author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LIBORIO DELGADO, Defendant-Appellant.
    First District (2nd Division)
    No. 82—2246
    Opinion filed July 17, 1984.

      Michael A. Unger, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and Timothy Frenzer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Following a bench trial in December 1980 arising from a shooting outside a Chicago tavern, defendant Liborio Delgado was found guilty of attempted murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1, 8 — 4), armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2), aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4) and armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2). Defendant was present at his bench trial but failed to appear on December 30, 1980, the date set by the trial court for his sentencing hearing.

At the sentencing hearing, defense counsel and the prosecutor indicated that defendant had possibly returned to his native Mexico. The court then denied defendant’s written post-trial motion and sentenced defendant to 10 years’ imprisonment. At defense counsel’s request, the court stayed the mittimus for 30 days to allow defendant to appear and move to vacate the sentence. On January 30, 1981, only the prosecutor appeared, and the court ordered the mittimus to issue.

Apparently in June 1982 defendant reappeared and was arrested. On July 14, 1982, a second attorney appeared on defendant’s behalf and filed a “motion for new trial.” It alleged that notwithstanding defendant’s trial testimony that he was not present at the shooting, defendant had in fact shot the victim in self-defense after the victim had beaten defendant. The motion further stated that because defendant spoke Spanish only, he was unable to cooperate with his English-speaking trial counsel. It was further alleged that defendant was an illegal alien who was unaware of the consequences of his actions and was unable to contribute to his own defense; the victim had known of defendant’s illegal status and had “preyed” upon defendant, knowing defendant would be reluctant to report the victim’s actions to authorities. The motion further alleged that defendant was unaware that he could be sentenced in absentia, and that he had returned to Mexico “on an emergency basis and that after leaving the country was unable to return sooner in that he was indigent.” Based on this “newly discovered evidence,” the motion requested a new trial. Defendant’s attorney also requested the trial court to stay the mittimus pending determination of this motion. The court stayed the mittimus and continued the case for 30 days.

On August 13, 1982, defendant’s attorney filed a “Motion to vacate judgment and correct errors of fact” which was substantially the same as his July 14 motion. At the hearing on that date, the trial judge stated that he did not “believe” that “as a matter of law” he had jurisdiction to entertain the defendant’s motions because they were filed more than 30 days after the imposition of defendant’s sentence. The court thereupon granted defense counsel 30 days to research the issue, and continued the case to September 13, 1982.

On September 10, 1982, another new counsel appeared and was granted leave to file his appearance on defendant’s behalf instanter for the “sole purpose” of filing a notice of appeal. On the same date counsel filed a notice of appeal from the sentence imposed on defendant on December 30,1980, some 22 months earlier.

After the filing of the briefs herein, the parties on the court’s own motion were instructed to file memoranda on the issue of the timeliness of the filing of defendant’s notice of appeal. Therein defendant argues that both the July and August 1982 motions were timely and proper under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401 (formerly par. 72)) and section 115— 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1). The latter statute permits a trial and/or sentencing hearing to be held in a defendant’s absence when such defendant wilfully fails to appear. The statute allows the defendant upon his return to move the court for a new trial or sentencing hearing if he can establish that his absence “was both without his fault and due to circumstances beyond his control.” Defendant contends that his appeal time commenced when the trial court “denied” these motions.

The State responds that defendant’s July and August 1982 motions were not specifically filed pursuant to either of these statutes. Moreover, and in any event, the State asserts that the appeal must be dismissed as untimely because it was not filed within 30 days of the date of sentencing, nor within the discretionary six-month period after that date, citing In re K.M. (1979), 70 Ill. App. 3d 915, 389 N.E.2d 188, and 87 Ill. 2d R. 606(c).

We are compelled to agree with defendant and conclude that the motions are in the nature of motions under both section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 1401) and section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1). They are in the nature of section 2 — 1401 motions in that they are based upon allegations of “newly discovered evidence” which was “of such character if it had been known to the Court the outcome of the litigation would have been different.” They allege that defendant was “unaware of alternative defenses available to him” and that “the evidence to be presented became discovered after the trial and could not have been discovered before trial by the exercise of due diligence.” Defendant also contends that “the time limit for filing this motion should be tolled as during defendant’s absence *** he was under a disability ***.” Such assertions are normally attendant to a section 2 — 1401 motion filed in a criminal case. See, e.g., People v. Hammers (1977), 48 Ill. App. 3d 1023, 363 N.E.2d 914.

Thus we conclude that defendant’s motions were in fact filed pursuant to section 2 — 1401. Because the motions were filed within two years of the judgment being attacked, they were timely. People v. Logan (1977), 49 Ill. App. 3d 787, 364 N.E.2d 713, aff'd (1978), 72 Ill. 2d 358, 381 N.E.2d 264.

We also consider the motions to have been filed pursuant to section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1). As noted, this statute provides in part:

“(e) When a defendant who in his absence has been either convicted or sentenced or both convicted and sentenced appears before the court, he must be granted a new trial or new sentencing hearing if the defendant can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control. ***”

The motions in the instant case, and defendant’s affidavit in support thereof, stated that defendant was unaware that he could be sentenced in absentia; that his absence was due to an “emergency,” and that he was unable to return to this country because of his indigency. His attorney advised the trial court that Delgado, during his absence, had been for a time hospitalized. We also note the record does not indicate that the court advised defendant that should he fail to appear for trial, the trial could continue in his absence. See People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152.

In our opinion, the two motions filed by defendant in July and August of 1982 were in fact timely filed motions under both section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401) and section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1). The confusion here can be traced to the failure of defense counsel to denote the statutory basis for his motions. While we do not believe it would be appropriate here to penalize defendant for his counsel’s inadvertence, we do not condone such ineptness. Under the totality of the circumstances in this case, we believe fundamental fairness requires that this defendant be given his day in court.

Because the motions were rightly before the trial court, we hold that the court erred when it expressed the “belief” that it did not have jurisdiction to entertain them. We therefore must remand this case for proceedings on defendant’s motions consistent with this opinion.

We now consider the status of defendant’s appeal before us. As previously noted, the notice of appeal filed below purports to appeal some 22 months after entry of the order appealed from. Clearly, such notice of appeal was not timely filed. (In re K.M. (1979), 70 Ill. App. 3d 915, 389 N.E.2d 188; 87 Ill. 2d R. 606(c).) Because this notice was not timely, this court is without jurisdiction to consider this appeal. (In re McCall (1982), 108 Ill. App. 3d 164, 438 N.E.2d 1269.) While we must, therefore, dismiss this appeal, we observe that in People v. Brown (1984), 121 Ill. App. 3d 776, 459 N.E.2d 1175, the court held, in a similar situation, that there existed no final and appealable order until the trial court had ruled on the defendant’s 115 — 4.1 motion:

“The statute contemplates, as the State concedes, that a conviction and sentence for one tried in absentia is not final and appealable until the defendant has returned and a ruling is made on any claim that the absence was not wilful. In addition to the above quoted provision of subsection (e), subsection (g) states:
‘A defendant whose motion under paragraph (e) for a new trial or new sentencing hearing has been denied may file a notice of appeal therefrom. Such notice may also include a request for review of the judgment and sentence not vacated by the trial court.’ (Ill. Rev. Stat. 1981, ch. 38, par. 115— 4.1(g).)'
We agree that the first notice of appeal was premature in that the judgment of conviction and sentence of the defendant in absentia did not amount to a final and appealable order. This appears clear from the quoted subsections of the statute, and it is also consistent with the provisions of Supreme Court Rule 605 (87 Ill. 2d R. 605), which contemplates that the defendant will be personally advised of his right to appeal, thus presupposing his presence.” (121 Ill. App. 3d 776, 778.)

While we do not here reach this issue, we note that under the rationale of Brown, defendant could, following the trial court’s determination of defendant’s motion under section 115 — 4.1, have an opportunity for review of his trial. But see People v. Stark (1984), 121 Ill. App. 3d 787, 460 N.E.2d 47.

In sum, we hold that Delgado has filed timely post-trial motions under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401) and section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1), and we remand for further proceedings on those motions. We dismiss the appeal filed herein as untimely.

Appeal dismissed, cause remanded.

HARTMAN, P.J., and STAMOS, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    FRANCES COLLINS, Plaintiff-Appellee, v. INTERROYAL CORPORATION et al., Defendants-Appellants.
    First District (3rd Division)
    No. 81—1971
    Opinion filed June 29, 1984.

      Kenneth T. Garvey, of Purcell & Wardrope, Chartered, of Chicago (Sidney Z. Karasik, of counsel), for appellants.
    Joseph T. McGuire and Stephen C. Schulte, both of Perz & McGuire, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Frances Collins, brought this action for personal injuries sustained when a stool, defectively designed and manufactured by defendant Interroyal Corporation and distributed by defendant Killian Corporation, collapsed under her. A jury returned a verdict awarding plaintiff $200,000 compensatory damages against both defendants and $100,000.50 punitive damages against Interroyal. The trial court denied post-trial motions and entered judgment on the verdict. Both defendants appeal.

In counts I and II of her complaint, strict liability counts against Interroyal and Killian respectively, plaintiff alleged that the design of the adjustable leg connection mechanism was an unreasonably dangerous and defective condition because it failed to provide a reliable locking device that would prevent the leg adjustment screw from falling out, thus permitting the stool to collapse. Plaintiff charged that her injuries were caused by this unreasonably dangerous and defective condition. Count III charged wilful and wanton conduct by Interroyal in the design, manufacture, sale and distribution of the stool in question.

Interroyal, a designer and manufacturer of industrial stools since 1946, designed its model 515 adjustable height stool to meet varying demands for seat height. The stool incorporated a telescopic leg extension for height adjustment which allegedly provides “positive locking.” Between 1968 and 1977, Interroyal designed and manufactured the 515 model stool with three different leg adjustment connector mechanisms. The first connector mechanism, employed at least since 1968, consisted of a self-tapping screw passing through one wall of the leg and the wall of the leg extension, with a star washer underneath the head of the screw. The screw in this single-wall construction design, referred to as design A, also served as a structural support component for the stool.

In September 1972, in connection with a lawsuit entitled Mix v. Interroyal, Herbert Painter of Snyder Research Laboratory, a consulting engineering firm, was retained on behalf of Interroyal’s interests in that suit. Painter, who testified for plaintiff in this suit, prepared a report based upon his evaluation of the design of an Interroyal single-wall model stool. The stool he examined was an exemplar of the one on which the Mix plaintiff had been injured when the leg of the stool collapsed. In Painter’s opinion, the single-wall model stool was defective because the self-tapping screw could become loose and fall out from intermittent loading and from vibration caused by the dragging of the stool across a floor, both ordinary uses of the stool. Painter’s Mix report was given to Interroyal in April 1973.

An engineering change order dated June 15, 1973, evidenced the second connection mechanism design incorporated in the 515 stool. This design employed a longer screw passing through both walls of the stool leg. The reason for this new double-wall construction, also referred to as design B, was to strengthen the union of the leg extension to frame assembly.

In March 1977, Interroyal instituted another design change in its 515 adjustable stool connector mechanism. Design C added a nut and bolt to the end of the screw. In May 1977, maintenance and assembly instructions were attached to all the stools.

Each design change was embodied in an engineering change order which stated the reason for the change and was signed by authorized Interroyal executives. The engineering change order discussed the disposition of stock on hand. The June 1973 order had a series of typed dashes, which meant that stock on hand was to be used up rather than reworked. The December 1973 order was blank, while the 1977 order required rework of the old stock.

Haig Dadourian, vice-president of Interroyal, testified as an adverse witness that he was unaware of any customer complaints and that the design changes were not made because of customer complaints. Dadourian did not know why the nut and bolt design was not implemented in June 1973. The effective dates on the engineering change orders did not mean that on that date the revisions actually went into effect, but rather meant that necessary steps to implement the changes should begin.

Donald Beutlespacher was plant engineer, maintenance superintendent and safety committeeman for Midwest American Dental, plaintiff’s employer. In February 1974, he requisitioned the purchase of 85 Interroyal adjustable stools from Killian. Killian shipped 15 stools from its own stock, while Interroyal furnished the additional 70 stools. Beutlespacher testified that all 85 stools were equipped with the same leg construction design. No instructions or warnings accompanied these design A stools. The stools were assembled at a uniform height and were sent to departments according to need. The control area where plaintiff worked was a new department in March 1974.

On December 19, 1974, at 6:45 a.m., plaintiff pulled a stool over and sat on it. The stool immediately collapsed, causing her to fall to the floor. As she fell, her left hip struck a metal conveyor behind her. She experienced severe pain and was taken to a hospital. Immediately after the accident, plaintiff and Thomas Parala, a first aid employee of Midwest, saw a stool with a metal back lying on the floor with one of its adjustable leg extensions telescoped up into the stationary leg portion of the stool.

Diane Blazina Creed testified for the defense that she was 10 feet from plaintiff at the time of the accident. Creed saw plaintiff sitting on a stool with a wooden back. Creed stated that when plaintiff fell, the wooden back separated from the chair. Creed did not know whether one of the stool legs had collapsed. Creed had stated at a deposition that she had worked the afternoon shift on the day in question. Creed also testified that Barbara Spiller witnessed the accident; but Spiller testified that she was home ill the day of the accident. Spiller stated that none of the four stools in that control area had wooden backs. Both Spiller and plaintiff testified that all stools in the control area were similar in appearance to exhibit No. 17, the Inter-royal single-wall model design.

Sue Klasek testified for the defense that she saw plaintiff walk around a router file while carrying or dragging a stool. Plaintiff then fell slowly to the ground. Klasek’s view was blocked so that she could not see if plaintiff was sitting on a stool or whether a stool fell. Kla-sek could not remember whether she saw a stool on the ground near plaintiff.

Shortly after the incident, a stool identified as the one on which plaintiff was injured was delivered to Beutlespacher’s office. Beutles-pacher testified that the stool, an Interroyal single-wall model design, had a collapsed leg due to a missing screw and that the metal back was still attached. Killian referred Beutlespacher to Fred Frey, then Interroyal’s manager of product engineering. Pursuant to Frey’s instructions, Beutlespacher sent the stool to Frey at Interroyal to be replaced at no charge along with a memo reiterating these instructions. To prevent further problems with the remaining stools, Frey instructed Beutlespacher to drill the leg adjustment holes through the other side of the leg, to insert machine screws through both holes, and then place a nut and star washer on the end of the screw.

In answer to an interrogatory requesting the names of each person in possession of the stool after the accident, Interroyal listed Beutlespacher, then George Funk, Frey’s successor, and then Triodyne, Inc., employer of defendant’s expert witness, Ralph Barnett. In response to plaintiff’s request for the stool at trial, defendants presented the stool’s parts, exhibit No. 17, and stool screws, exhibit No. 18. At trial, Beutlespacher, plaintiff and Parala identified exhibit No. 17, by appearance, as the stool in question.

At trial, defendants disputed the identity of exhibit No. 17 as the stool on which plaintiff was injured. Kenneth Emmert, Midwest’s maintenance supervisor, testified that he saw the stool in Beutlespa-cher’s office, that it was an Interroyal single-wall construction design, that its metal back was still attached, that one of its leg extensions was telescoped into the stationary portion of the frame, and that some of the leg extension screws were partially backed out. Emmert also testified that in May 1977, at Midwest’s office, he saw a stool with a tag referring to plaintiff and Interroyal. Beutlespacher denied that there ever was a tagged stool marked in connection with this case after he sent the stool to Interroyal the day after the accident. The jury answered in the affirmative a special interrogatory submitted by defendants asking whether exhibit No. 17 was the stool on which plaintiff was injured.

Defendants initially contend that the trial court’s order in limine precluding evidence of misuse of the stool or change in its original condition by the employer was reversible error.

In responding to plaintiff’s motion to preclude such evidence, defense counsel stated that if Midwest changed the original condition of the stool, that conduct would be a defense. When defense counsel refused to identify any such evidence, the trial court granted the motion but stated that if any such evidence surfaced defense counsel should bring it to the court’s attention. Defense counsel agreed that he would. Clearly, the order precluding reference to employer misconduct where it appeared that no such relevant evidence existed was not an abuse of discretion, particularly in light of the court’s willingness to reconsider the restraint upon defendants’ identification of any such evidence. The trial court did not bar a “key” defense. We will not speculate as to what evidence, if any, was precluded and whether this evidence would have constituted reversible error.

Defendants next contend that the trial court erred in allowing evidence of subsequent design changes in the Interroyal 515 model stool. Defendants argue first that the trial court erred in denying their motion in limine to exclude evidence of subsequent designs B and C. Since evidence of post-occurrence design changes are admissible in strict liability cases as feasible alternatives to show the dangerous condition of the product in question (Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859; Sutkowski v. Universal Marion Corp. (1972), 5 Ill. App. 3d 313, 281 N.E.2d 749), the trial court did not abuse its discretion in denying defendants’ motion to exclude the evidence. Defendants also argue that the trial court erred in allowing plaintiff’s expert witness, Irving Hazard, to testify that designs B and C were unreasonably dangerous. Defendants maintain that this testimony shows that designs B and C were not introduced to show feasibility, as originally argued in the hearing on defendants’ motion, but to show Interroyal’s wilful and wanton conduct, which they argue is inadmissible.

We note first that Hazard’s testimony with respect to design C was that it was dangerous, not unreasonably dangerous. Design C was a dramatic improvement over the earlier designs because its nut and bolt system provided positive locking which would prevent the adjustments screw from falling out, the claimed defect. Although Hazard stated that design C still posed a danger because it failed to incorporate a better screw available in the market, this testimony did not impair the admissibility of design C as a feasible alternative. The evidence of design C, including Hazard’s testimony, was properly admitted as a feasible alternative.

With regard to Hazard’s testimony that design B was unreasonably dangerous, the trial court properly admitted it to show wilful and wanton misconduct. Although defendants rely upon the rule that post-occurrence modifications may not be introduced to show negligence (Sutkowski v. Universal Marion Corp. (1972), 5 Ill. App. 3d 313, 281 N.E.2d 749; Lundy v. Whiting Corp. (1981), 93 Ill. App. 3d 244, 417 N.E.2d 154), we believe their reliance is misplaced. While post-occurrence changes are insufficiently probative of a manufacturer’s prior neglect, in this case, evidence of design B, including Hazard’s testimony that it was unreasonably dangerous, was probative of a course of conduct engaged in by Interroyal which was wilful and wanton. This design B testimony was relevant to prove that Interroyal, knowing of the specific defects in design A, failed to correct them even though the defect could have been cured easily. It was not until 1977 when Interroyal introduced design' G that it produced a product which was not unreasonably dangerous. This evidence tended to show that Interroyal acted with conscious disregard for the safety of others.

Moreover, despite Interroyal’s sworn identification of exhibit No. 17 as the stool on which plaintiff was injured, defendants disputed the stool’s identity at trial. They introduced evidence that the boxes in which the stools were shipped to Midwest contained no markings and that Killian sent the “current design.” Although exhibit No. 17 was a design A model, the jury could have believed that some boxes shipped were design B stools. Thus, the evidence regarding design B was admissible to show that plaintiff’s injuries were caused by an unreasonably defective stool.

While we do not believe there was any error in admitting evidence that designs B and C were unreasonably dangerous and dangerous respectively, we find that any error in the admission of this testimony is harmless. Moreover, any such error does not affect the admissibility of designs B and C because both designs were also admissible to impeach Dadourian. He testified that Interroyal had received no complaints about its stools. The engineering change orders detailing the design modifications identified as designs B and C revealed that the nature of and reason for those changes were due to field complaints.

Defendants further contend that the trial court abused its discretion in allowing Painter to testify for plaintiff as an expert witness because he had not been identified before trial as a witness. We do not agree. Defendants were given the opportunity to depose Painter and to obtain a transcript of his deposition before he testified. (See Urman v. Walter (1981), 101 Ill. App. 3d 1085, 428 N.E.2d 1051.) The lack of any prejudicial surprise is further supported by the fact that Painter’s testimony was based upon a report given to Interroyal in 1973 in connection with the Mix litigation.

Defendants also maintain that it was error to allow Painter to testify regarding his participation in the Mix case because there was no substantial similarity between the two cases. The record reflects, however, that in both cases a single-wall model stool collapsed due to a design defect in the leg adjustment connector mechanism, causing plaintiff to sustain injuries. This substantial similarity is not belied by the fact that the screws on the sample stool Painter examined had been welded in place. Painter directed his analysis to the design of the connector mechanism in the single-wall model stool, a design identical to plaintiff’s exhibit No. 17 and which did not include the welding of screws. Nor is it relevant that Painter’s method of evaluation did not consist of laboratory physical tests. Painter properly was allowed to testify as an expert about his opinion of the leg adjustment connector device in the single-wall model.

Defendant also argues that the trial court abused its discretion in the admission and exclusion of certain medical testimony from Dr. Trafimow. He was an orthopedic surgeon who performed surgery on plaintiff and discovered that she had a herniated disc and permanent damage. The trial court’s decision to allow Dr. Trafimow to help plaintiff’s counsel formulate a question was a matter of expediency and was not prejudicial. The question ultimately asked was whether in the doctor’s opinion there was anything which could be done in the future to improve plaintiff’s condition. Dr. Trafimow’s answer that fusion surgery could help was not speculative but rather predicated upon reasonable medical certainty. Nor did Dr. Trafimow’s subsequent testimony that such surgery was not on the horizon remove from his prior answer the reasonable certainty regarding fusion surgery. This statement, when read in context with the doctor’s complete testimony, indicates that such surgery was not in plaintiff’s immediate future, but was reasonably certain to occur. We also find no evidence of any undue restriction of defendants’ cross-examination of plaintiff or Dr. Trafimow regarding plaintiff’s prior injuries. Both witnesses were cross-examined thoroughly and vigorously. The trial court properly sustained objections to several questions asked of Dr. Trafimow about plaintiff’s history and prior injuries because of the form of the questions.

Defendants also contend that plaintiff failed to prove the essential elements of her products liability case. To recover in a product liability action, plaintiff must prove that the injury resulted from a condition of the product, that the condition was unreasonably dangerous, and that the unreasonably dangerous condition existed at the time the product left defendant’s control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.) Here, the testimony of plaintiff and Parala demonstrated that plaintiff was injured when the leg of a stool telescoped, causing the stool to collapse while plaintiff was sitting on it. Despite conflicting evidence, the jury’s finding that exhibit No. 17 was the stool on which plaintiff was injured finds ample support in the record. Exhibit No. 17 was an Interroyal stool with a single-wall construction leg adjustment connector mechanism, and all Interroyal stools delivered to plaintiff’s employer were single-wall construction design stools. Testimony adduced by plaintiff showed that a stool with this single-wall construction design is unreasonably dangerous because of the absence of a reliable locking device in the leg connector mechanism, thereby rendering the stool likely to collapse. The evidence of the nut and bolt design, design C, presented as a feasible alternative design, further supports the unreasonably dangerous condition of the stool. Furthermore, exhibit No. 17 showed no signs of abuse, misuse, or product modification. The above evidence was ample to show that plaintiff’s injury resulted from a design de-feet, that the design defect was an unreasonably dangerous condition in the stool, and that this condition existed at the time the stool left defendants’ control.

Defendants also argue that improper jury instructions resulted in an excessive award of damages. They urge that plaintiff’s jury instructions regarding future medical expenses and future loss of income were not supported by the evidence.

Dr. Trafimow testified that plaintiff suffered permanent nerve injury which affected her lower back, her left buttock and her left leg. Dr. Trafimow found visible signs of atrophy in her left leg. He stated that plaintiff’s injury will continue to cause her to suffer future pain and that her injury will require future medical supervision. Although not planned in the foreseeable near future, he was reasonably certain that plaintiff would need fusion surgery to improve her condition. Plaintiff testified regarding the continual pain she has experienced since her injury. Her injury has affected her ability to secure employment. No longer able to perform heavy physical jobs for which she was employed in the past, plaintiff changed jobs and incurred an earnings loss of approximately $25 per week. We believe the foregoing evidence was sufficient to justify the giving of instructions on future medical costs and future loss of income. (Young v. Gateway Transportation Co. (1975), 26 Ill. App. 3d 864, 326 N.E.2d 222; Jackson v. Illinois Central Gulf R.R. Co. (1974), 18 Ill. App. 3d 680, 309 N.E.2d 680.) We find further that the jury verdict was not the result of any prejudicial error in the instructions regarding wilful and wanton conduct, imputed liability, and circumstantial evidence.

Defendants also contend that the trial court committed reversible error in excluding certain testimony of Ralph Barnett, defendants’ expert witness. Barnett was precluded from testifying about the material strength of the single-wall system on the grounds that it was irrelevant and that it was barred by prior court orders. Barnett’s strength analysis findings and opinions, which were prepared and documented during trial without notice to plaintiff, violated both a reciprocal order in limine preventing Barnett and plaintiff’s expert witness Hazard from testifying about opinions, tests and findings not mentioned in their discovery depositions and a prior order requiring that all tests be completed 72 hours before the beginning of trial. It was not an abuse of discretion to preclude Barnett’s testimony on this issue. Carlson v. General Motors Corp. (1972), 9 Ill. App. 3d 606, 289 N.E.2d 439.

Defendants also maintain that the conduct and remarks of the trial judge deprived them of a fair trial and that the trial judge was not evenhanded in several of his rulings. Defendants first point to the refusal of the court to listen to their offer of proof regarding Barnett’s excluded testimony. Although Barnett’s testimony may have demonstrated its relevancy to this case, nothing in the content of the offer of proof could overcome the fact that it violated prior court orders.

Nor do we find any bias in the trial court’s ruling precluding Barnett from testifying about findings from certain vibration tests he ordered. Barnett did not perform or witness the tests, and the film that he reviewed did not show the result witnessed by Mitchell Ka-plan, the man who conducted the test. The film did not contain the loosening and displacement of one of the screws during the vibration test. The court ruled that Barnett could testify about the vibration studies once the necessary foundation had been established by Kaplan. Court was adjourned so that Kaplan’s deposition could be taken, but after his deposition Kaplan was not called as a witness. Absent this foundation testimony, Barnett was thereafter properly precluded from testifying about these studies.

The fact that Hazard was allowed to comment upon tests run by Barnett, while Barnett’s testimony about tests conducted by Hazard was stricken, does not demonstrate bias. Barnett’s commentary upon Hazard’s tests was stricken, because Barnett had mischaracterized Hazard’s testimony. Defendants were not precluded from thereafter inquiring about Hazard’s tests, but this line of questioning was dropped.

Nor did the trial court err in excluding a photograph of a design B stool or in precluding certain testimony relating to an exhibit introduced for demonstrative purposes only. An adequate foundation had not been laid for the introduction of either item.

We have considered other trial court rulings cited by defendants, and we find that any error in these rulings was harmless. Similarly, we find defendants were not prejudiced by the court’s conduct in questioning Haig Dadourian. Throughout the trial, the trial court questioned witnesses of both parties alike. Additionally, the isolated comments of the trial court during this three-week trial fail to demonstrate prejudicial error warranting reversal.

Defendants further assert that certain comments and conduct of plaintiff’s counsel during trial constituted reversible error. The record reveals that this case was tried vigorously by both parties and that the conduct of both counsel at times was less than ideal. We find, however, that none of the conduct or comments of plaintiff’s counsel during trial, including closing argument, merit reversal.

Interroyal also contends that the punitive damages award is not supported by the evidence. Specifically, Interroyal maintains that it was prejudicial error to admit evidence of other lawsuits, that the evidence failed to show either a deliberate corporate participation in a wrongful act or a duty to warn or recall the stool, and that Interroyal’s conduct did not constitute a conscious disregard for the safety of others.

Punitive damages based on wilful and wanton conduct are allowed in product liability actions where there is evidence of conscious disregard for the safety of others. (Moore v. Jewel Tea Co. (1969), 116 Ill: App. 2d 109, 253 N.E.2d 636, aff’d (1970), 46 Ill. 2d 288, 263 N.E.2d 103.) The essential elements of wilful and wanton conduct in a product liability case include knowledge of the defect, knowledge or notice that the defect was likely to cause injury and failure to warn of or remedy a known defect or take some other affirmative action to avoid the injury. Moore v. Jewel Tea Co. (1969), 116 Ill. App. 2d 109, 253 N.E.2d 636.

Interroyal first argues that the admission of evidence of other lawsuits listed in its interrogatory answer was prejudicial error because plaintiff failed to demonstrate the substantial similarity between those cases and the present one. Evidence of substantially similar prior lawsuits against defendant are admissible to show that defendant had notice of the defect before plaintiff was injured. (Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534.) Contrary to Interroyal’s assertion, the cases read to the jury were substantially similar to the case before us.

The cases were listed in Interroyal’s sworn response to plaintiff’s interrogatory regarding lawsuits against Interroyal that specifically alleged a defect in the locking device of the leg extension on Inter-royal model 515 stools. The directive wording of this interrogatory, explicitly limiting Interroyal’s answer to only those lawsuits in which the cause of injury was the defective condition of the leg extension connector mechanism, clearly satisfied the substantial similarity requirement enunciated in Rucker. Any error in plaintiff’s reading into evidence three suits filed against Interroyal in 1975 after plaintiff’s injury but before she filed suit is cured by Interroyal’s failure to object, and is harmless since there were four other cases which were filed before plaintiff was injured.

Additionally, the substantial similarity between the Mix case, one of the listed lawsuits, and the present one was firmly established in the record. Because of this similarity the trial court did not err in admitting documents related to the Mix case. The documents included Painter’s report to his employer, Snyder Research Laboratory, containing his findings after examining the stool, the Snyder report including Painter’s conclusions, and a letter to Interroyal regarding this report. These documents further demonstrate Interroyal’s prior notice of the defect in the design of the single-wall model stool.

Furthermore, the record contains additional evidence demonstrating notice. In June 1973, 18 months before plaintiff’s injury and nine months before the single-wall stool was shipped to Midwest, the single-wall design was replaced by a double-wall construction design. Two engineering change orders revealed that the design of the stool was changed “to strengthen the union of the leg assembly” and “to eliminate field complaints.” Dadourian denied there were any complaints about the stool but then, when confronted with the statements in the engineering reports, admitted their existence. The jury could infer from this evidence that Interroyal had actual notice of the leg connection defect in its design A stool.

Thus, there was ample evidence for the jury to believe that Inter-royal had knowledge of the defect that could and did injure other stool users, and therefore Interroyal had a duty to remedy and warn of the known dangers. There was also sufficient evidence to show deliberate corporate participation in the wrongful act. Interroyal made no attempt to take steps to remedy the defect or to issue warnings. The jury heard evidence that design C was a feasible alternative to design A and that design A stools could have been remedied inexpensively. Instead, as indicated in the engineering change order documents, Interroyal executives ordered that the old design A stock be used up rather than modified.

A manufacturer is held to the degree of knowledge and skill of experts in the design of its products. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1967), 86 Ill. App. 2d 315, 229 N.E.2d 684.) Interroyal’s expertise involves the design and manufacture of a stool, a product which makes the user very dependent upon the structural support of the stool. Interroyal’s decision to place into the stream of commerce, without modification or warning, a stool known to be defective and to have caused injury, clearly demonstrates a conscious disregard for the safety of others. The jury’s verdict finding Inter-royal guilty of wilful and wanton conduct is supported by the evidence.

Regarding the amounts of both verdicts, the determination of an adequate award of damages is peculiarly within the province of the jury and great weight is given to that determination. A jury verdict will not be disturbed unless all reasonable persons would agree that the amount is excessive. (Bender v. Consolidated Mink Ranch, Inc. (1982), 110 Ill. App. 3d 207, 441 N.E.2d 1315.) We do not find the award of $200,000 for compensatory damages or the award of $100,000.50 for punitive damages to be excessive.

Although the trial was not free from error, we believe that none of the errors either alone or cumulative constitute prejudicial error. Our careful examination of the large record indicates that defendant received a fair trial. There is substantial evidence to support the jury verdicts, and the judgment entered thereon.

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

Judgment affirmed.

McGILLICUDDY and WHITE, JJ., concur.


author: JUSTICE WEBBER JUSTICE TRAPP,

text:
    GLADYS ZORN, Ex’r of the Estate of Frank F. Zorn, Deceased, Plaintiff-Appellee, v. CLAIR ZORN et al., Defendants-Appellants.
    Fourth District
    No. 4—83—0537
    Opinion filed June 5, 1984.
    Rehearing denied July 5, 1984.

      TRAPP, J., dissenting.
    Donna J. Cunningham, of Chicago, for appellants.
    Richard E. Quinn and Karen J. Steele, both of McConnell, Kennedy, Quinn & Johnston, Chartered, of Peoria, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendants appeal from an order of the circuit court of Livingston County which denied their motion to vacate judgment and for a new trial. They argue on appeal that the circuit court committed error by excluding certain evidence and by admitting allegedly improper evidence.

Frank Zorn, prior to his death, had been the owner of farm property in Livingston County, Illinois. On August 13, 1980, a purported deed to this property was recorded in Livingston County whereby a remainder interest in the property was conveyed to his three children, defendants herein. The decedent retained a life estate in the property. Soon afterwards in 1980 the decedent and his wife (the plaintiff-executor herein) filed a complaint in the circuit court of Livingston County asking the court to set aside the deed because it had been procured through undue influence or fraud. Frank Zorn died before the cause had come to trial. As a result, the plaintiff filed her second amended complaint on October 28, 1982, in her capacity as executor of her late husband’s estate. She sought to have the deed declared invalid and to have the farm property included in the decedent’s estate. She claims that the deed is invalid because it was procured by undue influence, or because the decedent was mentally incompetent at the time of the conveyance.

Before trial, the plaintiff claimed protection under section 8 — 201 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 8—

201), commonly known as the Dead Man’s Act. She moved, in limine, to exclude possible testimony by the defendants regarding conversations and transactions with the decedent. The plaintiff also moved in limine to exclude all evidence of her right to renounce the will and thereby receive one-third of the estate property. The court granted these motions over the defendants’ objections.

The trial began on March 17, 1983, before an advisory jury in the chancery division of the circuit court of Livingston County. Two expert medical witnesses testified on behalf of the plaintiff that, due to chronic organic brain disease, the decedent lacked sufficient mental capacity to understand the nature and effect of his actions at the time of the execution of the deed. The plaintiff also introduced testimony to the effect that the gift tax upon the conveyance of a valid deed would be much greater than the inheritance tax levied if the deeded property should pass by the will. Two of the defendants, Clair Zorn and Eunice Wilson, were also called by the plaintiff to testify as adverse witnesses.

After all of the evidence had been presented, the two issues involved were submitted to an advisory jury in the form of special interrogatories. In answering these interrogatories the jury found that the decedent lacked sufficient mental capacity to make the deed in question, and that before and at the time of the execution of the deed, the decedent was under the undue influence of two of the defendants. The circuit court then accepted these findings and entered a decree against the defendants. The defendants timely moved to vacate the judgment, and the court denied the motion on July 13, 1983. A notice of appeal was filed on August 1, 1983.

On appeal, the defendants claim that the plaintiff waived the protection of the Dead Man’s Act when she called the defendant Eunice Wilson as an adverse witness and questioned her about an event which took place in the presence of the decedent. At that point, the defendants urge, Wilson should have been allowed to fully explain the event with further testimony, including any conversations with the decedent in that regard. They argue that the trial court’s refusal to allow such testimony constitutes reversible error. We agree.

At trial, the plaintiff called the defendant, Eunice Wilson, to testify as an adverse witness pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102). In answer to the questions put to her, Wilson testified that she and her brother (also a defendant herein) had the deed in question drawn in Pontiac, Illinois. On August 12, 1980, they drove to their father’s and stepmother’s residence in Wabash, Indiana, for the purpose of having their father sign the deed. Wilson testified that while they were in Wabash she and her brother drove the decedent to a bank. She admitted that they did not pay the decedent for the farm property. She testified that when they left Wabash the deed had been signed. After this testimony defendants’ counsel approached the bench and argued that the plaintiff had waived the protection of the Dead Man’s Act and requested that the defendants be allowed to testify about certain conversations they had with the decedent several months prior to the trip in question. He argued that these conversations would show that the decedent had requested the defendants to act as they had, thus rebutting the inferences caused by Wilson’s limited testimony. The trial court refused to allow such testimony.

Section 8 — 201 of the Code of Civil Procedure (Dead Man’s Act) states in pertinent part:

“In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, except in the following instances:
(a) If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.”

In our opinion the core issue is the meaning of “event” in the statute cited above. We note first that the present statute reiterates that of 1973 (Ill. Rev. Stat. 1973, ch. 51, par. 2(1)) when a significant change was made by the legislature. The prior statute (Ill. Rev. Stat. 1971, ch. 51, par. 2) referred throughout to “the same conversation or transaction.” We assume that the legislature intended some change and it therefore becomes a question as to the meanings of “transaction” versus “event.”

We find the following pertinent:

“One commentator has suggested that because the common meaning of the word ‘event’ is narrower than that of the word ‘transaction,’ the 1973 amendment narrowed the waiver provision. Despite the linguistic appeal of this argument, recent changes in the rules of evidence have rarely resulted in less evidence being admissible. It seems unlikely, therefore, that the Illinois legislature intended this result. ‘Conversation or event’ should be flexibly applied to each case in such a way that each side has a fair opportunity for rebuttal when the opponent, directly or indirectly, introduces evidence regarding a witness’ impression of an event or chain of events.” Mason & Weisbard, The Pitfalls of Will Contest Litigation, 16 J. Mar. L. Rev. 499, 510 (1983).

Etymologically, “transaction” appears to be narrower than “event.” “Transaction” is ofttimes linked with its twin, “occurrence,” and indicates a specific happening or episode. “Event” is frequently regarded as rising from an antecedent state of things. (Webster’s Dictionary of Synonyms 582 (1st ed. 1951).) Thus, Jefferson’s immortal lines would have been robbed of that quality if he had commenced, “When in the course of human transactions ***.”

Other courts in our sister States of Indiana and Missouri have had occasion to consider the word “event.”

“An ‘event’ is that which follows from the cause (Gore’s Case, 9 Coke 80a, 81b, 77 Reprint 853) and it refers not to futurity but has reference to something that has taken place which, however, is not an event until something happens. It becomes an event when it does happen.” McGinnis v. American Foundry Co. (1958), 128 Ind. App. 660, 666, 149 N.E.2d 309, 312.

In construing its Workers’ Compensation statute, the Missouri court said:

“The word accident as used in the statute is given the character of an event which is not limited to any single incident or • circumstance. The word event is more comprehensive in meaning, and in this connection is synonymous with the word occurrence. It includes all of the steps or connected incidents from the first cause to the final results. It is not limited in meaning to the initial cause, but may include both cause and effect.” (Rinehart v. F.M. Stamper Co. (1932), 227 Mo. App. 653, 657, 55 S.W.2d 729, 732.)

See also Snuggs v. Steel Haulers, Inc. (Mo. 1973), 501 S.W.2d 481.

We are aware that these courts were dealing with a workers’ compensation statute, but we find the rationale persuasive. There appears to be no valid reason why the word “event” should have a specialized meaning in those statutes. We believe that in the instant case “event” includes all of the connected incidents and conversations leading up to the signing of the deed and that it was error for the trial court to deny them admission.

Although it was decided under a prior statute, the case of Perkins v. Brown (1948), 400 Ill. 490, 81 N.E.2d 207, bears many striking simlarities to the case at bar. There the defendant wished to explain his testimony as an adverse witness by testifying to conversations which he had had with the decedent in the months prior to her death. The supreme court said:

“The justice of this rule is too apparent to require discussion. It would be palpably unjust if a litigant were permitted to call an adverse party and examine him as to one fact or phase of a transaction in his favor and then invoke the bar of the statute when the party examined sought to testify further with regard to the same transaction for the purpose of explaining his former testimony or correcting an erroneous impression left thereby. Section 60 of the Civil Practice Act, (Ill. Rev. Stat. 1947, chap. 110, par. 184,) giving the litigant the right to call the adverse party and examine him as if under cross-examination, in no way abrogates the rule that where a party calls a witness and examines him as to a particular part of a transaction, the other party may call out the whole of the transaction bearing upon or tending to explain or qualify the particular part to which the examination of the other party was directed. Appellants having called Brown to testify and elicited from him the statement that he had received a deed for the property from the deceased and that he did not pay her for it or buy it from her, it was entirely proper to permit him to explain the entire transaction with the deceased, including the conversations had by her with him concerning the conveyance of the property, as such conversations were a part of the transaction inquired about by appellants.” 400 Ill. 490 497, 81 N.E.2d 207, 211.

Wilson’s further testimony, and perhaps that of the other defendants, could have rebutted evidence of undue influence and could have served as evidence of the decedent’s competency at the time of making the deed. Its exclusion constitutes reversible error.

We appreciate the concerns voiced by Justice Trapp in his dissent, and we will not be understood as writing a blank check for the admission of all possible testimony. The matter must be handled on a case-by-case basis, each one dependent on its own facts, and, of course, the basic principle of relevancy will act as a restraint upon unbridled application of the rule. We hold that on the facts of this case, it was error to exclude the evidence.

On appeal, defendants also claim that Clair Zorn and Eunice Wilson were competent to testify about conversations and events in the presence of the decedent concerning the deed because such testimony would have been against their pecuniary interest. They argue that these defendants would have benefited monetarily if the property involved here had passed by will.

Under the will, Clair Zorn and Eunice Wilson each received one-half of the property, subject to certain payments to Roger Zorn and his children. Under the deed, each of the defendants would receive one-third of the property. However, since no evidence was received as to the amount of the payments owed to Roger Zorn and his children, there is no basis upon which the defendants’ claim can be substantiated. Moreover, this argument was not even raised in the court below. The defendants’ argument is without merit.

The defendants next claim that they should have been allowed to present evidence of plaintiff’s personal interest in the litigation. In granting the plaintiff’s motion in limine, the circuit court stated that evidence that plaintiff might possibly renounce the will would not be relevant to the two issues before the advisory jury, namely, the issues of undue influence and the incompetence of the decedent. Defendants objected to this ruling on the basis that such evidence would be relevant to show plaintiff’s interest in the litigation generally.

While evidence of personal interest is relevant to impeach a witness’ credibility, it does not follow that the defendants should be allowed to present such evidence as part of their case in chief. This is what the trial court wished to prevent by its ruling before trial, and to that extent the ruling was correct. The plaintiff, in fact, was not called to testify until rebuttal evidence was being presented. At that point, the defendants did not attempt to impeach her testimony or to question the extent of the court’s ruling. The plaintiff’s testimony was brief and dealt only with uncontested matters such as the date of her marriage, her husband’s age at the time of his death, and a description of their home. Her credibility in this regard is unquestioned. Therefore, any possible error in the trial court’s ruling could not have prejudiced defendants and was harmless.

Finally, defendants contend that they were prejudiced at trial by the admission of erroneous and irrelevant evidence. They claim that the plaintiff’s evidence of possible gift tax consequences as compared to the estate tax consequences for the property involved was improperly admitted. It is apparent from the record that the trial court agreed with defendants. Before the closing arguments were heard, the court, on its own motion, instructed the jury that testimony concerning the possible tax consequences was stricken and should be disregarded. As a general rule, striking out erroneously admitted evidence cures the error in all but extreme cases. (McKenna v. Chicago City Ry. Co. (1921), 296 Ill. 314, 129 N.E. 814.) This would not appear to be an extreme case.

At any rate, the defendants have waived any error in this regard since they failed to object to this testimony at trial. (Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 424 N.E.2d 1279.) Furthermore, we would anticipate that this type of testimony will not recur when this case is retried.

For all of the foregoing reasons, the judgment of the circuit court of Livingston County is reversed and the cause is remanded for a new trial in accordance with the views expressed in this opinion.

Reversed and remanded.

MILLS, P.J., concurs.

JUSTICE TRAPP,

dissenting:

The parties and this court agree that the admissibility of the testimony in issue is to be determined under the language of section 8— 201 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 8 — 201.) The opinion determines the issue by carrying forward an interpretation of section 2 of the former act in regard to evidence and depositions (Ill. Rev. Stat. 1971, ch. 51, par. 2), frequently termed the Dead Man’s Act.

A notable distinction or change is that the words “same transaction” of the former Evidence Act are replaced by the words “same event” in the Code. Actually, the change of terms was made in an amendment of the Evidence Act effective in 1973. As a matter of language, the respective terms do not have identity or' comparability in scope or use.

In Webster’s Third International Dictionary “an event” is described as an occurrence “occupying a restricted portion of *** space or time” or a “happening represented by a point.” It is thus restricted to a particular happening at a particular time. This particularity is emphasized by requiring that the testimony relate to “the same conversation or event.” A first synonym of the word “same” is “identical.”

The same dictionary described the word “transaction” in broader terms of prosecuting negotiations or carrying on business. It is not necessarily limited as to specific time or place. Thus, it has been said that a series of “events” might constitute a “transaction.” (Comment, Illinois’ Amended Dead Man’s Act; A Partial Reform, 1973 U. Ill. L.F. 700, 711.) Since the amendment of 1973', which substituted the words “same event” for the words “same transaction,” legal writers have debated the desired merits and scope of the Dead Man’s Act. In the recent enactment of section 8 — 201 of the Code of Civil Procedure, effective July 1, 1982, the legislature made considerable change of language which generally simplified the statement of the statute. It did not, however, abandon the narrow connotation of the words “same event” and return to the broader interpretation of “same transaction” found in the cited Perkins v. Brown (1948), 400 Ill. 490, 81 N.E.2d 207.

The majority opinion finds that a defendant was called as an adverse party “about an event” and concludes that that “ ‘event’ includes all of the connected incidents and conversations leading up the signing of the deed ***,” so that such party may thereafter testify upon the entirety without particularity concerning that which was asked. The construction of the companion words “same conversation” in the statute suggests an apparent anomaly. If the personal representative calls a witness to testify to the “same conversation,” does this also permit testimony as to the preceding and subsequent “conversations” without any regard to the span of time, identity, or place in the use of the word “same”?

There has been long debate concerning the problems inherent in the conflicting evidentiary goals, where an original party has died or is incompetent. Neither the legal profession nor the legislature have found a better resolution than to limit the area of testimony to the identity of conversation or event to which any person testifies in behalf of the representative. These views expressed in dissent are deemed consistent with the opinion in Manning v. Mock (1983), 119 Ill. App. 3d 788, 457 N.E.2d 447.

I would affirm the trial court.


author: PRESIDING JUSTICE BUCKLEY

text:
      In re COMMITMENT OF STEVEN GUY (The People of the State of Illinois, Petitioner-Appellee, v. Steven Guy, Respondent-Appellant).—STEVEN GUY, Petitioner-Appellant, v. MICHAEL BELLETIRE, Acting Director of the Illinois Department of Mental Health and Developmental Disabilities et al., Respondents-Appellees.
    First District (1st Division)
    Nos. 83—2851, 84—152 cons.
    Opinion filed July 9, 1984.
    Mark J. Heyrman, of Edwin F. Mandel Legal Aid Clinic, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Maureen A. Hartón, Assistant State’s Attorneys, of counsel), for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The present case involves two separate appeals which, on the motion of petitioner, Steven Guy, were consolidated for review. The first appeal is from a judgment of the circuit court revoking petitioner’s “good-time credit” and extending his period of confinement as an insanity acquittee for a period of 15 months. The second appeal is from a subsequent judgment of the trial court denying Steven Guy’s petition for a writ of habeas corpus.

The record reveals that petitioner has been continuously confined since January 17, 1974, when he was arrested on charges of murder. On May 11, 1978, he was acquitted of those charges by reason of insanity and, shortly thereafter, involuntarily committed to the custody of the Illinois Department of Mental Health and Developmental Disabilities (DMHDD) pursuant to section 5 — 2—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005— 2 — 4). At issue in this consolidated appeal is whether the trial court erred in extending the period of petitioner’s confinement as an insanity acquittee for an additional 15 months beyond the period provided by section 5 — 2—4(b) of the Unified Code of Corrections. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4(b).) The trial court imposed this extension following a hearing, basing its decision on a finding that Guy had been involved in several altercations during his confinement by the DMHDD which justified the revocation of 15 months of accrued good-time credit. We reverse.

The commitment, treatment, and discharge of persons acquitted by reason of insanity are governed by section 5 — 2—4, which provides in relevant part:

“(b) The admission, detention, care, treatment or habilitation, transfer, review proceedings, and discharge of the defendant after such order shall be under the Mental Health Code of 1967, except that the initial order for admission of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time; provided, however, that such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior, before becoming eligible for parole had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity.” Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4(b).

In the present case, petitioner initially filed a motion with the circuit court on December 7, 1982, asking the court to establish a final release date pursuant to section 5 — 2—4(b). After briefing, the court entered an order which stated that “[petitioner’s] commitment pursuant to *** section 1005 — 2—4 shall expire no later than August 26, 1983.” While not challenging the accuracy of the calculation embodied in the circuit court’s original order, on August 17, 1983, the State moved to modify that order and asked the court to revoke all good-time credit and extend petitioner’s commitment based upon petitioner’s “bad conduct.” After a hearing, the court granted the State’s motion, purportedly under authority granted to the court by section 5 — 2—4 (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4), thereby extending petitioner’s commitment to November 26, 1984.

We believe the trial court erroneously concluded that petitioner had earned good-time credits during his period of commitment which can later be revoked by subsequent bad conduct. Section 5 — 2—4 nowhere provides for the revocation of good-time credits from insanity acquittees. On the contrary, the statute indicates that good-time credit is relevant only as a variable in computing the initial commitment order setting an insanity acquittee’s maximum period of confinement. Thus, good-time credits are not earned by an insanity ac-quittee during the course of his confinement, but rather, the maximum period of confinement is merely computed by referring to the existing sentencing scheme and good-time credit provisions contained in the criminal code. An insanity acquittee’s subsequent conduct cannot alter this statutory maximum.

This construction of section 5 — 2—4 is supported by the recent decision of our supreme court in People v. Tanzy (1983), 99 Ill. 2d 19, 457 N.E.2d 390. There the State argued that an insanity acquit-tee is not entitled to compensatory good-time credit in calculating the maximum period of confinement under section 5 — 2—4 because compensatory good-time credit depends on conduct during confinement. The supreme court rejected this argument and held that a trial court must take into account both statutory and compensatory good-time credits in calculating an insanity acquittee’s maximum period of confinement, because for inmates within the Department of Corrections eligibility for both types of credit is no longer dependent on “meritorious activity by the inmate.” (99 Ill. 2d 19, 23.) In so doing, the court noted that an insanity acquittee’s commitment period must be fixed by the trial court upon acquittal and interpreted section 5 — 2—4(b) as establishing a maximum period which “will represent the outer limit of the defendant’s possible commitment. The defendant cannot be held [as an insanity acquittee] beyond that maximum.” (99 Ill. 2d 19, 21.) Thus, the court recognized that good-time credit is relevant only in setting an initial commitment period, and that an insanity acquittee’s good-time credits are not revocable because once the limit has been set he cannot be held beyond that maximum. The court also implicitly recognized that actual conduct during commitment is irrelevant to awarding good-time credits because the maximum length of the commitment period must be set before the period has even begun.

This construction is further bolstered by the total lack of any statutory provisions for revoking an insanity acquittee’s good-time credits. Section 5 — 2—4 remands insanity acquittees to the custody of the DMHDD but nowhere in the statute has the DMHDD been empowered to enact rules, regulations and procedures for revoking good-time credits. (Compare Ill. Rev. Stat. 1983, ch. 38, par. 1003— 6 — 3, authorizing the Department' of Corrections to enact rules and regulations for early release of inmates.) Not surprisingly, the DMHDD has enacted no such rules or regulations and has, in fact, never attempted to revoke petitioner’s good-time credits or those of any other insanity acquittee. Clearly, if our legislature had wished for insanity acquittees to earn good-time credits and to have these credits revocable for bad conduct, some provision in the criminal code would spell out standards and procedures for such revocation.

The absence of any standards or procedures for revoking an insanity acquittee’s good time is further revealed by the confusion exhibited in the proceedings below. The trial court could not decide whether the case was criminal or civil in nature. What the State had to prove was never established. Both the trial court and the State insisted that the Department of Corrections’ procedures for revoking good time were inapplicable to insanity acquittees, and the court implied it was revoking petitioner’s good-time credit for violating rules of the DMHDD. However, Guy was never charged with violating any DMHDD rules, nor was it ever proved that he ever violated such rules. Our review of the proceedings below reveals that the trial court improvised a procedure for revoking good-time credits from insanity acquittees where one was neither in existence nor authorized under Illinois law.

We believe that the explicit language of section 5 — 2—4, and our supreme court’s analysis of this statute in Tanzy, when coupled with the absence of any statutory authorization for revoking good-time credits of insanity acquittees, and the lack of any administrative regulations as promulgated by the DMHDD setting standards and procedures for revoking good-time credits, all mandate a finding that good-time credits of insanity acquittees are not subject to revocation.

In view of the foregoing, we reverse the judgments of the trial court revoking petitioner’s good-time credit and denying the petition for a writ of habeas corpus. The State concedes that petitioner’s initial release date of August 26, 1983, was correctly calculated and remand is therefore unnecessary, since this court has the authority to reverse the trial court’s order (73 Ill. 2d R 615(b)(l)). We therefore conclude that petitioner is entitled to his immediate release unless his civil commitment is sought.

Reversed.

CAMPBELL and O’CONNOR, JJ., concur.

       Pursuant to People v. Valdez (1980), 79 Ill. 2d 74, 402 N.E.2d 187, the version of section 5 — 2—4 in effect at the time of Guy’s commitment as an insanity acquittee governs his subsequent treatment and release. The language of section 5— 2 — 4 at issue here has not materially changed.


author: JUSTICE LORENZ

text:
    THE FIRST NATIONAL BANK OF CHICAGO, Plaintiff-Appellant, v. V. B. BOELCSKEVY et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—1950
    Opinion filed June 29, 1984.
    Joseph M. Russell, of Law Department of First National Bank of Chicago, of Chicago, for appellant.

      Mary Jane Edelstein, of Much, Shelist, Freed, Denenberg, Ament & Eiger, P.C., of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff First National Bank of Chicago appeals from the trial court’s order granting the motion of defendant Robert Knight to quash service of process for lack of in personam jurisdiction. The underlying action, brought in the circuit court of Cook County, seeks to enforce an indebtedness against certain guarantors, among them defendant Robert Knight; all other guarantors have appeared generally Facts pertinent to our decision follow.

In January of 1979, North American Aviation Holdings, Ltd. (holding company), bought an 80% ownership interest in Walston Aviation Sales, Inc. (Walston), an aircraft dealership located in East Alton, Illinois. Defendant is one of three natural persons who own the holding company, and he resides in Florida. The purchase agreement provided for Walston’s continued financing by plaintiff. Defendant stated during his deposition that he recalled discussing the guaranty only once, at plaintiff’s Chicago, Illinois, office in January or February of 1979. Defendant telephoned the Walston office weekly in 1979 and 1980 and daily in 1981. He visited Walston’s office several times in 1980, monthly in early 1981, and biweekly later in 1981. Defendant actively participated in the selection and removal of Walston’s officers and reviewed Walston’s marketing programs.

One of plaintiff’s loan officers stated by way of affidavit that he and defendant, among others, attended a meeting on February 7, 1979, at which he advised defendant that any future financing of Wal-ston required the execution of his personal guaranty. Plaintiff's loan officer gave defendant the guaranty agreement, which defendant executed in Florida and mailed to plaintiff in Chicago.

The guaranty agreement provides that it shall be governed by the laws of the State of Illinois, and pledges defendant’s prompt payment of Walston’s debts to plaintiff as evidenced by certain “demand notes.” The notes are payable at plaintiff’s office in Chicago, Illinois, and plaintiff alleges that the funds were disbursed from its Chicago office to Walston’s office in East Alton.

Plaintiff filed its complaint in the circuit court of Cook County on June 11, 1982. Defendant appeared specially and presented his motion to quash service of process for lack of in personam jurisdiction on December 21, 1982. Following limited discovery submission of memo-randa, and argument, the trial court granted defendant’s motion and dismissed the action as to him. On July 12, 1983, the trial court certified the order and plaintiff filed its notice of appeal.

Opinion

The sole issue in this appeal is whether defendant transacted business in Illinois which gave rise to plaintiff’s cause of action so as to subject defendant to suit in the courts of our State. Although defendant has not submitted an appellee’s brief in this court, we will exercise our inherent power to decide the merits of this appeal in the interest of justice. (See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) Because we believe that the trial court took too narrow a view, and because we find ample transaction of business in the record to support in personam jurisdiction over defendant in Illinois, we hold that the trial court erred in quashing service and dismissing defendant from the case, and we reverse.

Section 2 — 209(a) of the Code of Civil Procedure (hereinafter the long-arm statute) provides in pertinent part:

“(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this State; ***.” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 209(a).)

In Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847, our supreme court interpreted the substantially identical predecessor provision of the Civil Practice Act. The Cook court noted that Illinois’ long-arm statute was not coextensive with the minimum contacts due process standard described in International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154; rather, the court suggested a twofold analysis of in personam jurisdiction. We should first look to the meaning of our statute or common law doctrine; only then should we reach the due process aspects of exercising jurisdiction. Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190,197-98, 429 N.E.2d 847.

It is important to note that Cook represented no fundamental narrowing of the long-arm statute or retreat from its liberal construction (see Nelson v. Miller (1957), 11 Ill. 2d 378, 143 N.E.2d 673), but merely observed that the statute’s liberal purpose must be construed within its terms. (See Ronco, Inc. v. Plastics, Inc. (N.D. Ill. 1982), 539 E Supp. 391, 398.) The Cook court held that no basis for jurisdiction existed where the negotiations which occurred in Illinois were unrelated to plaintiff’s cause of action (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 198, 429 N.E.2d 847), a result plain on the face of section 2 — 209(a).

A wide variety of factors have been considered in determining whether a defendant has transacted business in Illinois, three of which are relevant here. When a defendant comes to Illinois and engages in negotiations of some substance regarding the transaction from which the cause of action arises, then the defendant submits to jurisdiction under the long-arm statute. (See United Air Lines, Inc. v. Conductron Corp. (1979), 69 Ill. App. 3d 847, 853-55, 387 N.E.2d 1272, and cases cited therein.) A defendant transacts business in Illinois when substantial performance of his or her contractual duties is to be rendered in Illinois. (See Tabor & Co. v. McNall (1975), 30 Ill. App. 3d 593, 333 N.E.2d 562; Colony Press, Inc. v. Fleeman (1974), 17 Ill. App. 3d 14, 18-19, 308 N.E.2d 78.) And a defendant who invokes the benefits and protections of Illinois law in the contractual relationship may be said to transact business in Illinois for jurisdictional purposes. See Ronco, Inc. v. Plastics, Inc. (N.D. Ill. 1982), 539 F. Supp. 391, 396; Aetna Casualty & Surety Co. v. Looney (1981), 98 Ill. App. 3d 1057, 1060, 424 N.E.2d 1347.

In the instant case, these factors weigh heavily in favor of subjecting defendant to jurisdiction. Defendant voluntarily attended a meeting at plaintiff’s office in Chicago, during which the guaranty was discussed. Plaintiff asserts that the guaranty was given to defendant in the course of this meeting for his review and execution. As to the guaranty, Illinois was the only situs of negotiation. Further, the guaranty in terms and essence pledges defendant’s personal performance of Walston’s promise to pay the demand notes; the demand notes are payable at plaintiff’s Chicago office. Therefore, the guaranty unambiguously requires performance in Illinois. In addition, the guaranty voluntarily signed by defendant states that it shall be governed by Illinois law: defendant will have the protection of Illinois law in this suit and, if positions were reversed, would have the benefit of enforcing it against plaintiff. Negotiation, performance and invocation of Illinois law all indicate transaction of business in Illinois, hence jurisdiction here.

Moreover, the “transaction” is not limited, legally or logically, to the guaranty. In O’Hare International Bank v. Hampton (7th Cir. 1971), 437 F.2d 1173, the seventh circuit considered similar facts and found that the Illinois long-arm statute conferred jurisdiction. In that case, plaintiff sought to enforce personal guaranties against residents of Oklahoma, Arkansas, Texas and Florida. The court considered defendants’ activities with respect to the underlying transaction and stated:

“While the guarantors received no direct consideration, it appears there was inducement in connection with their projected interest in World Travelers for them to want eventual financing of the airplane to be purchased. They should not be in the position, even though indirectly, to enjoy the fruit but to disavow the situs of the tree from which the fruit was derived. The purchase money bore an Illinois badge sufficient with the other facts hereinbefore set out to constitute a prima facie showing of transacting business within the state of Illinois.” (O’Hare International Bank v. Hampton (7th Cir. 1971), 437 F.2d 1173, 1177; accord, Commercial Discount Corp. v. King (N.D. Ill. 1981), 515 F. Supp. 988, 992.)

Similarly, this court held in Aetna Casualty & Surety Co. v. Looney (1981), 98 Ill. App. 3d 1057, 424 N.E.2d 1347, that Illinois courts had jurisdiction over an Oklahoma defendant in a suit based on an indemnity agreement, where the agreement secured performance of a construction contract in Illinois.

Here, defendant personally guaranteed a debt flowing from a bank with its principal operations in Illinois to a business with its principal operations in Illinois. Defendant was physically present at the bank and the business, in order to transact profitable business which impacted directly on the citizens and institutions of Illinois. An integral part of this activity was financing. It is a strange result indeed which permits defendant “to enjoy the fruit but to disavow the situs of the tree from which the fruit was derived.” (O’Hare International Bank v. Hampton (7th Cir. 1971), 437 F.2d 1173, 1177.) We conclude that defendant transacted business in Illinois which gave rise to this cause of action, so as to justify the exercise of in personam jurisdiction over him.

Although we do not have the benefit of defendant’s analysis on appeal, we have carefully considered his arguments to the trial court and have found them to be meritless. Defendant posited that facts not directly related to the guaranty were irrelevant; that his activities in his corporate capacity could not form a basis for personal jurisdiction; and that all of his personal business was transacted in Florida. Defendant relied upon Hurletron Whittier, Inc. v. Barda (1980), 82 Ill. App. 3d 443, 402 N.E.2d 840, and it is true that the court there stated that “the conduct of a person in a representative capacity cannot be relied upon to exercise individual personal jurisdiction over that person.” (82 Ill. App. 3d 443, 447, 402 N.E.2d 840.) We note that the Hurletron court stated that a more important consideration was lack of relation between defendant’s conduct in Dlinois and the cause of action, a proposition which is supported by the cases cited therein, and so the statement concerning representative capacity may be seen as dictum. However, we believe that defendant’s argument and the broad language in Hurletron blur the distinction between personal jurisdiction and personal liability. Personal jurisdiction refers to power of a court to bind the parties to its judgments (Black’s Law Dictionary 1030 (5th ed. 1979); see International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158); personal liability involves the responsibility of a person to pay or perform which exposes personal assets to judgment, as opposed, for example, to corporate assets. (Black’s Law Dictionary 1030 (5th ed. 1979).) We see no reason to inject personal liability concepts into the law of jurisdiction.

In any case, our analysis of defendant’s transaction adequately meets his arguments. We do not hold that facts unrelated to defendant’s guaranty may be used to subject him to jurisdiction; rather we hold that the transaction underlying the guaranty was so related to the guaranty that defendant’s acts with respect to such transaction can be said to have “given rise” to the cause of action. Defendant’s execution of a personal guaranty in the circumstances of this case constituted “transaction of any business” within Dlinois, despite the fact that the guaranty was signed in Florida.

Finally, we believe that the courts of Dlinois may exercise jurisdiction over the person of defendant fully in harmony with the due process clause. The constitutional requirement was set forth in International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158:

“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ [Citations.]”

In this case, defendant has had far more contact with Dlinois than the minimum required for due process. Defendant negotiated the guaranty in Dlinois, received it here, and returned it to the lending institution here. The guaranty is to be performed in Dlinois and governed by Dlinois law. The debt which is secured by the guaranty required disbursement of funds from an Dlinois lending institution to an Dlinois business operation, and both acquisition and financing of that business were negotiated in part in Illinois. We can discern no fairer nor more just result than to subject defendant to in personam jurisdiction in the courts of Blinois and to require him to defend himself in this action.

For the foregoing reasons, the judgment of the circuit court is reversed.

Reversed.

MEJDA, P.J., and SULLIVAN, J., concur.