author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE LARK et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 82—2783, 82—2784 cons.
    Opinion filed September 28, 1984.

      James J. Doherty, Public Defender, of Chicago (Frank P. Madea, Assistant Public Defender, of counsel), for appellant George Lark.
    Steven Clark and Bruce Mosbacher, both of State Appellate Defender’s Office, of Chicago (Frank P. Madea, Assistant Public Defender, of counsel), for appellant Tommie L. McKinnie.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and James J. Pink, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendants George Lark and Tommie McKinnie were each convicted of three counts of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18—2), and sentences were imposed on all three counts. Lark challenges his conviction on grounds that a suggestive lineup led to his mistaken identification in court, improper testimony concerning his criminal record deprived him of a fair trial, and the trial court erred in dealing with a juror who dissented from the verdict. McKinnie joins in the last of Lark’s contentions, and claims further that improper comment in closing argument denied him a fair trial and that multiple convictions violated the one-act one-crime principle. The following facts are relevant to our decision.

At about 2 p.m. on February 4, 1982, two men entered Helen’s House of Fashion located at 13301 South Brandon in Chicago. The men browsed for a short while, then produced guns and forced the store’s proprietor, Helen Zajac, along with two job applicants, Gail Pazour and Connie Tabor, to crawl to a dressing room. The men took Zajac’s purse and ring as well as money, clothing and jewelry from the store. During the robbery, Nancy Fitzpatrick entered the store; one of the robbers held a gun on her, took her purse, and ordered her to join the others in the back of the store. Another prospective customer, Marian Harter, encountered similar treatment when she entered the store several minutes later.

Meanwhile, John Davy, who had driven Pazour and Tabor to Helen’s, was waiting for them in his car, which was parked in front of the store. Davy became suspicious when he observed two men carrying clothes from the store to a light blue 1973 Ford station wagon with no license plates. As Davy approached the store’s entrance, Pazour and Tabor emerged and announced that they had been robbed. Davy pursued the station wagon in his car until he saw a Chicago police squad car on 130th Street, at which time he flagged down Officer Mary Puchalski and told her that the men in the station wagon had robbed Helen’s House of Fashion. Officer Puchalski then took up the chase, lights flashing and siren sounding, and Davy followed.

Officer Puchalski pursued the station wagon from 130th and Torrence to 108th and Hoxie, where the station wagon collided with a parked car. The two occupants fled on foot while police converged on the accident scene. By this time, police responding to a call from Helen Zajac had obtained descriptions of the perpetrators. The police sought two black males: one, five feet 10 inches, 170 pounds, wearing a black leather jacket over a sweatshirt, with the hood of the sweatshirt hanging out from the collar of the jacket; the other six feet, 180 pounds, wearing blue jeans and a three-quarter length brown leather coat over a waist length black leather jacket.

Chicago Police Sergeant O’Hara apprehended Tommie McKinnie and brought him back to the accident scene, where John Davy positively identified him as one of the robbers. Sergeant O’Hara testified that he recovered a right hand glove from McKinnie’s pocket and found a matching left glove in the station wagon. In addition to the stolen clothing, jewelry and purses in the station wagon, Sergeant O’Hara observed license plates under the seat which were registered to George Lark, but which belonged on another car. He also noticed a three-quarter length brown leather coat.

Approximately two hours later, after residents of the 107th block south on Torrence reported a man moving in and out of back yards, Chicago Police Officer Charles Springer arrested defendant George Lark. During cross-examination of Sergeant O’Hara, defense counsel initiated the following dialogue:

MR. PRIDE: Did you have an occasion to have a radio communication with an officer named Springer on that date?
SERGEANT O’HARA: I imagine I did, yes, sir.
Q. Did you tell Officer Springer that George Lark was the man who was wanted?
A. I told him that we were looking for George Lark in connection with this robbery.
Q. No one on the — no one who had been a victim of the robbery or present when the robbery took place knew George Lark’s name, did they?
A. No, sir.
Q. And you gave Sergeant Springer George Lark’s name before you even saw George Lark on that date, didn’t you?
A. Yes, sir.
MR. PRIDE: I have no further questions. By the way, just one further question. You knew George Lark before that date, didn’t you?
THE WITNESS: I had an occasion to be at a scene of an arrest prior to that where George Lark had been arrested.
MR. PRIDE: Ared you knew — were you familiar with the name George Lark?
A. No, not really, it wasn’t until after this particular date that I realized this was the same individual from the previous incident.
Q. You went and rechecked it, that is why you remembered it from before?
A. No, sir.
MR. PRIDE: No further questions.” (Emphasis added.)

On redirect, the prosecution elicited the following:

“ASSISTANT STATE’S ATTORNEY: Now, you stated on a prior occasion you had seen George Lark arrested?
A. This is correct.
Q. At that time that he was arrested on that occasion, did you know his name?
A. No, sir.
Q. And when was the first time that you were able to connect the name George Lark with the person you had seen arrested on a prior occasion?
A. After his rap sheet, his police record sheet came back and I noticed the name." (Emphasis added.)

At about 6:45 p.m. on the day of the robbery, the witnesses separately viewed a lineup at the police station. Lark challenged the lineup in a pretrial suppression motion, arguing that the lineup was suggestive because he was handcuffed and forced to wear the three-quarter length brown leather coat which was recovered from the station wagon. The trial court viewed photographs of the lineup and noted generally as to age, height, build, coloring and facial hair that it was “a pretty good array.” Specifically, the judge stated that it was difficult to see the handcuffs, and that another man in the lineup wore a coat that was nearly indistinguishable from that worn by Lark. The court found that the lineup was not suggestive and denied the motion to suppress.

Helen Zajac, Connie Tabor and John Davy each positively identified both Lark and McKinnie. Gail Pazour stated that Lark and McKinnie “looked like” the robbers, and Nancy Fitzpatrick said that McKinnie looked like one of the robbers. Marian Harter was unable to identify anyone. Defense counsel presented photographs of the lineup to the eyewitnesses at trial and explored the basis for their identifications. In closing argument, counsel for defendant Lark posited that the witnesses identified the coat and not the defendant.

Defense counsel also suggested in closing argument that police officers were not above lying, and that once a defendant was charged, the police had an incentive to obtain a conviction. In rebuttal argument, the assistant State’s Attorney said:

“The hardest thing about my job, Ladies and Gentlemen of the Jury is listening to people, attorneys stand here and say police officers get up on that stand, take an oath and commit perjury, that my witnesses get up on the stand, take an oath and commit perjury.
* * *
Well, it’s not perjury, Ladies and Gentlemen. I resent that. I’m going to ask you, once again, to look at that evidence with me.”

The jury deliberated and returned verdicts of guilty, but upon defendant’s motion to poll the jury, the first juror to answer disavowed the verdicts. The trial court excused the jury to continue deliberations, then requested suggestions from counsel. Defense counsel asked that the jury be allowed to deliberate indefinitely; the court stated that the jury would deliberate to a unanimous verdict or a deadlock. The prosecution suggested that the court inquire whether the jury could resolve the issue; the judge declined to inquire, stating that the jury had not indicated any inability to resolve issues. The trial court asked whether the defense objected, but no objection was entered.

Following further deliberations, the jury again returned verdicts of guilty on three counts of armed robbery as to each defendant, and when polled, the jurors acknowledged their verdicts. George Lark was sentenced to three concurrent terms of 20 years’ imprisonment. Tommie McKinnie was sentenced to three concurrent 10-year terms of imprisonment. Both appeal.

Opinion

Lark first contends that the unnecessarily suggestive lineup led to irreparable misidentification. He argues that the witnesses’ descriptions were fatally flawed by their failure to mention facial hair or a mark under the eye, and that the witnesses based their identifications on the three-quarter length brown leather coat and handcuffs which he was forced to wear. The State maintains that the issue was waived, that the lineup was not unduly suggestive, and that the in-court identifications were reliable.

We reject the State’s two-fold argument concerning waiver. It is true that a defendant’s failure to raise an issue in his motion for a new trial normally constitutes a waiver of that issue on appeal. (People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.) In this case, however, Lark’s post-trial motion specified error in the trial court’s denial of the motion to suppress, and the State’s contrary assertion is simply incorrect.

In the second part of its argument, the State relies upon People v. Edwards (1978), 74 Ill. 2d 1, 383 N.E.2d 944, cert, denied (1979), 442 U.S. 931, 61 L. Ed. 2d, 299, 99 S. Ct. 2862, and maintains that Lark waived the identification issue by failing to include photographs of the lineup in the record on appeal. The court in Edwards held that defendant failed to preserve a record sufficient to find reversible error where isolated remarks in closing argument were transcribed but no context for the remarks appeared in the record. (74 Ill. 2d 1, 7-8, 383 N.E.2d 944.) We believe that Edwards stands for two propositions: (1) that the appellant bears the burden of preserving a record which demonstrates the alleged error, and (2) that context is essential to a finding of improper comment. We distinguish the instant case in that we are unaware of any case holding that photographs are essential to a finding of suggestiveness, and the State advances no reason that the law should be so. We conclude that the record is sufficient to decide the issue on the merits, and that defendant preserved the issue by specific reference in his post-trial motion.

On the merits, defendant’s contention fails. While the goal of a lineup should be to present the question of identification in as neutral a context as possible (see Israel v. Odom (7th Cir. 1975), 521 F.2d 1370, 1374), a pretrial identification will warrant reversal only if unnecessary or impermissible suggestiveness creates a substantial likelihood of irreparable misidentification. (People v. Lee (1969), 44 Ill. 2d 161, 167-69, 254 N.E.2d 469.) Here, the trial court negated defendant’s claim of suggestiveness by explicitly finding that the handcuffs were barely noticeable and the coat was nearly indistinguishable from another in the lineup.

Moreover, it appears that the most suggestive aspect of the lineup, the handcuffing, was attributable to defendant’s refusal to wear the coat. In People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369, our supreme court held that a defendant may not complain of a suggestive lineup where his or her misconduct drew the attention of the witness. The court there noted that the police may compel participation in a lineup in order to protect suspects from misidentification and to promote the early release of innocent persons. (People v. Yates (1983), 98 Ill. 2d 502, 523, 456 N.E.2d 1369; see also People v. Nelson (1968), 40 Ill. 2d 146, 152-53, 238 N.E.2d 378.) We question the necessity of requiring a defendant to wear clothing identified by witnesses (see People v. Franklin (1974), 22 Ill. App. 3d 775, 317 N.E.2d 611), especially before those witnesses have attempted an identification based on facial features and other inherent characteristics. However, the cases indicate that this is a permissible investigative technique (see, e.g., People v. Pecho (1936), 362 Ill. 568, 573, 200 N.E. 860; People v. Owens (1970), 126 Ill. App. 2d 379, 384-85, 261 N.E.2d 785. But see People v. Frank lin (1974), 22 Ill. App. 3d 775, 317 N.E.2d 611 (procedure criticized)), and we view defendant’s handcuffing as a reasonable response to his resistance to a proper, if ill-advised, police demand. In sum, we conclude that defendant was primarily responsible for what suggestiveness may have existed, and so we reject his claim.

Finally with respect to the identification issue, we observe that the reliability of the identifications justified their admission at trial. Even unnecessary pretrial suggestiveness will not prevent the admission of identification testimony at trial where the totality of circumstances indicates that the identification is reliable; the witness’ opportunity to view the perpetrator, degree of attention, certainty, and the time elapsed between commission of the crime and identification are all relevant to reliability. (People v. Manion (1977), 67 Ill. 2d 564, 571, 367 N.E.2d 1313, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) In this case, three witnesses independently and positively identified Lark as one of the perpetrators within several hours of the crime. Zajac and Tabor observed the perpetrators under indoor lighting for several minutes, and both testified that their attention was focused on Lark because he asked several questions; Zajac testified that she became suspicious when Lark insisted that she leave the counter in order to help him. Davy observed the perpetrators at close quarters in broad daylight when his suspicions were aroused. The witnesses gave detailed descriptions which fit the defendants. Although they neglected to mention facial hair and a mark under the eye, these matters as well as the suggestiveness of the lineup were brought to the jury’s attention and were resolved against the defendant. See People v. Hefner (1979), 70 Ill. App. 3d 693, 695-96, 388 N.E.2d 1059; People v. Rosenborgh (1974), 21 Ill. App. 3d 676, 684, 315 N.E.2d 545, cert, denied (1975), 421 U.S. 919, 43 L. Ed. 2d 787, 95 S. Ct. 1584.

Lark next contends that the mention of his rap sheet was irrelevant and prejudicial. The State responds that the rap sheet reference was waived and proper. We agree with the State.

Defendant failed to object to the reference at the time, and failed to specify it as error in his post-trial motion, and so we deem the issue waived. (See People v. Carlson (1980), 79 Ill. 2d 564, 575-76, 404 N.E.2d 233; People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.) Moreover, we note that defense counsel first elicited testimony concerning defendant’s criminal record, raising an inference that Sergeant O’Hara’s previous acquaintance affected Lark’s arrest. Thus, the reference in redirect was relevant to explain the previous acquaintance and to dispel the inference of connection raised by the defense. We conclude that the response was invited and therefore proper. See People v. Burage (1961), 23 Ill. 2d 280, 282-83, 178 N.E.2d 389, cert, denied (1962), 369 U.S. 808, 7 L. Ed. 2d 555, 82 S. Ct. 651.

Lark finally contends that the trial court erred in failing to give a deadlock instruction when a juror disavowed the verdict. McKinnie joins this allegation of error, and argues in addition that the trial court should have inquired as to the reason for disavowal. The State rejoins that the issue was waived and that the trial court did not abuse its discretion by directing the jury to redeliberate.

In People v. Taylor (1967), 36 Ill. 2d 483, 224 N.E.2d 266, our supreme court recognized that although failure to request an instruction is frequently treated under the waiver rule, such failure often removes the onus of error entirely. The court there reasoned that the absence of a particular instruction may well work to the benefit of the accused, and so a defendant cannot allege error where no such instruction was requested. (36 Ill. 2d 483, 490-91, 224 N.E.2d 266.) In this case, a guilty verdict was returned and one of the jurors disavowed the verdict. From the defendants’ perspective, the potential benefits of directing redeliberation were clear. Having voluntarily accepted the benefits of the procedure, we cannot condone this allegation of error based on the result. At the very least, defendants expressly waived this issue.

We also agree with the State that the trial court did not abuse its discretion in this matter. The purpose for polling jurors is to inform the trial court of a disagreement, mistake, or need for reconsideration; if a juror expresses dissent, the trial court may direct further deliberations or may discharge the jury. (People v. Kellogg (1979), 77 Ill. 2d 524, 528-29, 397 N.E.2d 835.) Defendants’ argument here assumes a disagreement and coercion, whereas the trial court noted at the prosecutor’s instance that there was no such indication. Mistake or need for reconsideration are equally plausible explanations. In any event, the remedy chosen by the trial judge was proper, and the second polling indicated the jurors’ unequivocal assent to their verdicts.

Next, McKinnie contends that the prosecutor’s improper comment in closing argument deprived him of a fair trial. He argues that the assistant State’s Attorney vouched for the credibility of the State’s witnesses. The State argues that the comments were waived, proper or harmless. Because defendant failed to object contemporaneously to the comments, and because he failed to specify such comments in his post-trial motion, we consider any error to have been waived. See People v. Carlson (1980), 79 Ill. 2d 564, 576-78, 404 N.E.2d 233.

In addition, improper comment is not reversible error unless it results in substantial prejudice to the accused. (People v. Baptist (1979), 76 Ill. 2d 19, 28-29, 389 N.E.2d 1200.) A remark which pledges the prosecutor’s personal or professional reputation for the credibility of a witness is improper. (People v. Bitakis (1972), 8 Ill. App. 3d 103, 106-07, 289 N.E.2d 256.) We reject the State’s argument that the prosecutor’s remarks were invited by defense comment that police officers might lie, and we believe that the prosecutor’s allusion to the “hardest thing about [his] job” and his “resentment” of the possibility that “his witnesses” might lie tended to inject the prosecutor’s personal and professional ethos into the credibility determination. However, the prosecutor’s remarks in question, while improper, did not amount to reversible error. The offending comments were directed at bolstering the police officers’ testimony, but that testimony was incidental on the question of guilt. In view of the strong eyewitness and circumstantial evidence in this case, we believe the jury’s verdict could not have been otherwise. We conclude that the error was harmless.

Finally, McKinnie contends that his conviction of three offenses violated the one-act one-crime principle. Our supreme court’s opinion in People v. Butler (1976), 64 Ill. 2d 485, 356 N.E.2d 330, disposes of defendant’s contention. In that case, two victims were simultaneously robbed by two perpetrators. The court held that the crime of robbery was personal to the victim, and both defendants could properly be convicted and sentenced for both robberies. People v. Butler (1964), 64 Ill. 2d 485, 488-89, 356 N.E.2d 330; accord, People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert, denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731.) Here, defendants were separately convicted of the robberies of Helen Zajac, Nancy Fitzpatrick and Marian Harter, and their concurrent sentences shall stand.

For the foregoing reasons, the judgments of the trial court are affirmed.

Affirmed.

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

       Justice Kenneth E. Wilson heard the oral argument in this case. Following his death Justice John J. Sullivan was substituted, listened to the tapes of the oral argument and read the briefs and record.


source: Caselaw Access Project

author: JUSTICE KARNS

license: Public Domain

text:
    ILLINOIS POWER COMPANY et al., Plaintiffs-Appellants, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellee.
    Fifth District
    No. 5—84—0036
    Opinion filed September 19, 1984.
    Rehearing denied October 17, 1984.

      Schiff, Hardin & Waite, of Chicago, for appellant Illinois Power Company.
    Albert A. Scriber, of Barnhard, Scriber and Koger, of Mt. Carmel, for appellant Mt. Carmel Public Utility Company.
    Neil F. Hartigan, Attorney General, of Springfield (Hercules F. Bolos, Special Assistant Attorney General, and Kathleen Nolan, Assistant Attorney General, of counsel), for appellee.
    David J. Rosso, Boyd J. Springer, and Michael F. Kerr, all of Isham, Lincoln & Beale, of Chicago, for intervenor Central Illinois Public Service Company.
   JUSTICE KARNS

delivered the opinion of the court:

This appeal was taken from an order of the circuit court of Wabash County affirming the denial by the Illinois Commerce Commission (Commission) of a proposed merger of Illinois Power Company (Illinois Power) and Mt. Carmel Public Utility Company (Mt. Carmel). (Ill. Rev. Stat. 1983, ch. 1112/3, pars. 72, 73.) The petition, filed on December 7, 1981, sought approval of Illinois Power’s proposed acquisition of Mt. Carmel, a small utility company which provided electric energy and natural gas to customers in Wabash and Lawrence counties. On March 10, 1982, the Commission allowed Central Illinois Public Service Company (CIPS), which also desired to acquire Mt. Carmel, to intervene in opposition to the proposed merger.

On November 23, 1982, the Commission entered its order denying Illinois Power’s application, concluding, based upon a comparison of acquisition proposals of Illinois Power and CIPS, that the merger of Illinois Power and Mt. Carmel would not be consistent with the public interest. Both Illinois Power and Mt. Carmel appealed the Commission’s decision to the circuit court of Wabash County. That court found that the Commission had correctly interpreted section 27 of the Illinois Public Utilities Act (Ill. Rev. Stat. 1983, ch. 1112/3, par. 27) as authorizing it to consider viable alternatives in determining whether a proposed merger serves the public interest, and further found that the Commission’s determination that the acquisition of Mt. Carmel by Illinois Power would not be consistent with the public interest was not against the manifest weight of the evidence.

Appellants contest the lower court’s affirmance of the Commission’s decision, asserting three points for review: (1) that the Commission’s interpretation of section 27 was legally incorrect; (2) that finding CIPS’ acquisition of Mt. Carmel was a viable, mutually exclusive alternative was contrary to the evidence; and (3) that finding Illinois Power’s acquisition to be inconsistent with the public interest was against the manifest weight of the evidence.

Our consideration is confined to the first issue, which we perceive to be dispositive and which presents a question of first impression in this State, although other Illinois cases may tangentially touch on the issue presented (see Klopf v. Illinois Commerce Com. (1977), 54 Ill. App. 3d 491, 369 N.E.2d 906). Because we agree that an erroneous statutory application prompted the Commission’s decision, we reverse.

In its petition to intervene, CIPS requested that the Commission deny approval of Illinois Power’s merger plan if the evidence demonstrated that the acquisition of Mt. Carmel by CIPS would best serve the public interest. The Commission agreed, declaring that, in deciding whether a public utility merger is in the public interest, “viable, mutually exclusive alternatives should be considered,” and that if such an alternative would “better serve the public interest, a proposed merger should not be approved.” The Commission then conducted a comparative analysis of Illinois Power and CIPS in light of several factors deemed pertinent to the public interest in the Mt. Carmel case. The list included contiguity of the properties, simplification of electric service facility planning, fairness and reasonableness to shareholders, interest of ratepayers, and incremental cost of service. In each instance, the Commission comprehensively reviewed the relevant facts presented by both Illinois Power and CIPS. The record fails to show that Illinois Power’s application was ever considered independently as compared to the continued operation of Mt. Carmel as a separate utility.

The purpose of the Public Utilities Act (hereinafter the Act) is to assure provision of efficient and adequate utility service to the public at a reasonable cost. (Local 777, DUOC, Seafarers International Union of North America v. Illinois Commerce Com. (1970), 45 Ill. 2d 527, 260 N.E.2d 225.) To that end, the Commission was created and vested with regulatory powers, including the control of certain acts of utility companies affecting the public. (Ill. Rev. Stat. 1983, ch. 1112/3, par. 1 et seq.) Because it is a statutory creation, however, and derives its power exclusively from legislative mandate, the Commission may act only in accordance with expressly delegated authority and within the jurisdictional purview granted by the Act. (City of Chicago v. Illinois Commerce Com. (1980), 79 Ill. 2d 213, 402 N.E.2d 595; Liberty Trucking Co. v. Illinois Commerce Com. (1980), 81 Ill. App. 3d 466, 401 N.E.2d 581; Black Hawk Motor Transit Co. v. Illinois Commerce Com. (1947), 398 Ill. 542, 76 N.E.2d 478.) It is our duty on judicial review to reverse those orders of the Commission which unlawfully exceed the scope of its authority. (Citizens Utilities Co. v. Illinois Commerce Com. (1971), 50 Ill. 2d 35, 276 N.E.2d 330; Thompson v. Illinois Commerce Com. (1953), 1 Ill. 2d 350, 115 N.E.2d 622.) Finally, a reviewing court may inquire into the method used by an administrative agency to achieve the result which is being reexamined. Union Electric Co. v. Illinois Commerce Com. (1979), 77 Ill. 2d 364, 376, 396 N.E.2d 510, 516, citing City of Alton v. Commerce Com. (1960), 19 Ill. 2d 76, 80,165 N.E.2d 513, 516.

The Commission’s authority to rule upon Illinois Power’s petition requires it to ascertain whether the proposed merger is consistent with the public interest. Specifically, the controlling statute provides that “upon the filing of such petition *** if the Commission is satisfied that such petition shall reasonably be granted, and that the public will be convenienced thereby, the Commission shall make such order in the premises as it may deem proper and as the circumstances may require, attaching such conditions as it may deem proper, and thereupon it shall be lawful to do the things provided for in such order. ***” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 1112/3, par. 27.) The statutory language unambiguously requires the petitioner to demonstrate that the proposed transaction will convenience the public.

In the instant case, the Commission and the parties vying for acquisition of Mt. Carmel agreed that approval should be determined according to consistency with the public interest. Alteration of the literal wording used in the statute does not modify the meaning of its directive. While the Commission’s interpretation of its power granted under the statute is entitled to substantial weight and deference (see, e.g., Illinois Consolidated Telephone Co. v. Illinois Commerce Com. (1983), 95 Ill. 2d 142, 447 N.E.2d 295), by requiring Illinois Power to prove that its merger proposal was more beneficial to the public than that suggested by CIPS, the Commission inserted additional requisites into the statutory standard and therefore exceeded its authority under the Act. The legislature did not delineate an exact formula, because each application potentially poses varying circumstances. One nonvariable factor which must be considered under each set of facts, however, is simply whether the public will be convenienced by the approval of a particular transaction. (Chicago & North Western Ry. Co. v. Illinois Commerce Com. (1970), 130 Ill. App. 2d 352, 361, 264 N.E.2d 745, 751.) By restricting its examination of Illinois Power’s petition to a comparative analysis, the Commission omitted an essential, statutorily imposed element for consideration. It is imperative, by our reading of the statute, that Illinois Power’s petition be appraised independently. We do not require the Commission to operate in an evidentiary vacuum. We believe, however, that the method utilized in the instant case effectively denied Illinois Power its statutory right to be evaluated on its own merits through offering evidence of the public convenience and benefits of its proposal.

In the case at bar, the Commission had available for its review an extensive description of a viable alternative. Our decision does not interfere with the Commission’s duty to ascertain and weigh relevant facts; neither does it deny to private ownership the element of choice inherent in a free enterprise system, which we believe the legislature must have contemplated in the drafting of this statute, even in the case of public utility properties, admittedly affected with the public interest. It must be clarified, however, that although the Commission has the discretion to determine, factually, what constitutes “consistent with public interest” (Brink’s, Inc. v. Illinois Commerce Com. (1981), 103 Ill. App. 3d 851, 857, 431 N.E.2d 1242, 1247), it cannot misapply the law by requiring additional proof in excess of that required by the Act. The restrictive method employed by the Commission in disapproving Illinois Power’s petition requires judicial rejection.

Moreover, the denial effectively orders a preference for an acquisition by CIPS. The Commission conceded that it lacked authority to order a CIPS-Mt. Carmel merger. By reaching its decision through comparative analysis, the Commission created a fiction, allowing it to exercise powers that it acknowledged it didn’t have. Such a selection is impermissible. It follows that the method employed to reach that selection is likewise unlawful.

Section 27 of the Act allows the Commission to attach “such conditions as it may deem proper” to a petition for acquisition of a public utility. It would appear that acquisition by either Illinois Power or CIPS would benefit the Mt. Carmel ratepayers, but that the Commission was concerned that certain provisions of the proposed merger benefiting the principal shareholder and operating officer of Mt. Carmel might not be fair to the minority shareholders of Mt. Carmel, although, under the proposed merger agreement, approval by a majority of the minority shares was required. These concerns, and other matters, were not considered in the context of Illinois Power’s petition, only in comparison with an assumed acquisition by CIPS, the details of which were never formalized in any concrete offer by CIPS and which the Commission had no power to order.

While the briefs of both parties address in detail a comparison of the benefits to the ratepayers and shareholders of Mt. Carmel, Illinois Power and CIPS, these comparisons are largely based on historical rates and assumptions. Illinois Power has requested this court to reverse the Commission’s order disapproving its proposed merger and acquisition of Mt. Carmel as contrary to and unsupported by the evidence. Considering that the Commission only considered Illinois Power’s petition as compared to an acquisition of Mt. Carmel by CIPS, we believe that we would usurp the proper office of the Commission were we to undertake what would amount to an original consideration of Illinois Power’s petition. This determination is appropriately made by the Commission under a proper application of the standard set out in section 27 of the Act, as admittedly the Commission may consider the alternative of no merger at all.

The decision of the circuit court is reversed, and the case is remanded to the Commission for reconsideration in accordance with the views expressed herein.

Reversed and remanded.

JONES and HARRISON, JJ., concur.


author: JUSTICE KASSERMAN

text:
      In re CARL SIMMONS, a Minor (The People of the State of Illinois, Petitioner-Appellant, v. Monica Simmons et al., Respondents-Appellees).
    Fifth District
    No. 83—217
    Opinion filed July 19, 1984.
    Kathleen M. Ailing, State’s Attorney, of Mt. Vernon (Stephen E. Norris and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    John R. Cesario and Charles K. Stowe, Special Public Defenders, of Mt. Vernon, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The State of Illinois Department of Children and Family Services (Department) initiated this action on December 20, 1982, by filing a petition praying that Carl Simmons be declared to be an abused child and that he be adjudged a ward of the court and the Department be appointed as his guardian. This petition was later amended. After a hearing before the circuit court of Jefferson County, the court dismissed the amended petition, finding that the evidence was not sufficient to justify finding neglect or abuse of the minor. The State appeals. The natural parents are the appellees.

The record indicates that the minor suffered a “spiral” fracture of his left leg on December 16, 1982. The child, who was not quite three years old at that time, lived in a mobile home with his natural mother, Monica Simmons (Simmons), with Eddie Shaffer (Shaffer), described in the petitions as the mother’s paramour, and with his sister, Tanya, not quite five years old, and an infant born approximately December 1, 1982; Simmons and Shaffer were the natural parents of the latter child. According to the December 20, 1982, petition, Carl stated that he received the injury when he was hit by Shaffer. The petition further alleged that on September 9, 1982, Shaffer struck Carl in the face, bruising Carl’s left cheek. While the case was pending in the circuit court, the Department filed an amended petition, adding a prayer that Carl’s environment be found to be injurious to his welfare. The amended petition set forth the additional allegations that, according to Simmons, Shaffer reacted in a violent manner when under the influence of alcohol and that the Jefferson County sheriff’s department had been called to the Shaffer-Simmons residence several times regarding domestic disputes.

At a “shelter care hearing” held December 20, 1982, Judge Krause appointed a guardian ad litem for Carl. The sole witness to testify was Suzanne Graham, a social worker employed by the Department. According to Graham, the September 1982 incident had resulted in a report of suspected child abuse, and the family had agreed to have the Department provide day-care services. According to Graham, Carl’s mother had told her that Shaffer had slapped Carl’s face, that Shaffer was having a drinking problem at the time, that she had moved in with her brother, and that she had moved back to Shaffer’s residence because she had to leave her brother’s apartment and had nowhere else to go. According to Graham, Shaffer admitted slapping the child, stated it was “possible” he had a drinking problem, and admitted that he had been convicted of driving under the influence of alcohol. According to Graham, Shaffer’s sister, Vicki Porter, had told her that her brother needed counseling regarding his drinking problem and that her concern was for Simmons and the children. Regarding the December 1982 incident, Graham testified that Carl told her Shaffer had hit him, and that Tanya, when asked on December 17, 1982, why Carl was in the hospital, echoed Carl’s statement.

At the conclusion of the hearing on December 20, 1982, the court appointed the Department temporary guardian for Carl. Those represented at the February 20 and 24 hearings on the merits before Judge Keenan included Simmons, the State, Carl’s natural father, and Carl. Shaffer appeared pro se. The evidence adduced on February 20 and 24 was as follows:

Patricia Dreas, who was nursing supervisor at Mt. Vernon Hospital when Carl was brought to the emergency room by Shaffer on December 16, 1982, testified that Shaffer stated that Carl was accident-prone, that he was injured at a day-care center or on the way home, that Carl was limping slightly when he got home, and that later Carl could not walk. According to Dreas, when Carl was taken out of Shaffer’s presence and asked what had happened to him, Carl responded that daddy did it. Asked who “daddy” was, Carl replied that Eddie did it, and pointed to the man who brought him in. Carl did not attempt to explain the manner in which he was injured. Dreas recalled no “other” marks being found on Carl at the time.

Dr. Kenneth Peart, a staff physician at the hospital, testified that since beginning his medical practice in 1958, he had dealt with a “fair number” of spiral fractures. According to Dr. Peart, a spiral fracture usually involved a twisting motion, as where a runner caught his foot or where someone grabbed a child's foot and yanked or twisted. Dr. Peart stated that skiing was a common source of such injuries; however, children Carl’s age did not ski and did not have enough body mass to put sufficient force on a caught foot to produce a spiral fracture. Dr. Peart testified that he did not recall any child of three years of age incurring a spiral fracture as the result of a natural accident. Asked whether anything about the injury itself would indicate abuse, Dr. Peart replied that in a child of Carl’s age it was considered suspicious, and that it was Carl’s statement that Shaffer had done it which, together with the nature of the injury, had prompted the report of suspected abuse.

Suzanne Graham testified that Carl’s exact words on being interviewed the day after admission to the hospital were that Shaffer “hit me.” Graham stated that she always worked with abused and neglected children and was in the practice of being careful not to suggest an answer to such a child while attempting to elicit information. Graham also stated that when she interviewed Carl’s mother on September 13, 1982, as to how Carl’s face became bruised, Simmons replied that Shaffer had slapped him.

Jefferson County sheriff’s deputy Roy Bradford testified that he was called to the Shaffer-Simmons residence by the Department, which reported that Shaffer was “beating up on” Simmons. According to Bradford, Simmons wanted to leave with her baby but Shaffer did not want her to take the baby. Bradford related that Simmons said that she did not want to leave the baby because of what had happened to the boy, and that Shaffer replied that if she remembered right, she was the one who broke his leg. Bradford recalled no answer being made to that statement.

Monica Simmons testified that she did not know how Carl’s leg was broken but that she had told Graham that Carl could have fallen but that she had not seen him fall. According to Simmons, Shaffer came in the house first, then Carl, then Tanya, and she then heard a noise in the utility room which separated the home’s entrance from the kitchen. There was a hole for a dryer vent in the floor of the utility room but the home had no dryer. After the noise in the utility room, Carl walked to the bedroom and he was not limping. Shaffer was in the kitchen and Simmons was in the living room and Carl walked out of the bedroom limping. He cried and said he had fallen. On cross-examination, Simmons stated that when Carl fell, he started crying and Shaffer picked him up, and when Shaffer set him down, Carl walked to his room.

Simmons testified further: Her separation from Shaffer for three days in September 1982 had nothing to do with Shaffer’s treatment of herself or Carl. She had been told by Shaffer that it was he who bruised Carl’s face when he “smacked” Carl for urinating on him. Carl was not then toilet trained. She had not known Shaffer to strike Carl on any other occasion. Simmons did not believe Shaffer was intoxicated when he hit Carl, but Simmons had told Graham that Shaffer’s drinking problem might have had something to do with it, since his drinking problem had much to do with what Shaffer did at home and was the cause of many of their fights. Asked how Shaffer behaved when intoxicated at home, Simmons replied that he was “just a madman” and had struck her but not the children in that condition.

Shaffer testified as follows: He was not told that Carl was injured when he picked him up at the day-care center, and he did not notice whether Carl was limping. Carl had followed him into the mobile home. Although he did not see Carl fall, he heard what could have been a fall and was told by Carl that he had fallen. Carl had then walked through the living room, “[n]ot really” limping. When Carl came out of the bedroom crying, he was limping and his leg was swollen. Shaffer denied drinking before picking up the children at the daycare center. He also denied pushing or striking Carl. Asked whether he had ever spanked Carl, Shaffer at first refused to answer on the ground that his answer might incriminate him, then admitted smacking Carl on the face in September 1982 for urinating upon him.

Shaffer also testified that he drank alcoholic beverages about once a week but that he did not get drunk, violent, or out of control. Shaffer related at least three incidents in which someone from the sheriff’s department had come to his home regarding a disturbance; one such incident was in January 1983 and another was prior to September 1982.

Vicki Porter, Shaffer’s sister, testified that Shaffer had had a drinking problem. She testified that she called Graham out of concern for the family and that Shaffer’s drinking problem was part of the reason for her concern. She stated that she had not seen Shaffer strike anyone. She related, however, that on one occasion the previous summer, she found the residence “torn up,” that items had been thrown about with some breakage. Porter stated that she had been disturbed at the display of violence. According to Porter, she called Graham after noticing bruises on Carl, one on his back and another on his face. Asked what caused her to think that the bruises were not the result of an ordinary accident, Porter replied that Simmons told her that Shaffer had hit Carl. Upon objection, the court advised the parties that it would disregard Porter’s testimony regarding her conversation with Simmons.

Sandy Wilson, Carl's day-care teacher, testified that when Shaffer picked up Carl on December 16, 1982, Carl was able to walk when he left. Peggy Hall, a homemaker for the Department, testified that she had viewed the utility room in the Shaffer-Simmons residence and that she found no open holes. Hall related that there was a dryer vent hole approximately three to four inches from a wall. She stated that the hole was not in the path of entry from the outside door and it was filled by a dryer hose.

Graham testified that when she interviewed Shaffer and Simmons on December 17, 1982, Shaffer told her that Carl had walked into the mobile home in front of him and that he saw Carl fall in the utility room. Graham stated that she then told Shaffer that the nature of the leg injury was not consistent with his account.

Among the hospital records in evidence was a December 16, 1982, hospital entry which stated, inter alia, that discoloration was found under one of Carl’s eyes and on both sides of his neck.

In the order dismissing the amended petition, the trial court stated that all of the witnesses had appeared to be credible; that neither Shaffer nor Simmons had been impeached; that Dr. Peart had stopped short of stating that Carl’s injury would not have occurred except for acts or omissions by Simmons or Shaffer; and that the statement by the child explaining his injury was equivocal, ambiguous, and insufficiently corroborated to be given substantial weight.

The State argues on appeal that the trial court’s conclusion that Carl was not proved to be an abused child was error where the State presented a prima facie case of abuse which was unrebutted.

Section 4 — 6(2)(e) of the Juvenile Court Act states that proof of injuries sustained by a minor or proof of the condition of a minor of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent, guardian, or custodian of such minor shall be prima facie evidence of abuse or neglect, as the case may be. (Ill. Rev. Stat. 1983, ch. 37, par. 704—6(2)(e).) An abused minor is defined, inter alia, as one whose parent, or a paramour thereof, inflicts, causes to be inflicted or allows to be inflicted upon such minor physical injury, by other than accidental means, which causes impairment of physical health or impairment of any bodily function (Ill. Rev. Stat. 1983, ch. 37, par. 702—4(2)(a)(i)), or whose “environment is injurious” to his welfare (Ill. Rev. Stat. 1983, ch. 37, par. 702—4(2)(b)).

The standard of proof of abuse is that applicable to civil proceedings, i.e., a preponderance of the evidence (Ill. Rev. Stat. 1983, ch. 37, par. 704—6(1); In re Brooks (1978), 63 Ill. App. 3d 328, 337, 379 N.E.2d 872, 879); and the primary consideration in such cases is the best interests and welfare of the child. (See In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872.) The finding of the trial court upon the issue of abuse must be given respectful weight and should not be disturbed unless contrary to the manifest weight of the evidence. See In re Brooks (1978), 63 Ill. App. 3d 328, 337, 379 N.E.2d 872.

We find the conclusion of the trial court that Carl was not proved to be an abused minor to be contrary to the manifest weight of the evidence under either one or both of the definitions of abuse above stated. The most significant evidence adduced is that showing Carl’s statement blaming Shaffer for the injury and Dr. Peart’s testimony showing that the injury was of such a nature as would not ordinarily be sustained except by reason of the acts or omissions of Shaffer or Simmons. Dr. Peart’s testimony established that Carl suffered a twisting injury to the leg, such as would occur only if one end of the limb were held in relatively fixed position while the other end was twisted. According to Dr. Peart, such an injury in a child Carl’s age was suspicious and unusual and in his memory of many years’ practice had not occurred as the result of a natural accident. This evidence alone was sufficient to establish a rebuttable presumption that Carl was abused.

We find no significant rebuttal of said presumption in the evidence. Carl’s parents argue, and the trial court found, that explanations for Carl’s injury other than abuse were suggested by the evidence. We find nothing in the evidence regarding a possible fall by Carl in the mobile home’s utility room or bedroom sufficient to rise to the level of an “explanation” or sufficient to rebut the State’s prima facie case of abuse. The sole direct testimony in that regard is Shaffer’s and Simmons’ testimony that they heard a noise in the utility room. Neither claimed to see a fall. Moreover, neither testified that Carl was limping when he came out of the utility room. In view of the nature and extent of the injury suffered, such speculation cannot be said to constitute “explanation” for such an injury, unless we are prepared, and we are not, to conclude that Simmons’ and Shaffer’s disavowal of all knowledge is sufficient to overcome the presumption of abuse mandated by the legislature.

Nor is the medical evidence of abuse in this case uncorroborated. First and foremost is the testimony of Carl’s statements inculpating Shaffer. This was direct evidence of abuse as the cause of Carl’s injury. Since this evidence, like the medical evidence, tended to show abuse, the evidence as to Carl’s statements tended to corroborate the medical testimony and vice versa-, accordingly, we must disagree with the trial court’s conclusion that Carl’s statements inculpating Shaffer were insufficiently corroborated. Other significant corroboration of both points in the record included proof of the older child’s (Tanya’s) statement echoing Carl’s statement that Shaffer did it, the several domestic disputes between Shaffer and Simmons sufficiently disturbing to require intervention by sheriff’s deputies, Shaffer’s admission that he struck and bruised Carl’s face for urinating on him at a time when the child was not toilet trained, and inculpatory statements by Shaffer and Simmons, each directed against the other, before Deputy Bradford. Also significant was evidence of Shaffer’s prior statement, inconsistent with his vague testimony in court, that he saw Carl fall in the utility room.

In conclusion, we agree with the State that assuming, arguendo, that the evidence adduced did not establish that Shaffer or Simmons caused Carl’s injuries, it clearly established that Shaffer and Simmons allowed Carl to be seriously physically injured by nonaccidental means. Furthermore, it cannot seriously be contended that the environment in which the injuries occurred was not injurious to Carl’s welfare. We conclude, therefore, that the best interests of this child require that the order of the trial court failing to find abuse and refusing to adjudicate Carl a ward of the court be reversed.

For the foregoing reasons, the judgment of the circuit court of Jefferson County is reversed, and this cause is remanded to the circuit court for further proceedings under the Juvenile Court Act consistent with the views expressed herein.

Reversed.

EARNS and HARRISON, JJ., concur.


text:
    DEBBIE SMITH, Plaintiff-Appellee, v. JAMES A. SEIBER, Defendant-Appellant.
    Fifth District
    No. 5—83—0364
    Opinion filed July 31, 1984.
    Rehearing denied September 4, 1984.

      William C. Evers III, of Collinsville, for appellant.
    Edward J. Kionka, of Kionka and Associates, of Carbondale, and John E. Norton, of John E. Norton & Associates, P.C., of Belleville, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, James A. Seiber, appeals from a judgment of the circuit court of St. Clair County awarding plaintiff, Debbie Smith, $2,659.75 compensatory damages and $20,000 punitive damages for personal injury.

Defendant contends on appeal that: (1) the trial court erred by denying defendant’s motion to dismiss count II of plaintiff’s complaint which alleged wilful and wanton misconduct; (2) the trial court erred by allowing the plaintiff’s mother to testify regarding a telephone conversation; (3) plaintiff failed to prove that she was an invitee; (4) the jury’s verdict was against the manifest weight of the evidence; (5) a portion of plaintiff’s closing argument to the jury denied defendant a fair trial; (6) the trial court erred by submitting the issue of punitive damages to the jury; and (7) the punitive damages awarded were excessive.

Plaintiff’s complaint alleged, inter alia, that on August 7, 1980, she was a business invitee on the defendant’s premises and suffered injuries due to defendant’s negligence. Subsequently, plaintiff was granted leave to add a second count to her original complaint in which she sought punitive damages for defendant’s wilful and wanton misconduct.

Plaintiff testified that she and her husband drove past a former dwelling of hers located at 8716 Botanical Street in Caseyville, and noticed that the house was unoccupied. Plaintiff said she knew that her mother was looking for a house to rent, so she found the telephone number of Seiber Sanitation, from whom she had previously rented the house, and suggested that her mother call and ask if the house was for rent. Plaintiff testified that around 5 p.m. on August 7, 1980, she and her family, including her mother, went to look at the house at 8716 Botanical. According to plaintiff, the gate to the driveway was open and there were no signs of any kind posted on the house or around the property. Plaintiff testified that she and her family approached the front door of the house but found it to be nailed shut. Consequently, she went to the side of the house, where there was a porch and another door. This side door was open, so the family entered and examined the house’s interior. Plaintiff stated that afterward she stepped down from the house’s kitchen onto the porch and the porch collapsed, resulting in a fracture to her ankle.

Marie Sutton, plaintiff’s mother, testified, over defendant’s objection, that she called the telephone number plaintiff had given her sometime around 12 p.m. on August 7, 1980. Mrs. Sutton testified that the woman who answered the phone identified the number as belonging to Seiber Sanitation. Mrs. Sutton stated that she asked the woman who answered the phone if she could speak with Jim Seiber. Mrs. Sutton stated that the woman who answered, who identified herself as defendant’s wife, told Mrs. Sutton that defendant was not there and asked if she could help. Mrs. Sutton testified that she asked Mrs. Seiber if the house plaintiff had seen on Botanical Street was for rent. According to Mrs. Sutton, Mrs. Seiber told her that she thought the house was for rent, gave Mrs. Sutton the address, and told Mrs. Sutton that she could go look at the house. Mrs. Sutton related that Mrs. Seiber also informed her that she believed that the rent was $150 and informed Mrs. Sutton that defendant handled the rental of the property. Mrs. Sutton also gave testimony which corroborated plaintiff’s testimony as to what had occurred when the family investigated the premises.

William Roy Baum, an employee of Seiber Sanitation, testified that the house on 8716 Botanical Street had been rented by defendant in the past and that he had repaired the porch for defendant in 1978 or 1979. Mr. Baum stated that defendant supplied him with used lumber to repair the porch at 8716 Botanical Street and that there were no bannisters on the porch. Mr. Baum testified that since the porch was leaning when he went to repair it, he leveled it and nailed it back to the house. Mr. Baum stated that the wood on the porch had begun to rot and that defendant told him to do what he could with the porch and that more permanent repairs could be made later if necessary. Mr. Baum testified that he and defendant put up the gate to the driveway and had placed “No Trespassing” and “Keep Out” signs on the gate and the house.

John F. Carmen, a tenant of defendant, testified that he was presently living at the house located at 8716 Botanical Street, the premises in which plaintiff’s injuries were alleged to have occurred. He said he had lived there once before in 1977 or 1978. Mr. Carmen testified that the porch was in bad condition and rotten when he lived there. Mr. Carmen said that in 1978 he had asked defendant to repair something in the house but defendant refused to do so. Mr. Carmen stated that he had moved back to 8716 Botanical Street because he had been evicted from his home and was in dire need of housing. According to Mr. Carmen’s testimony, the house was badly in need of repairs.

Plaintiff’s husband, Haven Smith, testified that when he rented from defendant he had requested that defendant make a number of repairs on the premises, but defendant never had the repairs made.

Dr. Henry M. Hurd testified as to plaintiff’s injuries.

Defendant testified that he rents very little property and was primarily in the trash hauling business. He stated that he knew wood was subject to dry rot and had the porch at 8716 Botanical repaired sometime in 1979 because it was rotten. Defendant related that he supplied lumber for the porch repair which had previously been used for concrete forms. Defendant said that he believed that the lumber had been chemically treated so that it would not rot. Over defendant’s objection, a financial statement showing defendant’s net worth to be $1,692,870 was admitted into evidence. Defendant further testified that he did not wish to rent 8716 Botanical Street in 1980 and denied giving plaintiff permission to go onto the property.

Clifford R. Phelps, who resided at 8720 Botanical Street at the time of plaintiff’s injury, testified that in May 1980 a tenant of 8716 Botanical Street had damaged the side porch of the house by backing a truck into it, knocking it off its foundation. Mr. Phelps said that the porch was in a broken-down state after that incident. Mr. Phelps testified that on the date plaintiff fell there were “Keep Out” and “No Trespassing” signs posted at 8716 Botanical Street and that when he left for work that morning the gate had been closed.

Mr. Phelps’ wife, Wilma Phelps, and his son, Terry Phelps, both testified that they saw plaintiff prior to her fall. Both Wilma and Terry Phelps corroborated Mr. Phelps’ testimony that there were “Keep Out” and “No Trespassing” signs posted at 8716 Botanical Street and the gate was closed. Terry Phelps also related that he observed plaintiff fall and that the porch was in a broken-down condition.

Irma Seiber, defendant’s wife, testified that she had not talked with anyone about renting the property at 8716 Botanical Street in August 1980 and denied that she told anyone to go look at the property.

James Eilering, a carpenter, testified in rebuttal on plaintiff’s behalf. Mr. Eilering described dry rot as a progressive deterioration of wood caused by moisture. He said that untreated wood should never be used anywhere in close relation to the ground because of the danger of dry rot. Mr. Eilering testified that dry rot would be visually noticeable and would make wood feel soft and spongy. Mr. Eilering said that dry rot cannot be repaired and that such deterioration cannot be stopped. Mr. Eilering further testified that the side porch at 8716 Botanical Street should have had a railing on it and that it was dangerous without a railing.

Defendant, relying primarily on Pendowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484, 411 N.E.2d 910, urges that plaintiff improperly attempted to state a cause of action against him by alleging that identical acts constitute both ordinary negligence and wilful and wanton misconduct and that, as a result, count II of plaintiff’s complaint should have been dismissed. We do not agree. Defend-ant’s position has been rejected by our supreme court, which has held that mirror allegations of wilful and wanton misconduct will suffice to state a cause of action. O’Brien v. Township High School District 211 (1980), 83 Ill. 2d 462, 469-70, 415 N.E.2d 1015, 1018; see also Ingram v. Little Company of Mary Hospital (1982), 108 Ill. App. 3d 456, 458, 438 N.E.2d 1194, 1196-97.

Defendant next contends that the trial court erred by allowing Marie Sutton to testify as to an alleged telephone conversation with defendant’s wife. Defendant maintains that the testimony was incompetent because Mrs. Sutton was unable to identify the voice of the person to whom she was speaking. Defendant relies on the general rule that before testimony regarding a telephone conversation will be admitted into evidence, the party testifying must be able to identify the voice of the person to whom the witness was speaking. People v. Metcoff (1946), 392 Ill. 418, 420-21, 64 N.E.2d 867, 868.

Plaintiff urges that Mrs. Sutton’s testimony regarding the telephone conversation was admissible under an exception to the general rule. She cites the rule set forth in Godair v. Ham National Bank (1907), 225 Ill. 572, 575, 80 N.E. 407, 408, and reiterated in Korch v. Indemnity Insurance Co. (1946), 329 Ill. App. 96, 101-02, 67 N.E.2d 298, 301, where the court stated:

“The rule enunciated in the Godair case has never been overruled or modified, and has generally been followed in this State. The essence of that rule is that any one who answers a telephone call at a place of business is presumed to speak for the company in respect to the general business carried on by such company; that a business concern, by installing a telephone to be used in the transaction of its affairs, impliedly invites the public to make use of that means of communication which is thereby made an agency for the transaction of its business, and persons dealing with it by telephone have the right to assume that the one answering the telephone of the company is clothed with authority to transact the business conducted.”

Plaintiff points out that the rule stated in Korch has subsequently been applied by Illinois courts (Gothberg v. Nemerovski (1965), 58 Ill. App. 2d 372, 382-83, 208 N.E.2d 12, 18; Holland v. O’Shea (1950), 342 Ill. App. 127, 129-30, 95 N.E.2d 515, 517) and urges that the rule allows the admission of Mrs. Sutton’s testimony regarding the telephone conversation in the case at bar. We agree.

At least one of the businesses conducted by defendant through the use of the telephone number of Seiber Sanitation was his rental business. Both defendant and his wife admitted that when they advertised property for rent they utilized the telephone number of Seiber Sanitation. Defendant also testified that on occasion his tenants used the Seiber Sanitation telephone number to contact him and that Seiber Sanitation employees performed maintenance work on defendant’s rental property. Plaintiff testified that when she had rented from defendant in 1977 or 1978, she used the Seiber Sanitation telephone number to contact defendant. Given the facts of the instant case, we conclude that the rental business was part of the general business carried on by defendant through the use of the Seiber Sanitation telephone. Therefore, under the rule stated in Korch, Mrs. Sutton’s testimony regarding her telephone conversation with defendant’s wife was competent, and the trial court correctly admitted it into evidence.

Defendant also contends that plaintiff failed to establish that she was an invitee on defendant’s property. As plaintiff pointed out during oral argument, however, this contention ignores the fact that the jury found defendant guilty of wilful and wanton misconduct. Hence, even if plaintiff could be said to be a trespasser, defendant would have been guilty of committing a breach of his duty of care in the instant case. See Trout v. Bank of Belleville (1976), 36 Ill. App. 3d 83, 86, 343 N.E.2d 261, 264.

Defendant next urges that the jury’s verdict is contrary to the manifest weight of the evidence. We do not agree. As we observed in Kofahl v. Delgado (1978), 63 Ill. App. 3d 622, 624, 380 N.E.2d 407, 410, “[i]n order for a verdict to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent.” We conclude that sufficient evidence was presented in the case at bar from which the jury could reasonably return a verdict in favor of plaintiff, and we' decline to second-guess the jury’s decision.

Defendant next maintains that he was denied a fair trial by certain remarks by plaintiff’s counsel during closing argument which attacked the credibility of defense witness Clifford Phelps. Specifically, defendant complains about a remark by plaintiff’s counsel which suggested that defendant purchased 8716 Botanical Street from Mr. Phelps so that Mr. Phelps would not lose the property to his creditors and then used this fact to obtain Mr. Phelps’ testimony. Although the brief remark complained of was admittedly improper, an objection to this line of argument was immediately sustained by the trial court and plaintiff’s attorney refrained from any further related remarks. We find that any possible prejudice resulting from plaintiff’s counsel’s remark was cured when the trial court promptly sustained defense counsel’s objection. See Essary v. Louisiana Dock Co. (1978), 66 Ill. App. 3d 182, 187-88, 383 N.E.2d 731, 735.

Defendant also asserts that the trial court erred by submitting the issue of punitive damages to the jury. We disagree. We conclude that in the instant case the question of whether defendant was guilty of wilful and wanton misconduct so as to warrant an award of punitive damages was properly one for the jury. (See Swearingen v. Le Conte (1972), 6 Ill. App. 3d 770, 771-72, 286 N.E.2d 128, 129-30; Meiners v. Moyer (1970), 119 Ill. App. 2d 94, 100, 255 N.E.2d 201, 203.) While the evidence was conflicting, we cannot say as a matter of law that punitive damages were unwarranted in the instant case.

Finally, defendant maintains that the punitive damages award was excessive. Again we must disagree. The amount of punitive damages awarded a plaintiff is a matter for the discretion of the jury, and a reviewing court will reduce the amount of such an award only when it is clearly excessive. (Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 711, 450 N.E.2d 1199, 1206.) Additionally, contrary to defendant’s argument, the amount of a punitive damages award is not required to be proportional to the amount of compensatory damages. (Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199.) Here, considering the nature of the wrong complained of, the financial status of defendant, and the potential liability of defendant (see Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 712-13, 450 N.E.2d 1199, 1207), we are of the opinion that the punitive damages awarded were not clearly excessive.

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

Affirmed.

EARNS and HARRISON, JJ., concur.


author: PRESIDING JUSTICE WELCH

text:
    FREDERICK H. BUEHL et al., Plaintiffs-Appellants, v. LOUIE O. DAYSON et al., Defendants-Appellees (Linda Dayson et al., Defendants).
    Fifth District
    No. 5—83—0438
    Opinion filed September 27, 1984.

      Paul A. Croegaert and John A. Clark, both of Croegaert, Clark & McLaughlin, Ltd., of Olney, for appellants.
    Brent D. Holmes, of Harlan Heller, Ltd., of Mattoon, for appellee M. L. Rich.
    Guy E. McGaughey, Jr., of McGaughey & McGaughey, of Lawrenceville (Roscoe D. Cunningham and Charles R. Vaughn, of counsel), for appellee Louie O. Dayson.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Section 13(A) of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1983, ch. 1211/2, par. 137.13(A)) allows a purchaser of securities to rescind any sale made in violation of that law. Notice of the election to rescind must be given to each person from whom recovery will be sought “within 6 months after the purchaser shall have knowledge that the sale of securities to him is voidable.” (Ill. Rev. Stat. 1983, ch. 1211/2, par. 137.13(B).) This action was commenced in the circuit court of Crawford County to rescind the purchase of certain oil and gas interests which had not been registered with the Illinois Secretary of State. The court held that defendants Louie O. Dayson and M. L. Rich received notice of the plaintiffs’ election to rescind more than six months after the plaintiffs had learned that the sales were voidable. This finding was supported by the evidence introduced at trial, and therefore we affirm the judgment in favor of defendants Dayson and Rich.

In the summer of 1979, Rich, who is an oil producer, approached Dayson, a physician in Vincennes, Indiana. Dayson had operated on Rich and Rich said that he wanted to show his gratitude by letting him in on some oil and gas leases he had acquired in Crawford County. Rich desired to develop the leases, but he needed investment capital. He suggested that he would be responsible for drilling wells on the leases if Dayson would find investors and sell them working interests in the wells and leases. Dayson and Rich entered into a written agreement to that effect in August, 1979.

Throughout the summer, Dayson spoke to several of his friends, neighbors and professional colleagues about the project. Among the investors were plaintiffs Dr. Frederick Buehl, his wife Bettie, Dr. Alan Stewart, his wife Pamela, Curtis Small, and Days on’s neighbors Roger Davis and Michael Kopp. Defendants Dr. James Rohrer and attorney Robert Lewis also invested. Seven wells were drilled and oil was obtained from most of them. But by late 1979, production began to drop off and eventually ceased. Drilling expenses were not paid and liens were filed against the wells.

In mid-December, plaintiff Frederick Buehl learned from Rich’s secretary, Esther Odie, that the drilling venture was in debt. Buehl went to Rich’s office in Robinson, Illinois, soon after that. Rich told him that Dayson had not contributed any money toward the drilling, and those missing contributions caused the shortage of money. Rich and Mrs. Odie testified that Kopp and Small were also present then. Buehl returned to Vincennes and contacted a local attorney, Arthur Hart of the firm of Hart, Bell, Deem, Ewing and Stuckey the following day. Hart said that he would investigate the matter for Buehl.

On January 3, 1980, Hart accompanied Buehl to Rich's office. In an affidavit, Rich recalled that this visit took place on December 18, 1979, although at trial he was of the opinion that it occurred on January 3. Rich testified that Hart asked him whether he had made securities filings with the appropriate State or Federal agencies. According to his testimony, Rich replied that a securities attorney had told him that he did not have to do so. Rich’s attorney, James Hill of Robinson, testified that he had given Rich the name of a Chicago attorney who specialized in securities law. Both Rich and Mrs. Odie indicated that Rich had spoken with this attorney by telephone in December 1979. Rich admitted to Hart that he had filed nothing pertaining to the sales of working interests, but he noted at trial that he did not admit violating Illinois securities law by so doing. Rich stated that in response, Hart informed him that the investors were entitled to refunds of their investments.

Buehl and Hart presented a different version of the January 3 meeting. They both described the primary purpose of the meeting, as memorialized in a contemporaneous affidavit by Rich, as securing production of oil from the wells. No reference to securities or rescission was made in that affidavit, and Buehl and Hart testified that neither subject was mentioned during the meeting. Hart recalled that he had done no research into securities laws as of January 3,1980.

Rich, Buehl and Hart did agree that Mrs. Odie and attorney Hill arrived at Rich’s office some time after Buehl and Hart did. Like Rich, Hill and Mrs. Odie executed affidavits in which they claimed that the meetings took place the previous month, but at trial they acknowledged that it occurred on January 3. Hill took no notes of the proceedings, and, although Mrs. Odie did, she later lost her stenographer’s pad. Both Hill and Mrs. Odie remembered that they heard Hart announce that Rich had not complied with pertinent securities laws and that the investors could get their money back.

Dayson met with Buehl and Stewart in Buehl’s Vincennes office on January 4 or 5, 1980. Buehl testified that the parties discussed obtaining the services of another oil producer. Dayson stated that Buehl recounted his visit to Rich’s office with attorney Hart. As Dayson remembered, Buehl informed him that “under Federal or State statutes or regulations,” he and Rich would be responsible for the debts incurred and the remaining investors “can get our money back.”

On January 9, 1980, a meeting was held at Dayson’s Vincennes home. Some of the parties differed in their recollections of the identity of the participants at the meeting, but it appears that investors Buehl, Davis, Kopp, Lewis, Rohrer and Small were there, along with Dayson, his brother Bob, and an oil producer named Elijah Jr. Wolfe. Dayson conceded to the group that he had not invested his share of money in the drilling operations, which, as a result, had stopped. As indicated in the testimony of the participants and in notes transcribed the following day by Buehl, much of the discussion at the meeting centered around paying outstanding bills and resuming the operation of the wells. The meeting began with a more formal session, then moved to a bar in the same room of Dayson’s house.

Plaintiffs Small, Davis and Buehl testified that securities and rescission were not discussed at the meeting. Attorney Lewis recalled that there was some mention of violation of securities laws, but that discussion was “minor in nature.” Lewis said that he made a comment to plaintiffs Kopp and Davis that Federal or Illinois securities laws had been violated. Elijah Jr. Wolfe did not remember any conversation about securities among the members of the group at their main meeting. However, he did indicate that Buehl informed him that he and Hart had been to Rich’s office, where Rich admitted that he had not registered the securities.

Attorney Hart had a brief conversation with Dayson’s counsel, Roscoe Cunningham, in Hart’s office in Vincennes on January 14, 1980. Cunningham had come to the office to speak with attorney Mark Ewing about an unrelated matter and had met Hart in the halls of the office. Hart and Cunningham spoke about the developing dispute over the oil wells. Hart described the meeting as “very superficial,” as he had not yet done much investigation into the case. He testified that they did not refer to securities laws. Cunningham said that Hart notified him that Rich and Dayson had not complied with Illinois and Federal securities acts and that Buehl and the other investors were going to receive their money back.

Much of the chronology of events in this case was recorded in the billing records of Hart, Bell, Deem, Ewing and Stuckey. Those records consist of a 13-page itemized statement admitted in two parts as plaintiffs’ exhibits Nos. 77 and 84. Relying on those exhibits, attorney Donald Bell testified that he first became involved with the case on January 23, 1980. Attorney Hart, who was leaving for Florida, instructed Bell to review the file and handle the case for him during his absence. Bell “looked the file over, which consisted mainly of lists of investments and interests in various wells, and tried to figure out just who owned what.”

The following day, Bell met with Buehl, where they “discussed the ramifications of the matter,” as the firm’s billing records reflect. Bell remembered that they considered several approaches to resuming production from the wells. Bell testified that he had no knowledge of the effects of Illinois securities laws at that time. He also stated that plaintiffs’ exhibits Nos. 77 and 84, as far as he knew, included a complete list of all services provided by the firm.

At some time during a weekend break in the trial, another version of the firm’s billing records, marked as plaintiffs’ exhibit No. 96, was found in the personal files of plaintiff Alan Stewart. That version was a billing statement sent on April 17, 1981, to plaintiffs Stewart and his wife, Buehl and his wife, Davis, Kopp and Small. As conceded by Hart and Bell, the only difference between plaintiffs’ exhibit No. 96 and plaintiffs’ exhibits Nos. 77 and 84 is the omission of the following entries from the latter.

“January 23, 1980 Reviewed provisions of federal securities act and also the Illinois and Indiana Security Act.
January 23, 1980 Research of security law with main emphasis on Indiana and consultation between Bell and Hart in reference to Dr. Buehl’s problem.”

The entries immediately before and after these two entries in plaintiffs’ exhibit No. 96 are numbered “18” and “20” in plaintiffs’ exhibit 84, and there is no entry No. 19 in that document.

After plaintiffs’ exhibit No. 96 was produced, attorney Bell was once again called to testify by the plaintiffs. Bell conceded that, contrary to his earlier testimony, he had indeed discussed securities law with Buehl on January 24, 1980. In his testimony, Buehl had said that he first became aware that the securities were supposed to have been registered in a conversation of May 16, 1980, with attorney Mark Ewing.

Billings at Hart, Bell, Deem, Ewing and Stuckey are made electronically. At the end of each workday, the firm’s attorneys dictate their billings which are then transcribed by secretaries and stored on magnetic tape. Attorney Ewing explained that this was the firm’s exclusive method for keeping track of billable entries, and no file memoranda were used for that purpose. Attorney Bell agreed that the attorneys in his firm kept no written time charges. When asked why plaintiffs’ exhibit No. 96 contained the two additional entries for January 23, he replied that there “must have been something in the file” on April 17, 1981, “to indicate that there was additional work done” and that “a note of that kind would have been thrown away.” Bell denied deleting or directing the deletion of any entries from plaintiffs’ exhibits Nos. 77 and 84.

Another meeting of investors occurred on February 6, 1980, this time in the office of Vincennes attorney Robert Lewis. Memories differed as to the attendance at this meeting, but it appears that plaintiffs Buehl, Small and Kopp were there with defendants Rohrer and Lewis, oil producer Wolfe, attorney Cunningham and accountant Clyde Barnhart. Plaintiffs Small, Kopp and Buehl noted that there was no mention of securities or rescission at the meeting. Elijah Jr. Wolfe agreed with them, but observed that he left the meeting early. Defendant Lewis said that in discussions in a hallway after the main meeting, he told Buehl, Rohrer, Small and Kopp that there was a possibility that securities laws had been violated. Lewis’s notes of the meeting itself include no mention of that subject. Defendant Rohrer testified that Lewis had spoken of securities laws both during the meeting and in the hallway conversation.

On February 9, 1980, attorney Bell sent a letter to Dayson on behalf of the plaintiffs. Bell conferred with Small, Kopp, Davis and Buehl before sending it. The letter suggested that Dayson be relieved of and be compensated for his interest in the leases, as the letter put it, “[wjithout going into the various legal problems and ramifications involved when one sells securities in Illinois properties to non-residents of the State of Indiana [sic] in excess of $300,000.00 ***.” In his testimony given before the production of plaintiffs’ exhibit No. 96, Bell denied any recollection of having any knowledge about the ramifications of Illinois securities laws when he sent the letter.

Bell met with Buehl, Stewart, Kopp, Davis, Small and Lewis in his office on February 20, 1980. None of the witnesses to this conference testified that the issues of securities laws or rescission were considered there. In fact, plaintiff Small, defendant Lewis and attorney Bell specifically remembered that neither subject was raised.

Attorney Mark Ewing took over this case for his firm in April 1980. In the next several months, he conducted research on Illinois, Indiana and Federal securities laws, participated in conferences with the parties, and contacted the Illinois Secretary of State’s office. He wrote the securities department of that office on June 6, 1980, to ascertain whether Rich, Dayson or defendant D & R Oil Productions, Inc., had registered the sale of securities to the plaintiffs or had filed for an exemption. He received a letter dated July 14, 1980, informing him that no such registration or exemption was on file. Attorney Bell sent Dayson and Rich letters dated August 6, 1980, requesting rescission of the sales on behalf of the plaintiffs. Dayson received his letter on August 13 and Rich received his on August 18.

In an affidavit filed in opposition to a motion for summary judgment, Buehl, Davis, Kopp and Small attested that they first learned in May 1980 that the sales of working interests might violate Illinois securities laws. At trial, they testified that they gained this knowledge in either May or June from various members of Hart, Bell, Deem, Ewing and Stuckey, and they were not certain that the transactions violated those laws until they received the July 1980 letter from the Secretary of State. Robert Lewis indicated that he had a telephone conversation with plaintiff Davis on September 9, 1980. In his notes of that conversation, he recorded that Davis told him that Bell first learned in March 1980 that Rich and Davis did not register the securities in Illinois. Davis denied having that conversation with Lewis.

In deciding that the plaintiffs’ notices of rescission were untimely, the trial court found that the plaintiffs had knowledge of the voidability of the transactions no later than February 9, 1980. That was the date of attorney Bell’s first letter to Dayson. The plaintiffs contend that events on or before that date do not prove that they had knowledge of the voidability of the sales. Instead, they argue that they could not have discovered the nature of the transactions until they received the letter from the Secretary of State.

Knowledge that a sale of securities is voidable is a mixed question of law and fact on which a layman is entitled to acquire his first knowledge from an attorney (Curtis v. Johnson (1968), 92 Ill. App. 2d 141, 234 N.E.2d 566; Norville v. Alton Bigtop Restaurant, Inc. (1974), 22 Ill. App. 3d 273, 317 N.E.2d 384), although that knowledge may be obtained from other sources as well (Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 323 N.E.2d 73). A purchaser will not be held to know the voidable nature of his transaction merely because he consulted with an attorney if that consultation involved an unrelated matter (Gowdy v. Richter (1974), 20 Ill. App. 3d 514, 314 N.E.2d 549) or if the purchaser learns only that the transaction went sour and that he has lost his investment (McPherson v. Hewitt (1975), 32 Ill. App. 3d 435, 335 N.E.2d 606). In these cases, the purchaser may point to other sources, such as a letter from the Secretary of State, to establish the date of his first knowledge of voidability. McPherson v. Hewitt (1975), 32 Ill. App. 3d 435, 335 N.E.2d 606.

In Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 323 N.E.2d 73, the court explained that knowledge that the stock is not registered is not necessarily synonymous with knowledge that the sale is voidable. But the statute does not require actual knowledge that the sale is voidable, either. According to the Martin court, the six-month notification period may run from the date that the purchaser acquires constructive knowledge of voidability, and actual knowledge of nonregistration is a factor in ascertaining the date of that constructive knowledge. Determining that date is a question of fact for the trial court, and we will defer to its findings unless against the manifest weight of the evidence. Froehlich v. Matz (1981), 93 Ill. App. 3d 398, 405, 417 N.E.2d 183, 189.

We need not review the facts of this case again to demonstrate that the testimony of both sides was replete with inconsistencies and issues of credibility. From the defendants’ witnesses, the court could have found that the plaintiffs knew before February 9, 1980, that the sales were neither registered nor exempt and that they had learned the legal effect of that omission from their attorneys. Its determination that the plaintiffs had constructive knowledge as of that date that the sales were voidable must therefore be upheld.

Frendreis v. Financial Concepts, Ltd. (1982), 106 Ill. App. 3d 438, 435 N.E.2d 1304, relied upon by the plaintiffs, is distinguishable. There, the court held that “when the seller or issuer of challenged securities is defending the legality of the transaction, the buyer does not acquire knowledge of voidability (for purposes of the six-month rule) until the illegality of the transaction has been established in a judicial or quasi-judicial proceeding.” (106 Ill. App. 3d 438, 443, 435 N.E.2d 1304, 1307.) In Frendreis, the securities contained a clause that they were being sold pursuant to exemptions to Illinois and Federal securities law. After investigating inquiries from the plaintiffs, the Secretary of State initiated administrative proceedings against the defendants to determine whether the sales violated Illinois securities laws. A hearing officer concluded that they did.

The court found that the plaintiffs obtained knowledge of voidability upon receipt of the hearing officer’s decision, not, as the trial court held, upon receipt of notice that the legality of the sales was being challenged. Here, no administrative proceedings were pending, and the plaintiffs, unlike those in Frendreis, contacted an attorney long before they received any communications from the Secretary of State. The six-month-notice rule is an equitable feature built into the statute to protect against stale claims. Its purpose is to prevent purchasers who have sufficient knowledge of the remedy available to them from waiting the entire three-year statute of limitations to decide whether to elect rescission. (Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 323 N.E.2d 73.) That purpose would be frustrated if we would read the statute to allow all purchasers of unregistered securities, including those who learned from an attorney that such a purchase is voidable, to wait for a notice from the Secretary of State to begin the six-month period. If this were so, purchasers could wait until far into the statutory limitations period to contact the Secretary of State and commence the running of the notice period. The Frendreis rule should not be extended beyond the situation in which administrative proceedings to determine the legality of the transactions are pending and the purchasers did not otherwise learn of the voidability of the transactions before those proceedings began. That situation does not exist here.

For these reasons, we agree with the trial court that the plaintiffs’ notices of rescission were untimely. Having decided that, we need not consider the remaining contentions of defendants Rich and Dayson, most of which are concerned with the applicability of the Securities Law of 1953 to these transactions. The judgment of the circuit court of Crawford County is affirmed.

Affirmed.

JONES and KASSERMAN, JJ., concur.


author: JUSTICE HARRISON

text:
      In re MARRIAGE OF THEDA SORENSON, Petitioner-Appellant, and LARRY SORENSON, Respondent-Appellee.
    Fifth District
    No. 5—84—0060
    Opinion filed September 28, 1984.
    David C. Hoffman, of Ripplinger, Dixon & Hoffman, of Belleville, for appellant.
    Angelia Blackman-Donovan, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Theda • Sorenson (petitioner) appeals a judgment of the circuit court of Madison County dissolving her marriage to Larry Sorenson (respondent). The issues presented are (1) whether the trial judge possessed authority to make certain findings of fact upon which the judgment was based and, (2) assuming such authority, whether these findings were against the manifest weight of the evidence.

The petition for dissolution of marriage was filed on January 14, 1983. On this date, petitioner also filed a petition for temporary custody of the parties’ three-year-old daughter, Sarah. A hearing on the latter petition was held on January 26, 1983, before Judge Lola Maddox. On January 31, 1983, Judge Maddox entered an order granting temporary custody of Sarah to respondent. Judge Maddox also presided over the hearing on the issues of permanent child custody and distribution of marital assets, held on March 15 and 16, 1983.

On July 18, 1983, Judge Maddox entered an order recusing herself from the case. The case was reassigned to Judge Wendell Durr on August 4, 1983. On August 9, 1983, Judge Durr issued an order directing petitioner to file within 30 days transcripts of the prior hearings before Judge Maddox. The order contained the following statement:

“It is the court’s thought that this matter should be disposed of promptly and without further and unduly burdensome time consumption or financial injury to the parties, and that those goals could best be achieved by entry of a judgment based on a review of the Common Law Record and the transcript of the testimony already presented, rather than the requiring of further hearings.”

Judge Durr also stated in the same order that a motion to withdraw filed by petitioner’s attorney “is not acted upon at this time.” Judge Durr issued an additional order on August 10, 1983, stating that “[a]ny objections to the procedure set forth in the Order of Aug. 9, 1983 for resolving the issues herein shall be set forth and filed by Sept. 7, 1983.”

In a letter dated August 30, 1983, petitioner informed Judge Durr that she had received notice of her attorney’s withdrawal from the case, and that she (petitioner) was unable to afford another attorney. Petitioner informed the judge that although she had no objection to the court’s entering judgment based upon transcripts of the prior hearing, she would be unable to pay for the transcripts until September 1. On September 6, 1983, Judge Durr issued an order approving the withdrawal of petitioner’s attorney and noting, the contents of petitioner’s letter of August 30, 1983. In a letter of September 14, 1983, respondent’s attorney agreed to Judge Durr’s proposal to enter judgment based upon transcripts of the prior hearings. On September 16, 1983, Judge Durr entered an order acknowledging receipt of the transcripts. On the basis of these transcripts, final judgment was entered on January 6, 1984.

By the terms of the judgment, respondent was granted custody of Sarah Sorenson, subject to petitioner’s right of visitation. Petitioner was granted a continuation of temporary maintenance in the amount of $200 per month through April, 1984. Petitioner appeals the judgment, contending that Judge Durr was without authority to enter judgment based solely upon the record of the prior hearings. Petitioner further contends that, if Judge Durr possessed such authority, those portions of the judgment awarding custody of Sarah Sorenson to respondent and terminating petitioner’s maintenance were contrary to the manifest weight of the evidence before the court.

The Illinois cases cited by the parties are of limited assistance. Although the appellate court has held that a successor judge may properly issue an order based upon a predecessor judge’s findings of fact (In re Marriage of Ayers (1980), 82 Ill. App. 3d 164, 167, 402 N.E.2d 401), the instant case presents a situation where a successor judge issued an order based on original findings of fact discerned from the record of prior proceedings. Moreover, the court in Ayers conceded that there was no direct precedent to support its holding. This court held in Brady v. Brady (1975), 26 Ill App. 3d 131, 134, 324 N.E.2d 645, that a trial judge, in determining the merits of a motion to modify a child custody order, could not rely upon testimony presented before another judge in a prior hearing. The facts of Brady, however, differ significantly from those of the instant case. No Illinois court has, to our knowledge, delineated the power of a successor judge to make his or her own findings of fact based solely upon transcribed testimony and exhibits; neither have our courts defined the power of litigants to stipulate to such a procedure.

While the courts of other jurisdictions are divided on the issue of whether a successor judge may make findings of fact based upon a transcript of proceedings over which another judge presided, it is generally held that such a procedure is improper in the absence of a stipulation by the parties. (See generally Annot., 22 A.L.R. 3d 922 (1968).) The rationale of this holding is the longstanding principle that a litigant is entitled to a resolution of factual questions by a trier of fact who has been afforded an opportunity to assess the credibility of witnesses by observing their demeanor. The seriousness with which this principle is regarded is evidenced by the fact that even when parties stipulate to a resolution of factual questions by a successor judge who reviews a record of prior proceedings, a new trial may nevertheless be warranted where critical determinations necessarily hinge upon the credibility of one witness or set of witnesses over another. (Moore Golf Inc. v. Lakeover Golf & Country Club, Inc. (1975), 49 App. Div. 2d 583, 370 N.Y.S. 2d 156.) Such determinations, we believe, were present in the instant case.

The overriding concern of a court in a dispute over child custody is the arrangement which will best serve the interests of the child. (Ill. Rev. Stat. 1981, ch. 40, par. 602.) The transcript upon which Judge Durr based his decision is replete with contradictory testimony. Each party stands accused of emotional insensitivity, violent behavior, and moral turpitude of one sort or another. Various witnesses support and controvert these allegations, any one of which, if true, would cast serious doubt upon the ability of the party in question to provide a suitable home for his or her child. Judge Durr could have reached his decision only by weighing the testimony as it appeared in the transcript and necessarily attributing greater credibility to the testimony of respondent and the witnesses called on respondent’s behalf. Where the testimony of the respective parties and their witnesses was contradictory on matters crucial to a determination of comparative parental fitness, we do not believe the interests of Sarah Sorenson were best served by credibility thus attributed on the basis of data which was inherently incomplete. If, by reason of their stipulation, Theda and Larry Sorenson were not entitled to a determination of their comparative parental fitness by a trier of fact who was afforded the opportunity to discern truthfulness by observing the demeanor of contradictory witnesses, Sarah Sorenson, whose life is singularly affected by such a determination, was so entitled. On this basis, we find the stipulation, insofar as it relates to a finding of parental fitness, inconsistent with the declared policy of our State and, as such, inoperative. We need not address the question of whether the stipulation was effective with regard to the trial judge’s finding concerning the propriety of maintenance. Because an award of maintenance involves an evaluation of the financial needs of both parties, and since such an evaluation is necessarily affected by a determination of child custody, the trial court, in the remanded hearing, must be empowered to redetermine the relative economic needs of each spouse and the remedies appropriate to the situation.

The judgment of the trial court is vacated, and the cause is remanded for a new hearing.

Judgment vacated; cause remanded.

WELCH, P.J., and EARNS, J., concur.