State’s motion, amended the original complaint to read a violation of section 12— 3(a)(2) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3(a)(2)) instead of section 12 — 3(a)(1) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3(a)(1)), changed the statutory citation only and did not incorporate the nature and elements of the offense under section 12 — 3(a)(2). Because the allegations of the original complaint, which articulated the nature and elements of a violation of section 12 — 3(a)(1) of the Code, remained unchanged in the amended complaint along with the new statutory citation of section 12 — 3(a)(2), the defendant claims that the amended complaint was fatally defective. The State, on the other hand, maintains that the obvious intent of the trial court’s order amending the original complaint to substitute section 12 — 3(a)(2) for section 12 — 3(a)(1) was to include, by implication, the nature and elements of a section 12 — 3(a)(2) offense.

Initially, we point out that by attacking the sufficiency of the amended complaint in his motion in arrest of judgment (Ill. Rev. Stat. 1979, ch. 38, par. 116 — 2(b)(1)), the defendant properly preserved the present issue for appellate review. People v. Lutz (1978), 73 Ill. 2d 204, 210; People v. Boyd (1981), 102 Ill. App. 3d 343, 345.

It is well settled that in cases in which a charging instrument is attacked for the first time on appeal, the complaint, indictment, or information is sufficient if it apprises the defendant of the precise offense charged with ample specificity to enable him to prepare a defense and to allow pleading a resulting conviction as a bar to a future prosecution arising from the same conduct. (People v. Gilmore (1976), 63 Ill. 2d 23, 28-29; People v. Pujoue (1975), 61 Ill. 2d 335, 339; Peo ple v. Gutierrez (1982), 105 Ill. App. 3d 1059, 1062.) However, where, as here, the sufficiency of the complaint is attacked in a motion in arrest of judgment for a failure to state an offense (Ill. Rev. Stat. 1979, ch. 38, par. 116 — 2(b)(1)), the standard of review is whether the complaint complied with the requirements of section 111 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. Ill— 3). (People v. Easter (1981), 102 Ill. App. 3d 974, 978; People v. Grant (1981), 101 Ill. App. 3d 43, 45; People v. Jeffrey (1981), 94 Ill. App. 3d 455, 463.) One of those requirements is that the complaint set forth the nature and elements of the offense charged. (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 3(a)(3).) If the charging instrument fails to set forth the elements of the offense, then a motion in arrest of judgment, once made, must be granted. People v. Medreno (1981), 99 Ill. App. 3d 449, 454.

A person commits a battery if he intentionally or knowingly without legal justification causes bodily harm to an individual (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3(a)(1)) or makes physical contact of an insulting or provoking nature with an individual (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3(a)(2)). In People v. Pujoue (1975), 61 Ill. 2d 335, 338, our supreme court rejected the State’s contention, which is similar to the one advanced in this case, that the citation of the statutory provision alleged to have been violated incorporated into the complaint, by reference, the nature and elements of the offense charged. See also People v. Haltom (1976), 37 Ill. App. 3d 1059, 1061-62 (counts which alleged the defendant intentionally and knowingly without legal justification committed a battery on certain police officers failed to allege either of the alternative elements of battery and, hence, were insufficient to charge the commission of a battery); accord, People v. Abrams (1971), 48 Ill. 2d 446, 460-61.

The record is clear. The State, by its amendment, intended to charge defendant with committing the offense of battery under section 12 — 3(a)(2) of the Code. The elements of that offense are that the defendant made physical contact of an insulting or provoking nature with an individual. These elements are entirely lacking in the complaint against the defendant, and the defect is fatal. The trial court erred in not granting defendant’s motion in arrest of judgment on the charge of battery.

To summarize:

(a) the judgments of conviction and sentences of the trial court on the two counts of resisting a peace officer are affirmed.
(b) the judgment of conviction and sentence of the trial court on the charge of battery is vacated and held for naught.
(c) the judgment of conviction and sentence of the trial court for having an invalid registration sticker is reversed, and that cause is remanded to the trial court for further proceedings consistent with this opinion.

Affirmed in part; vacated in part; reversed and remanded in part.

LINDBERG and REINHARD, JJ., concur.