author: JUSTICE HARTMAN PRESIDING JUSTICE DOWNING,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDDIE GONZALEZ, Defendant-Appellant.
    First District (2nd Division)
    Nos. 82—1473, 82—1701 cons.
    Opinion filed December 27, 1983.

      DOWNING, P.J., dissenting.
    James J. Doherty, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Thomas J. Finn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

A jury found defendant guilty of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a)(1), (a)(2)) and, after his motion for a new trial was denied, he was sentenced to 35 years’ imprisonment.

On appeal defendant raises as issues whether the circuit court erred by: (1) denying him an adequate opportunity to prepare for trial; (2) prohibiting cross-examination of a State’s witness as to his gang affiliations; and, (3) refusing to permit defendant to impeach his own witness with the witness’ omission of certain facts from his police report.

On May 12, 1981, Michael Rodriguez, also known as “Monkey-man,” was fatally shot near the intersection of Cleaver and Black-hawk Streets in Chicago. The following day, defendant was arrested and subsequently charged with murder and armed violence in connection with the slaying.

In its July 31, 1981, answer to defendant’s motion for discovery, the State indicated that it might call as witnesses, among others, Robert Burden, “David Alonsa, aka Alonzo [sic],” and Mario Zuniga. Their addresses were not furnished. Defendant moved for specific discovery, under Supreme Court Rule 412(a)(i) (87 Ill. 2d R. 412(a)(i)), of the current addresses and pretrial production of Alonso and Zuniga, alleging that the State had relocated these witnesses following a preliminary hearing, and that they could not be located at the addresses and phone numbers provided by the State after repeated defense requests for such information. The State indicated that, as their whereabouts were unknown, it would introduce their preliminary hearing testimony at trial; noted a continuing investigation to locate the witnesses; and that defendant would be advised as soon as they were located.

Jury selection for the trial began on Friday, May 7, 1982. The State said it would “possibly” argue on the following Monday to intellect evidence of gang membership into its case. On Monday, May 10, however, the issue of gang membership was not raised. On May 11, the State suggested that the court rule on the issue because it appeared to be an essential part of the defense theory. Defense counsel then argued that the case was “being put on our defendant,” and that reference to gang membership was necessary to show the motive for the killing and to shed light on why witnesses would testify in a certain way. The State then observed that it was neither for nor against allowing references to gang membership and had prepared its case accordingly.

Defense counsel requested and received an in camera hearing out of the presence of the State so that it could explain to the court the importance of the gang issue to its theory of defense. Although this hearing is not recorded, defense counsel at the conclusion of its case recited the theory earlier presented: Gonzalez, recently father of a son, had allegedly withdrawn from gang membership and, as a result, had been harassed and threatened by gang “collectors” and “enforcers,” Alonso and Zuniga. Gonzalez defied their requests to sell drugs for the gang and was told by Alonso and Zuniga that, unless he at least contributed to gang coffers, “they would get him.” Defense counsel noted that this theory gave Alonso a motive to fabricate, especially since he was at the scene of the homicide for which he might himself be accountable. Nevertheless, the circuit court ruled that “[tjhere is to be no reference to gang affiliations in this case.”

Meanwhile, with respect to another issue, on May 10, defense counsel noted that he and co-counsel had interviewed witness Robert Burden in January 1982, at which time Burden said he could not identify defendant as the offender; as a result, Burden was scheduled to be a defense witness. An appointment to interview Burden at 9 a.m. on May 7 was made with Burden’s mother. Counsel further related that Burden’s mother was contacted by the State after the appointment was made, and when she advised the caller of the next day’s appointment at 9 a.m. with defense counsel, she was told that the State would have her son picked up at 8 a.m., which was done. When defense counsel arrived at the designated time, they learned that Burden had been picked up an hour earlier. As Burden remained in State custody, defense counsel argued, an interview was needed because of indications that Burden’s testimony might be different and might therefore warrant a change in defense strategy. The circuit court granted time for such interview before continuing with jury selection; at the same time, counsel was permitted an interview with Alonso, who had been in State custody since May 6.

On May 11, shortly before opening statements by counsel, the State remarked that it would present Burden as its own witness and that he would deny the substance of his earlier statement made to defense counsel. Defense counsel then moved for a continuance until the next day so that they could “restructure” the defense and possibly bring in another attorney. The court denied this motion and characterized counsel’s dilemma as “simple,” requiring “one or the other” to .withdraw from representing defendant in order to testify in rebuttal. Neither defense counsel withdrew.

Robert Burden, 14 years old at the time, testified for the State at trial. At about 7:30 p.m. on May 12, 1981, he was walking on Black-hawk toward a nearby park. He passed Monkeyman, whom he had known all his life, and crossed Blackhawk at its intersection with Cleaver. At that point he noticed three people in a gangway on Cleaver: defendant, Alonso and Zuniga. He had known Alonso and Zuniga two to three years; he “used to just see [defendant] a lot, I ain’t know him.” He observed defendant put something on his head, run across Cleaver and into the alley off Blackhawk. He lost sight of him for five to 10 seconds between buildings. When defendant reappeared, he pulled a gun and shot Monkeyman, on Blackhawk, four or five times, and then ran back the same way he had come. Burden was the first person to reach Monkeyman. He then went to call an ambulance. When he returned to the scene, police had arrived and Burden gave them an account of the crime and a description of the assailant. On cross-examination, Burden said he had spent the past four days in a hotel where he had shared meals with Alonso and discussed the case with police. There was no attempt to impeach Burden with his allegedly inconsistent statement to defense counsel made in January 1982.

David Alonso, age 19, also a State’s witness, testified that at about 6:15 p.m. on May 12, 1981, he and Monkeyman played in a basketball game at a fieldhouse gym. He stepped out of the gym for a drink of water and saw defendant. In answer to defendant’s question, he said that Monkeyman was in the gym, to which he then returned. After later leaving the gym, Alonso ran into defendant and Zuniga, who asked him to accompany them to a house on Cleaver to retrieve a tie. While in the gangway of the house, defendant handed his leather jacket to Zuniga. At this time Alonso observed Monkeyman cross from the southeast to the northwest corner of Cleaver and Blackhawk. Defendant put on a ski mask, ran west across Cleaver to the north alley of Blackhawk, and lowered the mask over his face. Alonso saw defendant run up behind Monkeyman and raise both hands; he then heard five or six shots. As Alonso began running south on Cleaver, he saw defendant, no longer wearing the mask, run back into the gangway. Defendant told Alonso and Zuniga later that he stashed the gun in a yard.

Daniel Noon, Chicago Police gang crimes specialist, testified that he was at the rear door of defendant’s apartment when other officers knocked on the front door and identified themselves. As defendant started to walk out the back door, he was arrested. Police also recovered a brown leather jacket during the arrest.

The only defense witness called, Chicago Police Detective Gary Bulava, testified that he interviewed Burden on the day of the homicide and filed a report on the case. Burden did not tell him then that he saw defendant in the gangway with Alonso and Zuniga prior to the shooting, nor that defendant ran west through the alley. On cross-examination, Bulava said that Burden told him he could identify the offender. On redirect examination, Bulava further said that Burden indicated that he knew the assailant from the neighborhood. When defense counsel attempted to inquire whether Bulava’s police report contained this information, the State’s objection was sustained. The court noted that omission from police reports cannot be impeachment and that Bulava’s testimony was not inconsistent but merely provided added information prompted by further questioning.

Defendant was convicted and sentenced as first noted above.

I

Defendant first contends that he was denied sufficient opportunity to prepare for trial because the State impeded defense preparations and the circuit court denied his motion for a short continuance. Motions for continuances in criminal cases are governed generally by section 114 — 4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4), which provides that such motions are directed to the discretion of the trial court and are to be evaluated in light of the movant’s diligence. (See People v. Dunigan (1981), 96 Ill. App. 3d 799, 421 N.E.2d 1319.) The denial of such motion will be reversed only where there is a clear abuse of discretion. People v. Hayes (1972), 52 Ill. 2d 170, 287 N.E.2d 465; People v. Trolia (1982), 107 Ill. App. 3d 487, 437 N.E.2d 804, cert, denied (1983), 460 U.S. 1044, 75 L. Ed. 2d 798,103 S. Ct. 1442.

The principal reasons given by defendant for the motion was his “surprise” at learning on the day trial began that Burden, who was intended to be a defense witness, was instead being called by the State to identify defendant as the offender. Defendant noted that this witness had been “snatched” by the State just prior to a scheduled follow-up interview with defense counsel; as a result, the defense was unaware of Burden’s damaging testimony until the day this witness was to testify. Defendant asserts that a short continuance in order to “restructure” his strategy was therefore necessary to research the problem and possibly secure another attorney in order to impeach Burden with allegedly inconsistent statements made earlier to defense counsel by this witness. The State maintains, however, that it had repeatedly advised defendant that Burden would identify him at trial.

In order to rebut Burden’s allegedly inconsistent testimony one of defendant’s attorneys would have been required to withdraw from the case. Such a decision need not have necessitated extensive research or a delay in proceedings for which a jury had already been selected. The cases cited by defendant involve situations where time was needed to procure a rebuttal witness as a result of “surprise” testimony. (See People v. Lott (1977), 66 Ill. 2d 290, 362 N.E.2d 312; People v. Kuc-zynski (1961), 23 Ill. 2d 320, 178 N.E.2d 294.) Both possible rebuttal witnesses here were present in court. Further, unlike Kuczynski, the circuit court here offered to permit one of the attorneys to withdraw in order to testify. Because of their failure to do so, defense counsel’s subsequent inability to respond to Burden’s testimony cannot be attributed to the court’s denial of their motion for a continuance.

Defendant also argues that his inability to interview Alonso until the day before trial, due to the State’s bad faith, also merited a continuance. In the cases cited by defendant on this point, however, the witness at issue was not on the State’s list of witnesses required under Supreme Court Rule 412(a)(i) (87 Ill. 2d R. 412(a)(i)). Moreover, the State was aware of the availability of the witness well before trial and in bad faith delayed until trial to announce that such witness would testify. People v. Millan (1977), 47 Ill. App. 3d 296, 361 N.E.2d 823; People v. Mourning (1975), 27 Ill. App. 3d 414, 327 N.E.2d 279.

In the instant case, Alonso was listed as a State’s -witness 10 months before trial and, in fact, testified for the State at a preliminary hearing. His whereabouts were subsequently unknown to both the State and defense until May 6, 1982. Although the State did not then immediately inform defendant that Alonso was in custody, defendant did interview him on May 10. Defendant knew that this -witness would testify adversely to him, if at all, and was also aware of the substance of this testimony from the preliminary hearing. The State’s delay in informing defendant of this witness’ availability cannot be said to have so adversely impacted defendant’s trial preparations as to merit a continuance.

Defendant argues that the State exhibited bad faith in initially seeking to have the issue of gang affiliation introduced in the case, only to back off on the day of trial when defendant moved to have such evidence admitted. Because the exclusion of such issue effectively eviscerated the theory of defense, defendant maintains, a continuance was mandated. This argument must also be rejected. On May 7, the State did not actually move to have this issue admitted, but indicated only that it might “possibly” argue for such admission, although aware of the court’s general opposition to the introduction of such evidence. Defendant’s assumption, therefore, that the State supported his motion on May 11 to have such evidence admitted is without foundation. The State did not oppose defendant’s motion, but said it would abide by the court’s decision on the matter as, of course, defendant was also bound to do. Defendant’s failure to prepare for the possibility that its motion would be denied, regardless of the State’s support or opposition, was an insufficient ground to require a continuance. We find no error here.

II

Defendant next argues that because the circuit court precluded him from cross-examining Alonso as to his gang affiliations, he was unable to impeach this witness as to his bias or motive to testify falsely. The right to cross-examine a witness as to his biases, prejudices, or ulterior motives, is protected by both the Federal and Illinois constitutions. (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. 1, sec. 8; see Davis v. Alaska (1974), 415 U.S. 308, 315-17, 39 L. Ed. 2d 347, 353-54, 94 S. Ct. 1105, 1109-11.) Such impeachment is “always relevant.” (415 U.S. 308, 316, 39 L. Ed. 2d 347, 354, 94 S. Ct. 1105, 1110.) The widest latitude should be allowed defendant when pursuing cross-examination to establish bias or motive. People v. Garrett (1976), 44 Ill. App. 3d 429, 436, 358 N.E.2d 364.

The State maintains, however, that the court properly curtailed cross-examination in this matter since any testimony thus elicited would have been hearsay. (People v. Garcia (1981), 103 Ill. App. 3d 779, 783-84, 431 N.E.2d 1234.) Were Alonso to have testified to threats made against defendant and his family by others, such testimony would have been hearsay; the same cannot be said where Alonso would have been asked about threats he personally made. The defense proposed to show that Alonso was a collector for a gang defendant had quit. Through cross-examination the defense would have attempted to prove that Alonso personally directed threats against defendant, his mother, sister, wife and children unless defendant remained a gang member. The answers to such questions on cross-examination would have gone to Alonso’s bias and motive to testify falsely, not to the truth of the matters asserted, and would have been admissible.

The State’s further argument that, because the issue in the case was identification, evidence of gang membership would have been collateral and therefore properly subject to restriction, must likewise be rejected. Although the court’s refusal to admit substantive evidence of gang affiliation may have been correct absent the alleged personal involvement of Alonso in making these threats (see People v. Renslow (1981), 98 Ill. App. 3d 288, 293-94, 423 N.E.2d 1360; People v. Lewis (1976), 38 Ill. App. 3d 995, 998, 349 N.E.2d 528), the same rationale does not apply to cross-examination for personal bias or motive. As has been observed, “[inquiries of a witness as to his relations with the accused, his interest in the results of the case, and his feelings of bias, are never collateral,” People v. Garrett (1976), 44 Ill. App. 3d 429, 437, 358 N.E.2d 364.

The error in restricting the scope of the cross-examination of Alonso with respect to his gang affiliation was not harmless. In People v. Wilkerson (1981), 87 Ill. 2d 151, 157, 429 N.E.2d 526, the supreme court posited a three-part test for determining whether errors in cases involving restricted cross-examination are harmless beyond a reasonable doubt: (1) the error contributed to the conviction; (2) other evidence in the case overwhelmingly supports the conviction; and (3) the evidence is merely cumulative or duplicative of properly admitted evidence.

Application of the Wilkerson criteria to the instant facts reveals, first, that harm resulted because the evidence at issue — Alonso’s testimony untested as to bias or motive — substantially contributed to defendant’s conviction. Secondly, the other evidence supporting conviction essentially consisted of Burden’s eyewitness testimony; there was no physical evidence, except for defendant’s leather jacket, linking defendant to the crime. The jacket was significant only as it related to Alonso’s testimony. Although under Illinois law, the testimony of a single credible eyewitness is sufficient to support a conviction (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513), Officer Bulava cast some doubt on Burden’s testimony by noting that Burden made no mention, shortly after the crime, that he had seen the offender in the gangway or running through the alley prior to the shooting. Burden had shared meals with Alonso while the two were sequestered in State custody, during which time he discussed the case with police. It is impossible to determine how much weight the jury would have accorded Burden’s account were Alonso’s testimony to have been challenged as to bias or motive. The denial of defendant’s right to cross-examine Alonso cannot be held harmless. In light of the third criterion, the evidence which may have been elicited by the prohibited cross-examination was not brought out in any other manner at trial, due to the blanket nature of the court’s ruling in this regard. Such evidence, therefore, was neither cumulative nor duplicative under the rule, and it was prejudicially excluded.

Ill

Defendant’s final contention is that the circuit court erred in refusing to permit him to impeach his own witness by means of this witness’ omission of certain facts from his police report. On cross-examination, Officer Bulava testified that Burden had told him that he could identify the offender; on redirect, Bulava further stated that Burden had said that he knew the offender from the neighborhood. Defendant was subsequently precluded from asking Bulava whether his police report reflected these facts. Supreme Court Rule 238(a) provides that the credibility of a witness may be challenged by any party, including the one calling him. (87 Ill. 2d R. 238(a).) Although strictly speaking no prior inconsistent statement is involved in impeachment by omission, inconsistency in the literal sense is not always required; the omission of a fact, under circumstances rendering it unlikely that such fact should have been omitted, may be shown as impeachment. (People v. Owens (1976), 65 Ill. 2d 83, 91-92, 357 N.E.2d 465, cert, denied (1977), 430 U.S. 955, 51 L. Ed. 2d 805, 97 S. Ct. 1600, quoting People v. Henry (1970), 47 Ill. 2d 312, 320-21, 265 N.E.2d 876.) In People v. Monroe (1977), 66 Ill. 2d 317, 324, 362 N.E.2d 295, the supreme court noted that the failure of an undercover officer to refer in his report to a particular substance as “Mr. Natural LSD,” where his report only mentioned “LSD,” was a proper subject of impeachment. Similarly, defendant here should have been permitted to question Officer Bulava about the omission from his report of the alleged fact that Burden told him he could identify the offender since he knew him from the neighborhood, because the significance of this statement rendered it incumbent upon Bulava to include it in his report. Since literal inconsistency is not required by Rule 238(a) or for impeachment by omission, the circuit court’s reasoning, that because the additional facts were consistent with Bulava’s testimony on direct they were not impeaching, is incorrect.

The State maintains that the defense could not impeach its own witness under Supreme Court Rule 238(a) (87 Ill. 2d R. 238(a)) without first demonstrating that it was “surprised” by the testimony. Newly amended Rule 238, which became effective April 1, 1982, one month prior to the instant trial, omits any mention of surprise, a prerequisite prescribed by the earlier rule. The present rule is applicable to criminal proceedings (87 Ill. 2d R. 433), and is identical to Rule 607 of the Federal Rules of Evidence (Fed. R. Evid. 607). (Ill. Ann. Stat., ch. 110A, par. 238(a), Supp. to Historical and Practice Notes, at 199

(Smith-Hurd 1983).) Our supreme court has not as yet addressed itself to an interpretation of this rule nor has this specific point been considered by any other Illinois court of review. In the absence of Illinois precedents, it is appropriate to consider Federal construction in this regard. (People v. Friedman (1980), 79 Ill. 2d 341, 351, 403 N.E.2d 229. See-also People ex rel. Lignoul v. City of Chicago (1977), 67 Ill. 2d 480, 484, 368 N.E.2d 100.) Federal Rule 607 has been interpreted by Federal courts as allowing impeachment of a party’s own witness even in the absence of surprise. Scholz Homes, Inc. v. Wallace (10th Cir. 1979), 590 F.2d 860, 863; United States v. Long Soldier (8th Cir. 1977), 562 F.2d 601, 605 n.3; United States v. Palacios (5th Cir. 1977), 556 F.2d 1359, 1363. See also Robinson v. Watts Detective Agency, Inc. (1st Cir. 1982), 685 F.2d 729, 740, cert, denied (1983), 459 U.S. 1105, 74 L. Ed. 2d 953, 103 S. Ct. 1191; 10 Moore’s Federal Practice sec. 607.02 (1983-84 Supp.).

The reason for the rule prohibiting a party from impeaching a witness who appears in his or her behalf is traced by Wigmore back to primitive times when persons who attended trial on behalf of the parties were not witnesses in the modern sense of the term, but “oath-helpers.” They were chosen literally to “swear off” the party on whose behalf they were called and were “ex-officio” partisans, which made it inconceivable that the party calling them could at the same time “gainsay” their testimony. Wigmore finds no substantial reason for preserving the rule. (3A Wigmore, Evidence secs. 896-899 (Chadbourn rev. 1970).) McCormick joins in criticism of the rule, maintaining that except for a few instances when witnesses are called to testify with respect to character or expertise, the party has little or no choice of witness but is limited to those who happen to have knowledge of the particular events in controversy. (McCormick, Evidence sec. 38 (2d ed. 1972).) In the Advisory Committee’s Note to Rule 607 of the Federal Rules of Evidence, the observation is made that the traditional rule against impeaching one’s own witness is based on false premises: practically, the party does not hold out his witnesses as worthy of belief since he rarely has free choice in selecting them and denial of the right to impeachment leaves the party at the mercy of the witness and the adversary. We are persuaded that in light of the more realistic language of present Supreme Court Rule 238(a) with its omission of the qualification of surprise, patterned after Federal Rule 607, the defense in the present case was not obliged to demonstrate surprise before seeking to impeach the witness that it called and denial of that right was prejudicial error.

For the foregoing reasons, the conviction and sentencing of defendant must be reversed and vacated and the cause remanded for a new trial.

Reversed and remanded for a new trial.

STAMOS, J., concurs.

PRESIDING JUSTICE DOWNING,

dissenting:

My review, analysis and evaluation of the record compel me to dissent. In my opinion, the evidence establishes beyond any reasonable doubt that defendant was guilty. Under such circumstances, I subscribe to the statement of Chief Justice Burger in United States v. Hasting (1983), 461 U.S. 499, 509, 76 L. Ed. 2d 96, 106, 103 S. Ct. 1974,1980-81:

“[T]he Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations, see, e.g., Brown, supra, 411 U.S., at 230-232, 93 S. Ct., at 1569-1570; Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); Milton v. Wainwright, 407 U.S. 371, 92 S. Ct. 2173, 33 L. Ed. 2d 1 (1972). The goal, as Chief Justice Traynor [of the Supreme Court of California] has noted, is ‘to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error.’ [Citation.]”

I

The majority concludes that there was prejudicial error when defendant was denied the right to cross-examine the State’s witness, David Alonso, as to his bias or motive. Defendant, in his brief to this court, urges that the trial court “erroneously excluded all evidence of gang affiliation” and “the evidence would show that Alonso and defendant had been members of the same gang, defendant quit, and the gang threatened him with reprisal if he did not renew his activities or contribute to the gang coffers. In short, it was the defense theory that ‘this case is being put on our defendant’ by his old gang.” (Emphasis added.)

At trial, before opening statements and any witnesses were heard, counsel discussed with the court whether evidence would be allowed of gang membership or gang affiliation, but no reference was made by defendant’s counsel of any alleged threats. After such on-the-record discussion, an in camera, off-the-record discussion took place between the court and counsel for defendant. Thereafter, the trial court ruled that during the trial there would be no reference to gang affiliation. The trial proceeded and amongst the State’s witnesses were Robert Burden and David Alonso. Officer Gary Bulava was called on behalf of defendant. Upon the completion of Bulava’s testimony, defense counsel renewed his request for evidence on “gang crime activity.” Thereupon, counsel proceeded to memorialize for the record a summary of the earlier in camera proceedings, stating:

“We informed the Court that it was our theory of the defense that our client was a former gang member and that he was— and that he had quit the gang and that certain threats had been conveyed to him that if he didn’t continue to quit, that he would not be around to be father to his children one way or the other, that his family, his mother and sister, his common-law wife, have been subjected to threats and harassment and some of the people directing those threats and harassment at him were collectors and enforcers for the gang, David Alonzo, and Mario Zuniga.”

My analysis of the record indicates that defendant’s trial counsel seemed to be basically talking about gang activities, and about “David Alonzo and Mario Zuniga”; he failed to make any offer of proof of what he specifically wanted to ask of, or prove by, Alonso. In fact, it is to be remembered that while Alonso was on the stand and subject to cross-examination, defense counsel did not actually try to go into this specific testimony. At most, three questions were asked of Alonso which might be interpreted as an attempt to delve into Alonso’s bias or motive, or might also be interpreted as attempting to uncover gang activity. Upon the court sustaining objections, defense counsel did not make an offer of proof or explain the reason for pursuing that testimony. After the State rested and after Officer Bulava testified for defendant, defendant’s attorney then brought up the “in camera” discussion on the record.

In my opinion, defendant failed to perfect the record as to the basis for his position. His theory throughout the trial basically concerned gang activity. As I read defendant’s brief filed before this court, he did not articulate his position about bias and motive with the same interpretation and emphasis placed on it by my colleagues.

Generally, where an objection to evidence has been sustained, it is proper for counsel to make an offer of proof of what he expects to prove. As has been said, in the absence of such a showing, it is impossible to determine whether there was harmful error. (Winslow v. Newlan (1867), 45 Ill. 145, 150.) The offer must consist of facts and not conclusions. (Martin v. Hertz (1906), 224 Ill. 84, 89, 79 N.E. 558.) It is recognized that in some" cases a formal offer is not necessary if counsel clearly indicates what he intends to prove. (Scaggs v. Horton (1980), 85 Ill. App. 3d 541, 546, 411 N.E.2d 870.) It is my position that the record here clearly fails to show specifically what defendant wanted to establish in the cross-examination of Alonso. Under such circumstances, I do not think there was prejudicial error.

II

As to the question regarding defendant’s impeachment of Bulava, I agree with the position taken by the majority as to the right to impeach a party’s own witness. However, even if I accept, for the purposes of argument only, that it was error to refuse defendant the right to inquire about an omission from a police report, I do not find that fact could have affected the outcome of the case in any way. Officer Bulava was not an occurrence witness. Defendant was seeking to determine if the police report indicated Burden had told Bulava he had seen defendant around the neighborhood. The critical issue in the case was the question of identification and whether defendant shot the victim.

The jury saw the witnesses, heard the final arguments and found defendant guilty. Based on my review of the entire record, I am satisfied beyond a reasonable doubt that these alleged errors were not prejudicial. I fail to see the justification for a new trial in light of the overwhelming evidence of guilt.

For these reasons, I would affirm the conviction and judgment of the circuit court of Cook County.

      The vice of off-the-record proceedings is best illustrated by the problems which were unnecessarily created in this case. In my opinion, all proceedings in criminal trials should be on-the-record.


source: Caselaw Access Project

author: JUSTICE MEJDA

license: Public Domain

text:
    FREDERICK KLEIDON et al., Plaintiffs-Appellants, v. THE CITY OF HICKORY HILLS et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—2346
    Opinion filed December 16, 1983.
    Rehearing denied January 26, 1984.

      James E. Gierach and Robert M. Winter, both of Gierach & Schussler, Ltd., of Oak Lawn, for appellants.
    Vincent Cainkar, of Louis F. Gainkar, Ltd., of Chicago, for appellee City of Hickory Hills.

      William Colson, Morton Denlow, and Ellen T. McKnight, all of Sachnoff, Weaver & Rubenstein, Ltd., of Chicago, for appellees Alex Petrakos and Bank of Hickory Hills.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiffs, owners of three homes whose lots adjoin two residential lots (the subject property), appeal from an order which declared valid a use variation ordinance allowing defendants to develop the subject property for off-site parking and which order denied plaintiffs their attorney fees and awarded costs to defendants. Plaintiffs also appeal the denial of their motion for reconsideration and other relief. We affirm.

Plaintiffs raise the following issues on appeal: (1) whether Ordinance No. 81 — 14 was adopted in accordance with proper procedures; (2) whether the variation ordinance relates to practical difficulties or particular hardship within the statutory meaning; (3) whether the court’s decision was against the manifest weight of the evidence; (4) whether the trial court abused its discretion in permitting an expert witness to testify and in allowing defendants’ costs; and (5) whether the court erred in denying attorney fees to plaintiffs.

Defendants are the city of Hickory Hills; the Bank of Hickory Hills as trustee of Trust No. 397; and Alex Petrakos, Gus Makris and Ted Priovolo, beneficiaries of Trust No. 397 (owners). Defendant owners seek to develop the subject property as off-site parking for Greene’s West Restaurant and Lounge (Greene’s West or restaurant). Greene’s West is owned by defendant Petrakos and is located at the northeast corner of 86th Court and 95th Street in the city of Hickory Hills.

The subject property consists of lots 4 and 5 located on the west side of 86th Court north of 95th Street, being northwesterly and across 86th Court from the restaurant premises. The lots have a combined frontage of 153.14 feet on 86th Court and a depth of 140.0 feet. The subject property is zoned R-2 single-family residential. Lot 4 is unimproved; lot 5 (located to the south of lot 4) is improved with a one-story brick single-family residence. • To the north of the subject property is a two-story single-family residence. To the east, across 86th Court and north of the restaurant, is an apartment complex. Adjoining the subject property to the south, being the northwest corner of 86th Court and 95th Street, is the site of the city hall and its parking lot. Vacant land lies to the west of the city hall premises. To the west and northwest of the subject property are single-family residences. The residential-commercial line of demarcation has been established in the area of the subject property at 200 feet north of 95th Street; the city hall use, the restaurant use (Greene’s West), and to the west of the city hall, across 87th Avenue, a professional arts building each extends 200 feet north of 95th Street.

In 1977 defendant owners sought a zoning amendment for the subject property from R-2 single-family residential to C-l neighborhood commercial in order to utilize the existing residence as a professional building and the unimproved lot for accessory parking for the restaurant. The petition was denied by the Plan Commission.

On November 20, 1979, the Plan Commission recommended approval of the owners’ request for a special use permit for accessory parking. The City Council granted the special use by ordinance on November 13, 1980, but rescinded the ordinance on December 11, 1980, after determining that it had lost jurisdiction for failure to act on the Plan Commission’s recommendation in a timely manner.

On May 19, 1981, defendant owners requested a variance to permit the use of the property for “over-flow” and employee parking. Following public hearings the Zoning Board of Appeals (hereinafter Zoning Board) on September 1, 1981, reported to the City Council its findings of fact and recommendation in favor of the variation. The City Council on September 10, 1981, accepted the findings and recommendation, and on September 24, 1981, adopted Ordinance No. 81— 14 granting the variation.

Plaintiffs filed a complaint for declaratory judgment and injunc-tive relief to invalidate the variation ordinance and to enjoin development of the subject property for parking. At trial conflicting evidence was presented regarding the present character of the area and the impact of the proposed parking lot upon the neighborhood, the public and the parties themselves. After hearing extensive testimony the court, by judgment order and memorandum decision, found in favor of defendants and against plaintiffs on all issues and declared Ordinance No. 81 — 14 valid and enforceable. Plaintiffs’ motion for reconsideration was denied. Plaintiffs appeal.

Opinion

Decisions made by a city council are legislative, not administrative in nature. (Erlinger v. City Council (1975), 28 Ill. App. 3d 324, 325, 328 N.E.2d 663.) As a legislative function, zoning is “subject to court review only for the purpose of determining whether the power, as exercised, involves an undue invasion of private constitutional rights without a reasonable justification in relation to the public welfare.” (Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 575-76, 421 N.E.2d 285.) “In ascertaining whether a particular zoning ordinance is in the interest of the public welfare, each case must be determined upon its own peculiar facts. [Citations.] Where there is room for a legitimate difference of opinion concerning the reasonableness of a particular zoning ordinance, the finding of the legislative body will not be disturbed.” (Downey v. Grimshaw (1951), 410 Ill. 21, 28, 101 N.E.2d 275.) Our analysis of the instant case will be guided by these principles.

I

The first issue raised is whether Ordinance No. 81 — 14 was adopted in accordance with proper procedures. Plaintiffs maintain, generally, that the variation was not validly enacted by the City Council because of a failure to comply with the provisions of section 11— 13 — 5 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 13—5) and of the city’s ordinances. The statute provides, in pertinent part, that

“*** regulations *** may provide that the board of appeals or corporate authorities may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained in cases where there are practical difficulties or particular hardship in the way of carrying out the strict letter of any of those regulations relating to the use, construction, or alteration of buildings or structures or the use of land. If the authority to determine and approve variations is vested in the board of appeals it shall be exercised in accordance with the conditions prescribed in Section 11 — 13—4 ***. If the power to determine and approve variations is reserved to the corporate authorities, it shall be exercised only by the adoption of ordinances. However, no such variation shall be made by the corporate authorities as specified without a hearing before the board of appeals.” Ill. Rev. Stat. 1981, ch. 24, par. 11 — 13—5.

The city of Hickory Hills Ordinance No. 80—22 (July 24, 1980) (hereinafter Ordinance No. 80 — 22) in pertinent part provides that

“[t]he power to determine and approve variations is reserved to the City Council and shall be exercised only by the adoption of ordinances”

and further provides that

“[t]he Board shall not decide or recommend variations in the provisions of the Zoning Ordinance, unless it shall have made findings based upon the evidence presented to it in the following cases:
(1) that the property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations governing the district in which it is located; and that the variation, if granted, -will not alter the essential character of the locality; or
(2) that the plight of the owner is due to unique circumstances; and that the variation, if granted, will not alter the essential character of the locality.” (Ordinance No. 80 — 22, sec. 7.03.)

Plaintiffs’ contentions of procedural errors and other violations in the adoption of Ordinance No. 81 — 14 will be discussed seriatim.

(a)

Plaintiffs first contend that the published notice of the public hearing was improperly made in that (1) the notice specified that the hearing was to be held before the Plan Commission and not the Zoning Board, and (2) no notice was published regarding the continuation of the hearing before the Zoning Board. Defendants maintain that under the circumstances proper notice should be deemed given as no prejudice was suffered by the plaintiffs as a result of the misnomer. The purpose of notice is to give all parties an opportunity to support or oppose the matter at issue. “[Djefects in notice may not be raised by parties who have actual notice of the meeting, fail to object to the alleged defect at the meeting, and show no prejudice from the alleged defect.” Armour v. Mueller (1976), 36 Ill. App. 3d 23, 28, 343 N.E.2d 251; Wheeling Trust & Savings Bank v. Village of Mount Prospect (1978), 64 Ill. App. 3d 1038, 1042, 382 N.E.2d 128.

In the instant case the published notice of the hearing named the Plan Commission rather than the Zoning Board of Appeals as the hearing body. Hearing notices were mailed to the owners of all property within 250 feet of the subject property, including plaintiffs. On June 29, 1981, the hearing commenced before the Plan Commission at which hearing plaintiffs opposed the variation and requested that the matter be referred to the Zoning Board of Appeals. The hearing continued on August 3 and concluded on August 24, on which dates the proceedings were conducted before the Zoning Board without additional notice being published or given. The Plan Commission and the Zoning Board have seven members each, six of whom are members of both bodies. Frederick Kleidon, one of the plaintiffs in this action, was at all relevant times a member of both the Plan Commission and the Zoning Board. The transcripts of the proceedings before the Plan commission were introduced into evidence before the Zoning Board. The parties stipulated at trial that plaintiffs had actual notice of the June 29 hearing and had notice through their attorney of the August 3 and August 24 hearings, that they were represented by counsel at each of the hearings, and that their attorney had an opportunity to present and did present evidence at the August 24 hearing. Plaintiffs participated in the hearing in person and through their attorney on each of the above dates. On these facts we are unable to find that plaintiffs were prejudiced by any error in naming the Plan Commission in the notice published or by the failure to properly name the Zoning Board.

(b)

Plaintiffs next contend that they were denied a continuance for the purpose of presenting rebuttal evidence at the public hearing and that the public in attendance at the initial hearing before the Plan Commission was led to believe that no further evidence would be taken. Ordinance No. 80 — 22, section 7.08, in pertinent part provides that interested parties may present witnesses at the public hearing and that parties in opposition may be granted one continuance to present evidence in rebuttal. Although a continuance was initially denied plaintiffs’ attorney at the July 29 hearing, the hearing was in fact continued to August 3 and then to August 24 on which dates plaintiffs, through their attorney, did present evidence before the Zoning Board. In their brief plaintiffs admit that a city representative sent a letter to their attorney setting the date of the continued hearing and advising him that evidence in rebuttal could be presented. We are, therefore, unable to find that plaintiffs were prejudiced by the initial denial of a continuance or misled as to whether further evidence would be taken.

(c)

Plaintiffs next contend that the Board failed to make proper findings of fact and argue that Ordinance No. 81 — 14 is, therefore, void. The failure of an administrative body acting in an advisory capacity to make findings of fact mandated by ordinance does not affect the validity of an ordinance enacted by the legislative body vested with such authority. (Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 572, 421 N.E.2d 285; Schroeder v. County of Winnebago (1978), 58 Ill. App. 3d 207, 374 N.E.2d 24.) Reports or findings of an administrative body, even when required by statute, are merely advisory and do not affect the authority of the City Council where the latter has the final decision-making authority. (Thompson, see Spielman v. County of Rock Island (1982), 103 Ill. App. 3d 514, 431 N.E.2d 770.) Here the authority to grant variations is expressly reserved to the City Council. Therefore, the alleged failure by the Zoning Board to make findings of fact or any asserted deficiency regarding such findings does not invalidate the legislative action taken thereon by the City Council. Accordingly, we need not further address plaintiffs’ contention.

(d)

Plaintiffs maintain that the City Council adopted Ordinance No. 81 — 14 without accompanying findings of fact. Illinois statute provides that “[ejvery variation or special use, whether made by the board of appeals directly, or by an ordinance after a hearing before the board of appeals, shall be accompanied by findings of facts ***. The findings of facts shall specify the reason or reasons for making the variation.” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 13—11.) Ordinance . No. 80 — 22 imposes a similar requirement upon the City Council. (Ordinance No. 80 — 22, sec. 7.03.) Variation Ordinance No. 81 — 14 recites adoption of the findings submitted by the Zoning Board which consist of a summary of the testimony before the Board and a restatement of the factors considered by the Board in arriving at its recommendation favoring the granting of the variation. In addition, the ordinance contains further findings that the highest and best use of the property is for parking in conjunction with Greene’s West, that said use will enhance the public health, safety and welfare with no proven detrimental effect, that current parking and traffic patterns pose a safety problem which the instant variation will alleviate and that the variation will result in the development of a transitional use in the best interest of the community as a whole. These statements, although minimal, are deemed sufficient to satisfy the requirement contained in the statute and ordinance that every variation be accompanied by findings of facts specifying the reason or reasons for making the variation.

(e)

Plaintiffs next argue that the Zoning Board’s failure to make findings of facts invalidates its approval of the variation and a two-thirds vote by the City Council was, therefore, required for passage of the ordinance. Since the ordinance did not receive a two-thirds vote, plaintiffs submit the ordinance is void.

Section 11 — 13—10 of the Illinois Municipal Code states that “[i]n municipalities of less than 500,000 population, where a variation is to be made by ordinance, upon the report of the board of appeals *** any proposed variation which fails to receive the approval of the board of appeals shall not be passed except by the favorable vote of two-thirds of all aldermen or trustees of the municipality.” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 13—10.) Ordinance No. 80 — 22 contains an identical requirement and further provides that the approval of the board of appeals means “the affirmative vote of four members of the Board.” The record herein shows that a motion to recommend the proposed variance was passed by a 5-1 vote of the Zoning Board. The variance, having received the requisite number of votes, was approved by the Zoning Board and, therefore, a simple majority vote by the City Council was sufficient to pass the ordinance.

(f)

Plaintiffs contend that Ordinance No. 81 — 14 does not set forth specific terms of relief and is therefore void. Ordinance No. 80— 22, section 7.03 provides, in pertinent part, that, regarding variation ordinances “[t]he terms of relief granted shall be specified in the ordinance, and may be conditioned upon such specific terms as are determined by the City Council.” The instant ordinance by its terms complies with the requirements of Ordinance No. 80 — 22. It expressly allows the construction and operation of a parking lot on the subject property subject to certain conditions, inter alia, construction of the parking lot in accordance with the plans submitted to the Zoning Board, approval by the building commissioner and the city engineer of certain construction features of the parking lot, and compliance with the Zoning Ordinance according to the determination of the building commissioner. We, therefore, find plaintiffs’ contention without merit.

(g)

Finally, plaintiffs assert that the instant variation is void since it permits a land use disallowed by other city zoning ordinances. A variation, by definition, is a grant of relief to a property owner from the literal requirements of a zoning ordinance (International Harvester Co. v. Zoning Board of Appeals (1963), 43 Ill. App. 2d 440, 446, 193 N.E.2d 856), thereby allowing a land use not permitted under the applicable zoning ordinance. As the instant ordinance expressly repeals any ordinance or part thereof which conflicts with its provisions, there is no inherent incompatibility. Accordingly, we find plaintiffs’ contention meritless.

In accordance with all the foregoing, we are unable to find that improper procedures or violations of statutes or ordinances invalidate the instant ordinance.

II

The next issue is whether the “practical difficulties or particular hardship” requirement embodied in the pertinent Illinois statute must relate to the land to be varied. Plaintiffs contend that the need or hardship here demonstrated by defendants is unrelated to the land for which the variation is sought and conclude that the variation is, therefore, invalid. Defendants respond that the variation is proper notwithstanding that the "practical difficulties or particular hardship” is unrelated to the subject property and, moreover, that traffic problems and parking needs fall within the statutory requirements of need or hardship.

The statue provides, in pertinent part, that corporate authorities may vary the application of zoning regulations “where there are practical difficulties or particular hardship in the way of carrying out the strict letter of any of those regulations relating to the use, construction, or alteration of buildings or structures or the use of land.” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 13—5.) Upon consideration of statutes substantially the same as the one here at issue, Illinois courts have approved variations on land unrelated to the difficulties or hardship justifying the variation. In Kaczorowski v. Elmhurst Chicago Stone Co. (1957), 10 Ill. 2d 582, 141 N.E.2d 14, the owner of the subject property on which gravel was mined was granted a variation to establish a gravel processing plant on the subject property in order to decrease the amount of heavy truck traffic on an adjacent roadway as the unprocessed gravel would not have to be hauled to the other side of town for processing and then returned to the plant. In upholding the variation the court stated that “the practical difficulties are the added amount of heavy truck traffic *** and the added transportation costs that must obviously accompany it.” (10 Ill. 2d 582, 585.) The court again had occasion to consider a statute not substantially different from the one in Kaczorowski or the one here at issue in Village of Riverwoods v. County of Lake (1970), 122 Ill. App. 2d 254, 258 N.E.2d 131. In Riverwoods, a variation was granted as to the subject property to permit parking lots and driveways for occupants of the industrial tract adjacent to the subject property. In upholding the variation the court rejected plaintiff’s contentions that the variation was invalid because no proof was submitted of practical difficulties or hardship as to the property for which the variation was granted and that hardship existed only in that it was convenient and desirable to develop both tracts.

Neither Riverwoods nor Kaczorowski imposed a requirement that the practical difficulties and particular hardship relate to the parcel to be varied; the variations there were granted to alleviate difficulties not on the subject parcels, but on parcels adjacent thereto. Nor do the terms of the statute so limit the grant of a variation. In the instant case evidence was presented regarding traffic and parking congestion on 86th Court, which street adjoins the subject property. We find such evidence sufficient to satisfy the statutory requirement of “practical difficulties or particular hardship” and we are, therefore, unable to find the instant ordinance invalid on that basis.

Ill

The next issue is whether the trial court’s finding that Ordinance No. 81 — 14 is valid was contrary to the manifest weight of the evidence. Zoning is primarily a legislative function. (LaSalle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428, 312 N.E.2d 625.) A zoning ordinance is presumed valid (Dietz v. Village of Midlothian (1980), 83 Ill. App. 3d 638, 404 N.E.2d 955); this presumption may be overcome only by clear and convincing evidence. (LaSalle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46, 145 N.E.2d 65.) The party challenging the validity of an ordinance bears the burden of establishing by clear and convincing evidence that the ordinance, as applied, is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare. (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 179-80, 354 N.E.2d 899; County of Cook v. Priester (1976), 62 Ill. 2d 357, 368, 342 N.E.2d 41.) Where testimony is contradictory and it appears that there is only a fair difference of opinion as to the reasonableness of a zoning classification, the legislative judgment will prevail. (Ward v. County of Cook (1979), 68 Ill. App. 3d 563, 386 N.E.2d 309.) The trial court, from its superior position to assess the credibility of the witnesses, determines the weight to be accorded the evidence (Edgemont Bank & Trust Co. v. City of Belleville (1980), 85 Ill. App. 3d 665, 407 N.E.2d 159) and the findings of the trial court will not be disturbed unless against the manifest weight of the evidence. Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 377 N.E.2d 21; La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40,145 N.E.2d 65.

The parties agree that the factors relevant to a determination of the validity of the instant variation ordinance are those considered in cases challenging zoning ordinances, namely: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restriction; (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned, considered in the context of land development in the area in the vicinity of the subject property. La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65.

Plaintiffs initially maintain that Ordinance No. 81 — 14 did not suspend, amend or repeal Ordinance No. 70 — 2, the Comprehensive Revised Zoning Ordinance For The City of Hickory Hills, and that it is still in full force and effect and must be presumed valid. They argue, therefore, that the LaSalle criteria must be applied to both Ordinance No. 81 — 14 and Ordinance No. 70 — 2. We disagree. Ordinance No. 81 — 14, by its terms, repeals all ordinances or parts thereof insofar as they are in conflict. Accordingly, we do not consider the validity of Ordinance No. 70 — 2.

Plaintiffs contend, generally, that Ordinance No. 81 — 14 is not reasonably related to the public health, safety and welfare and is, therefore, invalid. They maintain that the existence of single-family residences near the property and the single-family residence located on the property itself firmly establish the character of the subject property as residential in nature. Plaintiffs argue that Ordinance No. 81— 14 allows construction and operation of a commercial parking lot in a residential area in contravention of the public health, safety and welfare and is, therefore, invalid. Defendants argue that since the subject parking lot will adjoin the city hall parking lot its construction is, therefore, consistent with the existing uses and zoning.

In determining the validity of a zoning decision no single factor is controlling. However, “[o]f paramount importance is the question of whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established.” (La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 309, 388 N.E.2d 388.) The record in the instant case shows that both residential and commercial uses exist in the area. Two nonresidential uses, Greene’s West and city hall, are located at the intersection of 95th Street and 86th Court; the parking area serving city hall adjoins the subject property. An apartment complex and the parking lots for that complex and for Greene’s West are located east of the proposed parking lot, across 86th Court. Residential uses lie to the immediate west and north of the subject property. The character of 95th Street is very heavily commercialized. The established residential-commercial line of demarcation in the vicinity of the subject property is at 200 feet north of 95th Street. The proposed parking lot will extend 360 feet north from 95th Street. Across 95th Street from Greene’s West a neighborhood shopping center extends south from 95th Street 400 to 600 feet. Elber Maiden, planning and zoning consultant, testified that the character of the locality of the subject property is dominated by residential influences. Leslie Pollock, also a city planning and zoning consultant, voiced the opposing opinion that the character of the area is transitional. In arguing that the subject property acquires its character from the residential uses in the neighborhood, plaintiffs cite La Salle National Bank v. City of Chicago (1972), 4 Ill. App. 3d 266, 280 N.E.2d 739, and Littlestone Co. v. County of Cook (1974), 19 Ill. App. 3d 222, 311 N.E.2d 268. In both LaSalle and Littlestone, unlike the instant case, the property in question was entirely surrounding by land used for residential purposes or zoned for such use. Here the trial court placed great weight upon the fact that the city hall parking lot is within the same block and, in fact, adjacent to the subject property. (Cf Bennett v. City of Chicago (1962), 24 Ill. 2d 270, 181 N.E.2d 96 (residential zoning classification upheld where every other lot in the block had been so improved).) In our opinion the evidence here presented supports the trial court’s finding that the uses in the area are both residential and commercial.

Plaintiffs next contend that the subject property is suitable for residential development as permitted under the zoning ordinance. This fact is not disputed. However, the trial court here was required to consider the suitability of the subject property for use as a parking lot, as permitted under the instant ordinance. The court found the evidence on this point in conflict. Plaintiffs’ experts testified to drainage problems, engineering and design defects causing traffic safety problems, and various construction defects relating to the proposed parking lot. Defendants presented contrary evidence on those points and further indicated the suitability of the subject property for a parking lot by virtue of its location adjacent to the city hall parking facility and across the street and slightly north of the present restaurant parking area. The record therefore supports the trial court’s finding that the evidence was in conflict as to the suitability of the subject property for the uses permitted under Ordinance No. 81 — 14.

The court likewise found that the evidence was in conflict on the question of the gain to the public as compared to the hardship of individual owners. Sergeant Altman of the Hickory Hills police department testified that the police have received many complaints regarding Greene’s West patrons parking on both sides of 86th Court, which practice narrows the street and allows only one vehicle at a time to pass safely. Sergeant Altman further stated that, before construction of the new city hall building commenced, the police maintained operations at that site, that city emergency vehicles regularly exited by way of 86th Court, and that emergency vehicles will again be housed at that location upon completion of the construction. He concluded that the proposed parking lot would be advantageous with respect to the ability of emergency vehicles to respond to calls and from the standpoint of general traffic safety. He could not state with certainty, however, that the proposed parking lot would eliminate all restaurant overflow parking on 86th Court.

John Zgonina, registered professional engineer, testified to the numerous traffic and safety problems he anticipates will result from the use of the proposed parking lot. Such problems include an increased volume of through traffic on 86th Court; an increased number of turning vehicles; decreased pedestrian safety due to heavier traffic; poor visibility for cars crossing 86th Court due to the offset driveways; and safety problems relating to grading, drainage, and other engineering aspects of the parking lot itself. On cross-examination Zgonina conceded that the elimination of a large number of parked cars on 86th Court would improve street safety, but stated that it was not a certainty that construction of the proposed parking lot would result in fewer cars parked on 86th Court. Plaintiffs argue that alleviation of the traffic and parking problem on 86th Court is only speculative as restaurant patrons may continue to utilize 86th Court for parking after construction of the subject parking lot and, moreover, that the business of the restaurant may increase, again resulting in insufficient parking area. Plaintiffs contend that only defendant owners will realize a gain by the introduction of additional off-street parking, and state that the desire for additional parking for the convenience of customers, has been held inadequate to justify a zoning change, citing Vasilopoulos v. Zoning Board of Appeals (1975), 34 Ill. App. 3d 480, 340 N.E.2d 19. In Vasilopoulos, however, the applicable standard was whether the special use there at issue was necessary for the public convenience at that location. As we are not here concerned with the standard for the granting of a special use by a zoning board, we do not find plaintiffs’ argument persuasive. In any event, Vasilopoulos is factually distinguishable from the instant case as the reviewing court there found that since the special use would make available parking for only six or seven cars, it was not for the public convenience but for the convenience of plaintiff and his staff. The parking facility in the instant case would provide off-street parking for 46 cars, thereby serving the public convenience.

In arguing that the only gain resulting from the variation will inure to the benefit of defendant owners, plaintiffs overlook the fact that the variation was granted upon several conditions, among them (1) that use of the varied property or parking spaces acquired under the variation to meet space or parking requirements in the event of expansion by the restaurant or its successor is prohibited, any new addition must have a parking area in compliance with the zoning ordinance; (2) that all- provisions of the zoning ordinance concerning development and maintenance of the parking lot, including screening, landscaping, setbacks, surfacing, lighting, drainage, means of ingress and egress, and parking layout shall be complied with; and (3) that the ordinance is required to be recorded, thus giving notice of such restrictions to successor owners. These facts illustrate that the variation speaks to an existing need — the need to reduce the number of cars parking on 86th Court — and is tailored to meet that need with maximum benefit and minimum harm to the public.

Plaintiffs maintain that the instant variance causes a hardship as to them in the form of a diminution in the values of their homes and decreased enjoyment from the use of their properties. They assert that they purchased their homes relying on the existing single-family zoning and are entitled to so rely, citing Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 402 N.E.2d 719. Property use cannot be restricted or limited merely because neighboring property owners so desire, or because they believe it will protect the value of their residences. (Regner v. County of McHenry (1956), 9 Ill. 2d 577, 138 N.E.2d 545; Northbrook Trust & Savings Bank v. County of Cook (1977), 47 Ill. App. 3d 879, 365 N.E.2d 433.) Nor will a zoning ordinance be declared invalid solely because of the objections of adjoining property owners who purchased their homes in reliance on existing zoning classifications. (Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 577, 421 N.E.2d 285.) While property owners have a right to rely on zoning classifications (see Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 402 N.E.2d 719), those classifications may be amended within the limits of the law. (Bohan v. Village of Riverside (1956), 9 Ill. 2d 561, 567, 138 N.E.2d 487; Thompson.) We therefore do not find that plaintiffs’ objections form a sufficient basis upon which to find Ordinance No. 81 — 14 invalid.

Nevertheless, upon consideration of the diminution in property values, one of the La Salle factors, the trial court found the evidence on this point contradictory. Plaintiffs’ expert testified that the proposed parking lot would cause a 10 to 20% diminution in the values of homes adjacent to the property but conceded that the value of other homes fronting on 86th Court would improve if the traffic in front of their homes lessened. Against this testimony was that of defendants’ expert, which was that the proposed parking lot will not affect the values of the homes adjoining the subject property and, further, that any effect on surrounding property values will be of a positive nature, due to the removal of cars parked in front of those homes.

The architect and designer of the proposed parking lot testified that he considered both aesthetic and functional factors in his design. A brick wall, three feet in height, topped with a three-foot evergreen hedge will serve as a visual barrier between the subject property and adjoining residences. The light fixtures will project light horizontally, not above the hedge barrier. The record here presented therefore supports the trial court’s findings that the evidence was contradictory regarding both the diminution in value of plaintiffs’ property and the gain to defendants as compared to the hardship to plaintiffs.

The presumptive validity accorded a zoning ordinance may be overcome only by clear and convincing evidence.' (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46, 145 N.E.2d 65; Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899.) In the instant case the record shows that each side presented testimony sustaining its contentions. We are bound, however, by the rule that when testimony is contradictory in a trial without a jury, the weight to be accorded testimony is a matter to be determined by the trial court and its findings will not be disturbed unless clearly against the manifest weight of the evidence. (See, e.g., LaSalle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65.) The trial court here, stating that the evidence was contradictory on many points, found that plaintiffs had presented, at best, a debatable question and had failed to meet their heavy burden of proving by clear and convincing evidence that Ordinance No. 81 — 14 is arbitrary, unreasonable and not substantially related to the public health, safety or welfare. (Oak Park Trust & Savings Bank v. Village of Palos Park (1982), 106 Ill. App. 3d 394, 435 N.E.2d 1265; Tomasek.) Therefore, the court concluded that the legislative judgment must prevail, citing Bohan v. Village of Riverside (1956), 9 Ill. 2d 561, 138 N.E.2d 487. (See also LaSalle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428, 312 N.E.2d 625.) After a careful review of the entire record, we are unable to say that the court’s findings are contrary to the manifest weight of the evidence and, accordingly, we may not disturb them on review.

IV

The next issue is whether the trial court abused its discretion in permitting an expert witness to testify. The pertinent facts are as follows: on the morning of the last day of trial, defendants’ counsel advised plaintiffs’ counsel that defendants, that day, would call Leslie Pollock, a land planner, as an expert witness. The trial court permitted the testimony of Pollock over the objection of plaintiffs’ counsel, which objection was renewed after the examination. Plaintiffs contend that they were surprised by the calling of this witness and by his testimony, and that they were prejudiced in that they were prevented from taking Mr. Pollock’s deposition and their own experts had no opportunity to “inspect or consider [Pollock’s] documents in their study or testimony.”

“Whether a witness, previously unknown to the adverse party or not employed until after trial commences, should be allowed to testify is within the discretion of the trial court.” (Brumley v. Federal Barge Lines, Inc. (1979), 78 Ill. App. 3d 799, 804, 396 N.E.2d 1333.) In exercising its discretion the trial court should consider the following factors: the surprise, if any, to the opposing party; the good faith of the party seeking to call the witness in respect to the notice given the opposition; equal opportunity and access in order that the opposing party may interview or depose the witness prior to trial; and the prejudice which might result from the proposed testimony. Lindley v. St. Mary’s Hospital (1980), 85 Ill. App. 3d 559, 564-65, 406 N.E.2d 952.

Plaintiffs concede, in their brief, that Pollock was retained at the “last minute.” Thus, their argument is grounded not in a violation of the rules of discovery but in their contention of surprise. Pollock testified for defendants as an expert witness in the area of land planning. In a trial concerning the validity of a zoning ordinance, the calling of an expert in this field and the nature of his testimony could be reasonably anticipated. Defendants raised no issue or argument new to this case by calling Pollock, nor did Pollock’s testimony differ substantially from that which had been previously adduced. Moreover, the record fails to show that plaintiffs were prejudiced by the surprise, if any, suffered by them. During cross-examination, plaintiffs' counsel succeeded in qualifying Pollock as a traffic expert and thereafter elicited testimony favorable to plaintiffs’ position. In view of these facts plaintiffs have no cause to complain of prejudice, and we are unable to conclude that the court committed reversible error in allowing defendants’ expert witness to testify.

Plaintiffs present no argument in support of their contention that the court abused its discretion in awarding defendants costs in this cause and we, therefore, deem such contention waived. 73 HI. 2d R. 341(eX7).

In view of our disposition of the foregoing issues, we need not address the remaining contentions.

For the reasons stated above, we affirm the judgment of the trial court.

Affirmed.

LORENZ and SULLRAN, JJ., concur.


author: JUSTICE MILLER

text:
    MARIANN BARTIMUS, Plaintiff-Appellee, v. PAXTON COMMUNITY HOSPITAL et al., Defendants-Appellants—(C. R. Olaf et al., Defendants)—MARIANN BARTIMUS, Plaintiff-Appellee, v. PAXTON COMMUNITY HOSPITAL et al., Defendants (C. R. Olaf et al., Defendants-Appellants).
    Fourth District
    Nos. 4—82—0402, 4—82—0403 cons.
    Opinion filed December 28, 1983.
    Rehearing denied February 6, 1984.

      Robert P. Moore and Robert A. Hoffman, both of Moore & Associates, of Champaign, for appellants Paxton Community Hospital and Ramona Cabebe.
    Thomas, Mamer & Haughey, of Champaign (William J. Brinkmann, of counsel), for appellants C.R. Olaf and Richard P. Foellner.
    Mort A. Segall and Charles K. Stowe, both of Segall Law Offices, of Champaign, for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

Plaintiff brought an action in a four-count complaint to recover damages for injuries alleged to have been sustained by her as the result of negligent medical treatment by the defendants.

Count I of the complaint was directed against Paxton Community Hospital (PCH), alleging negligence in the operation of the hospital’s emergency room. Count II was directed against Ramona Cabebe, a registered nurse employed by PCH on duty in the emergency room at the time plaintiff presented herself for treatment. Count III was directed against Drs. Olaf and Foellner, who are partners engaged in the practice of osteopathic medicine in Paxton. Plaintiff alleged that Dr. Olaf failed to render appropriate medical care and was negligent in diagnosing her condition. Count IV was directed against Jose Raquel, M.D., alleging that Raquel was negligent in subsequent surgeries performed by him on plaintiff. Dr. Raquel was granted summary judgment before trial and is not involved in this appeal.

Following trial, a jury returned a verdict against the defendants in the amount of $125,000. Judgment was entered on the verdict and defendants appeal from that judgment. For the reasons stated below, we reverse and remand for a new trial.

On February 27, 1978, Mariann Bartimus became ill with a bout of nausea and vomiting. Around 7 the following evening, she began having violent pain and had difficulty sitting up. Her husband drove her to PCH, arriving there about 8 p.m. Ramona Cabebe admitted plaintiff to the emergency room. Cabebe took plaintiff’s medical history and blood pressure. Plaintiff contends that Cabebe asked plaintiff to give a urine sample, but that she was unable to comply. Cabebe denied asking for the sample. Cabebe then called Dr. Olaf, who had staff privileges at PCH and was “on call” as the emergency room physician that evening. Dr. Olaf was at home and did not come to the hospital. Instead, he instructed Cabebe to give plaintiff an injection for pain and to tell plaintiff to come to his office at 8 the next morning. Olaf testified that, based on the information given him by Cabebe, he believed plaintiff had a urinary tract infection.

After returning home, plaintiff was still in pain and had difficulty sleeping. When she went to Olaf’s office the next morning, Olaf s nurse took a brief history. On examination, Olaf found that plaintiff was having acute abdominal pain and decided to have her admitted to the hospital for tests. After receiving the results of plaintiffs blood test, Olaf called Dr. Raquel, who performed surgery on the plaintiff that morning.

Dr. Foellner testified that he assisted Raquel in performing surgery on plaintiff on the day she was admitted to the hospital. When plaintiffs abdomen was opened, Foellner saw that her appendix had ruptured and that infection had spread through her abdominal cavity and into her large and small intestines. The abdomen was irrigated, suction devices were used, and a tube was inserted to allow additional drainage. The incision was then closed around the tube which was removed several days later.

Plaintiff was discharged from the hospital on March 9, but returned on March 11 with a residual infection. Foellner and Olaf attempted to treat the infection with antibiotics but were unsuccessful. On March 13, Raquel performed a second surgery on plaintiff with Foellner and Olaf assisting. Two pelvic abscesses had developed. One was near plaintiffs umbilicus; the second was just above the bladder. The second surgery was necessary because all of the infection was not removed during the initial surgery. There is no evidence that Dr. Raquel failed to use due care during the first surgery; as stated earlier, Dr. Raquel was granted summary judgment on the count of plaintiff’s complaint charging him with negligence.

Plaintiff was finally released from the hospital on March 25. Although she lost weight and was “weak” for at least a month following her discharge from the hospital, plaintiff stated that she did not have any permanent problems as a result of the surgery.

At trial, plaintiff contended that Ramona Cabebe, a nurse at PCH, failed to properly assess her condition when plaintiff presented herself at the emergency room on February 28, 1978, and that Ca-bebe failed to properly describe plaintiff’s condition on that evening to Dr. Olaf. She further contended that PCH failed to provide her with proper emergency room care and that Dr. Olaf failed to adhere to appropriate medical and emergency room standards in failing to see plaintiff and in failing to properly diagnose her condition when she appeared at the emergency room on the evening of February 28, 1978.

We are compelled to order a new trial in this case because of plaintiff’s counsel’s continued questioning of witnesses regarding alleged emergency room regulations contained in an emergency room manual, where that manual was never admitted into evidence by the trial court.

Plaintiff's counsel asked Marilyn Velasco, former director of nursing services at PCH, numerous questions which assumed the existence of a hospital regulation requiring every emergency room patient to be seen by a physician. Proof that such a regulation existed was never admitted into evidence in the trial court. Defendants’ counsel made repeated objections to this line of questioning and those objections were, for the most part, sustained by the trial court. Despite the lack of proof that such a regulation existed at the time plaintiff came to PCH’s emergency room, plaintiff’s counsel continued to ask questions premised upon the existence of such a regulation.

Questions which are based upon or presume facts not in evidence are improper because the jury may assume that the presumed facts are true. Such questions may suggest to the jury that the witness adopts or admits the presumed facts. (See, e.g., Pepe v. Caputo (1951), 408 Ill. 321, 97 N.E.2d 260; Gabosch v. Tullman (1974), 21 Ill. App. 3d 908, 316 N.E.2d 226.) In People v. Nuccio (1969), 43 Ill. 2d 375, 253 N.E.2d 353, the supreme court reversed Nuccio’s conviction for murder and remanded the case for a new trial where the prosecutor continually made “substantial insinuations” regarding threats made by Nuccio or other police officers during his cross-examination of Nuccio, but no evidence to support the insinuations was ever presented to the trial court.

The principle outlined in Nuccio applies equally as well in a civil case. The questions asked by plaintiff’s counsel over defendants’ objections assumed facts not admitted into evidence which were relevant to a central issue in the case. We consider those questions to be improper under the circumstances described.

Similarly, where an attorney persistently attempts to introduce testimony or evidence previously ruled inadmissible, error is committed. (Hires v. Price (1966), 75 Ill. App. 2d 202, 220 N.E.2d 327; Owen v. Willett Truck Leasing Corp. (1965), 61 Ill. App. 2d 395, 209 N.E.2d 868.) Hires involved an action arising out of an accident involving two tractor-trailers. Despite the trial court’s ruling on the exclusion of evidence concerning alleged threats made to one of plaintiff’s witnesses, plaintiff’s counsel, by persistent attempts, was able to convey to the jury both the substance of the call and the identification of the caller. On appeal, this court found such conduct to be reversible error.

In the case before us, defendants were forced to object repeatedly to questions concerning the reasons for the termination of Nurse Cabebe’s employment at PCH. Although the trial court had earlier in the proceedings ruled that the reasons for the termination of Nurse Cabebe’s employment were inadmissible, plaintiff’s counsel, through improper questioning, was nevertheless able to place the excluded evidence before the jury. As in Hires, we consider such conduct in the present case to be reversible error.

Since we are reversing the judgment and remanding the cause for a new trial because of the conduct of plaintiff’s counsel at trial, it is not necessary that we address all of the alleged errors raised by defendants in their briefs. However, several key issues which will undoubtedly be present upon retrial require comment by this court.

In a medical malpractice action, plaintiff must show, through expert testimony, the standard of care applicable to the defendant physician. Furthermore, plaintiff must show, by competent and affirmative evidence, that the physician breached the applicable standard of care and that this breach resulted in injury to the plaintiff. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 328 N.E.2d 301; Ybarra v. Cross (1974), 22 Ill. App. 3d 638, 317 N.E.2d 621.) Defendants contend that Dr. Procell, plaintiff’s expert witness, was not qualified to testify regarding the standard of care to which Olaf and Foellner are to be held because (1) Procell was not familiar with the standard of care applicable to physicians in the Paxton area or in other similar communities and (2) Procell was not an osteopath.

Dr. James Procell testified as plaintiff’s medical expert. Procell is a medical doctor. He participated in a residency in family practice and was formerly employed as an emergency room physician at Carle Foundation Hospital in Urbana from 1975 to 1980. He left Carle in 1980 and at the time of trial, he had not practiced medicine for a period of over one year.

Dr. Procell testified that, in his opinion, the care plaintiff received in the emergency room was not in accordance with “minimum” standards of care and that this deviation from the accepted standard of care resulted in injury to the plaintiff.

Procell was critical of Dr. Olaf because Olaf did not see plaintiff in the emergency room. He stated that he did not know the standard of care in effect at PCH, but stated that, according to a “minimum standard across the country,” plaintiff should have been seen by a physician. Procell stated that where a physician does not know a patient and has no experience in treating that patient, that patient should be seen by the physician. In Dr. Procell’s opinion, plaintiff’s appendix perforated sometime between 8:30 p.m. on February 28 and 8 the following morning. He based this opinion upon plaintiff’s temperature readings and white blood cell count.

Procell admitted he had never been to PCH and knew nothing about their facilities. He explained that his answer with respect to deviations from the “minimum standard of care” related primarily to the doctor. Procell admitted that he had never worked in an emergency room in a small hospital similar to PCH. He had never worked in an emergency room where a doctor was not present at all times. He admitted that he had given telephone orders based upon information given to him by an emergency room nurse.

The “locality rule” as applied in medical malpractice cases has a long and tortured history. The notion that a physician should be held to the standard of care existing in the physician’s own community was developed by American courts in the 19th century to protect the rural practitioner, who was presumed to have less education and less access to adequate facilities and equipment than a physician practicing in a large urban area. See, e.g., Smothers v. Hanks (1872), 34 Iowa 286; Hathorn v. Richmond (1876), 48 Vt. 557; Annot., 99 A.L,R3d 1133 (1980).

Several problems with the strict application of the locality rule became apparent to both the courts and the commentators. First, application of the rule in a strict fashion could act to deny an injured plaintiff recovery where his treatment was clearly negligent although consistent with the practices prevailing in his community Second, a “conspiracy of silence” among physicians in a community could deny a plaintiff expert medical testimony necessary to his case. Waltz, The Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18 De Paul L. Rev. 408 (1969); Note, 1969 U. Ill. L.F. 96.

In response to the shortcomings of the strict locality rule, courts developed a less stringent rule whereby a physician’s conduct is judged by the standard of care of a reasonably competent physician practicing in the same or similar communities. (See, e.g., Walls v. Boyett (1950), 216 Ark. 541, 226 S.W.2d 552; Chandler v. Neosho Memorial Hospital (1977), 223 Kan. 1, 574 P.2d 136; Callahan v. William Beaumont Hospital (1976), 67 Mich. App. 306, 240 N.W.2d 781, aff’d (1977), 400 Mich. 177, 254 N.W.2d 31; Larsen v. Yelle (1976), 310 Minn. 521, 246 N.W.2d 841; Little v. Cross (1976), 217 Va. 71, 225 S.E.2d 387.) While this standard helps alleviate, to some degree,

problems associated with the reluctance of physicians to testify against a colleague practicing in their community, it does not remedy the other potential problem: a rural practitioner being held to a lesser standard of care than his urban counterpart.

In recent years, several jurisdictions have abrogated the locality rule entirely on the premise that, given modern methods of communication and transportation and the widespread availability of sophisticated equipment and technology, no justification exists for distinguishing between physicians based upon the location of their practice. Instead, these courts have determined that a physician should be held to the standard of care of a reasonably competent physician acting under the same or similar circumstances regardless of locality. See, e.g., Shilkret v. Annapolis Emergency Hospital Association (1975), 276 Md. 187, 349 A.2d 245; Brune v. Belinkoff (1968), 354 Mass. 102, 235 N.E.2d 793; Shier v. Freedman (1973), 58 Wis. 2d 269, 206 N.W.2d 166; Annot., 99 A.L.R.3d 1133 (1980).

Illinois courts have not chosen to follow the strict locality rule or to abandon the locality rule altogether, but have chosen rather to apply the “similar locality” rule in determining the standard of care applicable to a physician. Schireson v. Walsh (1933), 354 Ill. 40, 187 N.E. 921; Hirn v. Edgewater Hospital (1980), 86 Ill. App. 3d 939, 408 N.E.2d 970; Taber v. Riordan (1980), 83 Ill. App. 3d 900, 403 N.E.2d 1349; see also Illinois Pattern Jury Instruction (IPI), Civil, No. 105.01 (2d ed. 1971).

In the case at bar, it was incumbent upon the plaintiff to lay a proper foundation to support the admission of the testimony of his expert witness, Dr. Procell. Plaintiff failed to lay this foundation. Dr. Procell indicated that he had only practiced medicine in large urban areas. He admitted having no familiarity with medical practice in Paxton or similar communities. He also admitted that he had never worked in the emergency room of a hospital where the physicians were “on call,” as was the case at PCH. Finally, he testified in terms of a “national standard” of care by which a physician’s conduct is judged. Since plaintiff failed to show that Dr. Procell had any familiarity with medical practice in Paxton or a similar community or in a hospital similar to PCH, the admission of Dr. Procell’s testimony was error.

Defendants further maintain that Dr. Procell was not competent to testify regarding the standard of care applicable to Dr. Olaf and Dr. Foellner, because he was not a licensed osteopath.

Our supreme court adopted the so-called “school of medicine” doctrine with respect to medical experts in Dolan v. Galluzzo (1979), 77 Ill. 2d 279, 396 N.E.2d 13. In Dolan, plaintiff brought a malpractice action against a podiatrist for an alleged negligent osteotomy. Defendant made a motion in limine to prevent plaintiff from introducing the testimony of an orthopedic surgeon on the issue of the duty of care owed by a podiatrist to his patient. The trial court granted the motion in limine and permitted plaintiff to take an interlocutory appeal. The appellate court affirmed the circuit court and plaintiff obtained leave to appeal to the supreme court.

The supreme court vacated and remanded, holding that in order for a person to testify as to the standard of care in a given school of medicine, the witness must be licensed in that school. The court stated that the law recognizes different schools of medicine, but does not favor one school over another. Since the different schools have differing methods of treatment and practice, the court concluded, it would be inequitable to have the conduct of a duly licensed practitioner of one school judged by the standards of a different school of medicine.

The court vacated the trial court’s order and remanded the case because the order in limine was overbroad in that it would bar testimony by a physician who was also a licensed podiatrist. The court set forth a two-part test for the admission of expert testimony in a medical case. First, the party offering the expert testimony must establish that the witness is licensed in the school of medicine to which the defendant belongs. Once that has been established, it is within the discretion of the trial court to decide if the witness is otherwise qualified to give expert testimony on the case. The court stated, however, that a physician could offer competent testimony as to his diagnosis of plaintiff’s present condition and the prognosis for recovery regardless of the school of medicine to which the defendant subscribes.

Dolan involved the propriety of allowing an orthopedic surgeon to testify as to the standard of care owed by a podiatrist to his patient. The court noted that the legislature recognized different “schools” of treatment in providing for separate licensing requirements for various health professionals. (See Ill. Rev. Stat. 1981, ch. Ill, par. 3401 et seq.) In the case at bar, we are faced with a somewhat different question: the propriety of an allopathic (M.D.) physician testifying as to the standard of care owed to a patient by an osteopathic physician.

Under the Medical Practice Act (Ill. Rev. Stat. 1981, ch. Ill, par. 4401 et seq.), both allopaths and osteopaths are eligible to receive a license to practice medicine in all its branches. (Ill. Rev. Stat. 1981, ch. Ill, par. 4421(1).) The fact that both allopaths and osteopaths receive the same license under the Medical Practice Act distinguishes this case from Dolan, where a physician attempted to testify regarding the standard of care of a podiatrist. Podiatrists are not licensed under the Medical Practice Act. Podiatrists are licensed under the provisions of “An Act to regulate the practice of podiatry in the State of Illinois” (Ill. Rev. Stat. 1981, ch. Ill, par. 4901 et seq.).

The general rule developed by the supreme court in Dolan protects those professionals licensed in one legislatively designated “school of medicine” from having their methods of treatment judged by a professional licensed in another legislatively designated “school of medicine.” Dolan encourages the diversity of choice of medical treatment which the legislature has authorized by the enactment of the various professional licensing statutes, including the Medical Practice Act. However, where the professionals involved are licensed under the same statute, even though the philosophies underlying their respective methods of treatment may differ in some respects, the principles advanced by Dolan are not threatened. Therefore, we hold that an allopathic physician can qualify, under the first part of the licensing portion of the two-part test set forth in Dolan, as an expert as to the standard of care owed to a patient by an osteopathic physician.

Before such testimony would be admissible, however, the second part of the Dolan test must be met. The party offering the testimony must offer a sufficient foundation that the expert has knowledge acquired through training, education, experience or the like, of the standard of care owed to his patient by the osteopath-defendant.

Defendants are incorrect, however, in seeking to apply the Dolan “school of medicine” approach to the determination of the standard of care applicable to PCH. In Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 415 N.E.2d 390, our supreme court refused to extend the Dolan rule to a case involving hospital negligence.

In Greenberg, the hospital was sued in negligence and strict liability for injuries resulting from X-ray therapy. The trial court granted summary judgment to defendant hospital and the supreme court reversed and remanded for further proceedings. Defendant argued that since plaintiff’s expert was a health physicist and thus not a member of any school of medicine, Dolan made his testimony inadmissible regarding conduct which was in the nature of a medical judgment. The supreme court rejected the defendant’s claim that Dolan was applicable to hospital negligence, basing its decision on the fact that a hospital is made up of a variety of professionals, not all of whom are licensed medical practitioners, and that a hospital has functions which are not strictly medical in nature.

Finally, defendants have raised several issues concerning instructions submitted by plaintiff and given over defendants’ objections and instructions submitted by defendants but refused by the trial court. Since we are remanding this case for a new trial, we will briefly discuss the alleged errors in the instructions given by the trial court.

Defendants contend that the trial court erred in instructing the jury that plaintiff could recover damages for future pain and suffering. Plaintiff’s instruction 8 contained the language “[t]he pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.” This portion of the instruction is taken verbatim from IPI Civil No. 30.05 (2d ed. 1971).

The trial court erred in giving this instruction. In order for an instruction on future pain and suffering to be proper, there must be evidence in the record that such pain and suffering is reasonably certain to occur in the future. (Jurney v. Lubeznik (1966), 72 Ill. App. 2d 117, 218 N.E.2d 799; IPI Civil No. 30.05 (2d ed. 1971).) Plaintiff testified that she had not experienced any problems after her recuperation from the surgeries. Plaintiff’s expert, Dr. Procell, was unable to say, with a reasonable degree of medical certainty, that plaintiff would experience any future medical problems as a result of the rupture of her appendix. The record does not contain any evidence which would support this instruction.

The trial court did not err by refusing to give defendant’s instruction 5 on comparative negligence. Defendant’s instruction 5 states, in part:

“It was the duty of the plaintiff before and at the time of the occurrence, to use ordinary care for her safety. That means it was the duty of the plaintiff to be free from contributory negligence.”

It is at least arguable from the evidence presented that plaintiff may have failed to use due care in leaving the hospital on March 9, 1978, against the advice of Dr. Olaf. This evidence, although slight, was sufficient to support the trial court’s decision to instruct the jury on comparative negligence.

However, defendant’s instruction does not correctly state the law as it exists after Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886. Defendant’s instruction is patterned after IPI Civil No. 10.03 (2d ed. 1971), used before Alvis, with an attempted modification to bring it into line with the rules of comparative negligence. IPI Civil No. A10.03 (Supp. 2d ed. 1981) is the correct instruction to give in a comparative negligence situation. It states:

“It was the duty of the plaintiff, before and at the time of the occurrence, to use ordinary care for [his own safety] [and] [the safety of his property]. The failure of a plaintiff to use ordinary care [for his own safety] [or] [for the safety of his property] is known as contributory negligence.
Plaintiff’s contributory negligence, if any, does not bar his recovery. However, the total amount of damages to which he would otherwise be entitled is reduced in proportion to the amount of his negligence. This is known as comparative negligence.”

The Comment to IPI Civil No. A10.03 states that 10.03 was changed because it is no longer true that plaintiff has a duty to be free from contributory negligence. The trial court did not err in refusing defendant’s instruction 5.

The instruction states that the duty of PCH was to provide “Standby Emergency Services” by having a registered nurse available, and a licensed physician “on call,” to the emergency room at all times. Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253, holds that such regulations can be evidence of the standard of care applicable to a hospital, but are not conclusive on that issue. Because the duty of the hospital to the plaintiff was not limited to having a registered nurse available, and a licensed physician “on call” to the emergency room at the time plaintiff presented herself for treatment, the tendered instruction was misleading in the sense that it did not fully set forth the duty of the hospital to the plaintiff.

Defendants Olaf and Foellner’s instruction 7 on mitigation of damages by plaintiff was also refused by the trial court. The instruction was IPI Civil No. 33.01 (2d ed. 1971); the notes to this section state that the instruction should never be given unless “(1) there is evidence creating an issue of fact as to the plaintiff’s negligence in securing medical attention, and (2) the damages resulting to the plaintiff from the failure to exercise due care in obtaining medical care are separable from his other injuries.”

We are of the opinion that the trial court properly refused defendant’s instruction 7. There is no evidence in the record to support the conclusion that plaintiff’s purported failure to secure medical treatment in a timely manner enhanced her injuries. The hospital and plaintiff’s physicians took plaintiff as they found her. The fact that a delay in treatment may have initially worsened her condition does not mitigate damages arising from a failure to properly diagnose and treat that worsened condition when plaintiff presented herself for treatment on February 28,1978.

For the reasons stated, the judgment of the circuit court of Cham-paign County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

MILLS, P.J., and TRAPP, J., concur.