author: JUSTICE KARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY BUSH, Defendant-Appellant.
    Fifth District
    No. 80-70
    Opinion filed November 19, 1981.
    Rehearing denied January 5, 1982.

      John H. Reid, Charles M. Leonhard, and E. William Hutton, all of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Defendant, Gregory Bush, was convicted of the murders of Zelma Durbin and her son, Craig Durbin, following a jury trial in the Circuit Court of St. Clair County. The jury did not return a sentence imposing the death penalty, and the court sentenced defendant to consecutive terms of natural life imprisonment pursuant to section 5—8—1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(1)), finding that the murders were accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty.”

The following issues are raised on appeal: whether the trial court erred in informing prospective jurors that the State would be seeking the death penalty and asking them how this would affect their deliberations; whether defendant was denied a fair trial by the admission of expert testimony regarding blood type; whether the trial court erred in admitting certain rebuttal testimony regarding defendant’s prior use of knives; whether the trial court erred in allowing the prosecutor, in his closing argument, to conduct a physical demonstration re-creating the crime scene wherein he attempted to show that defendant could not have moved one of the victims’ bodies in the manner testified to; whether the consecutive life sentences were excessive; whether the natural life sentencing provision is unconstitutional; and whether the evidence was sufficient to sustain the conviction.

On May 30, 1979, at approximately 7 a.m., the Cahokia Police Department received a call from Ethyl Beardsley, Ms. Durbin’s sister-in-law. Ms. Beardsley would usually babysit for Craig after Ms. Durbin dropped him off at 6. Ms. Durbin was late this morning. Ms. Beardsley had called the Durbin residence several times and received no answer at first and then a busy signal. She then proceeded to the Durbin residence but found the house locked. At this time she went to a nearby residence and called the police.

Community Service Aid Jeffrey Goodrich was the first to arrive and Cahokia Police Sergeant Robert Staten arrived shortly thereafter. Officer Staten broke into the house and found the victims’ bodies, Ms. Durbin in the kitchen and Craig in one of the bedrooms. The officer then began searching the premises. During Goodrich’s investigation the defendant, who lived next door to the Durbins, called out through his window and asked if the Durbins had been “ripped off.” Detective Henry Evans was the next officer to arrive at the scene. When defendant spoke to Detective Evans through his window, Evans asked defendant to come outside. Defendant came out wearing blue jeans, shoes and glasses. Detective Evans noticed a red substance on defendant’s stomach and the underside of his arms which appeared to be blood. Defendant stated that the blood came from a fight he had with his girl friend, Annette Noe. Evans went to talk with Ms. Noe and upon returning placed defendant under arrest, read him his Miranda rights, and had defendant sign a waiver of those rights. Defendant testified that the statement concerning the fight with his girl friend was false.

Crime technician Alva Busch obtained samples of blood from defendant’s hands, arms and stomach, took photographs of defendant and collected his clothes and glasses. The glasses were taken since they were also bespeckled with blood.

Throughout this period, defendant repeated the phrase, “I didn’t rip them off.” Defendant testified that he in fact stated that, “I didn’t take anything out of the house.”

Alva Busch and Henry Edens, crime technicians, processed the scene. The following items were found in the kitchen area of the Durbin residence. Two telephones were found with the cords cut and smeared with a red substance, later determined to be blood. Hair, without roots, in considerable amounts was found on the floor near Ms. Durbin’s body. Two rugs in the kitchen were soaked with blood. A large wood fragment was found on the floor with other wood fragments a few feet away. The larger items in the kitchen, the appliances, a wooden stool and the counter all had varying amounts of blood on them. The contents of a woman’s purse were on the counter. Ms. Durbin was found wearing a bra, a blouse, an earring in her left ear and three quarter length hosiery. Busch and Edens then proceeded to the bedroom where Craig’s body was found. Craig was found lying on the bed wearing a T-shirt. Underpants were on the floor to the left of the bed. The area of the bed surrounding his body was soaked with blood as was the wall above the bed. A knife with a serrated blade was found in the room. There was no handle on the knife and the blade was covered with blood.

Blood samples were taken from the crime scene with samples of the two victims, and the defendant taken for purposes of comparison.

Defendant was taken into custody at the Cahokia police station where he was interrogated by Detective Sergeant Robert Baldwin and Detective Charles Sharp. Defendant stated that earlier that evening he had been with his girl friend, Annette Noe, and had taken her home at approximately 3 a.m. Then he returned to his house with a friend, Donna Darnell, and stayed there until approximately 6:45 a.m., at which time he took her home. Defendant stated that after he took Ms. Darnell home that he became involved in an incident with some black people at which time he engaged in a fight and cut his hand on some glass on the ground. During the interrogation, the officers took the defendant to have his hand treated by a physician. Defendant then stated that he had not cut his hand on glass but rather his hand had been cut by a knife when the black man attacked him. Defendant stated that he threw up his hands while preparing to do a karate kick and that the black man cut him. Defendant further stated that he dragged the black man, by his hair, down by the river and threw him in. Defendant then took the officers to the location of the alleged incident. The officers found no tire tracks or other indication that such an incident took place. At this point defendant stated that “[i]t didn’t happen the way I told you.”

Defendant then stated that he arrived home at approximately 6:30 a.m., went into his bedroom, opened a window and lay down. A few minutes later defendant observed Ms. Durbin getting into her station wagon. He went outside for the purpose of talking to her. When he got outside he observed her walking around the front of her house. Defendant followed, lost sight of her for a short time, and eventually went around to the front of the house. Defendant opened the door and found Ms. Durbin lying face down with blood surrounding her. Defendant stated that he turned her over, noting “that she was butchered like a hog.”

The officers then proceeded to defendant’s house after obtaining a consent to search form which defendant signed. When they reached the house they entered defendant’s bedroom and defendant retrieved prescription bottles, with Ms. Durbin’s name on them, from under his bed. Officer Baldwin reached under the bed and pulled out a blood-stained jacket. Also found was a gold medallion and chain, later identified to be Ms. Durbin’s. At this point defendant admitted taking the prescription bottles and the medallion and chain from Ms. Durbin’s house. A pair of cut-off blue jeans with wood fragments in the rear pocket was also recovered from defendant’s bedroom.

Crime technician Edens conducted a search of defendant’s back yard while the search of defendant’s bedroom was taking place. Edens found a green wastecan outside defendant’s window which contained a white washrag covered with blood. Also found was a butcher knife which was underneath a board directly below the wastecan.

At trial, defendant testified that he was with Ms. Noe until approximately 1:30 a.m. and with Ms. Darnell until approximately 5:45 a.m. He stated that when he returned home he saw Ms. Durbin in her driveway and spoke with her. Defendant testified that he then went into his house and “dozed off.” A short time later defendant heard a noise but thought it was coming from his stereo. He looked out his bedroom window and saw Ms. Durbin’s car still in the driveway. Thinking this to be unusual, he put on a pair of cut-off jeans and a jacket and walked toward the Durbin residence. He heard another noise and began running toward the fence which separated his back yard from the Durbins’. Defendant further testified that while jumping over the fence, a piece of clothing became entangled and he fell. Defendant believed it was at this point that he cut his hand. Defendant got up and proceeded to the back door of the Durbins. Finding it ajar, he pushed it open and entered the kitchen. There he found Ms. Durbin’s body lying face down. He turned her over, although he found it difficult because the blood surrounding the body made the floor quite slippery. Defendant testified that he was “shaky” and “freaked out” by what he saw. Defendant then took two prescription bottles from the kitchen table and heard a “thump and slide,” became frightened, ran out of the door, jumped over the fence and returned home. Defendant placed the two pill bottles and a medallion, which he did not recall taking, under his bed. Defendant also testified that he considered calling the police but realized that he had taken items from the Durbin residence. Shortly thereafter defendant fell asleep.

Defendant stated that the police made a number of errors in the police report in recording what he had told them after abandoning his story concerning the alleged incident with the black men. Basically, defendant refuted the testimony of the interrogating officers as to what he told them at the time. Defendant’s testimony at trial, as stated above, renders a different account of the occurrence in question.

Forensic scientist Jackie Fracaro identified People’s exhibits Nos. 1, 2 and 3 as matching the inked footprint of defendant’s left foot. The exhibits were latent footprints lifted from the area surrounding Ms. Durbin’s body taken by crime technician Alva Busch on May 30,1979. Mr. Fracaro was able to make a positive identification that the latent prints taken at the crime scene matched the inked print of the defendant.

Forensic scientists Retha Mathews and Mark Stolorow gave testimony concerning the blood samples taken from the Durbin residence, defendant’s residence, and the green wastecan. A chemical test was used to determine if the samples were blood and an immunological test was employed to determine if it was human blood and, if so, of what type. The blood samples were typed according to the ABO grouping system and, in some instances, the esterase D (ÉsD) system was used. These tests are used to determine whether the blood type is consistent with that of a particular person, and the witnesses testified that certain types are present in the population with certain frequencies.

Ms. Mathews tested the blood of defendant, Ms. Durbin and Craig and found the following results:

Defendant—ABO type A, EsD type 2-1;
Ms. Durbin—ABO type O, EsD type 1;
Craig Durbin—ABO type O, EsD type 2-1.

Many blood samples were taken from items in the Durbin residence. Some of the results of those tests are as follow:

Receiver on red telephone—ABO A, EsD 2-1
Receiver on yellow telephone—ABO A
Kitchen floor—ABO O, EsD 1
Inside doorknob of rear door—ABO A
Wooden stool—ABO O, EsD 1
Kitchen sink—ABO O, EsD 1.

Blood samples taken from defendant’s person revealed ABO-O blood which would be consistent with either Ms. Durbin or Craig. The contents of the green wastecan found outside defendant’s house revealed both ABO-A and ABO-O type blood.

Mr. Stolorow testified as to the population frequencies of certain blood types. He stated that the population frequency for ABO-A, EsD 2-1 is eight percent, and that for ABO-O, EsD 2-1 is between nine and 10 percent.

Defendant objected to the giving of the testimony concerning the blood sampling for lack of foundation. Defendant argued that Ms. Mathews’ opinion was not premised on an adequate factual basis because she could not make a positive identification as to whose blood was present in the sample. Defendant also moved to strike the testimony because of Ms. Mathews’ failure to enumerate the exact tests used.

Dr. Jeffrey Fisher, a pathologist, performed the autopsies on the victims. Dr. Fisher testified that the cause of death of both victims was bilateral hemothorax and exsanguination due to multiple stab wounds. Describing the body of Craig Durbin, Dr. Fisher testified that there were 27 stab wounds, four of which were to his back and penetrated the chest. People’s exhibit No. 4 was a photograph of Craig taken at the crime scene which shows that he was eviscerated. Dr. Fisher testified that Ms. Durbin had 60 stab wounds and that her heart and liver were lacerated. The record reveals that Ms. Durbin’s teeth and hair were found under the kitchen rug.

Defendant asserts that the trial court erred in informing prospective jurors that the State would be seeking the death penalty and by asking them how this would affect their deliberations. After informing the entire venire that the State would be seeking the death penalty, the prosecutor asked whether the possible imposition of the sentence would prevent them from ruling impartially on the question of guilt or innocence of the accused. Defendant contends that such questions on voir dire and subsequent removals by the court for cause as a result of the answers given are inconsistent with the holdings of the United States Supreme Court in Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, and Adams v. Texas (1980), 448 U.S. 38, 65 L. Ed. 2d 581, 100 S. Ct. 2521.

Witherspoon and its progeny “establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” (Adams, 448 U.S. 38, 45, 65 L. Ed. 581, 589, 100 S. Ct. 2521, 2526.) In Adams, the trial court excluded a number of prospective jurors who were unwilling or unable to take an oath, pursuant to a Texas statute, that the mandatory penalty of death or life imprisonment would not affect their deliberations on any issues of fact. The Supreme Court held that the Texas statute was applied in that case to exclude prospective jurors on grounds impermissible under Witherspoon and related cases.

The alleged error in the instant case involved the first panel of four jurors questioned during voir dire. It should be noted that, upon motion of defendant, separate juries were to be empaneled for determination of guilt or innocence and for sentencing; although after conviction, at the request of the defendant, the panel that determined his guilt also determined his sentence. The court asked the prospective jurors whether they would be able to give the defendant a fair and impartial trial knowing that death was a possible punishment, although noting that they would not be required to determine defendant’s sentence. The entire panel responded affirmatively. No objection was made to this line of questioning at trial or in post-trial motion. The court then asked the jurors whether they had prior knowledge of the case and whether they had formed an opinion as to the guilt or innocence of the defendant. Two of the panel members responded that they had become aware of the case through the media and that they had formed an opinion as to guilt or innocence. One of the two jurors also expressed doubts as to the effect of the possible imposition of the death penalty on her deliberations. Both of these jurors were excused by the court for cause without challenge and without objection of counsel, who were asked if they had any objection to the court excusing the two jurors.

The State responds that Witherspoon and Adams are inapplicable to the instant case. We agree. In the first place, defendant was not sentenced to death, and defendant acknowledges the inapplicability of the holding of Witherspoon. Both of the jurors excused from this panel stated that they had formed an opinion as to defendant’s guilt or innocence. Although one of them also expressed doubts as to the effect of the possible imposition of the death penalty on her deliberations, the fact that she had formed an opinion is sufficient reason for her excusal. In fact, it would appear that the defendant approved of the jury selection procedure employed by the court and perceived it to be a procedure devised for his protection.

Defendant next asserts that he was denied a fair trial by the admission of expert testimony regarding blood type. Evidence was introduced at trial that defendant had ABO-A type blood and the victims had ABO-O type. ABO-A blood was found on items at the crime scene. Testimony as to population frequencies of the blood types was also given. Defendant argues that such evidence has little, if any, probative value and that as a result of the “deceptive authoritativeness” of the testimony that the minimal probative value is substantially outweighed by the prejudicial effect of such testimony.

Defendant relies on the so-called New York rule which states that such evidence is inadmissible because it lacks probative value in that a large proportion of the population will have the same blood type. (People v. Robinson (1970), 265 N.Y.2d 543, 27 N.E.2d 864.) However, the Illinois courts have specifically rejected this argument and have taken judicial notice of the scientific reliability of the. ABO system of blood grouping, while recognizing that such evidence does not have great probative value, if predicated on sufficient- foundation in conducting the tests. People v. Gillespie (1974), 24 Ill. App. 3d 567, 321 N.E.2d 398.

Defendant further argues that the former Illinois rule in paternity proceedings should be applied to the instant case. In paternity proceedings, evidence of the putative father’s blood type was admissible only if it conclusively excluded him as being the father of the child. (Ill. Rev. Stat. 1979, ch. 40, pars. 1401 and 1404, amended by Pub. Act 81-1445, effective January 1, 1981.) This argument was rejected in People v. Henderson (1980), 83 Ill. App. 3d 854, 404 N.E.2d 392. We find no compelling reasons to depart from the established precedent in Illinois. Thus, the expert testimony regarding the blood found on items at the scene of the crime, blood on defendant shortly after commission of the crime, and the blood types of the victims and the defendant was properly admitted.

Defendant also asserts that this evidence was inadmissible for failure to lay a proper foundation, although the specific nature of this argument is not clear. In Gillespie, the court held that while evidence of blood grouping is generally admissible, there must be a proper foundation laid for admission. However, the court was not explicit as to what is required for such foundation. In the instant appeal, the defendant is apparently challenging the sufficiency of the tests used for determining blood type. The primary testimony regarding the blood analysis was given by Retha Mathews, a. forensic scientist with the Illinois Department of Law Enforcement, Bureau of Scientific Services. Ms. Mathews, a graduate of Southeast Missouri State University with degrees in zoology and biology, testified that she had been with the Bureau of Scientific Services for eight months, specialized in serology, had submitted papers on that subject to the American Association of Forensic Scientists, and that she was supervised while performing the tests relevant to this case. Ms. Mathews further testified that she performed a chemical test of each item submitted to determine if the substance was blood, an immunological test to determine the blood type under the ABO system, and a biochemical test to determine the blood type under the esterase D (EsD) system. Considering the qualifications of the expert, the fact that she was supervised by senior personnel, and the description of the tests used, we find that proper foundation was laid for the admission of the evidence.

Defendant asserts that the trial court erred in admitting certain rebuttal testimony regarding defendant’s prior use of knives. Defendant argues that this evidence did not rebut anything in his testimony and, further, that it constituted evidence of other crimes.

On cross-examination, the following exchange took place between the prosecutor and the defendant:

“Q. You never carried a knife in that sheath?
A. No sir, I don’t own a knife. I don’t- like knives.
Q. You don’t like knives?
A. No. -
Q. Have you ever indicated to anybody else that you did?
A. No sir.
Q. Ever?
A. No sir.”

Rebuttal evidence was introduced as to defendant’s activities at a party approximately four months prior to the commission of the crime. The two rebuttal witnesses testified that defendant displayed a butcher knife at a party they were attending. The testimony indicates that defendant had no intention of actually using the knife. In its order following the post-trial motions, the court stated that rebuttal testimony was properly admitted to rebut defendant’s volunteered statement.

Rebuttal evidence is that which is adduced by the prosecutor to explain, repel, contradict, or disprove evidence given by the defendant. (People v. Carbono (1975), 27 Ill. App. 3d 988, 327 N.E.2d 546, cert. denied (1976), 424 U.S. 914, 47 L. Ed. 2d 319, 96 S. Ct. 1114.) A rebuttal witness may be called to contradict the defendant’s testimony as to a material issue, but not as to collateral or immaterial matter. (People v. McGhee (1974), 20 Ill. App. 3d 915, 314 N.E.2d 313.) In the instant case, the rebuttal testimony contradicts defendant’s statement on cross-examination as to his dislike for knives. Further, the rebuttal testimony is patently relevant to the question of defendant’s believability and veracity. (See People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14.) Therefore, the trial court was correct in admitting the testimony to rebut defendant’s volunteered statement.

Defendant asserts that the trial court erred in allowing the State to conduct a physical demonstration during closing argument in that the demonstration in essence allowed the prosecutor to testify or offer evidence on behalf of the State. During cross-examination of defendant, the prosecutor had defendant position an assistant state’s attorney during a physical demonstration, to re-create the scene at which defendant allegedly found one of the victims. The defendant then demonstrated the manner in which he had turned over the body. During the State’s closing argument, the prosecutor conducted a physical demonstration using the same model to show the position of this victim’s body. This demonstration was based on a photographic exhibit introduced at trial and was apparently intended to demonstrate the defendant could not have turned over Ms. Durbin’s body as he had testified he had done. Over defendant’s objection, apparently because of the location of furniture in the courtroom, the trial court allowed the prosecutor to conduct the demonstration. In its order denying defendant a new trial, the court stated that the demonstration in closing argument was proper where it was based on a photograph admitted into evidence. It is impossible to determine from the record precisely what occurred during the demonstration or the thrust of defendant’s objection.

Admission of demonstrative evidence is a matter within the discretion of the trial court. (People v. Proper (1979), 68 Ill. App. 3d 250, 385 N.E.2d 882.) In the instant case we find no abuse of that discretion because both demonstrations were based on evidence admitted at trial. The first demonstration was based on defendant’s testimony and the second on a photographic exhibit.

Defendant next asserts that the consecutive life sentences imposed are excessive in that defendant is 19 years old, has no prior felony record, and has a history of employment. The trial court sentenced the defendant to consecutive terms of natural life imprisonment pursuant to section 5—8—1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(1)), finding that the murders were accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty.” There can be no challenge to a single sentence of natural life imprisonment in this case because the sentence is mandated by section 5—8—1(a)(1), (c) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(1), (c)) for the murder of more than one victim.

A trial court may impose consecutive sentences, subject to the limitations in section 5—8—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—4), where

* ° * having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such is necessary to protect the public from further criminal conduct by the defendant and where the offenses were not committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.” (People v. Craig (1977), 47 Ill. App. 3d 242, 253-54, 361 N.E.2d 736, 745.)

Imposition of sentence is a matter within the discretion of the trial court. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The record reveals that while the court placed emphasis on the nature of the offense and the protection of society, it did consider the requisite factors in imposing the consecutive life sentences. After careful review of the record, we find no abuse of discretion in the imposition of sentence. Defendant further argues that the murders were part of a single course of conduct and, as such, consecutive sentences cannot be imposed. We find that two murders constitute separate and distinct acts even though they were proximate in time and space. See Craig; People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838; People v. Davis (1974), 20 Ill. App. 3d 948, 314 N.E.2d 723.

Defendant asserts that the natural life sentencing provision (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(1)) is unconstitutional in that it is violative of article I, section 11 of the Illinois Constitution, which provides that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

Defendant argues that article I, section 11, requires an express finding by the trial court that there is no possibility of restoring the defendant to useful citizenship. This argument was rejected in People v. Nobles (1980), 83 Ill. App. 3d 711, 404 N.E.2d 330, and in People v. Bartik (1981), 94 Ill. App. 3d 696, 418 N.E.2d 1108, where the court held that the constitution did not so mandate. The court stated that the “record must show that the trial judge considered both the seriousness of the crime and the defendant’s rehabilitative potential.” (94 Ill. App. 3d 696, 702, 418 N.E.2d 1108, 1113.) In the instant case the record reveals that the trial judge considered these factors. This court also rejected this argument in People v. Merchel (1980), 91 Ill. App. 3d 285, 414 N.E.2d 804. We find no reason to depart from our previous holdings.

Defendant’s final contention is that he was not proved guilty beyond a reasonable doubt. Defendant argues that the evidence showed only his presence at the scene of the offense and that his exculpatory testimony was corroborated in many respects by other evidence produced at trial. The State responds that defendant’s guilt was circumstantially established by, inter alia, blood on defendant shortly after the offense, defendant’s admission of being in the house, and the presence of items in defendant’s room which were taken from the victim’s home.

Defendant argues that the evidence was entirely circumstantial and insufficient to disprove, in any significant manner, defendant’s trial testimony. A conviction may be sustained on circumstantial evidence, it being only necessary that the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. (People v. Williams (1977), 66 Ill. 2d 478, 363 N.E.2d 801.) While a conviction may be sustained on circumstantial evidence, the guilt of the accused must be established as to exclude any reasonable hypothesis of innocence. (People v. Lewellen (1969) 43 Ill. 2d 74, 250 N.E.2d 651.) In the instant case defendant made several statements to officérs that he later admitted to be untrue. Defendant made another statement to the officers as to how he discovered the bodies of the victims. This statement was inconsistent with his exculpatory testimony at trial. It is the responsibility of the trier of fact to determine the credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence. (People v. Scarpelli (1980), 82 Ill. App. 3d 689, 402 N.E.2d 915.) A jury is not compelled to accept a defendant’s account of what happened but can consider the surrounding circumstances and the probability or improbability of the defendant’s story. (People v. Camden (1980), 91 Ill. App. 3d 946, 414 N.E.2d 823.) The State introduced evidence to indicate substantially more than mere presence at the scene of the offense. Defendant relies primarily on his own exculpatory testimony which was inconsistent with testimony previously given. All of the testimony was heard by the jury. After careful review of the record, we find sufficient evidence, albeit circumstantial, to support the jury’s verdict of guilty. Defendant offers no compelling argument upon which to disturb that verdict.

For the foregoing reasons, the judgment of the Circuit Court of St. Clair County is affirmed.

Affirmed.

KASSERMAN, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: JUSTICE JONES

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK C. HORSTMAN, Defendant-Appellant.
    Fifth District
    No. 80-561
    Opinion filed November 19, 1981.

      James E. Wallis, of Gitchoff and Wallis, of Granite City, for appellant.
    Donald W. Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Raymond F. Ruckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

Defendant, Mark C. Horstman, pleaded guilty to the offense of reckless homicide and was sentenced to two years’ imprisonment by the circuit court of Madison County. Defendant appeals both the sentence and the trial court’s denial of his post-trial motions to have the sentence reduced and to withdraw the guilty plea and vacate judgment. We also consolidated for oral argument and opinion defendant’s appeal of the trial court’s denial of his petition for post-conviction relief.

Defendant was originally charged by a two-count information with the offenses of reckless homicide and driving under the influence of intoxicáting liquor. Pursuant to a plea negotiation, the count charging defendant with driving under the influence was dismissed, and defendant pleaded guilty to the offense of reckless homicide. In exchange for that plea the State joined with the defense in recommending that defendant be placed on 2/2 years’ probation and fined $1500. After the court explained the nature of the charge defendant stated that he understood it. The court then admonished defendant of the rights that he would forego by pleading guilty and stated that defendant could receive from one to three years’ imprisonment and that the court was not bound by the State’s sentencing recommendation. The court then asked the prosecution for a factual basis for the plea.

The prosecutor stated that if the matter were to go to trial the State would call the State trooper who investigated the accident and that officer would testify that defendant’s automobile had crossed the center-line and collided head on with a motorcycle, with the result that the cyclist was fatally injured. According to the prosecutor the People would also corroborate the police officer’s testimony with the testimony of both the county coroner and a motorist, who herself was forced to swerve by defendant moments before the crash and who observed the fatal collision scene seconds after impact. In response to the court’s questioning, defendant stated that he agreed with that recitation of the facts and had nothing to add. Defendant’s guilty plea was subsequently accepted, and the court ordered the probation department to compile a presentence report for the sentencing hearing. The presentence report disclosed that defendant’s only criminal convictions were three convictions for possessing small amounts of marijuana in 1972, 1973 and 1974 and that he had paid fines and successfully completed terms of probation for those offenses. On two of those occasions defendant had also been charged with offenses arising from intoxication, but the report noted no dispositions for those offenses. No police contact was noted for the six-year period immediately preceding this charge. The report also disclosed that during that time defendant had maintained a good employment record and had done a good job of supporting his wife and stepdaughter. It also noted that defendant had “the ability and potential to be a productive member of society and appears to be a very good probation risk.” However, the report concluded by stating that “due to the seriousness of the present offense and the fact that he has four prior criminal convictions, this officer does not recommend probation.”

At the sentencing hearing the author of the presentence report, Probation Officer Hancel Bailey, was called by defendant. Bailey reiterated his belief that defendant was a good probation risk and admitted that the statement made in his presentence report concerning defendant’s four prior convictions was inaccurate. Defendant had only three prior convictions for marijuana possession, and the probation department had no record of a disposition in the fourth case. Bailey stated that his recommendation against probation had nothing to do with defendant’s ability to complete successfully a term of probation but was based solely upon the seriousness of the instant offense. Bailey testified that his recommendation would have been the same even if defendant had no prior convictions. During the sentencing hearing defendant moved to strike a portion of the presentence report which referred to empty beer cans, one of which was still cool when found in defendant’s vehicle at the time of the collision. The State objected stating that it was a part of the case and “should be assessed whatever weight the court so wishes.” The court refused to strike that portion of the report. In addition to the presentence report the court received, without objection, several letters of recommendation from defendant’s employers and business associates. The court also received testimony from defendant’s wife and from his uncle, who is a trade union official. Both testified as to defendant’s good character and his reputation as a hard worker. The wife stated that defendant was a good provider and that without his support she and her daughter would most probably be reduced to welfare.

At the conclusion of the hearing the court stated that after considering the Illinois Criminal Code, the serious harm caused and defendant’s prior criminal record it was rejecting the recommendation of probation and instead imposing a sentence of two years’ imprisonment.

Defendant filed a motion to vacate judgment and withdraw his guilty plea and a motion for a reduction of sentence. In support of these motions defendant introduced the affidavit of J. William Lucco, an attorney not involved in the case. According to that affidavit, the trial judge in this case spoke with Lucco before defendant’s sentencing hearing and stated that he had a tough sentencing hearing coming up and that he believed that the State was sorry that it had recommended probation.

At the hearing on the post-trial motions the judge stated for the record that while talking to Lucco and others about criminal law in general he had said that he had a tough sentencing decision coming up and that he thought the State would regret having recommended probation after seeing the presentence report. Neither the judge’s comments nor Lucco’s affidavit indicated that the judge had in any way revealed his thinking in the matter, nor was there anything to suggest that the judge had solicited or received any advice.

In arguing its post-trial motions the defense contended: (1) that the trial judge had acted improperly and (2) that the prosecution had in effect breached its agreement not to recommend imprisonment by: (a) cross-examining the probation officer as to his reasons for recommending imprisonment and (b) by objecting to deleting the reference to the beer cans from the presentence report. Following the hearing the trial court denied the post-trial motions.

Defendant filed notice of appeal, and following a hearing which allowed defendant’s motion to supplement the record on appeal, defendant filed a petition for post-conviction relief and a petition for relief from judgment under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). Defendant’s post-conviction petitions were denied, and his appeal from that denial has been consolidated with his direct appeal.

Defendant’s first contention on direct appeal is that the two-year sentence was excessive. Although defendant’s prior criminal record was relatively minor it did involve the voluntary use of marijuana, the effects of which are not dissimilar to the mind distorting attributes of alcohol, which contributed to the death here. In addition, defendant’s prior arrests for intoxication, while not resulting in convictions and not providing a basis for sentencing, can be considered in denying an application for probation. (People v. Andreano (1978), 64 Ill. App. 3d 551, 558-59, 381 N.E.2d 783, 789.) Even though a resulting death is inherent in all charges of reckless homicide and even though the legislature allows probation as a permissible disposition for reckless homicide, the resulting death is nevertheless a serious consequence, the consideration of which is mandated by statute. (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2(a)(1); People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Similarly, the need to deter others from engaging in similar conduct is also a statutorily mandated consideration. (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2(a)(7).) This consideration is particularly applicable to . reckless homicide which is often committed by otherwise law abiding citizens who decide to drive after having become intoxicated. Upon these people, unlike hardened criminals, the knowledge of a likely prison sentence would have a real deterrent effect, and largely for such reasons similar sentences have been imposed in similar situations. People v. Simkins (1978), 62 Ill. App. 3d 758, 379 N.E.2d 391; People v. Gray (1972), 7 Ill. App. 3d 526, 288 N.E.2d 26.

In addition to the need to deter like conduct, the court was faced with other considerations. Although it is undeniable that defendant has an interest in sentencing, it is often forgotten that the public also has an interest in sentencing. This is especially true when, as here, similar prior conduct by defendant casts a doubt upon rehabilitation potential and the usefulness of probation. Under the facts of this case we do not believe that the sentence imposed was an abuse of discretion (see People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882), and we see no merit to the claim that the sentence was excessive.

Defendant attacks the sentence imposed on him by claiming that the trial judge merely followed the probation officer’s recommendation rather than making an independent sentencing determination. Since probation is a permitted disposition for reckless homicide, the probation officer was in error in drawing the legal conclusion that probation should be denied solely because of the seriousness of the offense. However, we find nothing in the record to suggest that the trial court gave any consideration to such reasoning or failed to draw the proper legal conclusion. Not only is there a strong presumption that a judge’s decision is based upon proper legal reasoning (People v. Bey (1972), 51 Ill. 2d 262, 281 N.E.2d 638; People v. Hubert (1977), 51 Ill. App. 3d 394, 366 N.E.2d 909), but here the judge acknowledged that he faced a “tough” decision and that he had carefully assessed the proper factors. We find no basis for the claim that the trial judge.abdicated to the probation officer his statutorily imposed duty to make an “independent assessment.” Ill. Rev. Stat. 1979, eh. 38, par. 1005—4—l(5)(b).

Defendant also contends that the trial judge acted improperly during conversations with Lucco and others. We note from the outset that this case is not similar to People v. Sumner (1976), 40 Ill. App. 3d 832, 354 N.E.2d 18, in which the judge improperly solicited and received opinions as to whether probation would depreciate the seriousness of defendant’s actions. In that case the judge engaged in ex parte communication de-. signed to influence his judicial action as prohibited by Supreme Court Rule 61(c)(16) (73 Ill. 2d R. 61(c)(16)). The trial judge here merely confided to persons not involved in the case that he had a tough sentencing decision to make and that he believed the prosecution would regret having recommended probation. While, perhaps, it might be best if all judges became mutes once they left their courtrooms, such is not possible, and we find nothing improper to have occurred here. Nothing in this record even hints that the trial judge either revealed his thinking or that he solicited or received any outside advice.

Defendant’s next contention on direct appeal is that the trial court erred by considering information contained within the presentencing report which referred to empty but still cool beer cans found in defendant’s car at the time of the accident. At trial defendant did not in any way argue that such information was inaccurate, and he therefore may not do so on appeal. (People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9; People v. Washington (1962), 23 Ill. 2d 546, 179 N.E.2d 635.) As to defendant’s claims concerning the relevancy and competency of such information, we again note that there is a strong presumption that a trial judge will consider only that which is competent. (Bey; Hubert.) In addition, it is well recognized that in sentencing the court is not confined to the narrow issue of guilt, nor is it bound by rigid adherence to rules of evidence. Instead, the sentencing court may search anywhere within reasonable bounds for accurate information concerning surrounding circumstances which tend to mitigate or aggravate the offense and for reliable information concerning defendant’s life and characteristics. (Meeks.) The information contained within the report was both relevant and competent for the purpose of sentencing, and we find no error in its inclusion. Further, even if error did occur it could in no way be termed prejudicial in view of defendant’s own admission to the probation officer that he consumed 10 to 12 beers prior to the accident.

Related to defendant’s argument that such information should have been excluded from the presentencing report is his argument that the prosecution, in effect, breached its plea agreement to recommend probation. Defendant contends that this was done by the prosecutor’s cross-examination of a witness favorable to imprisonment and by objection to excluding reference to the beer cans from the presentencing report. Even if defendant has not waived this argument by his failure to present it below (see People v. Smith (1975), 28 Ill. App. 3d 908, 329 N.E.2d 896), we find none of the prosecutor’s actions to have been inconsistent with his plea agreement. By the terms of that agreement the prosecutor agreed to (1) dismiss the charge of driving while intoxicated, (2) delete references to intoxication in the charging documents, and (3) to recommend a sentence of probation. The prosecutor scrupulously adhered to his agreement. Although the prosecutor in closing argument stated that the court must impose an appropriate sentence he concluded by stating that he stood by his recommendation that probation would be appropriate. In addition, the charging document deleted all references to intoxication. Never was it agreed that the probation department’s report would exclude reference to the circumstances surrounding the offense, nor was it agreed that the prosecutor could not cross-examine the probation officer as to his views once the defendant called him as a witness for purposes of attacking his recommendation. The probation department is an entity separate and apart from the State’s Attorney’s office, and the prosecutor is not responsible for the actions of the probation department. In this case, no representation was made by the prosecutor that he would attempt to influence or control the actions of the probation department. Therefore the actions of the probation department could not result in a breach of the agreement where the prosecutor did no more than question the probation officer as to his independent recommendation, as brought forth by the defense during direct examination. To hold otherwise would force the probation department to become subservient to the prosecutor. This would not only raise serious due process questions, it would also deny the court the benefit of independent sentencing information.

Defendant’s final contention on direct appeal is that the trial court erred in accepting the guilty plea without first obtaining a sufficient factual basis for the plea as required by Supreme Court Rule 402 (73 Ill. 2d R. 402). In this case there were no eyewitnesses to the accident, itself. However, there was a motorist who had been forced to swerve because of defendant’s driving in the wrong lane only moments before the accident, and she had observed the accident scene only seconds after the crash. The prosecutor stated that both she and an investigating officer would, if called, testify that the position of the vehicles showed defendant to have been in the wrong lane. When asked by the court if he had anything to add to this recitation by the prosecutor, defendant replied negatively. We see no way that this factual basis can be characterized as incomplete merely because defendant later told the probation officer that he may or may not have been in the wrong lane and that he had no recollection of the accident. To allow this type of statement to raise a doubt as to a previously tendered and sufficient factual basis would be to invite all defendants to question the factual basis for a guilty plea once court is recessed so they could later attack the plea if not pleased with the sentence imposed. Additionally, no disagreement was voiced at the time the factual basis was tendered even though defendant had an opportunity to do so.

Since we have found no reversible error to have occurred during defendant’s trial, we affirm the judgment upon the direct appeal.

As to defendant’s appeal of the post-conviction proceedings, we find it impossible to refute the statement made by the prosecution in its brief:

“In appealing from the denial of his post-conviction and section 72 petitions, the defendant submits a brief which * ° * appears to be a clone of the brief which he filed in his direct appeal. He presents the same arguments, in the same order, and in virtually identical language.”

Neither a post-conviction petition nor a section 72 petition are designed as a substitute for direct appeal. (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 63; People v. Frank (1971), 48 Ill. 2d 500, 272 N.E.2d 25; People v. Jennings (1971), 48 Ill. 2d 295, 269 N.E.2d 474.) Such petitions cannot be used to relitigate claims based on the trial record. (Brunswick v. Mandel (1974), 59 Ill. 2d 502, 322 N.E.2d 25.) Such procedures are designed only to correct unknown errors of fact which, if known at the time of trial, probably would have changed the result. (Berland.) Since defendant did nothing more than raise the same issues brought up on direct appeal, he failed to state a cause of action in the post-conviction petitions, and we affirm the trial court’s denial of said petitions.

Affirmed.

KASSERMAN, P. J., and KARNS, J., concur.


author: JUSTICE HARRISON JUSTICE WELCH,

text:
    TERRY McCRACKEN, Plaintiff-Appellee, v. WESTINGHOUSE AIR BRAKE COMPANY, INC., Defendant-Appellant.
    Fifth District
    No. 80-234
    Opinion filed November 25, 1981.
    Rehearing denied January 5, 1982.

      Dunham, Boman & Leskera, of Belleville (John W. Leskera and Russell K. Scott, of counsel), for appellant.
    Baker & Scrivner, of Belleville (Roger M. Scrivner, of counsel), for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff-appellee, Terry McCracken, brought this action in strict products liability to recover damages for injuries he suffered allegedly caused by a defect in an earth scraper manufactured by the Westinghouse Air Brake Company, Inc. (WABCO), the defendant-appellant. McCracken alleged that the WABCO machine was unreasonably dangerous in its failure to have a shield on the back of a large cooling fan near the engine or a warning not to work near the fan while the engine was running. WABCO argued that the machine was not unreasonably dangerous and also presented an assumption of the risk defense. The trial court submitted the case to the jury under both theories advanced by the defense, and the jury returned a verdict in favor of WABCO. McCracken moved for a new trial on several grounds, and the trial court granted that motion on the basis that the verdict was against the manifest weight of the evidence. WABCO has perfected an appeal to this court from the order granting a new trial.

Because of the nature of the defense presented at trial, a detailed factual summary is appropriate. On October 4, 1976, McCracken was employed in a construction crew assigned to complete Interstate 70 near Vandalia, Illinois. McCracken worked as a “greaser” and had served in that capacity for approximately seven months. The task of a greaser is to lubricate and maintain construction equipment in the field, often while the equipment is running. During the 10 years prior to his promotion to greaser, McCracken had worked as an “oiler.” The basic difference between the duties entailed by the two positions is that the oiler is generally limited to servicing one or two pieces of equipment, while a greaser is usually assigned to many machines. On October 4,1976, McCracken was directed to service a dozen different machines on the Vandalia jobsite.

One of the pieces of equipment on the job that day was a 1970 model G-74 earth scraper manufactured by WABCO. The scraper was not developing full power, and when McCracken arrived to service it, he was directed by the operator to tap the fuel filters. A common practice is for greasers to tap the fuel filters while the engine is running on machines such as this, based on the theory that this will dislodge dirt trapped in the filters and permit the free flow of fuel.

The two filters which were the subject of this operation were located four or five inches behind a cooling fan which was about three feet in diameter. One of the filters was slightly closer to the fan than the other filter. The fan was circumscribed by a shroud, which served to funnel the air through the fan and thus increase its effectiveness. There was no shield or guard on the back side of the fan, which faced the two filters, and the scraper contained no warnings about the dangers of working in proximity to the fan. At trial, witnesses testified that all WABCO scrapers manufactured after 1970 had a complete shield surrounding the fan. McCracken also testified that the only similar equipment on the jobsite was a newer model which, according to the trial testimony, would have had a complete shield.

To comply with the operator’s request to tap the fuel filters, McCracken reached into the open engine compartment and struck the rear fuel filter with his right hand while the operator depressed the accelerator. McCracken moved his hand forward to tap the front filter, but instead he placed it into the cooling fan, mangling it severely.

The standard of review governing this case is that “[t]he decision of a trial court to grant a new trial is an exercise of discretion which should not be disturbed unless a clear abuse of that discretion is shown.” (Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 144, 357 N.E.2d 500.) Additionally, the reasons specified by the trial court in granting a new trial do not limit the scope of appellate consideration. Varacalli v. Russell (1978), 67 Ill. App. 3d 988, 994, 385 N.E.2d 753 (Moran, J., dissenting).

It is well settled in Illinois that contributory negligence is not an available defense in a strict products liability action (Kerns v. Lenox Machine Co. (1979), 74 Ill. App. 3d 194, 197, 392 N.E.2d 688), but that assumption of the risk is a defense. (Russo v. The Range, Inc. (1979), 76 Ill. App. 3d 236, 238, 395 N.E.2d 10.) Whether a plaintiff has assumed the risk of an activity involves a two-step inquiry, with the burden of proof on the defendant. (Collins v. Musgrave (1975), 28 Ill. App. 3d 307, 311, 328 N.E.2d 649; Ruggeri v. Minnesota Mining & Manufacturing Co. (1978), 63 Ill. App. 3d 525, 530, 380 N.E.2d 445.) First, the defendant must show that the plaintiff actually knew of the defective condition, with such knowledge determined on the basis of a subjective, rather than an objective, test. (Russo, 76 Ill. App. 3d 236, 238.) Second, the defendant must show that, despite awareness of the danger, the plaintiff deliberately and unreasonably exposed himself to the danger. (Scott v. Dreis & Krump Manu facturing Co. (1975), 26 Ill. App. 3d 971, 990, 326 N.E.2d 74.) If the plaintiff’s act was due to “mere inadvertence or momentary inattention,” the second part of the test is not satisfied; both appreciation of the danger and a deliberate voluntary act amounting to a “considered choice” must be proved by the defendant to present an assumption of the risk defense. (Niffenegger v. Lakeland Construction Co. (1981), 95 Ill. App. 3d 420, 425, 420 N.E.2d 262.) Where the defendant has proved only that the act which triggered the injury was done with full knowledge of the dangers involved, but without “conscious conduct resulting in the injury, not satisfied by mere inadvertence of momentary inattention,” assumption of the risk is not available as a defense and should be stricken as a matter of law. Niffenegger, 95 Ill. App. 3d 420, 424-25.

In applying this standard to an analysis of plaintiff’s conduct, we must distinguish between plaintiff’s actions in repairing the machine while running and in bringing his hand in contact with the fan. Testimony at trial indicated that it was common practice to work on the machines while they were running and that this was a part of plaintiff’s job. “In situations where the nature of plaintiff’s employment requires exposure to certain hazards, it would be a non sequitur of the policy considerations of strict tort liability to say that plaintiff has voluntarily and unreasonably assumed such hazards by the mere acceptance of his employment.” (Scott v. Dreiss & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 990.) We conclude that McCracken’s working on the machine while running does not constitute evidence of assumption of the risk. This leads us to McCracken’s tapping of the fuel filters, and the subsequent contact of his hand with the rotating fan. The Scott court noted:

“There must, we think, be an element of conscious conduct resulting in the injury which is not satisfied by mere inadvertence or momentary inattention. [Citation.] The testimony in the instant case stands uncontradicted that plaintiff’s contact with the foot treadle was inadvertent. Defendant does not point out, nor does our search of the record reveal, any facts from which a contrary inference may reasonably be drawn. Therefore, assuming arguendo that plaintiff did have knowledge of one of the ‘defects,’ his conduct was not voluntary and unreasonable within the meaning of assumption of risk. Accordingly, we concur with the trial court’s conclusion that the evidence as a whole so overwhelmingly favors plaintiff that a jury finding for defendant on that issue could never stand.” (Scott, 26 Ill. App. 3d 971, 990-91.)

The Scott case governs our disposition of this issue. In Scott, the plaintiff was a punch press operator who inadvertently activated the ram on the press while his hand was on the targeted area. In the case at bar, McCracken was attempting to tap a fuel filter when his hand made contact with the fan blade. There is nothing in the record which suggests that McCracken’s action was due to anything but momentary inattention to the task at hand. “[B]efore the defense [of assumption of the risk] is properly submitted to the jury, there must be some evidence which will permit a finding that the one charged with assuming the risk had knowledge of the particular risk, and comprehending and appreciating such risk, voluntarily took his chances of harm therefrom.” (Scott, 26 Ill. App. 3d 971, 990.) Neither McCracken’s working on the machine while it was running, nor inadvertently thrusting his hand into the fan blade constitutes evidence of assumption of the risk. McCracken’s conduct is, at most, evidence of contributory negligence which, as noted above, is no defense in this action. Because the issue of assumption of the risk was not supported by any evidence, it should not have been submitted to the jury. The erroneous presentation of the defense to the jury warranted the ordering of a new trial by the trial court. Consequently, the trial court did not abuse its discretion. (See Kerns v. Lenox Machine Co. (1979), 74 Ill. App. 3d 194, 199.) On retrial, the issue of assumption of the risk should not be submitted to the jury. Collins v. Musgrave (1975), 28 Ill. App. 3d 307, 314.

Appellant contends that the jury verdict could have represented a finding for it on the unreasonably dangerous product issue. While this may be true, submitting the assumption of the risk issue to the jury where no evidence supporting that issue has been adduced during trial is reversible error. (Collins, 28 Ill. App. 3d 307.) Hence, this ground alone warranted the trial court’s grant of a new trial.

Appellant asserts that the evidence that the earth scraper was not unreasonably dangerous was so overwhelming that a verdict should have been directed for WABCO. We disagree. The standard for determining whether a defect giving rise to injury breaches a strict liability duty is whether the defect “subjects those exposed to the product to an unreasonable risk of harm. The Restatement (Second) of Torts concludes that strict liability applies only when the product is ‘dangerous to an extent beyond that which would be contemplated by the ordinary [person] • ° *, with the ordinary knowledge common to the community as to its characteristics.’ (Emphasis added.) Restatement (Second) of Torts sec. 402A, Comment i (1965).” (Hunt v. Blasius (1978), 74 Ill. 2d 203, 211-12, 384 N.E.2d 368.) There is no shield or guard on the back side of the fan, which faces the two filters, and the scraper contains no warnings about the dangers of working in proximity to the fan. McCracken testified that “[w]ith the shroud there, I thought it was protected,” even though “I knew there was [no guard] on the back.” Also, the misleading appearance of safety allegedly engendered by the partial shroud may have been exacerbated by the placement of a shield around the fans of subsequent models. This is borne out by McCracken’s testimony that the only similar equipment on the jobsite was a newer model, which, according to other trial testimony, would have had a complete shield. This evidence is sufficient to avoid directing a verdict against plaintiff on the unreasonably dangerous product issue.

For the foregoing reasons the order of the circuit court of St. Clair County granting a new trial in this cause is affirmed, and this cause is remanded for further proceedings consistent with this opinion.

Affirmed.

KASSERMAN, P. J., concurs.

JUSTICE WELCH,

dissenting:

When, as here, it is undisputed that a products liability plaintiff knew of the dangers of the allegedly defective product, the trial court must consider three factors before it directs the issue of assumption of the risk in favor of the plaintiff: (1) the age, experience and knowledge of the user, (2) the obviousness of the defect and the danger it poses, and (3) the actions of the user which led to the injury. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305; Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 326 N.E.2d 74.) Because, in its discussion of assumption of the risk, the majority ignores the first two factors and makes unwarranted conclusions about the third, I must respectfully dissent, I will discuss these three factors in order.

In many of those cases in Illinois where a court has struck the defense of assumption of the risk, it has often been shown that the plaintiff was generally inexperienced or was unfamiliar with the product in question. For example, in Scott and in Coty v. United States Slicing Machine Co. (1978), 58 Ill. App. 3d 237, 373 N.E.2d 1371, both plaintiffs were teenagers who had operated the machines which injured them for only several months before they were hurt.

The plaintiff in Niffenegger v. Lakeland Construction Co. (1981), 95 Ill. App. 3d 420, 420 N.E.2d 262, worked on a road crew. He was standing in front of a moving asphalt spreader, cleaning its jammed hopper, when an unguarded wheel rolled over his foot. In upholding the trial court’s decision to strike the defense of assumption of the risk, the court stated:

“At the time of the accident plaintiff had never seen anyone clean the machine before, had never cleaned the machine himself, had not seen the wheel on the side he was injured prior to the accident, nor had he received any instructions on how to clean the machine. His normal duties on the job site required him to stay behind or to the side of the machine. There is evidence that plaintiff had been working behind and on the right side of the machine while a dump truck was in front of it, was thus unaware of the absence of a guard, and other employees also did not notice that the guard wasn’t there.” (95 Ill. App. 3d 420, 425, 420 N.E.2d 262, 267.)

The Niffenegger decision is based, in part, on the plaintiff’s unawareness of the defect, a fact not present in this case. However, the above quotation nonetheless illustrates the importance of a plaintiff’s knowledge and experience in the context of assumption of the risk.

In Collins v. Musgrave (1975), 28 Ill. App. 3d 307, 328 N.E.2d 649, the court held that, as a matter of law, a plaintiff who was “generally familiar with the automobile mechanics” did not assume the risks associated with a defective axle assembly unit. But, as that case turned upon the nonobviousness of the defect and. the involuntary nature of the plaintiff’s actions which led to the accident, I will discuss this case under those factors.

The plaintiff here was not a teenager, nor had he been on the job for only several months. It is true that he had had little formal instruction relating to his work, but he had been employed for 10 years as an oiler and for seven months as a greaser. During that time he learned to work on equipment like the WABCO scraper, so that even if this particular scraper had been at the Vandalia site for only a day or so before the incident, the plaintiff had much experience with similar construction machinery with similar engines. Moreover, unlike a mechanic who usually works on nonfunctioning machines, the plaintiff had been assigned to keep the equipment in the field running, which frequently required work near moving parts.

I believe that the plaintiff’s substantial maintenance experience alone raises the issue of assumption of the risk to a jury question. (See Thomas v. Kaiser Agricultural Chemicals (1980), 81 Ill. 2d 206, 407 N.E.2d 32). Analysis of the remaining two factors, which follows, only acts to strengthen thát belief.

The courts in Coty and Scott did not label the dangers of the respective machines “obvious” or “nonobvious,” because both plaintiffs were inexperienced and the injuring acts were deemed “involuntary.” The absent wheel guard in Niffenegger was not considered obvious, and rightly so, when the wheels were only eight or nine inches in diameter and far below where the plaintiff worked cleaning the hopper.

The plaintiff in Collins v. Musgrave was travelling in his half-ton truck at 55 miles per hour when he discovered that his accelerator did not work. Instead of slowing to a stop on the highway, he elected to turn into an automobile lot, where he discovered that neither the foot brakes nor the hand brakes worked. He finally stopped by colliding with a garage. The plaintiff suggested at trial that when a sealed bearing in the axle assembly failed, the right rear wheel attached to the assembly moved out of position and impaired the braking system and transmission of power to the rear wheels. We cannot disagree with the court that “the nature of the danger did not become apparent until the accident actually occurred.” 28 Ill. App. 3d 307, 312, 328 N.E.2d 649, 652.

In contrast to the somewhat concealed defects in Niffenegger and Collins, the dangers of the fan on the WABCO scraper were obvious to all. The fan was a full three feet in diameter and it was located at eye level, only four or five inches from the filters upon which the plaintiff worked. It seems to me that the noise and air flow from such a large whirling fan only inches away from the subject of the maintenance should have been given at least some discussion by the majority before it struck the assumption of risk issue.

The third factor to be analyzed, the act which caused the injury, was considered by the majority. It divides the plaintiff’s conduct into two components—his working on the running machine and his “tapping of the fuel filters, and the subsequent contact of his hand with the rotating fan.” I cannot quarrel with the statement that the plaintiff has not assumed any risks merely by virtue of his employment. But the characterization of the plaintiff’s specific conduct which led to this injury as “involuntary” as a matter of law is both illogical and not in accord with precedent.

The majority notes that “[i]n the case at bar, McCracken was attempting to tap a filter when his hand made contact with the fan blade. There is nothing in the record which suggests that McCracken’s action was due to anything but momentary inattention to the task at hand.” (Emphasis added.) (103 Ill. App. 3d 26, 29-30.) If one looks only at McCracken’s insertion of his hand into the path of the fan, then that conclusion would follow. But, if the “action” which produced the injury is to be construed as the last act prior to injury, as the majority implies, then it would be virtually impossible to invoke the defense of assumption of the risk, except in cases of self-inflicted injury.

A more logical reading of the “action” which produced the injury would include the plaintiff’s conduct in reaching into the motor compartment with his bare hand to tap both filters. In fact, it is this conduct which the majority purports to analyze, although the language quoted above indicates that its focus was much more narrow. A broader definition of “action” is employed by the relevant cases, and, under this definition, there is an important factual question concerning whether the plaintiff acted “voluntary” to assume the dangers of the fan blade.

In Scott, mentioned by the majority, the plaintiff operated an electric punch press. When he stopped for a coffee break, he turned off the electricity and proceeded to remove the material from the bed of the press. The ram came down on his right hand while he was in the midst of this process. The plaintiff surmised that he must have activated the foot pedal, and the court held that action involuntary.

On its facts, the Scott decision was doubtless correct. There were two separate actions involved—the plaintiffs voluntary insertion of his hand into the bed of the press and his involuntary contact with the foot pedal. But for the action of the plaintiffs foot, he would not have been injured. Since it was that action, and not the entirely separate action of the plaintiff in placing his hand into the bed of the press, which caused the injury, the Scott court correctly examined the depression of the foot pedal to determine whether it was voluntary.

The plaintiff in Coty operated a meat slicing machine with a stationary rotating blade and a moving meat tray. To prevent the splashing of juices from the meat being sliced, she covered the meat with paper towels. When she saw that the towels were being sliced along with the meat, she reached into the tray, without turning off the machine, to remove the paper towels. Her hand moved with the meat and was lacerated by the blade.

According to the majority’s analysis, the court should have concluded that the plaintiff’s placement of her hand in front of the blade was “involuntary” and therefore she did not assume the risk of injury as a matter of law. However, the Coty court inquired into the nature of “plaintiff’s conduct in removing the paper towels without switching off the power.” (58 Ill. App. 3d 237, 246, 373 N.E.2d 1371, 1378.) It concluded that, given the plaintiff’s age and experience, and the nature of the defect, her split-second decision to remove the paper was involuntary as a matter of law.

Also instructive is Collins v. Musgrave. The court in that case did not narrow its scope of inquiry to the plaintiff’s last action before he hit the wall of the garage. The plaintiff’s “split-second decision to turn into [defendant’s] lot rather than to stop on the highway upon discovering the loss of acceleration” (28 Ill. App. 3d 307, 313, 328 N.E.2d 649, 653) was deemed involuntary, in part due to the concealed nature of the defective axle. Collins represents a much more sensible reading of the term “action” than that employed by the majority.

The defense of assumption of the risk was held to be a jury question in Martinet v. International Harvester Co. (1977), 53 Ill. App. 3d 213, 368 N.E.2d 496. There, the plaintiff left a bulldozer in low reverse gear and dismounted it to fasten an attachment to it. As he remounted the machine, he slipped, and his right hand hit the clutch lever and engaged the transmission. The reverse motion of the machine’s track pulled the plaintiff into it and injured his left leg.

Under the majority opinion, the plaintiff would not have assumed the risk of injury because there would be “nothing in the record which suggests that [the plaintiff’s striking of the clutch lever] was due to anything but momentary inattention to the task at hand.” But, again, the court’s inquiry was not so narrow. It held that the plaintiff’s decision to leave the transmission in gear presented a jury question on assumption of the risk.

In this case, the plaintiff was successful in tapping the first filter, but was injured in his attempt to tap the second filter. As a logical matter, and, according to the authority of cases such as Coty and Martinet, the “action” which led to the injury was the plaintiff’s decision to reach into the engine compartment and tap the filters with his hand. It was not only the movement which brought his hand into the path of the blade instead of into contact with the second filter.

Unlike the majority, I believe that McCracken’s action in reaching into the engine compartment to work on the filters was not due to “momentary inattention to the task at hand” as a matter of law. The plaintiff’s substantial experience with working machinery and the obvious character of the dangers of the fan show that assumption of the risk was precisely the sort of question which was for the jury to decide.

If my discussion has seemed to focus on only a few cases, it is because those cases which have directed the issue of assumption of the risk in favor of either party are very exceptional, and I have not considered those cases which were decided solely on the plaintiff’s unawareness of the defect, because this plaintiff admitted that he knew the fan was unshielded. (Compare Sipari v. Villa Olivia Country Club (1978), 63 Ill. App. 3d 985, 380 N.E.2d 819, and L. D. Brinkman & Co.-Midwest v. National Sponge Cushion Co. (1979), 76 Ill. App. 3d 683, 394 N.E.2d 1221.) I realize that both Niffenegger and Collins discuss the unawareness of the respective plaintiffs of the defects involved, but these cases were relevant authority for their discussion of the other pertinent factors.

Assumption of the risk in a products liability case is normally a question for the jury (Thomas v. Kaiser Agricultural Chemicals), and there are many significant differences between this case and those few cases which have directed that issue in favor of the plaintiff. Those differences are so great that I am compelled to dissent from the majority’s departure from the general trend of products liability cases in this State. I would let the jury’s verdict stand.


text:
    JOSEPH TIMMONS, Plaintiff-Appellee, v. BEN C. TURSKI, D.D.S., Defendant-Appellant.
    Fifth District
    No. 81-117
    Opinion filed December 14, 1981.
    Stephen W. Thomson, of Reed, Armstrong, Gorman & Coffey, of Edwards-ville, for appellant.
    Paul H. Lauber, of Chapman & Carlson, of Granite City, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

On his way to an early-morning dental appointment plaintiff, Joseph Timmons, slipped on ice and fell, fracturing his left leg. When he fell he was walking along a path that had been shoveled by defendant, Ben Turski, his dentist. In the ensuant lawsuit a jury found in favor of plaintiff and against defendant, assessing damages in the amount of $20,000. The trial court denied defendant’s motion to set aside the verdict and his. motion to vacate the judgment entered on the verdict and enter judgment in favor of defendant notwithstanding the verdict of the jury. Defendant appeals, raising several issues. In view of our disposition of this case we need consider only one of the issues raised, whether defendant was free of negligence as a matter of law.

Plaintiff alleged in his second amended complaint that “the Defendant was negligent, in that he had, some time prior [to the date of plaintiff’s fall] created or permitted to be created an unnatural accumulation of snow and ice on his property, which was then and there present where Plaintiff was required to walk.” At trial the principal witnesses, other than the chiropractor who had treated plaintiff and the physician who had examined him, were the plaintiff and the defendant.

Defendant testified that on the morning when plaintiff fell, January 5, 1977, he had shoveled and applied salt to a path about 18 inches wide that led from the door, used by patients to enter his office, out to the sidewalk, along the sidewalk, and out to the parking lot used by his patients. It had snowed about two inches that morning and had snowed several times over the past few days prior to the incident. He indicated that the path he had shoveled traversed the width of the driveway leading into the parking lot. He described the driveway as snow-packed from cars driving over it.

Plaintiff testified that because of slick driving conditions he had left his house early so that he could be on time for his eight o’clock appointment with defendant. Having parked his truck in defendant’s parking lot, he walked along the path shoveled by defendant. The path led across the driveway, which was about 20 feet wide, and up to the corner of defendant’s office building. He described the surface of the path as “real glassy looking, slick looking.” Asked further about the surface of the path, he answered that “[t]he only thing I seen [sic] was just ice or snow, packed snow,” and stated that the path “looked like it had been shoveled but it looked more shiny than the parking lot,” which he described as “white” and “snow-packed.” He said that because the path had been cleared of snow he could see that ice appeared to be beneath the snow and explained that in order to have better footing than the ice in the path seemed to afford, he walked in the snow along the edge of the path. He testified,

“Just before I got to the corner of the building, I had to step around the corner to get to the main sidewalk and I stepped from the snow-covered area down to the path and then the next thing I knew I heard a—I was falling—I fell.”

He fell at a point before he reached the sidewalk, he said, “about ten or eighteen inches from the wall, about ten inches, I guess, from the wall” of defendant’s office building. He said he did not “really know” how far he was from the wall or whether he could have braced himself by using the building. In his deposition taken prior to trial he said he could “probably” have used the building for that purpose.

In his brief on appeal plaintiff avers that defendant had a duty “to refrain from aggravating an icy condition or causing the creation or accumulation of any icy condition through his own use of the property.” Plaintiff maintains that the icy condition was aggravated or indirectly created by defendant in the conduct of his dental practice on the property because motor vehicles using the driveway to pass to and from the parking lot caused the snow to be “packed down and made hard.” The surface was, he says, “packed by autos and then scraped over by defendant.” Plaintiff concludes that “[tjhrough his use of his property, the defendant aggravated and accumulated snow and ice where plaintiff was required to go while on defendant’s property for business purposes.”

We need not determine whether such compaction by motor vehicles constitutes a natural or an unnatural accumulation of snow and ice because, according to plaintiff’s own testimony, it would have been a physical impossibility for him to have fallen upon such a surface, falling as he did “about ten to eighteen inches” from the wall of a building and close enough to the building that he might possibly have used it to brace himself as he fell. Although plaintiff apparently had walked over the compacted surface of the driveway as he followed the path shoveled by defendant, he did not fall there but, rather, on that part of the path which had merely been shoveled by defendant.

It is well settled that a property owner is not liable for injury sustained by a business invitee in a fall on an icy sidewalk or parking lot maintained by the property owner for the use of his customers where the condition is a natural one and not caused or aggravated by the property owner. (Zide v. Jewel Tea Co. (1963), 39 Ill. App. 2d 217, 188 N.E.2d 383.) On the other hand, a property owner may be liable for injury sustained by a business invitee who falls and is injured as a result of snow and ice which did not accumulate as a result of natural causes but as the result of the property owner’s conduct in creating an unnatural or artificial accumulation of the snow and ice. (Zide.) Although there is no duty to remove snow and ice from one’s premises, a voluntary undertaking to remove such, snow and ice may be the basis of liability if the removal is performed negligently. (DeMario v. Sears Roebuck & Co. (1972), 6 Ill. App. 3d 46, 284 N.E.2d 330.) However, mere removal of snow, which may leave a natural ice formation remaining on the premises does not of itself constitute negligence. Bakeman v. Sears, Roebuck & Co. (1974), 16 Ill. App. 3d 1065, 307 N.E.2d 449; Anderson v. Davis Development Corp. (1968), 99 Ill. App. 2d 55, 241 N.E.2d 222.

In the case at bar there was no evidence that defendant by his conduct had created an unnatural or artificial accumulation of ice and snow where plaintiff fell. When defendant undertook voluntarily to remove the most recently fallen snow along the path upon his premises he did apparently leave a natural ice formation. To do so, however, does not constitute negligence, and there is no evidence in the record that his conduct in removing the snow was for any other reason negligent.

It was essential to plaintiff’s cause of action that he introduce some evidence to show that his fall resulted from an unnatural accumulation of snow and ice. He failed to do so. Where there is a complete absence of probative evidence to support the verdict of the jury, it should be set aside. (Zide.) Since there was in the instant case a complete absence of evidence to support the theory advanced by the plaintiff and the verdict reached by the jury, the verdict should be set aside. Not only did the evidence fail to show that defendant caused an unnatural accumulation of snow and ice at the place where plaintiff fell, it showed that by shoveling and scraping the snow along the path and by applying salt to it defendant exercised reasonable care in making his premises safe for use by plaintiff as well as his other patients. To hold otherwise would put defendant in the position of an absolute insurer of the safety of his business invitees, a position the law of this State prohibits (Zide). Because the trial court should have granted defendant’s motion to set aside the verdict we hereby reverse the judgment entered on the verdict and enter judgment for the defendant notwithstanding the jury verdict. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

Reversed, judgment rendered for defendant.

HARRISON and WELCH, JJ., concur.


author: PRESIDING JUSTICE KASSERMAN

text:
    COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. WALDMAN MERCANTILE CO., INC., et al., Defendants-Appellants.
    Fifth District
    No. 80-296
    Opinion filed December 22, 1981.

      Cornelius Thomas Ducey, Jr., of Ducey, Feder & Ducey, Ltd., of Belleville, for appellants.
    James E. Gorman, of Reed, Armstrong, Gorman and Coffey, of Edwards-ville, for appellee.
   PRESIDING JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiff, Country Mutual Insurance Company, brought an action for declaratory judgment requesting judicial determination whether an exclusion clause in an insurance policy issued by it to T & L Wholesalers, Inc. (T & L), precluded liability for fire damage to merchandise belonging to Waldman Mercantile Company, Inc. (Waldman), Pay Less Discount Systems, Inc. (Pay Less), and A. B. Lester Bookseller, Ltd. (Lester), who are T & L’s tenants. The fire insurer for Waldman and Pay Less, St. Paul Insurance Company, was also made a party to this action. The trial court found that the tenant’s merchandise was in the care, custody or control of T & L and that the limitation of liability found in an exclusion clause of the insurance policy precluded all claims by the defendants. From this determination, defendants Waldman and St. Paul Insurance Company appeal.

The issues raised on appeal are: (1) whether the merchandise belonging to Waldman, Pay Less, and Lester was under the care, custody or control of T & L so as to fall within the exclusion clause of the insurance policy; and (2) whether the failure of the plaintiff to offer defendants payment under a provision in one of the liability endorsements of its policy estops plaintiff from claiming that the defendants’ personalty was under T & L’s care, custody or control.

The facts as established by the evidence presented in the trial court are relatively simple. Plaintiff issued an insurance policy covering fire and other specified perils to T & L, which owned and operated the Wild Goose Bargain Center, a discount store located in Moro, Illinois. An endorsement to the policy, designated “Comprehensive General Liability Insurance Endorsement,” provided liability coverage for property damage but specifically excluded “property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control.” Another endorsement called the “SMP General Property Form” contained the following language:

“PERSONAL PROPERTY OF OTHERS: The insured may apply at each location up to 2%, but not exceeding $2,000, of the limit of liability specified for coverage B—Personal Property at such location, as an additional amount of insurance, to cover for the amount of the owners thereof (other than the named insured) direct loss by a peril insured against to personal property, similar to that covered by this policy, belonging to others while in the care, custody or control of the named insured and only on the described premises or within 100 feet thereof.”

On December 22, 1976, a fire occurred at T & L’s discount store which destroyed the building and merchandise located therein. According to the testimony of Thomas E. Anderson, T & L’s president, T & L’s employees were on duty at the time the fire began. The merchandise destroyed included that which belonged to Waldman, Pay Less and Lester, each of whom leased space in T & L’s store.

The business arrangements between T & L and the defendants who leased space in the discount store were essentially the same except that Waldman operated under a written agreement while Pay Less’ and Lester’s agreements were oral. Each of the businesses involved in the discount store owned its own merchandise, and each displayed its merchandise in separate areas. T & L sold hardware and automotive supplies, Waldman sold clothing, Pay Less sold drugs, and Lester sold books. Each business also hired its own employees. Waldman, however, occasionally hired T & L employees to perform work for it, and, under the terms of the lease, T & L was authorized to hire sales personnel for Waldman. The lessees’ merchandise was shipped to the store either by their own employees or commercial carrier. The merchandise was usually brought into the store by the lessees’ employees, but T & L employees occasionally brought items into a storage area from the loading docks. The lessees were fully responsible for maintaining their own displays and shelves, and their employees came to the store about once or twice a week during regular business hours to check and restock the merchandise.

T & L, in addition to leasing space to the other businesses, operated the cash register where.all sales from the bargain center were made, and it charged the lessees a percentage of the sales for this service. Merchandise belonging to the lessees was marked with tags which identified the business which owned it, and through this method T & L kept accounts of each lessee’s sales. Customer refunds were also handled by T & L employees. The hours for the conducting of business were determined by T & L. T & L was the only business which had keys to the premises and was responsible for cleaning and maintaining the building and the surrounding area. Further, T & L provided some security in the form of alarm systems and the employment of security personnel during the Christmas rush.

Testimony regarding the issuance of the insurance policy was given by Steve Yoder, an underwriter for plaintiff, and T & L’s president, Mr. Anderson. Mr. Yoder stated that he told Mr. Anderson that the policy only covered personal property belonging to T & L and that the lessees’ property was excluded unless he purchased additional coverage by paying another premium. Mr. Anderson testified that it was his understanding that the lessees would obtain their own insurance on their personalty and that he wished to cover only his own merchandise when he took out the policy.

Defendants first maintain that the trial court erred in holding that the lessees’ merchandise was in the care, custody or control of T & L at the time that it was destroyed by fire. They argue that, at most, T & L had only “limited access” to the personalty and that this is insufficient to constitute care, custody or control. We disagree and affirm the trial court’s judgment in this regard.

In view of the controversy which has given rise to the case at bar, it seems pertinent to emphasize the seemingly obvious fact that liability insurance coverage, as contrasted with insurance coverage for property of the insured which is damaged or destroyed, is designed to indemnify the insured from liability to third persons resulting from the breach of some duty by the insured. Liability for damage to property which is in the insured’s “care, custody or control” is frequently excluded from liability coverage. (12 G. Couch, Cyclopedia of Insurance Law §§44:424 through 44:434 (2d ed. 1964); Annot., 62 A.L.R.2d 1242 (1958).) As we have previously stated, the policy endorsement which is the basis of this appeal contained such a provision.

The Illinois cases suggest a two-pronged test for determining whether property is in the care, custody or control of an insured so as to preclude liability under such exclusion clauses. Where the property damaged is within the possessory control of the insured at the time of the loss and is a necessary element of the work performed, the property is deemed in the care, custody or control of the insured. (See Stewart Warner Corp. v. Burns International Security Services, Inc. (7th Cir.1975), 527 F.2d 1025.) While the control exercised by the insured must be exclusive, it need not be continuous, and if the insured has possessory control at the time the property is damaged, the exclusion clause will apply.

In the case at bar, the fire which destroyed the property occurred while the insured’s employees were, for all practical purposes, in full charge of the property. It was T & L employees who were on duty at the time the fire began and it was T & L which was primarily responsible for protecting the merchandise while on the premises. It is also significant that only T & L personnel had keys to the premises and, consequently, had access to the merchandise at all times. Defendants suggest a lack of exclusive control because the lessees’ employees were responsible for taking inventory and restocking the merchandise. We do not agree that such access to the merchandise amounts to “limited access” on the part of T & L. Indeed, the term could more aptly be applied to the lessees, whose employees could reach the personalty only during regular business hours. Therefore, we find that T & L had exclusive possessory control of the lessees’ property at the time of the loss.

The question remains whether the property was a necessary part of the “work performed” by the insured. We conclude that it was. The business arrangement between T & L and its lessees falls within the definition of a consignment in that the lessees retained title to the merchandise but delivered possession of it to plaintiff for sale. (Cf. F. F. Ide Manufacturing Co. v. Sager Manufacturing Co. (1898), 82 Ill. App. 685; Black’s Law Dictionary 278 (5th ed. 1979).) Under the agreement, T & L was required to sell the lessees’ merchandise and in return was to receive a percentage of the sales. The work performed by T & L was essentially a sales service. In light of the relationship between the insured and its lessees and the nature of the business arrangement, we find that the lessees’ property was a necessary element of the work performed.

Since the property damaged was both within the exclusive possessory control of plaintiff’s insured at the time of the loss and was an essential element of the work performed, we conclude that the property was within the care, custody or control of the plaintiff’s insured and, therefore, the exclusion clause of the policy was applicable in the instant case. The trial court properly ordered that the exclusion clause precluded liability of the plaintiff for the loss of defendants’ merchandise, and we affirm its judgment.

The defendants alternatively argue that since the plaintiff made no attempt to settle the claims of the lessees under the “SMP General Property Form” endorsement, it construed the situation to be one where the lessees’ property was not under the care, custody or control of T & L. Thus, according to defendants, the plaintiff should be estopped from claiming that the property was within its insured’s care, custody or control. We reject this contention for two reasons. First, the record does not indicate the cause for plaintiff’s failure to make payment under the provision relied upon by the defendants. In fact, the testimony regarding the issuance of the policy indicated that both the plaintiff and its insured did not intend the coverage to include any property other than that which belonged to T & L. Additionally, the language of the provision upon which defendants rely suggests that the provision is not applicable unless the insured requested such coverage. The provision states that the insured “may” apply a percentage of the coverage “as an additional amount insurance” to cover the property of others. As already indicated, the evidence suggests that the insured did not intend to cover any property other than its own. In view of the foregoing, we reject defendants’ claim based upon estoppel.

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

Affirmed.

KARNS, P. J., and HARRISON, J., concur.


author: JUSTICE HARRISON

text:
      In re MARRIAGE OF WILLIAM MEYER, Petitioner-Appellee, and SHELBY MEYER, Respondent-Appellant.
    Fifth District
    No. 81-120
    Opinion filed December 22, 1981.
    Jack L. Giannini, of Belleville, for appellant.
    John R. Sprague, Jr., of Sprague, Sprague & Ysursa, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Respondent Shelby Meyer appeals from a judgment of dissolution of marriage whereby the circuit court disposed of certain property acquired during her marriage to petitioner William Meyer. Respondent raises several contentions of error; however, we need only discuss her first point, whether the trial court erred in its method of determining the respondent’s share of the marital property represented by petitioner’s military retirement pension. We reverse and remand.

Although petitioner has not filed a cross-appeal, the propriety of the trial court’s characterization of a portion of petitioner’s military pension as marital property has been properly raised by respondent. Consequently, we will review this portion of the trial court’s judgment.

Petitioner has been employed by the United States Army for the past two years. Prior to that job, he served in the United States Air Force for a little over 21 years, the latter 17 of which he was married to respondent. Petitioner receives a pension from the Air Force amounting to a net payment of $578.45 per month. The trial court ordered the petitioner to receive “18.36 percent of his net military pension [as] non-marital property and the remainder of his net military pension except that he shall pay to the respondent through the Clerk of the Circuit Court an amount equal to 45 percent of the net marital portion of said pension. Payments to be made on a monthly basis and that said award is a division of property and is not an award of maintenance.”

Recently the United States Supreme Court had occasion to decide “whether, upon dissolution of a marriage, federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws.” (McCarty v. McCarty (1981),_U.S._, _, 69 L. Ed. 2d 589, 593, 101 S. Ct. 2728, 2730.) The court concluded that Federal law does preclude such a disposition of military nondisability retirement pay. The McCarty case is applicable to the case sub judice because the trial court’s disposition of the petitioner’s military pension closely parallels that in McCarty. Under McCarty, military nondisability retirement pay is “the personal entitlement of the retiree.” (McCarty, —U.S--,_, 69 L. Ed. 2d 589, 605, 101 S. Ct. 2728, 2741.) Hence, the trial court erred in awarding respondent any portion of the pension. See In re Marriage of Musser (1981), 87 Ill. 2d 68.

We must now determine whether the trial court may properly consider the military pension in determining the appropriate disposition of the marital property. The McCarty decision rested on an impermissible State interference with the statutory scheme’s provisions “for the retired service member,” and intrusion into “the personnel management needs of the active military forces.” (McCarty,_U.S__,_, 69 L. Ed. 2d 589, 606, 101 S. Ct. 2728, 2741.) Allowing the trial court to consider the military retirement pay of one spouse in arriving at a property disposition will interfere with neither of these goals. The former service member may have, other obligations increased which may have an adverse economic impact on him personally, but it will not diminish the fund to which he is entitled by congressional mandate. The McCarty opinion noted that the ex-spouse retains the right “to garnish military retired pay for the purposes of support.” (McCarty,_U.S__,_, 69 L. Ed. 2d 589, 608, 101 S. Ct. 2728, 2743.) Because the retirement fund itself will be unaffected and because this fund may be used indirectly to provide support, consideration of the military pension in arriving at property and maintenance dispositions will have no adverse impact on either congressional goal.

“[T]rial courts must consider the overall picture in disposing of marital property while providing for maintenance, child support, and attorneys fees. * * * Moreover, the other property awards, although not challenged on appeal, may also be modified if the trial court finds such changes necessary to promote a just distribution of marital property.” In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 636-37, 397 N.E.2d 488.

We must therefore reverse the judgment of the trial court to the extent that the parties’ property rights have been adjudicated, and we remand this cause to the circuit court of St. Clair County for a redetermination of property disposition and reconsideration of child support and maintenance in accordance with this opinion.

Reversed and remanded.

KASSERMAN, P. J., and WELCH, J., concur.