author: JUSTICE SCOTT JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD JOSEPH NEWELL, Defendant-Appellant.
    Third District
    No. 3-83-0210
    Opinion filed January 31, 1984.
    HEIPLE, J., dissenting.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Samuel Naylor VI, State’s Attorney, of Carthage (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Richard Joseph Newell, a/k/a Joe Newell, appeals from his conviction of burglary. The defendant was convicted on the basis of accountability for the actions of codefendants Ricky Barnes, David Snyder, and David Bence. We reverse the defendant’s conviction.

The defendant argues initially on appeal that he was not proven guilty beyond a reasonable doubt. The evidence adduced at trial consisted primarily of the testimony of the codefendants. Codefendant Ricky Barnes testified for the State while David Snyder and David Bence testified on behalf of the defendant.

The uncontroverted evidence at trial demonstrated that during the week of March 15, 1982, Barnes, Snyder and Bence drove in the defendant’s truck to an unoccupied house owned by Floyd Bolton. Barnes entered the house through a window and then opened the door for Snyder and Bence. The three men selected several pieces of antique furniture, silverware and a clock and loaded them into the truck. After they returned to Bence’s house in Quincy, Barnes alone left to sell the furniture. Barnes returned with $250, which was divided equally between the three men.

The disputed evidence concerned the defendant’s role in the burglary of the Bolton house. Barnes testified that the defendant was present when the decision to take the furniture from the house was made and that the defendant advised them of the location of the house. Barnes further testified that the defendant gave him the use of the truck in furtherance of the decision to steal from the Bolton house. Barnes stated that he paid one-third of his share of the proceeds to the defendant as partial payment on a debt.

Conversely, Bence and Snyder both testified that the defendant was not present when the decision to burglarize the Bolton house was made. Bence testified that the three men decided to break into the house while driving aimlessly and smoking marijuana on the day of the offense. Both Bence and Snyder testified that they did not see the defendant on the day of the offense. Bence and Snyder each testified that Barnes drove the defendant’s truck so frequently that they believed the truck belonged to Barnes. Finally, Bence testified that he had originally learned of the Bolton house when he passed by the house and not from information given him by the defendant.

Thus, the only evidence of the defendant’s accountability for the burglary was the testimony of Barnes. As noted above, in exchange for his testimony, Barnes was not prosecuted for the instant offense. According to Barnes’ testimony, however, the agreement not to prosecute was reached after giving his confession implicating the defendant.

While it is true that the testimony of a single credible witness is sufficient to establish a defendant’s guilt beyond a reasonable doubt (People v. Rodriquez (1981), 100 Ill. App. 3d 244, 426 N.E.2d 586), we find that the testimony of Barnes was insufficient to establish the defendant’s guilt in the instant case. Accomplice testimony is subject to careful scrutiny. Such testimony may be the basis of a conviction only if it is sufficient to prove the defendant guilty beyond a reasonable doubt. People v. Wilson (1977), 66 Ill. 2d 346, 362 N.E.2d 291.

In the instant case, Barnes’ testimony was not sufficient to prove the defendant guilty in light of the testimony of the two remaining accomplices. The testimony of Snyder and Bence created a reasonable doubt whether the defendant solicited, aided or abetted the others in the commission of the burglary.

Therefore, the judgment of the circuit court of Hancock County is reversed.

Reversed.

ALLOY, J., concurs.

JUSTICE HEIPLE,

dissenting:

The defendant was convicted of burglary by accountability following a jury trial. The sole factual issue was whether the defendant took part in the crime. The testimony of the State’s witness, codefendant Barnes, and the testimony of the defendant’s witnesses, codefendants Snyder and Bence, was contradictory insofar as their testimony described the defendant’s participation in the crime: Barnes stated the defendant participated in the crime; Snyder and Bence claimed the defendant had nothing to do with the crime. Obviously, the jury chose to believe the testimony of Barnes and not the testimony of Snyder and Bence.

The majority opinion, in effect, finds that the testimony of Snyder and Bence cast a reasonable doubt upon the testimony of Barnes. Thus, the testimony of Barnes is insufficient to prove the defendant guilty beyond a reasonable doubt. I believe the majority has improperly substituted its judgment on the credibility of the witnesses for that of the jury. Therefore, I dissent.

In People v. Palmer (1962), 26 Ill. 2d 464, the only witness implicating the defendant was the sole alleged accomplice, Mr. Yancey. For the defense, there were several alibi witnesses who, in sum, testified that the defendant was not where Yancey claimed he was on the date of the crime. Notwithstanding the direct conflict between the testimony of the alibi witnesses and the testimony of the accomplice, and despite the fact the accomplice was a convicted felon and a narcotics addict, the court recognized that the testimony of such an accomplice

“is competent, even without corroboration, and we have repeatedly held that a conviction can be sustained by the uncorroborated testimony of an accomplice if the trier of fact is convinced of guilt beyond a reasonable doubt. People v. Flaherty, 396 Ill. 304, 314; People v. Leslie, 18 Ill. 2d 420, 424.
This court will not substitute its judgment on the matter of credibility of witnesses and the weight to be given their testimony where the trial judge saw and heard them testify, unless we can say the proof was so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt. People v. Mack, 25 Ill. 2d 416, 422; People v. Dillon, 24 Ill. 2d 122.” 26 Ill. 2d 464, 469.

The only fact noted by the majority opinion which sets Barnes apart from the other two accomplices is that Barnes was granted immunity in return for his testimony. While hopes of leniency or benefits from the prosecution must be taken into consideration, they are not dispositive of an accomplice’s credibility. (See People v. Flaherty (1947), 396 Ill. 304, 314.) Otherwise, every offer of immunity would render an accomplice’s testimony without credibility. Consequently, convictions based upon accomplice testimony will be reversed only if such testimony is impeachable by prior inconsistent statements, contradicted by undisputed facts or other credible evidence, or is improbable or incredible. People v. Bennett (1980), 90 Ill. App. 3d 64, 71.

In the instant case, there is conflicting testimony among the accomplices concerning the defendant’s involvement in the crime. It has been noted that such conflicting testimony may cast a reasonable doubt upon the testimony of the State’s witness and the defendant’s guilt. (People v. Hermens (1955), 5 Ill. 2d 277, 286, citing People v. Harvey (1926), 321 Ill. 361.) However, the doubt only arises where the accomplice has an interest in the result of the trial in that he may obtain benefits from the State in exchange for his testimony and his testimony at trial is impeached with prior inconsistent statements. Yet, even then, the question of credibility is one for the jury, and the jury’s determination should not be disturbed on appeal. People v. Harvey (1926), 321 Ill. 361, 367.

Barnes’ testimony at trial was not impeached by prior inconsistent statements. Indeed, Barnes had confessed to the crime and implicated his accomplices even before the State offered immunity in exchange for his testimony. Also, there is nothing in the background of Snyder and Bence which would entitle their testimony to greater credibility; both Snyder and Bence are repeat offenders. From a review of the record, I cannot say that Barnes’ testimony was improbable or incredible.

In short, the record contains no compelling evidence which requires a conclusion that Barnes fabricated his story. The jury viewed the witnesses, was aware of their background and any offers of immunity. The record supports the manner in which the jury determined the credibility of the witnesses and weighed the evidence. I cannot support a holding which finds the proof was so unsatisfactory as to justify a reasonable doubt as to the defendant’s guilt. Therefore, I respectfully dissent.


source: Caselaw Access Project

author: JUSTICE ALLOY

license: Public Domain

text:
    RONALD EDWARDS, Plaintiff-Appellant, v. RICHARD FOX, Defendant-Appellee.
    Third District
    No. 3—83—0469
    Opinion filed January 26, 1984.
    Peter H. Lousberg, of Lousberg, McClean, Snyder and Schwarz, of Rock Island, for appellant.
    Richard M. Batcher, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

This appeal is brought by way of certification from the trial court (87 Ill. 2d R 308(a)), and the issue presented is whether, after consolidation of two actions into one, the plaintiff of one of the actions, who is also a third-party defendant in the other action, can voluntarily dismiss his action under section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1009).

The pertinent procedural facts are not in' dispute. Plaintiff Ronald Edwards and his wife Lodia Edwards were injured in an automobile accident on May 3, 1981. Ronald was the driver of the auto and Lodia, a passenger, while the driver of the other vehicle was Richard Fox. Lodia Edwards filed a personal injury action against Fox on March 9, 1982, in Warren County Circuit Court. Later, on May 24, 1982, Ronald Edwards filed a separate personal injury action against Fox, the claim also arising from the May 1981 auto accident. At some point prior to a defense motion to consolidate the two actions, the defendant Fox filed a third-party complaint, seeking contribution from Ronald Edwards, in the action filed by Lodia Edwards. Subsequently, after the filing of Ronald Edwards’ separate action, the defense made an oral motion to consolidate the two actions. The plaintiffs objected to any consolidation, but the trial court ordered the two actions consolidated into one. In response, Lodia Edwards filed a motion to sever, contending that her case was ready for trial, while her husband’s case was not. The motion to sever was denied.

Thereafter, plaintiff Ronald Edwards filed his motion for voluntary dismissal, pursuant to section 2 — 1009 of the Code of Civil Procedure. Section 2 — 1009, in pertinent part, states:

“(a) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any party thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter the plaintiff may dismiss, only on terms fixed by the court ***. After a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant’s consent.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1009(a).)

Ronald Edwards’ motion for voluntary dismissal tendered costs to the defendant and stated (1) that no trial or hearing had commenced and (2) that no counterclaim had been filed against him. Defendant Fox resisted the move for voluntary dismissal, contending that as a result of the consolidation of the two actions, the previously filed third-party complaint against Ronald Edwards, in the Lodia Edwards’ suit, was in all but label a counterclaim such as would prevent any dismissal without the defendant’s consent. The defendant also noted that the allowance of the voluntary dismissal motion would be contrary to considerations of judicial economy and fairness. The court agreed with the defendant Fox and denied Ronald Edwards’ voluntary dismissal motion. The court did, however, accept that the issue was one upon which a substantial ground for difference of opinion existed and it certified the following question for decision on appeal:

“Whether one Plaintiff can voluntarily dismiss as a matter of right,
(a) Before a hearing has been held in the cause he filed,
(b) When his suit was consolidated over his objection with a separate action brought by a second Plaintiff because the claims arose out of the same automobile accident,
(c) No counterclaim has been filed in the first Plaintiff’s cause, but
(d) In the consolidated cause the common Defendant has filed a Third-Party Complaint for contribution in the second Plaintiff’s case, the contribution being sought predicated on the alleged negligence of the first plaintiff, who seeks voluntary dismissal of his claim.”

We granted leave to appeal on the issue certified.

Appellant Ronald Edwards’ emphasis, understandably, is upon the plaintiff’s right to a voluntary dismissal, without prejudice, pursuant to section 2 — 1009, where no trial or hearing had commenced. It is correctly pointed out that such a dismissal is obtainable without regard to leave of court. The defense does not dispute the foregoing, but it points rather to a limitation upon the right to a voluntary dismissal found at the last sentence of 2 — 1009(a): “After a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant’s consent.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1009(a).) The defense argues, convincingly, that once the consolidation of the two actions had occurred, so that the two actions were one, the third-party complaint against Ronald Edwards for contribution was, in substance and effect, a counterclaim. It is noted that a claim for contribution can be made either by third-party complaint or by counterclaim (Ill. Rev. Stat. 1981, ch. 70, par. 305), with the choice grounded upon whether the person against whom contribution is sought is already a party or not. (Compare Ill. Rev. Stat. 1981, ch. 110, par. 2 — 608(a), with Ill. Rev. Stat. 1981, ch. 110, par. 2— 406(b).) It is clear that had the Edwards’ case been originally brought as one action, then the defendant’s contribution claim would have been presented by way of counterclaim. Instead, where Ronald Edwards was not a party to the suit brought by his wife, the defendant had to present its claim as a third-party action. The consolidation of the two actions, however, clearly had the effect of merging the two actions, as the court’s order makes evident. Thus, the effect of the consolidation was that the individual actions lost their individual identity. (See Shannon v. Stookey (1978), 59 Ill. App. 3d 573, 577, 375 N.E.2d 881; Vitale v. Dorgan (1975), 25 Ill. App. 3d 941, 944, 323 N.E.2d 616.) The result, so far as the contribution claim of defendant is concerned, was that though labeled a “third-party complaint,” it was in substance indistinguishable from a counterclaim. Section 2— 608(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 608(a)) defines a counterclaim as “[a]ny claim by one or more defendants against one or more plaintiffs, or against one or more co-defendants, whether in the nature of setoff, recoupment, cross claim or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief ***.”

Under the circumstances presented in this case, we hold that after consolidation, the defendant’s third-party claim for contribution was properly considered as a counterclaim, for purposes of applying section 2 — 1009 of the Code and its rules respecting voluntary dismissals without prejudice. A contrary conclusion would purposelessly promote label over substance and would run contrary to considerations of judicial economy and fairness. We are mindful that in other contexts there are substantial differences between the nature and procedure respecting counterclaims and third-party actions. However, in the context presented in the instant case, the distinctions do not pertain.

The decision of the circuit court of Warren County, denying plaintiff Ronald Edwards’ motion for voluntary dismissal was correct, and we affirm.

Affirmed.

SCOTT and HEIPLE, JJ., concur.


author: JUSTICE HEIPLE PRESIDING JUSTICE STOUDER,

text:
    ELIZABETH DILLIE, Plaintiff-Appellee, v. KELLY LEE BISBY et al., Defendants-Appellants.
    Third District
    No. 3-83-0106
    Opinion filed January 26, 1984.
    STOUDER, P.J., specially concurring.
    Max D. Cartwright, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellants Kelly Lee Bisby and William A. Bisby.

      Robert T. Park, of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island, for appellants Dianne J. Verschoore and Scott Verschoore.
    Shepard Gould, Peter D. Kasdin, and Philip J. Nathanson, all of Kasdin & Nathanson, of Chicago, and Frank G. Schubert, of Rock Island, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

In this personal injury action, the defendants filed motions to dismiss with prejudice because of the plaintiff’s failure to exercise due diligence in obtaining service of process after the statute of limitations had run. (87 Ill. 2d R. 103.) The plaintiff filed a motion for voluntary dismissal. The plaintiff’s motion was granted, and the defendants’ motions were denied. The defendants appeal.

The plaintiff correctly argues that an order granting a motion for voluntary dismissal and denying a motion to dismiss is not final or appealable. Denial of a motion to strike or dismiss is an interlocutory order, which is not a final disposition of the proceeding sufficient to confer jurisdiction on an appellate court. (Rosinia v. Gusmano (1980), 90 Ill. App. 3d 882.) Likewise, an order of voluntary dismissal is not a final disposition because the plaintiff is permitted to refile the action within one year. Ill. Rev. Stat. 1981, ch. 110, par. 13 — 217.

Although the plaintiff has not filed a motion to dismiss, an appellate court is without jurisdiction to review nonfinal orders. Therefore, we will dismiss the defendants’ appeal on our own motion.

It is to be noted, however, that the author of this opinion and Justice Scott, who concurs therewith, both also concur with the views expressed by Justice Stouder in the special concurring opinion.

Appeal dismissed.

SCOTT, J., concurs.

PRESIDING JUSTICE STOUDER,

specially concurring:

I concur in the result reached by the majority. However, I feel that a contrary result would be more just, fair and reasonable. A failure to review a voluntary dismissal allows the plaintiff an opportunity to manipulate the judicial system. This is precisely what has occurred in this case. The defendant has alleged that the plaintiff failed to diligently serve a party-defendant and moved to dismiss with prejudice pursuant to Supreme Court Rule 103(b). The plaintiff then moved for a voluntary dismissal, which plaintiff contends that it has an absolute right to. The absolute right to a voluntary dismissal of its complaint without prejudice prohibits or deprives a trial court of the opportunity to consider the dismissal motion filed by the defendant under Supreme Court Rule 103(b). The majority here contends that a voluntary dismissal under section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1009) is not appealable. Section 13— 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 217) then permits the plaintiff to file a new lawsuit wdthin a one-year period following the voluntary dismissal of the suit. Plaintiff has, therefore, completely avoided a dismissal with prejudice which would have barred refiling of the action.

Recently the First District has reviewed a voluntary dismissal case, In re Marriage of Fine (1983), 116 Ill. App. 3d 875, despite its apparent unappealability, to decide what constitutes a hearing under section 2 — 1009. The First District decided that a hearing is merely the equitable counterpart of a trial and, therefore, that a voluntary dismissal could be granted up to the time the trial commenced despite previous holdings by the First District to the contrary. What is most instructive is that the First District said nothing about reviewing a judgment which the majority here holds is not a final determination. In this case, the plaintiff argues that two Illinois Supreme Court cases control on the issue of finality. (Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, 449 N.E.2d 112; Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480.) Both of these cases involve dismissals for want of prosecution rather than a voluntary dismissal as in this case. However, a distinction between a voluntary dismissal and dismissal for want of prosecution is difficult because both dismissals are without prejudice and both are subject to the one-year extension statute (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 217). Therefore, it is curious that the First District reviewed Fine at all if Wold and Flores are binding as to the reviewability of voluntary dismissals.

To further complicate matters in this area section 13 — 217, the one-year extension of the statute of limitations, has been broadly interpreted by the Illinois Supreme Court to protect a plaintiff even though he may not have been a “diligent suitor.” (Franzese v. Trinko (1977), 66 Ill. 2d 136, 361 N.E.2d 585; Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill. 2d 616, 363 N.E.2d 796.) In these cases the Illinois Supreme Court claims to have read section 13 — 217 literally by reading the sentence “then, whether or not the time limitation for bringing such action expires during the pendency of such action” to mean that section 13 — 217 provides for an absolute right to refile except for cases not filed initially within the period of the statute of limitations. Read literally, however, even cases initiated outside of the limitation period should be subject to section 13 — 217 because the statute specifies that it is immaterial whether the statute of limitations expires during the pendency of the action meaning it could expire either before or after. This result was clearly not the intent of the legislature. I also do not believe that the statute should protect the plaintiff who fails to diligently serve a defendant.

Protecting an irresponsible plaintiff clearly allows parties to circumvent Supreme Court Rule 103(b). Supreme Court Rule 103(b) demands that a verdict of dismissal with prejudice be entered against a plaintiff who fails to exercise reasonable diligence in obtaining service on a defendant. The decisions which have approved a voluntary dismissal of a complaint where a dismissal motion for negligence in service of summons under Rule 103(b) is pending have both failed to discuss and appreciate that permitting the dismissal without prejudice effectively nullifies Rule 103(b). The skillful but nondiligent practitioner may nullify Rule 103(b) by merely moving to dismiss his complaint. Ordinary rules of statutory construction would not permit the interpretation of one statute to nullify another and, yet, this is exactly what has happened in this case. It seems to me that at a minimum any defense motion which might result in the dismissal of a complaint with prejudice should have priority over a plaintiff’s voluntary dismissal motion. LaBarge v. Corn Belt Bank (1981), 101 Ill. App. 3d 741, 428 N.E.2d 711, illustrates the confusion and unsatisfactory nature of the application of this rule.

Because stare decisis so requires, I reluctantly concur in the result reached by the majority.


author: JUSTICE SCOTT

text:
    SANDRA GARLAND, Plaintiff-Appellee, v. THE DEPARTMENT OF LABOR, BUREAU OF EMPLOYMENT SECURITY, DIVISION OF UNEMPLOYMENT INSURANCE, et al., Defendants-Appellants.
    Third District
    No. 3-83-0417
    Opinion filed January 31, 1984.

      Neil F. Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellants.
    Cynthia M. Raccuglia, of Anthony C. Raccuglia & Associates, of Peru, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This matter comes before us on administrative review of a decision by the Illinois Department of Labor, Bureau of Employment Security. The plaintiff, Sandra Garland, applied to the Department for unemployment compensation benefits. Her application was denied. On administrative review in the circuit court of Bureau County, the decision of the Department was reversed and the plaintiff’s application was allowed. The Department appeals the decision of the circuit court of Bureau County for our consideration.

Prior to May 20, 1981, Sandra Garland’s husband, Darwin Garland, was president of the Garland Construction Company and owned all of the stock of that corporation. Sandra served as the company’s secretary. She was also on the company payroll. There were business reversals in November of 1980, and the plaintiff was laid off. She applied for unemployment benefits through the Department of Labor’s Bureau of Employment Security. In May 1981, Darwin Garland transferred all of his stock in the corporation to his wife and she became the president. The purpose of this transaction was to qualify the business as a “female minority corporation” as that term is defined under Illinois law. Sandra Garland was still not employed, and continued to maintain her claim for unemployment benefits.

In a hearing before the Bureau of Employment Security, Sandra Garland was denied unemployment benefits both for the period of time when she was corporate secretary, and later for the period of time when she was corporate president. During this time, except for the week of May 20, 1981, the plaintiff was a corporate officer in name only, and she performed no services for the corporation nor did the corporation pay her any wages. The Bureau of Employment Security denied Sandra Garland’s request for unemployment compensation. The Bureau concluded that unemployment compensation is only available for those who are involuntarily unemployed, and because Garland Construction Company was at all times a closely held family corporation, the Bureau concluded that Sandra Garland had control over her employment and thus her unemployment was voluntary, not involuntary.

As recited at the outset, the plaintiff appealed the decision of the Bureau to the circuit court. On administrative review, the circuit court disagreed with the Bureau of Unemployment Security and awarded unemployment benefits to Mrs. Garland. The Department of Labor has appealed.

According to the Unemployment Insurance Act, “an unemployed individual shall be eligible to receive benefits.” (Ill. Rev. Stat. 1981, ch. 48, par. 420.) An individual is “unemployed in any week with respect to which no wages are payable to him and during which he performs no services.” (Ill. Rev. Stat. 1981, ch. 48, par. 349.) The purpose of these benefits, and indeed the purpose of the Unemployment Insurance Act, is to benefit only those individuals whose “[economic insecurity [is] due to involuntary unemployment.” (Ill. Rev. Stat. 1981, ch. 48, par. 300.) Yet, the legislation is to be construed liberally to benefit those intended to be assisted. Yurs v. Director of Labor (1968), 94 Ill. App. 2d 96, 235 N.E.2d 871.

It is noteworthy that the Unemployment Insurance Act establishes an insurance program, and not a tax. Contributions to the program are placed in trust for those it is intended to assist. (Lindley v. Murphy (1944), 387 Ill. 506, 56 N.E.2d 832; Zehender & Factor, Inc. v. Murphy (1944), 386 Ill. 258, 53 N.E.2d 944.) Thus, unlike a tax, where benefits are not necessarily payable to all those who pay the tax, benefits of the insurance program should presumably be payable to all for whom contributions must be paid. Contributions are payable by an “employer” with respect to “wages” payable for “employment.” (Ill. Rev. Stat. 1981, ch. 48, par. 550.) Wages include “every form of remuneration for personal services including salaries, commissions, bonuses, and the reasonable money value of all remuneration in any medium other than cash.” (Ill. Rev. Stat. 1981, ch. 48, par. 344.) Employment includes “all services performed by an officer of a business corporation *** without regard to whether such officer is or is not a stockholder or member of the board of directors of the corporation.” (Ill. Rev. Stat. 1981, ch. 48, par. 316.) Can it be then, that this stockholder-officer for whom required contributions were paid can never benefit from the contributions made in her behalf?

The Department of Labor argues that to permit payment of benefits to the plaintiff would open the system to “manipulation” by owners of closely held corporations with a “potential for abuse of the system.” Such manipulation was apparently presaged in part by the legislature as it has exempted from the definition of employment “service performed by an individual in the employ of his son, daughter or spouse and service performed by a child under the age of 18 in the employ of his father or mother.” (Ill. Rev. Stat. 1981, ch. 48, par. 328.) The Department urges that we refuse “to exalt form over substance and realistically conclude that a family’s attempt to observe corporate formalities does not control a decision as to eligibility of a family member for employment benefits.” Nevertheless, the legislative scheme and the Department’s administration of that scheme seem to exalt form over substance in the requirement to pay contributions. Contributions are required of corporate officers even though the officer is a shareholder and director. (Ill. Rev. Stat. 1981, ch. 48, par. 316.) While exception is made where the employing unit is a family member, no statutory or administrative rule suggests that we look beyond legal formalities to determine the effective owner of the employing unit. Statutory authority exists for the Director of the Department of Labor to “determine all questions of general policy, promulgate rules and regulations and be responsible for the administration of [the Unemployment Insurance] Act.” (Ill. Rev. Stat. 1981, ch. 48, par. 610.) Yet, no administrative rule suggests that the exemption applicable to family employment be applied only after piercing the corporate facade to reveal the true identity of the employing entity. Thus, it remains that employers must pay contributions for the benefit of corporate officers, even though those officers may be shareholders and directors. It seems anomalous that funds should be placed in trust for the benefit of these officer-employees with no hope that the funds would ever be available for the employees’ benefit because these employees can control the terms of their own employment.

We are mindful that other jurisdictions have chosen to preclude such individuals from benefiting from the employer contributions made on their behalf. (DeVivo v. Levine (1976), 51 App. Div. 2d 619, 377 N.Y.S.2d 309; Starinieri v. Unemployment Compensation Board of Review (1972), 447 Pa. 256, 289 A.2d 726.) We recognize these decisions should be persuasive in our deliberations. (American Steel Foundries v. Gordon (1949), 404 Ill. 174, 88 N.E.2d 465.) Nevertheless, the decisions of our supreme court which guide us first and foremost in our consideration of this issue convince us that the law of those jurisdictions is not controlling here. The Illinois statute is an insurance program whereby funds are placed in trust for the benefit of those in employment. (Lindley v. Murphy (1944), 387 Ill. 506, 56 N.E.2d 832; Zehender & Factor, Inc. v. Murphy (1944), 386 Ill. 258, 53 N.E.2d 944.) Plaintiff was in the employ of Garland Construction Company until her termination. (See Ill. Rev. Stat. 1981, ch. 48, par. 316.) To deny her benefits under the rule of construction urged upon us by the Department would be to deny her benefits under all circumstances, and such a rule would clearly be inconsistent with the liberal application of the statute which our reviewing courts have provided. Yurs v. Director of Labor (1968), 94 Ill. App. 2d 96, 235 N.E.2d 871.

We acknowledge the potential for abuse which our holding provides. Nevertheless, the legislature has previously demonstrated a capacity to deal with such potential in the family employment situation. (Ill. Rev. Stat. 1981, ch. 48, par. 328.) If the legislature or the Director choose to confront this problem with a workable solution, opportunities for manipulation will be eliminated. Until such time, we must interpret the statute and the rules as they exist, without judicial revision.

Accordingly, the decision of the circuit court of Bureau County must be affirmed. The plaintiff is entitled to unemployment compensation benefits, benefits which her employer paid into trust on her behalf in the interest of economic security.

Affirmed.

ALLOY and BARRY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOROTHY GRICE, Defendant-Appellant.
    Third District
    No. 3—83—0856
    Opinion filed January 31, 1984.
    John Malvik, of Braud, Warner, Neppl & Westensee, Ltd., of Rock Island, for appellant.
    Raymond Kimbell, State’s Attorney, of Galesburg (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

Defendant, Dorothy Grice, was charged by information with the offense of retail theft over $150. Defendant was tried before a jury with two codefendants and was found “guilty but mentally ill” and thereafter sentenced to the Illinois Department of Corrections for a determinate term of three years.

The only issue presented for review is whether the trial court erred in instructing the jury that the jury could return a verdict of “guilty but mentally ill.”

The record discloses that the defendant took possession of certain items of clothing which were for sale in a Galesburg store and that she was observed taking such items. An understanding of the nature of the verdict requires some reference to the statutory provision involving the “mental illness’ specification, set forth in the Criminal Code of 1961 at section 6 — 2:

“(c) A person who, at the time of the commission of a criminal offense, was not insane but was suffering from a mental illness, is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill.
(d) For purposes of this Section, ‘mental illness’ or ‘mentally ill’ means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law.” (Ill. Rev. Stat. 1981, ch. 38, par. 6 — 2, eff. Sept. 17, 1981. See also People v. Dalby (1983), 115 Ill. App. 3d 35, 38, 450 N.E.2d 31.)

This amendment establishes that a person can be “mentally ill” and not yet legally insane, the distinction being that a person who is only mentally ill is held responsible for his acts.

At the trial, two experts testified. Dr. Sannito, a clinical psychologist, testified on behalf of the defense. In his opinion, defendant suffered from a “mental disease” called kleptomania. This condition was related to a more general disease called narcissism. It was Dr. Sannito’s opinion that as a result of defendant’s mental condition, defendant was unable to conform her conduct to the requirements of law. Dr. Lozano, a court-appointed psychiatrist, testified on behalf of the People. Dr. Lozano’s opinion was that defendant had a “character disorder,” that is, an antisocial personality. In Dr. Lozano’s opinion, the defendant was not a kleptomaniac and not mentally ill at the time of the offense. Dr. Lozano said that defendant understood the wrongfulness of her acts and defendant’s personality disorder did not rise to the level of insanity.

As the State correctly notes, the testimony of experts must be judged by the same rules of weight and credibility which are applied to other witnesses. (Cannell v. State Farm Fire & Casualty Co. (1975), 25 Ill. App. 3d 907, 912, 323 N.E.2d 418, 422.) Discrepancies in testimony in evidence are matters for the jury’s consideration, and the jury is free to disregard an expert’s conclusions of fact. (Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 685, 418 N.E.2d 1079, 1085.) The weight to be accorded an expert’s opinion is measured in part on the factual details supporting his conclusions (People v. Kuhn (1979), 68 Ill. App. 3d 59, 64, 385 N.E.2d 388, 391), and the jury is not required to accept the opinions of experts concerning the defendant’s sanity. People v. Martin (1980), 87 Ill. App. 3d 77, 81, 409 N.E.2d 114, 118.

The statutory provision directing the submission of an instruction on guilty but mentally ill is section 115 — 4(j) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4(j)). In pertinent part, that section states:

“When the affirmative defense of insanity has been presented during the trial, the court, where warranted by the evidence, shall also provide the jury with a special verdict form of guilty but mentally ill, as to each offense charged and shall separately instruct the jury that a special verdict of guilty but mentally ill may be returned instead of a general verdict, but that such special verdict requires a finding by the jury beyond a reasonable doubt that the defendant committed the acts charged and that the defendant was not legally insane at the time of the commission of those acts but that he was mentally ill at such time.”

In the instant case, the affirmative defense of insanity had been presented during the trial. Defendant’s expert testified that the defendant was suffering from a mental disease, kleptomania, relating to a more general disease of narcissism, preventing her from conforming her conduct to the requirements of the law. Thus, the defense’s own evidence, properly before the jury, indicated that the defendant was suffering from a mental condition and disorder which afflicted her at the time of the commission of the offense and impaired her judgment. This evidence, presented by the defense expert, was sufficient to put the issue of the presence of a mental illness before the jury and warranted the instruction given by the court respecting guilty but mentally ill. True, the defense expert also was of the opinion, and so stated, that the defendant’s mental disease was so severe as to prevent her from conforming her conduct to the standards of the law— She was insane, according to him. However, other evidence, before the jury, being testimony from the State’s witness, indicated that the defendant, at the time of the offense, understood the wrongfulness of her acts, and, therefore, that she was not insane. Under the authorities before cited, the jury was free to accept part of each expert’s testimony, and reject other parts of the testimony. That is obviously what it did in the instant case. It accepted Dr. Sannito’s diagnosis of the defendant’s mental disorder, but it rejected his conclusion as to the severity of the disorder and its effect upon her ability to conform her conduct to the legal requirements. The jury, in so concluding, rejected Dr. Lozano’s opinion that the defendant was not insane or mentally ill, but it accepted his conclusions that she was capable of conforming her conduct to the requirements of the law. These conclusions were within the jury’s province.

We reject the defense’s suggestion that the State was required to present testimony indicating the defendant was mentally ill, but not insane, in order to have the instruction given. Where the defense has presented an insanity defense, through proper and sufficient evidence, that evidence, in most cases, will also be sufficient, if there is other evidence of the defendant’s ability to conform his conduct to the requirements of the law, or of his substantial capacity to appreciate the criminality of his conduct, to justify the trial judge’s giving the guilty but mentally ill instruction to the jury.

We find no error in the instant case in the instruction of the jury regarding the availability of the guilty but mentally ill verdict.

For the reasons stated, the judgment of the circuit court of Knox County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEORA MOORE, Defendant-Appellant.
    Third District
    No. 3-83-0299
    Opinion filed January 31, 1984.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Leora Moore was charged with aggravated battery of a child, cruelty to children and endangering the life or health of a child. After dismissal of the first two counts by the trial judge, Moore was convicted of endangering the life or health of a child. (Ill. Rev. Stat. 1981, ch. 23, par. 2354.) She was sentenced to a one-year term of probation with the first 90 days to be served in the Peoria County jail.

After the conviction, Moore filed a motion in arrest of judgment alleging the indictment failed to properly state a necessary element of the offense of endangering the life or health of a child. The motion was denied. Moore appeals.

Although the State has conceded that the indictment did not properly state the intent element of the offense, this does not dispose of the appeal because Moore also raised as an issue that the evidence was insufficient to sustain an endangerment charge. This count must be decided because to merely rule upon the sufficiency of the indictment risks a double jeopardy violation should the charge be refiled.

The Illinois Supreme Court’s decision in People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366, mandates that a court review on sufficiency grounds. The failure to so review denies the defendant an opportunity to have a verdict of acquittal entered on his behalf. The defendant in the Taylor case sought review of several issues among which was a review on sufficiency grounds. The appellate court reversed because a confession had been admitted which should have been suppressed but refused to review the sufficiency of evidence question. The Illinois Supreme Court found that the appellate court must review the defendant’s sufficiency contention or risk subjecting defendant to double jeopardy. (People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 374.) People v. Taylor cannot be distinguished from this case because the defendant in this case filed a motion in arrest of judgment rather than moving for a retrial because although a motion in arrest of judgment is not an outright request for a new trial, the State is virtually certain to reindict the defendant. Otherwise, the defendant in this case like the defendant in Taylor would be forced to forego her right to have a verdict of acquittal entered in her favor.

Like the court in Taylor, we find that Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141, is directly applicable to this case. In the Burks case, the Supreme Court for the first time distinguished between double jeopardy when a reversal was based solely upon trial error and those reversals based upon insufficiency of evidence. The Supreme Court in Burks discussed at length its previous double jeopardy decisions. Among those cases discussed was Ball v. United States (1896), 163 U.S. 662, 41 L.Ed. 300, 16 S. Ct. 1192, a case where the defendant was convicted on a fatally defective indictment. In distinguishing the Burks case from Ball v. United States, the Supreme Court in Burks made a point of the fact that Ball typified a reversal for trial error only and therefore, a retrial would not violate the double jeopardy clause. Burks v. United States on the other hand included a claim that the evidence at trial was insufficient to sustain the verdict. The appellate court had reversed on the grounds of trial error only and granted a retrial ignoring defendant’s claim that the evidence at the initial trial was insufficient. In reversing the-appellate court the Supreme Court-reasoned that:

“The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” (Burks v. United States (1978), 437 U.S. 1, 11, 57 L. Ed. 2d 1, 9, 98 S. Ct. 2141, 2147.)

Such a danger clearly exists when an appellate court reviews and reverses on the basis of trial error and ignores a claim that there was insufficient evidence to sustain a verdict.

The United States Supreme Court recognized that reversal on sufficiency grounds demands that a judgment of acquittal be entered for the defendant. A failure to review on sufficiency grounds, therefore, denies a defendant an opportunity to be acquitted. No person should be denied the right to acquittal because he also moved for a new trial. If we do not consider the sufficiency-of-evidence issue in this case, the defendant is forced to waive his right to have a verdict of acquittal entered on his behalf.

We are not persuaded by the reasoning of the court in People v. Miller (1983), 116 Ill. App. 3d 361, 452 N.E.2d 391, that a defective indictment does not confer jurisdiction upon the trial court, and, therefore, that a defendant who has been convicted on a defective indictment was never legally in jeopardy. This is no longer the law in the State of Illinois. In People v. Gilmore (1976), 63 Ill. 2d 23, 344 N.E.2d 456, the Illinois Supreme Court refused to accept earlier court decisions which supported the proposition that a defective indictment failed to confer “subject matter” jurisdiction upon the circuit court. The Illinois Supreme Court found that jurisdiction was conferred by the Illinois Constitution, section 9, article VI, rather than by the indictment. (63 Ill. 2d 23, 26, 344 N.E.2d 456, 458.) The Illinois Supreme Court therefore, rejected the lack of jurisdiction argument and reasserted the principles governing subject matter jurisdiction which are too frequently ignored or overlooked when “jurisdiction” is questioned. We find that an indictment which fails to state an element of an offense is neither void nor does a court dealing with such an indictment lack jurisdiction.

We have, therefore, reviewed the sufficiency of the evidence in this case and find that it was insufficient to sustain a conviction for endangering the life or health of a child. The only proof in this case is that Leora Moore spanked her daughter when she returned to assume care and custody of LaDonna in June of 1982. This was undisputedly after LaDonna had received the bums on her buttocks. The principal evidence in this case was the testimony of LaDonna — much of which was not considered by the judge due to its unreliability. LaDonna’s testimony was contradictory and also conflicted with testimony given in a prior proceeding. The medical evidence was inconclusive as to when the wounds which caused the scars on LaDonna’s back and legs were inflicted or exactly how they were inflicted. There was no significant evidence that the burns were not healed at the time Leora spanked her daughter or that she used anything but her hand. The evidence certainly does not establish the wilful nature of the defendant’s conduct.

We consider child abuse a very serious offense and certainly do not condone in any way what happened to LaDonna Moore. There simply was not enough evidence in this ease to sustain the conviction.

We, therefore, reverse the circuit court of Peoria County and ask the court to enter a judgment of acquittal.

Reversed.

SCOTT and HEIPLE, JJ., concur.


text:
    JEFFREY MICHALAK, Plaintiff-Appellant, v. THE COUNTY OF LA SALLE et al., Defendants-Appellees.
    Third District
    No. 3—83—0243
    Opinion filed January 31, 1984.

      Scott Picco, of Leo J. Schwamberger, Ltd., of La Salle, for appellant.
    Daniel K. Russell, of Johnson, Martin & Russell, of Princeton, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

The plaintiff, Jeffrey Michalak, brought suit against the county of La Salle for personal injuries he incurred in a one-car collision on the Troy Grove blacktop. On November 4, 1980, the plaintiff was northbound on the blacktop when he leaned over to put the ashes of a cigarette he was smoking into the ashtray. At that time, his car went off the road onto the right-hand shoulder causing him to lose control. After several attempts to regain control of his auto, the plaintiff’s car went into a spin and slid into the guardrail on the left-hand side of the road. The end of the guardrail pierced the plaintiff’s car and amputated his left leg between the ankle and the knee.

The plaintiff brought suit against the county of La Salle alleging that the county negligently installed and maintained the guardrail in that the end of the guardrail was not blunted or buried. The county filed a motion for summary judgment, and the circuit court of La Salle County awarded judgment for the defendant based on that motion, finding that the defendant county owed no duty to the plaintiff, or in the alternative, that if a duty was owed, the defendant’s alleged negligence in constructing and maintaining the guardrail was not the proximate cause of the plaintiff’s injury. The plaintiff has appealed the judgment of the circuit court, asserting that neither of the alternative findings are so clearly established by the affidavits and depositions such that no genuine issue of material fact remains for trial.

We agree that the circuit court incorrectly determined that the county owed no duty to the plaintiff. In fact, the cases which the county itself cites argue forcefully that a duty should be owed under these circumstances. The recent supreme court case of Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617, stands for the proposition that a duty is owed where the occurrence involved is reasonably foreseeable. We are advised that an occurrence is reasonably foreseeable if a reasonably prudent person could have foreseen as likely the events which did transpire. If those events are “highly extraordinary” or “tragically bizarre” or “unique” then the occurrence is not reasonably foreseeable. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 380-81, 308 N.E.2d 617, 619-20 (Goldenhersh, J., dissenting).) A duty may be owed to a motorist who deviates from the ordinary course of travel if such a deviation was reasonably foreseeable. (Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 423 N.E.2d 519.) In determining whether a deviation from the ordinary course of travel is reasonably foreseeable, the distance of the obstruction from the highway, from the ordinary course of travel, is relevant. Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 725, 423 N.E.2d 519, 522.

We believe the mere existence of the guardrail, the fact that the county erected the guardrail at the location in question, concedes the foreseeability that motorists would deviate from the ordinary course of travel in the direction of the guardrail. If motorists never deviated from the traveled portion of the highway, then the guardrail itself would not be necessary. The guardrail stands as a warning of danger, a guide to the eye in keeping to the roadway, and a barrier of sufficient strength to withstand the ordinary weights and forces to which it is subjected. (39 Am. Jur. 2d Highways, Streets, & Bridges sec. 402 (1968).) Therefore, the defendant county cannot argue that it owes no duty to the plaintiff because plaintiff’s actions were not reasonably foreseeable as a matter of law, when in fact one reason for erecting such a guardrail is to provide a physical barrier for autos with which it comes in contact. It is a question of fact whether a guardrail along a highway need be suitable merely as a warning, or must suffice physically to prevent vehicles from running off the highway into places of danger. 39 Am. Jur. 2d Highways, Streets, & Bridges sec. 403 (1968).

The second finding relied upon by the circuit court in granting the defendant’s motion for summary judgment was that the negligence of the county was not the proximate cause of the plaintiff’s injury. It appears that the plaintiff was successful in raising an issue of fact as to the county’s negligence in installing the guardrail, the end of which was not buried or blunted in some manner; however, if there was an intervening negligent act which superseded the county’s negligence, then the county’s action was not the legal cause or the proximate cause of the plaintiff’s injury. The defendant cites a series of cases which hold that obstructions in the highway or near the highway are merely conditions and not the legal cause of injury. Those cases conclude that even if the condition was negligently placed, where an intervening negligent act is the superseding cause of injury, no liability attaches to the negligent condition. These cases follow the precedent established in Briske v. Village of Burnham (1942), 379 Ill. 193, 39 N.E.2d 976.

The Briske court concludes that an actor whose negligence gives rise to a mere condition which causes injury is not liable in tort for that act as the act is not the proximate cause or legal cause of the injury.

“ ‘Proximate cause’ — in itself an unfortunate term — is merely the limitation which the courts have placed upon the actor’s responsibility for the consequences of his conduct. In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the discovery of America and beyond. ‘The fatal trespass done by Eve was cause of all our woe.’ But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would ‘set society on edge and fill the courts with endless litigation.’ As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy.” (Prosser, Torts sec. 41, at 236-37 (4th ed. 1971).)
“The term ‘proximate cause’ is applied by the courts to those more or less undefined considerations which limit liability even where the fact of causation is clearly established. The word ‘proximate’ is a legacy of Lord Chancellor Bacon, who in his time committed other sins. The word means nothing more than near or immediate; and when it was first taken up by the courts it had connotations of proximity in time and space which have long since disappeared. It is an unfortunate word, which places an entirely wrong emphasis upon the factor of physical or mechanical closeness. For this reason ‘legal cause’ or perhaps even ‘responsible cause’ would be a more appropriate
term.” (Prosser, Torts sec. 42, at 244 (4th ed. 1971).)

Under the common law doctrine of contributory negligence, application of this policy rendered nonactionable the remote act of an actor who created a condition of injury, thus preventing the injustice that would result if the actor were liable for the full measure of damages even for acts remotely connected with the injury. Conversely, the harsh effects of denying any recovery to an injured plaintiff were ameliorated when this policy was applied such that the superseding negligence of the defendant nullified the negligence of the plaintiff. Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886; Prosser, Comparalive Negligence, 51 Mich. L. Rev. 465, 496 (1953); V. Schwartz, Comparative Negligence sec. 4.5 (1974).

With the adoption of the doctrine of comparative negligence in Illinois, the need is diminished for a policy which protects the remotely negligent defendant from liability for the full measure of damages or for a policy that ameliorates the harsh effects of contributory negligence on the plaintiff. Nevertheless, authorities agree that proximate cause remains an element of the cause of action under the rules of comparative negligence. (V. Schwartz, Comparative Negligence sec. 4.2 (1974); H. Woods, Comparative Fault sec. 5:1 (1978); Minor v. Zidel Trust (Okla. 1980), 618 P.2d 392.) As a practical matter, however, the comparison which occurs under the doctrine of comparative negligence limits liability to some extent in the same fashion as the policy considerations underlying the proximate cause test.

“The comparison should take account of the degree to which the acts or omissions cause the injury and the culpability involved. It will include the proximate cause components of non-remoteness and foreseeability — if they are present — as aggravating either degree of cause or culpability respectively.” (Note, Legal Cause, Proximate Cause, & Comparative Negligence in the F.E.L.A., 18 Stan. L. Rev. 929, 935 (1966).)

Thus, where fault can be apportioned, the need to limit the consequences of any act using the proximate cause rationale is diminished. H. Woods, Comparative Fault sec. 5:1 (1978); V. Schwartz, Comparative Negligence sec. 4.3 (1974).

Cognizant of the changes wrought by the adoption of the doctrine of comparative negligence, courts have been less willing to label an actor’s conduct as a remote cause or condition of injury.

“Cases in which, prior to the adoption of comparative negligence, plaintiff might have lost under proximate cause rules, because the act of plaintiff or third parties was regarded as a ‘supervening cause, ’ might be reconsidered because the court can now reach a fair decision by apportioning some of the blame to the defendant and some to third parties or to the plaintiff himself.” (V. Schwartz, Comparative Negligence sec. 4.3 (1974).)

Consistent with these authorities we decline to hold that the defendant county’s action in installing and maintaining the guardrail was a remote cause, or condition, of the plaintiff’s injury. If under the rules of comparative negligence the county is only remotely at fault, then the degree of fault assessed by the jury would presumably reflect this lack of culpability. The county’s conduct is not so remote from the events leading to plaintiff’s injury that it can be said as a matter of law that such conduct was not a contributing legal cause. Accordingly, the judgment of the circuit court of La Salle County is reversed and this cause remanded to the circuit court of that county for a trial on the merits.

Reversed and remanded.

STOUDER, P.J., and HEIPLE, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN D. KNOX, Defendant-Appellant.
    Third District
    No. 82—881
    Opinion filed January 26, 1984.
    Rehearing denied March 1, 1984.

      STOUDER, P.J., dissenting.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Marvin D. Knox, was charged by indictment with the murder of his wife, Delia Knox. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(2).) Following a jury trial in the circuit court of Peoria County, the defendant was found guilty of murder and was sentenced to 25 years’ imprisonment. The defendant filed a timely notice of appeal. The following evidence was presented at trial.

Officer Michael Butterfield of the Peoria Police Department responded to a call at 313 South Western in Peoria County, Illinois, on August 16, 1982. When he arrived, he saw a black male, identified as the defendant, walking out the front door. The defendant had his arms outstretched and his hands were bleeding. Butterfield asked what had happened and the defendant responded, “My wife came at me with a knife. I took it away from her and stabbed her.” The defendant was handcuffed.

Officer Richard Johnson arrived at the scene, and the defendant was placed in his squad car. Johnson then went into the house where he found a woman, identified as Delia Knox, lying on a bed in a bedroom. The bedroom was in disarray. A knife was found about 18 inches from the woman.

Paramedics arrived and began to administer first aid to the woman. Johnson returned to his car and read the defendant the Miranda rights. The defendant cooperated with the police.

Officer Craig W. Ganda arrived at the house. He was assigned to the crime scene unit. Ganda observed fresh blood on the sidewalk and in the doorway. He observed the victim on the bed and a great deal of blood on the bed and walls. Before the paramedics removed the woman, Ganda opened her blouse and observed wounds to her body. Ganda found a second, smaller knife in the immediate area of the woman, but its blade was closed.

Ganda was offered as a blood-flight specialist after he stated his qualifications. The defense objected to this offering but was overruled. Ganda then went on to explain that the blood seemed to emanate from a central area. However, in response to a question asked by defense counsel during cross-examination, Ganda said that in his opinion, it appeared the woman was stabbed while lying down on the bed. It also appeared that there were two different blood types in the bedroom.

Delia Knox was treated at St. Francis Hospital. The attending physician found the wounds to be on her left side. She died at 3:30 p.m. on August 16, 1982. It was determined from an autopsy that Knox died as a result of massive blood loss from an injury to her heart.

The defendant told police officers that he was married to Delia Knox for four months. He had moved out of the house the night before the incident. The defendant returned to the house on August 16, 1982, at about 1 p.m. to retrieve some of his belongings. When he tried to remove the Home Box Office (HBO) unit from the television, his wife came at him from behind with a knife. He struggled with her and took the knife away from her. The defendant was aware he cut his wife in the stomach, and he knew he cut her more than twice. His hands were cut, his chin was scratched and his shoulder was injured in the struggle.

The defendant’s 14-year-old stepdaughter, Janette Rose, was present during the incident. She testified that the night before her mother and the defendant were arguing. During the argument, the defendant stated, “You know what, I should kill you and myself, too.” The police arrived and the defendant left the house.

The next day, August 16, 1982, the defendant returned to pick up his clothes. The defendant took a bag from the refrigerator and went into the bedroom. Delia followed him. Janette was in the living room and although she could not see into the bedroom, she heard her mother say, “Deano, let go of the phone. I am not going to call the police.” The defendant came out of the bedroom and went into the kitchen. Janette saw him take a knife from the drawer which he placed behind his leg and then he returned to the bedroom. At that point, Janette left the house to call the police.

Kisha Rose, the defendant’s 12-year-old stepdaughter, was also present on the day of the incident. She let the defendant into the house and went upstairs where she observed the defendant go into the kitchen. She heard the refrigerator door open and saw the defendant walk to the bedroom carrying a brown paper bag. She heard her mother say, “Let go of the phone, Deano. I am calling the police.” Then the defendant returned to the kitchen, and Kisha heard a drawer open. He walked back into the bedroom with his hands at his side.

Kisha heard her mother and the defendant fighting. Her mother was saying, “Stop, Deano, stop. I love .you, Deano, stop.” Kisha ran downstairs and saw the defendant pulling a knife out of her mother’s side. The defendant was standing while her mother was in a leaning position on the bed. The defendant said, “You are going to die,” and then he stabbed Delia again.

The defendant testified on his own behalf. He and Delia argued the night before, and the police were summoned by Delia. Before he left the house, he gave his keys to the officers. The next day, August 16, 1982, he phoned the house and told his stepdaughter that he would be by to get his clothes. When he arrived, Kisha let him inside the house.

Once inside, the defendant went into the bedroom and Delia followed him. As he was disconnecting the HBO unit, his wife said, “I told you you ain’t taking anything out of here.” The defendant heard footsteps coming from behind him. He turned and saw his wife coming at him with a knife. The defendant wrestled with her. Delia fell back on the bed and the defendant saw her eyes roll. He threw the knife on the side of the bed. Then, the defendant dialed the 911 police number and reported that he thought he killed his wife. He asked for the police or an ambulance. The defendant walked out the front door where he was subsequently placed under arrest. He denied stabbing Delia three times and denied saying, “You are going to die.”

The first issue raised by the defendant concerns a discovery violation. He asserts that the State failed to inform the defendant that Officer Craig Ganda would be used as an expert in blood splattering and that the State also failed to provide a statement of his qualifications. (87 Ill. 2d R. 412(a)(iv).) Because of this failure to comply with discovery, the defendant argues he was subjected to surprise evidence and asks for a new trial.

When the State offered Ganda as a blood-flight specialist, the defendant objected on the ground that that was not a recognized area of expertise. The defendant did not object because the State failed to designate Ganda as an expert during discovery nor did the defendant request a continuance in order to investigate this matter further. Although the defendant raised the discovery issue in his post-trial motion, the defendant cannot complain when he fails to object at trial and request a continuance. The defendant has waived this issue for purposes of review. People v. Callaham (1978), 60 Ill. App. 3d 1020.

The defendant’s second issue is whether the trial court erred in permitting Officer Ganda to testify as a blood-flight specialist. The defendant argues that blood-flight evidence is not an admissible area of expertise in Illinois and that the State failed to lay a proper foundation to establish the reliability of such evidence. The defendant also states that Ganda was not qualified as an expert in this field.

The admissibility of Officer Ganda’s expert testimony and the adequacy of his qualifications are matters left to the discretion of the trial court. The court’s decision to permit Officer Ganda to testify is subject to reversal only if it constituted an abuse of discretion. People v. Park (1978), 72 Ill. 2d 203.

Since we are aware of no cases in which an Illinois court has taken judicial notice of the reliability of the splatter characteristics of human blood, the burden is on the State to demonstrate the reliability of such evidence. (People v. Milone (1976), 43 Ill. App. 3d 385.) The State is required to show that the evidence is based upon a well-recognized scientific principle or technique which has gained general acceptance in the particular field in which it belongs. People v. Baynes (1981), 88 Ill. 2d 225.

Officer Ganda testified that he had attended a school in blood-flight splashings and patterns at Elmira College in New York. He also attended a blood-flight workshop at the St. Louis Medical Examiner’s Office. Officer Ganda stated that his identification of blood patterns was based upon experiments conducted with human blood. In his experiments, Officer Ganda would reproduce various bloodstains or splashes which he observed at crime scenes, thereby enabling him to deduce where the source of the blood splashings was located. This evidence is not of such a complex nature as to require a more detailed scientific foundation than that provided by Officer Ganda. The technique used by Officer Ganda is essentially one of pattern recognition and reconstruction. Contrary to the defendant’s position, we do not find that this evidence requires a foundation in the science of physics.

Furthermore, we disagree with the defendant’s assertion that bloodstain evidence cannot be the subject of expert evaluation. In People v. Driver (1978), 62 Ill. App. 3d 847, cited by the defendant, the court held that the trial judge did not err in refusing to admit testimony concerning bloodstains found on the defendant’s shoes. The appellate court reviewed the offered testimony and concluded that even if the evidence could arguably be the subject of expert evaluation, exclusion of the evidence constituted harmless error at best. The court never discussed whether the State laid a proper foundation for the evidence. Thus, we do not read Driver as conclusively establishing the unreliability of bloodstain evidence.

Unlike Driver, the record in the present case reveals an adequate foundation for the evidence in question. Officer Ganda testified as to the source of his training, the techniques he had learned and their application in the field. The court was provided with sufficient information to enable it to make an informed decision regarding the reliability of this evidence.

Next, the defendant states that Officer Ganda was not qualified to testify as an expert in the field of bloodstain evidence. At trial, Ganda testified that he had been a Peoria police officer for over 12 years and was a crime-scene investigator for 10 years. In addition to his formal training in the field of blood characteristics, he had read literature in the field, had observed bloodstain evidence at crime scenes for about 10 years and had previously testified as a blood-flight specialist. The degree and manner of knowledge and experience required of an alleged expert is directly related to the complexity of the subject matter. (People v. Park (1978), 72 Ill. 2d 203.) Having already examined the nature and complexity of the evidence offered by Ganda, we again reject the defendant’s argument that this area of expertise requires substantial training in physics. Officer Ganda’s qualifications as an expert in the field of bloodstain evidence are clearly set out in the record, and the trial court did not abuse its discretion in permitting him to testify.

Finally, the defendant argues that the court erred by considering as a statutory factor in aggravation the fact that the defendant’s conduct caused serious harm. We agree with the defendant to the extent that serious bodily harm is an implicit factor in all homicides and therefore should not be considered as an aggravating factor. (People v. Fowler (1981), 98 Ill. App. 3d 202.) However, because sentencing decisions are largely within the discretion of the trial court, a sentence will not be disturbed on appeal absent an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149.

The defendant here was convicted of murder and sentenced to 25 years’ imprisonment. The minimum sentence for murder is 20 years. Even though the court considered the fact that the defendant’s conduct caused serious bodily injury, the court properly considered the presentence investigation report, the defendant’s statement, other evidence in aggravation and mitigation and the recommendations of counsel. Based upon this record, we cannot say that a 25-year sentence was an abuse of the court’s discretion. Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY, J., concurs.

PRESIDING JUSTICE STOUDER,

dissenting:

I do not agree with the majority that Officer Ganda’s testimony as a blood-flight specialist should have been admitted at the trial. I base my opinion on several factors. First, I do not believe that Officer Ganda’s three-week training course in New York qualified him as an expert in blood spattering. I also believe that the study of blood-flight characteristics is based upon the laws of physics and finally that the State’s failure to notify the defense that Ganda was testifying as an expert further undermined the reliability of the testimony. I therefore conclude that the State did not lay an adequate foundation and that Officer Ganda’s testimony should not have been admitted.

The study of blood patterns is not a widely-recognized field of expertise. The three-week course which Ganda testified that he had taken was taught by Professor MacDonald (MacDonnell) of Elmira College in New York. Mr. MacDonnell has testified in several out-of-State cases, and his testimony has been accepted in the following jurisdictions, Iowa, Louisiana, and Tennessee. (See State v. Hall (Iowa 1980), 297 N.W.2d 80; State v. Graham (La. 1982), 422 So. 2d 123; State v. Melson (Tenn. 1982), 638 S.W.2d 342.) However, in State v. Philbrick (Me. 1981), 436 A.2d 844, 861, the Supreme Court of Maine ruled that an officer’s blood-spatter testimony who had attended a three-week training course in New York taught by Prof. MacDonnell was inadmissible both because his qualifications were questionable and because the blood-spatter evidence raised serious questions as to relevance, helpfulness and potential prejudicial effect. Officer Ganda would not have been considered an expert by MacDonnell who stated in Hall that there are few persons in the United States qualified in his field. State v. Hall (Iowa 1980), 297 N.W.2d 80, 83.

Further, MacDonnell described his area of expertise as one based upon the laws of physics and mathematics (State v. Hall (Iowa 1980), 297 N.W.2d 80, 83), and on another occasion MacDonnell stated that “in physics it makes very little difference as to what the origin of the blood is ***” (State v. Melson (Tenn. 1982), 638 S.W.2d 342, 364), indicating that blood spattering is based largely upon physics. I, therefore, conclude that the State’s foundation was inadequate to establish Officer Ganda as a blood-spatter expert.

In People v. Driver (1978), 62 Ill. App. 3d 847, 379 N.E.2d 840, the only Illinois case to consider blood-spatter testimony, the defense had attempted to have Prof. MacDonnell testify. The appellate court referred to MacDonnell as an “alleged expert” but did not decide whether the excluded testimony would properly be the subject of expert evaluation.

Normally, the defendant’s opportunity to cross-examine the “expert” would increase the reliability of the expert testimony by casting doubt on the qualifications, etc. However, the assurances normally afforded by the opportunity to cross-examine were undermined in this case by the failure of the State to inform the defense that Ganda was planning to testify as a blood-flight expert. Therefore, I would have ruled that the blood-spatter testimony of Officer Ganda should have been excluded.