author: JUSTICE BARRY JUSTICE STOUDER,

text:
    WENDY BOUHL, Plaintiff-Appellant, v. STEVEN S. SMITH et al., Defendants-Appellees.
    Third District
    No. 3-84-0012
    Opinion filed February 26, 1985.
    William K. Brown, of Goldfine & Bowles, of Peoria, for appellant.
    Rex K. Linder and Robert E. Nesemann, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff, Wendy Bouhl, sued Officer Steven Smith of the Peoria County sheriff’s office and the county of Peoria for personal injuries suffered by her as a result of an accident in which the truck she was driving was rear-ended by the defendant’s squad car. A Peoria County jury returned a verdict for the defendants on the question of negligence. Plaintiff filed a post-trial motion for judgment notwithstanding the verdict, which was denied. She appeals.

On February 14, 1975, around 4:30 p.m., defendant Smith, while on patrol duty, received a dispatch to go to an accident scene located at Route 88 and Woodside Drive in Peoria County. At the time, Smith was on Mossville Road, a two-lane road, near Route 29. Smith testified that he activated the lights and siren on his squad car and drove about 40 miles per hour in the 45-mile-per-hour zone. He was still in the westbound lane of Mossville Road as he approached the point where Mossville Road meets Route 88, a stop for Mossville traffic. There he observed several vehicles lined up in his lane of traffic, and he slowed to around 35 miles per hour to attempt to go around that backed-up, stopped traffic by passing in the eastbound lane. The record is unclear as to the exact number of cars that were in the westbound lane between the plaintiff’s truck, which was the rear-most vehicle at the end of the line, and the stop sign at the intersection—the plaintiff being of the opinion that at least two cars were ahead of her and the officer opining that maybe eight or a dozen vehicles were in the line as he attempted to pass. At that point Smith saw a vehicle turn from Route 88 into the Mossville Road eastbound lane, heading towards him. Smith swerved his squad car back towards the westbound lane, braked, and skidded into the rear end of plaintiff’s truck. Smith estimated that his speed just prior to impact was 30 miles per hour. The point of collision was 220 feet from the stop sign at the “T” intersection.

The weather conditions were described as starting to sleet or snow. The pavement was wet and slippery. The shoulders on both sides of Mossville Road were too narrow to permit vehicles to travel on them. The posted speed limit on Mossville Road was 45 miles per hour. It further appears that Smith was familiar with the vicinity of the accident and knew the intersection of Route 88 and Mossville Road to be busy at that time of day.

The plaintiff testified that she had been stopped at the end of the line of traffic for 20 to 30 seconds and had neither seen nor heard the defendant’s squad car approaching from the rear prior to the impact. The damage to the truck was minor; and the damage to the front of the squad car, substantial. The plaintiff suffered head and back injuries which were the subject of much dispute at trial but need not be described in detail for purposes of this appeal.

The only issue which need be addressed in this appeal is whether the trial court should have granted plaintiff's motion for a directed verdict on the issue of liability at the close of all evidence and whether the court erred in denying plaintiff’s post-trial motion for judgment notwithstanding the jury’s verdict for the defendant. Our task is to determine whether all of the evidence viewed in its aspect most favorable to the defendants so overwhelmingly favors the plaintiff that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) For the reasons that follow, we reverse.

The defendant’s theory of nonliability as presented at trial and again on appeal is premised on an application of sections 11—205 and 11—907 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, pars. 11—205 and 11—907). These provisions grant exemptions from certain traffic laws to operators of “authorized emergency vehicles when responding to an emergency call” and when “making use of either an audible signal *** or visual signals” (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—205), and require that other drivers yield to such an approaching emergency vehicle and “immediately drive to a position parallel to, and as close as possible to, the right hand edge *** of the highway” so as to permit passage of the emergency vehicle (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—907). By operation of these statutes under the circumstances of this case, defendants contend, Officer Smith was not negligent in attempting to pass in the left-hand lane and, in any event, the appearance of an on-coming vehicle which failed to make way for Smith was the proximate cause of the accident.

Plaintiff does not dispute that defendant Smith qualified for the statutory exemption for emergency vehicles (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—205) under the circumstances as they existed on the date of the accident, but disagrees with the defendant’s application of the statutory provisions. According to the plaintiff, the statutes at issue authorize drivers of emergency vehicles to violate rules of the road only to the extent that such violations do not endanger other persons. Under plaintiff’s view, the statutory exemptions do not lower the standard of care chargeable to operators of emergency vehicles when an accident results. The question of negligence is measured by what a reasonable, prudent emergency vehicle driver would do under all of the circumstances, including that of the emergency. (Torres v. City of Los Angeles (1962), 58 Cal. 2d 35, 372 P.2d 906, 22 Cal. Rptr. 866; Rutherford v. State (Alaska 1979), 605 P.2d 16.) The plaintiff argues that defendant Smith was negligent in that his speed was too fast for existing conditions and that he failed to keep a proper lookout for vehicles that might enter the eastbound lane on the busy narrow road before proceeding into it and attempting to pass a continuous line of cars stretching 200-odd feet back from State Highway 88, h “T” intersection.

The specific subsections of the statutes relied upon by the plaintiff are as follows:

“The foregoing provisions do not relieve the driver of an authorized emergency vehicle from the duty of driving with due regard for the safety of all persons, nor do such provisions protect the driver from the consequences of his reckless disregard for safety of others.” Ill. Rev. Stat. 1983, ch. 951/2, par. 11— 205(e).
“This Section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.” (Ill. Rev. Stat. 1983, ch. 95%, par. 11-907(b).)

We find the plaintiffs position compelling. It is obvious that the plaintiff could not have done anything to avoid the accident.

On the basis of the foregoing statutory provisions, plaintiff correctly observes that the ordinary-negligence standard applies to operators of emergency vehicles. Under ordinary-negligence standards, adverse weather and road conditions known to the negligent party are not sufficient to absolve a defendant from liability for an accident where the defendant’s car skids into the plaintiff’s and the plaintiff’s car is entirely within its own lane of traffic. (Calvetti v. Seipp (1967), 37 Ill. 2d 596, 227 N.E.2d 758; Kyrouac v. Brockman (1983), 120 Ill. App. 3d 249, 457 N.E.2d 1074.) In Sughero v. Jewel Tea Co. (1967), 37 Ill. 2d 240, 226 N.E.2d 28, on similar facts, our supreme court approved the principle that “after plaintiff [has] shown defendant’s vehicle was on the wrong side of the highway and out of control, [defendant] had the duty of showing it was there for some reason other than his own negligence.” 37 Ill. 2d 240, 242, 220 N.E.2d 28, 29.

In the instant case, the defendants point to the appearance of the unknown vehicle that turned onto Mossville Road after Smith entered the left-hand lane of traffic to explain that Smith’s decision to re-enter the right-hand lane was reasonable. Defendants posit that the potential danger of a head-on collision would inspire a reasonably prudent person under the circumstances to risk rear-ending the plaintiff’s stopped vehicle.

The problem with defendants’ theory is that it fails to acknowledge that it was entirely foreseeable that a vehicle would enter the left hand of Mossville Road from Route 88 at the “T” intersection during Smith’s proposed travel of an excess of 200 feet on the wrong side of the road, regardless of his speed. Smith, as aforesaid, was familiar with the area and its heavy traffic at that time of day. The tes-, timony at trial did not indicate that Mossville Road was other than straight or that there was any obstruction that would have concealed the unknown vehicle from Smith’s view before he left the right-hand lane. It was not established that the unknown vehicle was traveling at an excessive rate of speed before it reached the “T” intersection. It was not established how far that vehicle had traveled along Mossville Road before Smith braked and went into the skid. Finally, it was not established that the unknown vehicle did not slow down when Smith’s emergency vehicle appeared to be heading directly in its path. The testimony at trial simply established that the oncoming vehicle was not involved in the accident. When asked whether that vehicle ever stopped, Smith stated, “I don’t believe so.” Since Smith had not yet, passed the plaintiff’s truck which was last in line, it seems that the unknown vehicle appeared at the intersection almost immediately after Smith left the right-hand lane and that Smith’s switch back into that lane was attempted immediately upon his viewing the oncoming vehicle. The split-second timing of the events would explain Smith’s inability at trial to state positively what action was taken by the unknown vehicle. In any event, it is undisputed that Smith’s car went out of control when he attempted to correct his lane of travel, braked and collided with the rear of the truck occupied by Bouhl.

We hold that under the circumstances here presented, the defendant has failed to carry his burden of proving that his vehicle was under sufficient control to proceed in the left-hand lane with due regard for the safety of others. Neither the presence of the unknown motorist, nor the existing weather and road conditions, nor the emergency to which Smith was responding provides an adequate explanation or excuse for the defendant’s failure to maintain control of his squad car so as to avoid colliding with the plaintiff’s truck. Where, as here, it is clearly established that the plaintiff performed no act or omission which could in any way be considered negligent, and the perilous situation which led to the accident was a creation of the defendant emergency vehicle operator’s own negligence, then the defendant must be found negligent. The act or omission of the driver of the unknown vehicle could not have been a superseding cause of plaintiff’s injuries, since it was not established that his appearance at the “T” intersection was in any respect an unforeseeable circumstance. From the facts and evidence here presented, and viewing the evidence in the light most favorable to the defendants, we conclude that reasonable minds could not differ in their judgment and could only determine that Officer Smith was negligent and that his negligence was a proximate cause of injuries to the plaintiff.

The court should have granted plaintiff’s motion for a directed verdict on the question of Smith’s negligence and instructed the jury that Smith was negligent as a matter of law. Having failed to do so, the court should have granted plaintiff’s motion for judgment notwithstanding the verdict.

Accordingly, we reverse and remand this cause to the circuit court of Peoria County with directions to enter judgment for plaintiff on the issue of liability and to grant a new trial on the issue of damages only.

Reversed and remanded.

SCOTT, J., concurs.

JUSTICE STOUDER,

specially concurring:

I agree with the result reached by my colleagues, but I doubt the applicability of some of the reasoning employed to support the result.

In particular I do not believe that the “wrong side of the road rule” as discussed and applied in Sughero v. Jewel Tea Co. (1967), 37 Ill. 2d 240, 226 N.E.2d 28, can be applied to a rear-end collision. The Sughero case applies the rule as it is generally applied where one vehicle crosses into the lane legitimately occupied by a vehicle traveling in the opposite direction. This rule has not been applied, so far as I am aware, to a case such as this, where the collision occurred between vehicles traveling in the same direction in the lane properly used by vehicles traveling in that direction.

However, I am content to agree with the holding that the defendant was negligent as a matter of law, but I believe such a conclusion is appropriate without resort to any burden of proof on his part arising from the application of the “wrong side of the road rule.”


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JULIAN COX, Defendant-Appellant.
    Fourth District
    No. 4—84—0276
    Opinion filed February 26, 1985.

      Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant, Julian Cox, was issued a traffic ticket charging him with improper lane usage (Ill. Rev. Stat. 1981, ch. 951/2, par. 11— 709) and operating a motor vehicle while under the influence of intoxicating liquor (Ill. Rev. Stat. 1981, ch. 951/2, par. 11—501). The State and Cox reached a tentative plea agreement. Pursuant to the agreement, Cox pleaded guilty to a charge of reckless driving. At the plea hearing, prior to the court’s concurrence, the court inquired if Cox had any prior convictions. The assistant State’s Attorney responded that there were none. Judgment was entered, and Cox was fined $300 plus court costs and was sentenced to four months’ conditional discharge.

Shortly thereafter, another assistant State’s Attorney advised the court that Cox did, in fact, have a previous conviction for driving under the influence. The court, in Cox’ presence, vacated the plea and reset the cause for trial. Cox’ motion to dismiss praying for specific enforcement of the plea bargain and to vacate the trial date was denied by the court.

The charge of improper lane usage was dismissed by the State prior to trial. At trial, Officer Kenneth Dicken testified that, at about 12:30 a.m., on December 4, 1982, he was driving west on West Williams Street in Danville on routine patrol. He was accompanied by another officer, a local television reporter and a cameraman. He observed an automobile approaching him which was being driven on the shoulder of the road.

Officer Dicken turned around and followed the automobile, driven by Cox, for several blocks. Because a light mist was falling, he could see that the tracks left by Cox’ automobile on the wet pavement were erratic. As he neared the vehicle, he also observed that the car veered over the center line and back to the curb several times, nearly missing the telephone poles along the road. Officer Dicken pulled the automobile over. When Cox rolled down his window, Officer Dicken detected a strong odor of alcohol on Cox’ breath. Officer Dicken also observed that Cox’ eyes were bloodshot and that his speech was slurred. Cox had difficulty in producing his driver’s license and passed over it several times.

Officer Dicken asked Cox to get out of his automobile and requested that he perform a field sobriety test. Cox stumbled and could not stand up by himself. Nor could he perform the “finger-to-nose” test. Based on his 16 years as a police officer, Officer Dicken concluded that Cox was intoxicated and placed him under arrest.

Brenda Vaughn, the television reporter who was accompanying Officer Dicken, testified that Cox stumbled, slurred his speech, and that he could not perform the finger-to-nose test, the walking test, or the coin test. The State admitted into evidence a videotape of Cox driving his automobile and of portions of tests performed by Cox at the police station.

Cox testified that he takes Lanolin, Peritrate, and Librium three times a day at meal time for nervousness and a serious heart condition. He testified that as a result of his disabling condition, he is dizzy upon arising from a sitting position, he cannot stand for long periods of time, and he cannot stabilize himself in a squatting position. He further testified that, as his medication wears off, these conditions intensify.

Cox testified on the evening in question he took his medication with dinner and then left home to go for a drive. He testified that he drove out to Kickapoo State Park; that he stopped at Charlie’s and drank one beer; and that he stopped at the Black Bear, played cards for about five hours, and drank three beers. Cox further testified that neither his defrosters nor his heater were working in his automobile on the night in question and that his tires were in very poor condition. He also testified that his reduced ability to drive was due to the wearing off of his medication and the poor condition of his automobile.

Donna Cox, the defendant’s wife, testified that although Cox was a little nervous when she picked him up from the station, he did not appear to be intoxicated. She also testified that her husband is very unsteady on his feet when he does not take his medication on time.

The jury found Cox guilty of driving under the influence of alcohol. Cox was fined $100 plus court costs, sentenced to one year’s probation, and ordered to perform 100 hours of public service work.

On appeal, Cox argues that in vacating the plea and judgment, the trial court exceeded its authority under Supreme Court Rule 402(d)(2) and placed Cox in jeopardy twice for the same offense. (87 Ill. 2d R. 402(d)(2).) Cox also contends that, at trial, the State improperly referred to Cox’ post-arrest silence during closing argument.

Cox argues that the trial court failed to comply with the requirements of Rule 402(d)(2). In response, the State argues that the Rule has no application to the present case. We agree.

Under Supreme Court Rule 402(d)(2), where a trial judge concurs in a plea agreement and subsequently withdraws his concurrence, he must give the defendant the option to affirm or withdraw his plea. As the Committee Comments to the Rule indicate, the Rule governs the procedure on pleas of guilty prior to sentencing.

“Under subparagraph (d)(2), the judge, if he considers it appropriate, may be advised, in advance of the plea, of the tentative plea agreement and indicate his conditional concurrence or (if, with consent of the defendant, he then receives evidence in aggravation or mitigation) concurrence. Such concurrence or conditional concurrence is to be stated for the record when the plea is received, but if the judge later determines before sentencing that a more severe disposition is called for he must so advise the defendant and give him an opportunity to withdraw the plea.” (Emphasis added.) Ill. Ann. Stat., ch. 110A, par. 402, Committee Comments, at 531 (Smith-Hurd 1976).

In the present case, the trial court concurred in the plea agreement and sentenced Cox. The requirements of the Rule were fully complied with. The Rule has no application to the vacating of plea agreements.

We find that the trial court did not exceed its authority in vacating Cox’ judgment entered on the plea agreement. A trial court retains jurisdiction over a judgment for 30 days after its entry for purposes of vacating, modifying, or setting aside the judgment to correct errors in its rendition. (People v. Heil (1978), 71 Ill. 2d 458, 376 N.E.2d 1002; People v. Watson (1946), 394 Ill. 177, 68 N.E.2d 265; People v. Hamel (1946), 392 Ill. 415, 64 N.E.2d 865.) As the supreme court noted in Heil,

“The relevant statutes, and the rules promulgated by this court, demonstrate the intent that in criminal as well as civil matters the circuit court be given the opportunity to reconsider final appealable judgments and orders within 30 days of their entry. (See, e.g., Ill. Rev. Stat. 1977, ch. 38, pars. 116—1, 116— 2, 1005—8—1(d); 58 Ill. 2d Rules 604(d), 605(b), 606(b).)” (71 Ill. 2d 458, 461, 376 N.E.2d 1002, 1003.)

Thus, upon learning that Cox in fact had a prior conviction for driving under the influence, the trial court had the authority to reconsider its judgment.

Additionally, we find that the trial court did not abuse its discretion in vacating the judgment. We reject Cox’ argument that “the inequity of a miscommunication of some sort made by the defense” is counterbalanced by the State’s dereliction in failing to discover Cox’ prior conviction. Cox stood silently by when the assistant State’s Attorney responded negatively to the court’s inquiry as to whether Cox had any prior convictions. Although we need not consider whether Cox’ action constitutes a fraud perpetrated upon the court, as urged by the State, Cox’ actions are not to be countenanced and justified the trial court in vacating its prior judgment.

Cox also argues that the trial court’s action in vacating the judgment and setting the case for trial subjected him to a second prosecution for the same offense, in violation of the double jeopardy guarantee. In response, the State argues that the vacating of Cox’ guilty plea to the offense of reckless driving and his subsequent trial on the charge of driving under the influence did not place Cox in jeopardy twice for the same offense. We agree.

In People v. McCutcheon (1977), 68 Ill. 2d 101, 368 N.E.2d 886, pursuant to a plea agreement, the defendant pleaded guilty to a misdemeanor offense and the State nol-prossed the felony charge. On appeal, the court vacated the guilty plea. At trial after remand, the defendant was convicted of both the misdemeanor and felony charges. The defendant then appealed, claiming a violation of his double jeopardy guarantee.

Discussing the application of the principles of double jeopardy, the court in McCutcheon said:

“One of the purposes of the protection against double jeopardy is to protect an ‘accused from the unfair harassment of successive trials.’ (United States v. Goldman (3d Cir. 1965), 352 F.2d 263, 266.) Unfair harassment occurs only if jeopardy has already attached to an offense charged. That is not the case here. Jeopardy attached only at the time the guilty plea was accepted by the court (Annot., 75 A.L.R.2d 683 (1961 & Supp. 1968)) and logic dictates that jeopardy would attach only to the crime pleaded to since there has been no other finding of any sort. (The court only determines whether the plea is voluntary and whether there is a factual basis for the plea.) Since defendant was never exposed to the danger of a trial on the charge of indecent liberties with a child, he cannot claim an acquittal on that charge or protection by reason of prior jeopardy.” (68 Ill. 2d 101, 106, 368 N.E.2d 886, 888.)

The court held that the principles of double jeopardy do not bar a defendant’s retrial for the greater offense upon reversal of a conviction of a lesser charge to which the defendant had pleaded guilty.

Thus, when Cox pleaded guilty to the charge of reckless driving, jeopardy attached only to that charge and not to the charge of driving under the influence. We do not consider this rule to be any less applicable where the conviction is set aside on the court’s own motion, rather than vacated on appeal by the defendant.

Nor can we say that the offenses of driving under the influence of intoxicating liquor and reckless driving would otherwise constitute the same offense for purposes of double jeopardy. In determining whether two offenses are the same, the applicable test is that the offenses are not the same for purposes of double jeopardy where each statute requires proof of an additional fact or facts which the other does not. (Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221.) Even where the “lesser” offense may be proved by the elements necessary to establish the greater offense, the two offenses will not necessarily be considered the same where the lesser offense does not always entail such proof. Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260.

Driving under the influence of intoxicating liquor is not an included offense of reckless driving. In order to be classified as an included offense, “ ‘all the elements of the lesser [offense] must be included within the greater.’ ” (People v. Smith (1980), 78 Ill. 2d 298, 306, 399 N.E.2d 1289, 1294.) The elements of the offense of driving under the influence include (1) driving a motor vehicle, (2) upon a public highway, and (3) the intoxication of the operator. (People v. Morrissey (1975), 30 Ill. App. 3d 566, 333 N.E.2d 33.) Although intoxication is probative of recklessness, it is not necessarily an element of the offense of reckless driving. (See People v. Davis (1982), 105 Ill. App. 3d 129, 434 N.E.2d 13.) The offense of reckless driving may be committed by an operator of a motor vehicle who is not intoxicated. Additionally, the offense of reckless driving requires proof that the defendant operated his motor vehicle in such a manner as to demonstrate a wilful and wanton disregard for the safety and property of others. Hence, the offenses of driving under the influence of intoxicating liquor and reckless driving are not the same for purposes of double jeopardy.

Cox also argues that the State improperly referred to his post-arrest silence during closing argument. In response, the State contends that the prosecutor’s remarks, if error, do not rise to the level of plain error. At trial, Cox asserted the theory that his seemingly inebriated appearance was due to his medical condition. In its closing argument, the State questioned Cox’ failure to relate the same explanation to Officer Dicken at the time of his arrest. Cox made no objection at trial, nor did he claim the State’s comments as error in his post-trial motion.

Generally, prosecutorial remarks concerning a defendant’s post-arrest silence are impermissible. (See Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240; People v. Rehbein (1978), 74 Ill. 2d 435, 386 N.E.2d 39.) Such comments are permissible, however, where the defendant’s exculpatory statement at trial is inconsistent with the defendant’s post-arrest statements or where the defendant falsely testifies to an exculpatory post-arrest statement. (People v. Foster (1980), 81 Ill. App. 3d 915, 401 N.E.2d 1221.) Neither exception applies here. We conclude that the State’s reference to Cox’ post-arrest silence in its closing argument constituted error.

However, such comments need not lead to reversal if they are harmless beyond a reasonable doubt. (People v. Green (1979), 74 Ill. 2d 444, 386 N.E.2d 272.) We find that the error here does not rise to the level of plain error. The evidence presented in this case was not closely balanced, nor was there error of such magnitude that the defendant was denied a fair and impartial trial. See People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091.

The arresting officer and the television reporter both testified that Cox appeared to be intoxicated. Cox admitted that he had spent the entire evening in taverns. Most telling of all, Cox’ blood alcohol content was .22. We conclude that the prosecutor’s comment on Cox’ silence, though improper, constitutes harmless error and does not require reversal in this case.

For the foregoing reasons we affirm the trial court.

Affirmed.

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


author: PRESIDING JUSTICE GREEN

text:
    CLYDE DORSEY et al., Plaintiffs-Appellants, v. WAYNE SPENCER et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0378
    Opinion filed February 27, 1985.

      Thomas R. Appleton, of Springfield, for appellants.
    Larry J. Flynn, of Flynn & Flynn, of Jacksonville, for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This case concerns interpretation of article 6 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 6—101 et seq.), which provides for the administration of township and road district roads. More particularly, the case involves division 3 of that article (Ill. Rev. Stat. 1981, ch. 121, par. 6—301 et seq.), setting forth the procedure for laying out, widening, altering, or vacating such a road. In general, the legislative scheme appears to indicate an intention to have a standard procedure for handling each of the four matters. However, in regard to proceedings to vacate roads, division 3 contains several ambiguities. The validity of such a proceeding is at issue here. We hold that, despite some statutory language to the contrary, compliance with certain procedures, applicable to the three other types of procedures, is not a requisite to the valid vacation of a road.

On September 27, 1982, plaintiffs, Clyde and Dorothy Dorsey, filed a complaint in the circuit court of Morgan County against defendants, Wayne, Marceline, and Marlin Spencer, seeking a judgment declaring that a certain “public highway which is a township road” had never been vacated and continued to be a township road. On March 31, 1983, a second amended complaint was filed. Subsequently, defendants filed a motion to dismiss on the basis that the complaint had been rendered moot because a valid vacation of the road had been effectuated pursuant to article 6, division 3, of the Code. On September 26, 1983, the trial court allowed the motion, dismissing the complaint in bar of action. On October 13, 1983, plaintiffs filed a motion to reconsider which was denied on April 27, 1984. Plaintiffs have appealed. We affirm.

A brief description of the format of division 3 is necessary in order to understand this case. Section 6—303 of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6—303) sets forth the methods by which proceedings to lay out, widen, alter or vacate may be initiated. This section contains a procedure, applicable only to proceedings to vacate, whereby the township or road district highway commissioner (commissioner) may commence a proceeding to vacate a road by filing a “certificate *** to vacate [the road]” with the clerk of the township or road district and the county clerk. After the action has been commenced, the subsequent procedures follow the same pattern regardless of the type of action requested. By the terms of section 6—305 of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6—305), the commissioner, upon filing of a certificate by himself or upon receiving a petition pursuant to section 6—308, is required to hold a hearing after giving a prescribed notice. After holding the hearing, the commissioner is required to “decide and publicly announce whether he will grant or refuse” the laying out, widening, altering or vacation of the road.

Defendants’ motion to dismiss was accompanied by certificates of the Highway Commissioner of Morgan County Road District No. 12, which purportedly complied with the foregoing provisions of division 3 for vacation of the road in question. The dispute between the parties is as to whether subsequent requirements of division 3 were shown to have been satisfied.

Section 6—306 of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6— 306) contains a procedure for appealing a commissioner’s decision, which refuses to permit the laying out, widening, altering or vacating of a road, to the county superintendent of highways (superintendent). There is no appeal at that stage from the granting of any of the four types of action. However, under section 6—311 of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6—311), after an original decision by the commissioner to proceed or after an appeal to the superintendent and a decision by the superintendent to proceed, a final hearing is usually required to be held by the commissioner or, if an appeal has been taken, by the superintendent. After that hearing, a final order must be entered. If both the commissioner and the superintendent refuse to permit the requested action, that order of the superintendent becomes the final order. Section 6—315a of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6—315a) sets forth a procedure for administrative review by the circuit court of final orders.

An exception to the procedures set forth in the preceding paragraph which eliminates any necessity for a second hearing before the commissioner is provided by the following portion of the last paragraph of section 6—305:

“A final hearing may be held at the time of the preliminary or adjourned meeting if all damages have been released, all surveys and plats are made and there are no objectors.” (Ill. Rev. Stat. 1981, ch. 121, par. 6—305.)

The documents attached to defendants’ motion do not indicate that more than one hearing was held by the commissioner. Thus, the action taken was sufficient to vacate the road in question only if the commissioner complied with the foregoing provisions of section 6— 305, or if compliance with these provisions was not required.

Plaintiffs contend that there was no showing of compliance with the foregoing provision for holding both a preliminary and final hearing at the same time because there was no showing that damages had been released or that “all surveys and plats [had been] made.” Defendants agree that no such showing was made, but contend that neither the release of damages nor survey and plat requirements are applicable to proceedings to vacate. We agree with defendants.

Section 6—307 of the Code states in part that if the highway commissioner, or upon appeal from his decision, the county superintendent of highways, enters “a preliminary order for the laying out, widening, alteration or vacation of a township *** road, the [commissioner] or [superintendent], as the case may be, shall cause a survey and plat of such township or district road to be made by a competent surveyor who shall report such survey and plat to the [commissioner] or [superintendent], as the case may be.” The report is to contain “the courses and distances and [specify] the land over which such road is to pass.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 121, par. 6—307.

Section 6—308 (Ill. Rev. Stat. 1981, ch. 121, par. 6—308) provides that after a highway commissioner or, upon appeal from his decision, the county superintendent of highways has entered a preliminary order for the laying out, widening, alteration or vacation of a road, and a survey therefor has been completed pursuant to section 6—307, proceedings must “next be taken” to fix the damages which will be sustained by the adjoining landowners by reason of such “laying out, widening, altering or vacation.” By the terms of section 6—309 (Ill. Rev. Stat. 1981, ch. 121, par. 6—309) damages may be determined either by agreement between landowners and the commissioner or by proceedings in eminent domain. However, the authority of the commissioner or superintendent to proceed in eminent domain is limited to proceedings to lay out, widen, or alter roads.

Section 6—311 of the Code, which provides for entry of a final order by the commissioner or superintendent, states:

“Within 20 days after the damages likely to be sustained by reason of the proposed laying out, widening, alteration or vacation of any township or district road have been finally ascertained, either by agreement of the parties or by condemnation proceedings, or within 20 days after such damages may have been released, the [commissioner] or the [superintendent], as the case may be, shall hold a public hearing at which he shall hear and consider reasons for or against the proposed laying out, widening, alteration or vacation of such road, and at which time and place he shall publicly announce his final decision relative thereto.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 121, par. 6—311.

Despite the express inclusion by the legislature of proceedings for vacation of a road with those for the three other types of actions in connection with the requirement for determining and releasing damages, we have held that a determination or release of damages is not a required condition of a valid decision to vacate a township or district road. In No. 3 Oakland Suburban Heights, Inc. v. Bekermeier (1968), 94 Ill. App. 2d 67, 235 N.E.2d 867, administrative review was sought in the circuit court from an order of the superintendent vacating a township road. Then, as now, section 6—315a of the Illinois Highway Code (Ill. Rev. Stat. 1965, ch. 121, par. 6—315a) required the joinder of three or more plaintiffs, who had appeared in the proceedings below, before administrative review in the circuit court could be sought. As the plaintiffs there did not include three such persons, the circuit court dismissed the case. Plaintiffs appealed to this court, maintaining that the requirements that three such plaintiffs were necessary was an 'unconstitutional deprivation of due process.

The theory of those plaintiffs was that by allowing the vacation of the township road, the commissioner had deprived them of any right to damages. They then reasoned that if any right was created to appeal such a deprivation, due process required that it be open to all persons and not be limited to situations where at least three persons, who had appeared below, sought relief. However, this court held that a question of deprivation of damages was not in issue because damages were not part of the procedure involved in the vacation of roads. This court noted earlier cases under a similar statutory scheme which had so held. (Brown v. Robertson (1888), 123 Ill. 631, 15 N.E. 30; Stetson v. Chicago & Evanston R.R. Co. (1874), 75 Ill. 74.) This court also pointed out that section 6—309 gave no authority to the appropriate highway officials to bring condemnation proceedings ancillary to those to vacate a road. The court concluded that the remedy for those seeking damages by virtue of the vacation was by separate suit against the road district. As the rights of the plaintiffs there to damages were not involved in the vacation proceeding, this court concluded that plaintiffs suffered no constitutional deprivation resulting from the requirement that three objectors were necessary to seek administrative review.

The decision in No. 3 Oakland is binding precedent here. Moreover, its holding is the only logical reconciliation of the ambiguities of division 3 arising from the legislative attempt to combine the proceedings to lay out, widen, alter and vacate roads into one format. If release of damages is a prerequisite of a valid vacation, an objecting property owner could prevent the vacation forever. The property owner could not be required to accept an offer of compensation and the commissioner and superintendent would be without power to require the damages to be determined through condemnation proceedings. If determination of damages is not a prerequisite to a valid vacation, it would be illogical to require a release of damages to be a prerequisite to holding a combined preliminary and final hearing under section 6—305.

The precedent of No. 3 Oakland is also beneficial in determining whether the stated requirement of section 6—305 for the making of surveys and plats before preliminary and final hearings can be combined is applicable to vacation proceedings. The decision establishes that the reference to proceedings to vacate in sections 6—307, 6—308, and 6—309 cannot be literally construed when to do so creates ambiguity with other sections of division 3. The ambiguities with reference to the requirements for surveys and plats are similar to those concerning damages. Section 6—307 includes proceedings to vacate among those where “a survey and plat” is to be made, but the section then states that the report of the survey and plat is to specify “the land over which such road is to pass.” (Emphasis added.) Section 6— 328 of the Act (Ill. Rev. Stat. 1981, ch. 121, par. 6—328) states that when a road is “laid out, widened or altered” the commissioner shall have a plat made and recorded with the recorder of deeds. On the other hand, section 6—329 of the Act (Ill. Rev. Stat. 1981, ch. 121, par. ■ 6—329) states that upon vacation of a road, the commissioner “shall cause a legal description of the road or part thereof vacated” to be recorded in the office of the recorder of deeds. The recorder is directed to then “mark the plat previously recorded in such manner as to show the vacation and to indicate the book and page number where the description is recorded.”

We hold that the furnishing of a proper description of the road being vacated is all that is required to be provided for use in determining the location of a road before a valid vacation of the road can take place. Plaintiffs here stress the importance of having an accurate survey of the road so that boundary lines between the parties can be determined. We do not deem that to be a logically necessary requirement for a vacation. The boundary lines will be no less certain after the vacation than they were before. The description given to the recorder of deeds, together with the action of the recorder in compliance with section 6—329, is sufficient to inform the public that the public no longer has the use of the road.

As the uncontested documents attached to defendants’ motion indicated that a proper description of the road to be vacated had been given, the commissioner’s act of holding preliminary and final hearings together was proper. Accordingly, the circuit court properly dismissed plaintiffs’ complaint.

Taken with the case was a motion by defendants to dismiss plaintiffs’ appeal as being untimely. Because we have determined to deny the motion, we have first discussed the merits of the appeal. Nevertheless, a brief explanation of our ruling is required.

In 1977, plaintiffs had filed a similar complaint against defendants, together with the then Morgan County highway superintendent and the commissioner of Road District 12, in the circuit court of Morgan County. That case was designated as No. 77—LM—154. That complaint was dismissed “without prejudice” in 1978. When plaintiffs filed the instant notice of appeal on May 25, 1984, they inadvertently designated the appeal as being in case No. 77—LM—154, rather than in case No. 82—MR—21, which was the designation of the instant case. The notice of appeal was otherwise in proper form. On August 20, 1984, we allowed plaintiffs’ motion to amend the notice of appeal “to reflect the additional trial No. 82—MR— 21” and permitted plaintiffs to supplement the record with the trial court record in case No. 82—MR—21.

In McMahon v. McMahon (1981), 97 Ill. App. 3d 448, 422 N.E.2d 1150, the court stated the following general rules: (1) The purpose of a notice of appeal is to inform the party prevailing in the trial court that the other party seeks a review of the judgment; (2) accordingly, the notice of appeal is to be liberally construed; and (3) defects in the form of the notice of appeal will not deprive the reviewing court of jurisdiction.

Here, the notice of appeal was filed within 30 days after the entry of the trial court’s denial of plaintiffs’ motion to reconsider in case No. 82—MR—21. The notice did not contain the dates upon which the orders cited in the notice were entered, but the notice referred to a motion by plaintiffs to reconsider. No such motion was made in case No. 77—LM—154. Furthermore, that 1977 case was dismissed without prejudice, making an appeal at least unlikely, if not impossible.

The notice of appeal was fully sufficient to apprise defendants that an appeal was being taken in case No. 82—MR—21. A liberal construction of the notice of appeal requires us to deem it sufficient to constitute a timely filed notice of appeal in case No. 82—MR—21. The formal defects in the notice did not deprive us of jurisdiction of this appeal.

Accordingly, (1) the motion of defendants to dismiss the appeal is denied; and (2) the order of the circuit court of Morgan County dismissing the complaint in bar of action is affirmed.

Motion to dismiss denied.

Affirmed.

WEBBER and MILLS, JJ., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT E. CLEVENGER, JR., Defendant-Appellant.
    Third District
    No. 3—84—0275
    Opinion filed February 27, 1985.

      Julius Lucius Echeles and Frederick F. Cohn, both of Chicago, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Defendant, Robert E. Clevenger, Jr., was charged with murder, voluntary manslaughter, involuntary manslaughter and misdemeanor theft. Defendant was convicted of voluntary manslaughter and theft, but was acquitted of the other charges. He appeals only from his voluntary manslaughter conviction.

On September 5, 1983, defendant, an unemployed ex-Marine, was drinking in the Blue Room tavern in Streator. Outside the tavern defendant spotted a motorcycle with a saddlebag attached. Thinking there might be something of value in the bag, defendant decided to steal it. Defendant took his buck knife and cut the saddlebag loose. The owner of the motorcycle was the decedent, Jerry Richards. Andrew Elias, a friend of Richards, viewed defendant in the act of stealing the bag. He called across the street to the Blue Room where Richards was playing pool.

Richards came out of the tavern, saw the defendant and yelled, “Clevenger,” after him. At this point, defendant either started running away or walked away at a fast pace. It is not clear whether the knife remained in his hand. Richards, armed with a wooden pool cue, chased defendant. Richards hit defendant at least once over the left shoulder. Elias testified that Richards had first struck defendant in the stomach before the second blow. The shot to the shoulder carried enough force to splinter the cue into three pieces. Defendant stumbled away and fell to the ground. Richards followed, and commenced pummeling defendant with his fists. Richards was straddled on top of defendant. Eyewitnesses to this part of the altercation could not tell if Richards’ blows were landing with any effectiveness. It appears that defendant was not fighting back seriously. The next thing the witnesses saw was Richards rolling off of defendant with blood around his stomach. Defendant, with blood on his white tee shirt, appeared to pick something up off the ground and exited between two buildings. The entire fight lasted no more than two minutes.

Defendant admitted in his testimony that he had stolen the bag. After the blow to the shoulder blade, defendant claims to have lost consciousness momentarily. The next thing he remembered was that he was on the ground trying to get up and that “the guy” was hitting and kicking him. He feared that the “club” was going to be used again. He reached for his knife and “at that point [Richards] must have gotten stabbed.” •

After fleeing the scene, defendant attempted to hide the knife and his shirt. He returned home and went to sleep. He sought no medical attention for his shoulder. He was arrested in his home the next morning.

At trial, the jury was instructed on the offenses of murder, two types of voluntary ■ manslaughter—unreasonable self-defense (Ill. Rev. Stat. 1981, ch. 38, par. 9—2(b)), and heat of passion based on adequate provocation (par. 9—2(a))—and involuntary manslaughter. As to murder and involuntary manslaughter, the jury was instructed that it had to find beyond a reasonable doubt that defendant was not justified in using the force which he used. However, in the definitional instruction on voluntary manslaughter based on provocation (Illinois Pattern Jury Instructions (IPI), Criminal, No. 7.03 (2d ed. 1981)), the court gave the instruction in its unabridged form. However, the Committee Note to No. 7.03 recommends using the phrase “without lawful justification” so that the instruction reads, in part, “A person commits voluntary manslaughter when he kills an individual without lawful justification if ***.’’ Similarly, the issues instruction on this form of voluntary manslaughter did not mention the State’s burden of proving absence of justification. While the jury was instructed on two forms of voluntary manslaughter, only one verdict form was tendered. Defendant was convicted and sentenced to IOV2 years for voluntary manslaughter and 364 days for theft.

Defendant argues that the failure to include the concept that the prosecution had to prove absence of legal justification beyond a reasonable doubt denied him a fair trial. We agree that the instruction should have been given. Section 3—2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3—2(b)) makes the affirmative defense of force an issue together with all the elements of the offense, upon which the State must sustain the burden. Failure to instruct the jury as to this burden on the offense of voluntary manslaughter-provocation was clearly erroneous. Cf. People v. Thurman (1983), 120 Ill. App. 3d 975, 458 N.E.2d 1038, aff’d (1984), 104 Ill. 2d 326.

The State responds in two ways to the merits of this argument. First, it is submitted that the instruction was inappropriate due to the inconsistency between a claim of self-defense and the existence of a sudden and intense passion stemming from adequate provocation. Thus, it argues that proof beyond a reasonable doubt of a killing resulting from an extreme and sudden passion necessarily negates a finding that the killer reasonably feared death or serious bodily harm at the same time. People v. Tirrell (1980), 87 Ill. App. 3d 511, 408 N.E.2d 1202.

The argument is without merit. Claims of self-defense have been found to negate a defense of sudden and intense passion in murder cases where the evidence reveals that the killer acted deliberately. (People v. Yates (1978), 65 Ill. App. 3d 319, 382 N.E.2d 505.) Here, the evidence reveals that both states of mind could have been present in defendant. The law recognizes mutual combat or quarrel as a serious provocation. (People v. Strong (1979), 79 Ill. App. 3d 17, 398 N.E.2d 216.) Furthermore, despite being in a state of sudden and extreme passion, defendant might have believed, however unreasonably, that he was in imminent danger of serious bodily injury following the pool cue assault. It is certainly conceivable that the actions of the victim might have provoked a reasonable man into a sudden and intense passion, yet at the same time a reasonable man might also fear imminent death or serious bodily injury from the continuous beating. The jury here apparently concluded either that defendant was so provoked or unreasonably feared death or serious bodily injury. The two mental states are consistent. However, if the jury concluded the former, it was denied the possibility of deciding that the killing was justified by a reasonable fear under the circumstances of death or serious injury. This was improper.

The State also contends that a general finding of guilt will be upheld if the jury is properly instructed and there is sufficient evidence of any theory. (People v. Collins (1979), 71 Ill. App. 3d 815, 390 N.E.2d 463.) Collins and cases of its ilk are inapplicable. There, defendant was charged with three forms of murder: intentional, knowing and felony. On appeal, defendant argues that there was no evidence of an underlying felony. However, the court affirmed the conviction on a general verdict where the other counts were sufficient to support a finding of guilt. Here, however, an affirmative defense was interposed. But the instructions found the defense applicable to only one form of voluntary manslaughter. A rational juror could conclude that even an objectively reasonable belief in the fear of death and serious injury would not justify a killing made under a sudden and intense passion. With the general verdict, one cannot tell whether or not the jury reached this conclusion. Thus, defendant was deprived of a fair trial by failure to include the concept of self-defense in the instructions on voluntary manslaughter-provocation.

The State argues that defendant has waived this contention by not making this objection when the erroneous instruction was given, by not tendering an alternative instruction and by failing to include the objection in his post-trial motion. Ordinarily, failure to object at trial to an error in jury instructions waives the issue for appeal. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027.) Likewise, issues not raised in a post-trial motion will ordinarily not be reviewed. (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6.) However, substantial defects in jury instructions in criminal cases may be noticed despite failure to object thereto if the interests of justice require. 87 Ill. 2d R. 451(c).

In a series of recent opinions, our supreme court has developed guidelines for reviewing unpreserved errors of the type asserted in this ease. Review may be had in the case of “grave” errors, or in cases so close factually that fundamental fairness requires that the jury be properly instructed. People v. Berry (1984), 99 Ill. 2d 499, 460 N.E.2d 742.

We believe that the error should not be deemed waived. The failure to include the concept of the State’s burden on legal justification in one set of voluntary manslaughter instructions while including it in the other is a serious error. This is especially true where only verdict form was used for voluntary manslaughter. Furthermore, the evidence was closely balanced. (See below for a more detailed discussion of the sufficiency of the evidence.)

The State claims that this error is cured by repeated references by defense counsel in closing argument concerning the State’s burden of proving absence of legal justification. (People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.) Huekstead is distinguishable. There, in a murder case, the trial court erred by failing to give IPI Criminal No. 25.05 (1968), which informs the jury of the State’s burden of proving absence of legal justification beyond a reasonable doubt. However, this failure was cured by repeated and specific references to this burden by defense counsel as well as an acknowledgment of the burden by the State. Here, there were in fact two references by defense counsel. Nonetheless, the error caused by the giving of the instruction in question in every instance save one is not so easily cured, particularly where defendant was convicted of that particular offense. Therefore, we hold that the court committed reversible error by failing to instruct the jury properly on voluntary manslaughter based on adequate provocation.

Defendant urges us to find as a matter of law that he acted in self-defense and to effectively direct a verdict of acquittal in his favor. This we decline to do. A court of review will not overturn a jury’s determination of guilt unless the evidence is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt. (People v. Ware (1981), 96 Ill. App. 3d 923, 422 N.E.2d 148.) Questions of reasonable use of force in self-defense are particularly within the province of the jury and should not be lightly disturbed.

There was ample evidence to support a conclusion that defendant’s use of deadly force was unreasonable under the circumstances. Various witnesses testified that after the initial blow from the pool cue, the only weapon employed by the victim was his fists. No witness testified that any of the punches inflicted meaningful damage. There was no evidence of facial cuts or bruises suffered by defendant. Furthermore, defendant’s flight from the scene and attempt to secrete the evidence could reasonably be interpreted as negating a claim of self-defense. (People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044.) Finally, and most significantly, the jury might have chosen to disbelieve defendant’s version of the events entirely and concluded that defendant killed the victim either to extricate himself from a fistfight or to facilitate the theft. Thus, we will not reverse defendant’s conviction based on the sufficiency of the evidence.

Numerous incidents of prosecutorial misconduct are alleged by defendant. Since these errors are alleged to have prejudiced a particular jury whose verdict we have already reversed, we decline to review each of them individually. Furthermore, most of these errors were either waived, invited by defense counsel or harmless beyond a reasonable doubt.

We choose to address two points raised in defendant’s brief due to their likely recurrence in a retrial. The court refused to allow evidence of decedent’s blood-alcohol level. Defendant urges us to rule the evidence admissible to corroborate defendant’s belief that decedent was violent at the time of the occurrence. The evidence suggests that there is no dispute that decedent was acting violently. The evidence may be slightly probative of the reasonableness of defendant’s fear of decedent’s violent disposition. However, the real value of the evidence is mostly its corroboration of a fact not in serious dispute. Thus, the trial court could have properly concluded that the evidence’s probative value was outweighed by its unfairly prejudicial effect on the jury.

Defendant also contends that the court erred in refusing to give IPI Criminal 2d No. 4.17, which reads:

“An object or instrument which is not inherently dangerous may be a dangerous weapon depending on the manner of its use and the circumstance of the case.”

Defendant would like the jury to be informed that the pool cue used by decedent could have qualified as a deadly weapon. Supposedly this is relevant to whether or not decedent was justified in using deadly force. This argument is meritless. Whether an object qualifies as a deadly weapon is of significance in armed robbery cases, but not here. The pool cue was an exhibit in the case below. The jury could draw its own conclusions on what a reasonable person would do if struck by the object. The instruction is clearly irrelevant.

Accordingly, we remand to the circuit court of La Salle County for a new trial on the charge of voluntary manslaughter.

Reversed and remanded.

STOUDER, J., concurs.

BARRY, J., concurs in the result.

      Defendant objected to the instruction at issue, but not for the reasons set forth in its brief on appeal.


author: JUSTICE McNAMARA JUSTICE RIZZI,

text:
    ARTHUR KATZ, d/b/a Montrose Municipal Market, Plaintiff-Appellant, v. BELMONT NATIONAL BANK OF CHICAGO, Defendant-Appellee.
    First District (3rd Division)
    No. 83—376
    Opinion filed February 15, 1984.
    Rehearing denied March 21, 1985.

      Sapoznick, Sheridan & Freidin, of Chicago (Robert P. Sheridan and John C. Vojta, of counsel), for appellant.
    David A. Weininger, of Teitelbaum, Wolfberg, Guild & Toback, P.C., of Chicago (Gregory L. Tumbarello, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff brought this class action suit against defendant, Belmont National Bank, seeking to recover funds he gave to a depositor of defendant bank. The trial court granted defendant’s motion to dismiss the complaint for failure to state a cause of action and denied plaintiff’s request for leave to amend the complaint. Plaintiff appeals.

Plaintiff and other class members are small business owners who contracted with Controls for Industry, Inc. (CFI), a company which provides payroll services for a fee. For each pay period, plaintiff would forward a check to CFI and it in turn would deposit the check in its account at the defendant bank. CFI would make the necessary deductions and issue checks to the employees drawn on its account. Approximately 136 businesses availed themselves of CFI’s services.

In May 1982, plaintiff forwarded a check to CFI, and CFI issued checks to plaintiff’s employees. When the checks were presented, however, they were dishonored by defendant for insufficient funds. Similar events occurred with the other members of the class and their employees. CFI subsequently filed for bankruptcy, and plaintiff brought this suit.

Plaintiff’s complaint averred that CFI held his funds in trust, that defendant knew the nature of CFI’s business and the relationship between plaintiff and CFI, and that defendant converted and unlawfully disposed of plaintiff’s funds. At the hearing on the motion to dismiss, plaintiff’s counsel stated that his investigation revealed that CFI had not drawn any checks, other than the dishonored payroll checks, but over $1 million is missing from the account. Since only CFI had access to the account, plaintiff concluded that defendant took the money. At the hearing, the trial court initially granted plaintiff’s request for discovery, but when defendant objected to the discovery request as onerous, the trial court decided to allow defendant’s motion to dismiss the complaint. The trial court also denied plaintiff’s motion for leave to file an amended complaint.

A dismissal under section 2—615 of the Code of Civil Procedure raises the legal sufficiency of the complaint. (Richards v. Leimbacher (1971), 131 Ill. App. 2d 775, 267 N.E.2d 523; Ill. Rev. Stat. 1981, ch. 110, par. 2—615.) The complaint must contain a plain and concise statement of plaintiff’s cause of action, and must reasonably inform defendant of the claim against him. (Ill. Rev. Stat. 1981, ch. 110, pars. 2—603(a), 2—612(b).) On appeal of the dismissal, all well-pleaded facts must be taken as true and all reasonable inferences are drawn in plaintiff’s favor. Cook v. Askew (1975), 34 Ill. App. 3d 1055, 341 N.E.2d 13.

The trial court determined that plaintiff did not state a cause of action in conversion against defendant. In denying leave to amend, the court apparently decided because there was no relationship between plaintiff and defendant that no valid cause of action could ever be stated. We do not agree.

A complaint for conversion must allege plaintiff’s right in the property and to immediate possession; a demand by plaintiff for possession; and unauthorized assumption of control or ownership by defendant over the property of plaintiff. (Farns Associates Inc. v. Sternback (1979), 77 Ill. App. 3d 249, 395 N.E.2d 1103.) Plaintiff’s complaint sufficiently alleged his right of ownership in the property when he stated that he gave the money to CFI solely for disbursement to plaintiff’s employees. The pleadings indicate that plaintiff was not giving up his ownership rights but merely was entrusting his funds to CFI. Defendant’s response that plaintiff has failed to establish a trust relationship between himself and defendant misstates plaintiff’s position.

We do not believe the fact that defendant’s relationship with CFI was that of creditor and debtor and that defendant had no relationship with plaintiff and the other class members is dispositive of the present action. It is well established that a bank may set off its customer’s account for debts owed to the bank. (Kerner v. Kinsey (1943), 384 Ill. 180, 51 N.E.2d 126; Mid-City National Bank v. Mar Building Corp. (1975), 33 Ill. App. 3d 1083, 339 N.E.2d 497.) It is equally well established that a bank’s right of setoff is not co-extensive with its right to recover. (Faber, Coe & Gregg, Inc. v. First National Bank (1969), 107 Ill. App. 2d 204, 246 N.E.2d 96.) Where the bank has knowledge that funds belong to a third party, or are held in trust for a third party, its right to setoff is limited. (Clemmer v. Drover’s National Bank (1895), 157 Ill. 206; Kamfner v. Auburn Park Trust & Savings Bank (1931), 344 Ill. 200, 176 N.E. 363; Bonhiver v. State Bank (1975), 29 Ill. App. 3d 794, 331 N.E.2d 390; Live Stock Exchange, Inc. v. State Bank (1928), 249 Ill. App. 44.) Knowledge of the depositor’s business in handling the funds of third parties may be sufficient to put the bank on notice of the interest of such third parties. Union Stock-Yards National Bank v. Gillespie (1890), 137 U.S. 411, 34 L. Ed. 724, 11 S. Ct. 118; Kamfner v. Auburn Park Trust & Savings Bank; In re Tonyan Construction Co. (Bankr. N.D. Ill. 1983), 28 Bankr. 714.

The complaint here specifically alleges the nature of CFI’s business in providing payroll services, as well as alleging defendant’s knowledge of CFI’s business. Although plaintiff was denied discovery and leave to amend his complaint, the colloquy at the hearing revealed that it was undisputed that CFI had not withdrawn money from its account and that defendant took the money, an inference included in the pleadings. The complaint alleged a valid cause of action for conversion against defendant.

Our holding does not place a significant burden on defendant. It is applicable only in those rare instances when a plaintiff alleges and, of course, later when he proves that the bank has knowledge that the funds belong to a third party. In Union Stock-Yards National Bank v. Gillespie (1890), 137 U.S. 411, 34 L. Ed. 724, 11 S. Ct. 118, the United States Supreme Court used language pertinent to the present case:

“We do not mean to be understood as implying that a bank receiving deposits from one whom it knows to be in the commission business receives every deposit in trust for any unknown principal. A bank is not a sponsor for all its depositors, although it may know the character of their business. Its relations to its depositors are those of debtor; and, generally, receiving and paying out money on the checks of its depositors, it discharges the full measure of its obligations. It is not ordinarily bound to inquire whence the depositor received the moneys deposited, or what obligation such depositor is under to other parties. It is only when there gather around any deposit, or line of deposits, circumstances of a peculiar nature, which individualize that deposit or line of deposits, and inform the bank of peculiar facts of equitable cognizance, that it is debarred from treating the deposit as that of moneys belonging absolutely to the depositor.” 137 U.S. 411, 416, 34 L. Ed. 724, 726, 11 S. Ct. 118, 119-20.

For the reasons stated, the judgment of the circuit court of Cook County dismissing plaintiff’s complaint is reversed and the cause is remanded for further proceedings consistent with the holdings of this opinion.

Reversed and remanded.

McGILLICUDDY, J, concurs.

JUSTICE RIZZI,

dissenting:

I would affirm the trial court’s ruling in this case because I do not believe that plaintiff can maintain a cause of action based upon the facts alleged in the complaint and because there is no proposed amendment to the complaint in the record on appeal.

The relationship between a bank and its depositor is that of debtor and creditor (see Paskas v. Illini Federal Savings & Loan Association (1982), 109 Ill. App. 3d 24, 31, 440 N.E.2d 194, 198-99), not of agent and principal, or trustee and beneficiary of a trust. The contract between the two controls their relationship. The bank agrees with its customer to receive the customer’s deposit, to account to the customer for the deposit, to repay the deposit on demand, and to honor the customer’s checks when presented. The bank is liable to the customer for any breach of the contract based upon that relationship. However, the money deposited becomes absolutely the property of the bank, impressed with no trust, and the bank may dispose of it at its pleasure subject only to its personal obligation to the depositor to pay an equivalent sum upon his demand. The right of the bank to use the money for its own benefit is the very consideration for its promise to the depositor. H. Bailey, Brady on Bank Checks sec. 4.1 (5th ed. 1979).

Here, the facts alleged in the complaint show that CFI deposited funds into its account at Belmont National Bank. Plaintiff was not a party to that account. In my judgment, since the only relationship which existed between Belmont National Bank and CFI was that of debtor-creditor, plaintiff cannot maintain a cause of action for conversion against Belmont National Bank regarding the application of funds in CFI’s account with the bank.

Accordingly, I would affirm the ruling of the trial court.


author: JUSTICE BARRY

text:
    HERBERT SCHULTZ, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Lustra Lighting, Appellee).
    First District (Industrial Commission Division)
    No. 1—84—0613 WC
    Opinion filed December 4, 1984.
    Rehearing denied February 7, 1985.
    Daniel F. Gallagher, of Kaplan, Gold & Gallagher, Ltd., of Chicago, for appellant.
    Law Offices of Tyrrell & Flynn, of Chicago (Thomas J. Flynn, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The claimant, Herbert Schultz, appeals from an order of the Industrial Commission denying him benefits under the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). The claim was initially denied by the arbitrator. The Commission also denied benefits, and the Commission’s decision was confirmed by the circuit court of Cook County.

The claimant was an outside salesman for the defendant, Lustra Lighting. The claimant placed orders and submitted weekly activity reports by mail. He testified that he was required to mail the weekly reports by Saturday of each week. The claimant was also employed by an insurance company. Additionally, the claimant was self-employed as an income tax preparer.

On Saturday, July 26, 1980, the claimant prepared his activity report arid other papers for mailing to Lustra. He finished preparing these documents by noon.

At 7:30 p.m., he drove from his home to Grant Hospital to visit a friend. This friend was also a tax client of the claimant. The claimant promised to stay at the friend’s apartment that night. He then went to a Jewel food store. He next drove to the intersection of Elston Avenue just north of Belmont. When he left his car, he was struck by another auto. He was pinned between the side of his auto and the other car. The claimant suffered compound fractures in both legs, facial lacerations and a concussion.

The claimant testified that he drove to the corner of Elston and Belmont in order to inail his report and orders to Lustra. He stated that he did not see a mailbox near the hospital. He testified that he did not mail the reports at the mailbox near his home because the pickup schedule was too infrequent.

The claimant’s mother testified that she went to retrieve his car the morning after the accident. She found the claimant’s business correspondence in the open truck of the car. The envelopes were water marked and spattered with mud. She testified that she opened the envelopes, removed their contents, and remailed the report and orders in clean envelopes. The original envelopes were admitted into evidence.

Lustra introduced evidence that the mailbox at Belmont and Elston had approximately the same pickup times as did a box less than one-half mile from the claimant’s home. Lustra also introduced evidence that in 1982 there were two mailboxes serving Grant Hospital and between 50 and 55 other mailboxes on the route taken by the claimant. Finally, Lustra introduced evidence that there is a Burger King, which the claimant had patronized before, directly opposite the location where the claimant stopped his car.

The arbitrator disallowed the claim, finding that the accident did not arise out of or in the course of his employment. The arbitrator relied on the decision in Gmelich v. Industrial Com. (1980), 81 Ill. 2d 44, 405 N.E.2d 786. No additional evidence was taken by the Commission. As aforesaid, the Commission affirmed the arbitrator’s decision, and the Commission’s decision was subsequently confirmed by the circuit court.

The claimant makes several arguments in support of his contention that his injuries arose out of his employment. The claimant argues first that he was injured in the course of his employment because his mailing of the report and orders was an act which he might reasonably be expected to perform incidental to his assigned duties. The claimant further argues that he had a “dual purpose” in making this trip, and that the business purpose was an integral part of the trip.

The Illinois Supreme Court in Robinson v. Industrial Com. (1983), 96 Ill. 2d 87, 449 N.E.2d 106, held that an act of a traveling employee which, although not part of his employment, is reasonable and foreseeable and results in injury may be compensable under the Act. However, the rule in Robinson, and the cases relied upon therein, concerns traveling employees who, in the course of their business travels, deviate from their normal business functions. In the instant case, it was clear the claimant was not injured in the course of a deviation from business travels. The claimant’s reliance on Robinson is therefore misplaced.

Instead, the record clearly demonstrated that the claimant was, at best, injured during the course of a “dual purpose” trip. The dual-purpose rule applies whenever there is both a business and personal purpose for an employee’s trip, and only the business purpose is compensable under the Act. (1 A. Larson, Workmen’s Compensation sec. 18.14 (1978).) The rule on dual-purpose trips was set forth in Gmelich v. Industrial Com. (1980), 81 Ill. 2d 44, 405 N.E.2d 786. As noted above, the arbitrator based his denial of benefits in the instant case upon the decision in Gmelich.

An injury arises out of and in the course of employment under the dual-purpose rule if it is incurred during a “business trip.” When a trip serves both business and personal purposes, it is personal if the trip would have been made even absent the business purpose but would not have been made absent the personal purpose. Conversely, it is a business trip if the trip would have been made absent the personal purpose, because the service performed for the employer during the trip would have caused the trip to be made even if it had not coincided with the employee’s personal journey. 81 Ill. 2d 44, 48, 405 N.E.2d 786, 788.

It is clear from the record that the claimant would have made the trip to the hospital, his friend’s apartment, and the grocery store even absent his business purpose of mailing his reports. The claimant passed many mailboxes on his route between the hospital and the site of the accident. While the claimant testified that the reports had to be mailed on Saturday, he did not attempt to post them until late Saturday evening. The record supports the decision that the business purpose of the trip was merely incidental to the personal purpose.

The Commission concluded that, as a matter of law, the claimant was injured during a personal trip. It, therefore, found that the claimant’s injury did not arise out of or in the course of the claimant’s employment. We find no error in this decision. The Commission’s decision was properly confirmed.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

WEBBER, RJ., and McNAMARA, LINDBERG and KASSERMAN, JJ., concur.


author: JUSTICE McNAMARA

text:
    PATRICK FEARON, Plaintiff-Appellant, v. MOBIL JOLIET REFINING CORPORATION et al., Defendants-Appellees.
    First District (3rd Division)
    No. 82—2329
    Opinion filed December 12, 1984.
    Rehearing denied March 21, 1985.

      Leonard M. Ring & Associates, of Chicago (Leonard M. Ring and Judith E. Fors, of counsel), for appellant.
    Rooks, Pitts, Fullagar & Poust, of Chicago (Terrence E. Kiwala and Beth L. Beucher, of counsel), for appellees.
   JUSTICE McNAMARA

Plaintiff Patrick Fearon brought this Structural Work Act suit in 1973 asking to recover for injuries he sustained following a fall from a scaffold. On May 26, 1977, the trial court granted summary judgment in favor of defendant Mobil Oil Corporation (Mobil). On July 30, 1981, the trial court granted summary judgment in favor of defendant Mobil Joliet Refining Corporation (Mobil Joliet). On August 24, 1982, the trial court denied plaintiff’s motions to vacate the summary judgments previously entered. The court also denied plaintiff’s motion to vacate the order denying plaintiff’s motion for partial summary judgment. Plaintiff appeals.

Plaintiff was an employee of Fluor Corporation, which had contracted with Mobil to construct a refinery in Joliet. Plaintiff was injured on November 29, 1971, at the Joliet site. In his amended complaint, plaintiff named 12 defendants, including Mobil, Mobil Joliet, and Mobil Research and Development Corporation (Mobil Research). Mobil Research, however, was never served with summons.

In Mobil’s motion for summary judgment, Mobil filed affidavits stating that it had assigned all of its contract rights under the Fluor contract to Mobil Joliet prior to plaintiff’s injury. Mobil attached a copy of the Fluor contract and the assignment contract, and also referred the court to another case involving an injury at the Joliet site in which Mobil had been granted summary judgment. When the trial court granted Mobil’s motion for summary judgment, the order provided that it could be vacated upon a showing that Mobil was materially involved.

Thereafter, Mobil Joliet filed its motion for summary judgment. In support of its motion, Mobil Joliet filed an affidavit by its assistant secretary and controller stating that Mobil Joliet consisted of a board of directors and officers but that it had no employees to supervise the Joliet site. The affidavit also stated that Fluor fully supervised the construction of the refinery and that Mobil Joliet was merely the owner of the property.

Prior to any ruling on Mobil Joliet’s motion for summary judgment, the case was dismissed for want of prosecution. After plaintiff refiled the action, Mobil Joliet renewed its motion. Plaintiff filed his own affidavit in opposition, stating that he had seen individuals on the job site wearing white hard hats bearing the Mobil insignia. Plaintiff also asked permission to file depositions of Mobil and Mobil Joliet employees taken in an unrelated case. The court would not allow the filing of the depositions and, on July 30, 1981, granted summary judgment in favor of Mobil Joliet. At the same time, the court denied plaintiff’s motion for partial summary judgment, refusing to hold as a matter of law that Mobil Joliet was “in charge of” the work at the Joliet refinery.

In 1982, plaintiff filed a motion for rehearing and a motion to vacate the grant of summary judgment in favor of Mobil. In support of these motions, plaintiff filed a 1974 letter from Mobil’s defense counsel to Mobil’s insurance company. The letter discussed a possible settlement of an accident at the Joliet refinery and noted the potential liability under the same Fluor contract at issue here. The letter also stated that the writer had received information that a team of men from the three Mobil companies were supervising the work at the refinery.

The court refused to consider the letter for lack of foundation under Supreme Court Rule 191(a), and denied plaintiff’s motions. The court also denied plaintiff’s request for an alias summons against Mobil Research, his motion to vacate the denial of partial summary judgment against Mobil Joliet, and his motion to file the previously refused employee depositions.

We initially consider the grants of summary judgments in favor of Mobil and Mobil Joliet. A motion for summary judgment should be granted where there is no genuine issue of material fact. (Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562, 396 N.E.2d 1197.) The pleadings, depositions and affidavits are construed strictly against the movant and liberally in favor of the opponent (Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill. App. 2d 80, 243 N.E.2d 40), and the right of the movant to summary judgment must be clear and free from doubt. (Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562.) However, a trial court’s grant of summary judgment will not be reversed absent a showing of abuse of its discretion such that plaintiff’s right to fundamental justice is violated. Chandler v. Jet Air Freight, Inc. (1977), 54 Ill. App. 3d 1005, 370 N.E.2d 95.

As to Mobil Joliet, plaintiff argues that he, and not Mobil Joliet, is entitled to summary judgment because Mobil Joliet was “in charge of” the work at the Joliet site under the provisions of the Illinois Structural Work Act. Ill. Rev. Stat. 1971, ch. 48, par. 60 et seq.

In order to impose liability under the Act, an owner must be in charge of the particular operation out of which the injury arose. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill. 2d 305, 175 N.E.2d 785.) Mere ownership or the employment of an independent contractor is insufficient. Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 211 N.E.2d 247.

An owner may be in violation of the Act if he fails to provide a safe area within which the work proceeds. (Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 373 N.E.2d 1354.) Similarly, an owner who retains the right to stop work that is not performed in a safe manner may be found in charge of the work. (Kjellesvik v. Commonwealth Edison Co. (1979), 73 Ill. App. 3d 773, 392 N.E.2d 116.) The final determination must rest upon an assessment of the totality of the circumstances. Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 394 N.E.2d 403; McGovern v. Standish (1976), 65 Ill. 2d 54, 357 N.E.2d 1134.

Plaintiff maintains that the provisions of the Fluor contract imposed a duty on Mobil Joliet to inspect the work site and stop work performed in an unsafe manner. The Fluor contract, however, merely reserves to the owner a right of access to inspect the work and to reject or condemn any part which Mobil Joliet deems to be of inferior or faulty workmanship or not within the contract specifications. This provision is nothing more than the owner’s right to assure itself that it is getting the quality of work for which it bargained. (See Melvin v. Thompson (1963), 39 Ill. App. 2d 413, 188 N.E.2d 497.) Under the terms of the contract, the duty and burden of supervising the method of work was placed on Fluor. Moreover, the affidavit of J. D. Chipps states that Mobil Joliet had no employees but only a board of directors with financial duties. Apart from the affidavit of plaintiff stating that he saw unidentified men wearing hard hats with the Mobil insignia, plaintiff did not produce any fact of record that anyone from Mobil Joliet exercised any supervisory functions over the construction work. The trial court properly found as a matter of law that Mobil Joliet was not in charge of the work.

Plaintiff’s next argument with respect to summary judgment is that Mobil Joliet is barred, by the doctrines of collateral estoppel and res judicata, from litigating whether it was in charge of the work. In a prior case, Mantia v. Mobil Oil, reported in the Cook County Jury Verdict Reporter and cited by Mobil in support of its motion for summary judgment, Mobil was dismissed from the suit and Mobil Joliet was held liable for injuries sustained by another Fluor employee at the Joliet site. Plaintiff thus maintains that Mobil Joliet is in charge of the work at the Joliet site as a matter of law and that the trial court erred in denying him summary judgment.

The doctrine of res judicata provides that a final judgment by a court of competent jurisdiction is an absolute bar to subsequent proceedings between the same parties or their privies to relitigate the same cause of action. (Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 447 N.E.2d 834.) Here, plaintiff was not plaintiff or a privy to the plaintiff in the prior case. Therefore, the doctrine of res judicata is inapplicable.

Collateral estoppel also operates as an absolute bar in a subsequent action where the same parties or their privies attempt to re-litigate identical issues necessarily decided by a court of competent jurisdiction in a prior cause of action. (Fred Olson Motor Service v. Container Corporation of America (1980), 81 Ill. App. 3d 825, 401 N.E.2d 1098; Kramer v. Chicago Title & Trust Co. (1979), 69 Ill. App. 3d 1015, 387 N.E.2d 1105.) Collateral estoppel will apply where the issue decided in the prior adjudication is identical to that in the suit in question, a final judgment was rendered on the merits, and the party against whom estoppel is asserted was a party, or is in privity with a party to the prior litigation. (Fred Olson Motor Service v. Container Corporation of America (1980), 81 Ill. App. 3d 825, 401 N.E.2d 1098; Riley v. Unknown Owners (1975), 25 Ill. App. 3d 895, 324 N.E.2d 78.) The doctrine will only apply where the party against whom it was asserted had a full and fair opportunity to litigate the issue in the prior proceeding, and it will not be applied if an injustice results to that party under the circumstances of the case. (Fred Olson Motor Service v. Container Corporation of America (1980), 81 Ill. App. 3d 825, 401 N.E.2d 1098.) Collateral estoppel is most frequently asserted defensively. A plaintiff is barred from litigating an issue he has previously lost against another defendant. Here Mobil Oil asserts that there is no showing that it had a full and fair opportunity to litigate the prior case and that plaintiffs “offensive” use of collateral estoppel is inherently unfair. In Parklane Hosiery Co. v. Shore (1979), 439 U.S. 322, 58 L. Ed. 2d 552, 99 S. Ct. 645, the Supreme Court stated that the offensive use of collateral estoppel may be unfair if defendant had little incentive to vigorously defend the prior suit or there are other inconsistent judgments in favor of the defendant. Here it would be unfair to rely on a one-page summary in the Jury Verdict Reporter presented to the court. The trial court’s refusal to apply collateral estoppel was correct.

Plaintiff also seeks to impose the decision in the Mantia case on the trial court by arguing that Mobil Joliet has admitted liability. Plaintiff relies on the fact that Mobil Joliet’s attorneys incorporated the report of the prior case in one of their affidavits.

A statement included in a document filed with the court is binding on the party making it. When the admission is made by an attorney within the scope of his authority, it is binding on the client. (State Security Insurance Co. v. Linton (1978), 67 Ill. App. 3d 480, 384 N.E.2d 718.) We agree with plaintiff that Mobil Joliet is bound by the statement that it was found liable in a previous lawsuit involving a previous accident. We refuse, however, to make the inferential leap, which plaintiff urges, that Mobil Joliet admits it was in charge of the work. Mobil Joliet has not admitted its liability.

Plaintiff also argues that he is entitled to summary judgment and that the summary judgment in favor of Mobil should be vacated because Mobil admitted its liability to its insurance company in an opinion letter. The letter was written in 1974 by a member of defense counsel’s law firm. The letter concerned another Structural Work Act case and in it, the attorney stated that the Fluor contract contained “ample contractual language on which the jury [could] hold Mobil Oil Corporation to be in charge of the work ***.” The attorney also wrote he had learned from Mr. Ben Burdette that a team of employees from Mobil, Mobil Joliet and Mobil Research was supervising the work being performed at the Joliet site.

On a motion for summary judgment, the facts to be considered by the court are evidentiary facts. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) Evidence which is inadmissible at trial is not admissible to support a motion for summary judgment. Loveland v. City of Lewistown (1980), 84 Ill. App. 3d 190, 405 N.E.2d 453.

The trial court properly concluded that the standard for facts on a motion to vacate summary judgment is also evidentiary facts. The opinion letter was inadmissible as hearsay (Erickson v. Ottawa Travel Center, Inc. (1979), 69 Ill. App. 3d 108, 387 N.E.2d 49), as a privileged communication (Nieukirk v. Board of Fire & Police Commissioners (1981), 98 Ill. App. 3d 109, 423 N.E.2d 1259), and as a statement that is a legal conclusion (Schall v. Forrest (1977), 51 Ill. App. 3d 613, 366 N.E.2d 1111). There being no evidentiary facts that any employees of Mobil were involved, the court properly denied plaintiff’s motion for summary judgment and his motion to vacate the summary judgment granted in favor of Mobil.

Plaintiff also contends that the trial court erred in denying him leave to obtain alias summons against Mobil Research. Service of summons is governed by Supreme Court Rule 103, which requires a plaintiff to exercise reasonable diligence in obtaining service prior to the expiration of the statute of limitations. The burden is on the plaintiff to show that he has been diligent in attempting to serve the defendant. (Hanna v. Kelly (1980), 91 Ill. App. 3d 896, 414 N.E.2d 1262.) The standard for determining diligence is an objective one. (91 Ill. App. 3d 896, 414 N.E.2d 1262.) The court will consider a number of factors including the length of time used to obtain service, the activities of the plaintiff, the plaintiff’s knowledge of defendant’s whereabouts, the ease with which defendant’s whereabouts could be ascertained, the actual knowledge of defendant regarding the suit, and the special circumstances which would affect plaintiff’s efforts. Daily v. Hartley (1979), 77 Ill. App. 3d 697, 396 N.E.2d 586.

On February 28, 1974, service on Mobil Research was attempted but the summons was returned “not found.” It was not until 1982, eight years later, that an attempt was made to issue an alias summons. Plaintiff attempts to excuse himself by noting that Mobil did not disclose in its answers to interrogatories that any entity, other than Fluor, was in charge of the work despite the opinion letter indicating that Mobil, Mobil Joliet and Mobil Research had a team of employees at the site.

Plaintiff’s argument fails to overcome a finding that he has not exercised diligence. There has been no showing that plaintiff could not locate Mobil Research or that there was any effort made to locate Mobil Research beyond the first attempt to serve the original summons. Plaintiff has not sustained his burden of proving reasonable diligence, and the trial court properly refused to allow the issuance of alias summons against Mobil Research.

Plaintiff finally contends that the trial court erred in refusing to allow him to file depositions of Mobil and Mobil Joliet in a separate proceeding. Supreme Court Rule 191 sets forth the procedures for affidavits in support of and in opposition to motions for summary judgments and the procedures where necessary affidavits cannot be obtained. The rule provides in pertinent part:

“(b) When Material Facts Are Not Obtainable by Affidavit. If the affidavit of either party contains a statement that any of the material facts which ought to appear in the affidavit are known only to persons whose affidavits affiant is unable to procure by reason of hostility or otherwise, naming the persons and showing why their affidavits cannot be procured and what affiant believes they would testify to if sworn, with his reasons for his belief, the court may make any order that may be just ***.” 87 Ill. 2d R. 191(b).

Although unclear from the record, plaintiff apparently wanted to file these depositions because he could not obtain affidavits from the Mobil employees. Rather than attempt to file the depositions, plaintiff should have complied with the requirements of the rule. (Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 425 N.E.2d 1055.) The court did not err in denying plaintiff’s motion to file the depositions.

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

Judgment affirmed.

WHITE and O’CONNOR, JJ., concur.