author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GITSON CATES, Defendant-Appellant.
    First District (5th Division)
    No. 80—3120
    Opinion filed December 17, 1982.

      Steven Clark and Kenneth Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David L. King, and James F. Sullivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Following a bench trial, defendant Gitson Cates was convicted of involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9—3) and was sentenced to three year’s imprisonment. On appeal, he contends that: (1) the trial court’s denial of his motion for a continuance deprived him of his constitutional right to be defended by counsel of his own choice; and (2) the evidence was insufficient to establish recklessness.

The record shows that defendant was arraigned on August 15, 1978. On that date, attorney Howard T. Savage filed his appearance on behalf of defendant. On August 25, 1978, the case was continued by agreement to September 21, 1978, and then, on defendant’s motion to October 16, 1978. Then, from that date until August 14, 1980, the case was continued 18 times, each time by agreement. Thereafter, continuances were entered until September 15, 1980, on defendant’s motion, and until September 22, 1980, on order of the trial court. On the latter date, a hearing on pretrial motions commenced, lasting until September 24, 1980. The case was then continued to September 25, 1980, for jury selection, but due to an insufficient number of available veniremen on that date, the case was held on call and continued until September 29, 1980.

On that date the People answered ready for trial. James Bell, an attorney who had assisted Mr. Savage and had argued a pretrial motion to suppress, informed the trial court that Mr. Savage could not be present that day. Mr. Bell stated that he had been informed by Mr. Savage’s wife that Mr. Savage was to undergo oral surgery that day at 2 p.m. On this basis the trial court granted defendant a continuance until the following afternoon at 2 p.m., requesting that Mr. Bell present an affidavit relating to the continuance on the following morning.

On September 30, 1980, Mr. Bell informed the trial court that Mr. Savage was still unavailable due to illness and that defendant did not want to go to trial without the assistance of Mr. Savage. In response to the trial court’s questioning, Mr. Bell stated that he had been involved in the case for a month and a half, that he shared office space with Mr. Savage, and that they work together on a case-by-case basis in a loosely defined association as independent practitioners. Mr. Bell stated that he had been admitted to the Illinois Bar since 1978, and the Tennessee Bar since 1976, having practiced in Tennessee for three and a half to four years. In his opinion Mr. Savage would be able to try the case “within a week or so.” When asked by the court if he had brought the requested affidavit, Mr. Bell responded that he had not, since he “simply forgot about it.”

The trial court denied the defendant’s motion for a continuance stating as grounds the following:

“THE COURT: Now, for the record [since August 15, 1978] *** there’s been a series of continuances, twenty-one up until the point in time where I had put it on call for priority and the 22nd time it was put on for 9-22, top priority. [Mr. Bell] was advised of that, Mr. Savage was advised of that. We cleaned the calendar for the entire week so that this case could be heard. We proceeded last week to hear the motion to suppress, *** [t]hen *** we ran into a problem on Thursday with a jury. Friday Mr. Savage indicated he had to go to a Pattern Jury Instruction Conference. With deference we just gave him Thursday and Friday both off putting the case over until Monday.
Yesterday [Mr. Bell] indicated again clearing this *** second entire week for this case. And I might note timing the motion to suppress [Mr. Bell] *** ably represented [defendant] *** and [defendant] made no objections to that whatsoever and my major concern in this matter is competency of counsel.
I have nothing to indicate that there is any less competency by this attorney than any other attorney that would try this case. We have cleared the deck again this week. Yesterday [Mr. Bell] informed me of Mr. Savage’s *** oral surgery ***. Therefore, we put the case over one more day, sent back the jury *** in due deference to Mr. Savage so that he could be here *** with Mr. Bell.
*** Mr. Bell is a competent attorney licensed to practice in this case with a background of experience. I see no reason to postpone it any further and I’d like to begin the selection of the jury at 2:30.”

After the court’s denial of the continuance, Mr. Bell stated that it was his best judgment to proceed with a bench trial. The court then granted a recess to allow Mr. Bell to discuss the matter with defendant and also with Mr. Savage. Following the recess, Mr. Bell announced that he and defendant had spoken by telephone to Mr. Savage and that defendant would waive his right to a jury trial. Then the following colloquy occurred between the trial court and defendant:

“THE COURT: What are your thoughts in relationship to this? Is this satisfactory to you that we go ahead with the bench and Mr. Bell represent you in this case?
THE DEFENDANT: Yes.
THE COURT: Or is this a feeling on your part yet because you paid your compensation to Mr. Savage that Mr. Savage should represent you whether it be bench or jury trial?
THE DEFENDANT: I talked to Mr. Savage and he and Mr. Bell and I decided that we’d go with a bench.
THE COURT: That is perfectly agreeable to you, there is no pressure or coercion on you to do so, you are doing it for your own free will and volition? It is your life we are talking about and your case. We want to make sure this is your desire.
THE DEFENDANT: Yes.
THE COURT: It is?
THE DEFENDANT: Yes.”

Mr. Bell then filed his appearance and the case was continued until October 1, 1980. On that date Mr. Bell informed the court that the requested affidavit had not yet been typed, and the case proceeded to trial.

The State presented testimony that on July 14, 1978, at approximately 7 p.m., defendant and his wife, Linda Cates, were standing outside their residence located at 3938 South Park Avenue. Also present was Linda’s sister, Rene Williams, as well as Angela Moore and Gloria Lewis. Williams asked Linda where she and her husband were going. Linda replied that she didn’t know where defendant was going, but that she was going with Williams. Defendant then walked over to Linda and told her she wasn’t going anywhere. He grabbed her arms and pulled her away. He then pushed her six to seven times. When Linda attempted to dodge him, defendant put his arm around her waist, turned her around, and pushed her again. Defendant said to Linda, “Let’s go upstairs.” When Linda attempted to go across the street in the direction of her mother’s house, defendant grabbed her by the arm, turned her around, and pushed her up the walkway towards their apartment building.

Defendant testified that after they entered the apartment he sat on the arm of a chair while Linda removed her jewelry. They were both in the living room. Linda walked toward him and he again grabbed her by the arm. She pulled free and started swinging wildly, hitting defendant on the face and chest. Defendant then came up from the chair swinging with both hands. He testified that he began hitting her somewhere below her breasts. On cross-examination he stated he didn’t know where he hit her. Although Linda’s punches were hurting him, he suffered no physical injury, received no cuts or bruises, and the blows did not knock him off the chair. At the time he was not afraid for his life.

Defendant further testified that he arose from the chair. Then, using both hands, and from a distance of about eight inches, he pushed Linda away. She then went backward across the room, her thighs hitting the top edge of a record player located a distance of 12 to 14 feet from where she had stood. According to defendant, as Linda attempted to brace herself on the record player, her hands slipped and she fell, hitting her head on the wall. Defendant could not recall if she then hit her head on the floor. Defendant said that he did not intend to hurt his wife, that he did not strike her in the face, that he was not angry with her, and that he did not think she would fall when he pushed her or that she would suffer any injury.

After some time, paramedics arrived at the scene. Paramedic Cortez Trotter testified that when he entered the apartment he saw Linda slumped on the couch. Her eyes were closed, swollen and bruised, as were her cheeks. She was bleeding from the mouth and from the left side of her face. Trotter felt for her pulse and called out to her but she did not respond. Then, while paramedics Kelly and Vasquez tended to Linda, Trotter spoke to defendant. Trotter asked defendant what happened and defendant replied that Linda slipped and fell. Upon hearing this response, Trotter said “Bullshit.” Defendant then replied in a stuttering voice that he had hit the victim. Trotter continued and asked, “You hit her with what?” Defendant replied, “I-I-I hit her with my fist.” Trotter said, “Come on, man, you hit her with your fist? What else did you hit her with?” Defendant answered, “Nothing, we were fighting. I just hit her. I was hitting her with my fist.” Trotter later accompanied Linda to Michael Reese Hospital.

Officer Thomas Minton testified that while at Michael Reese Hospital he heard defendant state that he struck his wife. Minton asked defendant how many times he hit her. Defendant answered that he hit her three or four times in the face. Minton recorded this statement in his police report a few hours later.

Dr. Lawrence Ferguson, the chief of neurosurgery at Michael Reese Hospital, testified that an angiogram showed swelling and possible subdural hematomas on Linda’s brain. He noted that the victim had a cut over her eye and some swelling. Dr. Ferguson performed a right frontal craniotomy on Linda. After opening Linda’s skull under this procedure, Dr. Ferguson found that the brain was very swollen and red. He testified that this was an indication of acute subdural hematoma, which meant that severe stress had been applied to the brain. He stated his opinion that such stress is usually caused by trauma and that hitting the skull with a fist would be one example of such trauma. Dr. Ferguson stated that he had hoped to find a large blood clot or hematoma but instead found a swollen brain. The doctor went on to state that such swelling can often lead to permanent damage or death.

Dr. Yuksel Konakci, an assistant Cook County Medical Examiner, performed the autopsy on the victim on July 17, 1978. Dr. Konakci found a small suture laceration around the left corner of the left eye which showed some superficial bleeding or hemorrhage. In his opinion this hemorrhaging was caused by blunt trauma. He also observed several contusions on the victim’s upper lip. Her face appeared to be swollen. Dr. Ferguson had testified earlier that after such surgery patients often get swelling around the eyes but not in the face. Dr. Konakci examined the brain and found it to be markedly swollen. Later, Dr. Konakci observed while another pathologist, Dr. Leestma, examined the brain. It was still markedly swollen. There were subdural hematomas on both sides. There was also severe edema or swelling. The doctor further observed what is called fungus cerebri, whereby the brain swells and protrudes into the occipital bones. Finally, Dr. Konakci observed small areas of contusion on the victim’s brain. Based upon the above factors, it was Dr. Konakci’s opinion that the cause of death was extreme cranial cerebral injury brought about by blunt trauma.

Opinion

The defendant first argues that the trial court violated his sixth amendment right to counsel when it denied his motion for a continuance. He also contends that the court thereby coerced him into waiving his right to a jury trial and compelled him to accept representation by an attorney who was not adequately prepared to defend him.

Our supreme court has stated that the granting of a continuance to permit preparation for a case, or for the substitution of counsel, necessarily depends upon the particular facts and circumstances surrounding the request, and is a matter resting within the sound judicial discretion of the trial court. (People v. Solomon (1962), 24 Ill. 2d 586, 182 N.E.2d 736, cert. denied (1962), 371 U.S. 853, 9 L. Ed. 2d 87, 83 S. Ct. 94; see also People v. Sedlacko (1978), 65 Ill. App. 3d 659, 382 N.E.2d 363.) The granting of a continuance on the basis of the illness of defendant’s counsel is also a matter residing within the discretion of the trial court. (Sedlacko; People v. Wilson (1975), 31 Ill. App. 3d 1067, 335 N.E.2d 546.) Furthermore, the failure to grant a continuance will not be held to be error unless there is a clear showing of an abuse of discretion (People v. Nobles (1980), 83 Ill. App. 3d 711, 404 N.E.2d 330), or unless the denial has embarrassed defendant in the preparation of his defense and has thereby prejudiced him. People v. Canaday (1971), 49 Ill. 2d 416, 275 N.E.2d 356; Sedlacko.

The defendant relies on People v. Myles (1977), 49 Ill. App. 3d 325, 364 N.E.2d 323, in support of his argument that he was denied his right to counsel of his choice because of the trial court’s refusal to grant a one-week continuance so that Mr. Savage, his retained attorney, might be present. In Myles, an attorney who had appeared merely to request a continuance was held to trial. The attorney was the young associate of the defendant’s retained counsel who was delayed getting into court that day. This young associate had been an attorney for only three months, had never tried a felony case, had no idea how to select a jury, and he repeatedly protested to the trial court that he was totally unqualified to undertake the defense of a client charged with murder. The appellate court reversed, finding that the trial court abused its discretion. The court noted that “[a]t no time did the court ask the defendant if she wanted [this attorney] to proceed on her behalf.” (49 Ill. App. 3d 325, 326, 364 N.E.2d 323, 324.) In the instant case, the trial court found Mr. Bell to be quite competent, having a background of experience including 3V2 to four years of practice before the Tennessee Bar. The trial court also noted that Mr. Bell ably represented defendant at the earlier motion to suppress. At no time did Mr. Bell protest to the trial court that he was unqualified to undertake the defense of a client charged with involuntary manslaughter. Moreover, the trial court inquired as to whether defendant wanted to proceed with Mr. Bell instead of Mr. Savage and defendant indicated that he was satisfied with the services of Mr. Bell and that a bench trial was agreeable with him. Accordingly, it is apparent that the factors constituting abuse of discretion in Myles are simply not present in the case at bar.

The record here demonstrates that defendant’s attorney appeared to be completely competent, thoroughly prepared, and zealous in his representation of defendant. The trial court denied the defendant’s motion for a continuance only after careful consideration of the surrounding circumstances including Mr. Bell’s repeated failure to present an affidavit relating to Mr. Savage’s illness. Further, defendant here freely and knowingly waived his right to a jury trial following a telephone consultation with Mr. Savage. Accordingly, we cannot say that the trial court abused its discretion in denying defendant’s motion for a continuance or that defendant suffered any prejudice as a result of the denial of a continuance.

Defendant next argues that his conviction must be reversed since the record is devoid of any evidence tending to prove a material element of the offense of involuntary manslaughter, namely, that he performed a reckless act which resulted in the death of his wife.

Defendant basically argues here that the evidence does not adequately establish the particular acts which caused his wife’s death. In support of this argument defendant cites facts in evidence which he claims tend to contradict paramedic Trotter’s account of the events, particularly his statement regarding defendant’s admissions at the scene. We find this argument wholly unconvincing. Initially, it is well settled that when a case is tried without a jury, it is the responsibility of the trial judge to determine the credibility of the witnesses and the weight to be given their testimony, and where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact who heard the evidence. (People v. Woods (1980), 81 Ill. 2d 537, 410 N.E.2d 866.) Here, we hold that the evidence in the record was sufficient to permit the trial court to determine that defendant’s actions resulted in the victim’s death. The defendant’s own testimony supports the conclusion that he struck the victim and shoved her a distance of 12 to 14 feet across the room where her head collided with a wall, and since defendant is the only person who can testify to exactly what happened, the trial court was certainly not compelled to accept his account as conclusive, but could consider also the surrounding circumstances and the probability of defendant’s story. (See People v. Towers (1974), 11 Ill. App. 3d 467, 308 N.E.2d 223.) Paramedic Trotter testified that defendant told him that he hit the victim with his fists. Moreover, Investigator Minton testified that he heard defendant say he hit his wife in the face four or five times before she fell, hit the record player, and the wall. In addition, medical testimony established that the cause of death was extreme cranial cerebral injury brought about by blunt trauma. Lacerations were found around her left eye and several contusions were on her upper lip. Finally, there was also evidence of an argument between defendant and his wife just before they entered the apartment. The above circumstantial evidence adequately supports the trial court’s determination that defendant acted, either by forcefully shoving the victim so that her head eventually hit the wall, or by repeatedly striking her in the face, or both, and that such acts by him resulted in her death. Accordingly, we reject defendant’s argument that the material elements of the offense of involuntary manslaughter were not proved by competent evidence.

Finally, defendant contends that the mental element of recklessness was not proved beyond a reasonable doubt. He argues that the evidence established that his actions were reasonably designed to end the physical confrontation with his wife, that he did not push his wife hard, that he was not angry with her, and that he did not believe she would fall, nor did he intend to cause her any injury. We find this argument unavailing. To begin with, as we have noted above, the evidence was sufficient to allow the trial court to conclude that the victim died as a result of blows from defendant’s fists, and death by such causes may clearly constitute involuntary manslaughter. (See, e.g., People v. Towers (1974), 17 Ill. App. 3d 467, 308 N.E.2d 223.) Even assuming, as defendant states, that the death resulted only from his actions in shoving his wife across the room, defendant’s argument here is yet unavailing since no specific intention to kill or do great bodily harm is required to prove involuntary manslaughter. The only mental state required is the conscious disregard of a substantial and unjustifiable risk. (People v. Bauman (1975), 34 Ill. App. 3d 582, 340 N.E.2d 178.) To constitute recklessness under section 4— 6 of the Criminal Code of 1961, such disregard must be a “gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Ill. Rev. Stat. 1981, ch. 38, par. 4—6.) Thus, defendant’s subjective belief that his acts are justified or lawful is of little importance where such acts are deemed to be such a gross deviation from the standard which a reasonable person would exercise in such a situation. The question of whether the acts deviated from such a standard, and thereby were reckless, is a question of fact to be determined by the trier of fact. People v. Schwartz (1978), 64 Ill. App. 3d 989, 382 N.E.2d 59.

From the record, the trial court could have concluded that defendant consciously disregarded a substantial and unjustifiable risk that the victim would fall and strike her head when he struck her with his fists and shoved her with a force sufficient to move her backwards 12 to 14 feet. Considering all the direct and circumstantial evidence presented, defendant was proved guilty of involuntary manslaughter beyond a reasonable doubt.

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

Affirmed.

SULLIVAN, P.J., and WILSON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STAMOS

license: Public Domain

text:
    KENNY CONSTRUCTION COMPANY, Plaintiff-Appellee, v. HINSDALE SANITARY DISTRICT, Defendant-Appellant.
    First District (2nd Division)
    No. 81—1443
    Opinion filed December 14, 1982.

      Antonow and Fink, of Chicago (Alan Borlack and Timothy Kocian, of counsel), for appellant.
    O’Brien, Carey, McNamara, Scheuneman & Campbell, Ltd., of Chicago (Donald O’Brien and William Campbell, of counsel), for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Kenny Construction Company (Kenny) brought this action for breach of contract against the Hinsdale Sanitary District (HSD). The HSD counterclaimed for breach of contract. The jury returned a verdict for Kenny and awarded $700,000 in damages.

This action arose out of a construction contract between Kenny and the HSD for the installation of the Phase V Interceptor Sewer (Phase V project). This project involved the installation of approximately 12,360 lineal feet of sewer line and supporting structures to service the Oak Brook area in Du Page County, Illinois. Initial bids on the project were rejected. When bids were retaken in June, Kenny emerged as the low bidder.

Just prior to the deadline for the June bids, the HSD learned that the village of Oak Brook would be constructing a new roadway along the Jorie Boulevard section of the Phase V project which would require a revision of the original plans and specifications. Preferring not to reschedule the bid date, the HSD issued an “Addendum” to the Phase V bidding documents. The Addendum told the prospective bidders that they should submit their proposals on the basis of the original plans and specifications. Once the extent of the roadway construction along Jorie Boulevard was known and its impact on the cost of that portion of. the project could be ascertained, the HSD would treat the roadway improvement as a “changed condition,” calling for an equitable adjustment in the contract price.

Another change affecting the Phase V project resulted from a decision to widen Ginger Creek. The decision was made after the contract was awarded to Kenny but prior to construction. This widening caused the creek to encroach on the sewer alignment for the Ginger Creek section of the Phase V project.

Kenny produced evidence at trial establishing that both the widening of Ginger Creek and the construction of a roadway along Jorie Boulevard prevented Kenny from performing the contract as bid primarily because Kenny’s bid proposal for the Jorie Boulevard and Ginger Creek sections of the project was based on the open-cut method of excavation, as opposed to the tunneling method.

Briefly, the open-cut method involves the digging of trenches with a back-hoe from the surface. The trenches are 40 feet wide at the surface and require a much wider work area to move construction equipment and to stockpile the dirt. Evidence adduced at trial indicated that the new dimensions of Ginger Creek and the Jorie Boulevard roadway prevented the use of the open-cut method over large portions of both those sections of the project. Kenny determined that the tunneling method of excavation would have to be used where changes in excavation were necessary.

The tunneling method involves the use of a boring machine which digs a tunnel beneath the surface of the ground. This method of excavation is much more expensive than the open-cut method, and Kenny informed the HSD that to excavate by tunneling rather than by open-cut would involve substantial additional excavation costs for both Jorie Boulevard and Ginger Creek. The HSD did not approve these additional costs but began to explore possible alternative alignments which would avoid such large additional costs.

Actual construction by Kenny began on September 23, 1974. The original plan was to begin by “jacking” the tunnels along the 22d Street, Route 83, and tollway portions of the project before going to Spring Road, 31st Street, and Jorie Boulevard. Jacking is one way of excavating by the tunnel method. It involves the use of a tunnel boring machine (TBM) which “pumps” the pipe in place behind the TBM as the tunnel is being dug. This is the least expensive method of tunneling because it does not require the use of any filler around the pipe or tunnel supports. Both filler and tunnel supports are required for the rib and lag method of tunneling.

The rib and lag method, like jacking, uses a TBM. However, rib and lagging requires a much larger tunnel. As the tunnel is excavated, it is supported by steel ribs joined by wooden lags. Once these ribs and lags are in place, the pipe is laid in the tunnel and a filler is injected to close the tunnel. The rib and lag method is much more expensive than the jacking method.

Soon after the jacking began, Kenny experienced difficulty. Progress was much too slow and Kenny could not keep the TBM on line. A few days before December 30, 1974, Kenny abandoned jacking in favor of rib and lagging.

About two weeks prior to the change in tunneling method, Kenny submitted its first pay request. Under the contract, the HSD was to make monthly payments based on progress reports submitted by Kenny. These monthly reports were to document the amount of work completed.

After paying on the first progress payment request, the HSD objected to the method used by Kenny in computing the amount of progress payments due. In response to Kenny’s threat to pull off the job, the HSD made one more payment on February 19, 1975. The HSD made no further payments.

While the dispute over progress payments was taking place, another dispute centered around the Jorie Boulevard and Ginger Creek sections of the project. Ever since Kenny had projected that the Jorie Boulevard and Ginger Creek lines would have to be installed by the more expensive tunneling method, Bindley (the project engineer) and the HSD had sought to devise an alternate alignment to avoid huge additional costs.

In September 1974, Bindley revised the plans and specifications for the Jorie Boulevard alignment. Kenny produced evidence at trial indicating that this revision failed to alleviate the additional costs because it provided an inadequate work area for the open-cut method to be used.

On February 3, 1975, Bindley produced another revision. Under this revision the Ginger Creek alignment was moved away from the creek to minimize its encroachment into the pipe alignment. However, the creek continued to encroach in at least one section. This revision also imposed a new limitation in that the Ginger Creek segment had to be excavated within a 40-foot-wide easement. The original plans depicted an unlimited work space. The Jorie Boulevard alignment remained the same as in the September revision.

The HSD and Kenny met on February 6 to discuss the Jorie Boulevard and Ginger Creek situations. Kenny suggested that if the Ginger Creek alignment were moved to the south of the creek, they could put the pipe in at the originally projected cost. Kenny also suggested that if the original line along Jorie Boulevard was restored, and a Commonwealth Edison cable relocated, the Jorie line could also be put in at the original cost.

The HSD did not secure the relocation of the cable. They did, however, move the Ginger Creek alignment to the south of the creek. This new alignment ran across property belonging to the Oak Brook Park District. On March 3, 1975, Pearson, the HSD’s engineer, instructed Kenny to begin work along the new Ginger Creek alignment. Kenny dispatched an operator and bulldozer and commenced work. Shortly after work began, the Oak Brook police ordered Kenny to stop work, leave the site, and repair all damage. As it developed, the HSD had no easement or informal permission from the Oak Brook Park District to install the sewer on that property.

Subsequent revisions did not alleviate the necessity of additional costs, costs which the HSD was unwilling to assume notwithstanding the contract Addendum concerning “changed circumstances.”

In light of both the HSD’s refusal to approve of a new alignment with the accompanying additional costs, and the HSD’s refusal to make progress payments, Kenny pulled off the job on April 2, 1975.

Following the trial, the jury returned a verdict for Kenny on their complaint and on the HSD’s counterclaim. In their response to three special interrogatories, the jury expressed their belief that the HSD’s failure to make progress payments was in violation of the contract and that the HSD had failed to provide a right of way along Jorie Boulevard and Ginger Creek.

The HSD’s first contention is that it did not refuse to make monthly payments to Kenny in accordance with the contract. At trial the HSD contended that progress payments were to be made on the basis of a particular method and that Kenny’s failure to make requests for progress payments pursuant to this method justified their failure to make the payments.

The trial court found that the contract was ambiguous as to the proper method of computing the amount of progress payments due and, having made this finding, the court admitted parol evidence on the issue. On appeal, the HSD contends that there was no ambiguity and that therefore, the admission of extrinsic evidence was error.

Whether an ambiguity exists in a contract is to be determined by the court as a question of law. (Bertlee Co. v. Illinois Publishing & Printing Co. (1943), 320 Ill. App. 490, 52 N.E.2d 47.) Where a contract provision is found to be ambiguous, extrinsic evidence is admissible to aid the jury in reaching a proper interpretation. See Stanley v. Chastek (1962), 34 Ill. App. 2d 220,180 N.E.2d 512.

In this case, Kenny submitted a document entitled “Schedule of Prices” when bidding on the Phase V project. Kenny’s bid proposal broke the project down into unit costs which were added up and divided by the total footage to be excavated. The resulting figure reflected the cost per lineal foot to complete the project.

General Condition 1 — 4 of the contract was also entitled “Schedule of Prices.” That provision stated that a “schedule of prices” was to be submitted to the project engineer prior to the first payment under the contract. This schedule, which was to be used as the basis for payments, was subject to change by the project engineer.

The HSD contends that the contract provision entitled “Schedule of Prices” incorporated Kenny’s bid proposal bearing the same title. The HSD concludes that because the bid proposal contains a price per lineal foot for “pipe in place,” this was the basis upon which the HSD was bound to make progress payments.

Kenny asserts that the use of the phrase “schedule of prices” in the two independently drafted documents was a mere coincidence. Kenny notes that the contract provision allows the engineer to alter the prices submitted whereas no such allowance is made in the bid proposal. Kenny also cites Article III of the contract which provides for partial payment for “work actually performed.” Finally, Kenny asserts that the HSD’s interpretation leads to the absurd result that the contract required Kenny to resubmit a document which the HSD already had before it.

The trial court, after hearing argument from both sides, ruled that the provision concerning progress payments was patently ambiguous. The court thus permitted extrinsic evidence including evidence of custom and usage in the construction industry. We find that the trial court properly determined as a matter of law that the contract was ambiguous and its admission of extrinsic evidence to explain the terms of the contract was therefore proper.

The extrinsic evidence revealed that it was an accepted practice in the construction industry to make progress payments on the basis of work completed rather than pipe-in-place. Other evidence revealed that Lindley, the project engineer, and the EPA (which was financing 75% of the project) had approved payments computed-on the basis of work completed. The jury found that Kenny was entitled to be paid for work actually completed rather than for pipe in place. Based on the record before us, we find that jury’s verdict was not against the manifest weight of the evidence.

The HSD next contends that they were justified in refusing to pay Kenny’s payment requests for two reasons. First, because Kenny’s proposed method of payment was not timely and second, because the HSD never approved the proposed payment method.

The HSD noted that under General Provision 1 — 4, Kenny was to submit a “Schedule of Prices” prior to the first payment under the contract. Since the original pay request was submitted under the pipe-in-place format, the HSD claims that they were not obliged to pay on any other basis. Although the first pay request was ostensibly based on the pipe-in-place method, evidence at trial revealed that it in fact was based on the “work completed” method.

Just prior to the first pay request, Kenny’s engineer (Pat Kenny) met with the project engineer (Lindley) and the HSD’s engineer (Pearson) to discuss the method of computing payments. But because the HSD’s board was meeting shortly, Lindley and Pearson suggested postponing their discussion and submitting the first pay request in pipe-in-place format so Kenny could receive some payment for the first month’s work. Kenny submitted its request on this basis but it was returned due to a technical defect. Upon returning the pay request, the HSD suggested that Kenny resubmit their request in two weeks and include expenses for that two-week period. Just before the two weeks had elapsed, Kenny’s engineer again met with Lindley and Pearson to discuss progress payments. Lindley and Pearson agreed that Kenny was entitled to be paid for more than merely pipe in place. Kenny then submitted a pay request based on 991 feet of pipe in place though only 515 feet of pipe were actually in place. Lindley and Pearson endorsed this request, as the contract required, and the HSD made the payment.

Before the next pay request was submitted, Zelasko, Kenny’s vice-president, devised a method of computing progress payments which would provide reimbursement for work actually performed while keeping the total payments within the contract price. This method was used in making Kenny’s next request and that request was endorsed by Lindley and Pearson. The HSD refused to make any payment based on this method of computation. The HSD did ultimately make one payment in response to Kenny’s threat to leave the job but no payments were made thereafter.

As has been previously noted, there was evidence at trial indicating that Kenny’s first payment request, though formally based on the pipe-in-place method, was actually based on work completed. Further, the request was submitted in the pipe-in-place format at the suggestion of the project engineer and the HSD’s engineer.

It would seem unreasonable to bind Kenny to the pipe-in-place method when none of the requests were actually based on that method and that format was initially used only at the urging of the HSD’s agents.

The HSD also contends that they were not bound to pay on a basis other than pipe-in-place because they never approved Kenny’s proposed method. Article III of the contract provides that no progress payments shall be made unless approved by the owner. This provision gave the HSD a great deal of discretion; however, contractual discretion may only be exercised in good faith. See Foster Enterprises, Inc. v. Germania Federal Savings & Loan Association (1981), 97 Ill. App. 3d 22, 28-29, 421 N.E.2d 1375.

The evidence revealed that before pipe is actually “put in place,” a great deal of preparatory work takes place. Dewatering shafts must be dug, the job site must be dewatered, trenches and shafts must be dug and rib and lagging put in place prior to laying any pipe. If contractors were paid only for “pipe in place,” they would be required to carry a great deal of the initial construction expense. For this reason, it is customary in the construction industry that progress payments be made on the basis of work actually completed. This is the method by which Kenny computed its pay requests. The method was reasonable because it compensated Kenny only for work actually performed. Further, this method was approved by the project engineer, the HSD’s engineer, and the EPA. Under these circumstances, the HSD’s refusal to approve the new pay proposal was ineffectual.

We hold that the HSD’s failure to make progress payments constituted a material breach of the contract entitling Kenny to sue for lost profits. (See Watson v. Auburn Iron Works, Inc. (1974), 23 Ill. App. 3d 265, 270-71, 318 N.E.2d 508.) Therefore, we need not consider whether the HSD’s failure to provide a right of way along Jorie Boulevard and Ginger Creek was also a material breach.

The HSD next contends that the trial court erred in not permitting the jury to determine whether Kenny had elected to rescind the contract rather than sue under it for damages. This contention is based solely on a letter from Kenny to the HSD on April 2, 1975, stating that Kenny considered the contract between them “terminated and rescinded.” Kenny made no other statements and took no other actions indicating an intention to pursue the remedy of rescission and quantum meruit. The HSD claims that the jury should have been permitted to determine if this statement by Kenny constituted an election to recover under quantum meruit.

In Illinois, the formal doctrine of election of remedies is confined to cases where (1) double compensation is threatened, (2) defendant has actually been misled by plaintiff’s conduct, or (3) res judicata can be applied. (Faber, Coe & Gregg, Inc. v. First National Bank (1969) 107 Ill. App. 2d 204, 211, 246 N.E.2d 96; see District HI, International Association of Machinists v. Industrial Com. (1980), 79 Ill. 2d 544, 550-51; Casati v. Aero Marine Management Co. (1980), 90 Ill. App. 3d 530, 536-37, 413 N.E.2d 122.) Under the facts of this case, none of the circumstances giving rise to an election of remedies exist. We hold that the trial court properly refused to submit to the jury the question of whether Kenny had elected to rescind the contract.

The HSD also contends that the trial court erred in two respects as to their treatment of Lindley, the project engineer. The court permitted Kenny to examine Lindley as a hostile witness under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 60, superseded without change in substance, Ill. Rev. Stat. 1981, ch. 110, sec. 2—1102.) It also instructed the jury that Lindley should be considered as the HSD’s agent for all purposes. The HSD fails to show any prejudice resulting from these alleged errors. It is the duty of the party asserting error to demonstrate that prejudice resulted. (In re Estate of Weisberg (1978), 62 Ill. App. 3d 578, 586, 378 N.E.2d 1152.) The reviewing court is not required to search the record for prejudicial error; the party complaining should point out, specifically, the manner in which they were prejudiced. (62 Ill. App. 3d 578, 586.) Here, defendant has failed to designate specifically how it was prejudiced by the trial court’s section 60 ruling and instruction to the jury. For this reason, we need not consider this issue. See Gatto v. Curtis (1972), 6 Ill. App. 3d 714, 733-34, 286 N.E.2d 541.

The HSD next contends that the jury’s damage award was erroneous. Their objections on this point are twofold. First, the HSD claims that Kenny’s argument to the jury on the issue of damages was error, and second, the HSD claims that Kenny failed to meet its burden of proving damages.

Initially, the HSD cites as error Kenny’s failure to follow the damage instruction in its closing argument. The court’s damage instruction provided:

“If you decide for Kenny on its complaint, then you must fix the amount of money which will reasonably and fairly compensate it for the following measure of damages: the entire contract price, less the amount of the progress payments actually paid, and less the cost of completion that Kenny could have reasonably saved by not completing the work.”

Kenny’s counsel stated in his closing argument that Kenny’s damages could be computed by first adding their profit margin as bid to their costs and then by subtracting both payments made and miscellaneons unanticipated future costs.

The HSD contends that Kenny, by failing to follow the trial court’s damage formula, confused the jury on the issue of cost of completion. The HSD failed to object to Kenny’s argument and Kenny asserts that any objection has been waived.

It is true that a failure to object to alleged errors in an opponent’s closing argument is considered a waiver of objection. (Lindroth v. Walgreen Co. (1950), 407 Ill. 121, 136; Chloupek v. Jordan (1977), 49 Ill. App. 3d 809, 817, 364 N.E.2d 650.) However, even if prejudicial closing arguments are made without objection, a reviewing court may consider assignments of error to the extent that those prejudicial statements prevent a fair trial. City of Quincy v. V. E. Best Plumbing & Heating Supply Co. (1959), 17 Ill. 2d 570, 577.

In Smilgis v. City of Chicago (1981), 97 Ill. App. 3d 1127, 1131, 423 N.E.2d 1288, we held that “[wjhere it is apparent the jury has misunderstood or disregarded the evidence or instructions of the court, the court will, upon a failure to do substantial justice, set aside the verdict and grant a new trial.” We also held that a failure to object to the alleged cause of the confusion did not preclude us from considering the impact of the jury’s confusion.

In the instant case, the jury, during deliberations, passed a note to the judge stating:

“Your Honor, we need clarification of your instructions. What is meant by quote ‘less the cost of completion that Kenny could have reasonably saved by not completing the work’ end quotes. We are confused as to the method to be used to arrive at this figure. Is there documentation available to guide us to arrive at this figure? If so, can it be made available to us; for example, the blackboard calculations which both Hinsdale Sanitary District and Kenny made during trial?”

The trial judge replied that “cost of completion” means the additional amount of money it would have cost Kenny to complete the work required by the contract. The jury was also told that they would receive no additional exhibits.

It is apparent that the jury was confused as to a fundamental element of damages and that this confusion is fairly attributable to Kenny’s failure to adhere to the court’s damage formulation. We hold, therefore, that the jury’s award of damages should be set aside and a new trial granted on the issue of damages.

The HSD also contends that Kenny failed to meet its burden of proving lost profits. The general rule is that while lost profits need not be proven to a mathematical certainty, the plaintiff must show a reasonable basis for their computation. Hemken v. First National Bank (1979), 76 Ill. App. 3d 23, 27, 394 N.E.2d 868.

In the instant case, Mr. Zelasko, Kenny’s vice-president, testified regarding lost profits. He testified that Kenny’s anticipated profit on its bid proposal was $465,497 and that if the HSD had not breached their contract, Kenny would have completed the project within the contract price. This testimony fails to directly address the issue of how much it would cost Kenny to complete the project at the time of the HSD’s breach.

Kenny also produced several evidentiary exhibits from which, it asserts, a cost of completion could be extracted. These exhibits are fairly technical documents which neither provide a method for determining the cost of completion or indicate precisely how much of the project remained to be completed as of April 2, 1975, when Kenny walked off the job.

Kenny asserts that Zelasko’s testimony, together with the exhibits, provided the jury with a reasonable basis for computing lost profits. But the profit figure which was testified to by Zelasko, contained in the exhibits and set out in Kenny’s closing argument, was the profit margin projected by Kenny at the outset of the project. By using a profit figure which was projected before any work had begun, Kenny failed to go through the necessary process of calculating their cost of completion under the circumstances which existed at the time of the breach. (See 5 Corbin, Contracts sec. 1094, at 510 (1964).) Calculating lost profits in this way puts the plaintiff in the position he would have been in had the contract been fully performed. If, prior to the breach, plaintiff’s work was progressing more smoothly than anticipated and below projected costs, the cost of completion at the time of breach would reflect his saving and provide plaintiff with an appropriate profit margin above the original projection. If plaintiff was exceeding its projected costs and would not be able to perform the contract as bid, the cost of completion would reflect those cost over-runs and prevent plaintiff from collecting “lost profits” which would not have been realized had the contract been fully performed.

In presenting their damage argument to the jury, the profit figure Kenny used should have been one “that [they could] prove with reasonable certainty would have been realized by full performance.” (5 Corbin, Contracts sec. 1094, at 511-12 (1964).) Kenny cites Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, cert. denied (1975), 420 U.S. 975, 43 L. Ed. 2d 655, 95 S. Ct. 1398, for the proposition that when a breach prevents an exact calculation of lost profits, they may be proved through estimates. (58 Ill. 2d 289, 310-11.) Vendo and the cases cited therein are inapposite to the instant case. Those cases involved situations in which defendants’ actions prevented or inhibited plaintiffs’ ability to make future sales. The plaintiffs in those cases, in proving their damages, were put in the position of having to prove their future sales volume, a speculative task at best. Under the circumstances in those cases, the trial courts permitted lost profits to be proved through estimates because of the difficulty of proof which was a result of defendants’ actions.

No such difficulty of proof is presented here. Kenny’s familiarity with the Phase V project made Kenny qualified to make a realistic projection as to the amount of work that remained to be completed. Kenny also possessed some expertise with respect to the Phase V project exhibits. This expertise could have and should have been used to provide the jury with a reasonable basis for awarding lost profits. Indeed, several of the exhibits revealed Kenny’s ability to project their anticipated costs for the entire project. Kenny’s burden with respect to damages included providing the jury with similar calculations for the remainder of the project. In providing such calculations, Kenny would not be required to project their costs with exactitude. The law requires only that a party claiming lost profits provide the jury with a reasonable basis for granting them. (See Ashe v. Sunshine Broadcasting Corp. (1980), 90 Ill. App. 3d 97, 101, 412 N.E.2d 1142.) It is Kenny that had the burden of proving their lost profits and, given their expertise in the construction industry and their familiarity with the Phase V project, it was their duty to present to the jury, in an understandable manner, the basis for their claimed lost profits.

For the reasons stated herein, the judgment of the circuit court is affirmed except as to damages. That portion of the judgment awarding damages is reversed and remanded with directions to conduct a new trial on the issue of damages only.

Reversed and remanded with directions.

DOWNING and HARTMAN, JJ., concur.


author: JUSTICE ROMITI

text:
    LYNN J. FALKENTHAL, Plaintiff-Appellant and Cross-Appellee, v. PUBLIC BUILDING COMMISSION OF CHICAGO et al., Defendants-Appellees and Cross-Appellants.
    First District (4th Division)
    No. 81—1970
    Opinion filed December 2, 1982.
    Rehearing denied January 27, 1983.
    Maurice J. McCarthy, of Chicago, for appellant.
    J. Richard Jackson, of Osterkamp, Jackson & Hollywood, of Chicago, for appellee Public Building Commission of Chicago.
    Hugh R. McCombs, Jr., Bruce D. Becker, and Carol R. Stone, all of Isham, Lincoln & Beale, of Chicago for appellees C. F. Murphy Associates, Inc., Skidmore, Owings & Merrill, and Loebl, Schlossman, Bennett & Dart.
   JUSTICE ROMITI

delivered the opinion of the court:

This appeal arises out of a complaint for personal injuries allegedly suffered by plaintiff, Lynn J. Falkenthal, when she was struck on the forehead by a telephone booth door which opened into her path as she walked down the concourse connecting the Richard J. Daley Center to the Brunswick Building in Chicago. Named as defendants were: Public Building Commission of Chicago, owner of the Daley Center; Frank M. Whiston & Co., manager of the building; Eleanor White, who opened the door which struck plaintiff; Illinois Bell Telephone Company, owner of the telephone booth; and three architectural firms involved in the design of the booth, Skidmore, Owings & Merrill; Loebl, Schlossman, Bennett & Dart; and C. F. Murphy Associates. Illinois Bell was dismissed from the case prior to trial, the trial judge entered a directed verdict for Eleanor White at the close of plaintiff’s case, and the jury found for Frank M. Whiston & Co. The jury returned a verdict in the amount of $1,079.50 in favor of plaintiff and against the remaining defendants and judgment was entered on that verdict. The trial court also awarded $6,845.61 to plaintiff for costs.

Plaintiff has appealed from the amount of the judgment and seeks a new trial on the issue of damages, contending: (1) the trial court erred in permitting defendants to adduce evidence relating to head injuries sustained by plaintiff prior to and after the injury at issue; (2) the trial court erred in failing to give three instructions relating to the possibility that the earlier injury sustained by plaintiff was an additional or contributing cause of the narcolepsy which plaintiff asserted was caused by the blow from the door; and (3) the trial court erred in giving a misleading interrogatory to the jury. Defendants have cross-appealed from the order awarding costs, asserting that under Illinois law many of the items on which the award was based were not recoverable as costs.

We affirm the judgment entered on the jury’s verdict but reverse the trial court’s order awarding costs and remand the cause for a new hearing on that issue.

The pertinent facts adduced at trial were as follows. On January 22, 1975, plaintiff was walking down the concourse between the Daley Center and the Brunswick Building when a telephone booth door suddenly opened into her path, striking her on her forehead' above the right eye. Eleanor White, the occupant of the telephone booth, assisted her in walking to the first-aid room in the Daley Center where the bleeding was stopped and a butterfly bandage was applied to the cut. Plaintiff then lay down until her employer arrived to drive her home. Plaintiff suffered headaches through the night. The next day, after experiencing blurred vision and a continuing headache, she went to a hospital emergency room where she was treated by Dr. William Woodward. X rays taken at his request produced no sign of a fracture.

After this occurrence plaintiff began to experience two physical symptoms which persisted until the time of trial. She would suffer from uncontrollable urges to fall asleep and on other occasions she would lose the strength in her muscles and collapse. In May 1976 plaintiff consulted Dr. Richard Nilges about these symptoms. Dr. Nilges was board-certified in neurological surgery and was a member of the American Association of Neurological Surgeons, the Congress of Neurological Surgeons, and the Chicago Neurological Society among other professional medical organizations.

It was Dr. Nilges’ opinion, based upon a reasonable degree of medical certainty, that plaintiff suffered from narcolepsy (attacks of sleepiness) and the associated condition of cataplexy (uncontrollable loss of muscle control) caused by the blow to her head from the telephone booth door. He based his opinion on plaintiff’s statement that the attacks first started after she received the blow and her description of having suffered amnesia shortly after the injury. This latter fact indicated to the doctor that plaintiff suffered a concussion which could have disturbed the reticular formation of the brain (that part of the brain controlling wakefulness and sleep) and produced the conditions of narcolepsy and cataplexy.

Dr. Nilges had treated 14 other patients for narcolepsy and he testified that none of those cases was caused by cerebral trauma. He also stated that none of the 6,000 cases of head trauma he had treated in his career had resulted in narcolepsy. The only scientific literature cited by Dr. Nilges in support of his opinion that narcolepsy could be caused by a blow to the head was a textbook on neurology stating that in rare instances narcoleptic states may accompany cerebral trauma. However, that treatise also stated that the cause of true narcolepsy was unknown.

Dr. Harold Klawans testified for defendants. He was senior attending neurologist, associate chairman of the department of neurological sciences, and professor of neurological sciences at Rush-Presbyterian-St. Luke’s Hospital in Chicago. He testified that he had written or edited over 30 books and had written over 200 articles, all in the field of neurology. A number of these writings concerned narcolepsy.

Dr. Klawans described narcolepsy as an idiopathic disease consisting of four separate disease components: narcoleptic attacks, which are attacks of irresistable sleep; cataplexy, which is a sudden loss of muscle tone resulting in loss of the use of that muscle; sleep paralysis, in which the patient is awake but cannot move his arms or legs; and hypnogogic hallucinations, the experience of very vivid, well-recalled hallucinations. According to Dr. Klawans, a patient could have one or two or a mixture of these components.

It was Dr. Klawans’ opinion, based on three separate types of medical evidence, that trauma cannot cause narcolepsy. First, because narcolepsy is a highly sophisticated and organized expression of physiological activities of the brain, it could not be caused by trauma, which he described as a “crude insult to the nervous system” which could destroy but not cause the complex reorganization of activity involved in narcolepsy. Secondly, in the approximately 1,000 cases of head trauma he had treated he had never observed narcolepsy to result. Thirdly, scientific studies of large groups of patients with head trauma, including one study of 1,000 consecutive patients, had resulted in the conclusion that none of those patients had narcolepsy related to trauma. Finally, Dr. Klawans noted that in the various treatises on head trauma no mention was made of narcolepsy because it had not been demonstrated to be caused by such trauma.

Dr. Klawans had examined plaintiff and concluded that she could well have narcolepsy but he would like further diagnostic tests to be sure. He also testified that patients usually become aware of the symptoms of narcolepsy between the ages of 15 and 30. Plaintiff was 24 years old at the time of the incident in question.

I

Plaintiff first contends that the trial court erred in permitting defendants to adduce evidence concerning two automobile accidents, one in 1973 and one in 1977, in which plaintiff received blows to the head.

Prior to trial the court denied plaintiff’s motion in limine to exclude evidence of these accidents as well as evidence of an electromyelogram taken of the plaintiff in relation to the earlier accident. At trial plaintiff testified that in the 1973 accident she injured her neck, ear, shoulder and hip and bruised her cheek. She also experienced a tingling, cold sensation in her left hand, but could not recall whether the sensation persisted up to the time of her Daley Center injury. Plaintiff admitted that as the result of the shoulder injury she could not swim or play tennis a week before the Daley Center accident. Plaintiff also testified that she hit her forehead in the 1977 accident.

Dr. Nilges testified that when he first examined plaintiff she did not inform him of the head injuries she received from the 1973 accident. However, because there was no evidence of any significant injury to the brain from this accident and because plaintiff’s symptoms did not occur until after the Daley Center accident, it was Dr. Nilges’ opinion that the 1973 accident did not cause plaintiff’s narcoleptic condition. Dr. Nilges also testified that after the 1977 accident plaintiff experienced numbness and tingling in the arms and legs. He attributed this to involvement of the nervous system, but not at the brain level. It was his belief that the 1977 accident and the injuries associated with it did not affect plaintiff’s narcoleptic condition.

Plaintiff contends that the evidence of these other injuries was improper because no connection to the Daley Center injury was established, citing Marut v. Costello (1964), 53 Ill. App. 2d 340, 202 N.E.2d 853, aff’d (1966), 34 Ill. 2d 125, 214 N.E.2d 768, and Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266. But those cases involve the admission of evidence that a plaintiff suing because of injury to one area of the body was previously injured in another area. Thus in Marut the plaintiff, in a suit based on claimed injuries to her lower back, was held to have been improperly cross-examined about injuries she sustained to her neck two years earlier. Similarly in Khatib, where the plaintiff claimed injury to his back and leg, it was held error for the trial court to permit him to be questioned concerning a prior injury to his shoulder. In this cause it was plaintiff’s theory that as the result of a blow to the head she developed narcolepsy. The other two accidents also had caused injuries to her head. Thus this case more closely resembles that of Vandermyde v. Chicago Transit Authority (1979), 73 111. App. 3d 984, 392 N.E.2d 48, where the reviewing court held that it was improper to bar defendants from questioning the plaintiff about a prior back injury when his claim was based on an alleged injury to his back.

We would also note that the plaintiff also claimed that as a result of her injuries from the Daley Center accident she was unable to engage in such activities as swimming and tennis. As we have noted, defendants were able to adduce from her the admission that injuries from the 1973 accident prevented her from engaging in these activities as late as one week before the Daley Center accident. Thus that earlier accident was relevant to the question of the extent to which her curtailed activities could be solely attributed to the Daley Center accident. For these reasons we find no error in the trial court’s ruling on this evidence.

II

At the instructions conference plaintiff tendered three instructions which she now contends related to the possibility that the 1973 accident was an additional or contributing cause of plaintiff’s narcolepsy.

The relevant portions of the instructions submitted were as follows:

“Negligence — Intervention of Outside Agency
If you decide that the defendants were negligent and that their negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.” (Illinois Pattern Jury Instruction, Civil, No. 12.05 (2d ed. 1971) (hereinafter cited as IPI Civil).) “Proximate Cause — Definition
When I use the expression ‘proximate cause’, I mean that cause which, in natural or probable sequence, produced the injury complained of.
[It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it causes the injury.]” (IPI Civil No. 15.01.)
“If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damage proved by the evidence to have resulted from the negligence of the defendant:
The aggravation of any pre-existing ailment or condition.” (IPI Civil Nos. 30.01, 30.03.)

The trial court refused all of No. 12.05, the bracketed portion of No. 15.01, and the last sentence of No. 30.03.

We find no merit to plaintiff’s contention that this was error because we find that an examination of the totality of the evidence provides no support for the theory that the 1973 accident caused or contributed to plaintiff’s narcolepsy. It was plaintiff’s contention at trial that the sole cause of plaintiff’s narcolepsy was the blow to the head she suffered in the Daley Center accident. Her expert medical witness, Dr. Nilges, specifically testified that the other accidents did not cause or contribute to her condition. And defendants’ expert medical witness, Dr. Klawans, testified unequivocally that narcolepsy could not be caused by any blow to the head. Clearly whether the jury accepted plaintiff’s theory or that of defendants they could not have found that the other accidents contributed to the causation of plaintiff’s narcolepsy.

Although a party has a right to have the jury instructed on his theory of a case provided there is a sufficient evidentiary basis for the instruction (Perry v. Chicago & North Western Transportation Co. (1977), 54 Ill. App. 3d 82, 369 N.E.2d 155; Wrighthouse v. Brown (1964), 52 Ill. App. 2d 191, 201 N.E.2d 752), it is reversible error for the court to instruct the jury on an issue not supported by the evidence (Shore v. Turman (1965), 63 Ill. App. 2d 315, 210 N.E.2d 232). In Shore the plaintiff sued for injuries arising out of an automobile accident. Evidence was introduced at trial that the plaintiff drank several bottles of beer several hours before his accident. However, all the witnesses on the subject also testified that he was not intoxicated. On these facts the appellate court held that it was reversible error for the trial court to instruct the jury on intoxication and its legal effect on due care because there was an insufficient factual foundation to support those instructions. In this cause we have held that the trial court properly refused to bar defendants from introducing evidence of other head injuries suffered by plaintiff where the condition was alleged to have been caused by such an injury. But when at the close of all the evidence it became clear that there was no testimony suggesting that those other injuries were related to that condition, it would have been error for the trial court to instruct the jury on such a causal theory. Accordingly, we find that the trial court properly refused the instructions at issue.

Ill

Finally, plaintiff contends that it was error for the trial court to submit the following special interrogatory, requested by defendants, to the jury:

“The jury is instructed to answer the following interrogatory ‘Yes’ or ‘No’:
If plaintiff is suffering from narcolepsy, was that condition proximately caused by the blow to the head which she received on the lower concourse area of the Daley Center on January 22,1975?”

The jury responded “No.”

At the instructions conference plaintiff objected to this interrogatory solely on the ground that it duplicated instructions already given to the jury. Only after the jury reached its verdict did plaintiff contend, as she does on appeal, that it was improper because it could not control the general verdict, was misleading and confusing to the jury, and the jury’s answer to it was subject to a number of varying interpretations. Special interrogatories must be tendered, objected to, ruled upon and submitted to the jury in the same manner as are instructions (Ill. Rev. Stat. 1979, ch. 110, par. 65) and thus specific objection to special interrogatories must be made at the instructions conference (Supreme Court Rule 239(b), 73 Ill. 2d R. 239(b); Casbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 406 N.E.2d 544). Because none of the contentions now raised by plaintiff were raised by her at- the instructions conference, she has waived them. Delany v. Badame (1971), 49 Ill. 2d 168, 274 N.E.2d 353; Migliore v. County of Winnebago (1974), 24 Ill. App. 3d 799, 321 N.E.2d 476; see Fontanne v. Federal Paper Board Co. (1982), 105 Ill. App. 3d 306, 434 N.E.2d 331.

IV

In her post-trial motion plaintiff included a request for costs in the amount of $6,845.61. The trial court granted this request in toto and defendants have cross-appealed from that order.

It is well established in Illinois that as costs were not recoverable at common law only those costs specifically designated by statute are recoverable by a prevailing party to a lawsuit. (Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157; Ritter v. Ritter (1943), 381 Ill. 549, 46 N.E.2d 41.) Thus attorney fees and the ordinary expenses of litigation are not allowable to a successful party as costs absent specific statutory authority or agreement by the parties. (Meyer v. Marshall (1976), 62 Ill. 2d 435, 343 N.E.2d 479.) Moreover, because costs statutes are in derogation of the common law they are to be strictly construed. (Department of Revenue v. Appellate Court (1977), 67 Ill. 2d 392, 367 N.E.2d 1302.) Yet in this cause the sole statutory authority cited by plaintiff in support of the costs she requested and received is section 7 of the costs statute (Ill. Rev. Stat. 1979, ch. 33, par. 7). That statute authorizes the award of costs to a successful litigant in general terms but it does not in itself specify what items of costs are allowable. Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157.

In addition to plaintiff’s failure to provide to either the trial court or this court specific statutory authority for the costs she received, it is apparent from the record that plaintiff was not entitled to some of the specific items of costs she was awarded. For example, she received $862.50 for Dr. Nilges’ “time” and $3,000 for the “time” of Henry Mikolajcyk, plaintiff’s expert architect. These amounts appear to represent in great part the fees charged by these expert witnesses. But in the absence of statutory authority experts’ fees are not taxable as costs. (In re Estate of James (1956), 10 Ill. App. 2d 232, 134 N.E.2d 638; see Hutchinson v. Hutchinson (1894), 152 Ill. 347, 38 N.E. 926.) Expert witnesses, like other witnesses, normally are only entitled to $20 per day and 20 cents per mile of necessary travel and even those amounts must be documented by affidavits from the witnesses. (Ill. Rev. Stat. 1979, ch. 53, par. 65; 73 Ill. 2d R. 208.) No such documentation is contained in this record. Other costs awarded to plaintiff apparently related to deposition expenses, but such expenses are only permitted to the extent they relate to depositions necessarily used at trial. (Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157.) Plaintiff’s only representation to the trial court concerning this was that the depositions at issue were discovery depositions.

On this record we could only speculate as to what portion of the costs awarded was proper. Accordingly, we vacate that award and remand the cause to the trial court for further proceedings in which the court may determine what costs, properly documented and supported by statute or court rule, will be awarded.

The judgment of the trial court is affirmed in all respects except for the order awarding costs, which is vacated, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part, vacated in part, and remanded.

JOHNSON, P.J., and LINN, J., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES WASHINGTON, Defendant-Appellant.
    First District (3rd Division)
    No. 80—2567
    Opinion filed December 30, 1982.

      Robert K. Amyer, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joan S. Cherry, David A. Shapiro, and Harry John Devereux, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

A jury found defendant, Charles Washington, guilty of murder and armed violence. (Ill. Rev. Stat. 1977, ch. 38, pars. 9—1, 33A—2.) The armed-violence conviction was dismissed, and defendant received a 28-year sentence for murder. Defendant contends that he was denied effective assistance of counsel due to his counsel’s conflict of interest in simultaneously serving as city prosecutor for Chicago Heights, a municipality with considerable connection to the Chicago offense for which defendant was prosecuted. Defendant also contends that the State failed to prove him guilty beyond a reasonable doubt. We reverse and remand.

On May 16, 1979, a Chicago Heights police officer, accompanied by two Chicago police officers, arrested defendant without a warrant for a murder which had occurred one and a half years earlier in Chicago Heights. Later that day, defendant was turned over to Chicago police officers, who put him in a lineup where two eyewitnesses identified him as the man who shot and killed Nathan Bottley in Chicago on May 7, 1979. Prior to the Bottley murder trial, defendant moved to quash his arrest and suppress the identifications. During the consolidated hearing on those motions, the assistant State’s Attorney informed the court that defense counsel was the city attorney for Chicago Heights. Defense counsel then stated that he told defendant that he could no longer represent him in the Chicago Heights case and that if defendant still wanted to be represented by him in the Chicago case, he anticipated that no Chicago Heights police officers would be called. The trial court then, without explaining to defendant the potential conflict, elicited defendant’s assent to the representation. Later in the hearing, the State called a Chicago Heights police officer whom defense counsel cross-examined. Subsequently, defense counsel himself called a different Chicago Heights police officer. At the conclusion of the hearing, the trial court found that the police had probable cause to arrest defendant for the Chicago Heights offense and that defendant was not in custody on the Chicago charge until a warrant issued against him. The trial court then denied both defense motions. The case proceeded to trial, and a jury found defendant guilty of murder and armed violence.

Defendant contends that he was denied effective assistance of counsel as a result of his counsel’s conflict of interest. Initially, the State maintains that defendant waived appellate review of his trial counsel’s conflict of interest because he failed to raise the issue at trial or in his post-trial motion for a new trial. We disagree. The conflict here was clearly brought to the attention of the trial court. Moreover, absent post-trial review by an independent attorney, appellate review of a defense counsel’s conflict of interest is not waived by the failure to raise the issue in a post-trial motion. (See People v. Hunt (1979), 73 Ill. App. 3d 1034, 1037, 392 N.E.2d 793, 795; People v. Mathes (1979), 69 Ill. App. 3d 275, 282, 387 N.E.2d 39, 43-44.) In this case, independent counsel first appeared weeks after defendant’s motion for a new trial and motion in arrest of judgment had been filed, argued and denied. (See People v. Arreguin (1981), 92 Ill. App. 3d 899, 901, 416 N.E.2d 402, 403.) We will therefore consider the merits of defendant’s argument.

The sixth amendment right to counsel includes a correlative right to representation free from conflicts of interest. (People v. Lewis (1981), 88 Ill. 2d 429, 436, 430 N.E.2d 994, 998, citing Wood v. Georgia (1981), 450 U.S. 261, 67 L. Ed. 2d 220, 101 S. Ct. 1097; Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708; Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173; Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457.) A defendant is entitled to the undivided loyalty of his attorney. (People v. Stoval (1968), 40 Ill. 2d 109, 111, 239 N.E.2d 441, 443, citing Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457.) Thus, defense counsel should not represent conflicting interests or undertake the discharge, of inconsistent obligations. (People v. Kester (1977), 66 Ill. 2d 162, 166, 361 N.E.2d 569, 571.) The Illinois Supreme Court has fashioned a per se rule under which prejudice is presumed and reversal is mandated where defense counsel is shown to have had conflicting professional commitments. (People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441; see People v. Fife (1979), 76 Ill. 2d 418, 392 N.E.2d 1345; People v. Coslet (1977), 67 Ill. 2d 127, 364 N.E.2d 67; People v. Kester (1977), 66 Ill. 2d 162, 361 N.E.2d 569; People v. Meyers (1970), 46 Ill. 2d 149, 263 N.E.2d 81.) Professional commitments have been found to conflict where defense counsel simultaneously served as a special assistant Attorney General, even though her duties were specific and noncriminal (People v. Fife (1979), 76 Ill. 2d 418, 392 N.E.2d 1345), and where defense counsel previously appeared for the State in the same case (People v. Kester (1977), 66 Ill. 2d 162, 361 N.E.2d 569). In the case before us, defense counsel served part-time as city prosecutor for Chicago Heights. We believe that counsel’s professional commitments inevitably conflict when such inherently inconsistent roles are undertaken and the employer-municipality is involved in the case in any significant way. Here, defense counsel’s employer, the city of Chicago Heights, was significantly involved since the legality of defendant’s arrest and identification depended to some extent upon the activities of Chicago Heights police officers.

The State contends, however, that no conflict arose in this case because defense counsel’s prosecutorial authority did not extend to any State charges or to any case outside Chicago Heights. In support of its position, the State relies on People v. Satterwhite (1967), 38 Ill. 2d 138, 230 N.E.2d 206, and People v. Garrett (1978), 57 Ill. App. 3d 906, 373 N.E.2d 792. We believe both cases are distinguishable. In Satterwhite, which was decided before the formulation of the per se rule, the defendant merely asserted in a post-conviction petition that his defense counsel was also an assistant corporation counsel for the city of Chicago. In Garrett, the defense counsel simultaneously served as mayor of a city that was not significantly involved in the case, and he only represented the defendant with regard to the motion to withdraw his guilty plea, not the plea itself.

Although we acknowledge the limited scope of defense counsel’s prosecutorial duties, we believe that the critical question concerns the scope of his professional commitments, an inquiry which demands consideration of the realities of his practice and the ethical responsibilities of his position. We note, as have other courts, that when a city attorney prosecutes violations of city ordinances, city police officers are the primary, if not sole, prosecution witnesses. (See, e.g., People v. Rhodes (1974), 12 Cal. 3d 180, 183-84, 524 P.2d 363, 365, 115 Cal. Rptr. 235, 237; Karlin v. State (1970), 47 Wis. 2d 452, 458-59, 177 N.W.2d 318, 321-22.) Therefore when a city prosecutor acts as defense counsel in a case where his own city police officers are involved, a struggle inevitably arises between counsel’s obligation to represent his client competently and zealously, and “a public prosecutor’s natural inclination not to anger the very individuals whose assistance he relies upon in carrying out his prosecutorial responsibilities.” (People v. Rhodes (1974), 12 Cal. 3d 180, 184, 524 P.2d 363, 366, 115 Cal. Rptr. 235, 238.) This type of conflict operates to deprive a defendant of the undivided loyalty of his counsel. Moreover, “it places an additional burden on counsel, however conscientious, and exposes him unnecessarily to later charges that his representation was not completely faithful.” (People v. Stoval (1968), 40 Ill. 2d 109, 113, 239 N.E.2d 441, 444.) In addition, a public prosecutor’s vigorous representation of a criminal defendant may interfere with essential interdependent and supportive relationships among law enforcement agencies, thereby endangering the proper functioning of the criminal justice system. (See People v. Rhodes (1974), 12 Cal. 3d 180, 184, 524 P.2d 363, 366, 115 Cal. Rptr. 235, 238.) Finally, public confidence in the integrity and impartiality of the criminal justice system demands that public officials avoid even the appearance of impropriety. This demand echoes an attorney’s personal professional responsibility. (Ill. Rev. Stat. 1981, ch. 110A, Canon 9.) Since the nature and duties of a public prosecutorial position are inherently incompatible with those of criminal defense when the employer-municipality is involved in the case in any significant way, we conclude that defendant was denied effective assistance of counsel here.

The State further argues that even if defense counsel had a conflict of interest in this case, defendant effectively waived his sixth amendment right to conflict-free representation. We disagree. We must apply every reasonable presumption against waiver of fundamental constitutional rights, and, in determining whether the right to counsel free from any conflict of interest has been knowingly and intelligently waived, we must look to the circumstances of the particular case, including the background, experience and conduct of the defendant. See Johnson v. Zerbst (1937), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023.

Here, defense counsel apparently recognized that his prosecutorial position with Chicago Heights created a conflict which precluded him from representing defendant in the Chicago Heights case, for he advised defendant that he could no longer represent him in that case and withdrew from it. Apparently, defense counsel believed he could represent defendant in the Chicago case, but in offering his continued representation to defendant, he told defendant that he did not expect any Chicago Heights police officers to be called. Early in the hearing on defendant’s motions to quash arrest and to suppress identifications, before Chicago Heights police officers were called, the trial court considered defendant’s assent to representation by the part-time prosecutor for Chicago Heights. However, the court neither probed defendant’s understanding of the conflict nor tested the knowledge-ability of defendant’s assent. Rather, the court asked, “[Y]ou have no objection to counsel representing you on this matter?” Defendant responded, “No, judge.” Later, when Chicago Heights police officers were called to testify, neither defense counsel nor the trial court questioned defendant to determine whether he wanted to withdraw his assent.

Since an important potential source of conflict here was the “subconsciously compromising effect” which counsel’s prosecutorial position might have had on defendant’s defense (see People v. Meyers (1970), 46 Ill. 2d 149, 152, 263 N.E.2d 81, 83), this is clearly not a case where defendant did not require an explanation by the trial court or by counsel to alert him to the potential conflict (see People v. Lewis (1981), 88 Ill. 2d 429, 437, 430 N.E.2d 994, 998). Furthermore, the record does not suggest that defendant had any experience with the legal system which would add to his ability to appreciate the relationships of parties and the possibility of conflicting interests (see People v. Stroner (1982), 104 Ill. App. 3d 1, 7, 432 N.E.2d 348, 352). Given the nature of the conflict, the lack of explanation, and the background of defendant, we conclude that defendant never knowledgeably assented to representation by counsel with a conflict of interest and did not knowingly and intelligently waive his sixth amendment right to conflict-free representation. Since defendant did not have conflict-free representation, we conclude that he is entitled to a new hearing on his pretrial motions and a new trial.

In view of our decision that defendant should be given a new hearing on his pretrial motions and a new trial, the only other issue we need to address is whether defendant was proved guilty beyond a reasonable doubt. Defendant argues that the reliability of his identification is doubtful. Defendant called several witnesses who either placed him elsewhere at the time of the occurrence or could not identify him as the perpetrator of the crime. There were, however, two witnesses who had an opportunity to view the perpetrator, and they positively identified defendant. We therefore believe that the evidence was sufficient for a jury to conclude that defendant was guilty beyond a reasonable doubt. This does not mean that we are making a finding as to defendant’s guilt or innocence which would be binding on retrial, but rather, our consideration of the sufficiency of the evidence protects defendant’s constitutional right against double jeopardy as mandated by People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375. See People v. Clark (1980), 84 Ill. App. 3d 637, 642, 405 N.E.2d 1192, 1195-96.

Accordingly, the judgment is reversed, and the case is remanded for a new hearing on defendant’s pretrial motions and a new trial.

Reversed and remanded.

WHITE, P.J., and McGILLICUDDY, J., concur.

      The Illinois Supreme Court has determined that the per se rule does not apply where a defendant alleges ineffective assistance of counsel due to joint representation, in those situations, a defendant must show “an actual conflict of interest manifested at trial.” (People v. Berland (1978), 74 Ill. 2d 286, 299-300, 385 N.E.2d 649, 655.) Thus, Illinois law does not diverge, as the State suggests, from that set forth in Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708, a case involving multiple representation.