author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD NOLL, Defendant-Appellant.
    Fourth District
    No. 4—82—0030
    Opinion filed September 14, 1982.
    Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    G. Patrick Riley, State’s Attorney, of Eureka (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals from his conviction for public indecency (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 9(a)(3)). On appeal he asserts that there was a fatal variance between the evidence and the information as supplemented by a bill of particulars; that it was error for the trial court to refuse to instruct the jury it must find the evidence conforms with the bill of particulars in order to convict defendant; and, that he was not proved guilty beyond a reasonable doubt. We affirm.

An information alleged that on July 31, 1981, defendant Donald Noll committed the offense of public indecency in that he exposed his sex organs with intent to arouse his sexual desires. Subsequently, defendant requested a bill of particulars giving the exact time and date the occurrence allegedly took place. The State responded in open court that the offense occurred at or about 1:30 p.m. on July 31, 1981. On September 11, 1981, defendant filed a statement notifying the prosecution that defendant intended to use the affirmative defense of alibi.

At trial, the complaining witness testified that on July 31, 1981, she ran three miles during her lunch hour. During this run, defendant passed her several times in a car. After the car passed the last time and disappeared over a hill, she continued running and saw that the car had stopped on a side road. The door of the passenger side was open and defendant was half sitting, half standing against the seat of the passenger side, nude from the waist down. Although she just glanced at him for a second, she noticed that his hands were moving in his genital area and it looked as if he were masturbating. She testified that this occurred almost exactly at 12:30 p.m.

Eureka police officer Clarence Lenover, Jr., testified that he spoke to defendant on July 31 and defendant told him that he left his sister’s house at approximately 12:25 or 12:30 p.m. that day to go to the residence of his former bróther-in-law, Richard Waldschmidt. Defendant stayed at that residence the rest of the afternoon.

Lenover also testified that he talked to Richard Waldschmidt that day and Waldschmidt told him defendant had been at the Waldschmidt house since approximately 11 a.m. that day.

At trial, Waldschmidt testified that defendant arrived at his house at about 12:25 p.m. on that day and was at the house, or with Waldschmidt, until late that night. He testified that although he might have previously told Lenover defendant had been at his house since 11 a.m., this was because Waldschmidt was upset.

Waldschmidt’s wife, Amy Waldschmidt, testified defendant arrived at her house at 12:25 or 12:30 p.m. on that day and watched television with Amy until 1:30 or 2 p.m. He then spent the day with Richard Waldschmidt.

At the instruction conference, defense counsel tendered an instruction that the State must prove “the offense occurred on July 31, 1981, at or about 1:30 p.m. ***.” This instruction was refused.

The jury found defendant guilty on September 16, 1981. He was sentenced to one year of probation with a condition that he serve 45 days in the county jail. A motion for a new trial was filed and denied.

Defendant first argues that he was not proved guilty beyond a reasonable doubt where the bill of particulars stated the act occurred at or about 1:30 and the evidence showed the act occurred at 12:30. Both the State and defendant agree that the purpose of the bill of particulars is to supplement an indictment so as to better inform defendant of the nature of the charges against him, or to better enable him to present a defense and also to limit the evidence which may be introduced by the State. (People v. Walton (1969), 118 Ill. App. 2d 324, 254 N.E.2d 190.) The State asserts that a variance between the bill of particulars and the evidence is fatal only when the inconsistency is so substantial that it misleads the defendant in the preparation of his defense. (People v. Long (1978), 65 Ill. App. 3d 21, 382 N.E.2d 327.) Defendant contends that the variance in time between the evidence and the bill of particulars did mislead him in the preparation of his defense.

The State, however, notes People v. Fleming (1970), 121 Ill. App. 2d 97, 257 N.E.2d 271. In Fleming, the defendant was indicted on two counts of theft. One of the counts alleged that the theft occurred on March 20, 1967, whereas the proof showed the theft occurred at the end of April. Defendant argued the error was material since he had prepared an alibi defense based on the March 20 date. The court summarily responded that the precise question was answered in People v. Johnson (1949), 404 Ill. 33, 87 N.E.2d 864. That case relied upon the rule that “proof of the precise date as alleged is unnecessary unless the allegation of a special time is an essential ingredient of the crime or the running of the statute of limitations is involved.” (121 Ill. App. 2d 97, 103, 257 N.E.2d 271, 274.) Therefore, the Fleming court found no error. In Johnson, the defendant argued that he could not be guilty of the offense charged because he was in jail on the date alleged in the indictment. Relying on the above-quoted rule, the court found no error.

While we do not challenge the general rule as stated above, we do believe that it may be inappropriate when an alibi defense is used to counter the time or date stated in the indictment, or bill of particulars. In such a case, the defendant may have been misled into failing to gather his evidence and witnesses with regard to the time and date actually proved by the State. However, in the present case defendant was not prejudiced since defendant testified he arrived at Waldschmidt’s house at 12:25 or 12:30 p.m. Officer Lenover testified that Richard Waldschmidt had told him defendant had been at the Waldschmidt house since approximately 11 a.m. All of defendant’s alibi testimony, if found credible by the jury, encompassed the 12:30 p.m. time testified to by the complaining witness as the time the incident occurred. It is apparent the jury simply chose not to believe the alibi testimony. Therefore, the variance between the bill of particulars and the information is not prejudicial.

Defendant next asserts it was error for the court to refuse to instruct the jury that the State must prove the “offense occurred on July 31, 1981, at or about 1:30 p.m. ***.” Defendant acknowledges that the Committee Note to Illinois Pattern Jury Instructions, Criminal, No. 2.06 (2d ed. 1981), regarding bill of particulars, states that the committee recommends no instruction be given on the subject. The note also states it is a question for the court whether the evidence complies with a bill of particulars, and the bill of particulars limits the character of the evidence but does not go to the jury. The committee cites to McDonald v. People (1888), 126 Ill. 150, 18 N.E. 817, and People v. Parker (1934), 355 Ill. 258, 189 N.E. 352. It is contended that the committee’s reliance upon these cases is misplaced since a subsequent Illinois Supreme Court case, People v. Dorsey (1936), 363 Ill. 403, 2 N.E.2d 321, stated that “the defendants were entitled to have the jury instructed on the issue as to which the prosecution was limited” by the bill of particulars. 363 Ill. 403, 408, 2 N.E.2d 321, 323.

We agree with the Committee Note and our previous ruling in Walton, holding that a bill of particulars does not go to the jury. In Dorsey, the defendants were charged with conspiracy and the bill of particulars filed limited the issues to whether or not certain securities were fraudulent. Defendants’ tendered instructions so limiting the issues were refused, and the trial court submitted the case to the jury upon the issue of whether or not the losses were extortionate and exorbitant. As a result, the theory of the prosecution was submitted to the jury upon facts not contained within the bill of particulars. The court stated that the issue should be limited to the conspiracy set forth in the bill of particulars and that defendants were entitled to have the jury instructed upon the issue so limited, and upon which defendants were tried. In the present case, there is no question but that the jury was instructed on the issue as to which defendant was tried, and it was not error to refuse defendant’s tendered instruction.

Defendant’s final contention is that the testimony of the complaining witness was insufficient to establish commission of the offense. Defendant was charged with a lewd exposure of his sex organ “with intent to arouse” his sexual desire. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 9(a)(3).) Although she testified defendant’s hands were moving in his genital area and she assumed he was masturbating, defendant challenges the validity of her testimony since the witness only glanced at him for a second. Defendant relies upon People v. Grear (1969), 42 Ill. 2d 578, 248 N.E.2d 661, to support his contention that the testimony is insufficient to sustain the conviction.

In Grear, a 17-year-old female testified that she was standing on a corner when she saw defendant expose himself as he turned the corner in a car. The witness was in the company of a girlfriend who did not notice anything unusual. The driver of the car said nothing to the witness and did not make any attempt to attract her attention. The court stated that in order to sustain a conviction the evidence must be clear and convincing, or substantially corroborated. Since the complaining witness only had fleeting opportunity to view the driver, and since the witness’ companion did not see anything out of the ordinary, the court concluded the evidence was insufficient.

Here, there is no countervailing factor such as the failure of a companion to notice anything unusual. Furthermore, the witness in this case testified to more than mere exposure by defendant. She testified that defendant had no clothes on below his waist and his hands were moving in the genital area. The jury apparently deemed this testimony credible. An inference of intent to arouse or satisfy defendant’s sexual desires is well justified. We believe the evidence was clear and convincing and sufficient to establish guilt beyond a reasonable doubt.

For the foregoing reasons, the conviction is affirmed.

Affirmed.

WEBBER and LONDRIGAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    CALVIN COOK, Plaintiff-Appellant, v. BURTON D. GOULD, Defendant-Appellee.
    Third District
    No. 82—16
    Opinion filed September 23, 1982.

      Mark L. Schwartzman, of Rosenfeld, Rotenberg, Schwartzman, Hafron & Shapiro, of Chicago, and Thomas R. Wilson, of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, for appellant.
    James E. Garrison, of Garrison, Fabrizio and Hanson, Ltd., of Joliet, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This appeal involves attorney malpractice. The plaintiff, Calvin Cook, seeks damages occasioned by the negligence of Burton Gould, his former attorney, in failing to file Cook’s personal injury claim against the city of Joliet within the statutory period of limitations.

Cook’s claim against the city of Joliet stems from injuries he received as a result of a motorcycle accident. Late on the evening of August 10, 1974, Cook encountered a large oil slick in the middle of Collins Street, Joliet, Illinois. The motorcycle he was riding slid out from under him, causing him injury. Shortly thereafter, Cook retained defendant Gould to represent him in a suit for the damages he sustained as a result of the accident. Defendant Gould undertook the representation but failed to institute a lawsuit within the statutory period. Nearly 10 months after the statute had expired, Burton Gould notified Cook that he had attempted to file suit but the papers were lost and never received by the Clerk of the Circuit Court of.Will County. Gould further informed Cook that this prejudiced his suit and there was nothing further that he could do for him regarding his claim against the city of Joliet.

Soon thereafter, Cook obtained his present counsel and instituted the instant action against Burton Gould for legal malpractice seeking $125,000, the loss of value of his claim negligently prosecuted by Gould. Prior to trial, defendant Gould admitted liability as to all issues except the issue of proximate cause. Gould specifically denied any proximate cause between his negligence and any actual loss to Cook. Attorney Gould’s point is that Cook’s case against the city of Joliet was worthless. And that since the case was worthless, Cook suffered no loss when Attorney Gould permitted the statute of limitations to expire without filing suit.

Subsequently, defendant Gould filed a motion in limine to preclude Cook from introducing any evidence or testimony regarding the manner of the breach of duty since Gould already admitted his duty and breach thereof in failing to timely file the lawsuit against the city of Joliet. Plaintiff Cook was barred from introducing evidence as to the nature of defendant Gould’s negligence in the handling of Cook’s claim. Thus, the trial court stated, the malpractice case would be decided solely on the merits of the original cause of action against the city of Joliet.

Plaintiff Cook moved that the court shift the burden of proof of the meritorious nature of the original cause from himself to Gould to show the cause as nonmeritorious, since an attorney-client relationship existed and Gould admittedly failed to file Cook’s cause of action within the statute of limitations. This motion was denied by the court as being contrary .to the recognized law in Illinois.

The case proceeded to trial. The evidence on the underlying claim showed that Cook was traveling north on Collins Street in Joliet, Illinois, on his motorcycle between midnight and 1 a.m. on August 10, 1974. In the 600 block of North Collins Street, Cook encountered an oil spill on the pavement, and his motorcycle skidded out from under him. Cook had his headlights on, was not speeding, and had no warning of the oil slick. Shortly after 9 p.m. on August 9, 1974, a tanker truck was seen leaking oil on Collins Street in the vicinity of the accident. The witness who testified that he saw the tanker leaking oil stated that he did not call the city or anyone to report the oil spill.

The police officer investigating the accident recalled that the oil slick was approximately 50 to 75 feet long, but could not remember the width of the slick. He testified that it was his responsibility on the night in question to patrol Collins Street. His patrol car was the only one in the area that evening and that he came on duty at 11 p.m. on August 9, 1974. While it was his custom to travel Collins Street several times during the evening because that street was heavily traveled, he could not recall whether he made any trips up or down Collins Street prior to the accident on the night in question. When he was called to the scene following the accident, the oil slick had to be pointed out to him. Prior to the call to investigate Cook’s motorcycle accident, the police did not receive any calls regarding the oil slick.

At the close of the plaintiff’s case, the defendant presented his oral motion for a directed verdict. After argument the court sustained the motion on the grounds the city of Joliet did not have actual or constructive notice of the oil on the street in question. The plaintiff Cook appeals.

Initially, Cook claims that the trial court erred when it refused to shift the burden of proof to the defendant to show the underlying cause of action was not meritorious. Cook concedes that the established law in Illinois is that he, as plaintiff, has the burden of proving the existence of an attorney-client relationship and that his claim would have been successful had it not been for the negligence of the attorney. (Priest v. Dodsworth (1908), 235 Ill. 613.) Cook urges this court, however, to modify the rule for cases where the cause of action is lost through the failure of the attorney to file the cause of action within the applicable statute of limitations. In such cases he urges that we require the negligent attorney to show that the underlying action was not meritorious and would not have been successful even if the suit had been filed within the statute of limitations. We are not inclined to suggest such a change in the Illinois law. Notwithstanding the state of the law, however, we can conceive of situations where the attorney, because of equitable considerations, might be estopped to deny the validity of the underlying lawsuit. Such estoppel would give rise to a shifting burden of proof that would require the lawyer, in the first instance, to present some evidence as to the lack of value of the underlying action. The instant action, however, is not such a case.

A legal malpractice action is no different from a cause of action for ordinary nonprofessional negligence: a plaintiff must show duty, breach thereof, and injury proximately caused by the negligence. Thus, in an action for legal malpractice, the client has the burden of proving the existence of the attorney-client relationship, the breach of duty owed by virtue of that relationship, and that such negligence was the proximate cause of the injury or loss to the client. Even assuming that the attorney was negligent in permitting the statute of limitations to run on a client’s cause of action, as in the instant case, it is incumbent upon the client to prove that the negligence was the proximate cause of his loss; that is, that had the attorney filed within the statutory period, the client would have prevailed. (See Annot., 90 A.L.R.3d 293 (1979).) This is the law. The trial court was correct to rule that it was Cook’s burden to show that his original claim against the city of Joliet was meritorious.

Cook’s next claim of error is that the trial court improperly granted Gould’s motion in limine which restricted Cook from introducing evidence regarding Gould’s negligence in preparation of Cook’s claim against the city of Joliet. We do not agree. The trial court was correct in granting Gould’s motion. Prior to trial, Gould admitted the attorney-client relationship, admitted that it was his duty to file the suit within the statute of limitations, and admitted the fact he did not timely file the suit. The only remaining disputed issues of material fact were the issues of proximate cause and damages. No evidence was needed to prove the issues of duty or breach thereof. The defendant admitted them. The presentation of evidence on those issues would clearly be prejudicial and impugn the defendant’s character. The granting of a motion in limine is a matter within the discretion of the trial court. In exercising its discretion, the trial court should balance the prejudice that might be avoided against the complication or inconvenience that might be caused by granting the motion. (Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App. 3d 189.) In the instant case prejudice is avoided and the case going to the jury is simplified by granting the motion in limine. Thus, we conclude the trial court did not abuse its discretion in granting Gould’s motion in limine.

Finally, Cook claims error when the trial court directed a verdict in favor of Gould at the close of Cook’s case. Cook’s underlying cause of action was based on the negligence of the city of Joliet in failing to discover and remedy a defective condition existing on a city street. Under the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 3 — 102), the city of Joliet has a duty to maintain its streets in a reasonably safe condition. The city, however, cannot be liable for a dangerous or defective condition on its streets “*** unless it is proven that it had actual or constructive notice of the existence of such a condition that it is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition.” Ill. Rev. Stat. 1979, ch. 85, par. 3-102.

The uncontradicted evidence shows that oil was spilled from a truck onto Collins Street between 9 p.m. and 9:30 p.m. on August 9, 1974. The witness observing this did not call the city or the police department. In fact, the police department did not receive any calls about the oil slick until Calvin Cook’s accident which occurred approximately three to four hours later, between midnight and 1 a.m., August 10, 1974. All parties agree that Collins Street was a busy thoroughfare. The oil was dark in color as was the asphalt street surface. Neither Cook nor his companion could see the slick as they slowly traveled the street with their headlights working properly. When the police officer arrived to investigate Cook’s accident, he had to be taken over and shown the oil slick.

The city cannot be held to have constructive notice unless the condition is in existence for such a length of time that the public authorities should have discovered it. While the issue is generally one for the trier of fact, it becomes a question of law only if all the evidence when viewed in its aspect most favorable to the plaintiff so overwhelmingly favors the defendant that no contrary finding based on that evidence could ever stand.

Considering that the street was well-traveled and patrolled by the police, yet no one noticed or reported any problems on Collins Street prior to the accident in question; considering the unconspicuous nature of the oil slick; considering the short time the spill remained on the street and considering the time of day was late evening, we believe that it was not improper for the trial court to find, as a matter of law, the city of Joliet, did not have actual or constructive notice of the oil slick on Collins Street prior to Cook’s motorcycle mishap.

For the reasons herein stated, the judgment of the Circuit Court of Will County is affirmed.

Affirmed.

BARRY, P. J., and STOUDER, J., concur.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BENJAMIN JAMES GIBSON, Defendant-Appellant.
    Fourth District
    No. 17604
    Opinion filed September 14, 1982.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas L. Brownfield, State’s Attorney, of Havana (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was charged with five counts of murder in violation of sections 9 — 1(a)(1) and 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(a)(1), (2)). A jury in the circuit court of Mason County returned a general verdict of guilty, and after denying post-trial motions, the court sentenced defendant to 25 years’ imprisonment.

On appeal, no question of reasonable doubt has been raised and therefore no extended recitation of the evidence presented at trial is required for the purposes of this opinion. Suffice it to say that we have read the record and find the verdict amply justified. Some of the evidence produced at trial and at the pretrial hearings will be reproduced in order that the issues raised may be better understood.

Defendant’s first, and in our opinion most significant, issue concerns the validity of the amended indictment under which he was tried. The original was handed up by a grand jury attending upon the circuit court of Tazewell County and alleged that the offense had occurred in that county. Later, the amended indictment was handed up by the Tazewell County grand jury and it alleged that the offense had occurred in Mason County. Defendant filed a motion to quash the indictment and a motion to dismiss. The court in Tazewell County heard the motion to dismiss and found it to be without merit insofar as it alleged lack of jurisdiction; the court did find that the motion has merit insofar as it alleged an improper place of trial; and under the provisions of section 114 — 1(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(f)) transferred the entire cause to Mason County. The Tazewell court declined to rule upon the motion to quash. An amended motion to quash was filed by defendant in the circuit court of Mason County and alleged in substance that the grand jury sitting in Tazewell County had exceeded its “jurisdiction” in handing up an indictment which stated the place of the offense to be in Mason County. The trial court denied the motion, holding that section 114— 1(f) was controlling.

The record before us does not contain the report of the grand jury proceedings on either the original or the amended indictment, although colloquy in the record indicates that the reports had been furnished to defendant by way of discovery. We can therefore only attempt to reconstruct from testimony given at the hearings on the motion to suppress evidence and on the motion for arrest warrant what was probably presented to the grand jury.

On March 30, 1981, the State’s Attorney of Tazewell County appeared before a judge of that county with an information charging defendant with the offense of murder; he asked leave to file the information and to present evidence in support of an arrest warrant. Leave was granted and a special agent from the Illinois Division of Criminal Investigation testified. He stated that for several months he had been investigating the disappearance of Stephen Butler and that the body of Butler had been discovered on a rural farm in Tazewell County; further, that other persons had stated that Butler and defendant were associates and had been in the Pekin area during December 1980. Other witnesses stated to the officer that defendant had confessed to them that he had killed Butler during the time that they were in the Pekin area. An individual whose name was Bow Payne, who was wanted for armed robbery in Tazewell County, had been apprehended in Houston, Texas. The officer testified that he had gone to Houston to return Payne to Illinois, and that Payne had advised him that he had assisted defendant in dumping the body of Butler into a cesspool at the farm in Tazewell County.

The court ordered the arrest warrant to issue and it was forwarded to the authorities at Reno, Nevada, where defendant purportedly was staying at the time. The Reno police apprehended defendant on March 31, 1981, on the Illinois warrant and placed him in a cell with an informant. According to the informant’s testimony at a hearing on a motion to suppress, defendant expressed surprise that Tazewell County authorities were involved since, according to defendant, the killing took place in Mason County in a State forest about four miles from defendant’s home, after which he took the body to a farm near Pekin and dropped it in a well.

On April 2, 1981, the grand jury of Tazewell County handed up a five-count indictment charging defendant with murder. The names of the witnesses endorsed on the instrument as being those who testified before the grand jury are essentially the same as those indicated by the officer at the time of hearing on the arrest warrant: Payne, who had assisted in the disposal of the body of Butler; Payne’s woman companion, who had seen defendant and Payne near the cesspool on the farm where she and Payne had been living; Jack and Betty Russell to whom defendant had admitted the killing.

It is thus apparent that at the time of the original indictment neither the State’s Attorney, nor any of the witnesses, knew with precision where the homicide had taken place; all that was known was that Butler’s body had been discovered in Tazewell County, the autopsy revealed that death had been caused by a gunshot wound, and that defendant had admitted the offense. There is no indication in the record that the State’s Attorney knew on April 2, 1981, that the offense had been committed anywhere other than Tazewell County. The informant’s testimony did not come until September 1981. It therefore follows that the Tazewell County grand jury was fully authorized to proceed as it did in April.

In People v. Polk (1961), 21 Ill. 2d 594, 597-98, 174 N.E.2d 393, 395, the supreme court said:

“Neither the Illinois constitution nor the legislature has attempted to define the powers of the grand jury. It has its origin in the common law and has existed for many hundreds of years. Its construction, organization, jurisdiction and method of proceeding were all well known features of the common law before the organization of the State of Illinois and have been recognized and adopted in all our constitutions and in legislation as it existed at the organization of the State. [Citation.] While the grand jury is a nécessary constituent part of a court having general criminal jurisdiction [citation], its powers are not dependent upon the court but are original and complete. Its duty is to diligently inquire into all offenses which shall come to its knowledge whether from the court, the State’s Attorney, its own members, or from any source, and it may make presentments of its own knowledge without any instruction or authority from the court. [Citation.]
Although we have stated a court cannot limit the scope of the grand jury’s investigation [citation], it is equally true that a grand jury has no right or jurisdiction to conduct an investigation into the personal affairs of citizens when there is no charge of a criminal offense involved, or where it otherwise lacks jurisdiction of the subject matter. [Citations.]”

Upon the discovery of a homicidal death with the corpus delicti located in Tazewell County, the grand jury of Tazewell County obviously had “jurisdiction” within the meaning of Polk. It would have been derelict in its duty to ignore the situation.

Since Polk was decided prior to the Constitution of 1970 and prior to the effective date of the Code of Criminal Procedure of 1963, we believe that the concept of jurisdiction no longer applies to a grand jury. Polk proceeded on common law principles. Article I, section 7, of the Illinois Constitution of 1970 provides in part: “The General Assembly by law may abolish the grand jury or further limit its use.” It follows that the grand jury is now a creature of statute.

The prior statutes under which Polk was decided (Ill. Rev. Stat. 1959, ch. 38, pars. 711 through .721; ch. 78, pars. 16 through 19) were extremely attenuated and did little, if anything, to alter the common law concepts of a grand jury and its authority and powers. Section 112 — 4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 112 — 4(a)) undertakes to define specifically the duties of the grand jury. More significantly, section 114 — 1(a)(5) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(a)(5)) providing for a motion to dismiss the charge, formerly a motion to quash the indictment, provides as a ground therefor that the grand jury acted contrary to article 112 of the Code and that substantial injustice resulted to the defendant. Further, in section 114 — 1(a)(7) (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(a)(7)), another basis for dismissal is that the county is an improper place of trial. The further provision of section 114 — 1(f) (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(f)) is that in lieu of dismissal on account of an improper place of trial, the court may transfer the cause to the proper venue.

The result of this constitutional and statutory scheme is that actions of a grand jury may amount to a statutory violation, but they are now removed from any concept of jurisdiction, that is, the power to act; and the violation may be rectified by the trial court. Under the facts of the instant case, the problem is one of venue only. .

We will not be understood as holding that the powers of a grand jury are Statewide. On the contrary, section 112 — 4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 112 — 4(a)) provides that the grand jury shall hear only evidence presented by the State’s Attorney. Section 5(1) of “An Act in regard to attorneys general and state’s attorneys” (Ill. Rev. Stat. 1979, ch. 14, par. 5(1)) limits a State’s Attorney to commencement and prosecution of indictments in which the people of his county may be concerned. In People v. Sears (1971), 49 Ill. 2d 14, 273 N.E.2d 380, the supreme court held that presentments to a grand jury should ordinarily come through the State’s Attorney. Although importuned on several occasions by successive Attorneys General, the General Assembly has consistently declined to create a Statewide grand jury system under its undoubted power to do so.

We concur in the general statement found in 38 Am. Jur. 2d Grand Jury sec. 28, at 974 (1968): “Generally, a grand jury has no power to investigate transactions or acts occurring wholly outside its county, not connected with law violations in its county or triable therein.” (Emphasis added.) Contrariwise, if evidence comes to the attention of the State’s Attorney and from him to the grand jury that an offense may have been committed within the county, it is their duty to proceed. If, as is apparent in the instant case, further investigation discloses that the origin of the offense was in another county, it is their duty so to indicate and allow the defendant to proceed under section 114 — 1 of the Code (111. Rev. Stat. 1979, ch. 38, par. 114— 1), if he so desires.

The circuit court of Tazewell County was correct in transferring the cause to Mason County and we find no abuse of discretion in the circuit court of Mason County in denying the motion to dismiss. Grand jury proceedings in Mason County were not necessary and would constitute a waste of judicial and prosecutorial time and effort as being duplicitous of what had already occurred in Tazewell County. This is the rationale of section 114 — 1(f) of the Code.

Defendant’s second issue concerns the refusal of the trial court to suppress statements made to a government informer. We have already alluded to this situation, but a fuller exposition is required to understand the problem. Defendant was taken into custody by the authorities of Reno, Nevada, on March 31, 1981. He was advised of his Miranda rights and placed in a cell in the city jail which was also occupied by George Shaw, who was serving a sentence for forgery. Shaw was being held there in lieu of the State penitentiary for his own safety since he had previously testified against several persons who were being held in the penitentiary. At the hearing on the motion to suppress, Officer Eubanks of the Reno police testified as follows:

“I told Mr. Shaw that a man was being placed up in his cell, which is felony hold cell, in the Reno City Police Department for murder on an out-of-state warrant and that it was over some type of cocaine deal and I asked him if mind if he would pay attention to anything the man might say regarding what had happened and Mr. Shaw agreed and then I reminded Mr. Shaw under what manner he might conduct himself as far as anything that Mr. Gibson might say and then—
PROSECUTOR: In what manner specifically did you remind Mr. Shaw of that?
EUBANKS: That he may not ask any direct questions, that he may not instigate any conversation regarding any criminal activity or anything that he was under arrest for. If the man talked to him or admitted or related or volunteered any information that he may talk back to the man in response to that in normal conversation manner, but he may not interrogate the man or perform an actual interview or actually seek or elicit any information from the man.”

According to Eubanks, Shaw did not receive any compensation for his cooperation. Shaw himself also stated that he received no compensation, but he did state that he received a “per diem” for coming to Illinois to testify; his further testimony makes clear that this was a ration allowance and plane fare.

During conversations between defendant and Shaw in the Reno city cell, defendant told Shaw that he was wanted for murder in Illinois and that he had killed a person named Butler; he further stated that he had killed Butler by shooting him through the heart with a .357 magnum and that the incident had occurred in a State forest about four miles from his home. Defendant also told Shaw that after the killing he took the body to a farm near Pekin and dropped it in a well with the assistance of another person. Sometime during the afternoon of March 31 defendant talked with Illinois authorities and afterwards told Shaw that it was all over and that “they had him.”

The trial court denied the motion to suppress Shaw’s testimony and it was presented to the jury at trial in essentially the same form as recited above.

We find the instant case to be virtually indistinguishable from United States v. Henry (1980), 447 U.S. 264, 65 L. Ed. 2d 115, 100 S. Ct. 2183. There the Supreme Court held that the statements to the informer were obtained in violation of the defendant’s right to counsel and were thus inadmissible. The court emphasized that the informer was a paid agent acting under government instructions and was also a convicted felon in the guise of a fellow prisoner. The informant’s failure to disclose his true identity and the defendant’s confinement increased the likelihood of an incriminating statement on the part of the defendant. The court also noted that one has a powerful psychiatric incentive to reach for aid while in confinement and that confinement “may bring into play subtle influences that will make [a defendant] particularly susceptible to ploys of undercover Government agents.” 447 U.S. 264, 274, 65 L. Ed. 2d 115, 124, 100 S. Ct. 2183, 2188.

In both Henry and the case at bar, a government informant, who was also a convicted felon, shared a jail cell with defendant. In both cases the identity of the informant was unknown to defendant. The informant apparently gained the confidence of defendant and elicited incriminating statements from him. In Henry, there was evidence that the informant received monetary compensation for his services, while in the present case, the informant had been compensated for his services as an informer in the past and admitted that he was not testifying against defendant “out of the goodness of [his] heart,” or because he wanted to see justice done. In fact, the conduct of the State in the instant case is perhaps even more reproachable than that of the FBI agents in Henry, for here the defendant was deliberately placed in the informant’s cell and the informant asked questions of the defendant to clarify his statements concerning the victim’s death, while there is no indication that similar conduct took place during the Henry defendant’s incarceration.

The admission of Shaw’s testimony was therefore clear error, but in view of other testimony in the case, it was only cumulative, and the error was then harmless. Chapman v. California 91967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

A few highlights from the other testimony will demonstrate the cumulative nature of Shaw’s testimony. Bow Payne testified that after he had assisted defendant in placing the body in the well, defendant stated to him, “Now you are an accessory to murder.” Payne’s further testimony was that after they had dumped the body and were driving back to Pekin, defendant took a revolver from behind the seat of the vehicle, emptied the shells, and threw them out of the window; there was only one empty casing; none of the other shells had been fired. At least three other witnesses testified as to defendant’s explicit and implicit statements that he had killed Butler. The evidence, taken together, overwhelmingly establishes defendant’s guilt beyond a reasonable doubt without Shaw’s testimony. Its admission was then harmless beyond a reasonable doubt.

Defendant next complains of three instances of prosecutorial misconduct. We have examined the record with care and find no validity, to the objections. None of them has been preserved in defendant’s post-trial motion and they are therefore waived. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Furthermore, the evidence in the case was not closely balanced, so the objections cannot be considered plain error. People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091.

Defendant’s final complaint is that the trial court overruled his objection and admitted evidence that at a time after the killing defendant waved a .357-caliber gun in the face of a witness and said, “I could blow you away now.” He maintains that this evidence was irrelevant and served only to prejudice him in the eyes of the jury.

The trial court has a great deal of discretion on the matter of relevancy and its decision will be disturbed only upon a showing of abuse of that discretion. (People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14.) The evidence here was clearly relevant since it established that defendant possessed a .357-caliber gun and the autopsy report showed that Butler may have been killed with such a weapon. The only potential problem with this evidence arises from the fact that the verbal threat portion thereof may also constitute evidence of another crime. Such evidence is inadmissible if utilized solely to demonstrate a defendant’s propensity to commit a crime. This type of evidence is, however, admissible if it sheds light upon a defendant’s intentions, family relationships, or the chain of circumstances surrounding the offense with which defendant is charged. (People v. Glidewell (1979), 78 Ill. App. 3d 734, 737-38, 397 N.E.2d 544, 546-47.) Therefore, this evidence, including the verbal threat, was relevant in that it tended to establish defendant’s reckless (as opposed to criminal) character, and described conduct which occurred in close proximity to the date of Butler’s murder.

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

Affirmed.

GREEN, P. J., and MILLS, J., concur.


author: JUSTICE LONDRIGAN

text:
    SERVICE FINANCE COMPANY, Plaintiff-Appellant, v. ALBERTA HAMMITT, Defendant-Appellee.
    Fourth District
    No. 17677
    Opinion filed September 16, 1982.
    Kathryn J. Mann, of Mann and Coonrad, of Winchester, for appellant.
    Elizabeth Takahashi, of Pittsfield, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Service Finance Company confessed judgment against the defendant, Alberta Hammitt, January 5, 1981, for $21,550 for the unpaid balance, plus interest and fees, on a note signed by Mrs. Hammitt and her husband. On June 29, 1981, the defendant filed a petition to vacate the judgment, asserting that her signature had been forged; the defendant’s affidavit to that effect accompanied the motion. The trial court granted the motion, and the plaintiff appeals. We conclude, however, that the trial court’s order is not an appealable one and therefore dismiss the appeal.

Although the defendant’s motion declared that it was being made under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), now section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), it is more appropriately classified as a motion to open a judgment by confession under Supreme Court Rule 276 (87 Ill. 2d R. 276). The correct classification of the motion is important because an order granting — or denying — relief requested under section 2 — 1401 is appealable by Supreme Court Rule 304(b)(3) (87 Ill. 2d R. 304(b)(3)), but an order granting a debtor’s motion made under Rule 276 to open a confessed judgment is not appeal-able (Whitely Estates Corp. v. Cappelletti (1969), 112 Ill. App. 2d 157, 251 N.E.2d 397).

A petition filed under section 2 — 1401 does not continue the proceeding in which the order or judgment complained of was entered but instead commences a new proceeding (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401(b)); furthermore, a section 2 — 1401 petition “does not affect the order or judgment, or suspend its operation” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401(d)). A debtor’s attack on a confessed judgment contemplates more than this, which is why “a judgment by confession no longer is ‘vacated’ or ‘set aside,’ but rather is ‘opened’ and the litigants are afforded the opportunity for a hearing on the merits on all claims and defenses involved” (Mangiamele v. Terrana (1976), 42 Ill. App. 3d 305, 307, 355 N.E.2d 765, 767). Therefore, when the trial court grants a Rule 276 motion, “[t]he original judgment stands as security, and all further proceedings thereon are stayed until the further order of the court, but if the defense is to a part only of the original judgment, the judgment stands as to the balance and enforcement may be had thereon” (87 Ill. 2d R. 276).

Kankakee Concrete Products Corp. v. Mans (1980), 81 Ill. App. 3d 53, 400 N.E.2d 637, illustrates the distinctions between petitioning under section 2 — 1401 to vacate a judgment and moving under Rule 276 to open one and provides a rare example of when section 2 — 1401 is the proper method for attacking a judgment by confession. In that case the defendant’s petition, which the trial court granted, alleged that he had signed the confessed note in a representative capacity rather than individually. The appellate court observed:

“In the instant case it is evident the defendant treated the motion as a motion to vacate the judgment by confession and not as a motion to open pursuant to Rule 276. The defendant was not seeking to open the judgment for the purpose of obtaining a trial on the merits. The substantive relief sought by the defendant was the vacation of the judgment on jurisdictional grounds.” (81 Ill. App. 3d 53, 56, 400 N.E.2d 637, 639.)

The note itself showed that the defendant had signed as a representative.

Although the defenses in Mans and here are facially similar, the methods of proof are different, for the validity of Mrs. Hammitt’s signature cannot be determined by examining only the note. Indeed, the parties’ lawyers contemplated a trial on the merits, for at the conclusion of the last hearing before the trial judge they discussed when they would be ready for trial. Mans is perhaps best explained as an instance of judicial economy.

The defendant’s petition or motion here does not fit within Mans, which marks an exception to the adjuration of Burkett v. Finger Lake Development Corp. (1975), 32 Ill. App. 3d 396, 403, 336 N.E.2d 628, 634, that confessed judgments should be attacked by Rule 276 motion in “all ordinary cases.” This is an ordinary case and therefore should be dealt with under Rule 276, which makes the appeal premature.

Appeal dismissed.

WEBBER and TRAPP, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRUCE A. WEBB, Defendant-Appellee.
    Fourth District
    No. 4—82—0085
    Opinion filed September 16, 1982.

      Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield (John M. Wray, law student, of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Under the authority of Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)) the State appeals an order of the circuit court of Vermilion County which suppressed evidence.

Since this case possesses an anomalistic and unconventional history, a brief recapitulation of prior proceedings is appropriate. Defendant was stopped by a police officer in April 1980; the stop led to a search of defendant’s vehicle, an arrest of defendant, and a subsequent charge of possession of controlled substances, cocaine, and cannabis. A motion to suppress the evidence obtained as a result of the search was filed and heard in the circuit court of Vermilion County by Judge Paul Wright, who allowed the motion and suppressed the evidence.

The State appealed the suppression order to this court. We reversed in an unpublished order. (People v. Webb (1981), 92 Ill. App. 3d 1200 (Rule 23 order).) For the purposes of this opinion, the significant portion of that order stated:

“Therefore, the oral order of the circuit court of Vermilion County suppressing evidence is reversed and the cause is remanded for further proceedings.
Reversed and remanded.”

The accompanying mandate issued by the clerk of this court stated in pertinent part:

“It is the decision of this court that the order on appeal from the circuit court be REVERSED and the cause be REMANDED to the Circuit Court for the Fifth Judicial Circuit, Vermilion County for such other proceedings as required by the opinion or order of this court, a copy of which is attached hereto.”

Upon remand, a hearing was convened before Judge James Robinson. The State argued that our order foreclosed any further evidentiary hearing; defense counsel argued contra, that a hearing de novo on the entire matter was required. Judge Robinson noted:

“Having determined under the unusual circumstances of this case, and by that I mean merely the fact I was not the judge that heard the original hearing, nor is he presently assigned to this court, nor was I able to legally interpret the remand order as a mandatory direction to deny the motion to suppress on the basis of the Appellate Court Order, that record is already made, I elected to proceed anew with a new evidentiary hearing.”

The hearing then proceeded and resulted in a second order suppressing evidence, this being the order now under appeal. Since we have concluded that the trial court erred in holding the de novo hearing, no recitation of the facts adduced at that hearing is required.

In our opinion the instant case is controlled by what is commonly called the doctrine of the law of the case. This doctrine holds that when a judgment of a trial court is reversed and remanded, the trial court is bound by the reviewing court’s resolution of the questions presented to it and must proceed in a manner consistent with the reviewing court’s directions. (National Boulevard Bank v. Department of Transportation (1979), 78 Ill. App. 3d 168, 397 N.E.2d 91.) The parties agree on the statement of the doctrine, but they part company on its application. The State also argues collateral estoppel. We find it inapplicable, since it applies to relitigation at the trial level prior to appeal.

Defendant argues that the law of the case is open to interpretation in the case at bar because our order and the mandate accompanying it do not direct the trial court to proceed to trial nor do they specifically preclude another suppression hearing. While it is true there is no direction to proceed to trial, we find that to be implicit in our order and mandate. The nature of the order is such as to foreclose the subject of suppression of evidence. Merrill v. Drazek (1978), 58 Ill. App. 3d 455, 374 N.E.2d 792.

In a case of this nature, that is, an interlocutory appeal, this court of necessity prepares a mandate both in specific and in general terms. We have no way of knowing what other motions or proceedings may be pending in the court below and a direction to proceed to trial would foreclose any other pretrial maneuvering, including some disposition other than trial. On the other hand, the precise question presented, that is, probable cause to justify the search, was specifically ruled upon and under the law of the case this ruling permits no deviation.

In Webster’s Dictionary of Synonyms 331 (1st ed. 1951) it is stated:

“[FJurther etymologically implies onwardness or an advance or an addition, as in movement or progression, not only in space, but in time, quantity, degree, or the like; ***.” (Emphasis in original.)

Reduced to simpler terms, this definition says, “Go forward, don’t back up,” and this is exactly what a remand for further proceedings means. As was said in Roggenbuck v. Breuhaus (1928), 330 Ill. 294, 297-98,161 N.E. 780,781:

“After a judgment is reversed and the cause is remanded the inferior tribunal can take only such further proceedings as conform to the judgment of the appellate tribunal. If specific directions are given nothing can be done except carry out those directions. If no specific directions are given it must be determined from the nature of the case what further proceedings will be proper and not inconsistent with the opinion. It is not required that specific directions shall be stated in an order reversing a judgment and remanding a cause, and it is the duty of the court to which the cause is remanded to examine the opinion and proceed in conformity with the views expressed in it.”

As applied to the case at bar, this principle means that the order suppressing evidence was specifically reversed; the evidence was admissible; and the case was returned to the trial court to pick it up and go forward from that point in whatever fashion seemed appropriate. We do not find our prior order, nor the mandate, ambiguous or subject to interpretation.

Defendant, however, argues further that at the time of the first appeal this court considered evidence which was not considered by the trial court and based our conclusions upon that evidence. From this premise, he argues that a new suppression hearing was warranted in order that such evidence could be considered at the trial level. We disagree.

This contention arises from the fact that in our prior Rule 23 order we made reference to lighting conditions at the time the defendant was stopped and his vehicle searched. We indicated that in addition to other conditions the record disclosed that the officer shone his flashlight into the passenger compartment. This information was contained in certain police reports which were part of the record.

Defendant contends that the police reports were introduced only with reference to the inventory search which was made of the vehicle. The record does not so indicate; no restriction was placed upon them. The rule is that when no limiting motion is placed upon evidence received into a record, that evidence is admitted generally. (Storm v. Brown (1973), 15 Ill. App. 3d 29, 303 N.E.2d 42.) Moreover, “upon review the entire record may be considered to determine whether the officers made the arrest and seizure with probable cause.” People v. Dennison (1978), 61 Ill. App. 3d 473, 477, 378 N.E.2d 220, 223.

We also point out that the lighting conditions were not the basis of our Rule 23 order. The fundamental flaw in the first proceeding was a misapplication and misapprehension by that trial judge of the doctrine of Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975. The prior order of suppression was reversed on a legal issue, not on a matter of fact.

Our prior order became the law of the case, and it was error for the trial court to hold a de novo hearing and enter a new order of suppression. That new order is a nullity and it is vacated and set aside. The cause is again remanded for further proceedings.

Vacated and remanded.

LONDRIGAN and TRAPP, JJ., concur.


author: JUSTICE HARRISON

text:
    DAVID D. BEAN, Plaintiff-Appellee, v. VOLKSWAGENWERK AKTIENGESELLSCHAFT OF WOLFSBURG, GERMANY, et al., Defendants-Appellants.
    Fifth District
    No. 81—544
    Opinion filed September 21, 1982.

      Pope and Driemeyer, of Belleville, and Herzfeld & Rubin, of New York, New York (W. Thomas Coghill, of counsel), for appellants.
    Phillip J. Kardis and Robert S. Forbes, both of Alton, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant Volkswagen (hereinafter referred to collectively as VW) appeals from a $718,000 jury verdict awarded to plaintiff David D. Bean for injuries he sustained in a collision between his 1965 Volkswagen microbus van and a 1972 Ford Maverick. Plaintiff suffered severe and permanent injuries to his feet and lower legs as a result of colliding head-on with the Maverick at a high estimated closing speed. The driver of the Maverick is not a party to this litigation. For the reasons hereinafter stated, we affirm in part and reverse in part the judgment of the circuit court of Madison County.

Defendant requests a directed verdict or, alternatively, a new trial. The standard to be applied to the directing of verdicts is, when viewing all the evidence in its aspect most favorable to the opponent, it so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 509-10, 229 N.E.2d 504.) On a motion for a new trial, the court must weigh the evidence and set aside the verdict, ordering a new trial if the verdict is contrary to the manifest weight of the evidence. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32.) On appeal, defendant has failed to meet either evidentiary standard of review. We will address each point raised.

First, defendant contends that it was entitled to a directed verdict because it had no legal duty to design a crash-proof vehicle or to design against unreasonable risk of injury. Plaintiff responds that VW failed to use reasonable care in the design and manufacture of its microbus so as to eliminate any unreasonable risk of injury to David Bean. Plaintiff’s claim is based on the “crash-worthiness” or “second collision” doctrine. As noted in Caiazzo v. Volkswagenwerk A.G. (2d Cir. 1981), 647 F.2d 241, 243, “crash-worthiness” means the protection that an automobile affords its passengers against injury or death as a result of a collision. The term “second collision” refers to the collision between a passenger and an interior part of the vehicle following the initial impact. Under this theory, the plaintiff does not allege that the particular design defect caused the accident. Rather, he alleges that the defect enhanced those injuries he would already have sustained by virtue of the initial impact. The issue before us, then, is this: does a manufacturer have a duty to design a motor vehicle to avoid subjecting its users to unreasonable risks of harm in a situation in which a faulty design, although not the cause of the accident, produces or enhances the injury received in the accident? See Huff v. White Motor Corp. (7th Cir. 1977), 565 F.2d 104, 106.

There are a plethora of “second collision” cases which have uniformly held that, although a manufacturer has no duty to design an accident-proof vehicle, it does have an obligation to “design and construct its product to be reasonably fit for its intended use and to be reasonably free from hidden defects which would render it unsafe for that use.” (See Huff v. White Motor Corp. (7th Cir. 1977), 565 F.2d 104, 110-11, and cases cited therein.) It has therefore been acknowledged that the sole function of an automobile is not just to provide a means of transportation; it is to provide a means of safe transportation. (Larsen v. General Motors Corp. (8th Cir. 1968), 391 F.2d 495, 502.) The jurisdictions agree that a manufacturer should be held to a reasonable degree of care in the design of its vehicle, consonant with the state of the art, so that the effects of accidents are minimized. Thus, the jury, in deciding whether a manufacturer has breached its duty, must take into account not only the welfare of the general public and the harm to the individual plaintiff, but also the industry’s market goals, the utility of the vehicle, and the range of the vehicle’s intended use. Dreisonstok v. Volkswagenwerk (4th Cir. 1974), 489 F.2d 1066, 1073.

On appeal, defendant argues that it had no duty to design a vehicle which would have protected plaintiff from a head-on collision at such a high speed. It insists that “nothing short of a James Bond catapult-parachute mechanism” would have saved Mr. Bean from sustaining severe injuries. Plaintiff, however, pointing out that collisions are foreseeable, maintains that VW should have researched and discovered the dangerous propensity of its microbus van to trap the legs of its driver between the metal seat support structure and the front of the vehicle during a head-on collision. Tests to determine and prevent risks incurred in high speed collisions are commonplace in the automobile industry. In addition, plaintiff’s expert introduced an alternative design which he declared would have reduced the danger and eliminated the type of fractures which Mr. Bean sustained. The expert testified that such a design was technologically feasible in 1965. Defendant failed to sufficiently rebut these assertions. Consequently, viewing the evidence most favorable to Mr. Bean, we find that it does not overwhelmingly favor VW. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 509-10.) Under these circumstances, a directed verdict for Volkswagen would be inappropriate.

Defendant next argues that it was entitled to a directed verdict because plaintiff failed to prove any casual connection between his injuries and the seat support structure of the van. It points out that plaintiff failed to show what injuries would have occurred if an alternate design had been employed. Defendant also insists that plaintiff had the burden of apportioning, or of segregating, those injuries which occurred when his legs were caught between the front of the van and the seat support structure and those injuries which can be attributed to the initial impact with the dashboard of the van.

This is the problem with the litigation of crash-worthiness cases. Except for the instance in which the injuries caused by the design defect are clear and distinct from those caused by the initial collision, the evidence will necessarily include a speculative determination of what actually happened at the time of the collision. (Caiazzo v. Volkswagenwerk (2nd Cir. 1981), 647 F.2d 241, 245.) In this suit, the jury was confronted with a complex chain of causation. Plaintiff’s theory is that the defect which caused his injuries was the sheet metal seat support structure behind his feet, ankles, and lower legs. He maintained that, but for this structure, the injuries to his legs would not have occurred. He further maintains that the forward position of the driver in the van allowed the setting up of a pincer or viselike closing movement between the front of the van and the solid sheet metal structure under him. On cross-examination of plaintiff’s expert, the plaintiff’s theory was clarified. The expert explained that the accident involved not two but three impacts. The first impact occurred when the two vehicles collided. The second impact occurred when the occupants crashed forward into the dashboard and steering wheel of the van. The third impact occurred when the passenger seat came forward and crushed the back of the plaintiff’s legs in a pincer movement. The expert testified that, in his opinion, the design of the front seat caused the particular spiral fractures for which plaintiff sought recovery, and that these were incurred as a result of the third impact. He stated that the use of seat belts would not have mitigated the injuries. He then detailed an alternate design and assured the court that it was technologically feasible.

In response to defendant’s claim that plaintiff did not apportion his injuries, plaintiff emphasizes that he already apportioned the injuries when he “judiciously selected only those injuries for jury consideration that would be amply supported by the evidence as having been caused by the defect in question.” In other words, it is plaintiff’s position that all of his leg injuries below the knees occurred as a result of the third impact and can be traced to the defectively designed seat. He did not make a claim for extensive injuries above the knees (including fractured femur, nasal bone, and one of the phalanges of the hand) which may have resulted from the initial impact. Instead, he confined his claim to those injuries that were directly attributable to the third impact. He therefore concludes that the task of apportioning was accomplished by him at the pleading stage. We find that there was adequate evidence to support such a theory. In addition, there was enough testimony linking the injuries with the design defect for us to conclude that none of the claimed injuries below the knees would have occurred if VW had employed the alternate design. Again, viewing all the evidence most favorable to David Bean, it does not overwhelmingly favor defendant Volkswagen. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 509-10.

With respect to this issue, defendant also contends that the expert was not competent to testify about the physical or medical consequences of the head-on collision. This contention, however, goes to the weight to be accorded the expert’s testimony. (Nanda v. Ford Motor Co. (7th Cir. 1974), 509 F.2d 213, 221.) The record shows that both parties belabored the issue of the expert’s qualifications in the presence of the jury. After he was declared competent to testify as an expert by the trial judge, the jury was then free to evaluate his conclusions relative to his various fields of expertise. Although his testimony was, to a degree, weakened on cross-examination and later contradicted by the defendant’s own experts, still it was for the jury to accord it the proper weight. Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 424, 328 N.E.2d 301.

The third issue is whether the trial court erroneously overruled defendant’s objections to the use of the words “crush injury” in a hypothetical question to plaintiff’s expert. Defendant maintains that the trial court’s tacit condonation of plaintiff’s use of the word “crush” and its various derivatives throughout the trial allowed the jury to base their verdict on a false assumption, i.e., that plaintiff’s treating physician had testified that plaintiff’s injuries were crush type injuries when, in fact, he had not so testified. From defendant’s perspective, it is significant that the jury made this assumption because it would indicate that plaintiff had proved a crucial element of his case. According to defendant, since plaintiff’s theory was that his legs were caught between the front of the van and the defectively designed seat, then plaintiff had to show that his injuries were those normally incurred from this type of trauma. Defendant, of course, maintains that plaintiff’s physician never indicated that Mr. Bean sustained crush injuries. However, upon reading the record, we discovered ample evidence from which the jury could have drawn that conclusion. The physician testified that, with respect to the fifth metatarsal of the left foot, it could have been the result of a crushing type force. Several witnesses testified that the plaintiff’s legs were “wedged” or “smashed,” or that the front of the van was “mashed up against his legs ***.” David Bean himself described his left foot as it looked to him in the hospital after the accident by saying it was actually “rounder than your wrist.” He stated that the foot looked like it was too narrow to have that many toes sticking on the end of it. The jury heard testimony of this nature from several witnesses. Thus, it was reasonable for plaintiff’s counsel to use the words “crush injury” in a hypothetical question describing plaintiff’s injuries.

In any event, we do not think it is significant whether the use of the term “crush injury” was objectionable. Plaintiff’s theory was not entirely based upon proof that the injuries were crush injuries. He also offered sufficient evidence that the injuries were “spiral fractures” and that they were “rotational” or “twisting” in nature. Plaintiff’s physician demonstrated by snapping a piece of chalk in two. He described the resulting break as typical of the type of fracture which would be sustained when a twisting force is applied. Plaintiff’s expert stated that the twisting force was due to the sheet metal support structure coming forward to collide with the front of the van. Thus, when weighing all the evidence, we do not think the verdict was contrary to the manifest weight of the evidence. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310.) The trial court’s acquiescense in plaintiff’s use of the descriptive term “crush” was harmless and does not warrant a new trial.

Defendant next objects to Instruction No. 3, claiming that it invited the jury to speculate as to the proximate cause of plaintiff’s enhanced injuries rather than to rely on expert testimony. Instruction No. 3 merely stated that a fact may be proved by circumstantial evidence. It then defined circumstantial evidence as “the proof of facts or circumstances which give rise to a reasonable inference of the truth of the facts sought to be proved.” We do not read this broad definition as an invitation to the jury to speculate, nor do we see how it would undermine their obligation to listen to and evaluate expert testimony. The objection is not well taken.

Likewise, their challenge to Instructions No. 11 and No. 14A are groundless. Defendant maintains that these instructions misled the jury into believing that VW could be held liable for all of plaintiffs injuries rather than for his enhanced injuries alone. In short, it objected because the instructions did not require the jury to apportion damages. We need not dwell on this challenge because our earlier discussion of apportionment, and our conclusion that plaintiff already apportioned his injuries, applies here as well. It is plain that the jury adopted plaintiff’s approach, believing that the design defect was responsible for all the injuries to plaintiff’s lower legs and that they occurred at the time of the third impact.

Defendant next claims that the court should have granted a mistrial because of three prejudicial newspaper articles which appeared during the course of the litigation. However, the trial judge offered the defendant an opportunity to conduct further voir dire of the jurors to determine if any of them had read the articles. The defendant chose not to do so. Consequently, he cannot now claim he was denied a fair trial. (See In re Estate of Rupinski (1970), 131 Ill. App. 2d 393, 399, 266 N.E.2d 190.) Further, this is not a situation in which facts outside the record were brought to the jury’s attention. The articles were mere attempts to summarize the evidence offered at trial and to report facts already in evidence. As such, we cannot say the trial court abused its discretion by denying defendant’s motion for a mistrial. McKasson v. Zimmer Manufacturing Co. (1973), 12 Ill. App. 3d 429, 437, 299 N.E.2d 38.

The defendant also argues that it was an abuse of discretion for the trial judge to refuse defendant’s amendment to its post-trial motion. The court entered judgment for plaintiff on May 28, 1981. Defendant filed its post-trial motion on June 24 and a hearing was set for August 3. On that date, defendant filed a motion to amend its post-trial motion in order to allege that a request had been made by a jury member during their deliberations. The bailiffs apparently never communicated the request to the judge. Defendant maintains that this constituted reversible error. The court allowed the amendment, but at the hearing it reserved a final ruling until both parties had filed supportive affidavits. Defendant then filed an affidavit of the juror who had made the request. Plaintiff filed counteraffidavits of the bailiffs who had been on duty. The bailiffs stated that they did not recall the event in question. Plaintiff also filed an affidavit from the juror who made the request. This affidavit stated that defense counsel had contacted her very soon after the verdict was entered, early in June. Plaintiff argues that defense.counsel was aware of the basis for his amendment at that time. Thus, we agree with plaintiff that defendant could easily have included the amended portion in his original motion filed on June 24. Defendant does not explain why he waited until August 3 to bring the matter to the court’s attention. In addition, the trial judge, in whose discretion it would have been to grant the juror’s request if it had been communicated, determined that the bailiffs’ oversight did not harm defendant nor did it deprive him of a fair trial. We must agree. Thus, the trial judge did not abuse his discretion by striking defendant’s amendment to his post-trial motion. See City of Chicago v. Greene (1970), 47 Ill. 2d 30, 33, 264 N.E.2d 163.

The defendant’s next contention of error is that the verdict of the jury is grossly excessive. We are reluctant to disturb the amount of the award absent a showing by defendant that the jury acted from passion or prejudice. (Montgomery v. Terminal R.R. Association (1979), 73 Ill. App. 3d 650, 655, 392 N.E.2d 77.) No such showing was made.

The verdict, will, however, be reduced in accordance with the recent supreme court case Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill. 2d 375. There, the court held that a jury should no longer be instructed to consider the nature, extent and duration of the plaintiff’s injury as a separate and compensable element of damage in addition to other elements of damage. Thus, that portion of the judgment which was attributable to the nature, extent and duration of the injury, $176,000, is hereby reversed.

We have reviewed the record, and found that defendant’s remaining contentions have no basis and, therefore, do not merit discussion. (Monroe County Water Cooperative v. City of Waterloo (1982), 107 Ill. App. 3d 477, 482, 437 N.E.2d 1237.) Accordingly, we affirm in part and reverse in part the judgment of the circuit court of Madison County.

Affirmed in part, reversed in part.

JONES and KASSERMAN, JJ., concur.


author: PER CURIAM:

text:
    JAMES G. YORK et al., Plaintiffs-Appellees, v. JOHN C. STIEFEL, Defendant-Appellant.
    Third District
    No. 81-89
    Opinion filed September 23, 1982.

      Lyle W. Allen and Gary D. Nelson, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.
    Richard D. Price, Jr., of Cassidy, Cassidy, Mueller & Price, of Peoria, for appellees.
   PER CURIAM:

Plaintiffs, James and Janis York, and Lawrence and Donna LaCroix, brought an action at law against the defendant, John C. Stiefel, an attorney, to recover damages allegedly arising from the legal malpractice of the defendant. A circuit court jury of Peoria County returned verdicts in favor of Donna LaCroix ($15,000), James York ($5,000), and Janis York ($5,000), but was unable to reach a verdict as to plaintiff Lawrence LaCroix. The trial court entered judgment on the three verdicts and declared a mistrial as to the remaining plaintiff, who ultimately moved for a voluntary dismissal of his complaint, which was granted.

On appeal the defendant presents two issues for review: (1) whether the expert testimony elicited by plaintiffs was sufficient to sustain their burden of proving that defendant breached the standard of care of an attorney and whether the damages claimed by plaintiffs were the proximate result of legal malpractice, and (2) whether the evidence established the existence of an attorney-client relationship between plaintiffs Donna LaCroix and Janis York and the defendant.

The factual context from which the cause of action arose is as follows.

In 1974, plaintiffs Lawrence LaCroix and James York consulted a Chicago attorney, John Stiefel, with regard to the purchase of a Porsche-Audi dealership in Peoria, Illinois. Stiefel had become acquainted with York in 1972 when York was selling cars for another Porsche-Audi dealership in Winnetka, Illinois. York suggested Stiefel as an attorney to his partner, LaCroix, when counsel was needed to organize their business.

Stiefel suggested a Subchapter S corporate arrangement and performed the legal work to incorporate Countryside Porsche-Audi, Inc. (hereinafter referred to as Countryside). Lawrence LaCroix was president and handled the bookkeeping, bank loans, payroll and general administrative tasks of the corporation. York served as vice-president and was in charge of marketing new and used automobiles. Stiefel served as assistant secretary and registered agent for the corporation throughout its existence. Neither Donna LaCroix, Lawrence’s wife, nor Janis York, James’ wife, were employed by the corporation or officers of the corporation.

The corporation was capitalized by means of a capital loan of $50,000 from York’s father, a capital loan from the Jefferson Bank (hereinafter Bank) of $75,000, and a floor plan agreement with the Bank. The limit on this floor plan loan was set at a later date at $275,000. Plaintiffs Lawrence LaCroix and James York each paid $500 in return for 500 shares of $1 par value stock.

The $75,000 capital loan from the Bank to Countryside was accompanied by a guarantee from the Small Business Administration (hereinafter SBA), which assured the Bank a repayment of any unpaid balance which might be forfeited by the financial failure of Countryside. The SBA obtained the personal guarantees of all four plaintiffs to reimburse the SBA for any funds which it might expend by- virtue of a default by Countryside.

The floor plan loan to Countryside enabled the company to maintain a steady supply of inventory. The Bank paid the manufacturer or distributor for the cars ordered by Countryside and, in return, took a security interest in each vehicle. When a car was sold, Countryside was obliged to remit to the Bank the amount of its secured interest. Failure to remit these funds following a sale created a potential criminal liability for corporate officers under section 9 — 306.01 of the Uniform Commercial Code, a Class 3 felony (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 306.01(2)(3)(4)). Penalties could include an order for restitution and a jail sentence. There was no personal guarantee from the individual plaintiffs to the Bank on the floor plan loan.

By virtue of the cross-collateral clauses in both loans from the Bank to Countryside, the Bank would, in thé event of a default, allocate the proceeds from the sale of collateral to the unguaranteed loan first, in order that any unpaid and unreimbursed principal would be returned to the Bank under the SBA guarantee.

Stiefel did not participate in negotiations for the loan from York’s father, the $75,000 capital loan from the Bank, the SBA guarantee, or the increase in the floor plan loan. Stiefel did assist in the negotiations concerning .the initial floor plan loan, although he was not present when the final documents on that loan were signed.

With the initial capital loans, the assets for the new dealership were purchased from the Bank which had held them as principal creditor of the previous Porsche-Audi dealer, which had failed in the same market.

Stiefel counseled the plaintiffs as individuals prior to their move to Peoria in 1974. In early 1973 he represented York on a traffic ticket. He also assisted the LaCroix’ and York’s in the sale of their houses prior to their move to Peoria in 1974. After the plaintiffs had taken up residence in Peoria, he never spoke to Donna LaCroix or Janis York and spoke to LaCroix and York only as to matters relating to Countryside.

In January 1976, the Bank discovered that Countryside was selling secured vehicles without remitting to the Bank the value of its secured interest. Neither LaCroix nor York disputed that they had sold cars without honoring their trust agreement with the Bank. On February 6, 1976, the Bank, having already frozen the personal savings accounts of the plaintiffs, sent a personal representative to Countryside’s place of business and advised that the Bank intended to foreclose Countryside at the close of business that day unless it received personal assurances in the form of second mortgages on the homes of LaCroix and York. Lawrence LaCroix called John Stiefel and arranged to meet with him in Chicago that day. He saw Stiefel immediately upon arriving at his offices and was with him approximately eight hours.

Following extensive phone conferences with Bank personnel and the Bank attorney, Stiefel recommended to LaCroix that he execute the second mortgage and release his personal savings accounts to the Bank. He gave the same advice to York .via the telephone. He did not advise either Donna LaCroix or Janis York to sign the second mortgages or release their personal savings accounts.

Stiefel testified that he was advised by a Bank officer that the Bank possessed a personal guarantee on the floor plan loan. The Bank attorney mentioned to Stiefel on the telephone that criminal exposure was possible for both LaCroix and York and that the Bank wanted to prosecute. Mr. Young, the Bank attorney, corroborated that he had informed Mr. Stiefel of the possible criminal exposure of LaCroix and York, but could not remember whether he had or had not indicated the desire to prosecute. Young did not recall having said that the Bank had a personal guarantee on the floor plan, nor did he recall overhearing Bank personnel make such a representation.

LaCroix confirmed that he was advised of his possible criminal exposure for selling cars out of trust and that Stiefel could not find the copies of the personal guarantees the Bank was claiming it had, although he thought he recalled it. LaCroix inquired of the feasibility of a Chapter 11 bankruptcy and testified that Stiefel advised him that the Bank, as secured creditor, would not allow such a reorganization. Attorney Paul Cation, testifying as an expert witness, confirmed that that was correct, and no testimony was offered that it was incorrect.

Stiefel testified that in his judgment, the advice he gave was the best alternative for LaCroix and York, given the possibility of criminal charges being filed against them as officers of a corporation which could have resulted in jail terms plus restitution of the amount withheld from the Bank. This remedy allowed Countryside to continue operating in a normal fashion for an additional 30 days while they sought substitute financing and enabled them to sell assets in a non-distress situation, thereby providing them an opportunity to realize a greater profit. Both LaCroix and York wanted to continue to operate the dealership.

Stiefel further testified that executing these documents may have lessened the economic blow to LaCroix and York since the Bank, by its ability to allocate proceeds from the sale of collateral, could have applied all available funds to satisfy the unsecured floor plan loan, leaving the balance of the SBA loan to be repaid to the SBA by the plaintiffs personally pursuant to their personal guarantee. This procedure was confirmed by the testimony of attorney Cation as good advice to the client and what a reasonably careful lawyer would have advised under the circumstances.

Second mortgages were executed by the plaintiffs for $54,600 representing the amount Countryside was out of trust and overdrawn on its corporate bank account. This constituted a paper transaction by which the Bank loaned the deficiency to the individuals. The Bank was secured by the mortgages and the deficit was contributed to the capital of the corporation, allowing the corporation to meet its obligations. Neither York nor LaCroix disputed the fact that they had sold cars without honoring their trust agreement. Subsequent attempts by Countryside to obtain refinancing were unsuccessful, and the Bank foreclosed on the second mortgages executed by plaintiffs.

The plaintiffs filed suit alleging that the legal malpractice of John Stiefel had proximately caused them damage in that they personally assumed a corporate obligation.

At trial, plaintiffs presented expert testimony of Peoria attorneys James Brannon and Hollis Benjamin in support of their claim. Defendant presented Peoria attorney Paul Cation as an expert witness for the defense.

Attorney Brannon testified, in response to a hypothetical question, that it was poor judgment to render advice without consulting actual documents relating to personal guarantees. He testified that it was not good judgment to advise that bankruptcy was not an available remedy to plaintiffs in the absence of experience in that field. He felt that some other course of conduct should have been taken by the lawyer. He further testified that before considering bankruptcy, the desire of the debtors to liquidate their business themselves was a valid factor to consider in recommending a course of action.

Hollis Benjamin testified that in his opinion the attorney violated the prevailing standard of care in failing to consult documents and in relying on his memory in giving advice on those documents. He was unable to state, however, that had such an examination of the documents occurred it would have made any difference. He further testified that the question of what advice should be given in these circumstances is a matter of judgment.

Paul Cation testified in response to a hypothetical question that the lawyer exercised a reasonable degree of care and skill in advising his client and that he was not negligent in giving the advice and consultation; that bankruptcy would not have helped the individuals under any circumstances; and that it was not negligence to advise them to secure the amount they were out of trust and overdrawn by a second mortgage on their homes. He testified that even the possibility of a criminal record for one’s clients would be a paramount consideration for the careful attorney in rendering advice. In addition, Cation stated that the personal guarantee on the SBA loan jeopardized their personal assets due to the Bank’s ability to apply proceeds from the sale of assets to pay off its own obligations first.

Turning to the issue presented for review, we believe the initial inquiry must resolve the question of the scope of appellant’s representation of all the plaintiffs. On appeal it is alleged that the plaintiffs failed to establish an attorney-client relationship vis-a-vis Janis York and Donna LaCroix on the one hand and the appellant on the other.

The initial element in a cause of action for negligence is to show the existence of a duty running from the defendant to the plaintiff. (Mick v. Kroger Co. (1967), 37 Ill. 2d 148, 224 N.E.2d 148.) In attempting to establish a claim for legal negligence, this duty may be shown by establishing the existence of an attorney-client relationship with respect to the subject matter of the services performed by the attorney. (Bloomer Amusement Co. v. Eskenazi (1979), 75 Ill. App. 3d 117, 394 N.E.2d 16.) The attorney-client relationship is consensual and arises only when both the attorney and the client have consented to its formation. The attorney-client relationship is essentially one of principal and agent to which the general rules of agency law apply. (Westinghouse Electric Corp. v. Rio Algom Ltd. (N.D. Ill. 1978), 448 F. Supp. 1284; Flight Kitchen, Inc. v. Chicago Seven-Up Bottling Co. (1974), 22 Ill. App. 3d 558, 317 N.E.2d 663.) The client must manifest his authorization that the attorney act on his behalf and the attorney must indicate his acceptance of the power to act on the client’s account. Westinghouse Electric Corp. v. Rio Algom Ltd. (N.D. Ill. 1978), 448 F. Supp. 1284, 1300, quoting from the Restatement (Second) of Agency sec. 15 (1958).

The breadth of the duty from the attorney to the client is measured by the representation sought by the client and the scope of the authority conferred on the attorney by the client. Schmidt v. Hinshaw (1979), 75 Ill. App. 3d 516, 394 N.E.2d 559.

The duty to exercise due care and diligence incident to the attorney-client relationship terminates when the attorney-client relationship terminates (Dolce v. Gamberdino (1978), 60 Ill. App. 3d 124, 376 N.E.2d 273), or when the services for which the attorney was retained are completed (People v. Wos (1946), 395 Ill. 172, 69 N.E.2d 858).

In the case at bar, the one and only time Stiefel represented Donna LaCroix or Janis York was in 1974 when they were selling their homes to move to Peoria. That relationship terminated upon completion of the transactions.

Donna LaCroix testified that she had never spoken with Stiefel and that the Bank officer had interpreted the documents for her on February 6, 1976, when she had questions. Janis York had met John Stiefel on only one occasion at lunch while they lived in Chicago, and couldn’t recall any legal topics during the conversation. She also relied on the Bank officer for answers to any questions she may have had concerning the documents evidencing the second mortgage. It is undisputed that John Stiefel never advised these women to sign nor was he ever asked by them concerning the wisdom of executing those documents.

Stiefel did not represent Donna LaCroix or Janis York when they purchased their homes in Peoria. He did not represent them when they signed a personal guarantee on a SBA loan being taken out by their husbands. They did not call him when their accounts were frozen prior to February 6, 1976. The did not call him on February 9, 1976, when their husbands and Bank personnel were advising them to sign the documents.

Both women have alleged in their complaint that John Stiefel was their personal attorney on February 6, 1976. There is no evidence in the record that they ever communicated to John Stiefel their desire that he represent them or that he accepted. There is no evidence in the record that John Stiefel was aware that his advice was to be followed by Donna LaCroix and Janis York. In the absence of such evidence, they did not establish the requisite consensual relationship necessary to hold Stiefel responsible for any advice given to their husbands as officers of the corporation.

For the foregoing reasons we believe there was insufficient evidence introduced at trial to establish the existence of the requisite attorney-client relationship between Janis York and Donna LaCroix and the appellant to support a verdict returned for legal malpractice.

Assuming arguendo that there was sufficient evidence in the record for the trier of fact to conclude that an attorney-client relationship existed between Janis York and Donna LaCroix and the appellant, the issue remains whether or not there was sufficient expert testimony presented by all the plaintiffs to sustain their burden of proving (a) that defendant breached the standard of care, and (b) whether the damages claimed by plaintiffs were the proximate result of legal malpractice.

Plaintiffs alleged that the defendant was negligent (1) in advising them to personally guarantee a corporate obligation without consulting certain documents before giving his advice, and (2) failing to advise plaintiffs to seek a bankruptcy option as a possible solution to their financial problems.

Such allegations required expert testimony to assist the jury in evaluating Stiefel’s conduct as the case involved a complex financial arrangement coming apart in a crisis situation with different and competing considerations impinging on the attorney’s exercise of judgment. (See Schmidt v. Hinshaw (1979), 75 Ill. App. 3d 516, 394 N.E.2d 559.) Plaintiffs offered expert testimony, but the only testimony which purported to show a deviation from the standard of care of a reasonably prudent attorney was directed to the proposition that failing to consult documents is negligence, but even that was accompanied by an admission that the expert could not predict that the result would have been different had the documents been consulted.

Plaintiffs’ experts testified only that the manner in which the advice was rendered was an error of judgment. They went on to say that while Stiefel may not have complied with the standard of care, it could not be predicted that compliance with the supposed standard of care would have made any difference. No expert testimony was offered that the advice given was wrong or negligent or that the damage suffered was proximately related to the advice given. In contrast, Paul Cation, an expert witness for the defendant, testified not only that the advice given was correct and in accordance with the prevailing standard of care, but that the basis for giving the advice was sound and valid in light of the circumstances in which the plaintiffs presented themselves. Plaintiffs’ own expert testimony was therefore inadequate to support a jury verdict for professional negligence.

An attorney is not liable for matters resting within his judgment, notwithstanding that the exercise of that judgment may have occasioned an unfavorable result for the client. (Stevens v. Walker (1870), 55 Ill. 151; House v. Maddox (1977), 46 Ill. App. 3d 68, 360 N.E.2d 580.) Attorneys are not obligated by the law to serve as guarantors of their judgment opinions. McCartney v. Wallace (1919), 214 Ill. App. 618.

Furthermore, the mere fact that one professional may choose to utilize different procedures than those implemented by the defendant does not support an inference that the defendant was unskillful or negligent. The plaintiffs do not discharge their burden of proof merely by presenting expert testimony which offers an opinion as to correct procedure or which suggests, without more, that the witness would have conducted himself differently than the defendant. The expert must base his opinion upon recognized standards of competency in his profession. A difference of opinion between acceptable but alternative courses of conduct is not inconsistent with the exercise of due care. Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279; Ybarra v. Cross (1974), 22 Ill. App. 3d 638, 317 N.E.2d 621.

Attorneys are retained to exercise their judgment on behalf of their clients in areas where there are no sure and definite answers and attorneys cannot always determine future courses of action by precise mathematical equations. Criticism in hindsight of one of many courses of action is not probative of negligence and the mere opinion by a particular attorney that the defendant’s course of action is not the same as that which the expert might have chosen is not testimony probative of malpractice. The issue in any professional negligence case is whether or not the actual advice that was given or the act performed was an act which should not be performed by a reasonably prudent professional in the area where the defendant practices.

Attorney Hollis Benjamin offered additional expert testimony on behalf of the plaintiffs. In contrast to the testimony of James Brannon, Benjamin did testify that, in his opinion, a reasonably prudent attorney would not have relied upon his memory or would not have relied upon what opposing counsel may have told him, but would in fact have examined documents prior to giving advice requested on those documents. However, whatever probative value such testimony may have had was negated when Benjamin went on to testify that he could not say that an examination of the documents would have made any difference. No testimony was offered that there was a causal relationship between the only alleged act of negligence supported by expert testimony and the damages suffered by plaintiffs.

Negligence and damages are twin concepts, and as such, the plaintiffs had the burden to plead and prove not only that their attorney was negligent, but that the alleged negligence was the proximate cause of their damages. (Miller v. Shultz (1977), 53 Ill. App. 3d 721, 368 N.E.2d 1141.) Failure to prove proximate cause is a failure to prove a prima facie case, and submission of such a case to the jury is only an invitation to the jury to speculate on the matter. DeKoven Drug Co. v. First National Bank (1975), 27 Ill. App. 3d 798, 327 N.E.2d 378; Central Illinois Light Co. v. Stenzel (1963), 44 Ill. App. 2d 388, 195 N.E.2d 207.

The record amply supports Mr. Benjamin’s reluctance to go farther than suggesting that Stiefel should have consulted the loan documents since even had it been discovered that the personal guarantee was absent, there existed other reasons to advise the corporate officers to make good their debt to the corporation and the Bank. The desires of York and LaCroix to liquidate the business themselves and receive a greater return of the sale of the assets than they would have had at a sheriff’s sale was testified as a valid consideration by Brannon. As both Stiefel and Cation stated, a paramount consideration in this matter was whether the corporate officers could escape criminal sanctions which could be imposed for converting the proceeds from the sale of secured goods to their own use rather than that of their secured creditors. Neither corporate bankruptcy nor walking away from the business would have eliminated their potential criminal exposure and arguably would have only increased the creditor’s desire to prosecute. Removal of potential liability is a valid consideration in rendering any advice to a client.

The expert testimony offered by the plaintiffs in their cause in order to establish the claim of professional negligence was insuffident to allow this cause to be presented to the jury.

The fact that plaintiffs' experts were unable to testify that had the defendant chosen an alternative course of action the result would have been different negates the requisite proximate cause which must exist for a recovery to occur.

For the reasons set forth the judgments of the circuit court of Peoria County are reversed.

Reversed.

ALLOY and HEIPLE, JJ., took no part in the consideration or decision of this case.