text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANCIS DALE SMITH, Defendant-Appellant.
    Fourth District
    No. 4—83—0677
    Opinion filed May 31, 1984.
    Rehearing denied June 29, 1984.
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and Linda Welge, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Following a jury trial, defendant was convicted of the offense of murder, a violation of section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1). He was sentenced to a term of 30 years’ imprisonment. Defendant appeals his conviction, contending that the trial court erred when it refused to instruct the jury on the included offenses of voluntary manslaughter and involuntary manslaughter. We affirm.

The facts are essentially undisputed. During the early morning hours of October 23, 1982, defendant shot Thomas Shoop with a handgun. Shoop died as the result of a single bullet penetrating his heart. The shooting occurred in the Urban Cowboy Lounge in Quincy, Illinois. Several witnesses testified that they observed defendant and Shoop conversing in the bar. According to these observers, Shoop suddenly raised his hands into a surrender position; defendant drew a gun from his coat and fired it at Shoop, who fell to the floor mortally wounded. Defendant then exited the lounge, entered a car, and drove away.

Defendant, at trial, did not contest the fact that he shot the victim. Rather, he claimed that he had no recollection of the incident because he was intoxicated at the time. Considerable evidence was presented which tended to prove defendant’s alleged intoxication. Defendant testified that he had not eaten anything for approximately 24 hours prior to the evening of October 22. Defendant claimed that at about 6 p.m. on that date he consumed approximately 15 Librium tablets. He claimed to have drunk as many as a dozen whiskey and Cokes before arriving at the Urban Cowboy. Defendant testified that he continued to drink while there. Expert testimony indicated that a person of defendant’s age and build who had consumed the aforementioned quantities of drugs and alcohol would exhibit symptoms which could vary from mental and physical retardation to a coma.

Given this evidence, the jury was instructed on the affirmative defense of voluntary intoxication. (See Ill. Rev. Stat. 1983, ch. 38, par. 6 — 3.) The jury, however, rejected defendant’s defense and returned a verdict of guilty to the charge of murder.

Defendant does not contest the propriety of the jury’s verdict. Instead, he argues that the jury was improperly instructed. Defendant notes that in a series of cases culminating with People v. Hicks (1966), 35 Ill. 2d 390, 220 N.E.2d 461, our supreme court recognized that the defense of voluntary intoxication is, in a proper case, a mitigating factor which may reduce the offense of murder to manslaughter. In Hicks, the court stated that in order to require a manslaughter instruction on such grounds, the evidence must indicate that the accused’s intoxication was “ ‘so great as to entirely suspend his power of reasoning ***. (People v. Minzer, 358 Ill. 345).’ ” (People v. Hicks (1966), 35 Ill. 2d 390, 397, 220 N.E.2d 461.) In Hicks, the court concluded that an instruction on manslaughter was properly refused by the trial court because the record contained insufficient evidence of the defendant’s intoxication. In this case, defendant argues that substantial evidence of his intoxication was presented. Accordingly, defendant claims that the jury could have found him guilty of the included offense of voluntary manslaughter, and he urges that the trial court erred when it refused to instruct on this offense.

We note initially that defendant raises this argument for the first time on appeal. Although defendant tendered an instruction on voluntary manslaughter, defense counsel’s argument on the instruction was limited to his contention that the jury could have concluded that defendant shot the victim after having had an argument with him. Defendant has abandoned this claim on appeal. We, therefore, conclude that defendant has waived any contention that his alleged intoxication entitled him to an instruction on voluntary manslaughter.

Moreover, defendant has failed to demonstrate error. The rule relied upon by defendant had its origin in People v. Cochran (1924), 313 Ill. 508, 145 N.E. 207. The court, in that case, recognized two degrees of homicide: murder, which required proof of malice aforethought, and manslaughter, which did not. It stated:

“From an examination of the authorities in this and other States we are of the opinion that the true rule is, that where intoxication is so extreme as to suspend entirely the power of reason and the accused is incapable of any mental action he cannot be convicted of any crime which involves intent or malice, but that he can be convicted for committing, while in such state of intoxication, a crime which consists only of the doing of acts which are prohibited by law and in which intent, deliberation or malice is not an element.” (313 Ill. 508, 519, 145 N.E. 207, 212.)

Thus, under this analysis, a defendant could properly have been convicted of manslaughter even if his extreme intoxication negated the intent required for murder.

Hicks and the cases which preceded it, however, interpreted the law in this State as it existed prior to the passage of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 1 — 1 et seq.). Murder no longer requires proof of malice aforethought. (See Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1.) Voluntary manslaughter is defined as follows:

“A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed, or
(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code [justifiable use of force].” (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2.)

Under this statutory scheme, we believe that while drunkenness may contribute to a sudden and intense passion or may play a part in a defendant’s mistaken belief of self-defense, voluntary intoxication is simply an affirmative defense which, in and of itself, is an insufficient mitigating factor to reduce the crime of murder to voluntary manslaughter. In order for a defendant to be entitled to an instruction on this offense, he must present some evidence that he was provoked into a sudden and intense passion or acted under the mistaken belief of self-defense. The record in this case sustains neither of these propositions. There was nothing in the record to indicate that the slaying stemmed from a serious argument between defendant and the victim. No witness testified that the victim threatened the defendant in any manner. On the contrary, all witnesses who observed the shooting testified that the victim raised his hands in a submissive position prior to being shot. Defendant’s testimony offered no insight into his motive for the shooting. He claimed to have no knowledge of the event. On these facts, defendant was either guilty of murder or nothing at all.

Defendant refers us to the case of People v. Woollums (1981), 93 Ill. App. 3d 144, 416 N.E.2d 725. In that case, we stated in dictum that the defense of voluntary intoxication may reduce the degree of homicide from murder to voluntary manslaughter so that a voluntary manslaughter instruction must be given to the jury if requested. We do not believe, however, that our statement in Woollums can be interpreted as requiring the trial court to instruct the jury on voluntary manslaughter in every case in which the jury is instructed on the defense of voluntary intoxication. As already stated, a defendant’s intoxication is only one factor which should be considered when weighing the propriety of an instruction on voluntary manslaughter. The trial court properly refused defendant’s instruction on this offense.

Defendant also contends that the court erred in refusing to instruct the jury on the offense of involuntary manslaughter. Involuntary manslaughter is an offense which occurs without the intent to kill and death results from acts which were recklessly performed. (People v. Santiago (1982), 108 Ill. App. 3d 787, 439 N.E.2d 984.) There was nothing in this case to indicate that Shoop was accidentally shot. The fact that he died as a result of a single bullet through the heart argues that defendant’s actions were intentional. Some of the witnesses who observed the shooting testified that after the victim fell to the floor, defendant again aimed his gun at him, threatening to shoot. Under these circumstances, the trial court’s refusal to instruct on involuntary manslaughter was also proper.

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

Affirmed.

GREEN and MILLER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE ALLOY

license: Public Domain

text:
    TERRENCE J. MURRAY, Plaintiff-Appellee, v. TEDDY COCKBURN et al., Defendants-Appellants.
    Third District
    No. 3—83—0580
    Opinion filed May 31, 1984.

      Walter Z. Rywak, of Masters & Stukel, of Joliet, for appellants.
    Steven P. Polick, of Schlegel & Trafelet, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant Charles Cockburn appeals from the denial by the circuit court of his motion to vacate a default judgment and of his motion to reinstate a dismissed counterclaim. He also appeals from the denial of his petition to vacate the default judgment. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401.) The trial court refused to vacate the default judgment against Charles Cockburn. The issues on appeal are: (1) whether the default judgment against Charles Cockburn is totally void because the complaint fails to allege any cause of action against him; and (2) whether the court abused its discretion in failing to vacate the default judgment as requested by defense motion and petition.

The pertinent facts are that plaintiff Terrence Murray brought a small-claims pro se action against defendants Teddy Cockburn and Charles Cockburn. In the caption of the complaint, Charles Cockburn is designated legal guardian for Teddy. The complaint alleges damages of $1,384.58 plus costs under a claim for the defendant’s “stealing my car and crashing it.” No further factual allegations respecting the basis of the claim are set forth in the small-claims complaint filed by plaintiff Murray. On the return, after service, the defendant Charles Cockburn appeared, filed his general appearance and also a counterclaim. The matter was set for trial on May 12, 1983. On May 12, 1983, the case was called for trial, with both plaintiff and counsel for plaintiff appearing, but with neither defendant appearing. Evidence was presented indicating Teddy Cockburn’s wrongful taking of plaintiff’s auto and of damages in a collision. Further evidence was presented supporting defendant Charles Cockburn’s liability under the Parental Responsibility Law (Ill. Rev. Stat. 1981, ch. 70, pars. 51 through 57) for the willful acts of the minor Teddy Cockburn. The court found the proofs sufficient and entered a default judgment against the defendants, jointly and severally, in the amount of $1,384.58. Appellant Cockburn’s counterclaim was dismissed, on the court’s motion, for want of prosecution. The court thereafter mailed notice of the dismissal of the counterclaim to the defendant Charles Cockburn. A citation to discover assets was issued in July 1983, commanding the defendant Charles Cockburn to appear for hearing on August 17, 1983. On August 11, he filed his motion to vacate judgment. Charles Cockburn’s affidavit, attached, indicated that he did not operate the vehicle, that he was not involved in the collision, and that Teddy Cockburn was not his employee or agent during the occurrence giving rise to the claim. The motion argued that the complaint alleged no cause of action against Charles Cockburn and that the judgment was void for lack of jurisdiction. Motion was also made to vacate the dismissal of his counterclaim. Hearing was held and the motions were denied.

A motion for rehearing was filed, along with a petition to vacate default judgment, again under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401). That motion asserted that Charles Cockburn had exercised due diligence in presenting the petition to vacate in that he was not notified of the default until his reception of the citation to discover assets. It made no mention of his diligence in following the case prior to judgment, nor asserted any excuse for his failure to appear at the hearing on May 12, 1983. The motion did assert that he had a meritorious defense, in that he did not participate in the occurrence, nor was his codefendant an employee or agent. No defense to his liability under the Parental Responsibility Law was set forth in the petition. After hearing, the trial court denied defendant Charles Cockburn’s motion and petition. This appeal followed.

The defendant initially raises the question of whether the default judgment against him is totally void because the plaintiff’s complaint fails to allege any cause of action against him. The general rule is that in determining the adequacy of a complaint, the pleadings are to be liberally construed, with the aim of seeing substantial justice done between the parties. (People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 145, 435 N.E.2d 463.) Section 2-612(b) of the Code of Civil Procedure states that “[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 612(b).) This is particularly true in the small-claims area, where by Supreme Court Rule 282 (87 Ill. 2d R. 282), a small claim may be commenced by filing a “short and simple complaint setting forth (1) plaintiff’s name, residence address, and telephone number, (2) defendant’s name and place of residence, or place of business or regular employment, and (3) the nature and amount of the plaintiff’s claim, giving dates and other relevant information.” As the court noted in Griffin v. Billberry (1971), 1 Ill. App. 3d 219, 221-22, 273 N.E.2d 693:

“The provisions of the Small Claims Act (ch. 110A, supra, pars. 281-288) are meant to provide a simplified and inexpensive procedure for small claims, and the rules are complete in themselves without reference to other rules (except as to the form of summons). See Smith-Hurd Annotated, ch. 110A, par. 282 — Committee Comments; Daily Journal v. Smith (1969), 118 Ill. App. 2d 411, 415. The complaint was sufficient to clearly notify the defendant of the nature of plaintiff’s claim and thus to state a cause of action under which he could prove negligence and the resulting injury.”

The complaint in question in that case did not specifically allege any factual basis as to the elements of negligence, but merely that the defendant was indebted to the plaintiff for property damages arising from an automobile accident. (1 Ill. App. 3d 219, 221.) A similar conclusion was reached in Megan v. L. B. Foster Co. (1971), 1 Ill. App. 3d 1036, 275 N.E.2d 426. The question of the complaint’s sufficiency rested upon whether it informed the defendant of the nature of plaintiff’s claim. See also Johnston v. Suckow (1977), 55 Ill. App. 3d 277, 281, 370 N.E.2d 650.

The defendant assails the complaint in the instant case because it fails to specifically set forth, as a basis of Charles Cockburn’s liability, the Parental Responsibility Law. Yet, viewed in its entirety, the complaint sets forth the theft of plaintiff’s auto and resulting damages from that theft. Also, as a named defendant, Charles Cock-bum is specifically designated as legal guardian in the caption. Under the liberal and simplified rules respecting small-claims practice, we find the complaint,. as a whole, sufficient to inform the defendant Charles Cockburn that the claim is being made for the theft and damage of plaintiff’s auto and that his involvement arises out of his position as guardian over Teddy Cockburn. We think the complaint is minimally sufficient to notify Charles Cockburn of the nature of plaintiff’s claim against him. The failure to specifically base his liability in the complaint on the Parental Responsibility Law is not fatal. Had the complaint been challenged or questioned, plaintiff could have cured any deficiency by amending to specify that basis for Charles Cock-burn’s liability. No challenge or question was raised. In fact, Charles Cockburn appeared and filed a counterclaim, wherein his caption indicated Teddy Cockburn’s status as a minor, and wherein his knowledge of the underlying facts of the claim is evidenced. We find no error in the court’s failure to vacate the default based upon the argument of the defense that the complaint failed to state a claim, under small-claims procedures, against the defendant Charles Cockburn.

The defendant next contends that the court abused its discretion in denying his motion and petition to vacate the default judgment, and in support argues that the petition was facially sufficient to require that the default be vacated. We disagree. A petition under Rule 2 — 1401 is addressed to the sound discretion of the trial court. (American Reserve Corp. v. Holland (1980), 80 Ill. App. 3d 638, 643, 400 N.E.2d 102.) As the court noted in American Reserve Corp. v. Holland (1980), 80 Ill. App. 3d 638, 643-44, and also in Beverly Bank v. Pentagon Investment Co. (1981), 100 Ill. App. 3d 1074, 1077-78, 427 N.E.2d 835, 838:

“The burden is upon a petitioner under section 72 [now 2— 1401] to allege and prove facts sufficient to justify relief [citation], and the quantum of proof necessary to sustain a section 72 petition is a preponderance of the evidence. [Citations.] When seeking relief from a default judgment, the petition must affirmatively set forth facts showing both the existence of a meritorious defense and the exercise of due diligence on the part of the petitioner in presenting both a defense to the lawsuit and the section 72 petition. [Citations.] In order to obtain relief from a default judgment under that section, a petitioner must show his failure to defend against the lawsuit was the result of an excusable mistake and that he acted reasonably, and not negligently, when he failed to initially resist the judgment.”

Petitioner Charles Cockburn failed to make the required showing in the instant case, as the trial court determined. His petition makes no assertion of due diligence in following the lawsuit or in presenting any defense. The focus of the allegation of due diligence in the petition is upon his diligence in presenting the petition, and not, as is also required, upon his diligence in presenting the defense. Moreover, the record indicates the contrary. Charles Cockburn appeared and filed a counterclaim. He had prior notice of the trial date, having been informed by the court. He failed to appear, and no sufficient reason or excuse was shown by him for that failure. Notice respecting unfavorable action on his counterclaim was mailed in May. The citation to discover assets was served on July 12. He failed to appear for the return date on the citation. Finally, on August 11, he filed his motion to vacate. Even apart from the question of his diligence in presenting the motion to vacate, the record, including defendant’s own affidavits and sworn assertions, does not show due diligence in following the case presenting his defense. Nor does the affidavit of his son, Teddy, blaming the failure to appear on counsel, establish due diligence. That affidavit was filed with the circuit court on November 1, 1983, some two months after the order denying the petition and motion, and some months after the filing of notice of appeal from the court’s decision. It cannot be used to belatedly establish a necessary fact that was not established at the proper time before the trial judge.

Finally, the allegation of a meritorious defense is based upon defendant’s sworn statement that Teddy Cockburn was not his employee or agent at the time of the theft of the auto and the resulting damages. The question of his liability under the Parental Responsibility Law, upon which liability was premised by the court, is not addressed in the affidavit or the sworn petition to vacate. It is not a defense to liability under that law that the minor was not also an employee or agent.

In summary, we find the petition and its supporting evidence insufficient to establish due diligence and a meritorious defense, and accordingly, we find no abuse of discretion in the court’s refusal to vacate its prior default judgment against defendant Charles Cockbum.

A final matter concerns the amount of judgment against defendant Charles Cockburn. The court entered judgment against him for $1,384.58, while the express limit of liability under the Parental Responsibility Law is $1,000. (Ill. Rev. Stat. 1981, ch. 70, par. 55.) Plaintiff’s counsel conceded in argument before the trial court on defense motions that $1,000 was the limit of liability for Charles Cockbum and that such was the intent, force and effect of the judgment entered against him on May 12, 1983. Accordingly, we hereby amend the judgment against Charles Cockbum, and reduce the amount to the statutory limit of $1,000.

The judgments of the circuit court of Will County are affirmed, except that the judgment against defendant Charles Cockbum is hereby amended and reduced to the amount of $1,000.

Affirmed, with an amendment of the amount of judgment.

STOUDER and BARRY, JJ., concur.


author: JUSTICE McNAMARA

text:
    YELLOW FREIGHT SYSTEM, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Joseph Cromer, Appellee).
    Third District (Industrial Commission Division)
    No. 3—84—131 WC
    Opinion filed June 8, 1984.

      Stephen M. Masters and Walter Z. Rywak, both of Stephen Masters & Associates, of Joliet, for appellant.
    John Falasca, of Joliet, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, Joseph Cromer, sought workers’ compensation benefits for injuries sustained while he was employed by Yellow Freight System, Inc. An arbitrator awarded Cromer temporary total disability for the period from July 21, 1980, to July 23, 1981. The employer sought review before the Industrial Commission, which affirmed the arbitrator’s award and extended it to July 28, 1982. The employer sought review iii the circuit court of Will County by writ of certiorari. The court confirmed the decision of the Commission, and the employer appeals.

On appeal the employer contends that the claimant failed to prove that he was temporarily totally disabled and that the Commission’s decision is contrary to the manifest weight of the evidence.

Cromer testified before the arbitrator that on July 21, 1980, he was employed by respondent as a semi-truck driver. In addition to driving the truck, his duties consisted of loading and unloading the semi-trailer. The average weight of the objects he loaded and unloaded was 100 pounds.

On the day in question, Cromer was loading 100-pound cartons of tile when he noticed a snapping sensation in his back. The back pain immediately radiated into his legs. He worked the following two days and has not worked since. Cromer testified that he experienced pain in his back all of the time and was unable to stand or sit for any length of time. He wore a back brace at all times and took medication for his pain.

At the time of the injury, Cromer was 55 years old and had an eighth-grade education. He had worked for respondent as a truck driver for eight years, and prior to that he had worked for a construction company in the same capacity. Cromer testified that since his injury he sought employment at a rehabilitation center in Joliet and in Morris. Cromer also stated that he had no training which would qualify him for work other than as a truck driver or doing manual labor. His doctor had not released him for work.

Cromer saw Dr. John Nicosia, his family physician, on July 24, 1980. Dr. Nicosia’s reports, which were introduced into evidence, revealed that he ordered Cromer off work and treated him with relaxarás, physical therapy and medication. In Dr. Nicosia’s opinion, Cromer was unable to perform any job which required lifting any item over 10 pounds or included repetitive bending. Dr. Nicosia also stated that Cromer would be unable to sit in one position for more than a half hour without experiencing severe back discomfort. On December 11, 1980, Dr. Nicosia referred Cromer to Dr. Michael Greenwald.

Dr. Greenwald testified by means of an evidence deposition that Cromer' was suffering from an acute chronic lumbar strain and was to remain off work. In addition to prescribing a back brace, Dr. Greenwald told Cromer to use a cane for walking long distances. Dr. Greenwald stated that Cromer could not perform a job which required loading or unloading of freight, climbing in or out of a high cab, or driving long distances.

Pursuant to the arbitrator’s order that Cromer receive an independent physical examination, Dr. Carlo Scuderi examined him and submitted a report. Dr. Scuderi found that Cromer walked with a definite limp, and had a flattening of the normal lumbar curve. Dr. Scuderi diagnosed Cromer as having a possible atypical herniated disc of the lumbar spine. In his opinion, Cromer’s back condition would not permit him to work.

Respondent introduced testimony that Cromer was observed sitting in a bar for approximately 90 minutes on August 28, 1981. Cromer left the bar walking normally without a cane.

Respondent also introduced into evidence movies of Cromer which were viewed by the arbitrator and Commission. In its decision upholding the arbitrator’s award, the Commission noted that it viewed movies which showed Cromer walking fairly slowly and walking with a slight limp. The Commission also commented that it did not observe anything in the movies inconsistent with the findings of the arbitrator or doctors.

On appeal the employer contends that Cromer failed to prove that he was entitled to total disability benefits within the meaning of the Workers’ Compensation Act. It maintains that Cromer did not establish that he was unfit for other types of employment. We do not agree.

A claimant has the burden of proving all the elements of his case, including the extent and permanency of the injury, in order to recover benefits under the Workers’ Compensation Act. (A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 397 N.E.2d 804.) A person is totally disabled when he cannot perform services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. (J.M. Jones Co. v. Industrial Com. (1978), 71 Ill. 2d 368, 375 N.E.2d 1306.) Temporary disability is a condition which exists until the injured workman is as far restored as the permanent character of his injury permits. (Howard v. Industrial Com. (1980), 81 Ill. 2d 50, 405 N.E.2d 750.) Whether the petitioner was temporarily totally disabled is a question of fact for the Commission, and its decision will not be set aside unless it is against the manifest weight of the evidence. (McKay Plating Co. v. Industrial Com. (1982), 91 Ill. 2d 198, 437 N.E.2d 617.) Evidence that the employee is able to earn occasional wages or perform useful services does not preclude a finding of total disability. Firestone Tire & Rubber Co. v. Industrial Com. (1979), 76 Ill. 2d 197, 390 N.E.2d 907; E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 376 N.E.2d 206.

In the present case, Cromer was a 55-year-old man with an eighth-grade education. His unrebutted testimony was that he had no training which would qualify him for work other than as a truck driver or doing manual labor. Cromer also stated that, although the doctor had not released him for work, he sought employment in Joliet and Morris. It was Dr. Nicosia’s opinion that Cromer was unable to perform any job which required lifting, bending or climbing, and that he could not sit in one position for more than a half hour. Dr. Greenwald testified that Cromer was to remain off work and that he would not be able to tolerate repetitive bending. Dr. Scuderi stated that Cromer was unable to work.

There was ample evidence to support the Commission’s decision that Cromer was temporarily totally disabled when all the factors are considered: Cromer’s age, work history, education, lack of training for other occupations, his attempts to find other employment, the restrictions placed on his activities by Drs. Nicosia and Greenwald, and Dr. Scuderi’s belief that Cromer was unable to work. (Kropp Forge Co. v. Industrial Com. (1981), 85 Ill. 2d 226, 422 N.E.2d 613.) Accordingly, the Commission’s decision is not contrary to the manifest weight of the evidence and will not be disturbed.

For the foregoing reasons, the judgment of the circuit court of Will County confirming the decision of the Industrial Commission is affirmed.

Judgment affirmed.

SEIDENFELD, P.J., BARRY, WEBBER and KASSERMAN, JJ., concur.


author: JUSTICE GOLDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROGER C. WILLIAMS, Defendant-Appellee.
    First District (1st Division)
    No. 83—1340
    Opinion filed June 4, 1984.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and Nicholas Geanopoulos, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Richard E. Gade, Assistant Public Defender, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Roger Williams (defendant) was charged with auto theft and possession of a stolen car. The trial court suppressed statements made by-defendant while in police custody. The State has appealed. 87 Ill. 2d R. 604(a)(1).

Chicago police officers Thomas Czapiewski, Eugene Richmond, John Mulligan, and Curtis Troogstad responded to a message about a knife fight. At the scene of the fight, defendant and three other men were arrested.

On hearing of the motion to suppress evidence, Officer Czapiewski testified he did not advise defendant of his Miranda rights upon his arrest. Furthermore, the officer did not remember whether another officer advised defendant of his rights at that time. The officer “thought” Officer Richmond advised defendant of his rights at the police station.

Officer Richmond testified that at the scene of the arrest he “told them they were under arrest and [he] advised them of their rights.” He was talking to “all four” of the people placed under arrest including defendant. At the reading of each separate right, each arrestee nodded affirmatively to indicate his understanding. The witness also similarly read their rights to the arrestees together at the police station before interrogation. Defendant again nodded to indicate his understanding of his rights.

Officer Mulligan testified he heard Officer Richmond advise the arrestees of their Miranda rights at the scene of the arrest and also at the police station.

All four officers testified they never struck, kicked, stepped on, or slapped defendant or any of the other arrestees. Each of the four officers also testified that the victim of the alleged auto theft was not given the opportunity to beat defendant.

Defendant testified he was 17 years old at the time of his arrest. He had not completed his second year of high school. He did not remember whether Officer Richmond advised him of his rights at the scene of the arrest. Defendant testified he did not know what Miranda rights were. He did not recall that anybody at the police station advised him of his constitutional rights.

On cross-examination defendant stated he had no problem reading, writing, or understanding English. He admitted having been arrested more than five times between 1976 and 1982. He did not know whether he had been arrested more than 10 times. He did not remember whether any officer had ever advised him of his rights at any time. Defendant stated he never told the police anything except his name, address, and age. Although the police “roughed [him] around trying to get” defendant to admit stealing the car, defendant never made a statement to police.

After argument by counsel, the trial judge stated that defendant “is an unmitigated liar.” “I have a very very hard time in believing” defendant. “So I think the people who told the truth in this case were the police officers.” The judge made findings of fact that the defendant was advised of his rights along with the other arrestees, and that Officer Richmond believed defendant understood the rights relating to him.

Nevertheless, the trial court granted defendant’s motion to suppress, principally because he found specifically the procedure of “reading the rights to the four individuals at one time” was improper. The judge also stated that although defendant was “familiar with police stations,” and “understands how things work in police stations,” it was possible for defendant not to understand the “full impact of the Miranda warnings when [they are] read in that type of fashion without individual questioning and saying ‘Yes, I understand those certain rights ***.’ ”

Defendant initially argues this court may not disturb the determination of the trial court unless it is contrary to the manifest weight of the evidence. (See People v. Dalton (1982), 91 Ill. 2d 22, 31, 434 N.E.2d 1127.) However, this principle refers only to the trial court’s findings of fact. “[T]he scope of our review on questions of law is independent, not deferential.” Havens v. Miller (1981), 102 Ill. App. 3d 558, 567, 429 N.E.2d 1292.

Accepting the factual findings of the trial judge, the issue before this court is one of law as to whether a 17-year-old defendant, whom the trial judge described as “not very intelligent,” but who was familiar with police procedures and who had been arrested several times previously, voluntarily waived his Miranda rights in making a statement to police after an officer twice read those rights to defendant as a member of a group of four, and after defendant acknowledged his understanding of his rights by nodding affirmatively each time the rights were read.

I

The litigants have not cited, nor have we discovered, any case which addresses the propriety of informing a small group of arrestees of their Miranda rights at one time. However, the Illinois Supreme Court recently affirmed the misdemeanor conviction of a pro se defendant pursuant to his plea of guilty after a group admonition of his rights by the trial judge. The court stated (People v. Lynn (1984), 102 Ill. 2d 267, 270-71):

“[T]he trial court admonished a group of accused persons, present in the courtroom, as to their rights. The defendant, as member of that group, was given a written copy of the charges against him and advised that he had the right to plead guilty or not guilty. *** In addition, the court instructed the group that they had a right to be represented by a lawyer. ***
After this general admonition en masse, the court directed admonitions personally to each defendant. At this point, it was determined that defendant had read a copy of the charges against him and had understood the nature of those charges.”

The court did not specifically address the propriety of instructing the defendants en masse. However, the court implicitly found the defendant therein was adequately informed of his rights.

Furthermore, “[t]he manner in which the [Miranda] warnings are given does not matter if the [accused] person understands his rights.” (United States v. Tuggles (E.D. Pa. 1971), 334 F. Supp. 383, 387, citing Bell v. United States (9th Cir. 1967), 382 F.2d 985; United States v. Johnson (7th Cir. 1970), 426 F.2d 1112; United States v. Goldsmith (E.D. Pa. 1967), 274 F. Supp. 494.) Similarly in People v. Reyes (1981), 102 Ill. App. 3d 820, 828, 429 N.E.2d 1277, we held that “Miranda does not specify the precise language to be used in advising a person of his constitutional rights. Rather it requires an intelligent conveyance of the rights set forth therein, not a ritualistic recital of meaningless words. (People v. Prim (1972), 53 Ill. 2d 62, 67.)”

In the case at bar, we find no impropriety in the fact that a police officer simultaneously informed four arrestees of their rights. We conclude that advising a group of arrestees of their rights is proper legal procedure. The only limitation is that the group be small enough so the officer can readily determine that each of the arrestees understands his rights and also that each arrestee independently acknowledges his understanding.

II

Next we must determine whether defendant adequately waived his Miranda rights. In People v. Johnson (1973), 55 Ill. 2d 62, 302 N.E.2d 20 the court reiterated the rule set forth in People v. Brooks (1972), 51 Ill. 2d 156, 164, 281 N.E.2d 326, and People v. Higgins (1972), 50 Ill. 2d 221, 227, 278 N.E.2d 68, cert. denied (1972), 409 U.S. 855, 34 L. Ed. 2d 100, 93 S. Ct. 195, that a formal waiver of a defendant’s Miranda rights is not necessary. The court stated:

“ ‘An express waiver of the right to counsel is not necessary. The test is that there be a showing of a knowing intent to speak without counsel. Once the defendant has been informed of his rights and indicates that he understands those rights it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows his rights and chooses not to exercise them. [Citations.]’ A similar expression by this court in People v. Higgins, 50 Ill. 2d 221, 227, was: ‘An express, formalistic waiver is unnecessary for “[a]ny clear manifestation of a desire to waive is sufficient. The test is the showing of a knowing intent, not the utterance of a shibboleth. ***.” [Citation.]’ ” People v. Johnson (1973), 55 Ill. 2d 62, 71.

Furthermore, in People v. Henne (1974), 23 Ill. App. 3d 567, 319 N.E.2d 596, appeal denied (1975), 58 Ill. 2d 594, the court held specifically that where defendant nodded his head up and down after being informed of his Miranda rights, this action constituted a sufficient expression of his understanding of his rights. Thus, his statement to the police the next day constituted a valid waiver of those rights. In addition the defendant in Henne was intoxicated at the time he was informed of his rights. He was not again informed of his rights immediately before his interrogation.

Similarly, in the case at bar, defendant’s conduct in nodding his head constituted an expression of his understanding of his Miranda rights and his following statement to police constituted a valid waiver of those rights. The facts in the instant case more definitively establish a valid waiver than do the facts in Henne. Here, defendant was not intoxicated at the times he was informed of his rights. Also defendant was advised of his rights twice; once at the time of his arrest and again immediately before he made his statement to the police.

Ill

Finally, defendant’s age and his apparent lack of exceptional intelligence do not invalidate his voluntary waiver. In People v. Padilla (1979), 70 Ill. App. 3d 406, 387 N.E.2d 985, appeal denied (1979), 79 Ill. 2d 616, cert. denied (1980), 445 U.S. 961, 64 L. Ed. 2d 235, 100 S. Ct. 1646, and People v. Cooper (1975), 30 Ill. App. 3d 326, 332 N.E.2d 453, appeal denied (1975), 61 Ill. 2d 598, cert. denied (1976), 425 U.S. 994, 48 L. Ed. 2d 818, 96 S. Ct. 2206, we held valid the voluntary waivers of Miranda rights by two 17-year-old defendants who had IQ’s of 78 and 71 respectively. In Padilla, defendant had completed only the third grade in school. In Cooper, the defendant could read at only the level of a third-grade student.

In the case at bar, defendant completed more than a year of high school. He had no trouble reading or understanding English. Furthermore, defendant’s several arrests support the conclusion that defendant understood his rights and voluntarily waived them. See People v. Clemens (1972), 9 Ill. App. 3d 312, 315, 292 N.E.2d 232.

For these reasons the judgment appealed from is reversed and the case remanded for trial.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MILDRED SIMS, Defendant-Appellant.
    First District (2nd Division)
    No. 82—1415
    Opinion filed June 12, 1984.
    Rehearing denied June 19, 1984.

      James J. Doherty, Public Defender, of Chicago (Jeffrey M. Howard and Frank P. Madea, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Robert W. Bertucci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant was charged by information with voluntary manslaughter, by stabbing Walter Sims (deceased) with a knife, without lawful justification, in the unreasonable belief that the circumstances were such that, had they existed, would justify such killing and with armed violence in that, while armed with a knife with a blade over three inches, she committed the felony of voluntary manslaughter. (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 2(b), 33A — 2.) Following a bench trial, defendant was found guilty of voluntary manslaughter and not guilty of armed violence and sentenced to three years in the penitentiary. Defendant appeals, contending that the finding of not guilty of armed violence based on voluntary manslaughter is inconsistent with the finding of guilty of voluntary manslaughter since each offense had the same essential elements and, consequently, that the conviction for voluntary manslaughter should be reversed.

The evidence at trial showed that deceased, age 42, and defendant, age 30, were married. Deceased had injured his hip some years prior to this incident and could not walk without a cane. On June 7, 1981, defendant returned home from work. Deceased was not home, but was at his mother’s apartment across the street. According to deceased’s mother, defendant hit deceased with her hands or fists several times and accused deceased of having somebody “in my house.” After deceased’s mother told them they could not fight there and to get out, defendant said to deceased, “You c’mon, I’m going to fix you.” The couple left and returned to their apartment, where deceased was killed by defendant, who stabbed him in the neck with a steak knife.

Defendant gave several statements to authorities. First, she orally told a police officer that she killed deceased but did not mean it. She explained that she had come home from work at approximately 1 a.m. and found the house messed up. She then became upset and found deceased at his mother’s house where some words were exchanged. She slapped deceased and went back across the street followed by deceased who remained in the apartment doorway waving his cane. She then went into the kitchen, got a steak knife, and went back and killed him. During a second conversation, when an assistant State’s Attorney was present, defendant said deceased hit her with the cane. Defendant also gave a written statement which was transcribed and received into evidence.

Defendant testified that she came home from work at approximately 1 a.m. and found her apartment messed up. Deceased answered the door at her mother-in-law’s house, and when she asked him why the apartment was messed up, he called her a name and she slapped him. She also noticed that his speech was slurred, and he smelled of alcohol. She denied telling deceased she was going to “fix him,” but claimed deceased said he was going to “fix her.” Later, inside their own apartment the argument resumed. Deceased called her names and hit her with the cane. Because she thought deceased was going to kill her and she knew that in 1976 deceased had been convicted of aggravated battery arising from a shooting, she went to the kitchen and grabbed a steak knife. As he moved toward her, deceased raised the cane and said, “I’m going to put you on ice,” swung the cane, but missed, then swung again. She then stabbed at deceased’s neck with the steak knife. Deceased stepped backwards, and she ran out of the apartment.

In closing argument, defendant argued that she should not be found guilty of armed violence because “it is almost inevitable that some sort of weapon” will be used in a voluntary manslaughter. Defendant also argued that where a person has an honest, although unreasonable, belief that he has a right to protect himself, but is also found guilty of armed violence, one must be sentenced to a period of six years or more, which is “totally out of line” and “not what the legislature intended.” Defendant also argued that the weapon used was not something defendant carried on her person before the incident, and, consequently, she should not be found guilty of armed violence.

In rebuttal to this argument, the State pointed out there are ways to kill somebody without a deadly weapon, such as strangling, but that “when it is defined under the armed violence, you are guilty of armed violence,” and it made no difference that defendant had not previously carried the knife around. The prosecutor also stated:

“Now, as to the question of voluntary manslaughter and armed violence, Counsel is saying don’t find it because six years is unreasonable, if this was a jury trial, you couldn’t make the argument. The jury would be instructed otherwise. We are obligated to look at the facts and not say that we feel sorry because they might go to a penitentiary for a statutory period of time.”

Following a recess, the court made its findings in the following colloquy:

“THE COURT: ***
Based upon the evidence that has been offered in the case, the Court does find from the evidence that the defendant is guilty of voluntary manslaughter. That will be the finding of the Court.
[Assistant Public Defender]: May I approach the Bench?
[Assistant State’s Attorney]: As to the second count?
THE COURT: Voluntary manslaughter is the only count that I am finding her guilty of. The armed violence count, I would say that in accordance with the law, not guilty.”

Defendant filed a written motion for a new trial, but did not specifically raise the issue of inconsistency between the two findings. Defendant did argue that the evidence was not sufficient to prove her guilty of voluntary manslaughter beyond a reasonable doubt and argued this point orally to the court at a hearing on the motion. The court denied the motion, finding that the evidence was sufficient, and, during sentencing, commented on the evidence in detail.

Citing People v. Murray (1975), 34 Ill. App. 3d 521, 340 N.E.2d 186, and In re Sanders (1980), 81 Ill. App. 3d 843, 401 N.E.2d 1118, defendant argues that the verdicts of guilty of crime A (that is voluntary manslaughter) but not guilty of crime B (armed violence based on voluntary manslaughter) where both crimes arise out of the same set of facts, are legally inconsistent since the same essential elements of each crime were found to both exist and not to exist. Defendant particularly relies on People v. Pearson (1973), 16 Ill. App. 3d 543, 306 N.E.2d 539, where defendant was charged with two counts of aggravated assault and two counts of armed violence, based on his alleged actions in firing one shot at two police officers. After a bench trial, defendant was found guilty of both aggravated assault counts, but not guilty of both armed violence counts. On appeal, this court construed the finding of not guilty of armed violence as inconsistent with the finding of guilty of aggravated assault, and reversed the conviction based upon the finding of guilty of aggravated assault.

The State contends the trial court determined defendant knowingly and intentionally stabbed and killed her husband with a knife without lawful justification, in the unreasonable belief that the circumstances were such that, had they existed, would justify such killing. The State concedes that “[tjhese same elements constitute the offense of armed violence — the commission of voluntary manslaughter while armed with a dangerous weapon,” but argues that the Illinois Supreme Court in People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48, has found the armed violence statute was not intended by the legislature to apply to the felony of voluntary manslaughter. The findings are not inconsistent, the State says, since the court’s ruling was based on its determination that defendant could not legally be convicted of armed violence, exactly as the supreme court subsequently held in Alejos.

Where findings inconsistently acquit and convict of separate crimes arising from the same act, Illinois follows the rule that logical consistency is not necessary, so long as the findings are not legally inconsistent as, for example, where acquittal and conviction occur upon charges of crimes composed of different elements, but arising out of the same state of facts. (People v. Hairston (1970), 46 Ill. 2d 348, 361-62, 263 N.E.2d 840.) This rule was recently restated in People v. Frias (1983), 99 Ill. 2d 193, 198-99, 457 N.E.2d 1233. Defendant points out that in Frias the supreme court cited People v. Pearson (1973), 16 Ill. App. 3d 543, 549, with approval for the proposition that where findings of guilty and not guilty are inconsistent, a new trial on the remaining charge is barred by principles of collateral estoppel and the remaining conviction must be reversed. (People v. Frias (1983) 99 Ill. 2d 193, 203-04.) However, there must first be an “inconsistency,” for if there is no inconsistency, logical or legal, as in People v. Dawson (1975), 60 Ill. 2d 278, 282, 326 N.E.2d 755, no reversal is required, since the apparent inconsistency may be explained. (People v. Frias (1983), 99 Ill. 2d 193, 198.) In Dawson, for example, the court found the apparent inconsistency was explainable because of the way the jury was instructed.

In People v. Frias (1983), 99 Ill. 2d 193, our supreme court, following Powers v. State (1979), 285 Md. 269, 401 A.2d 1031, also said that before collateral estoppel could be held to bar a subsequent prosecution, the court must examine the record of the entire proceeding and conclude whether a rational trier of fact could have grounded its verdict or finding upon an issue other than that which defendant seeks to foreclose from consideration. (People v. Frias (1983), 99 Ill. 2d 193, 200.) The Frias court also cited Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189, for the principle that collateral estoppel in criminal cases is “not to be applied with the hyper-technical and archaic approach of a nineteenth century pleading book, but with realism and rationality.” People v. Frias (1983), 99 Ill. 2d 193, 202, citing Ashe v. Swenson (1970), 397 U.S. 436, 444, 25 L. Ed. 2d 469, 475, 90 S. Ct. 1189, 1194.

In this case, we conclude that the record does explain the apparent contradiction between the findings of guilty and not guilty , either as an attempt by the trial court to exercise lenience toward defendant, or as an application of the rationale subsequently adopted by the Illinois Supreme Court in People v. Alejos (1983), 97 Ill. 2d 502, that the legislature did not intend to include voluntary manslaughter as a possible predicate offense for a finding or conviction of armed violence in circumstances such as these.

In People v. Murray (1975), 34 Ill. App. 3d 521, 532, 340 N.E.2d 186, where it was contended that jury acquittals of aggravated battery were inconsistent with murder convictions, the court found the acquittals may have been because the jury thought the murder conviction was sufficient punishment. The court stated that in cases involving legally inconsistent verdicts or findings, the reason why the conviction must be reversed, with or without a remand for a new trial, is that, in such cases, the conviction as a matter of law cannot be deemed to have been based upon proof beyond a reasonable doubt. The Murray court pointed to People v. Pearson (1973), 16 Ill. App. 3d 543, as a case in which the findings were necessarily contradictory as to the same essential elements and, therefore, legally inconsistent. The Murray court, citing People v. Dawson (1975), 60 Ill. 2d 278, said the jury may have acquitted Dawson of felony murder because the jury believed that its conviction of Dawson for the armed robbery provided sufficient punishment and that the jury’s historic power of lenity must prevail over “the traditional doctrine concerning legally and logically inconsistent verdicts.” People v. Murray (1975), 34 Ill. App. 3d 521, 536; see also People v. Buford (1982), 110 Ill. App. 3d 46, 55-56, 441 N.E.2d 1235.

In this case, an examination of the entire record, especially the closing arguments, convinces us that the trial court either accepted defendant’s argument concerning lenity and therefore acquitted defendant of armed violence in order not to foreclose the possibility of probation (People v. O'Malley (1982), 108 Ill. App. 3d 823, 830-33, 439 N.E.2d 998), or accepted defendant’s arguments that (as the supreme court subsequently decided in People v. Alejos (1983), 97 Ill. 2d 502), voluntary manslaughter here is not an appropriate predicate for a finding of armed violence. Since both of these arguments find support in the record, and since the trial court explicitly rejected defendant’s argument in the post-trial motion that the evidence was insufficient to prove guilt of voluntary manslaughter beyond a reasonable doubt, a finding which also is amply supported by the evidence, we find that under the circumstances here, there is no inconsistency between the court’s findings. Rather, the apparent inconsistency is explained and the proof was sufficient. Since there was no inconsistency and the evidence was sufficient to prove guilt beyond a reasonable doubt, we find no reason to disturb the judgment. People v. Frias (1983), 99 Ill. 2d 193; People v. Dawson (1975), 60 Ill. 2d 278.

Therefore, the judgment of the circuit court of Cook County is affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for this appeal.

Affirmed.

HARTMAN, P.J., and DOWNING, J., concur.


author: JUSTICE LINDBERG

text:
    CATHERINE LOUNSBURY, Plaintiff-Appellant, v. DR. DIONISIO YORRO, Defendant-Appellee.
    Second District
    No. 2—83—454
    Opinion filed June 1, 1984.

      Gary K. Laatsch, of Asher, Goodstein, Pavalon, Gittler, Greenfield & Se-gall, of Chicago, for appellant.
    William J. Rogers and David S. Rees, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Catherine Happ Lounsbury, sued defendants Dr. Dionisio Yorro and St. Therese Hospital in the circuit court of Lake County for negligent medical treatment of plaintiff. Summary judgment was entered for St. Therese, and the case proceeded to trial against defendant Dr. Yorro. As the issues on this appeal relate to closing argument and the court’s refusal to give a tendered instruction, it is unnecessary to belabor this opinion with the evidence adduced at trial. The jury returned a verdict for defendant, and the trial court entered judgment on the verdict. Plaintiff’s post-trial motion was denied and she appeals.

Plaintiff raises two issues on appeal: (a) whether reversible error occurred when the trial court prevented plaintiff’s attorney from commenting on the criminal standard of proof during closing argument and (b) whether the trial court erred in failing to instruct the jury on the definition of proximate cause tendered by the plaintiff.

Early in the closing argument of plaintiff’s counsel, the following colloquy occurred:

“MR. LAATSCH [Plaintiff’s attorney]: ***In respect to the burden of proof, I would encourage you to note that I do not have to prove my case beyond a reasonable doubt, which is the criminal standard. And the standard—
MR. ROGERS [Defendant’s attorney]: Your Honor, I object. He is talking about criminal matters.
THE COURT: Sustained.
MR. LAATSCH: It is only necessary that I prove my burden in terms of it being more likely true than not true.
MR. ROGERS: I have to object to that part.
THE COURT: Sustained.
MR. LAATSCH: In other words, if you were to imagine the scales of justice, if you weighed the evidence on the one scale on behalf of the Defendant, and on the other scale on behalf of the Plaintiff, if it tilts—
MR. ROGERS: Excuse me, Your Honor. Objection.
THE COURT: Let me see both of you, please.
* * *
MR. LAATSCH: I don’t have to prove my case beyond a reasonable doubt.
MR. ROGERS: I object.
THE COURT: Sustained.”

On appeal plaintiff contends that there was nothing in the closing argument that was misleading. An attorney in a civil case should be entitled to ensure that the jury will not hold his client to the criminal standard of proving his case “beyond a reasonable doubt.” She maintains that other than the maxim “innocent until proven guilty” there is no other adage more familiar to a lay person than that of proof beyond a reasonable doubt. Plaintiff points out that jury instructions at one time expressly differentiated between criminal and civil cases in terms of burden of proof. (Arndt v. Riverview Park Co. (1930), 259 Ill. App. 210.) Plaintiff contends that reference in closing argument to the scales of justice and burden of proof is basic trial technique and perfectly illustrative of what is meant by the burden of proof in civil cases. The repetitious interruption of plaintiff’s argument indicated that the court would not tolerate anything other than a rote and verbatim statement of an instruction. Plaintiff concludes that the trial court ruling was contrary to the law and prevented plaintiff from expressing her belief concerning the content of other important instructions. She was unable to place the facts of her case within the framework and perspective of the applicable law contained in the court’s instructions and specifically approved in Sidorewicz v. Kostelny (1981), 102 Ill. App. 3d 851, 430 N.E.2d 377.

It is the exclusive province of the trial court to instruct the jury as to the law, and it is not the function of counsel to do so. (Vocke v. City of Chicago (1904), 208 Ill. 192; see Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363; Coyne v. Avery (1901), 189 Ill. 378; Chicago Consolidated Traction Co. v. Kinane (1908), 138 Ill. App. 636.) However, attorneys can, and necessarily must, state what they believe the law to be and base their arguments as to the facts on this interpretation. (Vocke v. City of Chicago (1904), 208 Ill. 192; Coyne v. Avery (1901), 189 Ill. 378; Sidorewicz v. Kostelny (1981), 102 Ill. App. 3d 851, 430 N.E.2d 377; Martin v. Allstate Insurance Co. (1981), 92 Ill. App. 3d 829, 416 N.E.2d 347.) In order to give counsel the opportunity to develop their arguments in accordance with the instructions which will be given, a conference concerning instructions is held prior to final arguments. (People ex rel. Paul v. Harvey (1972), 9 Ill. App. 3d 209, 292 N.E.2d 124; see Ill. Rev. Stat. 1983, ch. 110, par. 2— 1107.) So long as their remarks are not misleading (see Northern Trust Co. v. Skokie Valley Community Hospital (1980), 81 Ill. App. 3d 1110, 401 N.E.2d 1246), the attorneys have a right to express in closing argument their beliefs concerning the content of the anticipated instructions. Sidorewicz v. Kostelny (1981), 102 Ill. App. 3d 851, 430 N.E.2d 377; Martin v. Allstate Insurance Co. (1981), 92 Ill. App. 3d 829, 416 N.E.2d 347; People ex rel. Paul v. Harvey (1972), 9 Ill. App. 3d 209, 292 N.E.2d 124.

While a trial court generally has broad discretion in ruling on the scope and character of argument to the jury (Mohler v. Blanchette (1982), 106 Ill. App. 3d 545, 435 N.E.2d 1161), the restriction of closing argument here was partially erroneous. As plaintiff’s counsel knew from the instructions conference, the trial court was going to instruct the jury that, when a party has the burden of proof on any proposition, it meant that the jury would have to “be persuaded, considering all the evidence in the case, that the proposition on which [he] has the burden of proof is more probably true than not true.” Illinois Pattern Jury Instruction (IPI), Civil, No. 21.01 (2d ed. 1971).) Consequently, plaintiff’s attorney’s comment that plaintiff only had to meet her burden “in terms of it being more likely true than not true” is a correct statement of law and in accordance with the instructions. Therefore, the objection to this remark should not have been sustained. (See Sidorewicz v. Kostelny (1981), 102 Ill. App. 3d 851, 430 N.E.2d 377; Martin v. Allstate Insurance Co. (1981), 92 Ill. App. 3d 829, 416 N.E.2d 347; People ex rel. Paul v. Harvey (1972), 9 Ill. App. 3d 209, 292 N.E.2d 124.) Defendant’s assertion that plaintiff’s counsel misstated the law by saying “more likely true than not true” as opposed to “more probably true than not true” (IPI Civil No. 21.01), ignores the identical meaning of these two phrases. Further, as there is no indication that plaintiff’s attorney’s comment on the scales of justice incorrectly stated the law or was inconsistent with the instructions, the trial court erred in preventing counsel from concluding this remark. Sidorewicz v. Kostelny (1981), 102 Ill. App. 3d 851, 430 N.E.2d 377; Martin v. Allstate Insurance Co. (1981), 92 Ill. App. 3d 829, 416 N.E.2d 347; People ex rel. Paul v. Harvey (1972), 9 Ill. App. 3d 209, 292 N.E.2d 124.

While plaintiff’s attorney’s remarks that the criminal standard of proof beyond a reasonable doubt was not applicable also represent a correct legal proposition (see Arndt v. Riverview Park Co. (1930), 259 Ill. App. 210), it does not necessarily follow that the argument is proper because it correctly states the law. (See Hall v. Chicago & North Western Ry. Co. (1955), 5 Ill. 2d 135, 151.) We conclude the argument is immaterial and raises extraneous issues which may confuse the jury particularly where the jury will be properly instructed by the court on the plaintiff’s burden of proof. Argument regarding the criminal standard of proof beyond a reasonable doubt has no place in a civil action. See IPI Civil No. 21.01, Comment; see also Selph v. Evanoff (1970), 28 Mich. App. 201, 206-07, 184 N.W.2d 282, 285.

Plaintiff relies upon Sidorewicz v. Kostelny (1981), 102 Ill. App. 3d 851, 430 N.E.2d 377, as authority for the propriety of advising the jury of the different burdens of proof in criminal and civil cases. Plaintiff’s reliance is misplaced. The Sidorewicz court was not asked to pass upon the propriety of the specific argument regarding the criminal burden of proof. Rather, the court was asked to affirm the proposition that parties are permitted, in closing argument, to state their belief as to the anticipated instructions and to develop their arguments in accordance with the instructions so long as they are not misleading. The court found that the trial court’s denial of the plaintiff’s right to comment on the instructions prejudiced the plaintiff as she was not able to place the facts of the case within an appropriate framework from her perspective. Sidorewicz v. Kostelny (1981), 102 Ill. App. 3d 851, 854-55, 430 N.E.2d 377, 379.

No such denial occurred here. In the case at bar the court specifically approved the plaintiff’s right to discuss the anticipated instructions with the jury. Thus, Sidorewicz is not helpful despite the fact that the excluded argument was substantially the same as in the instant case. The Sidorewicz court’s resolution of the issue simply did not address the propriety of the substance of the instruction’s argument at issue here.

We conclude the trial court did not err in circumscribing plaintiff’s argument to the extent that reference to the criminal burden of proof of beyond a reasonable doubt was improper. (See IPI Civil No. 21.01.) Further, the erroneous suppression of plaintiff’s argument regarding the burden of proof being persuasive that the plaintiffs proposition is “more likely true than not true” does not rise to the level of reversible error. We arrive at the same conclusion as to the erroneous exclusion of plaintiffs reference to the scales of justice. Trial error warrants reversal only if the error prejudiced the appellant or unduly affected the outcome of trial. (See Chloupek v. Jordan (1977), 49 Ill. App. 3d 809, 364 N.E.2d 650.) This is especially true where, as here, the appellant has not contended that the verdict was against the manifest weight of the evidence. (Saputo v. Fatla (1975), 25 Ill. App. 3d 775, 324 N.E.2d 34.) Any prejudice from the restriction of closing argument here was dissipated due to the fact that plaintiffs counsel was permitted to detail what elements the plaintiff was required to prove and ultimately did adequately explain the instruction that the judge would give the jury concerning the civil burden of proof. Consequently, the errors in the restriction of plaintiffs closing argument were harmless.

With regard to plaintiff’s second issue concerning the trial court’s refusal of plaintiff’s tendered instruction on the definition of proximate cause, a party has the right to have the jury instructed on his or her theory of the case. (Willhite v. Goodman (1978), 64 Ill. App. 3d 273, 381, N.E.2d 68; Tipsword v. Melrose (1973), 13 Ill. App. 3d 1009, 301 N.E.2d 614.) While questions as to what issues actually have been raised by the evidence rest with the discretion of the trial court, the court must instruct the jury on all issues reasonably presented by the evidence. Sherman v. City of Springfield (1969), 111 Ill. App. 2d 391, 250 N.E.2d 537.

Over plaintiff’s objection, the trial court instructed the jury that proximate cause meant “that cause which, in natural or probable sequence, produced the injury complained of.” This instruction represents the short version of IPI Civil No. 15.01. Plaintiff had tendered the full version of IPI Civil No. 15.01, which defines proximate cause as “a cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.” Plaintiff’s theory, at trial and on appeal, for the giving of the full instruction was that the various factors which predisposed plaintiff to develop the medical condition which was the subject of this lawsuit concurred with or contributed to defendant’s alleged negligence in producing plaintiff’s injury.

The full version of IPI Civil No. 15.01 is appropriate only in cases where there is evidence that something or the acts of someone other than the plaintiff and the defendant were a proximate cause of the injury; absent such evidence, the short version must be given. (Lewis v. W.F. Smith & Co. (1979), 71 Ill. App. 3d 1032, 390 N.E.2d 39; Butler v. Palm (1962), 36 Ill. App. 2d 351, 184 N.E.2d 633; IPI Civil No. 15.01, Notes on Use and Comment.) Plaintiff’s argument that her predisposing factors could be viewed as contributing causes is understandable especially given the stress placed on these factors by defendant at trial. Further, there is some basis for the view that a contributing or concurring cause could be a simultaneous condition, e.g., whether, as opposed to conduct on the part of a person. Lewis v. W. F. Smith & Co. (1979), 71 Ill. App. 3d 1032, 390 N.E.2d 39; see Laukkanen v. Jewel Tea Co. (1966), 78 Ill. App. 2d 153, 222 N.E.2d 584; IPI Civil No. 15.01, Comment.

However, this court has held that it is error to give the full version of IPI Civil No. 15.01 where the alleged other cause is a predisposition on the part of a plaintiff to sustain the particular injury. (Lindsay v. Appleby (1980), 91 Ill. App. 3d 705, 414 N.E.2d 885.) Reasoning that the proximate cause instruction deals only with the conduct which produced the plaintiff’s injuries and does not relate to any prior or subsequent injuries (see Dolan v. Crammond (1979), 71 Ill. App. 3d 289, 389 N.E.2d 206), Lindsay holds that the entire version of the instruction is proper only where there is evidence of actions of another person which contributed to the injury. (Lindsay v. Appleby (1980), 91 Ill. App. 3d 705, 414 N.E.2d 885; see Reuter v. Kocan (1983), 113 Ill. App. 3d 903, 446 N.E.2d 882.) Under Lindsay, a plaintiff’s predispositions are more appropriately addressed by giving the jury other instructions, i.e., that if the defendant was negligent and his or her negligence was a proximate cause of the plaintiff’s injury, it is not a defense that something else may also have been a cause of the injury and that aggravation of any preexisting ailment may be considered as an element of the plaintiff’s damages. Lindsay v. Appleby (1980), 91 Ill. App. 3d 705, 414 N.E.2d 885; Dolan v. Crammond (1979), 71 Ill. App. 3d 289, 389 N.E.2d 206; see IPI Civil Nos. 12.05, 30.01, 30.03.

For the reasons stated therein we adhere to our opinion in Lindsay and conclude that it was not error for the trial court to exclude the bracketed clause in IPI Civil No. 15.01 in the instant case.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

SEIDENFELD, P.J., and HOPF, J., concur.


author: JUSTICE HEIPLE

text:
    LUTHERAN SOCIAL SERVICES OF ILLINOIS, Plaintiff-Appellee, v. THE COUNTY OF HENRY, Defendant-Appellant.
    Third District
    No. 3—83—0709
    Opinion filed May 24, 1984.
    Larry S. Vandersnick, State’s Attorney, of Cambridge (John W. Bean, of counsel), for appellant.

      John G. Satter, of Dwight, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, Lutheran Social Services of Illinois, sought a special use permit from the Henry County Board allowing the plaintiff to construct a group residence on land zoned as an agricultural district. At the time of the plaintiff’s application, there was in existence, a county ordinance which required that a special use permit be approved by a three-fourths vote of the county board when a municipality objected to the permit. State law requires only a majority vote. Ill. Rev. Stat. 1981, ch. 34, par. 855.

The village of Andover objected to the permit, and the plaintiff did not receive the necessary votes. The plaintiff obtained a declaratory judgment which invalidated the three-fourths vote requirement because it was not derived from authority granted by Illinois statutes.

Although a county zoning ordinance is initially presumed to be valid, this merely places the burden of proof upon the plaintiff to demonstrate its invalidity. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40.) After reviewing the record, we find that the plaintiff has sustained its burden of proof.

Henry County is a non-home-rule unit. Therefore, the county board can exercise only those powers expressly granted to it by the legislature or those which arise therefrom by necessary implication. (Redmond v. Novak (1981), 86 Ill. 2d 374, 382; Ill. Const. 1970, art. VII, sec. 7.) Powers of local government units are not to be enlarged by liberally construing statutory grants but are to be strictly construed against the governmental entity. Connelly v. County of Clark (1974), 16 Ill. App. 3d 947.

The defendant first argues that it has express authority to provide alternate voting requirements under section 53 of “An Act to revise the law in relation to counties” (Ill. Rev. Stat. 1981, ch. 34, par. 855):

“Sec. 53. A majority of the members of any county board shall constitute a quorum for the transaction of business; and all questions which shall arise at meetings shall be determined by the votes of the majority of the members present, except in such cases as is otherwise provided.” (Emphasis added.)

In response, the plaintiff argues that the language “as is otherwise provided” requires a legislative exception to the majority vote rule. We agree. This conclusion is supported by the fact that the legislature has specifically authorized a three-fourths majority vote for other zoning decisions. (E.g., Ill. Rev. Stat. 1981, ch. 34, pars. 3152, 3154, 3158.) By including these exceptions in chapter 34, we believe that the legislature meant to exclude nonstatutory exceptions to the majority vote rule.

The defendant contends that denying it the right to implement a three-fourths vote in order to grant a special use permit would lead to absurd results since a special use purportedly has a greater impact on the community than the zoning decisions for which a three-fourths vote is required by statute. Regardless of whether this is an accurate assessment, it does not change our interpretation of section 53. The legislature has provided for a majority vote, and only the legislature can create exceptions to this rule. If this scheme is unacceptable to the defendant, then the remedy must come from the legislature.

Having found no express statutory authority for the ordinance in question, our inquiry turns to whether such authority may be necessarily implied from an express grant of power. Necessarily implied power means that which is essential to the accomplishment of a statute’s declared object and purpose. Connelly v. County of Clark (1974), 16 Ill. App. 3d 947.

The defendant contends that the three-fourths vote requirement is a proper exercise of its police power as authorized by a general grant of power under section 1 of “An Act in relation to county zoning” (Ill. Rev. Stat. 1981, ch. 34, par. 3151). This statute is indeed general and states only that a county is permitted to regulate zoning. The defendant relies on cases which interpret section 1 as granting legislative powers to county boards. (Kotrich v. County of Du Page (1960), 19 Ill. 2d 181.) The defendant reasons that since it possesses general legislative authority, it can enact reasonable procedural safeguards in order to implement the power granted by section 1 (Ill. Rev. Stat. 1981, ch. 34, par. 3151).

By designating a county board as a legislative body, the supreme court did not intend to authorize a board to expand its powers on the basis of reasonableness. Designation as a legislative body simply means that a county board does not have to establish or adhere to precise standards in making its determinations. (Kotrich v. County of Du Page (1960), 19 Ill. 2d 181, 187.) In ascertaining the extent of a board’s power, the standard is not one of reasonableness, but whether such power is essential to the exercise of an express grant of power. The defendant does not contend that a three-fourths vote is essential to its ability to regulate special use zoning. The fact that stringent voting requirements might be desirable or more convenient does not make them essential, indispensable or even necessary. See Connelly v. County of Clark (1974), 16 Ill. App. 3d 947, 949.

Based on the foregoing, we find that the Henry County Board had neither express nor implied authority to require a three-fourths vote in order to grant a special use permit. The judgment of the circuit court of Henry County is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.


text:
    EMILY GALLICK, Plaintiff-Appellant, v. JOHN NOVOTNEY et al., d/b/a Novotney’s Bi-Rite, Defendants-Appellees.
    Third District
    No. 3—83—0590
    Opinion filed May 31, 1984.
    Rehearing denied June 29, 1984.

      Emmanuel F. Guyon, of Streator, for appellant.
    Michael T. Reagan, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of La Salle, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, Emily Gallick, brought an action against the defendants to recover for injuries sustained when the plaintiff fell as she was leaving the defendant’s store. The fall was allegedly caused by a lVa-inch change in elevation between two sidewalk slabs. A jury verdict was returned in favor of the defendants. Before addressing the issues raised by the plaintiff, we must first discuss the procedural sequence leading to this appeal.

The jury’s verdict was returned on May 19, 1983. On May 26, the plaintiff filed a notice of appeal which transferred jurisdiction to this court. Next, the plaintiff filed a post-trial motion on June 6, 1983. The motion was timely but the trial court had no jurisdiction to rule on it. The plaintiff then filed a motion to dismiss the appeal which we granted on July 5, 1983. On September 7, 1983, the trial court granted the defendants’ motion to dismiss the post-trial motion because it was filed at a time when the court had no jurisdiction. This appeal followed.

The first issue is whether the trial court properly dismissed the post-trial motion. Such a motion is timely if it is filed within 30 days after the entry of judgment as was done in the present case. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1202(c).) The fact that the motion was filed at a time when the trial court had no jurisdiction over the case does not affect the timeliness of the motion under section 2— 1202(c). When the plaintiff withdrew her notice of appeal, jurisdiction was restored to the trial court. (Rickard v. Pozdal (1975), 31 Ill. App. 3d 542.) Therefore, the trial court was empowered to rule on the merits of the plaintiff’s post-trial motion and should not have dismissed it.

Having determined that the trial court erred in dismissing the plaintiff’s motion, we would usually remand the cause and direct the trial court to rule on the motion. However, the court’s ruling would then be the potential subject of yet a third appeal. Most of the issues contained in the plaintiff’s motion for a new trial have been fully briefed and argued before this court. Therefore, in order to avoid further delay and in the interest of judicial economy, we will invoke our original jurisdiction under article VI, section 6 of the Illinois Constitution (Ill. Const. 1970, art. VI, sec. 6) and complete the determination of this cause by ruling on the motion ourselves. See Franks v. North Shore Farms, Inc. (1969), 115 Ill. App. 2d 57, 74.

The plaintiff first argues that the trial court improperly excluded photographs which depicted repairs made by the defendants to the exit way of the store four days after the plaintiff's fall. This issue was briefed and argued before this court but was not contained in the plaintiff’s post-trial motion. Furthermore, the record reveals that plaintiff’s counsel expressly agreed to the entry of a motion in limine as to any post-accident repairs. Therefore, the issue has been waived.

Next, the plaintiff argues that the court erred in refusing to admit into evidence a full-scale replica or model of the exit way of the store. The purpose of the model was to demonstrate the difference in elevation between two sidewalk slabs which allegedly caused the plaintiffs fall.

The plaintiff called two witnesses to authenticate the model. The first witness testified that he had made one measurement of the height variance between the sidewalk sections three years after the accident. The second witness was the man who had repaired the exit shortly after the accident. He took no measurements and had no opinion as to any height variance. Based on this testimony, the trial court refused to admit the replica into evidence, finding that both witnesses disagreed as to the degree of variance and whether the variance was the same along the width of the two sidewalk sections in question.

We have reviewed the record and agree with the trial court’s ruling. The foundation testimony was insufficient to authenticate the model. Hence, the exhibit was inadmissible.

Next, the plaintiff argues that the court erred in allowing one of the defendants to testify that there were no prior complaints of falls occurring at the exit of the store. Evidence of the absence of prior accidents is admissible to show lack of notice of a dangerous condition or that the situation or defect was not hazardous. Hardman v. Helene Curtis Industries, Inc. (1964), 48 Ill. App. 2d 42, 52.

The record reveals that although the defendants may have been aware of a slight difference in elevation at the exit, they did not consider it to be hazardous. Therefore, the absence of prior accidents was relevant to the issues of whether the defendants were aware of a dangerous condition and whether the condition was in fact dangerous.

Also, the record shows that a proper foundation was laid for this evidence. The test is whether the condition of the exit was substantially the same before and at the time of the accident. (Campion v. Chicago Landscape Co. (1938), 295 Ill. App. 225, 237.) The defendants testified that no material changes were made in the exit way between the time it was constructed and the time of the accident. For these reasons, the court did not abuse its discretion in admitting testimony concerning the absence of prior accidents.

Next, the plaintiff argues that the court erred by refusing to give a jury instruction which defined the standard of care in this case based on violation of a statute. The statute in question is the Facilities for the Handicapped Act (Ill. Rev. Stat. 1981, ch. 1111/2, par. 3701 et seq.) and the accessibility standards promulgated thereunder by the Capital Development Board.

The statute applies only to handicapped persons. Plaintiffs counsel contends that the plaintiff was handicapped solely because she was 67 years old at the time of the accident. This contention is contrary to the law. To be classified as handicapped under the statute, a person must suffer from a physical, mental or communicative disability. (Ill. Rev. Stat. 1981, ch. 1111/2, par. 3702.) Old age alone is no disability. The record shows that the plaintiff golfed, exercised, shoveled snow and did yard work. There is absolutely no evidence that the plaintiff was disabled in any manner.

Furthermore, the defendants’ store is not a public building as defined by section 2 of the Facilities for the Handicapped Act (Ill. Rev. Stat. 1981, ch. 1111/2, par. 3702). The store is not owned or leased by the State. It is not a place of gathering or amusement nor is it an office or factory. Therefore, the statute does not apply to this case and the instruction was properly refused.

Finally, the plaintiff argues that the court erred in failing to direct a verdict against the defendants. In his brief, plaintiff’s counsel makes no reference to the record showing that he made a motion for a directed verdict or that the court ruled thereon. Although we are not required to do so, we have searched the record and find that both parties moved for a directed verdict at the close of the plaintiff’s case. The court denied the defendants’ motion and told plaintiff’s counsel to renew his motion when all of the evidence was in. The plaintiff did not.

When a court reserves a ruling, the movant must seek a decision in order to preserve the motion for review. (Terracina v. Castelli (1979), 80 Ill. App. 3d 475.) Plaintiff’s counsel has failed to show that he either renewed or obtained a ruling upon his motion for a directed verdict. Therefore, the issue is waived.

Based on the foregoing, we find that the trial court erred in dismissing the plaintiff’s post-trial motion. We have considered the motion and find that it has no merit. Accordingly, the plaintiff’s motion for a new trial is denied and the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.