author: JUSTICE LINN

text:
    RICHARD BALLENTINE et al., Petitioners-Appellants and Cross-Appellees, v. HENRY BARDWELL et al., Respondents-Appellees and Cross-Appellants.
    First District (4th Division)
    No. 85—648
    Opinion filed April 25, 1985.

      Tatel & Hewlett, P.C., of Chicago (John E. Howlett, Jr., of counsel), for appellants.
    Burton S. Odelson and Mark H. Sterk, both of Evergreen Park, for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiffs, party candidates of a newly formed political party, appeal from the decisions of the electoral board and the circuit court of Cook County striking their names from the official ballot for the April 2, 1985, municipal election in the village of Robbins.

Defendant, electoral board, cross appeals from certain findings of the trial court in plaintiffs’ favor.

We affirm in part and reverse in part.

Background

On January 14, 1985, plaintiffs, Richard Ballentine, Diane Davis, James W. Barnes, Sr., George R. Walker, Jr., and Kenneth Moody, filed their nominating petitions and loyalty oaths with the clerk of the village of Robbins, requesting that their names be printed on the ballot for the April 2, 1985, municipal election as candidates of the “New United Idea” Party, a newly formed political party.

On January 18, 1985, some four days after the filing of their nomination petitions but within the filing period set forth under section 10 — 6 of the Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 10 — 6), plaintiffs filed their statements of candidacy pursuant to section 10 — 5 of the Code (Ill. Rev. Stat. 1983, ch. 46, par. 10 — 5).

An objector’s petition was filed with the village clerk on January 26, 1985, complaining, inter alia, that plaintiffs’ nomination papers were defective in that (1) the statements of candidacy were not filed simultaneously with the nomination petitions; (2) plaintiffs’ party name impermissibly included the name of an established political party, in violation of section 10 — 5(2) of the Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 10 — 5(2)); and (3) plaintiffs failed to file a valid “certificate of officers” in violation of section 10 — 5. Ill. Ann. Stat., ch. 46, par. 10 — 5 (Smith-Hurd Supp. 1983).

A hearing was held on the merits of the objector’s petition, following which defendant electoral board (board) sustained the petition and struck the names of the party candidates from the official ballots. The board’s decision was affirmed on judicial review before the circuit court of Cook County, which found plaintiffs’ failure to simultaneously file their statements of candidacy with their nomination petitions to vitiate their candidacy.

Plaintiffs brought this appeal, seeking an expedited briefing and hearing schedule, and defendant electoral board cross-appealed.

Following oral argument, an order was handed down by this court on March 28, 1985, (1) directing the clerk of the village of Robbins to print the names of the candidates without party designation on the official ballot for the election to be held on April 2, 1985; (2) denying the relief sought by defendant; and, (3) informing the parties that a written disposition of this cause would issue at the court’s convenience.

We affirm in part and reverse in part.

Opinion

I

On appeal, plaintiffs address only that issue that the trial court found to be dispositive, namely, whether their failure to simultaneously file their statements of candidacy with their nomination petitions mandated that their names be stricken from the ballot. Plaintiffs contend that, by filing their statements of candidacy within the statutorily prescribed filing period, they have substantially complied with the requirements of the Illinois Election Code.

Defendant, on the other hand, contends that the combined reading of sections 10 — 4, 10 — 5 and 1 — 3 of the Election Code mandates the removal of the candidates’ names from the election ballot due to their failure to simultaneously file their statements of candidacy with their nominating papers. By this contention, defendant in essence maintains that such simultaneous action is mandatory rather than directory. We cannot agree with defendant’s interpretation of these provisions as applied to the facts and circumstances of the instant case.

Whether an enactment is directory or mandatory depends on the legislative intention, to be ascertained from the nature and object of the act and the consequences which would result from any given construction. (Village of Mundelein v. Hartnett (1983), 117 Ill. App. 3d 1011, 454 N.E.2d 29.) The use of the word “shall” in a statutory provision, though generally regarded as mandatory, does not have a fixed or inflexible meaning and may, in fact, be construed as meaning “may” depending on the legislative intent. Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 373 N.E.2d 1332.

The word “shall,” in construing election statutes, has been held directory rather than mandatory in a variety of cases. (People ex rel. Meyer v. Kerner (1966), 35 Ill. 2d 33, 219 N.E.2d 617.) The criteria for determining whether the provisions of an election statute are mandatory or directory were set forth by the Kerner court, and later affirmed in People ex rel. Bell v. Powell (1966), 35 Ill. 2d 381, 221 N.E.2d 272, as follows:

“Where a statute provides that an election shall be rendered void by failure of those involved in the election process to perform certain duties, the courts are bound to enforce it as mandatory. [Citations.] But, where the statute does not expressly declare its provisions to be mandatory or compliance therewith to be essential to its validity, the failure to strictly comply, in the absence of fraud or a showing that the merits of the election were affected thereby, is not fatal. [Citation.]” People ex rel. Meyer v. Kerner (1966), 35 Ill. 2d 33, 39, 219 N.E.2d 617, 620.

II

Here, defendant contends that the election statute expressly declares the simultaneous submission of statements of candidacy with nomination petitions to be mandatory. To support this contention, defendant first points to section 10 — 4, which contains the express declaration that “[n]o signature shall be valid or counted *** unless the requirements of this Section are complied with.” (Ill. Rev. Stat. 1983, ch. 46, par. 10 — 4.) To understand this express declaration, the provision must be read within the context of the section, which states, in pertinent part, as follows:

“Sec. 10 — 4. All petitions for nomination under this Article 10 for candidates for public office in this State, shall in addition to other requirements provided by law, be as follows: Such petitions shall consist of sheets of uniform size and each sheet shall contain, above the space for signature, an appropriate heading, giving the information as to the name of candidate or candidates in whose behalf such petition is signed; ***. Such petition shall be signed by the qualified voters in their own proper persons only, and opposite the signature of each signer his residence address shall be written or printed ***. Standard abbreviations may be used in writing the residence address ***. No signature shall be valid or be counted in considering the validity or sufficiency of such petition unless the requirements of this Section are complied with.” (Emphasis added.)

Section 10 — 4 sets forth the contents requirements of a circulator’s affidavit. The statutory requirements of the circulator’s affidavit of a petition for nomination, as set forth above, have been held to be mandatory and not directory. (Schumann v. Kumarich (1981), 102 Ill. App. 3d 454, 430 N.E.2d 173.) Thus, while it is clear that the language relied upon by defendant is indeed mandatory in nature, it is also clear that such language refers directly and exclusively to compliance with the contents requirements of a circulator’s affidavit and the consequence that will follow a failure to comply with those requirements. Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292.

In the instant case, we are not, however, dealing with the candidates’ failure to include specific details in the circulator’s affidavit. We are dealing with the candidates’ failure to simultaneously file their statements of candidacy, as required by section 10 — 5, with their nomination petitions. We therefore find the mandatory language of section 10 — 4 inapposite to the facts at bar.

Ill

Defendant next contends that, pursuant to section 1 — 3 of the Election Code, “petition of candidacy” includes the statement of candidacy such that the “petition” referred to in section 10 — 4 above and the mandate thereto attached necessarily encompasses not only the circulator’s affidavit but also the statement of candidacy. (Ill. Rev. Stat. 1983, ch. 46, par. 1 — 3(12).) We find defendant’s extension of the plain language of the definition set forth in section 1 — 3(12) to be unwarranted.

The definitions of terms "within a legislative enactment will be sustained to the exclusion of hypothetical indulgences. (Chicago-Midwest Meat Association v. City of Evanston (1981), 96 Ill. App. 3d 966, 422 N.E.2d 205.) The appellate court cannot restrict or enlarge the plain meaning of an unambiguous statute. (Denton v. Hood (1984), 122 Ill. App. 3d 813, 461 N.E.2d 1069.) When the language of a statute is clear and unambiguous, the only legitimate function of the court is to enforce the law as enacted by the legislature. Totten v. State Board of Elections (1980), 79 Ill. 2d 288, 403 N.E.2d 225.

Section 1 — 3(12) clearly and unambiguously states that the definition of “petition of candidacy” set forth therein is “as used in Sections 7 — 10 and 7 — 10.1 of the Election Code.” (Ill. Rev. Stat. 1983, ch. 46, par. 1 — 3(12).) The legislature thereby expressly limited that definition to those sections of the Code. As an appellate court, and in the absence of any ambiguity, we cannot enlarge the plain meaning of that statute to encompass the interpretation defendant urges. We therefore find that section 1 — 3(12), which explicitly refers to sections 7 — 10 and 7 — 10.1 and the terminology used therein, is inapposite to the instant issue.

IV

The final section relied on by defendant in its assertion that the simultaneous filing of statements of candidacy and petitions of nomination is mandatory is section 10 — 5 of the Election Code. (Ill. Ann. Stat., ch. 46, par. 10 — 5 (Smith-Hurd Supp. 1983).) Section 10 — 5 reads, in pertinent part, as follows:

“Sec. 10 — 5. All petitions for nomination shall, besides containing the names of candidates, specify as to each:
1. The office or offices to which such candidate or candidates shall be nominated.
2. The new political party ***
3. The place of residence of any such candidate ***
Such certificate of nomination or nomination papers in addition shall include as a part thereof, the oath required by Section 7.10.1 of this Act and must include a statement of candidacy for each of the candidates named therein ***. [Emphasis added.]
* * *
Nomination papers filed under this Section are not valid if the candidate named therein fails to file a statement of economic interests *** by the end of the period for the filing of nomination papers ***.”

The cases defendant cites in support of its mandatory reading of section 10 — 5 either interpret section 7 — 10 (Ill. Rev. Stat. 1983, ch. 46, par. 7 — 10) (Bowe v. Chicago Electoral Board (1980), 79 Ill. 2d 469, 404 N.E.2d 180; Lawlor v. Municipal Officer Electoral Board (1975), 28 Ill. App. 3d 823, 329 N.E.2d 436); interpret the content requirements of section 10 — 4 (Schumann v. Kumarich (1981), 102 Ill. App. 3d 454, 430 N.E.2d 173); or, interpret the statement of economic interests requirement of section 10 — 5. (Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292.) While all of these requirements, based on the express language of the Code, are clearly mandatory, defendant presents no case that interprets section 10 — 5 as mandating a candidate’s removal from the ballot for failure to simultaneously file the statement of candidacy with the nomination papers.

In interpreting this particular segment of section 10 — 5, we first note, by our reading of the statute as a whole, that those parts of the Code that are mandatory, i.e., where the omission to follow certain procedures renders the proceeding void, are expressly so, and in addition to requiring the doing of the things specified, they prescribe the result that will follow if they are not done. (In re Special Education Placement of Walker (1982), 107 Ill. App. 3d 1053, 438 N.E.2d 582.) Such a mandatory provision is that part of section 10 — 5 that declares nomination papers to be invalid if the candidate fails to file a statement of economic interests, and that part of section 10 — 4 that declares a signature shall be invalid unless the requirements of that section are followed. Ill. Rev. Stat. 1983, ch. 46, pars. 10 — 4,10—5.

The provision at issue here, that part of section 10 — 5 referring to the statement of candidacy, contains no language suggesting that the failure to file the statement simultaneously with the nomination papers renders the proceeding void. The phrase “shall include as part thereof’ appears to refer to the oath required by section 7.10.1, rather than to the statement of candidacy, which must also be included with the nomination papers. The inference is that while the statement of candidacy must be included, it is not fatal if it is not included as “part thereof.”

Moreover, the validity of the nomination papers as a whole may not be assessed prior to the close of the filing period. The candidate is given until the close of the filing period to file his statement of economic interests. The failure to file this statement renders the nomination papers invalid. (Ill. Rev. Stat. 1983, ch. 46, par. 10 — 5.) It makes little sense to allow the candidate until the close of the filing period to file this crucial paper and at the same time render the statement of candidacy, which itself makes reference to the statement of economic interests filed or to be filed, invalid prior to this juncture.

While all the requirements of the election law are mandatory in the sense that they impose a duty of obedience on those who come within their purview, and even directory provisions may not be disregarded, it does not follow that every departure or omission will vitiate the ballot or the proceeding. (People ex rel. Harris v. Powell (1966), 35 Ill. 2d 384, 221 N.E.2d 274.) A candidate is required to file a statement of candidacy, and he is directed to include that statement of candidacy with his nomination papers. Here, the candidates failed to include the statement of candidacy with their nomination papers. They did, however, file the statements within the proper filing period and prior to the time the statement of economic interests was due. Their qualifications for office could not have been assessed prior to the time their statements of candidacy were filed. For this reason, little if any prejudice resulted from their failure to file the statements of candidacy simultaneously with the nomination papers.

We therefore conclude that, while the statement of candidacy requirement of section 10 — 5 is mandatory in the sense that it may not be disregarded, it is not mandatory in the sense that substantial rather than strict compliance therewith mandates removal of the candidates’ names from the ballot.

V

We next address the issues brought by the electoral board on cross-appeal. The board first contends that the circuit court erred in reversing the board’s finding that plaintiffs violated section 10 — 5(2) of the Election Code by using the name of an existing political party, the “United Idea Party,” in the name of their new political party, the “New United Idea Party.” (Ill. Rev. Stat. 1983, ch. 46, par. 10 — 5(2).) The prohibition of section 10 — 5(2) reads as follows:

“2. [The new political party] *** shall not bear the same name as, nor include the name of any established political party as defined in this Article.”

It is undisputed that the name “New United Idea Party” included the name of an established political party, the “United Idea Party,” which fielded a slate of candidates at the municipal election held in Robbins on April 12, 1983, such as to constitute an established political party under the Code. (Ill. Rev. Stat. 1983, ch. 46, par. 10 — 2.) However, defendant errs in its contention that the circuit court reversed the board’s finding on this issue. The record makes clear that the circuit court sustained the board’s finding, but ruled, pursuant to Vasquez v. Municipal Officers Electoral Board (1983), 115 Ill. App. 3d 1014, 450 N.E.2d 1379, that the candidates would be allowed to appear on the ballot without party designation. We concur with the able trial court’s ruling.

In Vasquez, the candidates’ nomination petitions requested that they be designated as the “Action IV Party,” a new political party with respect to an election to be held on April 12, 1983, in the village of Steger. The “Action Party” had run candidates for election in the ■village for many years, under the labels of “Action Party,” “Action Party II,” and “Action Party III.” “Action Party III” had slated candidates in the 1981 election and received more than 5% of the vote cast for village officers such as to render it an established political party within the purview of section 10 — 2 of the Election Code. Ill. Rev. Stat. 1983, ch. 46, par. 10 — 2.

The Vasquez court first determined that “Action IV” was the same party which was designated as “Action III” and in prior years under the “Action” label and that it did not become a new political party merely by adding a Roman numeral at the end of the party name. Accordingly, the court found that the candidates failed to comply with section 10 — 2 of the Election Code and that they had wrongfully sought nomination under article 10 as a new political party. Vasquez v. Municipal Officers Electoral Board (1983), 115 Ill. App. 3d 1014, 450 N.E.2d 1379.

Having determined that the candidates were not properly nominated under article 10 and the “Action IV” party label, the Vasquez court then determined whether the nominations were completely void or whether it was only the party designation which was invalid. The court found the latter alternative to be true, reasoning as follows:

“In our opinion the nominating petitions were signed by sufficient voters to entitle the [candidates] to be placed on the ballot as individuals, and the statutory prohibition against designating themselves as a new party when they are not is amply effectuated by striking the party designation.” 115 Ill. App. 3d 1014, 1018, 450 N.E.2d 1370, 1382.

Justice Barry, concurring in part and dissenting in part to the decision, agreed that the candidates should be allowed to appear on the ballot but found that the change from “Action III Party” to “Action IV Party” was sufficient to make the names different such that the candidates had properly been nominated as a new political party.

Plaintiffs here have acquiesced to being slated on the official ballot without party designation. We therefore find, pursuant to Vasquez, that while they may have in fact violated section 10 — 5(2) of the Election Code, as the trial court found, they were nevertheless entitled to appear on the ballot as individuals and that the statutory prohibition against including the name of an established political party within the name of a new political party was amply effectuated by striking the party designation.

VI

Defendant’s final contention on appeal is that plaintiffs failed to file a certificate of officers in violation of section 10 — 5 of the Election Code. (Ill. Ann. Stat., ch. 46, par. 10 — 5 (Smith-Hurd Supp. 1983).) The parties agree that given the trial court’s resolution of the previous issue, namely, allowing the candidates to be slated without party designation, this issue is now moot. Having affirmed the trial court’s finding on the issue of party designation, we therefore need not address defendant’s final contention.

For all of the foregoing reasons, and consistent with the order of this court handed down on March 28, 1985, we affirm in part and reverse in part.

Affirmed in part and reversed in part.

JOHNSON and BUCKLEY, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MEJDA

license: Public Domain

text:
    LOU B. STONNELL et al., Plaintiffs-Appellees, v. INTERNATIONAL HARVESTER COMPANY, Defendant-Appellant.
    First District (5th Division)
    No. 84—0605
    Opinion filed April 26, 1985.
    Lord, Bissell & Brook, of Chicago, for appellant.
    James T. J. Keating, of Chicago, for appellees.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Pursuant to Supreme Court Rule 306(a)(l)(ii) (94 Ill. 2d R. 306(a)(l)(ii)), defendant, International Harvester Company, petitioned this court for leave to appeal from the circuit court’s order denying its motion to dismiss the wrongful death action of plaintiffs, Lou B. Stonnell and Shirley May Stonnell, on the ground of forum non conveniens. Plaintiffs filed an answer to the petition and, on April 12, 1984, we allowed defendant’s petition. Although plaintiffs have not submitted a brief, we elect to reach the merits of this appeal under the principles enunciated by our supreme court in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Plaintiffs are citizens and residents of New Zealand. On December 29, 1978, plaintiffs’ 17-year-old son, Tony Warren Stonnell, was killed in a tractor accident which occurred in New Plymouth, New Zealand. The tractor was manufactured by defendant in Great Britain, and it was sold and maintained in New Zealand. On December 29, 1980, plaintiffs, individually and as next of kin and personal representatives of their son, filed an action in the circuit court of Cook County. Their complaint, based on theories of strict liability, express and implied warranties and negligence, alleged that defendant negligently and carelessly designed, manufactured, assembled, supplied, distributed and sold the tractor with a defective braking system. Plaintiffs sought damages for wrongful death, conscious pain and suffering of decedent prior to his death and funeral expenses. Defendant moved to dismiss plaintiffs’ action on the ground of forum non conveniens. Plaintiffs opposed this motion, arguing that New Zealand was not an available alternative forum because, under the New Zealand Accident Compensation Act, plaintiffs’ damages were limited to certain funeral expenses incurred. The trial court agreed and denied the motion to dismiss. We thereafter allowed defendant’s petition for leave to appeal.

The doctrine of forum, non conveniens presupposes the existence of more than one forum in which jurisdiction may be obtained over the parties and the subject matter of a case and in which the controversy may be tried. (Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 364, 456 N.E.2d 98.) The alternative forum must have “power to hear the case” and “grant relief.” (Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 117, 427 N.E.2d 111; Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 5, 273 N.E.2d 353.) The trial court determined that New Zealand was not an available alternative forum because, under the New Zealand Accident Compensation Act (the Act), plaintiffs cannot recover any damages for the wrongful death of their son except certain funeral expenses. We disagree.

Under the Act, plaintiffs cannot receive earnings-related compensation for their son’s death unless they were “totally or partially dependent on the deceased person immediately before the time of the accident ***.” (N.Z. Stat., No. 43, sec. 123(l)(c) (1972).) Since plaintiffs are unable to establish dependency, they are ineligible for such compensation. We note, however, that the Illinois Supreme Court has abolished the presumption of loss of earnings upon the death of a child. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 517, 468 N.E.2d 1228.) Henceforth, in wrongful death actions, damages for loss of a child’s earnings may be recovered only “in the rare case where [it can be proved that] the child earned income that was used to support the family ***.” (102 Ill. 2d 505, 517.) Plaintiffs conceded in the circuit court and in their answer to defendant’s petition for leave to appeal that they cannot prove that they were totally or partially dependent on their deceased son. It would appear, therefore, that relegating plaintiffs to a New Zealand forum will not deprive them of any damages for lost earnings that they would otherwise receive in an Illinois forum applying Illinois law.

Moreover, the trial court apparently overlooked section 121 of the 1972 Act, which provides compensation for pecuniary loss not related to earnings. Section 121(2)(a) states in pertinent part:

“Where a person suffers personal injury by accident in respect of which he has cover under this Act, or where a person dies as a result of personal injuries so suffered, the [Accident Compensation] Commission, having regard to any other compensation payable, may—
(a) Pay to any member of the household of which the injured or deceased person was a member on the date of the accident such compensation as the Commission thinks fit for any quantifiable loss of service proved to have been suffered by the person to whom the payment is made as a result of the injury or death for such period as the Commission thinks fit, not being longer than the period for which that member could reasonably have expected to receive the service.” N.Z. Stat., No. 43, sec. 121(2)(a) (1972).

In paragraph VIII of their first count, plaintiffs alleged that their son was killed on December 29, 1978, while he was “assisting his father *** with his *** agricultural business and was driving the [International Harvester] tractor to a crop spraying job.” In paragraph IX, plaintiffs alleged, inter alia, that they were deprived of their son’s “support and services.” These allegations, if proved, may entitle plaintiffs to compensation under section 121(2)(a), which has been liberally construed by the New Zealand courts. (See, e.g., Accident Compensation Com. v. Kivi (1980), 2 N.Z.L.R. 385.) Although the amount of compensation payable under section 121(2)(a) may not equal the damages plaintiffs could recover in an action brought under the Illinois Wrongful Death Act, that possibility does not render New Zealand an “unavailable” forum. (Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252; Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 368, 456 N.E.2d 98; Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 123, 427 N.E.2d 111.) We conclude, therefore, that the trial court erred in denying defendant’s motion to dismiss plaintiffs’ cause of action on the ground that New Zealand was not an available alternative forum. This conclusion, however, does not necessarily require dismissal of plaintiffs’ action.

The doctrine of forum non conveniens, as we have stated, presupposes the existence of more than one forum in which jurisdiction may be obtained over the parties and the subject matter of a case and in which the controversy may be tried. (Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 364, 456 N.E.2d 98.) In the instant case, the trial court had no need to consider the relative convenience of various forums because of its finding that New Zealand was not an available alternative forum. In light of our holding that this finding was in error, we believe that this case must be remanded to the trial court with directions to determine whether New Zealand or any other available forum (defendant has also suggested Great Britain) is more convenient than Illinois. In making that determination, the court should be guided by the public and private interest factors enunciated in Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843. If, upon balancing those factors, the trial court finds that there is an available forum that is more convenient than Illinois, then the court may allow defendant’s motion to dismiss plaintiffs’ action on such terms and conditions as it deems appropriate. (See Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill. 2d 378, 385, 466 N.E.2d 198; Bailey v. Dolphin International, Inc. (5th Cir. 1983), 697 F.2d 1268, 1280.) If, however, the court finds that Illinois is the most convenient forum, then it may deny defendant’s motion to dismiss. We do not intimate any view as to the merits of defendant’s motion to dismiss.

For the foregoing reasons, the order of the circuit court of Cook County denying defendant’s motion to dismiss plaintiffs’ action on the ground of forum non conveniens is reversed and the cause is remanded with directions.

Reversed and remanded with directions.

SULLIVAN and PINCHAM, JJ., concurs.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEBORAH FAY BOLDEN, Defendant-Appellant.
    Fourth District
    No. 4—84—0432
    Opinion filed May 6, 1985.
    Rehearing denied June 4,1985.

      Daniel D. Yuhas and Judith N. Kirby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

A jury in the circuit court of Sangamon County convicted the defendant of the offense of murder in violation of section 9 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a)). The court sentenced her to a term of 22 years of imprisonment.

Defendant was originally charged by information with three counts of murder and one count of voluntary manslaughter. Prior to trial the State moved to dismiss the manslaughter count and to add two additional counts of murder to the charges. There was no objection by the defendant to the dismissal of the manslaughter charge; she did object to the filing of additional counts of murder. The original murder counts were the customary ones, charging intent, knowledge, and strong probability; the additional counts alleged intent to do great bodily harm and felony murder (aggravated battery). The trial court allowed the dismissal of the manslaughter charge, sustained the objections to the felony murder count, and overruled the objections to the great bodily harm count.

Since the defendant has raised an issue of reasonable doubt together with a related issue of improper jury instructions on manslaughter as an included offense, it will be necessary to enter into a recital of the facts as they were developed at trial.

In broad outline the evidence showed that the defendant Debbie Bolden, the victim Rose Hayes, and two men, Willie Hunter and August Johnson, were together at Hayes’ residence during the early morning hours of January 26, 1984. Inside the house the defendant and the victim quarreled and exchanged words and blows. The defendant left the house and was followed by Hayes. The fight continued outside the house, where the defendant stabbed Hayes, who died within a few minutes of her wounds. Defendant claimed self-defense.

Willie Hunter testified that he drove his white Cadillac to Big John’s Social Club in Springfield in the early morning hours of January 26, 1984. While there he danced with Rose Hayes and offered to drive her to her home. The club closed at approximately 4:30 to 5 a.m. In response to their requests, Hunter also gave the defendant, August Johnson, Alice Bailey, and two others a ride to their homes. Hunter testified that the defendant “was with Augie Johnson that night.” During the ride in the car, the victim and the defendant began to argue and call each other “bitches and *** different names.” However, Hunter thought that they were only “joking.” Hunter eventually dropped off Alice Bailey and the two others. At this point, Hayes invited Hunter, Johnson, and the defendant to her house. When they arrived at Hayes’ house, Hunter, Johnson, and Hayes moved her three children from the living room, where they had been sleeping, into a second-story bedroom. The four adults then listened to music, danced, and consumed alcoholic beverages. Hunter was dancing with Hayes. Later he “went upstairs to use the bathroom.” When he returned he saw Hayes and August Johnson sitting on a couch in the first floor spare bedroom. Hunter sat down with them, and the defendant entered the room. Defendant then slapped Hayes “pretty hard.” Hayes “got mad and jumped up.” Johnson grabbed the defendant and Hunter grabbed Hayes in order to prevent them from fighting.

Hunter stated that he did not know why the women were fighting, since he had been upstairs when the fight started. He recalled that the defendant said, “You slapped me,” and Hayes responded, “I didn’t slap you that hard.” The defendant prepared to leave the house, and Hayes followed her to the front door, where she “lit into” the defendant. The defendant backed out of the door and onto the porch, where Hayes followed her, still fighting. At this point, Hunter testified that Johnson said to him, “Damn, let me get this knife from this bitch.” Hunter and Johnson then started toward the door. When they reached the porch Hayes was staggering back to the porch, and she fell against the porch stairs railing. Hunter caught her as she slumped to the floor of the porch. Hunter stated that he did not see what had happened between the two women and that he had never seen a knife used. He stated that the women had been outside 30 to 40 seconds before he and Johnson followed them. It was also dark at the time.

Hunter stated that when he first went out on the porch the defendant was standing on the sidewalk that led from the porch and that she was “in hysterics.” Hunter then went to his car and pulled it up next to the porch in order to take Hayes to the hospital. When they pulled her into the light, Hunter noticed that she was bleeding from the face. He checked her pulse and found it to be slight. He instructed Johnson to go “next door and have them call an ambulance.”

Hunter did not notice when the defendant had left the scene. He stated that Johnson may have yelled something to her at one time.

Johnson did ask the victim’s neighbors to call an ambulance. Hunter testified that the neighbor came over to the porch for a few minutes. Hayes’ 11-year-old son came out on the porch at this time, too. Hunter told Johnson that the victim was dead, and Johnson said, “We’re all going to catch a murder beef.” At this point Hunter and Johnson left in Hunter’s car. They found the defendant walking down a nearby street. Hunter saw nothing in her hands as she got into the car. He testified that defendant said, “She got what she deserved.”

Frank Hayes, the 11-year-old son, testified that two men and one woman arrived at his house along with his mother at 5:23 a.m. on January 26, 1984. After he and his brother and sister were moved to an upstairs bedroom, he heard an argument. Looking out the bedroom window he observed his mother and a lady with “their fists up” standing on the sidewalk near the front porch. He heard his mother say, “I’m too old to fight” and “Do you want some more?” He later lost sight of the women as they moved toward the front porch. He then heard noises which sounded like jumping or fighting on the porch. He went downstairs to see what was going on and saw his mother lying on the porch. He saw a man standing by a car on the side of the house, and his neighbor, Amy Johnson, later came to the house.

Amy Johnson, a 14-year-old neighbor, was awakened by a barking dog at approximately 6 a.m. on January 26, 1984. She went to the window in the front of her house, where she observed a man holding a lady “against the porch.” This lady was not Rose Hayes. The man then released the woman and she left the house, walking down the street. The man then yelled, “Deborah, bring your funky ass back here.” However, she continued walking. The man then came over to her house and asked her to call an ambulance. She went to the Hayes home, saw the victim lying on the porch, and returned and called an ambulance. When she returned to the Hayes home, the men had left. She put a sheet over the victim.

Wilbur Saylor testified that he found a blood-stained knife on the morning of January 26, 1984, as he walked to his place of employment. The knife was on a sidewalk in the neighborhood where Saylor had heard that the murder, herein, had occurred.

Alice Bailey’s testimony substantially corroborated that of Willie Hunter as to the events which occurred after Big John’s Social Club had closed and before she left Hunter’s car. She stated that she heard Hunter and August Johnson talking about “going to bed” with Hayes. She testified that Hayes then laughed and told Johnson that he looked “like a 16-year-old schoolboy.” The defendant then responded, “Don’t nobody talk to my man like that but me.” Bailey, however, believed that the women were just “kidding around.”

Dr. Grant Johnson, a pathologist at Memorial Medical Center in Springfield, testified that he was called to the victim’s residence at 6:45 a.m. on January 26, 1984. Upon his arrival he observed a body on the front porch, “obviously dead.” After photographing the scene, he transported the body to Memorial Medical Center and performed an autopsy. Upon examining the body, he observed three major defects or wounds to the victim’s nose, abdomen, and right arm. There was also a bruise on the lower right jaw. The cause of death was determined to have been a massive hemorrhage in the abdominal cavity due to a stab wound which had perforated the right iliac artery and the inferior vena cava.

Dr. Johnson described the nose wound as a “deep wound *** which went through the bony structure of the nose and entered the nasal cavities.” The victim also had a “small, slit-like wound” on her right upper arm. The wound to the abdomen, resulting in the severing of a major artery and vein, would have caused death in “probably not more than a minute.” Dr. Johnson felt that the victim could have continued to swing her arms after she had been stabbed in the abdomen, but was unsure as to whether or how far she could have walked after receiving the wound.

Detective Charles Pennell of the Springfield police department testified that he interviewed the defendant on February 2, 1984. She gave three statements to Pennell. In the first statement she stated that an unknown man in a white car dropped her and August Johnson off near her sister’s home after Big John’s Social Club had closed. She stated that she learned of the murder through the newspaper.

In her second statement to Pennell, the defendant stated that she and Johnson left Big John’s in a white car being driven by a man she identified as Willie Hunter. She said that they were also accompanied by Irva Burrows, her niece. She stated that they were dropped off near her sister’s home. Since her sister was not home they stayed at Burrow’s residence. Defendant denied that she had gone to the victim’s house on that night. She stated that she did not own a knife and that she did not have an argument with the victim.

In her third statement she stated that she and Johnson, along with Hayes, Alice Bailey, Irva Burrows, and Irva’s boyfriend, were all given rides home by Willie Hunter after Big John’s closed. After the others were dropped off, Hayes invited Hunter, Johnson, and the defendant to her home. While there, she was slapped by Hayes. She stated that Hayes followed her to the porch and continued to slap and beat her until defendant stabbed her in the stomach. She then left the house and was picked up later by Johnson and Hunter. She stated that she threw the knife out of Hunter’s car.

Detective Dwayne Jones was also present when defendant was interviewed on February 2, 1984. He corroborated Pennell’s testimony and added that the defendant never claimed that she feared for her life and never described any injuries that she might have received from Hayes.

August Johnson then testified on behalf of the defendant. He substantially corroborated the testimony of Willie Hunter and Alice Bailey as to the events that occurred after Big John’s had closed and before they reached the victim’s house. He stated that Hayes and defendant were “calling each other names” and “kidding around” in the car. However, he denied that he had talked about “sleeping with” Hayes, and he denied that Hayes said that he looked like a 16-year-old schoolboy.

Johnson testified that Hayes invited Hunter, the defendant, and him to her house. Once there, they moved her children to an upstairs bedroom. They then continued to drink, dance, and listen to the stereo. After dancing for a time, the defendant and Johnson sat on a couch and the defendant fell asleep. Johnson asked Hunter to drive them home, but Hunter wished to stay there all night. Hayes then began to prepare her first-floor spare bedroom for Johnson and the defendant to sleep in. At this point Hunter went upstairs to use the bathroom. Johnson testified that Hayes went over to the defendant and slapped her twice, saying, “Bitch, get up.” The defendant then “kind of woke up” and Hayes and Johnson went back to the spare bedroom, where they were joined by Hunter. The defendant then entered the bedroom and slapped Hayes, who became angered by how hard she had been slapped. Johnson stated that the defendant said she didn’t feel like fighting and started to walk out the front door. Hayes then broke loose from Hunter’s grasp saying, “I’m going to kill this bitch.” She followed the defendant to the front porch “and jumped on her.” Johnson said he saw them the entire time and that they never left the porch. However, he did state that he left to get his coat at one point. When he looked out of the front door he saw Hayes turn around and noticed blood coming from her face. She was still swinging her arms. He and Hunter then went onto the porch. Hunter grabbed Hayes as she fell. The defendant then left the porch and walked away. Johnson went to a neighbor’s house and asked that an ambulance be called. He and Hunter then left in Hunter’s car, and they picked up the defendant two or three blocks away.

Johnson denied that he had called to the defendant from the front porch as she walked away. He further stated that neither woman left the porch prior to the stabbing. He also denied that he ever knew that the defendant had a knife or that he had stated to Hunter that they should take the knife from her. He stated that he never saw a knife in the defendant’s hand when they picked her up after the stabbing. Finally, he testified that the defendant never said that Hayes got what she deserved.

Johnson admitted that the defendant was his girlfriend and that he had lived with her prior to her arrest. Johnson’s testimony was impeached by prior inconsistent statements that he had made to the police. He stated that he didn’t tell the police the truth because he feared that he would be charged with murder. Johnson was further impeached with two prior forgery convictions and one prior aggravated battery conviction.

The defendant testified in her own behalf. She stated that she remembered being awakened on the couch at Hayes’ house by a hard slap to her face. She heard her say, “Wake up, bitch.” She then slapped Hayes back. As Hayes started to “swing” at her again, Johnson and Hunter broke up the fight. Defendant then started to leave the house, and she heard Hayes say, “I’m going to kill this bitch.” Hayes then ran out the door and grabbed defendant and started “beating” her. Defendant testified that she thought she was trying to kill her. Therefore, she pulled out her knife, opened it up and “stuck” Hayes in the face. Since Hayes was “still swinging” she stabbed her in the stomach too. Hayes then backed away. Defendant stated that she never left the porch before stabbing Hayes. After the stabbing, the defendant stood on the porch as Hunter held Hayes. She then walked away. She was later picked up by Hunter and Johnson, and she threw her knife out of the car. She identified the knife found by Wilbur Saylor as the one with which she had stabbed Hayes.

Defendant was impeached by her prior inconsistent statements to the police. She stated that she had never told the police that she thought Hayes was trying to kill her because they had never asked her. She admitted that she had lied to the police in the first two statements that she had given them. She admitted that even in her third statement she did not tell the police that Hayes had said, “I’m going to kill this bitch.” She stated that she did not tell the police that she had suffered any injuries, as a result of being beaten by Hayes, when she was interviewed on February 2, 1984. Defendant stated that she had owned her knife since the summer before the slaying and that she always carried it with her.

In rebuttal, Detective Pennell testified that he interviewed August Johnson on February 2, 1984. Johnson stated then that he had left Big John’s on the night of January 26, 1984, in a blue Chevrolet at approximately 3 a.m. In a second statement he stated that he left with Willie Hunter in a white Cadillac. However, he denied that they ever went to Hayes’ house. Pennell stated that he had again spoken with Johnson on April 30, 1984. At that time Johnson told Pennell that he had lied earlier to protect the defendant. Pennell stated that Johnson was never a suspect in this slaying. Pennell said that he had read a statement that Johnson had given to defendant’s counsel. When Pennell asked Johnson if that statement was correct, Johnson said that he did want to change the statement to include the fact that Hayes stated, “I’m going to kill the bitch.”

Defendant’s principal issue is that she was not proved guilty of murder beyond a reasonable doubt and that her conviction should be reduced to the offense of voluntary manslaughter, on which the jury was instructed as an included offense, but which it rejected. A reasonably complete treatment of the matter requires an excursus into the history and evolution of the respective offenses.

Prior to the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1983, ch. 38, par. 1 — 1 et seq.), Illinois followed the common law definitions of murder and manslaughter. Murder was defined as: “[T]he unlawful killing of a human being, in the peace of the people, with malice aforethought, either expressed or implied.” (Ill. Rev. Stat. 1959, ch. 38, par. 358.) Manslaughter was defined as: “[T]he unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation whatever.” (Ill. Rev. Stat. 1959, ch. 38, par. 361.) The statute went on to attach conditions in order to make a distinction between voluntary and involuntary manslaughter. In order to make out a case of the former, “[t]he killing must be the result of that sudden, violent impulse of passion supposed to be irresistible.” Ill. Rev. Stat. 1959, ch. 38, par. 362.

The drafters of the Code elected to avoid the “malice” distinction between the offenses. (See Ill. Ann. Stat., ch. 38, par. 9 — 1, Committee Comments, at 17 (Smith-Hurd 1979).) Instead, the drafters used the terms “intends” or “knows,” or “intentionally or knowingly.” Murder is now defined as:

“A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another.” (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a)(1).)

One species of voluntary manslaughter is now defined as:

“A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation ***.” Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2(a).

These definitions have led to some heated academic commentary. (See O’Neill, “Murder Least Foul”: A Proposal to Abolish Voluntary Manslaughter in Illinois, 72 Ill. B.J. 306 (1984); Haddad, Allocation of Burdens in Murder-Voluntary Manslaughter Cases: An Affirmative Defense Approach, 59 Chi.-Kent L. Rev. 23 (1982).) Part of Professor O’Neill’s argument is that by eliminating the term “malice” the drafters redefined criminal homicide in such a way that murder and manslaughter are no longer discrete offenses. Professor Haddad suggests that murder is now an included offense of voluntary manslaughter. We take a somewhat different approach.

Since the term “malice” is of ancient vintage, recourse to older authority is indicated as a proper approach. Under that authority we find that “malice” and “intent” are in law the same. For example:

“ ‘ “Malice,” in its legal sense, differs from the meaning which it bears in common speech. In common acceptation it signifies ill will, hatred, or revenge toward a particular individual. Such a condition of mind would, of course, constitute malice in the eye of the law, but such is not necessarily its legal sense. “Malice,” in its legal sense, denotes that condition of mind which is manifested by the intentionally doing of a wrongful act without just cause or excuse. It means any willful or corrupt intention of the mind.’ ” (Pembrook v. State (1929), 117 Neb. 759, 763, 222 N.W. 956, 957.)

And further:

“The distinction between murder and manslaughter, therefore, is that in the former the element of malice aforethought enters, while it is wanting in the latter. The malice necessary to the crime of murder cannot co-exist with the heat of passion.
‘There can be no such thing in law as a killing with malice, and also upon the furor brevis of passion; and provocation furnishes no extenuation, unless it produces passion. Malice excludes passion. Passion presupposes the absence of malice. In law, they cannot co-exist.’ (State v. Johnson, 23 N.C. (1 Iredell’s Law) 354, S.C. 35 Am. Dec. 742; 2 Bish. Cr. Law, sec. 697.) The act of killing cannot be prompted by both. The heat of passion necessary to reduce the killing to manslaughter must be irresistible, as is sometimes said, and the killing must proceed from it. But the existence of such passion, aroused by adequate provocation, rebuts the idea that the act is the result of malice.” State v. Sloan (1899), 22 Mont. 293, 302, 56 P. 364, 367.

Thus, even though the drafters of the 1961 Code used “intent” rather than “malice,” the end result is essentially the same and the change in language is more cosmetic than real. Murder requires a mental state of intent or knowledge; voluntary manslaughter requires a mental state of passion (“furor brevis” in Sloan). This is not one of the four, mental states set forth in section 4 — 3(a) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 4 — 3(a)). One of these four mental states must be a basic ingredient of each offense under the Code. We therefore conclude that passion does not negate intent or knowledge, as in Sloan, but under the modem Code reduces them to a less culpable degree. Since passion is nowhere else mentioned in the Code in connection with the mental states of the various offenses, we conclude that it is unique to the one species of voluntary manslaughter.

It has been argued that voluntary manslaughter requires proof of more facts than murder (O’Neill, “murder plus extenuating circumstances”; Haddad, “passion-provocation or imperfect justification”) and thus cannot under the statutory definition of included offenses be an included offense of murder. Such has never been held by a reviewing court since the enactment of the Code.

The theory ignores the full text of the statute, which is:

“ ‘Included offense’ means an offense which
(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 38, par. 2 — 9.

As we have just indicated, in our opinion passion reduces intent and knowledge to a less culpable degree and thus will require the adduction of additional facts, but this has a specific statutory fiat. The proof of mental state differs qualitatively from, for example, the proof of the presence of a dangerous weapon to enhance robbery to armed robbery. Admittedly, there appears to be a certain lack of logical symmetry when more is required to prove less, but we would point out that it required the great British mathematician, Lord Bertram Russell, more than 300 pages to prove that one plus one equals two.

In our opinion, voluntary manslaughter of the sudden and intense passion variety is an included offense of murder. However, the inquiry may not end at this point, because the drafters of the Code included another variety of voluntary manslaughter which had not theretofore been found in the statute, namely, what now may be called the unreasonable-belief variety. This is contained in subsection (b) of the Code:

“A person who intentionally and knowingly kills an individual commits voluntary manslaughter if at the time of the killing be believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2(b).

We first note that the supreme court has recently held specifically that this variety of manslaughter is an included offense of murder. (People v. Hoffer (1985), 106 Ill. 2d 186.) The rationale of that decision appears to be that while the statute specifically calls for a mental state of intent and knowledge, it is mitigated by an unreasonable belief in the necessity of self-defense. It is then parallel to the intense-passion species of voluntary manslaughter, where the mental state of intent and knowledge is mitigated by passion.

It will be noted that the unreasonable-belief species of voluntary manslaughter bears a close relationship to the affirmative defense of self-defense. (People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378; People v. O’Neal (1984), 104 Ill. 2d 399, 472 N.E.2d 441.) These cases suggest that the jury should be instructed on both self-defense and voluntary manslaughter. However, that occasion would arise only when the defendant has raised the affirmative defense of self-defense. It is equally possible that a defendant might waive any question of reasonable belief in self-defense leading to exoneration, and instead claim only unreasonable belief leading to mitigation and a voluntary manslaughter conviction.

Thus, no more operative facts need be examined or proved in an unreasonable-belief voluntary manslaughter case than in a murder case with self-defense. As with the intense-passion species of voluntary manslaughter, the principal inquiry is into the defendant’s state of mind.

It remains to be decided how the question should be handled at trial, especially with reference to jury instructions and allocation of burden of proof. We agree with Professor Haddad that the matter is best disposed of as a partial affirmative defense. Self-defense is a complete affirmative defense under the Code; either intense-passion or unreasonable-belief voluntary manslaughter should be treated as a partial affirmative defense.

In People v. March (1981), 95 Ill. App. 3d 46, 419 N.E.2d 1212, it was intimated that no case had been found in which the State was required to negate the elements of voluntary manslaughter in a murder case.

We hold today that when the defendant in a murder trial introduces some evidence of intense passion or of unreasonable belief, it is to be treated as a partial affirmative defense and the burden is on the State to negate the elements which would lead to a verdict of voluntary manslaughter. To the extent that March appears inapposite, it will no longer be followed. We suggest that the existing jury instructions are not adequate and that the trial courts and counsel should instruct juries in conformity with the views expressed in Hoffer. We believe that Professor O’Neill’s urging of misnomer in this area has merit, but it must be addressed to the legislature.

We turn at last to the instant case and find that although the State was not required to do so at the time of this trial, it did in fact meet the burden of negating the elements of voluntary manslaughter. It •will be remembered that the defendant here pleaded self-defense and the jury was instructed on unreasonable-belief voluntary manslaughter as an included offense.

The evidence at trial showed that, while the victim was the aggressor at one point, defendant had also struck the victim. Defendant had no reason to believe that the victim was armed and, indeed, she has never contended as much. Furthermore, Frank Hayes testified that he observed the two women standing apart on the sidewalk in front of the house prior to the stabbing. Willie Hunter testified that he observed the victim staggering up the porch steps suffering from stab wounds. This testimony suggests that the defendant could have left at this point, but instead chose to stab the victim. Defendant’s testimony that she pulled her knife out of her pants’ pocket and opened it during the course of a beating seems incredible. It is also unbelievable that the victim would have constituted a threat to the defendant once the defendant had inflicted the deep and certainly painful wound to the victim’s nose. Moreover, when she inflicted the fatal wound, the defendant admittedly knew that she had just stabbed an unarmed woman in the face.

More importantly, the defendant never told the police that she feared for her life or that the victim had threatened to kill her. Nor did she claim that she had been injured by the alleged beating that she had received when she spoke to the police a few days later. Indeed the police observed no injuries at that time. Presumably, these would have been important facts to someone trying to justify a murder to the police. While August Johnson testified that he, too, heard the victim threaten defendant’s life, his testimony is also highly suspect. He, too, did not mention until the trial that the victim had threatened to kill the defendant. Moreover, Detective Pennell testified that Johnson stated that he had previously lied to the police to protect the defendant, his girlfriend. Furthermore, the testimony of both Johnson and the defendant conflicted substantially with the prosecution witnesses’ testimony.

Under these circumstances, the jury exercised its option not to accept the defendant’s self-serving testimony that she feared for her life when she stabbed the victim in the abdomen. Instead, the jury properly considered the improbability of defendant’s testimony, the circumstances of the offense, and the testimony of other witnesses in concluding that she was guilty of murder.

Defendant argues that the jury was confused. In the course of deliberations it sent a note to the trial judge inquiring, “If the jury finds the defendant guilty of murder, must they also find the defendant guilty of voluntary manslaughter and then sign both forms stating a guilty verdict?” The court responded that in the event the jury found the defendant guilty of murder, it might, but need not, return a verdict on voluntary manslaughter. Under the rule of Hoffer the court’s statement was erroneous, since the mental states for murder and voluntary manslaughter are mutually exclusive. However, the error was harmless, since the jury obviously considered both and returned only a single verdict, unlike the Hoffer jury.

The remaining issues may be dealt with somewhat more summarily. Defendant claims that she was denied the effective assistance of counsel since her counsel also represented August Johnson, a defense witness, in an unrelated matter. Counsel so advised the trial court and stated that he did not believe that any conflict existed. The trial court acknowledged that Johnson might be impeached because of the representation, but considered such impeachment to have “very marginal relevance.”

Defendant does not claim per se conflict of interest; therefore, she is required to show actual conflict and to show prejudice. She points to nothing to sustain this burden but only speculates that the possibility that Johnson might have been impeached served to prejudice her defense. We will not disturb a conviction on the basis of speculative or conjectural conflicts of interest which are envisioned for the first time on appeal. People v. Hancock (1978), 65 Ill. App. 3d 694, 382 N.E.2d 677.

Finally, defendant contends that the prosecutor used improper closing argument. We first note that no objections were lodged to most of the remarks now complained of, nor were they included in defendant’s post-trial motion. The objection therefore has been waived in all such areas. People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091; People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.

Defendant did object to one remark and claims now that the prosecutor suborned perjury:

“Ladies and gentlemen, I did not call Augie Johnson to the stand to testify to you because I would not be the one to put that type of testimony before this Jury.”

Defendant now argues that the implication was that defense counsel called Johnson knowing that he would lie.

We find the inference far-fetched. Prosecutors are not well known for presenting to juries witnesses obviously favorable to the defense. Furthermore, the remark was in response to a part of defense counsel’s closing argument, wherein he said:

“Now, August Johnson took the stand as an eyewitness. The State didn’t call him. I had to call him.”

A defendant cannot complain about a remark which was invited by defense counsel. People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180; People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.

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

Affirmed.

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


author: JUSTICE HARTMAN

text:
    BRIAN J. FEDT et al., Plaintiffs-Appellees, v. OAK LAWN LODGE, INC., d/b/a Holiday Inn, Defendant and Third-Party Plaintiff-Appellant (AAA Services, Inc., Third-Party Defendant-Appellee).
    First District (2nd Division)
    No. 84—664
    Opinion filed April 23, 1985.

      Ruff, Weidenaar & Reidy, Ltd., of Chicago (John J. Reidy and Richard A. Jacobson, of counsel), for appellant.
    Arnold & Kadjan, of Chicago (Daniel N. Kadjan and Gregory R. Sun, of counsel), for appellee Brian J. Fedt.
    John G. Phillips, Ltd., Gerald M. Sachs & Associates, Ltd., and John Marszalek, all of Chicago, for appellee Ethel A. Clay.
    James Kirk Perrin and Marsha Kay Ross, both of Haskell & Perrin, of Chicago, for appellee AAA Services, Inc.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant Oak Lawn Lodge, Inc. (Oak Lawn Lodge) appeals from a jury verdict finding it liable under the Structural Work Act (Act) (Ill. Rev. Stat. 1983, ch. 48, pars. 60 through 69) for plaintiff Brian J. Fedt’s injuries and plaintiff’s decedent Marc D. Clay’s death, resulting from a scaffold collapse on Oak Lawn Lodge’s property. Oak Lawn Lodge sought third-party indemnification from plaintiffs’ employer, AAA Services, Inc. (AAA), in which the jury found in favor of AAA. Oak Lawn Lodge appeals from the judgment entered on these verdicts, presenting as issues whether: (1) Oak Lawn Lodge’s motions for a directed verdict and for judgment notwithstanding the verdict were erroneously denied; (2) the doctrine of comparative negligence applies to this case; (3) the third-party action was erroneously severed from the principal action at the conclusion of plaintiffs’ case in chief; (4) certain rulings deprived Oak Lawn Lodge of a fair and impartial trial; and (5) the damages awarded were excessive.

On June 13, 1977, while Fedt, Clay and co-worker Jeffrey Carpenter were washing windows at the Oak Lawn Lodge, their scaffold collapsed and the men fell to the ground. Fedt and Carpenter were seriously injured and Clay was killed. Plaintiffs’ separate actions against Oak Lawn Lodge were ultimately consolidated, and Oak Lawn Lodge’s third-party action against AAA was consolidated with plaintiffs’ actions for trial.

Before the jury began its deliberations, Carpenter and Oak Lawn Lodge settled his claim for $350,000. The jury returned verdicts against Oak Lawn Lodge and in favor of Clay for $1 million, and in favor of Fedt for $1,032,000. The jury answered yes to a special interrogatory which inquired, “Was the Oak Lawn Lodge *** guilty of major fault which was a proximate cause of plaintiffs’ injuries and damages?” The jury found that Oak Lawn Lodge was not entitled to reimbursement from AAA.

After the court denied Oak Lawn Lodge’s timely post-trial motions, this appeal followed.

I

Oak Lawn Lodge contends that the circuit court erred by denying its motions for a directed verdict and for judgment notwithstanding the verdict, arguing that under the “having charge of” and “wilful” language of section 9 of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 69), the evidence failed to support the verdict. Plaintiffs correctly observe that Oak Lawn Lodge waived its objections to any alleged error by failing to specify in its post-trial motion the reasons why judgment n.o.v. should be granted, citing section 2 — 1202(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1202(b)). Such a motion must contain succinct statements of the factual basis for the requested relief; general conclusions are unacceptable. (Wilson v. Clark (1981), 84 Ill. 2d 186, 189-90, 417 N.E.2d 1322, cert, denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140.) Oak Lawn Lodge’s general allegations that “the verdict of the jury is against the law” and “against the manifest weight of the evidence” were insufficient to preserve its objections to these errors. Moreover, Oak Lawn Lodge’s contention, that a wilful violation had not been established, in its memorandum in support of its post-trial motion, fails to preserve this issue. (Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 969, 424 N.E.2d 1279.) Assuming arguendo that it had not waived its objections, Oak Lawn Lodge’s arguments must be rejected nevertheless.

The term “having charge of” is one of common usage and understanding, and is given its conventional meaning in the context of the Act. (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 323, 211 N.E.2d 247; Lyle v. Sester (1981), 103 Ill. App. 3d 208, 217, 430 N.E.2d 699.) It is a generic term of broad import, and may include, but is not limited to, supervision and control. (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 321.) Whether a defendant had “charge of” the work at issue is generally a question of fact (McI(nerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 101, 338 N.E.2d 868), but where the evidence is insufficient to raise a fact question, the issue may be decided as a matter of law (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 486, 394 N.E.2d 403). Resolution of the question involves an assessment of the totality of the circumstances (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 490), under factors identified in Chance v. City of Collinsville (1983), 112 Ill. App. 3d 6, 11, 445 N.E.2d 39, and Lyle v. Sester (1981), 103 Ill. App. 3d 208, 218. Those factors, when considered in context with the instant case, demonstrate that sufficient evidence was presented here to raise a factual question for the jury’s resolution.

Plaintiff Fedt testified that the window washers reported to Howard Sawyer, Oak Lawn Lodge’s maintenance supervisor, who told them where they were to begin their work. He later also told them to clean the white columns of the building and change exterior light bulbs. He instructed them further not to tie their safety lines to anything on the roof, and later repeated his admonition, and he suggested that they elevate the scaffold outriggers by means of wood beams which had been lying on the roof and were not provided by the window washers.

Sawyer testified that it was his duty to check and approve the window washers’ work, insure that the property was not damaged and assure the safety of the hotel’s patrons. He never discussed with his superiors his authority with regard to worker safety, but he “assumed” that, because he was in charge of building maintenance, he had authority to stop the work if it was unsafe. He never told the workers they could not tie their safety lines to the roof; however, this statement was contradicted by both Fedt’s testimony and other evidence suggesting Sawyer had made earlier inconsistent statements.

Finally, the general manager of Oak Lawn Lodge, Joseph English, testified that Sawyer had to approve the window washers’ work before they would be paid and to see that their work was done properly and to safeguard the premises. Sawyer had authority to engage extra work if he deemed it necessary and to add orally to the contract. English testified that Sawyer was not in charge of the washers’ safety procedures and did not have the authority to stop them if their work was being performed in an unsafe manner; nevertheless, he conceded that his deposition testimony was to the contrary.

The foregoing evidence, when viewed in its aspect most favorable to plaintiffs, does not so overwhelmingly favor Oak Lawn Lodge that no contrary verdict based on the evidence could ever stand; therefore, the circuit court did not err by submitting to the jury the question of whether Oak Lawn Lodge was in “charge of” the work. See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504; Mclnerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 101-02.

Oak Lawn Lodge maintains that Sawyer’s actions were no more than those of an owner assuring contract compliance. (See, e.g., Melvin v. Thompson (1963), 39 Ill. App. 2d 413, 188 N.E.2d 497; Derrico v. Clark Equipment Co. (1980), 91 Ill. App. 3d 4, 413 N.E.2d 1345.) To the contrary, by instructing the window washers not to tie off to the roof and to use the wood beams, combined with his authority to issue change orders and to stop unsafe work, the jury could have believed that Sawyer’s position with respect to plaintiffs transcended that of an owner simply monitoring contract compliance. See Ewert v. Wieboldt Stores, Inc. (1980), 84 Ill. App. 3d 1008, 1016, 405 N.E.2d 1283.

As to whether Oak Lawn Lodge “wilfully” violated the Act, such a violation occurs when defendant knows that a dangerous condition exists or, by the exercise of reasonable caution, could have discovered the condition. (Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 453, 473 N.E.2d 946; Ewert v. Wieboldt Stores, Inc. (1984), 84 Ill. App. 3d 1008, 1015.) In the case at bar, the jury had the right to consider evidence showing that Sawyer instructed the window washers not to tie their safety lines to anything on the roof; and when he later saw that they had not complied, he reiterated his instruction, which the washers followed. Although Oak Lawn Lodge notes that Sawyer was ignorant of window washing practices and procedures, his instructions, if believed, nonetheless constitute wilful violations of the Act, in that Sawyer, had he exercised reasonable caution, would have realized the danger in which his instructions placed the window washers. Oak Lawn Lodge’s wilful violation of the Act is further buttressed by the testimony of English, its general manager, that the roof had nothing permanent to which the workers could anchor their scaffolding, and that Sawyer had the duty to protect certain pipes on the roof by telling them not to tie off on them.

Sawyer’s instruction to the window washers to use the wood beams also could have been deemed by the jury as a wilful violation of the Act. When he observed the beams on the roof shortly after the accident, Sawyer thought they had been placed, unsafely, too far back from the edge of the roof, but he had not so advised the window washers. In the exercise of reasonable caution, he would have so warned them. Based upon this evidence, the circuit court did not err by denying Oak Lawn Lodge’s motions for a directed verdict and for judgment n.o.v.

II

Oak Lawn Lodge’s assertion, that the circuit court erred by refusing to permit the jury to consider plaintiffs’ comparative fault, fails in light of Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 456-61, which held that comparative negligence is inapplicable to actions brought under the Act.

Ill

Oak Lawn Lodge next contends that the circuit court improperly severed the third-party action from the principal action after plaintiffs had presented their case in chief. A motion to sever (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1006) is addressed to the sound discretion of the trial court, and its decision will not be disturbed absent an abuse thereof. Woodward v. Mettille (1980), 81 Ill. App. 3d 168, 182, 400 N.E.2d 934; Johnson v. Johnson (1955), 5 Ill. App. 2d 453, 470, 125 N.E.2d 843.

After plaintiffs rested their cases, the circuit court granted their motions to sever the principal action from the third-party action. The parties were ordered to proceed with the principal action to its conclusion, and any testimony already developed by plaintiffs could be used by Oak Lawn Lodge in its third-party action. AAA’s counsel was permitted to participate in the remainder of the principal action, but the court would closely control cross-examination of any witnesses. Oak Lawn Lodge then presented two witnesses in its defense of the principal action. AAA’s attorney asked no questions of one witness, and only a few of the other. The court then reconsidered its earlier ruling, and ordered that trial of both actions would proceed at one time, with one set of arguments and instructions. The court noted that Oak Lawn Lodge had not been “irreparably damaged” by the severance, since one of the two witnesses had already been instructed to return for further examination, and the other would be made available.

Oak Lawn Lodge argues that it was prejudiced by the severance because it was unable to fulfill the promise of its opening statement to the effect that it would show that AAA, not Oak Lawn Lodge, was negligent; as severance was undisclosed to the jury, Oak Lawn Lodge’s recalling of the two witnesses in order to show AAA’s negligence may have appeared to the jury as “grabbing at straws.” Oak Lawn Lodge also claims disruption of its trial strategy. These contentions must be rejected.

The jury was not informed of the severance; however, it was aware of plaintiffs’ resting their cases, and was expressly advised by the court when Oak Lawn Lodge proceeded to its third-party action. Supreme Court Rule 233 provides that, “[i]n consolidated cases, third-party proceedings, and all other cases not otherwise provided for, the court shall designate the order” in which the parties proceed. (87 Ill. 2d R. 233.) The order of presentation of evidence rests within the trial court’s discretion. Abuse of discretion is likely to arise only if a party is denied an opportunity to impeach witnesses, to support the credibility of impeached witnesses, or to respond to new points raised by the opponent. (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 611.1, at 371 (4th ed. 1984). See also City of Sandwich v. Dolan (1892), 141 Ill. 430, 441, 31 N.E. 416; Ross v. Danter Associates, Inc. (1968), 102 Ill. App. 2d 354, 367-68, 242 N.E.2d 330.) Oak Lawn Lodge does not allege that the severance prevented it from impeaching or rehabilitating witnesses’ testimony or from responding to any of its opponents’ points. Uninformed of the severance or reconsolidation, the jury witnessed the following order of presentation: plaintiffs’ case; Oak Lawn Lodge’s defense; plaintiff’s rebuttal; Oak Lawn Lodge’s third-party case; AAA’s defense; Oak Lawn Lodge’s rebuttal. Any error in the brief severance was harmless.

IV

Oak Lawn Lodge urges that certain prejudicial errors deprived it of a fair trial. The first error involves the admission into evidence of a nine-year-old photograph of decedent Clay with two of his sisters. Plaintiffs respond that Oak Lawn Lodge waived its objection to this alleged error by failing to specify the photograph in its post-trial motion. The photograph, however, was cited in the motion’s prayer for a new trial on damages.

A photograph is admissible if it has a reasonable tendency to prove a material fact in issue; it may be excluded if it is irrelevant or immaterial, or if its prejudicial nature clearly outweighs its probative value. (Rusher v. Smith (1979), 70 Ill. App. 3d 889, 894, 388 N.E.2d 906; Lindsay v. Appleby (1980), 91 Ill. App. 3d 705, 710, 414 N.E.2d 885.) In a wrongful death case, a decedent’s photograph is admissible to show his state of well-being prior to his death. (Ross v. Pfeifer (1976), 39 Ill. App. 3d 789, 795, 350 N.E.2d 797.) Oak Lawn Lodge insists that the subject photograph was too remote in time to render it admissible for this purpose; the inclusion of the sisters in the picture, moreover, rendered it prejudicial. The jury heard testimony regarding decedent’s family, including the names and ages of his sisters, and decedent’s sister testified at trial. Admission of the picture, although perhaps improper, was not prejudicial and was therefore harmless.

Oak Lawn Lodge next urges that it was prejudiced by the admission into evidence of a “Bosworth splint,” an item of medical hardware. Dr. Albert B. Bosch identified the Bosworth splint and said that it was identical to one depicted in an X ray of Fedt’s pelvis, shown earlier to the jury. This witness also described the procedure, a vulgas osteotomy, in which the splint was used. Such evidence was properly admitted. Smith v. Ohio Oil Co. (1956), 10 Ill. App. 2d 67, 75-77, 134N.E.2d 526.

Certain slides, allegedly shown to plaintiffs as part of their training by AAA, are claimed to have been received in evidence without proper foundation. AAA initially argues that the admission of the slides goes only to the conduct of AAA, an issue rendered moot by the jury’s finding in the special interrogatory that Oak Lawn Lodge was guilty of major fault. AAA’s contention is without merit. Where a judgment is challenged because of trial error, as here, the answer to a special interrogatory is not controlling. (Blakely v. Johnson (1976), 37 Ill. App. 3d 112, 116, 345 N.E.2d 814.) Notwithstanding the foregoing, an adequate foundation for the slides was presented. Although Fedt and Carpenter denied being shown the slides presented in court, they conceded that they had, in fact, viewed slides as part of their AAA training. Robert Hubeny, AAA’s president, testified that the slides shown to the jury, dealing with the rigging and handling of a swing-stage scaffold, were shown to the members of the high-rise division; plaintiffs and plaintiff’s decedent were employed in the highrise division. Thus, as some evidence was presented that plaintiffs had seen the slides, their admission was proper. Plaintiffs’ denials that they had seen the particular slides presented in court went to the weight, not the admissibility, of this evidence.

Oak Lawn Lodge identifies prejudice in certain closing remarks made by plaintiffs’ attorneys. One was a comment by Fedt’s counsel allegedly referring to liability insurance. To be prejudicial, however, such reference must indicate that defendant is insured. (Twait v. Olson (1982), 104 Ill. App. 3d 191, 196, 432 N.E.2d 1244.) The challenged remark here, viewed in context, refers to mortality tables which counsel apparently believed were developed by insurance companies, rather than by the United States Department of Health and Human Services, as shown by the evidence. The oblique remark made does not warrant reversal.

Oak Lawn Lodge also contends that Clay’s attorney invited the jury to stand in plaintiff’s shoes by arguing that “when you’re placing a value on Marc Clay’s life during the deliberations, you are telling your own son how much you think of him,” which is improper. (Brant v. Wabash R.R. Co. (1961), 31 Ill. App. 2d 337, 340, 176 N.E.2d 13.) Standing alone, such a remark is not sufficiently prejudicial to merit reversal. (See Fortner v. McDermott (1971), 1 Ill. App. 3d 358, 366-67, 272 N.E.2d 503.) The circuit court, in riding on Oak Lawn Lodge’s motion for a mistrial following closing arguments, found both this remark and the earlier reference to insurance improper; nevertheless, it correctly observed that they were not “of such great importance as to constitute prejudice.” The court, in the best position to evaluate the prejudicial effect of improper remarks, did not abuse its discretion in so ruling. Hooper v. Mizyad (1981), 98 Ill. App. 3d 768, 774-75, 424 N.E.2d 851.

Oak Lawn Lodge contends further that it was denied a fair trial by reason of plaintiffs’ counsel’s repeated objections during the third-party action to the effect that evidence presented was not admissible as to the principal action; such objection, it asserts, disrupted the presentation of Oak Lawn Lodge’s third-party case and may have led the jury to disregard the challenged evidence entirely. It is preferable to simply and concisely advise the jury to consider evidence for a limited purpose. (See Sherman v. City of Springfield (1966), 77 Ill. App. 2d 195, 217, 222 N.E.2d 62.) The court, in having sustained plaintiffs’ objections, followed by its admonition that such evidence was to be considered by the jury only for purposes of the third-party action, did not prejudice Oak Lawn Lodge so that it did not get a fair trial.

Oak Lawn Lodge also maintains that counsel for Carpenter prejudicially assured the jury in his opening statement that he would produce evidence he had no intention of producing, specifically, that scaffolds had been used on the subject building enough times in the past to put Oak Lawn Lodge on notice of its lack of an anchoring device on the roof. Oak Lawn Lodge argues that no evidence was subsequently presented to indicate that the accident occurred because the building lacked anchoring devices or that the prior use of scaffolds without anchoring devices was so dangerous as to put Oak Lawn Lodge on notice that such devices were necessary. To the contrary, the evidence here did show that scaffolds had been used on the building many times previously, and that building management knew that anchoring devices were lacking. Whether Oak Lawn Lodge was also on notice of the danger inherent in the lack of such devices was not presented, but plaintiffs insist that this would have been shown through their expert witness, consulting engineer and architect, Dr. Louis Jacobs, whose testimony was barred upon Oak Lawn Lodge’s objection having been sustained. The voir dire examination of this witness reveals that he would have testified that, in his opinion, the accident occurred because the window washers were not provided with a safe, suitable, and proper scaffold, in that they were not permitted to tie in their safety lines and put on safety belts, or to tie back the outriggers to a permanent part of the structure, as required by industry standards. Oak Lawn Lodge did not object to Dr. Jacobs’ testimony until just before he was to testify. As counsel’s opening remarks appear to have been made in good faith, with reasonable ground to believe that the evidence was admissible, the remarks were not improper. Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill. 2d 193, 196-97, 246 N.E.2d 269; Schwedler v. Galvan (1977), 46 Ill. App. 3d 630, 640, 360 N.E.2d 1324.

Oak Lawn Lodge lastly argues that the cumulative effect of the foregoing trial errors deprived it of a fair trial, even though individually they may not have been prejudicial enough to require reversal. (See Clarquist v. Kirschenman (1977), 55 Ill. App. 3d 76, 81, 370 N.E.2d 840; Andes v. Lauer (1980), 80 Ill. App. 3d 411, 416, 399 N.E.2d 990.) These errors, occurring during the course of a two-week trial, were not so numerous or flagrant as to have substantially prejudiced Oak Lawn Lodge. No litigant is assured a perfect trial, but only a fair one. See Andes v. Lauer (1980), 80 Ill. App. 3d 411, 399 N.E.2d 990.

V

Oak Lawn Lodge’s final assignment of error is that the damages verdicts were excessive, and that, accordingly, the circuit court erred by denying its motion for a new trial as to damages or for remittitur.

As to plaintiff Fedt, the evidence fully supported the jury award of $1,032,000 in damages as follows: $400,000 for disability and disfigurement; $262,800 for past pain and suffering; $279,000 for future pain and suffering; $29,000 for past medical care; $13,200 for future medical care; and $48,000 for lost earnings. There was considerable evidence adduced regarding: the limitations of Fedt’s physical activities resulting from his injuries; the series of operations performed on his arm, nose and hip; the dentistry and oral surgery required; his lengthy convalescence; and the necessity of a future total hip replacement to alleviate the degenerative arthritis caused by the injury. The award for pain and suffering is left to the jury’s conscience and judgment (Caley v. Manicke (1962), 24 Ill. 2d 390, 392, 182 N.E.2d 206) and was not so clearly excessive as to require reversal (see Parson v. City of Chicago (1983), 117 Ill. App. 3d 383, 453 N.E.2d 770).

The jury’s award of $1 million for the death of Marc Clay must also be sustained. There is no fixed monetary standard for evaluating a human life, and the award of damages greatly depends on the sound judgment of the jury. (See Tonarelli v. Gibbons (1984), 121 Ill. App. 3d 1042, 1050, 460 N.E.2d 464.) Here, the jury was able to consider the testimony of Clay’s mother, father, and sister as to decedent’s work habits, employment history, education, and ambitions, and his relationship with and contributions to his family. The verdict had ample support in the record and was not the result of passion or prejudice.

Oak Lawn Lodge contends that, because the verdicts exceeded the amounts requested in final argument by plaintiffs’ counsel, they were clearly excessive. A jury’s award of a verdict higher than that requested by counsel does not, by itself, indicate that the jury acted out of passion or prejudice. (E.g., Bail v. Cunningham, Broth ers, Inc. (7th Cir. 1971), 452 F.2d 182, 187. See also Pearson v. Ford Motor Co. (1975), 32 Ill. App. 3d 188, 336 N.E.2d 528.) Here, counsel for both plaintiffs emphasized in argument that the amounts mentioned were only suggestions, and invited the jury to award more. Fedt’s counsel said the figure suggested, $632,000, was “reasonable,” but added that “I’m not saying to you here that that is what you should pay.” Counsel for Clay suggested $600,000 to compensate for the family’s loss, noting that “[i]f you feel that I’ve underestimated the loss *** then you tell me so with your verdict.” The circuit court did not err by permitting the verdicts to stand.

For the foregoing reasons, there are no bases upon which to disturb the jury’s verdicts or the circuit court’s judgment, and they must be affirmed.

Affirmed.

STAMOS, P.J., and PERLIN, J., concur.