author: PRESIDING JUSTICE GREEN JUSTICE WEBBER,

text:
    THE CITY OF SPRINGFIELD DEPARTMENT OF PUBLIC AFFAIRS, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION, SPRINGFIELD, etal, Defendants-Appellees.
    Fourth District
    No. 17273
    Opinion filed January 14, 1982.
    Robert M. Rogers, Assistant Corporation Counsel, of Springfield, for appellant.
    Charles J. Gramlich, of Gramlich and Morse, of Springfield, for appellee Lawrence V. Grim.
    Theodis Lewis, of Springfield, for appellee Illinois Civil Service Commission.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Defendant, Lawrence V. Grim, a police officer of the plaintiff, City of Springfield, was suspended without pay for 30 days by the mayor of that city, for failure to report for work as required. Defendant Grim then demanded a hearing before defendant Civil Service Commission, Springfield, Illinois, pursuant to the provisions of section 10—1—18 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 10—1—18). After a hearing, the commission found Grim to have been guilty of a breach of discipline, but also found the suspension to be unduly severe and reduced it to a period of 10 days without pay. On administrative review, the circuit court of Sangamon County affirmed.

On appeal, plaintiff maintains the commission had no power to reduce the length of the suspension and that if it did have the power, the reduction was an abuse of discretion.

The power of the commission arose from section 10—1—18 which states in pertinent part:

“Except as hereinafter provided in this section, no officer or employee in the classified civil service of any municipality * * * may be removed or discharged, or suspended for a period of more than 30 days, except for cause upon written charges and after an opportunity to be heard in his own defense. * * * Nothing in this Division 1 limits the power of any officer to suspend a subordinate for a reasonable period, not exceeding 30 days except that any employee or officer suspended for more than 5 days or suspended within 6 months after a previous suspension shall be entitled, upon request, to a hearing before the civil service commission concerning the propriety of such suspension.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 24, par. 10—1—18.

The plaintiff contends the phrase “the propriety of such suspension” has reference only to a determination as to whether an officer was guilty of such misconduct that some suspension could be imposed and not to the “propriety” of the length of a suspension. Defendants cite cases holding that when the initial determination as to the severity of a sanction imposed on an employee is made by a civil service commission, reviewing courts should set that determination aside only under very exceptional circumstances. (Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885; Jones v. Civil Service Com. (1979), 80 Ill. App. 3d 74, 399 N.E.2d 256.) No decisions of á court of review of this State concerning the power of a civil service commission to pass upon the severity of a sanction initiated by the governmental employer has been called to our attention. However, we agree with defendants that in passing upon the “propriety óf [a] suspension,” the commission should consider both whether the employee’s conduct justifies some suspension and the length of the suspension. The two elements are so intertwined as to logically be part of the same inquiry. The commission did not err here in examining the “propriety” of the length of defendant Grim’s suspension.

The following facts were established at the hearing before the commission. Defendant Grim had been a police officer for plaintiff for 10 years. In 1978 he had been suspended for five days for failing to report for duty. He had been off work for 10 or 11 days prior to August 27, 1979, apparently on vacation. From 7 to 10 p.m. on that date he participated in required marksmanship qualification procedures at a firing range and then left without reporting for work at 10:30 as he was scheduled to do. He consumed some intoxicants and later reported for work at 2:30 a.m. However, he was sent home by a superior officer who testified to having noticed a faint odor of an intoxicant on Grim’s breath.

Evidence was also presented that when Grim reported at 2:30 a.m., he told a superior officer that his automobile had broken down but later said he had gotten confused and thought he had the day off.

In the recent case of Department of Mental Health ir Developmental Disabilities, the Illinois Civil Service Commission ordered an employee suspended, and, on review, the circuit court remanded with directions to discharge the employee. Holding that the question of whether cause for discharge exists should be determined by the administrative agency and that the agency’s decision will not be reversed unless it is arbitrary, unreasonable or unrelated to the requirement of service, the supreme court reversed this court’s affirmance of the circuit court. The instant case differs in that here the maximum sanction is that of suspension rather than dismissal; a city civil service commission rather than that of the State is involved; and the sanction was initially imposed by the employer rather than a civil service commission. Section 10—1—18 makes no mention as to whether any deference should be given to the initial determination of the employer. Even if some deference should be given, the commission here could properly have decided that Grim’s tardiness and possible unfitness for duty when he reported at 2:30 a.m. resulted from an honest mistake on his part as to whether he was to return to work on that day. If so, the reduction in the length of the suspension was not arbitrary, unreasonable or unrelated to the requirements of service by police officers. We deem that standard to be applicable although no question of discharge was involved and the civil service commission making the decision was that of a city rather than the State.

Cited by the commission and called to our attention is the case of Kropel v. Conlisk (1975), 60 Ill. 2d 17, 322 N.E.2d 793, where the supreme court construed section 10—1—18.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 10—1—18.1), which provided that in cities of a population of more than 500,000, a police officer could not be suspended for more than 30 days unless written charges were filed with the police board and the officer was given an opportunity to be heard. Section 10—1—18.1 further stated:

“Nothing in this Section limits the power of the superintendent to suspend a subordinate for a reasonable period, not exceeding 30 days.” (Ill. Rev. Stat. 1971, ch. 24, par. 10—1—18.1.)

The section contained no provision similar to that in section 10—1—18, requiring a hearing if the suspension exceeded five days but the supreme court held in Kropel that the fourteenth amendment to the United States Constitution and section 2 of article I of the Illinois Constitution of 1970 required the court to construe the statute to afford the officers a right to some sort of a hearing when suspensions were for more than á few days.

The Kropel court concluded that section 10—1—18.1 should be considered in pari materia with section 10—1—18, section 10—2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 10—2.1—17), section 13 of “An Act in relation to the State Police” (Ill. Rev. Stat. 1973, ch. 121, par. 307.13), and sections 8b.15 and 8b.16 of the Personnel Code (Ill. Rev. Stat. 1973, ch. 127, pars. 63bl08b.l5, 63bl08b.l6), all of which provided for hearings for public employees suspended for certain periods which were less than 30 days. The court there stated:

“It is clear from all of the statutes and rules set forth above that a major difference between a suspension for less than 30 days and a suspension for more than 30 days is that the latter requires a hearing before the sentence can be imposed. In effect, the department has the duty to go into a hearing and prove its case for suspension of more than 30 days. In the former instance, the burden is on the employee to seek review and establish why the suspension is unwarranted. Therefore, we hold that the plaintiff is entitled to an opportunity to review his suspension, and that, in order to uphold the suspension, it must be approved by a majority of the police board. If the board does not approve the suspension, it shall enter appropriate orders to place the plaintiff in the same position as had the suspension not been levied in the first instance.” (Emphasis added.) 60 Ill. 2d 17, 26-27, 322 N.E.2d 793, 798.

Suggestion has been made that by the italicized words, the Kropel court indicated that the legislation to which analogy was drawn did not authorize the reviewing board or commission to shorten the length of the suspension but only to determine whether suspension was proper. We recognize that as a possible interpretation but deem it more likely such was not intended. The court also noted that the major difference between the suspension of less than 30 days and the longer suspension was that in the former, the employee had the burden of seeking review and establishing the error in the suspension, while in the latter, the employer had to initiate the proceedings and prove its case. In the latter situation the commission clearly has authority to reduce the severity of the suspension. Had the supreme court intended to be promulgating a rule whereby the severity of the suspension could not be reduced in the former case it would have been likely to so state. Furthermore, the court recognized:

“[T]hat such suspensions do have a substantial economic impact on the employee, so a review procedure is available if the suspension is for more than 5 days.” (60 Ill. 2d 17, 21, 322 N.E.2d 793, 795.)

The court’s concern with the economic impact of suspensions, even if for less than 30 days, is inconsistent with an intention that the commission have no power to reduce the severity of such a suspension.

We thus determine that the Civil Service Commission properly considered the length of the suspension, and its determination to greatly reduce its length was not a decision which should be judicially overturned. We affirm the judgment of the circuit court.

Affirmed.

TRAPP, J., concurs.

JUSTICE WEBBER,

dissenting:

I cannot concur in the result reached by my colleagues and suggest that they misread Kropel.

Section 10—1—18 of the Municipal Code, cited in the majority opinion, sets up a clear three-step system of punishments for an errant officer:

1. Suspension for less than 5 days.
2. Suspension for more than 5 days but less than 30 days.
3. Removal, discharge, or suspension for more than 30 days.

Step 1 is only a woodshedding and does not entitle the officer to a hearing. Step 2 is self-executing, but the officer is entitled to a hearing after the fact as to the “propriety” of the suspension. Step 3 requires a hearing before imposition of the punishment.

Step 2, in my opinion, is simply a guilty-or-not-guilty judgment by the commission, and I believe that this is borne out by the italicized language of Kropel quoted in the majority opinion. “If the board does not approve the suspension,” it must place the officer in statu quo ante. The supreme court said nothing about reducing, mitigating, or tinkering with the number of days of suspension. Hence, the commission has an all-or-nothing choice: It can approve and the suspension stands, or it can disapprove and “enter appropriate orders to place the officer in the same position as had the suspension not been levied in the first instance.”

If Kropel is to be understood to encompass as broad a range as suggested by the majority, what is to happen if the commission approves the suspension but believes that it should be more than 30 days? Does it have the power under Kropel to increase the suspension to 45 days? Or 60 days? Or to discharge altogether? To ask the question is to answer it. No. Plenary powers are conferred on the commission only under step 3.

I find an analogy, albeit an imperfect one, in the criminal area. Section 5—5—4.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—4.1) conferred upon a reviewing court the power to modify a sentence, including the power to increase or decrease it. In People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541, the supreme court held that the power of reduction infringed upon its Rule 615(b) (4) (73 Ill. 2d R. 615(b)(4)) and hence was null and void, but the underlying principle remains the same: There must be found in either a legislative enactment or in a rule the specific power to reduce punishment. No such specificity appears in the instant case either in section 10—1—18 of the Municipal Code or in Kropel. The majority opinion relies upon inference and surmise to reach its conclusion.

“Propriety” is etymologically related to both “proper” and “property.” The fundamental meaning of the latter is “a peculiar and characteristic quality of a thing or, formerly, a person; as, the properties of a triangle.” Webster’s Second New International Dictionary 1984 (1959).

“Propriety” stresses conformity to a standard of what is correct. Thus, the standard of review in step 2 is whether any suspension at all is justified, not how much.

The commission acted beyond its statutory power in reducing the suspension, and the circuit court was in error in affirming its action. It is obvious that the commission approved a suspension and therefore nothing would be accomplished by a remandment. I would, therefore, pursuant to the authority of Supreme Court Rule 366(a)(5) (73 Ill. 2d R. 366(a)(5)) reverse the circuit court and vacate that portion of the commission’s order which reduces the period of suspension.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES REHFELDT, Defendant-Appellant.
    Fourth District
    No. 17288
    Opinion filed January 29, 1982.
    James W. Ziegweid, of Adams & Ziegweid, of Quincy, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy, for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This case concerns the provisions of section 11—501.1(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 951/2, par. 11—501.1(d)), providing for the suspension of the driver’s license of motorists arrested for certain types of traffic offenses who refuse to submit to a test of their breath used to determine the alcohol content of their blood. The section requires that if a motorist required to take the test refuses to do so, the arresting officer “shall” file, with the clerk of the circuit court of the county of the arrest, a sworn statement containing certain information. The clerk is then required to notify the motorist that his license will be suspended unless he files a written request for a hearing within 28 days. If no timely request is made, the clerk is required to notify the Secretary of State of that fact and the latter then summarily suspends the license. If a hearing is requested, the court then holds a hearing to make a determination if certain stated requirements for revocation have been met and if the court so finds, the clerk of the court is directed to so notify the Secretary of State, who is then required to issue an order of suspension.

Defendant James Rehfeldt appeals from an order of the circuit court of Adams County entered on June 1, 1981, after a hearing requested by defendant pursuant to the terms of section 11—501.1(d). With reference to findings, the order stated: “Probable cause found. Clerk ordered to notify Sec. of State of finding.” On appeal defendant makes no claim as to any insufficiency of the findings of the circuit court, any insufficiency of the evidence to support the required findings, or any error in receipt of the evidence at the hearing. Rather, he contends the circuit court lacked subject matter jurisdiction to hold the hearing because the report filed by the arresting officer was not sworn to as required by section 11—501.1(d) and even if the court had jurisdiction, the failure of the officer to make a sworn report deprived him of due process.

Section 11—501.1(d) provides:

“The arresting officer shall file with the Clerk of the Circuit Court for the county in which the arrest is made, a sworn statement naming the person refusing to take and complete the test requested under the provisions of this Section.” (Emphasis added.)

The requirements of the report are then set forth in detail. Defendant contends the language contained in the statute is mandatory and the court is not vested with subject matter jurisdiction until the arresting officer files a sworn statement which sets the statutory procedures relating to the suspension or revocation of a driver’s license into effect.

No report of proceedings was filed with this court but a statement purporting to be a stipulation of facts was filed. It set forth: (1) On March 26, 1981, defendant was arrested for the offense of driving while intoxicated and refused to submit to the arresting officer’s request to take a breath analysis test; (2) the arresting officer filed a report and affidavit on defendant’s refusal and defendant requested a hearing; (3) at the hearing, the arresting officer testified that at no time did he sign the report and affidavit before a notary public or other person authorized to administer oaths, as required by section 11—501.1(d) of the Code.

Section 11—501.1(d) states that the scope of the proceedings before the circuit court:

“[S]hall cover only the issues of whether the person was placed under arrest for an offense as defined in Section 11—501 of this Act or a similar provision of a municipal ordinance, whether the arresting officer had reasonable grounds to believe that such person was driving while under the influence of intoxicating liquor, whether the person was informed orally and in writing as provided in Paragraph (a) that his privilege to operate a motor vehicle would be suspended if he refused to submit to and complete the test and whether, after being so advised, he refused to submit to and complete the test upon request of the officer.”

The stipulation makes no direct reference to the proof of the above matters. However, it indicates the defendant made a motion for a “directed verdict” which was based upon the evidence that the officer’s report was not verified. The stipulation also stated that in overruling the motion, the court ruled defendant “had submitted to the jurisdiction of the court and any defects in the Affidavit were cured by the officer’s sworn testimony” supporting the “finding of probable cause.” We thus conclude that the testimony recited in the stipulation was not the sole evidence produced at the hearing.

Although it has been stated by way of dictum that the use of the word “shall,” as used in section 11—501.1(d) is mandatory (see People v. Liddell (1974), 19 Ill. App. 3d 794, 313 N.E.2d 248), we do not hold that because of the failure of the officer to verify his report, the court lacked subject matter jurisdiction. This case differs from Wilcox v. Billings (1968), 200 Kan. 654, 438 P.2d 108, Dawson v. Austin (1973), 44 Mich. App. 390, 205 N.W.2d 299, and Metcalf v. State Department of Motor Vehicles (1974), 11 Wash. App. 819, 525 P.2d 819, cited by defendant. Those cases involved statutes similar to the one before us except that those statutes provided for a license to be suspended upon filing of a report and before any hearing and an original hearing granted a motorist on request was before an administrative tribunal rather than a court of general jurisdiction.

In Wilcox, the motor vehicle department suspended defendant’s driver’s license upon receipt of an unsworn report regarding defendant’s refusal to submit to a breath analysis test. Following an administrative hearing and jury trial de novo on the issue of the reasonableness of defendant’s failure to submit to the test, defendant appealed the revocation of his license, contending that because the report was not sworn to as required by law, the entire revocation proceedings were void. The reviewing court held the use of the word “sworn” in the statute to be mandatory and that where a report is not sworn to, the subsequent proceedings were void.

The decision in Dawson was similar to that in Wilcox.

In Metcalf, defendant’s license was revoked upon the filing of an unsworn report. Following a departmental hearing at which the arresting officer testified under oath, defendant appealed to the superior court. The trial court granted defendant’s motion to dismiss on the grounds that the report was unsworn and the motor vehicle department lacked jurisdiction. On appeal, the reviewing court affirmed the trial court’s decision.

On the question of the jurisdiction of the tribunal holding the original hearing, the present case differs from Wilcox, Dawson, and Metcalf in that, here, the first hearing was held before a trial court and not before an administrative body. In Wdcox and Metcalf, the administrative bodies obtained their jurisdiction from the statute. Here, it was not necessary for the court to obtain jurisdiction from the statute.

In People v. Gilmore (1976), 63 Ill. 2d 23, 344 N.E.2d 456, the supreme court held that the failure to charge a criminal offense does not deprive the circuit court of jurisdiction, as jurisdiction is not conferred by an indictment or information but by the provisions of section 9 of article VI of the Constitution, which provides that the circuit courts have “original jurisdiction of all justiciable matters.” By analogy to Gilmore, we hold here that even though the report was not sworn to, the court had jurisdiction.

No claim is made by defendant that the failure of the arresting officer to follow the mandate of the statute and verify the report filed with the circuit clerk was procedural error not depriving the court of jurisdiction. Any such claim would have been waived by the defendant. Rather than objecting to the insufficiency of the report, the defendant went to hearing on the merits of the court hearing provided for in section 11—501.1(d) and then claimed a finding should be made in his favor on the merits of the issue before the court because of the procedural deficiency. We conclude that he waited too long to raise that issue. Had the issue been raised before the hearing, the officer would have had an opportunity to verify the document in question and correct the deficiency.

We now turn to defendant’s claim he was deprived of due process because the officer’s report was not verified. We note that he was not deprived of any of his driving privileges until he had been given a hearing after adequate notice and with an opportunity to be represented by counsel, present evidence, and make argument. In Wilcox and Metcalf, the driver’s privileges were suspended merely upon the basis of the officer’s unverified report. We also note that we are not faced with the situation that would have developed if defendant had not demanded a hearing and his license to drive had been suspended merely on the basis of the officer’s unverified report. We find no deprivation of due process to have taken place.

Accordingly, the decision of the trial court is affirmed.

Affirmed.

LONDRIGAN and TRAPP, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v WILLIAM K. FOSTER, Defendant-Appellant.
    Second District
    No. 80-921
    Opinion filed January 27, 1982.

      Mary Robinson, of State Appellate Defender’s Office, of Elgin, and Peter B. Nolte, of Rockford, for appellant.
    Theodore J. Floro, State’s Attorney, of Woodstock (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, William K. Foster, was charged by information with one count of burglary, home invasion and attempt rape (Ill. Rev. Stat. 1979, ch. 38, pars. 19—1(a), 12—11(a)(2), 11—1(a), and 8—4(a)). After a jury trial, he was found guilty of each offense. The State nolle prossed the burglary count, and the court entered judgment against the defendant on home invasion and attempt rape. Defendant was sentenced to 10 years in the Department of Corrections. He appeals, contending that the trial court erred (1) in instructing the jury as to both home invasion and attempt rape, (2) in admitting certain items into evidence and, (3) in failing to grant defendant’s motion for a mistrial alleging that a statement made by a prosecution witness was prejudicial.

The evidence adduced at trial revealed that at 2 a.m. on June 29, 1980, a man wearing a yellow tank-top T-shirt, a pair of jeans and brown laced boots entered the residence of David Rezab, went into the basement, and found 15-year-old Dawn Rezab there. He asked whether her father was home. When she replied that he was asleep and got up from her chair to go wake her father, he pushed her back down, put one hand over her mouth, pressed down on her throat with the other, and told her he was going to rape her. She began to scratch, kick and scream, awakening her father who came down to the basement and asked what was going on. The man released Dawn, pushed Rezab and wrestled with him while Dawn proceeded to call the police. The intruder then broke from Rezab’s grasp and ran out of the house.

Later that morning, a car matching the description of one observed earlier by a neighbor of the Rezabs was seen by an Algonquin police officer. It was parked at an Arco station at the corner of Routes 31 and 62 in Algonquin, and the occupant appeared to make furtive gestures. When back-up officers arrived and approached the car, they found William Foster, the defendant, lying on the floor as though he was hiding, although defendant stated that he had been fishing. The police noticed that defendant had alcohol on his breath, and they observed a beer can in the car. The defendant was not wearing a shirt, but a yellow tank-top T-shirt, stained and wet with perspiration, was found in the car. He had scratches on his back and was wearing brown laced boots which were wet and had grass sticking to them. The Rezabs separately picked defendant’s photo out of a group of seven in a photo lineup.

In August, defendant was also placed in a lineup of five people. Dawn narrowed her identification down to two numbers in the lineup and finally stated she would probably identify No. 1 as the perpetrator if she had to testify in court. Her father identified No. 5; the defendant was person No. 4. Mr. Rezab testified that defendant had had a haircut, had shaved his mustache, and did not wear his glasses at the lineup. Officer Schinkel of the Algonquin Police Department testified concerning the Rezabs’ failure to identify the defendant at the lineup. The following colloquy ensued:

“[Defendant’s attorney, Kelly]: But when asked whether she [Dawn] would testify, didn’t she testify that someone was the other person [person no. 1]?
[Officer Schinkel]: You’d have to see the line-up. It was very bad. He changed his appearance quite a bit.
Q: You were conducting it, were you not?
A: I did not conduct it.
Q: You were there, were you not?
A: Rolling Meadows Police Department conducted it.
MR. KELLY: Judge, I’m going to object. Wasn’t responsive. I move it be stricken.
THE COURT: Sustained. Disregard it. Jury strike it.”

In chambers, defendant then unsuccessfully sought a mistrial due to this remark. At the close of the State’s case, the court admitted into evidence a yellow tank-top T-shirt which was found in defendant’s car and a pair of brown laced boots which defendant had worn at the time of his arrest.

At the close of defendant’s case, the court instructed the jury as to attempt and rape (Illinois Pattern Jury Instructions, Criminal, Nos. 6.05 and 9.01 (1968) (hereinafter IPI)), but did not delineate the issues in attempt. (IPI Criminal No. 6.07.) IPI Criminal, No. 11.21 (2d ed. 1981), which now defines the offense of home invasion, was not available at the time of defendant’s trial. This definitional instruction was given:

“A person who is not a police officer acting in the line of duty commits home invasion when, without authority, he knowingly enters a dwelling place of another when he knew or had reason to know that one or more persons is present, and threatens the imminent use of force upon any person within such dwelling place whether or not injury occurs, or intentionally causes any injury to any person or persons within such dwelling.”

No objection to this instruction was interposed by the defendant. Likewise, the issues instruction, IPI Criminal No. 11.22, was not then available, and the following instruction was given, this time over defendant’s objection that it “[djoesn’t make the findings that are necessary for there to be a home invasion”:

“To sustain the charge of Home Invasion, the State must prove the following propositions:
First: That the defendant knowingly entered the building of David Rezab, located at 604 Scott Street, Algonquin, Illinois;
Second: That the defendant knew or had reason to know that one or more persons were present in the home at the time;
Third: That the defendant did so without authority;
Fourth: That the defendant threatened the imminent use of force upon any person within such dwelling place whether or not injury occurred or intentionally caused any injury to any person or persons within such dwelling.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

The trial court also gave a general instruction informing the jury that the defendant is presumed innocent, and that the State must prove the defendant guilty beyond a reasonable doubt.

Defendant initially contends that the instructions to the jury defining home invasion and delineating the issues of that crime were misstated because both instructions permitted the jury to find the defendant could be found guilty based on a finding that he had threatened the imminent use of force, absent a finding that he had done so while armed with a dangerous weapon. Defendant characterizes the error as more than “a mere technical defect”; he asserts the inclusion of the dangerous weapon element was essential for the jury to make a legally permissible determination of the defendant’s guilt or innocence of the charge of home invasion. (People v. Stromblad (1978), 74 Ill. 2d 35.) However, the record reveals that the defendant failed to object to the trial court’s definition of home invasion. Although defendant did point out that the issues instructions did not “make the necessary findings for there to be a home invasion,” he neither tendered a correct instruction nor preserved the error by including it in his post-trial motion.

It is well established that failure to object at trial to an asserted error in jury instructions waives the question. (People v. Tannenbaum (1980), 82 Ill. 2d 177; People v. Roberts (1979), 75 Ill. 2d 1.) Additionally, failure to tender a proper instruction and to raise the error in a post-trial motion effectively waives the issue for appellate review. (People v. Masini (1979), 78 Ill. 2d 17; People v. Foster (1979), 76 Ill. 2d 365.) A limited exception to the waiver rule is contained in Supreme Court Rule 451(c) which permits the review of “substantial defects” in instructions “if the interests of justice require.” (Ill. Rev. Stat. 1979, ch. 110A, par. 451(c).) However, that exception is limited to the correction of “grave errors,” or is to be applied where the case is close factually and fundamental fairness requires that the jury be properly instructed. People v. Ogunsola (1981), 87 Ill. 2d 216.

Section 12—11 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12—11) provides:

“(a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and
(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, or
(2) Intentionally causes any injury to any person or persons within such dwelling place.”

We observe that the offense is stated in the alternative; that is, the offense of home invasion may be committed either by using or threatening the imminent use of force while armed with a dangerous weapon, or by intentionally causing any injury to a person when the offender enters a residence and knows that a person or persons is in the house at that time. Reference to the current IPI issues instruction on home invasion clearly indicates a defendant may be convicted of the offense upon proof of either the elements stated in section 12—11(a)(1) or those set forth in section 12—11(a)(2). (IPI Criminal No. 11.22; Ill. Rev. Stat. 1979, ch. 38, par. 12—11(a)(1), (a)(2).) The information filed against the defendant for home invasion was not stated in the alternative; it specifically charged the defendant “intentionally caused injury to Dawn Rezab.” Thus, in our view, the instruction did not omit any element essential to a determination of the defendant’s guilt or innocence of the offense of home invasion as charged; rather, the jury was over-instructed by also being partially instructed on the alternative means of committing the offense. Such variances between the type of the offense specified in the information or indictment and the types described in the instructions given to the jury have been held not to vitiate a conviction unless the variance was of such a character as to mislead the defendant in his defense or expose him to double jeopardy. (People v. Rosochacki (1969), 41 Ill. 2d 483, 492.) The variance here had neither effect. Defendant’s primary defense to the charge was unrelated to the method whereby the offense was effectuated; rather, the thrust of his defense was to attack the witnesses’ identification of him as the perpetrator. There was not any evidence that he used a dangerous weapon during the commission of the offense, and his conviction under the instant set of facts would bar any further prosecution for home invasion. Consequently, the defendant’s conviction has not been vitiated by the variance. Clearly there was ample evidence presented to the jury to permit it to find the defendant guilty of home invasion beyond a reasonable doubt. A recent case has construed the “injury” necessary to sustain a conviction under the home invasion statute. In People v. Bitner (1980), 89 Ill. App. 3d 1106, 1112, which held that battery is a lesser-included offense of home invasion, it was stated:

“To have committed a home invasion, defendant had to have caused an injury to a person or persons within the dwelling. While injury and bodily harm are not identical, it is clear that to cause an injury within the meaning of the home-invasion statute, one must cause bodily harm, thus committing a battery. Thus, whenever a person violates the home-invasion statute, he simultaneously commits a battery.”

Although there was no apparent visible injury to the victim in the case at bar, such visible evidence is not necessary in order for a battery to have occurred. It was stated in People v. Choate (1979), 71 Ill. App. 3d 267,276, that:

“In order to establish ‘bodily harm’ in a battery case, there is no requirement that the evidence demonstrate a visible injury such as bruising, scratching, or bleeding * ° Accord, People v. McEvoy (1975), 33 Ill. App. 3d 409, 411; see also People v. Claudio (1973), 13 Ill. App. 3d 537, 540.

In the instant case, the evidence clearly showed the defendant pushed Dawn down into the chair, and had his hand around her throat while she struggled with him. Clearly this contact caused injury; thus, it was sufficient to sustain the defendant’s conviction under the home invasion statute. The jury was properly instructed on the alternative way in which the crime could have been committed and for which there was ample evidence. In view of the insufficiency of the defendant’s objection to the instruction, failure to tender a proper one, and failure to raise the issue in his post-trial motion, we do not believe a substantial defect is evident under the facts of this case, nor that the interests of justice require review pursuant to Supreme Court Rule 451(c) (Ill. Rev. Stat. 1979, ch. 110A, par. 451(c)).

Defendant next contends that the trial court erred in failing to instruct the jury as to the issues of attempt rape, notwithstanding the fact they were given separate definitional instructions on the offenses of attempt and rape. (IPI Criminal Nos. 6.07, 6.05 and 9.01.) He argues that because the issues instruction for attempt was not given, the jury was not properly apprised of the issues of attempt rape, and was unsure as to which elements of the offense it had to find beyond a reasonable doubt. He cites People v. Davis (1966), 74 Ill. App. 2d 450, as lending support to his contention of error. The defendant in that case was charged with attempt robbery and, unlike the case at bar, the jury there received no instruction whatever on the offense of robbery, thus effectively requiring it to speculate entirely on its own as to the essential elements of that offense. The record reveals that defendant here failed to offer the court an instruction on the issues of attempt rape, and also failed to raise it in his post-trial motion. Accordingly, the same waiver rules and exceptions discussed above apply.

In People v. Jones (1972), 6 Ill. App. 3d 669, 682, aff'd (1975), 60 Ill. 2d 300, the trial court failed to give an instruction delineating the elements of rape although it had given the definitional instruction of rape. The court initially noted that in People v. Davis (1966), 74 Ill. App. 2d 450, the court was faced with a situation where the trial court instructed the jury as to the definition of attempt and no more. The Jones court then found that the trial court’s failure to give the instruction as to the elements of rape was not an error of the same gravity as the error in Davis, It remarked:

“In this case, the defendants did not tender additional instructions. While it might have been better for the court to have instructed more specifically on the elements of the offenses charged, we do not find that the failure of the trial court so to instruct was prejudicial error. ‘Where the instructions, as a whole, inform the jury of the facts which are essential to the proof of the commission of a specific crime, an error in giving an instruction will not be considered so prejudicial as to warrant a reversal.’ [Citation.]” 6 Ill. App. 3d 669, 683.

In the case at bar, the trial court gave the general instruction as to defendant’s presumption of innocence and the State’s burden to prove the defendant guilty beyond a reasonable doubt throughout the case. (IPI Criminal No. 2.03.) It defined both the offenses of attempt and rape for the jury. We believe these instructions adequately apprised the jury of the elements of the offense charged, and the presumptions and burdens of the respective parties. The evidence adduced at trial clearly showed that the defendant entered the Rezab residence, announced his intent to rape Dawn, ordered her to lift her nightgown, and proceeded to struggle with her in an effort to rape her. This case is not so close factually as to require this court to invoke Supreme Court Rule 451(c). Accordingly, defendant has waived this issue on appeal.

Defendant’s next contention is that the trial court erred in admitting into evidence People’s exhibits Nos. 19 and 20, a yellow tank-top and a pair of boots, respectively, which were both taken from defendant’s possession upon his arrest. Defendant argues that although the exhibits belong to him, there was no evidence introduced at trial establishing that the person who had committed the crime wore that shirt or one like it or those boots or a pair similar to them. Defendant failed to object to the admission of these items into evidence, and did not include the issue in his post-trial motion. It is well settled that when a defendant fails to make a timely objection at trial or in the post-trial motion, alleged errors occurring during the course of the trial complained of on review are ordinarily deemed waived. (People v. Jackson (1981), 84 Ill. 2d 350, 358.) Nevertheless, Supreme Court Rule 615(a) provides:

“Plain errors or defects affecting substantial rights may be noticed although they are not brought to the attention of the trial court.” Ill. Rev. Stat. 1979, ch. 110A, par. 615(a).

Before plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed or that the evidence was closely balanced. (People v. Jackson (1981), 84 Ill. 2d 350, 359-60; People v. Carlson (1980), 79 Ill. 2d 564, 576.) It does not appear here that the alleged errors have affected defendant’s substantial rights. (See People v. Noascono (1980), 80 Ill. App. 3d 921.) In the case at bar, the defense relied upon was that defendant had not committed these offenses. Both Dawn and David Rezab testified at trial that the person entering the home wore a yellow tank-top and brown laced boots. Officer Schinkel testified that defendant’s yellow tank-top shirt was found in the back seat of his car, and was moist with perspiration. Defendant’s boots were wet and had grass sticking to them. Additionally, a neighbor of the Rezabs directed the officers to foot prints in the lawn around his house. These prints belonged to a person wearing a boot 11 inches long. The boots found on defendant were 11 inches long. Both Dawn and David Rezab positively identified the defendant at trial and picked his photo from a group of seven. Although neither victim identified defendant at the pretrial lineup, there was evidence that defendant had substantially altered his appearance. We determine that this case is not so close factually as to invoke Supreme Court Rule 615(a). Moreover, the failure of the witnesses to describe in more detail the yellow tank-top or the boots was a matter for argument to the jury rather than a bar to their admissibility. See People v. Moody (1979), 75 Ill. App. 3d 674.

Defendant’s final contention is that the trial court erred in denying defendant’s motion for a mistrial, based upon Lieutenant Schinkel’s statement that defendant stood in a lineup conducted by the Rolling Meadows Police Department two months after his arrest. Defendant properly preserved this issue for appeal. Evidence suggesting or inferring defendant’s complicity in other crimes is clearly inadmissible and prejudicial. (People v. Curry (1975), 25 Ill. App. 3d 637.) However, where the competent evidence shows beyond a reasonable doubt that a defendant is guilty, an error in the admission of evidence of other offenses does not call for reversal when the jury could not have reasonably found defendant not guilty. (People v. Tranowski (1960), 20 Ill. 2d 11; People v. Arbuckle (1979), 75 Ill. App. 3d 826.) Although the jury could have inferred from Schinkel’s statement that the Rolling Meadows Police Department conducted the lineup because they were holding defendant for another crime, the nonresponsiveness of the officer’s statement could likewise have merely confused the jury, or it simply may have inferred that the defendant had been apprehended and was in custody in Rolling Meadows for the instant offenses. In our view, the evidence against the defendant was so overwhelming that we must conclude the jury could not reasonably have found the defendant not guilty and reversal is not warranted.

For the reasons expressed above, the judgment of the circuit court of McHenry County is affirmed.

Judgment affirmed.

SEIDENFELD, P. J., and REINHARD, J., concur.


author: JUSTICE HOPF

text:
    GORD INDUSTRIAL PLASTICS, INC., Plaintiff-Appellee, v. AUBREY MANUFACTURING, INC., Defendant-Appellant.
    Second District
    No. 80-824
    Opinion filed January 29, 1982.
    Rehearing denied March 1, 1982.

      Bernard M. Kaplan, of Ruben, Kaplan & Rosen, of Skokie, for appellant.
    Charles L. Fierz, of Sycamore, for appellee.
   JUSTICE HOPF

delivered the opinion of the court: Plaintiff brought this action for breach of contract against defendant in the De Kalb County Circuit Court. Defendant had stopped payment on a check it had issued as payment for the recovery of certain molds manufactured by plaintiff for defendant. The molds had been retained by plaintiff to make plastic parts for defendant for use in its business. Defendant denied any obligation to pay for the recovery of the molds and counterclaimed for damages it incurred in correcting defects in products made by plaintiff from the molds. The trial court ruled that the parties had arrived at an agreement in the nature of an accord and satisfaction, by which agreement defendant agreed to pay to recover the molds and all claims between the parties were settled. Defendant appeals, contending that there was no accord and satisfaction, and that the parties’ contract did not require the payment of a removal fee. It further argues that it is entitled to damages caused by plaintiff’s deliveries of defective products made from the mold.

On April 19, 1976, defendant sent plaintiff a “purchase order” for a mold to be used in the manufacture of plastic parts required by defendant in his business, for a price of $5,180. On the front of the order form, at the bottom, was stated, “PLEASE SEND US THE ABOVE SPECIFIED GOODS SUBJECT TO CONDITIONS ON FACE AND BACK OF THIS ORDER.” On the back of the form was printed a number of terms. Pertinent to this dispute are the following terms:

“BY ACCEPTANCE OF THIS ORDER THE SELLER AGREES TO:
1. Acknowledgement & Acceptance:
The vendor must acknowledge receipt of this order promptly and state whether or not it is accepted upon the terms and prices herein specified, make no substitution without authority from us. « « «
16. Conflicts:
If any conflict appears between these terms and conditions and the terms and the conditions of your proposal, the terms and conditions of this order shall prevail.”

On May 10, 1976, defendant sent a second “purchase order” for another mold at $5,330. The reverse side of this order form listed the same terms as the earlier one.

On May 25,1976, plaintiff sent a form listing the two molds and their prices, $5,180 and $5,330, and quantities and prices of parts made from the molds. Printed at the bottom of this form was the following: “THE ADDITIONAL TERMS AND CONDITIONS ON THE REVERSE SIDE OF THIS SHEET ARE PART OF THIS PROPOSAL AND SHALL APPLY TO ALL SUBSEQUENT ORDERS ON THE PROPOSAL. PLEASE SIGN ONE COPY ON REVERSE SIDE AND RETURN WITH YOUR ORDER.” The pertinent terms on the reverse side stated as follows:

“15. MOLD REMOVAL. In consideration of the engineering services necessary in the designing of molds, and not charged for at the fair market value, all molds shall remain in our possession for one year from the approval of samples or until the sales of the parts produced therefrom equals 10 times the price of molds and tools as built. Thereafter the customer may take delivery of molds and tools ‘as is’ upon payment of a charge of 30% of their original billing price. * <f
25. * * 9 This proposal, when accepted by the customer, shall become a contract only when received at the home office of the company and formally acknowledged.”

Below this last term of the proposal was provided space for signature signifying acceptance. Defendant’s purchasing agent testified he never signed plaintiff’s form.

Thereafter the molds were manufactured and the listed prices were paid by defendant in the fall of 1976. Over the next several years plaintiff produced a number of plastic parts for defendant from the molds. The parts frequently did not come up to specification and many had to be returned to plaintiff. Defendant would receive credit for these. Others were corrected by defendant and by employees of plaintiff sent to defendant’s plant for this purpose.

In April 1979 defendant demanded return of the molds. At that time plaintiff informed defendant’s purchasing agent that it would not turn over the molds until a removal fee, 30% of the purchase price of each mold, was paid. Defendant’s purchasing agent objected and refused. He returned 10 days later, however, after the balance due on the plastic parts was straightened out, to pay, with separate check, the 30% of the purchase price for the molds and the balance owing for the plastic parts. In exchange plaintiff returned the molds to defendant. Three or four days later defendant’s purchasing agent, a salesman for defendant, and defendant’s legal counsel met and counsel advised that payment of the check issued for the mold removal fee be stopped.

Plaintiff then filed this suit for payment of the check and defendant counterclaimed for damages incurred due to defective part's it had received, throughout the course of the parties’ business dealings.

The trial court found that the parties had come to an agreement in the nature of an accord and satisfaction by which agreement the differences of opinion were settled. Therefore, it ruled, plaintiff was entitled to payment of the check and defendant could not now raise a counterclaim for damages.

An accord and satisfaction is an agreement between the parties which settles a bona fide dispute over an unliquidated sum. There must be consideration, a meeting of the minds with intent to compromise (which may be inferred from the parties’ words and actions) and, finally, execution of the agreement. (Koretz v. All American Life & Casualty Co. (1968), 102 Ill. App. 2d 197, 243 N.E.2d 586.) An accord and satisfaction supersedes the terms of the original contract. Thus, it typically is raised in defense of an action brought on a contract. (Metro-Goldwyn-Mayer, Inc. v. ABC-Great States, Inc. (1972), 8 Ill. App. 3d 836, 291 N.E.2d 200; Koretz v. All American Life & Casualty Co.) Accord and satisfaction may be the basis for a complaint, however, and a party may sue another for noncompliance of an agreement. See Sears, Sucsy & Co. v. Insurance Company of North America (N.D. Ill. 1975), 396 F. Supp. 820.

We do not agree that the exchange of payment for the molds can be termed an accord and satisfaction. The dispute was not how much was owed, for it is clear that, if any amount, it would be 30% of the purchase price, but it was whether that amount was owing at all. Moreover, plaintiff clearly did not act in a spirit of compromise: it demanded, and received, what it considered it was due under the contract. Neither do we consider that the exchange of the molds for the payment was reached by compromise and settlement, for a compromise and settlement requires an offer and acceptance to compromise. (Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 356 N.E.2d 837.) Plaintiff clearly did not offer a compromise. The only concession was defendant’s.

Having concluded that the exchange of the 30%. payment for the molds was not an accord and satisfaction, we must turn to an examination of the writings of the parties to determine what they actually had contracted so that we may determine whether or not defendant was obliged to pay a mold removal fee.

Defendant argues that his April 19,1976, and May 10,1976, purchase orders were offers. Each of these “offers” expressly limited acceptance to its terms. Defendant argues that plaintiff’s invoices billing defendant for the molds at the prices stated in defendant’s “offers” indicate acceptance of the terms of those offers. This argument ignores the fact that if the mold removal fee was to be paid at all it was to be paid at the time of removal, not manufacture. There was no reason for the invoices to mention the mold removal fee. This argument also ignores the fact that plaintiff had itself issued a form on May 25,1976, which listed the molds at the prices stated by defendant but which on the reverse included provision for a mold removal fee that required acceptance of this “proposal” by the purchaser’s signature on the form.

It is clear that defendant’s “purchase orders” are offers to purchase certain molds at specific prices. They invite acceptance by the plaintiff, the manufacturer, but only “upon the terms and prices * * * specified,” with “no substitution” of terms. Plaintiff responded to these orders with its “proposal” requesting acceptance of its terms. The question is, did these writings form a contract and, if so, what were the terms.

A response to an offer may be an acceptance even though additional terms are proposed:

“(1) A definite and seasonable expression of acceptance * * * which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered “ * * unless acceptance is expressly made conditional on assent to the additional or different terms.
(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
(a) the offer expressly limits acceptance to the terms of the offer; * 0 Ill. Rev. Stat. 1975, ch. 26, par. 2—207.

Assuming plaintiff’s May 25,1976, response is an acceptance we note that it includes terms different from the terms of defendant’s offer. A term adding a 30% removal fee can not become part of a contract in which the offer made no mention of such a fee and expressly limited acceptance to its terms.

We believe, however, that plaintiff’s May 25, 1976, response was not an acceptance but a counteroffer. Section 2—207 of the Uniform Commercial Code—Sales (Ill. Rev. Stat. 1975, ch. 26, par. 2—207(1)) provides that “[a] definite and seasonable expression of acceptance * * * operates as an acceptance” even though it does not perfectly reflect the terms of the offer. Although the Uniform Commercial Code operates to make the formation of a contract not dependent upon a requirement that offers and acceptances perfectly reflect each other in every aspect, it still requires “a definite expression of acceptance and does not change the basic common-law requirement that there must be an objective manifestation of mutual assent.” (McCarty v. Verson Allsteel Press Co. (1980), 89 Ill. App. 3d 498, 510, 411 N.E.2d 936.) Plaintiff’s May 25, 1976, form provided that its terms are to apply to “all “ * 0 orders on the proposal.” It added, “Please sign one copy on reverse side and return with your order.” On the reverse of the form was stated, “This proposal, when accepted by the customer, shall become a contract only when received at the home office of the company and formally acknowledged.” The words indicate the extension of an offer, not an acceptance of one. It appears that the parties’ writings constitute an offer and a counteroffer. Further, the inclusion of an additional term and a request to sign the form arguably makes the “acceptance” conditional upon acceptance of the new terms. Therefore it could not operate as an acceptance, in which case it would operate as a counteroffer and no contract is formed on the basis of terms of either of these “offers.” Album Graphics, Inc. v. Beatrice Foods Co.

(1980), 87 Ill. App. 3d 338, 347, 408 N.E.2d 1041; Tecumseh International Corp. v. City of Springfield (1979), 70 Ill. App. 3d 101, 388 N.E.2d 460.

There is no indication that plaintiff’s counteroffer was accepted by defendant. Defendant’s purchasing agent testified that he never signed plaintiff’s form, as requested, and there is no writing in evidence in which defendant makes “[a] definite and seasonable expression of acceptance” (Ill. Rev. Stat. 1975, ch. 26, par. 2—207(1)). Although neither party’s offer was accepted this is not to say that there was no contract. Subsection 2—207(3) of the Uniform Commercial Code provides that a contract is formed when the parties’ action reflects a formation of a contract even where, as here, the writings of the parties did not establish one:

“(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.” Ill. Rev. Stat. 1975, ch. 26, par. 2—207(3).

Even though neither offer could dictate the form which the contract was to take, the offers and the parties’ conduct do establish that there was a contract. The terms upon which the parties’ forms agree, plus any supplementary terms supplied by the Uniform Commercial Code, are the terms of this contract.

Among the terms with which the Uniform Commercial Code may supplement a contract are the parties’ course of dealings and the usage of trade. A course of dealings, a sequence of previous conduct of the parties to be regarded as a basis for establishing an understanding of their interpretation of their conduct (Ill. Rev. Stat. 1975, ch. 26, par. 1—205(1)), and a usage of trade, a practice or method of dealing in an industry of such regular observance in the area that it justified an expectation of this observance in the transaction in question (Ill. Rev. Stat. 1975, ch. 26, par. 1—205(2), “give particular meaning to and supplement or qualify terms of an agreement.” Ill. Rev. Stat. 1975, ch. 26, par. 1—205(3).

We think that a mold-removal fee, if shown to be understood in the parties’ course of dealings or a usage of the plastics molding industry, would be a term supplementing or qualifying the terms fixing the prices of the molds, and thus part of the contract.

Plaintiff offered evidence at trial in support of an argument that the course of dealings or usage of trade required the incorporation in the contract of a provision for a mold-removal fee. We think that whether the course of dealings of the parties or the usage of trade in the area supplement the contract by incorporating a mold-removal fee into the parties’ contract is a matter of fact to be determined by the trial court. Subsection 1—205(2) of the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 1—205(2)) specifically provides that “[t]he existence and scope of [a usage of trade] are to be proved as facts.” We think the same is also true with regard to course of dealings. It is for the fact finder, the trial court, to find whether or not the evidence proves the parties’ course of dealings or the usage of trade in the area incorporate a mold removal fee into the contract. If so, the court must determine the scope of the fee, in other words, the percentage of the purchase price commonly used as a mold removal fee.

With respect to defendant’s contention that it should have been awarded damages to its counterclaim, we note that the trial court’s ruling that the parties had agreed to an accord and satisfaction caused no finding to be made regarding this question. We remand to the trial court to make a finding whether defendant is entitled to damages, and, if so, the extent of those damages.

We reverse the ruling of the trial court that the parties had reached an agreement in the nature of an accord and satisfaction, and we remand in order that the court may determine whether the contract formed by the parties included, by means of course of dealings or usage of trade, a mold-removal. fee and, if the court does so find such a provision incorporated, the size of the fee. We also remand the cause in order that the trial court may make findings on defendant’s counterclaim.

Reversed and remanded.

LINDBERG and NASH, JJ., concur.


author: JUSTICE HEIPLE JUSTICE BARRY,

text:
    HARRY J. ALTON, JR., et al., Plaintiffs-Appellants, v. VICTOR KITT, M.D., et al., Defendants-Appellees.
    Fourth District
    No. 16864
    Opinion filed January 22, 1982.

      James T. Mohan and Paul E. Adami, both of Mohan, Alewelt & Prillaman, of Springfield, for appellants.
    Heyl, Royster, Voelker & Allen, of Springfield (Gary M. Peplow, of counsel), for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

This is a medical malpractice case. The plaintiffs, Harry J. Alton and Doris Alton, sought to recover compensatory and exemplary damages from defendants, Victor Kitt, M.D., and the Springfield Clinic and its managing partners. The alleged negligent and wanton acts or omissions stem from the tonsillectomy and post-operative care of Mr. Alton. A trial commenced March 11, 1980. After a week of testimony, a Sangamon County jury returned a verdict for all defendants. Plaintiffs bring this appeal.

The facts take us back a full eight years. In July 1973, Mr. Alton met with Dr. Rubenstein, a managing partner of the Springfield Clinic, at the clinic’s offices. Mr. Alton was referred there by Dr. Greening for a possible tonsillectomy due to chronic throat ailments. Dr. Rubenstein confirmed this diagnosis. Because of Mr. Alton’s employment as a contractor, the operation was scheduled for January 14, 1974.

On January 13, 1974, Mr. Alton checked into St. John’s Hospital in Springfield. Blood tests and blood pressure reading were conducted. Due to an injury to Dr. Rubenstein, Dr. Kitt, an associate of the Springfield Clinic, was to perform the surgery on January 14,1974. Dr. Kitt testified that he reviewed the clinic’s file and the results of the tests the hospital performed on Mr. Alton. He met the patient for the first time in the corridor which led to the operating room.

The operation lasted about 40 minutes. While in the recovery room, Mr. Alton began bleeding from the left lower tonsillar bed. He was returned to the operating room and a surgical method employed by Dr. Kitt stopped the bleeding. Later, Mr. Alton was transferred to his hospital room. The Altons did not learn of this recovery room complication until almost one year later. •

The next day, January 15,1974, around noon, Mr. Alton was released from the hospital. Dr. Kitt telephoned the hospital authorizing the discharge. Dr. Kitt could not recall whether he ever personally checked the patient before releasing him. In any event, no medication was prescribed on release. The only information provided concerning post-operative care was furnished Mr. Alton by Dr. Rubenstein at their July 1973 meeting.

On Thursday, two days later, while at home, Mr. Alton started bleeding from his mouth again..Doris Alton, his wife, called the clinic and was told to bring Mr. Alton to the office. The Altons arrived at the Springfield Clinic 30 minutes later. Dr. Kitt examined Mr. Alton’s throat and observed blood stains, but no active bleeding. Mr. Alton was nervous. A five-milligram injection of Valium, a tranquilizing agent, was administered by Dr. Kitt. The doctor left the room.

Ninety minutes later Mr. Alton began hemorrhaging from his mouth. Mrs. Alton exited at once and informed two nurses, Debbie Ciaccio and Gail Ratliff, of her husband’s condition. Dr. Kitt was summoned. Both nurses entered the room and found Mr. Alton standing over the sink spitting blood into it. Mrs. Ciaccio put Mr. Alton in a dental-type chair which was cocked at a 45-degree angle. Dr. Kitt entered. What occurred next is not exactly clear from the record. It appears that Dr. Kitt was planning to begin suturing the left lower tonsillar bed—the source of the bleeding—in Mr. Alton’s throat. Dr. Kitt testified that Mr. Alton was quite agitated, although this was disputed. Nonetheless, Dr. Kitt injected Mr. Alton intermuscularly with a 50-milligram dosage of meperidine (Demerol), a pharmaceutical narcotic. Since Dr. Kitt did not have the proper sutures, he sent Mrs. Ratliff to obtain them. During this time Mrs. Ciaccio was readying a suction machine. The testimony is conflicting as to whether it was ever used. At this point Mr. Alton either passed out or went into respiratory arrest.

When Mrs. Ratliff returned with the sutures, Dr. Kitt was performing external cardiac massage on Mr. Alton. This involves putting hand pressure on the patient’s chest, then releasing the pressure, in order to activate the heart muscle. He told her to signal the clinic staff that an emergency existed. She complied immediately. The first physician to arrive was Dr. Castro, who was later joined by others. Because of the amount of blood in Mr. Alton’s throat, air was not able to pass to the lungs. Accordingly, Mr. Alton’s brain was deprived of life-saving oxygen and damaged. Quickly sizing up the situation, Dr. Castro placed Mr. Alton on the floor and performed a tracheotomy in order to get an airway open from the outside of his throat. Since time was a critical factor, the tube of a ballpoint pen was used in this operation. Dr. Castro’s efforts saved the patient’s life but were too late to prevent damage to his brain.

When the ambulance arrived, Mr. Alton was transported to St. John’s Hospital. He remained in a coma for 11 days. On January 20, 1974, Mr. Alton began bleeding from his mouth. Dr. Rubenstein was called to stop bleeding in the left lower tonsillar bed. The operation lasted six hours. It was successful. Altogether, Mr. Alton was hospitalized 44 days.

Because of brain damage, Mr. Alton was afflicted with speech impairment, an eye dysfunction, and body tremors. The latter occurred spontaneously, resulting in his body assuming a rigid posture, which he cannot control. Almost 30 days after release from the hospital, Mr. Alton began falling down while walking. Such spills resulted in the plaintiff breaking his shoulder, his teeth and suffering facial lacerations. In the last five to six years Mr. Alton has fallen, while walking, about 400 times.

In an attempt to alleviate this condition, Mr. Alton has been treated by at least eight physicians in three different States. He has undergone both speech and physical therapy. He has submitted to counselling and psychiatric care for the phobia he possesses about falling every time he walks. This lawsuit was filed January 5, 1976.

The third amended complaint, filed August 31, 1978, contains eight counts. Count I is the negligence count which claims Dr. Kitt was negligent in: failing to examine Mr. Alton or confer with him or Drs. Ruben-stein or Greening prior to surgery; the performance of various surgical operations on Mr. Alton concerning the extraction of his tonsils; neglecting to examine Mr. Alton prior to discharge from the hospital and prescribe proper medication; and, in properly administering medication and rendering medical treatment of Mr. Alton at the Springfield Clinic on January 17, 1974. Count II realleged the bulk of count I and stated such acts or omissions were accomplished in a willful or wanton manner and sought punitive damages. Counts III and IV sought compensatory and punitive damages from the Springfield Clinic based on a theory of respondeat superior. Count V claimed loss of consortium on Mrs. Alton’s behalf. Counts VI, VII, and VIII sought compensatory and exemplary damages based on the theory of res ipsa loquitur.

At the end of plaintiffs’ case-in-chief, several components of the negligence count were withdrawn on plaintiffs’ oral motion. This deleted the claims of negligence stemming from Dr. Kitt’s failure to examine Mr. Alton prior to the tonsillectomy and confer with the patient and previous treating physicians. Also, the claims of negligence arising from postoperative bleeding immediately after the tonsillectomy, and the failure to prescribe medication upon discharge from the hospital were excised at the plaintiffs’ request. The trial court then entertained motions for directed verdicts.

After the hearing on such motions, the trial court struck counts IV, V, VII and VIII, entering directed verdicts thereon. All the negligence pleas were deleted except those claims concerning Dr. Kitt’s improper administration of medication and cardiac massage treatment. Those two issues, within the structure of plaintiffs’ theories of negligence and respondeat superior liability, were the only ones the jury considered. As to Mrs. Alton, the jury weighed her claim for loss of consortium. Also, the jury was permitted to decide punitive damages liability as to Dr. Kitt individually. Verdicts were returned for all defendants.

On appeal, plaintiffs advance nine separate claims of error. First, did the trial court err in striking various portions of plaintiffs’ amended complaint. Next, whether the jury’s verdicts on Dr. Kitt’s administration of cardiac massage and medication were against the manifest weight of the evidence. Also, whether the trial court incorrectly sustained objections to plaintiffs’ closing argument. The remainder of the allegations of error concern the propriety of expert testimony: whether defendants’ expert was improperly allowed to testify concerning certain medical texts; whether the trial court erred in refusing to strike certain expert testimony, as well as admitting Dr. Rubenstein’s testimony on a pathology report he did not prepare. Finally, we are asked to address whether plaintiffs’ expert was properly cross-examined with a medical treatise.

Count I of plaintiffs’ pleading is comprised of some 15 subsections outlining defendants’ alleged negligent acts or omissions. Seven of these claims plaintiffs withdrew voluntarily on their own motion. Thus, such issues were not addressed by the trial court. Nor shall we. An evaluation of the trial judge’s directed verdicts on the remaining claims of negligence is our opening inquiry.

At the outset, the standard of review must be declared. In deciding whether to direct a verdict, a trial judge must view the evidence in a light most favorable to plaintiff’s cause. In other words, if the evidence adduced so overwhelmingly favors the defendants that no contrary verdict could ever stand, the motion should be allowed. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) This does not mean, as plaintiffs imply, that defendants’ burden is somehow increased. The trial judge must gauge whether the nonmoving party has produced some proof on each element vital to his cause of action. (Accord, Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154.) If such party fails to do that, directing a verdict is proper.

Plaintiffs maintain Dr. Kitt performed the tonsillectomy in a careless, negligent manner, resulting in bodily injury to Mr. Alton. Even in the absence of expert medical testimony indicating the level of care, plaintiffs assert, Dr. Kitt breached his duty of care to Mr. Alton. Plaintiffs declare that Dr. Kitt’s conduct was so grossly defective, or that a tonsillectomy is so common a surgical operation that a layman would have no difficulty in appreciating the standard of care owed by an attending physician. Although we recognize some dictum supports this proposition (Graham v. St. Luke’s Hospital (1964), 46 Ill. App. 2d 147, 158), we believe such a sweeping statement can only be understood within the purview of the facts of a given cause of action. Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 98-99.

The record contains no testimony, other than Dr. Kitt’s, concerning the propriety of the surgical technique used to close the wound in Mr. Alton’s throat after removal of his tonsils. The proposition was not discussed with Dr. Curtis, plaintiffs’ expert. The record is without evidence which demonstrates the standard of care generally practiced in tonsillectomy cases. Dr. Rubenstein testified that three different methods (suture ligature, “free tie,” and cauterization) were widely accepted techniques. He stated that personally, he preferred the “free tie” method, but did not testify such method was the one generally used in the medical community. Dr. Rubenstein had, on various occasions, used all three methods.

Failing to produce expert testimony critical of the standard of surgical technique employed by Dr. Kitt, plaintiffs did not show the breach of duty a physician owes to his patient. Nevertheless, plaintiffs contend such expert testimony was unnecessary since the requisite knowledge to understand the medical standard, and thus its breach, falls within the ken of the ordinary layman.

Plaintiffs’ notion concerning the absence of expert testimony requires more than we are willing to impute to the knowledge and experience of laymen to understand. In other words, the various surgical techniques (suture ligature (needle and catgut), “free tie,” and electric cauterization) used to stop bleeding from an area where tissue is surgically removed are not within the common understanding of laymen. This is not a case where a sponge is left in a patient’s abdomen following surgery. The question of how to terminate bleeding in a surgical area is a complex one involving many considerations, not to mention such as the situation at bar, where the patient is unconscious. Expert testimony is sorely needed. Only when it is present is the layman juror placed in a position to assess whether the duty resulting after the complications arose was in fact breached. Taber v. Riordan (1980), 83 Ill. App. 3d 900, 905-06.

The trial court struck the issue of whether Dr. Kitt was negligent in not informing Mr. Alton that bleeding complications arose after the initial surgery while the patient was still anesthetized. The plaintiffs have not briefed the issue on appeal, although it is preserved. Again, as indicated previously, no testimony exists that a physician’s failure to inform a patient of such complications was at variance with standard procedures employed by the medical community. Directing a verdict, then, was correct.

Plaintiffs alleged Dr. Kitt negligently discharged Mr. Alton without examining him and detecting bleeding. Purportedly, Dr. Kitt failed to consult medical records indicating that, when released from the hospital, Mr. Alton had been bleeding from the mouth. As to such error, the issue is not before us. Plaintiffs withdrew the issue, on their own motion, in the trial court.

Concerning the failure to examine, plaintiffs contend Mr. Alton was not examined on the day of release, that he was bleeding and in pain, blit no medication was prescribed and no home care given. The trial court viewed these claims in a light most favorable to plaintiffs. Even so, a directed verdict was entered. Such was proper.

The fatal error with respect to this complaint was plaintiffs’ failure to produce some evidence on not one, but two, components of the cause of action. Again, absent was testimony which established the prevailing medical practice of discharging a patient. Dr. Kitt testified what he recollected he did, but no proof was elicited from any expert medical witness that those discharge, methods were not considered consistent with the standard practice in the medical community. Notwithstanding this deficiency, no evidence was produced whereby the post-operative injuries sustained by Mr. Alton were causally linked to any practice of Dr. Kitt in discharging him from St. John’s Hospital (see Burrow v. Widder (1977), 52 Ill. App. 3d 1017, 1023). Merely because Mr. Alton began bleeding at home within two days of discharge is not evidence of negligence for releasing him originally.

The final two negligence claims concern Dr. Kitt’s alleged failure to examine Mr. Alton prior to discharge and prescribe appropriate medication. Plaintiffs contend Dr. Rubenstein testified to certain customs and standards in the medical community. Then, they conclude, Dr. Kitt’s conduct, because it deviated from such standards, adequately forms the question for the jury’s resolution.

The gap in plaintiffs’ reasoning is that it makes a leap we cannot accept. Merely because Dr. Kitt’s conduct was at variance with that which Dr. Rubenstein indicated to be the norm does not mean Dr. Kitt was negligent. Plaintiffs’ lawyer never queried Dr. Rubenstein or any other expert as to whether Dr. Kitt’s conduct deviated from acceptable medical standards. Lacking such an inquiry, the difference in Dr. Kitt’s methods only shows that his course of conduct was different. Reasons may have existed for the difference. (Stevenson v. Nauton (1979), 71 Ill. App. 3d 831, 835.) What they were, if any, was not developed. Nonetheless, a difference in treatment, or a physician’s opinion as to the appropriate medical procedure does not establish negligence.

Plaintiffs argue the initial operation and attendant complications at the hospital, and the events at the Springfield Clinic on January 17,1974, establish liability on a theory of res ipsa loquitur. The trial court directed verdicts on both issues. We agree with the trial court.

The doctrine of res ipsa loquitur permits the trier of fact to infer negligence if the plaintiff demonstrates: (1) the improbability of injury without negligence; (2) injury by the agency or instrument in defendant’s control; and (3) that any resulting harm was not due to the plaintiff’s voluntary act or omission. (Spidle v. Steward (1980), 79 Ill. 2d 1, 5-7.) Some evidence on all three conditions must be present or a plaintiff risks the calamity a directed verdict portends.

Dr. Rubenstein testified that post-operative bleeding occurs in a certain, albeit small, percentage of all tonsillectomies. He also stated that such bleeding occurs regardless of the diligence and caution of the attending surgeon. Finally, he said that such post-operative bleeding can occur up to four days after the tonsils are removed.

Plaintiffs’ expert, Dr. Curtis, was never questioned about postoperative bleeding in Mr. Alton’s throat. In fact, no medical witness was ever asked whether post-operative bleeding ordinarily occurs without negligence. Dr. Curtis’ testimony was not critical of any of Dr. Kitt’s post-operative procedures except the administration of Valium and Demerol at the clinic’s offices. This latter issue, decided by the jury, was in defendants’ favor. Thus, plaintiffs failed to establish that any injury due to bleeding was the probable consequence of the conduct of Dr. Kitt.

Concerning bleeding at the Alton home three days after the operation, we believe any liability based on res ipsa loquitur is patently without merit. As indicated above, post-operative bleeding can be expected in some tonsillectomies regardless of the caution of the physician. Next, Mr. Alton was not under the control of Dr. Kitt at the time the bleeding began, but was convalescing at home. Finally, Mr. Alton was not immobile, but quite capable of causing injury to himself which could be the proximate cause of bleeding.

The trial court directed verdicts in favor of the Springfield Clinic concerning its liability for punitive damages under plaintiffs’ theory of respondeat superior. Since Dr. Kitt managed his patients, supervised several nurses, and was the only physician present in the specific medical department of the clinic on January 17, plaintiffs say, such is ample to confirm Dr. Kitt was acting as a manager in the scope of his employment. Under such circumstances an employer can be liable for the tortious conduct of an agent. (Tolle v. Interstate Systems Truck Lines, Inc. (1976), 42 Ill. App. 3d 771, 774, citing Restatement (Second) of Agency §217C (1958).) Plaintiffs correctly cite the rule, but confuse its application to this cause.

Dr. Rubenstein, a partner in the Springfield Clinic, testified Dr. Kitt was an employee of the firm. He stated Dr. Kitt was without management authority, and did not partake in management decision-making. Based on this, the trial court directed a verdict for defendants. This was error.

Even if the question should have gone to the jury, the fact it did not does not amount to reversible error. The jury considered the punitive damage aspect of Dr. Kitt’s conduct and found in his favor. As we will indicate later, the negligence verdicts for Dr. Kitt were proper. Since the gravamen of plaintiffs’ charge was premised on Dr. Kitt’s individual negligence, or as an employee of the clinic, the jury’s exoneration of him precludes recovery against the clinic for compensatory or exemplary damages on the same cause(s) of action. This has been the rule in Illinois for at least 80 years (Anderson v. West Chicago Street R.R. Co. (1902), 200 Ill. 329, 336), and we adhere to it.

Mr. Alton’s injuries were the result of either Dr. Kitt’s administration of Valium and Demerol at the clinic’s office, or the untimely complications subsequent to his fainting. The jury had those two issues before them, and decided them in favor of the defendants. Plaintiffs say such results are against the manifest weight of the evidence. We disagree.

Whether Dr. Kitt negligently administered medication prior to, and cardiac massage after, Mr. Alton became unconscious was contested by both sides. The series of events which led up to these occurrences produced the bulk of the trial testimony. Clearly, both events happened in a short period of time. In what sequence these episodes took place was critical; ultimately, the jury decided such facts.

When Mr. Alton began hemorrhaging, emergency treatment was required. Mrs. Alton left the room and sought aid. Upon arrival, Dr. Kitt began preparations to suture the wound site. In order to calm the patient, he injected him with Demerol. Otherwise, he testified, suturing would have been impossible. No other witness recalled Mr. Alton being overwrought. Also, whether the suctioning machine to remove blood from Mr. Alton’s throat was ever used was contested. It was entirely reasonable for the jury to conclude that in order to successfully close the wound, the injection of a pain-killer was necessary.

When suturing preparations were being made, and when Mrs. Ratliff returned with the proper sutures, Mr. Alton either fainted or went into respiratory arrest because of the effects of the drugs. Then, Dr. Kitt began cardiac massage. Blood pressure and pulse readings were taken. The exact sequence of events was disputed. As plaintiffs note, the issue became, if Dr. Kitt commenced cardiac massage initially, whether this was negligent in view of the testimony that Mr. Alton was not breathing. Drs. Rubenstein and O’Malley testified that cardiac massage was consistent with attempting to save Mr. Alton’s life. Plaintiffs’ attorney never elicited any testimony from any medical witness that administration of external cardiac massage defied acceptable medical practices. Quite simply, the jury was persuaded by the defendants’ version of what happened.

Concerning the administration of the drugs, plaintiffs’ expert, Dr. Curtis, an eye, ear, nose and throat specialist, testified the injection of Demerol was contrary to acceptable medical practice. He testified that a patient who had undergone a marked decrease in blood pressure, like Mr. Alton, will go into respiratory arrest because of the effects of Demerol.

The defendants’ expert, Dr. O’Malley, a medical specialist in neurology and pharmacology, believed Mr. Alton, fainted. He completely rejected Dr. Curtis’ theory since the 50-milligram dose of Demerol, he believed, was insufficient to cause respiratory arrest.

The jury chose to believe defendants’ experts both on the question of cardiac massage and administration of drugs. Truly, as to the injection of medication, a “battle of experts” was fought. The defendants won because the jury believed Dr. O’Malley. The jury was made aware of the factors plaintiffs cite for rejecting Dr. Kitt’s testimony. In the final analysis the issue becomes one of credibility, a jury determination. We see no reason to meddle with those verdicts, neither of which, was unreasonable or palpably erroneous.

Next, plaintiffs claim the trial court mistakenly denied their motion to strike certain testimony of Dr. O’Malley, defendants’ expert. Because an adequate evidentiary foundation was lacking, plaintiffs argue, the witness’ opinion as to whether the administration of Valium was consistent with acceptable medical standards was inadmissible.

This motion was overruled because it was not timely. It came when Dr. O’Malley was no longer on the witness stand, and after he expressed his views on the use of drugs, as well as the propriety of cardiac massage as emergency treatment. The record shows that plaintiffs’ objection was not based on insufficient foundation, but whether Dr. O’Malley was familiar with the practice of medicine in Springfield, Illinois. Although we doubt such an objection has any substantive effect (Holcomb v. Magee (1920), 217 Ill. App. 272, 282), the deciding factor is that plaintiffs did not object when the character of the objectionable testimony became apparent (Kelleher v. Chicago City Ry. Co. (1912), 256 Ill. 454, 458). Plaintiffs were aware that Dr. O’Malley was not a practicing physician in Springfield. This was established when the witness was originally accredited on direct examination, if not before. Plaintiffs’ objection should have been made at that time. Because it was not, the trial court did not err in denying the plaintiffs’ belated request, even if the basis for the motion had any substance.

Plaintiffs also complain that Dr. O’Malley was allowed to testify from the Physicians Desk Reference, a medical text, in part or in lieu of his direct testimony. In brief, this is a hearsay objection. We believe the contention misplaced.

First of all, Dr. O’Malley indicated he was not only familiar with the text, but had written portions of it. The Physicians Desk Reference is a scientific amalgam of pharmacological information for the physician who administers various drugs or chemical agents. It is a medical compilation of facts and recommendations, edited yearly, which is widely used and recognized by the practicing medical community. It is, in a word, a trustworthy text. We believe a vigorous cross-examination would cure any objection to a medical expert’s reference to it when testifying.

Secondly, in a recent decision which both parties cite in their briefs, our supreme court stated, “ ‘whether his [a physician’s] source of information for that particular fact is in part or entirety the hearsay of his fellow practitioners and investigators is immaterial * * V ” (Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 557 (citing 3 Wigmore, Evidence §687, at 3 (1970).) Based on inherent trustworthiness of the Physicians Desk Reference as a medical text, as well as the guidance from the Illinois Supreme Court, plaintiffs’ objections are meritless.

The next challenge is Dr. O’Malley’s testimony that Mr. Alton’s unconscious state was caused by fainting due to the sight of blood, not the administration of Valium, and later Demerol. Plaintiffs argue Mr. Alton’s reaction was hypothetically analogized to that of a nurse who faints at the sight of blood, and thereafter what emergency treatment would be employed to revive her. Plaintiffs conclude that testimony on this nonsimilar situation was too general, and misled the jury as to the facts.

Although plaintiffs state the rule correctly (Opp v. Pryor (1920), 294 Ill. 538, 546), the facts do not trigger the rule’s application. Dr. O’Malley’s testimony, at this point, concerned his familiarity with situations where a person becomes unconscious. As a specialist in neurology, his experience with situations such as that of a nurse fainting, were important to accredit him in the eyes of the jury. Defendants were merely attempting to lay foundation for the witness’ experience in dealing with unconscious persons or technically his familiarity with the neurology of a syncope episode (faint). When defendants subsequently posed the hypothetical question as to the witness’ opinion as to the cause of Mr. Alton’s unconsciousness, no objection was made. Since the witness was not rendering an opinion based on what a doctor should do to a person who simply faints, a nonsimilar situation to that of Mr. Alton, this testimony was properly admitted into evidence.

When the trial court refused to strike testimony of Dr. Curtis, plaintiffs’ expert, on cross-examination, the Altons say, the trial court erred. The gist of the objection is that an insufficient foundation was laid for use of the text.

Although plaintiffs’ objection may facially have some appeal, it was never lodged in the trial court. At the trial level, the objection was based on the fact that the medical text was not produced and shown to the plaintiffs. The fact of the text’s credibility and that it was a standard treatise known to the medical community was never raised. Since the trial court had no opportunity to rule on such an objection, it has not been properly preserved for review, and is waived.

Plaintiffs also claim error concerning Dr. Rubenstein’s testimony about a pathology report. Allegedly, this record should have been stricken because Dr. Rubenstein did not prepare it. We disagree.

The record shows that initially, Dr. Rubenstein was called by the plaintiffs as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). He testified that he reviewed a pathology report prepared at St. John’s Hospital by the hospital’s pathologist concerning Mr. Alton’s tonsils. Later, defense counsel questioned Dr. Rubenstein about the same report. Plaintiffs say that such testimony was hearsay and violates the long-standing Illinois rule against the admission of hospital records.

Technically, the pathologist’s report was hearsay. The record establishes that plaintiffs originally questioned the witness on facts concerning the report. In short, the plaintiffs opened the very door for testimony they now claim should not have been allowed. This type of an objection might have force if plaintiffs had not solicited testimony about the report originally. Plaintiffs want the best of both worlds. We agree with the trial judge who was not prepared to honor such a request.

The final error concerns final argument. Plaintiffs say the trial court erred in sustaining a defense objection to plaintiffs’ argument which highlighted defendants’ failure to adduce any evidence from among the clinic’s own doctors.

Although a party may be allowed to comment on another party’s failure to call a witness within the latter’s power to produce, limits do exist as to such a party’s failure to do so. This is especially true, where, as in the case at bar, plaintiffs tender no jury instructions which reveal to a jury that legitimate inferences can be drawn, in a civil trial, when such witnesses fail to testify. Moreover, Dr. Kitt and at least 26 other doctors working at the clinic were parties defendant. To parade all such persons as potential witnesses would be a needless exercise. Under such circumstances, then, we do not believe the trial court abused its discretion in sustaining defendants’ objection (cf. Miller v. DeWitt (1965), 59 Ill. App. 2d 38, 131-32).

Werecognize in this case that plaintiff has suffered disabling injuries. The record, as well as the rulings of the trial judge, have been thoroughly perused. Admittedly, this trial was, at times, hostile. We believe the parties obtained a fair trial, although admittedly not a perfect one.

Finding the questioned trial court rulings and jury verdicts to be proper, we affirm the judgments of the Circuit Court of Sangamon County.

Affirmed.

SCOTT, J., concurs.

JUSTICE BARRY,

specially concurring:

This is the sort of case which, at first glance, would seem to call for a remand for a new .trial. Plaintiff has suffered tragic consequences from a relatively simple surgical procedure—the removal of his tonsils. However, I must concur with the majority.

A careful review of the record reveals that there was sufficient evidence to support the jury’s verdicts. The law of Illinois is clear that the testimony of one doctor that he would have followed a different course of treatment is not sufficient to establish Dr. Kitt’s negligence as a matter of law. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 380 N.E.2d 801.) The plaintiff’s evidence was so limited; testimony of the medical experts and of the eyewitnesses was merely contradictory and unclear—thus creating credibility issues. The jury obviously concluded that plaintiff was the victim of an unusual medical accident, complicated by plaintiff’s unexpected loss of consciousness, and that Dr. Kitt and those assisting him undertook appropriate life-saving procedures in a proper manner under the circumstances. As a reviewing court, we cannot substitute our judgment for that of the trier of fact.

Although I concur in my colleagues’ decision to affirm the judgment in this case, I do not agree with all of the majority opinion. I disagree with the statement that the trial court erred in directing verdicts in favor of the Springfield Clinic as to its liability for punitive damages under plaintiffs’ theory of respondeat superior.

The law of Illinois permits an award of punitive damages against a master or other principal because of an act by an agent where the agent was employed in a managerial capacity and was acting in the scope of employment, or in certain other circumstances which are not involved here. (See Restatement (Second) of Agency §217C (1958).) The rationale supporting vicarious liability for punitive damages in such cases rests primarily upon the deterrent effect to the corporate master, and, therefore, some complicity on the part of the master must be demonstrated such as when the superior officer orders, participates in, or ratifies outrageous conduct. (Tolle v. Interstate Systems Truck Lines, Inc. (1976), 42 Ill. App. 3d 771, 356 N.E.2d 625.) Most noteworthy are two Illinois cases, each involving an action against a bus driver and the company which employed him. The supreme court adopted the Restatement requirements for vicarious liability for punitive damages in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509. (Accord, Oakview New Lenox School District No. 122 v. Ford Motor Co. (1978), 61 Ill. App. 3d 194, 378 N.E.2d 544.) In both cases, the employer was held not hable for the negligent conduct of its employee.

Here the evidence did indicate that Dr. Kitt gave orders and supervised certain employees, but his managerial functions related solely to the scheduling of his appointments and the management of the medical care of his own patients. The testimony of Dr. Rubenstein was uncontradicted that Dr. Kitt was an employee of the clinic; that he supervised only those other employees who assisted him; that Dr. Kitt did not participate in any decisions relating to the management of the clinic; that Dr. Kitt had been employed about 6 months earlier to work with Dr. Rubenstein, who was the managing partner for the ear, nose and throat department; and that even in Dr. Rubenstein’s absence, Dr. Kitt did not occupy a management position. I believe this evidence required the trial court to enter directed verdicts in favor of the clinic.

Further, while the plaintiffs’ counsel’s examination of Dr. Kitt under section 60 was forceful and antagonistic, I do not agree with the majority’s statement that the atmosphere in the trial court was hostile to either party in general. Rather, my reading of the record indicates that, while the trial was hotly contested with all parties vigorously asserting their views, nevertheless the trial was conducted in a manner fair to all parties.

I concur.