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    EDWARD SIMMONS, Plaintiff and Counterdefendant-Appellee, v. UNION ELECTRIC COMPANY, Defendant and Third-Party Plaintiff-Appellant (Sachs Electric Company, Third-Party Defendant and Counterplaintiff-Appellee).
    Fifth District
    No. 83—197
    Opinion filed January 10, 1984.
    Rehearing denied February 7, 1984.

      Pope and Driemeyer, of Belleville (Karl D. Dexheimer and Thomas F. Hennessy III, of counsel), for appellant.
    Amiel Cueto, of Cueto and Moore, Ltd., of Belleville, for appellee Edward Simmons.
    Bruegge and Becker, of Breese (William J. Becker, of counsel), for appellee Sachs Electric Company.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Plaintiff Edward Simmons commenced this action in the circuit court of St. Clair County to recover damages for personal injuries suffered in a fall from a ladder at the Cahokia power plant owned by defendant Union Electric (UE). The complaint was based upon the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.) and common law negligence. UE, in turn, filed a third-party complaint seeking indemnity or contribution from the plaintiff’s employer, electrical contractor Sachs Electric Company (Sachs). Following a bench trial, the court entered judgment for the plaintiff and against UE on the Structural Work Act count of the complaint. Damages were assessed at $219,000. Judgment was also entered against UE and in favor of Sachs on the third-party complaint.

UE appeals from this judgment and presents several issues to this court. It first contends that the trial court should have entered judgment in its favor on the Structural Work Act count of the plaintiff’s complaint. It also maintains that the award of damages was excessive, that the court erroneously failed to grant it contribution or indemnity on the third-party complaint, and that the trial judge erred in not recusing himself due to a credit dispute with UE. Sachs denies that UE was entitled to contribution or indemnity from it, but argues that if we held otherwise, then it adopts UE’s arguments pertaining to the award of damages and the trial judge’s duty to recuse himself. Sachs further asserts that if UE is granted contributions or indemnity from it, then Sachs should be allowed indemnity or contribution from the plaintiff.

Simmons was injured on December 19, 1978, at the site of a power plant owned by UE in Cahokia, Illinois. The plant was built in 1923, and much of it is below the water level of the Mississippi River. It had been determined that the plant was no longer suitable for the generation of electricity, and so in 1976, those functions ceased at the plant. UE kept the site in use as an electrical substation until October 1977, when the plant was taken out of service entirely. From that point, UE did not maintain permanent, full-time employees at the plant. Instead, it entered into contracts with two independent concerns.

One of the contractors, Easterling and Steinmetz, provided security personnel for the plant. The other contractor was Sachs. Pursuant to its first contract proposal submitted to and accepted by UE, Sachs installed an electrical system to furnish outside power to certain sections of the plant which had been powered previously by electricity generated within the plant. This power would allow the continued operation of pumps, lights, cranes and other devices which would keep the plant’s premises in a secure and dry condition pending location of a buyer. UE engineers designed and defined the scope of the new electrical system.

Sachs’ second contract proposal resulted in a time and materials contract whereby Sachs would maintain and repair the system which it had installed. This contract did not require Sachs to keep full-time personnel on the premises of the plant. If a problem arose with the electrical system, UE would normally become aware of it through its employees who visited the plant on an occasional basis or from security personnel. UE would then contact Sachs, which would dispatch personnel to the plant.

On December 19, 1978, the plaintiff was at another jobsite when his foreman informed him of a trouble call at the plant. The plaintiff, a journeyman electrician, left with apprentice Jim Perry for the plant. Perry died before trial from injuries sustained in an automobile accident. When the men arrived at the plant, they learned that there had been a pump failure in the plant’s north ash pit. The pit is a structure of several levels, encased in concrete and primarily below ground level. The bottom level, which is approximately 15 feet in depth, was almost entirely flooded. That level of the pit is separated from the middle level by a concrete floor, upon which rest the motors to two permanent sump pumps. Those pumps were designed to drain water from the entire pit, including the bottom level. A mobile, temporary sump pump had been placed at the bottom of the pit to remove water in case the permanent pumps did not work.

The plaintiff was not certain whether he and Perry were met by a UE employee at the plant or whether they were met by a security guard. Nonetheless, they were shown to the pit where they observed the flooding. They went to the switch box and determined that an electrical failure had occurred in the temporary pump, not in the permanent pumps. The permanent pumps had not worked because of a defective.float, which had not activated them when the bottom level of the pit became flooded. The plaintiff and Perry adjusted that float and then used the two permanent pumps to rid the bottom level of water.

The plaintiff was of the opinion that several fuses had been blown on the temporary pump. In any case, it was decided that the pump had to be removed from the pit for inspection and repair. Because the pump was heavy, it could not be lifted by hand, and a hoist had to be attached to the- pump, which -could then be lifted by a winch on a truck at ground level. The plaintiff and Perry dropped the hoist into the bottom of the pit, and also extended a temporary light into that area. To gain access to the pump, the plaintiff started to descend to the bottom of the pit by way of a ladder which had been affixed to a concrete wall. As he did so, his feet slipped from one of the rungs, and he fell to the floor, landing on some debris. At trial, the plaintiff was of the opinion that he slipped from the ladder because it became covered with oil during the removal of the water from the pit. In a deposition taken before trial, he stated that he did not know if there was anything on the ladder that caused him to slip, and he did not know why he fell.

APPEAL OF UE AGAINST PLAINTIFF

The threshhold issue presented by UE is whether the plaintiff was covered by the Structural Work Act when he was injured. The Act covers support devices used in “the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure.” (Ill. Rev. Stat. 1981, ch. 48, par. 60.) The device which the plaintiff was attempting to repair when he fell was a temporary sump pump. This pump was never attached to the pit itself, but had only been set in place at the bottom of the pit and, in fact, had been moved by Sachs “a number of times.” Thus, according to UE, the plaintiff was in the process of repairing a piece of machinery and was not engaged in structural work at the time of his injury. UE concludes that he was therefore not covered by the Act.

Whether a plaintiff was engaged in structural work when he was injured is a question of law. (See, e.g., Long v. City of New Boston (1982), 91 Ill. 2d 456, 440 N.E.2d 625; Cooley v. Central Illinois Public Service Co. (1982), 110 Ill. App. 3d 685, 442 N.E.2d 1330; Kelly v. Northwest Community Hospital (1978), 66 Ill. App. 3d 679, 384 N.E.2d 102.) As the language of the Act plainly indicates, this inquiry requires a two-part analysis. First, was the plaintiff erecting, altering, removing, painting or cleaning (Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 302 N.E.2d 64) something? Second, was the object of the plaintiff’s activities a house, building, bridge, viaduct or other structure? We have no doubt that the plaintiff was employed in repair work at the approximate time he was injured. The question then becomes whether he was repairing a structure.

Before we can answer this question, we must determine the temporal limits to our inquiry into the plaintiff’s activities. In other words, must we look only at the specific action undertaken by the plaintiff as he was injured, or should we consider the plaintiff’s role in a larger project? This can be quite significant in many cases. For example, if a carpenter was injured while nailing together boards which had not yet been attached to a building under construction, it could be argued that the carpenter was working on lumber and not on a structure, when he was injured. However, the Act is to be given a liberal construction to effectuate its purpose of protecting persons in the extrahazardous occupations of working in and about the construction, repair, alteration or removal of structures (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 151, 317 N.E.2d 573, 576), and to ask only what the plaintiff was doing at the precise moment of injury would not further that purpose. Courts have instead attempted to ascertain whether the actions of the plaintiff were connected with, and significantly furthered, one of the activities enumerated in the Act. (McNellis v. Combustion Engineering, Inc.; Prange v. Kamar Construction Corp. (1982), 109 Ill. App. 3d 1125, 441 N.E.2d 889; Gall v. Metropolitan Sanitary District (1982), 109 Ill. App. 3d 502, 440 N.E.2d 973; Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 418 N.E.2d 1011.) If the plaintiff’s actions, seen in a broad context, are not an integral part of the erection, alteration, removal, painting or cleaning of a structure, then he is not covered by the Act as a matter of law. Cooley v. Central Illinois Public Service Co.; Allen v. Godar (S.D. Ill. 1979), 476 F. Supp. 172.

Under these principles, we can see that UE’s argument is based on an unduly narrow view of the scope of our inquiry into the connection of the plaintiff with a structural work activity. The plaintiff was not sent to the plant solely to repair the mobile, temporary sump pump. His task was to repair the entire pump system — permanent and temporary — and to make repairs on the electrical system if that was necessary to accomplish that goal. The question in this case is therefore whether the pump system in the ash pit was a structure under the Act.

In Navlyt v. Kalinich (1972), 53 Ill. 2d 137, 290 N.E.2d 219, the plaintiffs’ decedent was killed by the collapse of a trench, in which he was installing sewer tiles in connection with townhouse units under construction by the defendant. The question presented to the supreme court was whether the sewer system upon which the plaintiffs’ decedent had worked was a structure. The court held that the system was in fact a structure, and also agreed with the appellate court that work performed below ground is not necessarily not work on a structure.

The pump system in UE’s ash pit is functionally similar to the sewer system in Navlyt. Both are affixed to the buildings they serve, and both systems, by preventing water damage to those buildings, are important in ensuring that the buildings will not suffer major structural damage. In fact, given this function, it might be said that the plaintiff’s repair of the pump system was tantamount to repairing the pit itself. We believe that the plaintiff was repairing a structure when he fell from the ladder and was therefore covered by the Structural Work Act as a matter of law.

UE further contends that even if the plaintiff was engaged in structural work, the court erred in finding that UE was “in charge of” the work at the power plant. It is UE’s position that we should review this question as an issue of law, not an issue of fact and that we are not limited to reversing the decision of the trial court only if it is contrary to the manifest weight of the evidence. In Crum v. Gulf Oil Corp. (1979), 70 Ill. App. 3d 897, 388 N.E.2d 1008, we held that the “manifest weight of the evidence” standard did not apply to our review of a case in which uncontroverted facts were determinative of the issue presented on appeal. There, the parties stipulated to the facts presented in transcripts of two previous trials. In this case, no stipulation has been entered into and there are several factual questions which are disputed. For example, at different times, the plaintiff gave different answers to the questions of whether a UE employee met him at the plant when he first arrived, whether oil on the ladder was the reason for his fall, and how many times he had visited the plant before the accident. These contested facts, among others, show that whether UE was in charge of the work was a factual determination which will not be disturbed unless contrary to the manifest weight of the evidence. Scrimager v. Cabot Corp. (1974), 23 Ill. App. 3d 193, 318 N.E.2d 521.

The phrase “having charge of,” as included in section 9 of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 69) is not synonymous with the exercise of supervision and control over the work, nor with the retention of the right to exercise that supervision and control. (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 211 N.E.2d 247.) It is instead a generic term, one which has been read broadly by our courts. (Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 373 N.E.2d 1348.) Whether a party has charge of the work performed is a question which requires attention to a number of different factors. Recently, in Chance v. City of Collinsville (1983), 112 Ill. App. 3d 6, 445 N.E.2d 39, we enumerated many of the factors which have been deemed significant by the courts in determining whether a party is in charge of the work. These include, but are not limited to, (1) supervision and control of the work; (2) retention of the right to supervise and control the work; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) responsibility for taking safety precautions at the jobsite; (6) authority to issue change orders; (7) the right to stop the work; (8) ownership of the equipment used at the jobsite; (9) a party’s familiarity with construction customs and practices; and (10) whether a party was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits. (Chance v. City of Collinsville (1983), 112 Ill. App. 3d 6, 11, 445 N.E.2d 39, 42.) Any of these conditions, if present, will be relevant to whether a party has charge of the work, but, contrary to the assertions in the plaintiff’s brief, the mere presence of one of the factors does not require a finding that a party is in charge of the work.

Consistent with the analysis formulated in Chance and other cases, it has been held that the status of ownership of premises on which work was being done does not, of itself, render the owner in charge of the work. (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 394 N.E.2d 403; Daniels v. Weiss (1974), 17 Ill. App. 3d 294, 308 N.E.2d 46.) UE insists that it was no more than the owner of the power plant and was therefore not in charge of the work. There were no permanent UE employees at the plant during the period in question, nor was a UE employee at the site when the plaintiff was injured. Under the contract between Sachs and UE, the work at the plant was “to be performed under the general direction, supervision, and responsibility of” Sachs, and Sachs was required to “exercise due care and take all appropriate safety precautions necessary or advisable for the prevention of accidents.” The contract also obligated Sachs to provide its workers with tools and equipment, including safety equipment. The plaintiff testified that, with the exception of certain hand tools owned by him, he would look to Sachs to obtain equipment necessitated by the job. Sachs maintained a room at the plant for the storage of equipment, but the plaintiff recalled that that room was not used until after the accident. According to the plaintiff, if he needed additional workers to complete a particular task, he would seek them from Sachs.

All of this evidence furthers UE’s claim that it was not in charge of the repair work performed by Sachs. However, there are other facts which tend to establish that it did have that charge of the work. As noted above, the scope of the electrical system for which Sachs initially submitted a bid was set by UE engineers. The contract for the maintenance of that system provided that although the work was to be done pursuant to the direction and supervision of Sachs, it was to be “subject to inspection and final acceptance” by UE. At trial, UE senior supervising engineers Paul Brendel and David Klumb testified that they visited the plant approximately once every week or two during its closed period. Brendel explained that a purpose of those visits was to ensure that the plant was kept in a secure and dry condition so that it could be shown to prospective purchasers. This necessitated determining if “the contract was working in a sensible fashion” and if the services of Sachs were needed. It must be conceded, also, that Sachs’ personnel were not sent to the plant unless specifically requested by UE employees to perform maintenance work. Finally, the contract stated, in a clause entitled “Inspection by Company,” that Sachs must give UE’s engineers “free access to the work and whenever requested shall furnish them with full information as to the progress of the work in its various stages.”

This case is somewhat unusual among Structural Work Act cases, for there was no continuous activity at the jobsite. We therefore do not view the absence of permanent UE employees from the power plant as particularly significant. More important, we believe, was UE’s guiding role in delineating the extent of the electrical system project, in summoning Sachs when work needed to be done, and in periodically inspecting the premises of the plant to see if the maintenance had been completed. The presence of agents on the jobsite with the authority to inspect the work has been deemed important in other decisions upholding findings that a party was. in charge of the work. (Ilic v. Henry Crown & Co. (1981), 97 Ill. App. 3d 231, 422 N.E.2d 892; Smith v. Georgia Pacific Corp. (1980), 86 Ill. App. 3d 570, 408 N.E.2d 117.) This factor, among others, demonstrates that in this case, the trial court’s ruling that UE was a party in charge of the electrical maintenance work was not contrary to the manifest weight of the evidence presented at trial.

Next, UE maintains that the plaintiff did not show that it wilfully failed to comply with the Act. It is only a wilful failure to comply with the Structural Work Act which will subject a party to liability. (Ill. Rev. Stat. 1981, ch. 48, par. 69.) A wilful violation of the Act occurs when one having charge of the work knows that a dangerous condition exists on a support device or, by the exercise of reasonable care, could have discovered the existence of the condition. (Peoples v. Granite City Steel Co. (1982), 109 Ill. App. 3d 265, 440 N.E.2d 363.) UE reasons that the only way it could have known about the oil on the ladder was through Sachs, and the only way that Sachs could have discovered the condition was if the plaintiff learned of it. But, when asked at trial if he knew that there was oil on the ladder before he began to descend, the plaintiff consistently replied that he did not, and also stated that there was no way that he could have prevented the accident. From this evidence, UE concludes that it could not or should not have known of the oil on the ladder.

However, the fact that the plaintiff was not aware of the dangerous condition of the ladder does not undermine the trial court’s decision that UE wilfully violated the Act. Kenneth Bridegroom, the manager of UE’s mechanical engineering department, testified that he was familiar with the occasional flooding of certain portions of the plant, such as the ash pits. According to Bridegroom, oil could become mixed with the flood waters through contact with greasy equipment in the pits, or possibly through drainage from the powerhouse itself. UE engineer David Klumb agreed with this explanation and recalled that upon the flooding of the plant in March 1978, UE hired a company to remove oil after the flood water was removed. Sachs’ vice-president Larry Walker noted that anyone who had worked around the pits after a flood would have seen the oil and debris floating on the water and would have prior knowledge that any surface which had been submerged in one of these floods would be oily. In answer to questioning posed to him in a pretrial deposition, the plaintiff admitted that perhaps he should have known that there would have been oil on the ladder.

This evidence indicates that although neither the plaintiff nor UE knew that there was oil on this particular ladder, UE had the opportunity to learn of the oily conditions in the flooded areas of the plant, and in fact, its employees were knowledgeable about previous instances where the flooding had left oil-covered surfaces in its wake. Since, according to the accepted test for the existence of a wilful violation, such a violation occurs if a dangerous condition could reasonably have been discovered (Moore v. Clearing Industrial District, Inc. (1978), 64 Ill. App. 3d 391, 380 N.E.2d 1063), the absence of actual knowledge of the condition by UE is not a logical answer to the finding of a wilful violation. The creation of slippery surfaces after flooding was not a momentary, unique problem which would have been difficult to detect. It was instead a periodic occurrence known to UE employees. Under this evidence, the trial court did not err in deciding that UE wilfully violated the Act.

UE challenges the amount of damages awarded to the plaintiff as excessive. The three primary witnesses on the issues pertaining to those damages were the plaintiff, orthopedic surgeon Ronald Her-tel and Jim Hankins, assistant business manager for Local 309, International Brotherhood of Electrical Workers. Hankins, who handles the referral procedure at the union’s hiring hall, was asked several hypothetical questions concerning the plaintiff’s future employability. UE asserts that this testimony constituted error because Hankins, who is not medically trained, was required to assume the plaintiff’s medical condition to answer those questions. We need not determine whether Hankins’ testimony was improperly admitted at trial, because, even disregarding that evidence, the record supports the award of damages.

After the accident, Dr. Hertel diagnosed the plaintiff as having chondromalacia of the patella, which is a wearing of the smooth cartilaginous surface of the kneecap. He also suffered a tear of the medial meniscus, or the cartilage on the inside of the knee. The plaintiff complained of pain in his right knee while climbing stairs after the accident, and he did not feel that pain before the accident. Dr. Hertel explained that the tear of the meniscus was unequivocally caused by the accident, but he could not say within a reasonable degree of medical certainty whether the accident contributed to the chondromalacia. He was of the opinion that the plaintiff had developed some sort of malalignment of the connection between the patella and the femur, and this pre-existing condition probably arose before the plaintiff reached skeletal maturity. Dr. Hertel was uncertain how much of the chondromalacia existed before the accident because of that malalignment, and thus he could not state whether the accident accelerated the chondromalacia.

The plaintiff worked continuously between the time of the accident and January 1980. At that time, he was hospitalized for approximately a week to have the torn portion of the meniscus removed. The plaintiff was on crutches for three weeks after the surgery, and could not return to work until May 1980. Dr. Hertel had released him for work, without restrictions, about a week earlier. In late May 1980, a procedure known as a patella shaving was performed on the plaintiff as an in-patient. Dr. Hertel again released him to return to work without restrictions in July 1980. Hertel testified that he had no contact with the plaintiff as a patient since that time, and in fact, scheduled an appointment with the plaintiff in September 1980, but the plaintiff did not show up. The plaintiff denied missing any appointments with Hertel.

After the accident, the plaintiff continued to work for Sachs for several months, primarily at Granite City Steel Company. He was informed that he was going to be transferred to another assignment, which would require him to do a certain amount of heavy lifting. The plaintiff then left the employment of Sachs because he was unable to do heavy lifting due to the pain in his right knee. He went to the union hall and was hired by Wright Electric. The Granite City job paid the plaintiff $1,900 a week because the plaintiff was assigned to work a considerable number of overtime hours. The Wright job paid him $1,339 per week less, and, as the Granite City job lasted for eight weeks after the plaintiff left Sachs, the plaintiff estimated that he lost $10,712 in wages by changing assignments. Between the first and second surgeries, the plaintiff missed 16 weeks of work at Wright, at a salary of $581 per week, for a wage loss of $9,296. After the second surgery, the plaintiff lost $2,324 in wages before he started to work for Lowery Electric, which currently employs him. In 1981, the plaintiff’s gross income was $33,760, while, by August 13, 1982, he had earned $19,236. Adding the losses due to the departure from Sachs and the missed time after surgery, the plaintiff estimated that, to the time of trial, he lost a total of $22,332 in wages because of the accident. The plaintiff also contends that he lost at least $4 per hour in earning capacity because he no longer worked as a foreman after the accident. However, it is difficult to quantify that loss because the plaintiff did not work exclusively as a foreman prior to the accident and the evidence does not establish what proportion of his employment was as a foreman before the accident.

The plaintiff incurred $5,249 in doctor and hospital bills as a result of his injuries. Dr. Hertel stated that the surgical scars will be permanent, and the plaintiff will develop osteoarthritis in his right knee at a rate faster than that expected by an individual without the plaintiff’s condition. He believed that the plaintiff may need surgery in the future to relieve recurring symptoms of chondromalacia. He also stated that the plaintiff suffered permanent injury as a result of the accident. At trial, the plaintiff testified that he continued to have pain after the accident, and his injuries have limited his ability to perform certain types of work. For example, he noted that his right knee frequently goes out on him while climbing, and thus he can no longer climb very high with safety. He also cannot climb stairs or ladders regularly on the job because his knee would give him pain. Finally, the plaintiff testified that that pain curtailed his ability to lift heavy objects, as is occasionally required in his employment.

An award of damages is excessive if the amount falls outside the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience. Damages, being particularly within the province of the trier of fact, will not be disturbed on appeal unless obviously the result of passion or prejudice. (King v. City of Chicago (1978), 66 Ill. App. 3d 356, 384 N.E.2d 22.) Comparison to other awards is not often helpful, but we should keep in mind such factors as the permanency and extent of the injuries suffered, the plaintiff’s age, the possibility of deterioration in the future, the medical expenses incurred, past and future wage losses, and any restrictions which the injuries may have placed on the daily activities of the plaintiff. Here the plaintiff was 47 years old at the time of trial, lost at least $22,000 in wages and incurred $5,200 in medical expenses. His injuries are permanent and disfiguring, restrict his movement at home and at work, and will become progressively worse, possibly requiring additional surgery. With this evidence, we believe that the award of damages lies within the realm of reasonable compensation (see Lapidus v. Hahn (1983), 115 Ill. App. 3d 795, 450 N.E.2d 824; Kottmeyer v. Consolidated Rail Corp. (1981), 98 Ill. App. 3d 365, 424 N.E.2d 345), and is therefore affirmed.

As its final assignment of error against the plaintiff, UE insists that the trial judge erred in not recusing himself sua sponte from this case because of an acrimonious utility bill dispute concerning service to the judge’s residence. This argument is of course equally applicable to UE’s appeal against Sachs. No evidence pertaining to the credit dispute was presented to the trial court, but before this case was argued, UE moved to amend the record on appeal to include the affidavit of one of its customer service supervisors along with several records relevant to the credit status of the trial judge with UE. We denied this motion to amend the record, and we adhere to our original ruling.

Generally, a party may not supplement the record on appeal with new evidence never considered by the trial court. (Kohler v. Central & Southern Truck Lines, Inc. (1977), 45 Ill. App. 3d 621, 360 N.E.2d 89.) Supreme Court Rule 329 (87 Ill. 2d R. 329) does allow supplementation of the record “to present fully and fairly the questions involved” but this rule has been construed as being limited to the amendment of the record with matter which was before the trial court. (People v. Carroll (1977), 49 Ill. App. 3d 387, 364 N.E.2d 408.) Moreover, in considering a motion to amend the record, the reviewing -court must be mindful of the fairness of granting or denying such a motion. (Denniston v. Skelly Oil Co. (1977), 47 Ill. App. 3d 1054, 362 N.E.2d 712.) Even if the affidavit and the trial judge’s credit record were proper material with which to supplement the record, and not new matter on appeal, we believe that it would be unfair to the other parties to grant UE’s motion to amend the record. That motion alleges that the dispute with UE occurred in November 1981, approximately nine months before trial in this case. The knowledge gained by a corporate employee or agent in the scope of his or her employment will be imputed to the corporation (Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 434 N.E.2d 511), and therefore, UE had knowledge of the credit dispute long before trial, even if its trial counsel did not. We confirm our original denial of UE’s motion to amend the record.

Because there is no evidence pertaining to the alleged conflict of interest by the trial judge, we cannot consider those issues. The judgment in favor of the plaintiff and against UE for $219,000 is accordingly affirmed.

APPEAL OF UE AGAINST SACHS

UE maintains that the trial court erred in entering judgment against it and in favor of Sachs on the third-party complaint. It argues that the evidence shows that Sachs was liable to it because of an indemnity clause in the maintenance contract between Sachs and UE or because of the existence of a pretort relationship which supports a claim for common law indemnity or contribution. We doubt that the indemnity clause is enforceable (see Cox v. Lumbermens Mutual Casualty Co. (1982), 108 Ill. App. 3d 643, 439 N.E.2d 126), but we need not consider UE’s contractual indemnity or contribution arguments, for we find that UE was entitled to common law indemnity from Sachs as a matter of law.

Indemnity is available to a Structural Work Act defendant whose conduct is “passive” or “minor fault” in comparison to the “active” conduct or “major fault” of the third-party defendant. (LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App. 3d 729, 442 N.E.2d 1367.) Characterizing conduct as active or passive involves a weighing of the relative faults of each party. (Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 392 N.E.2d 628.) The failure of a party to discover a defective support device does not constitute active conduct under the Act. (Gadd v. John Hancock Mutual Life Insurance Co. (1971), 5 Ill. App. 3d 152, 275 N.E.2d 285; Lindner v. Kelso Burnett Electric Co. (1971), 133 Ill. App. 2d 305, 273 N.E.2d 196.) Nor is a party rendered actively in violation of the Act by ensuring that a contractor or subcontractor made satisfactory progress and that its work conformed to specifications. Kleeman v. Fragman Construction Co. (1980), 91 Ill. App. 3d 455, 414 N.E.2d 1064; Nogacz v. Proctor & Gamble Manufacturing Co. (1975), 37 Ill. App. 3d 636, 347 N.E.2d 112.

In support of the trial court’s judgment on the third-party complaint, Sachs argues that UE’s participation in the maintenance of the plant amounted to more than ensuring that the contract was performed, and its dereliction under the Act consisted of more than the mere failure to discover the oil on the ladder. It asserts that UE had the responsibility to remove debris and oil from the premises, and UE in fact hired an independent contractor to clean the plant after the March 1978 flood.

Another way to state the issue presented in an indemnity action under the Act is that a party is entitled to indemnity if its conduct only secondarily contributed to the plaintiff’s injury and the party did not breach an affirmative duty owed to the plaintiff. (Svenson v. Miller Builders, Inc.) As we noted earlier, the contract between UE and Sachs placed the responsibility to “take all appropriate safety precautions necessary or advisable for the prevention of accidents” upon Sachs, and required Sachs to provide its workers with needed equipment, including safety equipment, such as rags to clean up any working surfaces. The plaintiff testified that if he needed additional material or manpower to do the job more safely, he would have obtained them from Sachs, not UE. Moreover, there were no UE employees at the ash pit when the plaintiff was working on it.

This evidence reveals a qualitative difference between the role of UE and the role of Sachs in contributing to the plaintiff’s accident. UE, while “in charge” of the maintenance, acted only in a limited capacity at the plant, confining itself largely to determining whether maintenance work had been done properly. It had no employees at the plant when the plaintiff was injured. Sachs, ón the other hand, was entrusted with the details of the work, including those pertaining to safety. This relationship, arising by contract, created an affirmative duty to the plaintiff which Sachs, rather than UE, was primarily responsible for breaching. Consequently, a comparison of the fault of UE with the fault of Sachs reveals that Sachs was guilty of active or major fault as a matter of law. (Rynders v. Sangamo Construction Co. (1982), 103 Ill. App. 3d 552, 431 N.E.2d 1357; Jones v. McDougal-Hartmann Co. (1969), 115 Ill. App. 2d 403, 253 N.E.2d 581.) The judgment against UE on its third-party complaint must therefore be reversed, and judgment is accordingly entered against Sachs for indemnity for the damages awarded the plaintiff.

APPEAL OF SACHS AGAINST PLAINTIFF

Sachs argues that, in the event that we find, as we have done, that UE is entitled to indemnity from it, then Sachs is entitled to implied indemnity or contribution from the plaintiff. Sachs has not perfected a cross-appeal from the judgment of the trial court. Normally, when an appellee does not file a cross-appeal, the reviewing court will be confined to issues raised by the appellant, and will not consider issues presented by the appellee, except to the extent that they are related to the appellant’s issues. (Material Service Corp. v. Department of Revenue (1982), 105 Ill. App. 3d 74, 434 N.E.2d 763; National Football League Properties, Inc. v. Dallas Cap & Emblem Manufacturing, Inc. (1975), 26 Ill. App. 3d 820, 327 N.E.2d 247.) But this rule does not prevent us from considering Sachs’ assignment of error against the plaintiff. It should be remembered that Sachs was an entirely successful litigant in the court below, and its indemnity or contribution claim against the plaintiff does not seek reversal or modification of the judgment as entered in the trial court. That claim is an alternative argument, directed against a possible modification of the judgment by this court. (Compare Lazarich v. Zadeika (1966), 78 Ill. App. 2d 236, 223 N.E.2d 231 (abstract).) We do not see that any purpose would be served in requiring an appellee to file a cross-appeal in order to preserve conditional arguments against action which may be ordered by this court, and therefore Sachs’ argument against the plaintiff is properly before us.

Due to the order in which the briefs were filed in this case, the plaintiff has not responded to Sachs’ argument against him. Appellant UE’s brief was filed on July 1, 1983, the plaintiff-appellee’s brief was filed on August 31, 1983, and appellee Sachs’ brief was filed on September 8, 1983. Nonetheless, deciding this issue will not prejudice the plaintiff, for he had the opportunity to address it by requesting leave to file a supplemental brief (Show of Shows, Inc. v. Illinois Liquor Control Commission (1967), 86 Ill. App. 2d 109, 230 N.E.2d 268) or at oral argument. On the other hand, his failure to address that issue does not require that it is waived (Cohn v. Receivables Finance Co. (1972), 7 Ill. App. 3d 869, 288 N.E.2d 894), especially given the unusual circumstances of a conditional argument raised by one appellee against another.

As we turn to the merits of Sachs’ argument, we are directed to cases such as Brown v. Village of Shipman (1980), 89 Ill. App. 3d 162, 411 N.E.2d 569, and National Oats Co. v. Volkman (1975), 29 Ill. App. 3d 298, 330 N.E.2d 514. In Brown and Volkman, defendants or third-party defendants in actions under the Structural Work Act were allowed to maintain indemnity actions back against contractors who had been injured. The-rationale of these and other decisions has been that the party seeking indemnity, as, for example, a building owner or prime contractor, was shown to have been passively at fault in comparison to the active fault of the injured contractor. Sachs urges that this result obtain in this case and that it be granted indemnity against the plaintiff.

In Brown, the court explained that a cause of action could be stated against the plaintiff because, as a contractor, he was in charge of the work and could be found liable under the Act. By way of contrast, the plaintiff in Palier v. Dreis & Krump Manufacturing Co. (1967), 81 Ill. App. 2d 1, 225 N.E.2d 67, was not an independent contractor, but was instead an employee of the third-party defendant. As an employee, the plaintiff was “a protected person within the meaning of that Act, totally incapable of a violation thereof whether actively or passively” (Palier v. Dreis & Krump Manufacturing Co. (1967), 81 Ill. App. 2d 1, 9, 225 N.E.2d 67, 70), and therefore not subject to indemnity under the Act.

Sachs’ position is that this case should be governed by the result reached in Brown and Volkman because section 9 of the Structural Work Act allows any “owner, contractor, sub-contractor, foreman or other person in charge of” structural work to be held liable under the Act. (Ill. Rev. Stat. 1981, ch. 48, par. 69.) Like the plaintiff in Brown and the plaintiff’s decedent in Volkman, the plaintiff here belonged to a category of potential defendants specifically listed in the Act, namely, foremen, and was not, unlike the mere employee in Palier, exempted from liability under the Act. It concludes that the plain language of the Act permits its indemnity or contribution claim against the plaintiff.

We reject Sachs’ argument. In Flora v. Home Federal Savings & Loan Association (N.D. Ill. 1980), 489 F. Supp. 776, the district court denied an injured contractor’s motion to strike the defendant’s counterclaim for indemnification against him in a diversity action brought under the Structural Work Act. The United States Court of Appeals for the Seventh Circuit upheld the action taken by the district court and, in so doing, it examined the Brown and Volkman decisions. The court stated that those cases do not “remove the protection of the Act from one who is injured while working for a separate legal entity that is eventually found to be responsible for the injury. In such a case, the injured party is not personally in charge of the work and not personally liable. Rather, the responsible party is the separate legal entity, whether that entity be another individual, a corporation, or even a partnership to which the injured person is party.” (Flora v. Home Federal Savings & Loan Association (7th Cir. 1982), 685 F.2d 209, 211.) Here, the plaintiff, although a foreman, was employed by Sachs, a separate legal entity, and was, according to the principles expressed in Flora, not subject to liability under the Act.

Any claim for indemnity or contribution by Sachs against him therefore cannot stand.

CONCLUSION

That portion of the judgment of the circuit court of St. Clair County granting judgment to the plaintiff against UE for $219,000 is affirmed. That portion of the judgment denying UE indemnity against Sachs is reversed and judgment is hereby entered in favor of UE on its- third-party complaint for indemnification from Sachs. Judgment is also entered in favor of the plaintiff and against Sachs on Sachs’ counterclaim against the plaintiff.

Affirmed in part, reversed in part.

EARNS and HARRISON, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MILLS

license: Public Domain

text:
    WARREN HOLLIDAY, Plaintiff-Appellant, v. THE CIVIL SERVICE COMMISSION, Defendant-Appellee (State ex rel. J. Thomas Johnson, Director of the Illinois Department of Revenue, Defendant).
    Fourth District
    No. 4—83—0483
    Opinion filed February 6, 1984.
    Rehearing denied March 9, 1984.

      Wayne R. Golomb, of Springfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

State employee discharged.

Civil Service Commission affirmed.

Circuit -court affirmed.

We affirm.

Holliday appeals the trial court’s affirmance of a decision of the Civil Service Commission affirming his discharge from duties as a revenue collection officer for the Department of Revenue Auditing Collection Bureau of the State of Illinois.

Put simply, Holliday was discharged from his job as a revenue collection officer for failing to disqualify himself from an assignment. A supervisor’s order called for him to collect delinquent taxes from Louise Shop, Incorporated (LSI), a corporation which was owned and operated by his wife. Despite the -fact that Holliday’s supervisors were apparently aware that Mrs. Holliday operated the shop, we hold that anyone in Holliday’s position should know better than to engage in a practice which would be so likely to raise a suspicious eyebrow on the face of the rest of the taxpayers of the State. While we do not condone the sloppy office practices engaged in by the Department of Revenue in this instance, Holliday should have disqualified himself upon being assigned the account. He did not. He was dismissed and the dismissal was upheld by the trial court upon administrative review. Upon a complete review of the record, we affirm the decision.

Realizing that the above skeletal outline of the facts does not fully set forth all the nuances of the evidence in the voluminous record which we have reviewed, further facts which are pertinent to a full understanding of the issues are incorporated as needed during the following discussions.

I

Holliday has forcefully argued several points on appeal. Two points, however, were not so forcefully argued, and we turn to those initially.

Holliday first argues that since the evidence showed that several persons within the Department of Revenue knew he was actively involved in a taxpayer account which involved his wife, it was unfair for his superiors to seek his dismissal based upon this behavior. The gist of his argument is that since it was reasonable for him to believe that his supervisors condoned his behavior, a dismissal based on those actions was somehow violative of principles of due process. Holliday offers no citations or reasoned argument to support what is apparently an argument based loosely on the principles of estoppel. Supreme Court Rule 341(e) (87 Ill. 2d R. 341(e)) specifically sets forth the admonition that parties submitting briefs to Illinois courts of appeal must support their arguments with citations to relevant authority or risk having the points waived. While considering this rule, one court has stated “[a] reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository into which the appealing party may dump the burden of argument and research.” (Pecora v. Szabo (1982), 109 Ill. App. 3d 824, 825-26, 441 N.E.2d 360, 361.) Our supreme court similarly has refused to consider points not supported by authority. See, e.g., Village of Roxana v. Costanzo (1968), 41 Ill. 2d 423, 243 N.E.2d 242.

We do likewise here.

Doomed to a similar fate is Holliday’s contention that a civil exclusionary rule should be applied in his case to “quash” tax returns of LSI which were introduced as proof of Holliday’s involvement in the preparation and collection of LSI tax returns. Since no authority is cited, we decline to consider this argument.

II

Turning to arguments which Holliday has properly argued, we find that none is sufficient either singularly or in the aggregate to reverse the decision of the Civil Service Commission.

The first issue is whether the Department of Revenue failed to commence a hearing within 30 days as required by statute. It did not.

A chronological outline is appropriate at this point:

February 23,1982 Plaintiff served with papers sus-

pending him for 30 days.

March 17, 1982 Discharge proceedings initiated.

March 18, 1982 Written request for hearing.

March 31,1982 Plaintiff’s motion for discovery.

April 16,1982 First hearing held.

At the hearing on April 16, Holliday complained that discovery, which included 30 requests for depositions, had not been complied with. The hearing officer ordered the State to comply. The State offered to take a continuance to which Holliday objected. At this point, the hearing officer decided to allow the State to put on testimony pertaining to handwriting on various Retail Occupation Tax (ROT) returns of LSI. Holliday’s position here is that the testimony was taken as a subterfuge in order to avoid the operation of a rule which required that hearings be had within 30 days following a request for such. The State replies that the Commission complied with the statutory requirements and further that the compliance was reasonable since the discovery request was so broad that the hearing officer acted only to avoid impeding the timely commencement of the hearing. Thé State additionally contends that the hearing officer’s action in allowing cross-examination of the State’s witness to be deferred pending discovery protected his rights and resulted in no prejudice. Both parties cite numerous cases in support of these positions.

In Sherman v. Board of Fire & Police Commissioners (1982), 111 Ill. App. 3d 1001, 445 N.E.2d 1, the board set a hearing within 30 days of the filing of the complaint against two police officers. In its opinion the appellate court noted that after a cause is set for hearing, the board may continue the hearing on its own motion to allow complainants to amend the charges and that such action is in compliance with the board’s rules and regulations. Only by failing to schedule a hearing within 30 days does the board lose jurisdiction. In the instant case, it is clear that the board set the time for the hearing within 30 days after the request and as such the board did not lose jurisdiction for failing to sit.

Holliday also cites Ragano v. Illinois Civil Service Com. (1980), 80 Ill. App. 3d 523, 400 N.E.2d 97, as a case detailing the circumstances under which an administrative hearing must be commenced within 30 days. Ragano has no application to this case whatever. The question there was the reasonableness of a 140-day delay between the date on which information which would have allowed the board to hold hearings became available and the actual date of the hearings. There had been a brief hearing within the 30-day period at which the only evidence offered was an indictment against the civil servant. The Ragano court assumed arguendo that the hearing which was scheduled within 30 days of the request was sufficient to satisfy the 30-day rule. The court found unreasonable the 140-day delay between the time that information was available which would have allowed the Commission to go ahead with the hearing and the date on which the actual hearing was held. In this case, there is no question about undue delay between hearings as they were held basically in one-week periods following the original hearing on April 16.

The final case offered by Holliday is Riggins v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 126, 437 N.E.2d 327. In Riggins, the court held that a hearing where no witnesses were called, no evidence was taken, and no arguments were made could not be a hearing for purposes of the rule requiring a hearing within 30 days. The court found that while there may have been a technical violation of the rule, it was obvious that the hearing was not had due to defendant’s voluminous request for discovery. Under those circumstances, the court held there was no violation of the statute which would result,in the Commission losing jurisdiction over the case. Similarly, in this case it is apparent that even if there was a technical violation of the 30-day rule — which there was not — the delay was occasioned by Holliday’s voluminous request for discovery, and as such the Commission did not lose jurisdiction over the case.

We note that a reviewing court may look at all the circumstances surrounding a given hearing and determine whether it was a sham or not. (See Hardaway v. Civil Service Com. (1977), 52 Ill. App. 3d 494, 367 N.E.2d 778.) Looking at the record in this case as a whole, it seems clear that the hearing held on April 16 was not a sham in order to avoid the operation of the 30-day rule. Rather, the hearing was held in good faith, evidence was taken, and cross-examination was deferred in an effort to not prejudice Holliday. Under these circumstances, the 30-day statute was not violated and the Commission had jurisdiction to hear the case. No error.

Ill

The next issue raised is whether Holliday’s discharge violated Department of Personnel rules. Holliday argues that since his suspension on February 23 pending his discharge was for a period of not more than 30 days in a 12-month period, Rule 2 — 640 of the Department of Personnel and its protections apply to his case. The State responds that by virtue of the fact that Holliday was sought to be discharged, only Rule 2 — 710 applies. The State argues in the alternative that even if this court were to find that predischarge improprieties were present, such improprieties do not affect the validity of a later discharge.

Upon analysis it seems clear that only Rule 2 — 710 applies to this situation. Rule 2 — 640 provides for procedures to be followed when an employee is to be suspended for disciplinary reasons for a period of 30 days or less. Rule 2 — 640 contains no references to discharge whatsoever. On the other hand, Rule 2 — 710 specifically states that “an operating agency may suspend any employee for up to 30 days pending the decision of the operating agency whether charges for discharge shall be filed against such employees.” The paragraph then sets out various procedures, all of which were followed in this case. Since the agency here was requesting discharge of the employee, Rule 2 — 640 has no application by virtue of the plain language of Rule 2 — 710 itself.

The alternative argument of the State is also well taken. In Bart v. Department of Law Enforcement (1977), 52 Ill. App. 3d 487, 491, 367 N.E.2d 773, 776, this court stated, “[Ajssuming argwendo that the suspension pending discharge proceedings was improper, it does not affect the validity of the later discharge. [The] remedy for any allegedly improper suspension is not before [the court].” Similarly, Holliday cannot be heard to complain that possible improprieties during his suspension somehow affect his eventual discharge. No error.

IV

Another issue raised by Holliday combines questions concerning whether the Commission erred in considering evidence not called for by a bill of particulars filed by the State and whether the hearing officer failed to conform his decision to the charges set forth in the bill.

Following the first hearing on April 16, 1982, Holliday filed a motion for a bill of particulars. The Department filed the bill on May 13, 1982, setting forth five paragraphs which constituted the charges against Holliday. The first charge was that Holliday, while a corporate secretary of LSI, had failed to request permission for outside employment. Paragraph 2 charged Holliday with violating a rule of the Department proscribing the regular collection of current tax returns. The paragraph also charged Holliday with engaging in inappropriate behavior by filling out ROT returns for LSI which meant that he was checking his own work upon collection of the forms. Paragraph 3 charged Holliday with failing to disqualify himself from collecting LSI returns when he was the secretary of the corporation and his wife was the president. This violated rides set out on page 28 of the employee handbook. Paragraph 4 charged Holliday with responsibility for a late payment of taxes since he was an officer of LSI. Paragraph 5 states that the charge of failing to follow instructions to stop collecting LSI returns was an exacerbating factor applied to paragraph 2 above but was not an independent charge.

Following extensive testimony, the hearing officer made several findings which are reflected in a statement included in this record. He found that the most serious charge was No. 3 in that Holliday failed to disqualify himself from an assignment to make collections from LSI, when he was aware of his nexus with that organization. He noted that all of the other charges flowed from the accusation that respondent placed himself in a conflict-of-interest situation when he collected State taxes from LSI during the time it was owned by his wife. He noted that paragraph 8 of the employee handbook requires an employee who has been given an assignment by the Department which involves a person, group, or other entity with which the employee has a personal, financial, or beneficial relationship to disqualify himself from the assignment. The hearing officer found that, notwithstanding Holliday’s denial, the evidence demonstrated that he maintained a personal, financial, and beneficial interest in LSI. This was pointed out by the fact that he had invested money in the shop and that it logically would have been a matter of concern whether his wife’s business succeeded or not, because the success of the business would directly or indirectly accrue to him as her husband and creditor. The hearing officer found that the contention that Holliday’s supervisors knew that he was collecting taxes from his wife’s business was based on uncertain evidence. He noted that there could have been a “diffused awareness” by some of his superiors concerning his contacts with LSI. But the hearing officer found that even had his supervisors been fully aware of the facts, that would not serve to exonerate Holliday from his responsibility as a revenue collection officer. The laxity of his supervisors could not excuse Holliday’s behavior.

The hearing officer went on to find that a second charge had been proved in that respondent completed ROT returns for LSI. The hearing officer acquitted Holliday of charges of failing to file a request for outside employment which would allow him to serve as secretary of LSI. The hearing officer made no finding on the failure of LSI to file timely ROT returns. The officer found that Holliday had violated department policy by failing to follow instructions given to him both orally and in writing not to pick up ROT returns from LSI. He concluded that while this may have been a technical violation of the rule, its importance in the matter of Holliday’s discharge was questionable. Surveying the charges in their entirety, the hearing officer found that the charge of engaging in a conflict of interest had been proved. Since the conflict went directly to matters of public confidence in a State taxing institution, the discharge of Holliday was appropriately undertaken.

On December 16, 1982, the Civil Service Commission affirmed the finding of the hearing officer. On December 22, 1982, Holliday filed a complaint for administrative review. On July 7, 1983, the trial court found that the decision of the Civil Service Commission was supported by the evidence, that it was not arbitrary or capricious, and that no reversible error occurred. For purposes of this issue on appeal, Holliday’s premise is that the charges in the bill of particulars revolve exclusively around his position as corporate secretary of LSI. The proof at trial tended to show that Holliday was never elected as the secretary of LSI but rather had his name inserted by an employee of the Secretary of State. This had been done when Holliday attempted to file an annual report with the Secretary of State in an effort to revive the corporation which had been technically dissolved for failure to file a report in 1978. At this time Holliday was told by an employee of the Secretary of State that two distinct signatures had to be on the report in order for it to be filed. At one point the Secretary of State’s employee had apparently crossed off Holliday’s wife’s name as secretary and inserted Holliday’s. Holliday’s position is that the State was bound to prove his position as a corporate officer in order to establish a conflict of interest since the bill of particulars set this fact forth as a portion of the charges. His argument is that since the proof was that he was never elected as a corporate officer, the State failed to prove a necessary element to require his discharge. We disagree.

Holliday supports his position with the case of Bloom v. Nathan Vehon Co. (1930), 341 Ill. 200, 173 N.E.270, but we find his reliance misplaced. Bloom was a cause of action for back salary, not administrative proceedings, and as such is factually distinguishable although one aspect of the opinion bears upon the case before us. The court in Bloom found that “when a bill of particulars has been required and furnished, its effect is to limit and restrict the plaintiff, on the trial, to proof of the particular cause or causes of action therein mentioned.” (341 Ill. 200, 206, 173 N.E. 270, 273.) It seems the golden kernel which may be winnowed from Bloom is that a bill of particulars binds a party to the theory upon which a cause of action rests. Here, the theory upon which Holliday was charged and discharged was a conflict of interest. This is exactly the issue upon which all the hearings were held and to which all the proof was directed. Charges 2 and 3 in the bill of particulars indicate that Holliday completed ROTs for LSI and failed to disqualify himself from collecting LSI accounts. These are defined by the guidelines in the employee’s handbook as juxtapositions which would likely spawn a conflict of interest. Under these circumstances it seems that all the evidence taken at trial — as well as the evidence cited by the hearing officer in his decision — were well within the theory set out by the bill of particulars.

Similarly, Holliday argues that since no mention of loans he made to his wife for her use in the business was found in the bill of particulars, the loans were improperly considered by the hearing officer and could not support the charges. Again, even if the bill of particulars was binding as to theory, the fact that a person made a loan to his wife (or future wife) to be used in the interest of a business from which he was to collect taxes supports the charge of a conflict of interest.

Finally, along these same lines, Holliday argues that the charges must be specific and that here the charges were insufficient. He notes that the charges were not even as specific as those leveled in Burns v. Police Board (1982), 104 Ill. App. 3d 612, 432 N.E.2d 1300. In Bums, the allegations were that police officers stopped and searched and solicited a bribe from aliens using their official position to obtain a sum of money from aliens. The charges leveled here against Holliday were much more specific and in our opinion were entirely sufficient to apprise him of the charges stemming therefrom.

To our view, the Commission did not err in considering evidence which was not specifically included in the bill of particulars since the theory set forth in the bill, and the theory upon which Holliday was tried, were exactly the same. Further, the allegations were sufficiently set forth by both the charges and the bill. No error.

V

The penultimate issue raised by Holliday is whether the fact that Holliday was shown to have no business interest in LSI refutes as a matter of law the claim that there was a conflict of interest. Offering the behavior found in the case of Guzell v. Civil Service Com. (1974), 17 Ill. App. 3d 266, 308 N.E.2d 351, as the type of behavior which may result in discharge, Holliday urges that since he had no technical business interest in LSI, the Civil Service Commission incorrectly found that cause was established for which he might be discharged. Holliday’s interpretation of Guzell is that there must be some type of remuneration to establish a conflict of interest. In this case, Holliday claims that all he did was give money to the corporation, not receive it. In this sense, Holliday claims that he had no business, personal, or financial interest in LSI and therefore could not in any way have violated department guidelines. The State responds that Guzell shows that the definition of conflicts of interest may be created by agency guidelines and that violations of guidelines are factual determinations made by comparing the employee’s behavior against the agency’s definition of conflicts of interest. They go on to argue that since Holliday raised no issue concerning the manifest weight of the evidence, the arguments that the findings were contrary thereto are waived and that the dismissal must stand.

The Guzell case clearly shows that the Civil Service Commission recognizes that employees in sensitive tax-associated employment are bound to avoid even the appearance of impropriety and that even though the sum allegedly received by the plaintiff in that case was very small, the plaintiff was bound to strict compliance with department regulations. The Commission’s decision was upheld on appeal and the opinion was phrased in terms of the potential of the questioned behavior to tarnish the program. The court went on to note specifically that the size of the fee was irrelevant to the gravity of the employee’s misconduct. Further, the court noted that it could not overrule a decision of the Commission unless the findings of the body were so unrelated to the requirements of service, or so trivial as to be unreasonable or arbitrary. In the instant case, it seems clear that the charges related directly to service and were certainly not trivial. Under Guzell we may not overturn the decision of the Commission based upon Holliday's contentions since it is apparent that his actions did not avoid all appearances of impropriety despite the fact he received no remuneration. No error.

VI

The final issue raised by Holliday concerns the proof of the concept of conflict of interest and how it relates to proving cause upon which a Civil Service employee may be dismissed. Holliday’s argument along these lines is basically that if he violated anything he violated only department guidelines and not department policy. His position is that in order to be discharged he must have violated what was a departmental rule which had been promulgated and had the force and effect of a law. He cites the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1981, ch. 127, par. 1001 et seq.), Rule 27 of the Department of Revenue Handbook, and the case of Bastian v. Personnel Board (1982), 108 Ill. App. 3d 672, 439 N.E.2d 142, in support of his argument. The State responds that Civil Service employees may be removed for cause, citing section 11 of the Personnel Code (Ill. Rev. Stat. 1981, ch. 127, par. 63b111), arguing that conflicts of interest are included within the concept of cause. The State admits that while cause is not specifically defined, the supreme court has ruled that the Civil Service Commission is not required to specify by rule every act or omission which would be considered cause of discharge, citing Joyce v. City of Chicago (1905), 216 Ill. 466, 75 N.E. 184, and Kammann v. City of Chicago (1906), 222 Ill. 63, 78 N.E. 16.

Analysis of Holliday’s authority reveals that the Illinois Administrative Procedure Act is clearly inapplicable to this situation. That act contemplates those situations wherein an agency is acting within its realm of authority to promulgate a rule which the public must follow, not internal affairs which are clearly covered by section 11 of the Personnel Code which as previously mentioned allows dismissals for “cause.”

Similarly, the Bastían case dealt with the term “actual residence” in a Chicago ordinance which required that police live in Chicago in order to be employed by that city’s police department. No reference was made to maintaining alternate homes elsewhere and the court found that under these circumstances, the ordinance was too vague to be applied. However, in the case at bar examples and directions under the guidelines of the instant case abound.

It seems that Holliday’s vagueness attack would be more apropos to the “for cause” standard of section 11, but this standard has clearly been sustained by the supreme court in the Joyce case. The State correctly notes that Joyce indicates that it would unduly burden the Civil Service to specify by rule every act or omission which could lead to discharge. Holliday’s contention that the State must do so cannot prevail. Further, Kammann may be read as holding that “cause” need not be defined by published guidelines at all. In Kammann, an unexcused absence of three days was found to be cause for discharge even though no published rule to this effect was ever in existence, although a rule allowing replacement after 10 days’ absence was. In Kammann, the court noted that “[t]he statute is silent as to what constitutes ‘cause.’ Manifestly the right to determine that question is left with the civil service commission ***.” 222 Ill. 63, 65-66, 78 N.E. 16, 17.

In Holliday’s case the Civil Service Commission determined that the questioned behavior represented cause for discharge. Since this is manifestly for the Commission to determine, it may be overturned by a court only if the decision was arbitrary or unreasonable. By taking an active part in collecting delinquent tax returns of a company owned by his wife, Holliday’s actions were particularly egregious and represented cause for his discharge.

This leads us to a subargument raised by Holliday on this point which rests on similar ground. He argues that “cause” is not proven unless the State proves either neglect of duty or malfeasance in order to be supported by the evidence. Holliday urges that where an isolated incident of conduct did not involve illegal activity or evil wrongdoing, an employee cannot be discharged for cause, citing Johnson v. Macon County Board (1982), 104 Ill. App. 3d 885, 433 N.E.2d 707. The State correctly responds that Johnson dealt with a standard other than for cause. At issue in Johnson was the removal of a county superintendent of highways under section 5 — 203 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 5 — 203), which provided that a superintendent of highways could be removed from office for “incompetence, neglect of duty or malfeasance in office.” Since the standard in Johnson was not “for cause,” the case has no application to the case presently before the court. The law in Illinois is that an agency’s decision as to cause will not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of office. Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885.

Since the discharge here appears to be not arbitrary or unreasonable and is clearly related to the requirements of service, the decision of the Commission to remove Holliday from service was supported by the evidence and is upheld by this court on appeal.

Affirmed.

TRAPP and WEBBER, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAYCONIA BROWN, Defendant-Appellant.
    Second District
    Nos. 82—468, 83—331 cons.
    Opinion filed February 7, 1984.

      G. Joseph Weller, John J. Barrett, and Jan K. Dargel, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Following a jury trial in absentia the defendant, Layconia Brown, was convicted of the offense of residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3) and sentenced to eight years’ imprisonment. The judgment of conviction and sentence was entered on May 18, 1982. Defendant’s appointed counsel, still in the absence of the defendant, caused a notice of appeal of the conviction and sentence to be filed by the circuit clerk on June 8,1982.

Defendant was arrested on an outstanding warrant and on September 29, 1982, appeared before a motion judge in the temporary absence of the trial judge, without counsel. He was remanded to the Department of Corrections immediately pursuant to the original judgment order entered on May 18, 1982. A transcript of the hearing before the motion judge indicates only that the defendant appeared incredulous that the trial and sentence had occurred during his absence. Defendant’s appointed counsel appeared before the trial judge on October 26, 1982, without the defendant, who was in the Department of Corrections, and moved for a hearing pursuant to section 115 — 4.1(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1(e)). The trial judge agreed that the defendant would be entitled to a hearing but concluded that he had lost jurisdiction to conduct any further proceedings following the notice of appeal which had earlier been filed. He suggested that “a simple motion before the appellate court would bring it back to me.”

On April 29, 1983, defendant filed a notice of appeal characterized as “Late” from the May 18, 1982, sentence on conviction and the October 26, 1982, denial of the defendant’s request for a hearing pursuant to section 115 — 4.1(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1(e)). We permitted the filing of the second notice of appeal and consolidated the proceedings. No claim of error on the merits has been argued in the briefs with respect to the trial proceeding.

Section 115 — 4.1(e) of the Code of Criminal Procedure of 1963 provides:

“When a defendant who in his absence has been either convicted or sentenced or both convicted and sentenced appears before the court, he must be granted a new trial or new sentencing hearing if the defendant can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control. A hearing with notice to the State’s Attorney on the defendant’s request for a new trial or a new sentencing hearing must be held before any such request may be granted. At any such hearing both the defendant and the State may present evidence.” (Emphasis added.)

The statute contemplates, as the State concedes, that a conviction and sentence for one tried in absentia is not final and appealable until the defendant has returned and a ruling is made on any claim that the absence was not wilful. In addition to the above quoted provision of subsection (e), subsection (g) states:

“A defendant whose motion under paragraph (e) for a new trial or new sentencing hearing has been denied may file a notice of appeal therefrom. Such notice may also include a request for review of the judgment and sentence not vacated by the trial court.” (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1(g).)

We agree that the first notice of appeal was premature in that the judgment of conviction and sentence of the defendant in absentia did not amount to a final and appealable order. This appears clear from the quoted subsections of the statute, and it is also consistent with the provisions of Supreme Court Rule 605 (87 Ill. 2d R. 605), which contemplates that the defendant will be personally advised of his right to appeal, thus presupposing his presence.

We cannot agree with the State's argument that defendant is not now entitled to a section 115 — 4.1(e) hearing because of what it claims to be overwhelming evidence at the hearing conducted in defendant’s absence prior to trial. These subsections, in substance, provide that where a defendant fails to appear for trial after arraignment and after the State has affirmatively proved through substantial evidence that the defendant is wilfully avoiding trial, the court may commence the trial in defendant’s absence to final conclusion. Ill. Rev. Stat. 1981, ch. 38, par. 115-4.1(a), (b).

Subsection (e) clearly requires that where a defendant who has been either convicted or sentenced or both appears before the court he “must” be granted a new trial or a new sentencing hearing if “the defendant can establish that his failure to appear in court was both without his fault and due to circumstances .beyond his control.” A hearing on the defendant’s request “must” be held. “Must” is generally regarded as mandatory language. (See Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21.) Where the word is employed with reference to a right or benefit which depends upon giving a mandatory meaning to the word it cannot be given a permissive meaning. (71 Ill. 2d 13, 21.) The statute further provides that at the hearing both the defendant and the State may present evidence. Defendant has never personally participated in a hearing to present his version of why he was absent, or to assist in cross-examination of State witnesses. We believe that he is entitled to do so.

The State argues without citation of authority that defendant should be estopped because his counsel filed a premature notice of appeal and was responsible for removing the case from the jurisdiction of the trial court, further compounding this by not heeding a suggestion by the trial judge that he secure an order from this court remanding the cause to the trial court for the hearing. We conclude, however, that these failures were not binding on the defendant, who did not authorize the premature notice of appeal.

We will comment briefly on the so-called “jurisdictional” questions. In form, the notice of appeal filed on June 8, 1982, signed by the clerk of Lake County purports to be an appeal from a judgment of conviction and sentence. This court was invested with appellate jurisdiction upon the filing of the notice of appeal. (87 Ill. 2d R. 606(a).) We could not be aware unless so advised by one of the parties that the appeal, purportedly on the merits of the judgment of conviction and sentence, was not final and appealable because it followed a trial in absentia. We think that primarily defendant’s counsel and secondarily the State’s counsel should have so advised us so that we would have known initially that the appeal was from a nonfinal order. Once our jurisdiction had been invoked and before we were called upon to decide whether or not the order was final and appealable the trial judge was not in any way at fault in concluding that he should not proceed. The dilemma and the consequent waste of judicial time could have been avoided if we had been properly advised. Nevertheless, the defendant may not be deprived of a statutorily mandated hearing in these circumstances.

We therefore remand the cause to the trial court with directions to conduct a hearing under section 115 — 4.1(e) of the Code of Criminal Procedure. If at such hearing the defendant does not establish that his failure to appear for trial was both without his fault and due to circumstances beyond his control, the judgments of conviction and sentence shall stand. Any subsequent appeal from the order entered as a result of the mandated hearing can only relate to that hearing, since the merits of the judgment and conviction, although on appeal, have not been supported with any brief or argument.

Remanded with directions.

LINDBERG and REINHARD, JJ., concur.


author: JUSTICE KASSERMAN JUSTICE KASSERMAN

text:
    DOROTHY HENDERSON, Plaintiff-Appellant, v. HARRY W. HUDSON et al., Defendants-Appellees.
    Fifth District
    No. 83—16
    Opinion filed January 5, 1984.
    Supplemental opinion filed on rehearing March 2, 1984.

      Freddy L. Shapiro, of Murphysboro, for appellant.
    William J. Novick, of Fowler & Novick, of Marion, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiff, Dorothy Henderson, brought an action against defendants, Harry Hudson and John Barnes, to recover damages sustained in a motor vehicle collision. A jury found that 95% of the negligence involved in the collision was attributable to plaintiff and entered a verdict in the amount of $1,155. Plaintiff appeals and claims that: (1) the verdict was against the manifest weight of the evidence; (2) the trial court erred by refusing to allow rebuttal examination of an occurrence witness; (3) certain instructions were erroneously given or omitted; and (4) the damages awarded were inadequate.

It was stipulated at trial that on the afternoon of May 5, 1981, plaintiff was driving her car in an easterly direction on Illinois Route 13, which is a divided four-lane highway, and that she was approaching the intersection with Carterville Road within Williamson County. It was further stipulated that, at this time, defendant Barnes was also traveling on Illinois Route 13 in the same direction and vicinity as plaintiff and that he was driving a tractor-semitrailer owned by defendant Hudson.

According to plaintiff, as she approached the intersection of Illinois Route 13 and Carterville Road in the right-hand lane, there were two cars in front of her but the left lane was clear. Plaintiff said she observed defendants’ truck in the left-hand lane when she looked in her rearview mirror, turned her turn signal on and then moved into the left lane of traffic in front of defendants’ truck. Plaintiff testified that when she was several car lengths from the intersection, the traffic light turned red. Plaintiff’s car stopped and defendants’ truck struck the rear of plaintiff’s car.

John Barnes, defendant, testified that he was driving in the left lane of Illinois Route 13 as he approached the intersection with Carter-ville Road. Mr. Barnes stated that plaintiff was driving in the right lane a short distance in front of him and that there were no vehicles traveling in front of plaintiff. According to Mr. Barnes, when he was about 50 feet from the intersection, plaintiff moved into the left lane without any signal and began to stop. Mr. Barnes said he blew his horn and applied his brakes but was unable to stop and, consequently, struck plaintiff’s car in the rear.

Keith Bonnefield, who was an employee at a gas station located at the corner of the intersection of Illinois Route 13 and Carterville Road, testified that when he heard the sound of a horn, he looked up and observed plaintiff’s automobile moving slowly in front of defendants’ truck and then saw the collision take place. Mr. Bonnefield said the traffic light was yellow and that there were no vehicles in the right lane at the time of the impact.

After the defense rested, the trial court granted plaintiff leave to recall Mr. Bonnefield in rebuttal. Plaintiff’s counsel examined Mr. Bonnefield regarding photographs of the area where the collision occurred and then attempted to examine him regarding a prior statement. Defense counsel objected to the inquiry as to Mr. Bonnefield’s prior statement on the ground that it was “not proper rebuttal.” The trial court sustained defense counsel’s objection.

Mark Ross, another employee of the gas station located at the intersection where the collision occurred, testified that he saw plaintiff’s car change lanes just prior to the collision. Mr. Ross said plaintiff’s car pulled into the left lane in front of defendants’ truck and proceeded to stop and that the truck sounded its horn and then collided with plaintiff’s vehicle. Mr. Ross indicated that the traffic light was yellow at the time of impact and said that he observed no vehicles in the right lane at the time plaintiff’s car changed lanes.

Roger Watkins, who was driving on Illinois Route 13 approximately five or six car lengths behind plaintiff’s car and defendants’ truck, testified that as the traffic light changed to yellow, plaintiff, with no one in front of her and without a turning signal, suddenly cut into the left lane and that the truck could not stop. Mr. Watkins stated that plaintiff’s car was three or four car lengths in front of the defendants’ truck at the time of the lane change. Mr. Watkins further testified that the traffic light was red at the time of the collision.

Among the instructions given to the jury were Illinois Pattern Jury Instruction (IPI), Civil, No. A20.01 (1981 Supp.), which sets forth issues raised by the pleadings when there are multiple defendants. The trial court also gave the jury IPI Civil No. A45.06 (1981 Supp.), a modified general verdict form applicable to comparative negligence cases. The trial court refused, however, to give the jury plaintiff’s instruction No. 23, which stated:

“We, the Jury, find for the Plaintiff and against all of the Defendants and assess the Plaintiff’s damages: for disability, present and future, in the amount of $_; for pain and suffering, present and future, in the amount of $_; for medical and out-of-pocket expenses, present and future, in the amount of $_; and for wage loss, present and future, in the amount of $__”

The jury found that the total amount of damages suffered by plaintiff was $23,100 and that the percentage of negligence attributable to the plaintiff was 95%. After reducing the total damages sustained by plaintiff by the percentage of negligence attributable to plaintiff, the jury’s award amounted to $1,155.

Plaintiff asserts that “the diminuation [sic] of damages, attributed to plaintiff’s negligence, is perverse, unreasonable and against the manifest weight of the evidence.” In support of this argument plaintiff refers to the testimony regarding the collision and relies on the evidence that Roger Watkins testified that the traffic light was red at the time of the collision and that Mr. Barnes, the driver of the truck, was blind in his left eye. We conclude, however, in light of all the evidence presented, that the jury’s determination that plaintiff was 95% negligent in this case was neither unreasonable nor against the manifest weight of the evidence.

Plaintiff also complains that the trial court erred by refusing to allow rebuttal examination of defense witness Keith Bonnefield regarding a prior statement which was not mentioned on either direct, cross, or redirect examination. The applicable rule is that the allowance of rebuttal evidence lies within the discretion of the trial court, and the trial court’s ruling will not be set aside absent an abuse of discretion. (Derrico v. Clark Equipment Co. (1980), 91 Ill. App. 3d 4, 11, 413 N.E.2d 1345, 1352.) In the instant case, we find no abuse of discretion because the alleged rebuttal evidence does not in any way explain, repel, contradict or disprove evidence introduced during defendant’s case in chief. See 91 Ill. App. 3d 4, 11, 413 N.E.2d 1345, 1351.

Plaintiff next contends that the trial court erred by giving defendants’ instruction No. 18 which was IPI Civil No. A20.01. Plaintiff’s argument on appeal is, basically, that the instruction “was prejudicial to the plaintiff, in that the jury was unconstrained in finding negligence of plaintiff and was constrained in finding negligence of defendants.” No such argument was raised by plaintiff at the conference on instructions and, therefore, the objection to the instruction complained of has been waived on appeal. Stephenson v. Dreis & Krump Manufacturing Co. (1981), 101 Ill. App. 3d 380, 387, 428 N.E.2d 190, 195; LaPlaca v. Gilbert & Wolf Inc. (1976), 37 Ill. App. 3d 259, 262, 345 N.E.2d 774, 776.

Plaintiff further maintains that defendants’ instruction No. 7, which is IPI Civil No. A45.06, “is phrased so that the burden of proof with regards to comparative negligence appears to be upon the plaintiff.” Again, this specific objection was not raised in the trial court and is waived. Stephenson v. Dreis & Krump Manufacturing Co.; LaPlaca v. Gilbert & Wolf Inc.

Finally, plaintiff urges that the trial court erred by refusing her instruction No. 23. She points out that under section 2 — 1109 of the Civil Practice Law, when damages are assessed by a jury, “*** the verdict shall be itemized so as to reflect the monetary distribution among economic loss and non-economic loss, if any.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1109.) Plaintiff further observes that instructions similar to her instruction No. 23 have met with approval from Illinois courts. Powers v. Illinois Central Gulf R.R. Co. (1981), 92 Ill. App. 3d 1033, 416 N.E.2d 1161, affd in part, rev’d in part (1982), 91 Ill. 2d 375, 438 N.E.2d 152; Doering v. Janssen (1979), 76 Ill. App. 3d 62, 394 N.E.2d 721.

Defendants maintain that it is not mandatory that the type of instruction tendered by plaintiff be given to comply with section 2 — 1109 of the Civil Practice Law and point out that there is no Illinois Pattern Jury Instruction to conform with the statute. Alternatively, defendants urge that the trial court’s failure to give plaintiff’s instruction No. 23 amounts to harmless error only.

We agree with plaintiff’s assertion that the trial court erred by refusing to give her instruction No. 23, which required that the jury verdict be itemized to reflect the monetary distribution between economic and noneconomic loss. The instruction, although non-IPI, is supported by both statute and case law.

Section 2 — 1109 of the Civil Practice Law provides:

“In every case where damages for injury to the person are assessed by the jury the verdict shall be itemized so as to reflect the monetary distribution among economic loss and non-economic loss, if any.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1109.)

We note that the act plainly states that the verdict “shall” be itemized. Such language is generally regarded as being mandatory. (Cf. Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21, 373 N.E.2d 1332, 1335.) More importantly, we are of the opinion that the legislative history of section 2 — 1109 suggests a mandatory interpretation of the use of the word “shall.” (See Doering v. Janssen (1979), 76 Ill. App. 3d 62, 67, 394 N.E.2d 721, 725.) We therefore reject defendants’ contention that the giving of such instruction cannot be considered as being mandatory.

The courts of Illinois previously have considered the application of section 2 — 1109 (formerly section 65.1 of the Civil Practice Act) on two occasions in which it was determined that it was not error for a trial court to give an instruction that required the verdict to be itemized as plaintiff requested in the case at bar. (Doering v. Janssen (1979), 76 Ill. App. 3d 62, 394 N.E.2d 721; Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill. 2d 375, 438 N.E.2d 152.) We are aware of no case, however, in which it has been held that the failure to instruct the jury to itemize its verdict as required by section 2 — 1109 is erroneous. No reason is suggested by defendants as to why the plain wording of section 2 — 1109 should be ignored other than their argument that its provisions are not mandatory and that no Illinois Pattern Jury Instruction has been promulgated to conform with the statute. We find such arguments to be unpersuasive and conclude that the failure to instruct the jury in compliance with section 2 — 1109 constitutes prejudicial error and requires reversal of the award of damages in the instant case.

Furthermore, since the legislative intent in adopting section 2 — 1109 “was to require jurors to carefully consider the purpose for which each dollar in damages was awarded” (Doering v. Janssen (1979), 76 Ill. App. 3d 62, 67; see also Powers v. Illinois Central Gulf R.R. Co.), we cannot adopt defendants’ contention that the failure to instruct pursuant to section 2 — 1109 of the Civil Practice Law was harmless when, as in the instant case, a proper request to do so is made. (Cf. Robinson v. Greeley & Hansen (1983), 114 Ill. App. 3d 720, 724-25, 449 N.E.2d 250, 253.) As stated in the Historical and Practice Notes to section 2 — 1109, one of the twin purposes for the passage of section 2 — 1109 was “that more information [contained in the jury verdict] will lead to a larger number of successful challenges to the nature or amount of damages awarded.” (Ill. Ann. Stat., ch. 110, par. 2 — 1109, Historical and Practice Notes, at 829 (Smith-Hurd (1983).) That expectation was not fulfilled in the case at bar. Plaintiff in this appeal urges that the damages awarded to her by the jury were inadequate. The trial court’s refusal to give plaintiff’s instruction No. 23 renders it impossible properly to evaluate the sufficiency of the damages awarded. Such error cannot be said to be harmless; therefore, a new trial should be granted on the issue of damages.

Since we have concluded that it was reversible error for the trial court to refuse plaintiff’s tendered instruction No. 23, we need not address the other issue relating to damages raised by this appeal.

For the foregoing reasons, the judgment of the circuit court of Williamson County is affirmed in part and reversed in part and this cause is remanded for a new trial on the issue of damages only.

Affirmed in part; reversed in part and remanded.

JONES and EARNS, JJ., concur.

SUPPLEMENTAL OPINION ON REHEARING

JUSTICE KASSERMAN

delivered the opinion of the court:

Having granted plaintiff’s petition for rehearing, we have reconsidered this cause without oral argument. In her petition for rehearing, plaintiff urges that the defense of comparative negligence rests “part and parcel” within the issue of damages, so as to be included in the new trial on damages. Defendants, on the other hand, contend that under this court’s original opinion the trial court is not to allow any proceedings on the defense of comparative negligence. We agree with defendants.

Upon retrial as to damages the issue should be limited solely to the amount of plaintiff’s damages, with the itemization of the verdict to be made by the jury as directed in our original opinion. The finding of the original jury as to the amount of plaintiff’s comparative negligence should then be applied to the new finding as to the amount of plaintiff’s damages. We reject plaintiff’s contention that the amount of plaintiff’s comparative negligence is intertwined with the amount of the damages so as to prevent a retrial as to damages without also a retrial as to the percent of plaintiff’s comparative negligence.

For the foregoing reasons, the judgment of the circuit court of Williamson County is reversed and this cause is remanded for a new trial consistent with this opinion.

Reversed and remanded.

JONES and KARNS, JJ., concur.