author: JUSTICE TRAPP PRESIDING JUSTICE WEBBER,

text:
    BRYCE M. GRIFFIN, Plaintiff-Appellee, v. JUNIOR DILLINGER et al., Defendants (State Employees’ Retirement System of Illinois, Intervenor-Appellant; The Department of Transportation, Intervenor).
    Fourth District
    No. 4 — 82—0826
    Opinion filed August 8, 1983.

      WEBBER, P.J., specially concurring.
    Neil F. Hartigan, Attorney General, of Springfield (Edward C. Hurley, Assistant Attorney General, of counsel), for appellant.
    R. John Alvarez, of Knuppel, Grosboll, Becker & Tice, of Petersburg, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

This is an appeal by intervenor, the State Employees’ Retirement System (Retirement System), from an order of the circuit court denying it a lien for retirement account contributions and disability payments made on behalf of plaintiff, Bryce Griffin. The trial court denied a lien for both. The principal issue raised by intervenor is whether section 14 — 129 of the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. 108½, par. 14 — 129) grants a lien against a personal injury settlement for disability benefits and retirement account contributions made to a retirement system member. We affirm in part, and reverse in part.

On December 4, 1978, plaintiff was injured in a truck accident while employed with the Illinois Department of Transportation ( Department). Plaintiff was unable to return to work for approximately two years and received workers’ compensation benefits of $49,942.98 as a result of his injuries. During plaintiff’s absence from work, the Retirement System also paid plaintiff $3,400.69 in disability benefits and made contributions to his retirement account in the amount of $1,213.94.

On February 15, 1980, plaintiff filed suit against the driver of the truck, Junior Dillinger, and his alleged principal, Gerald Roberts, seeking recovery of damages for his personal injuries. On the day set for trial, plaintiff settled with the defendants for $72,000. Plaintiff later filed a “Petition to Determine Amount of Lien” which alleged that a settlement had been negotiated by the parties and requested the court to determine the amounts of liens asserted by both the Department and the Retirement System against the recovery. Plaintiff stipulated that the Department was entitled to a lien for workers’ compensation benefits he received but denied that the Retirement System was entitled to a lien for disability payments or retirement account contributions.

The trial court allowed the lien of the Department but denied the lien asserted by the Retirement System. The trial court denied the lien for retirement benefits because, in the words of the trial judge, the “Illinois Pension Code *** provides that the State may be paid or reimbursed” not “shall”; the lien for retirement account contributions was denied, the trial court concluded, because no provision of the Pension Code authorized such.

The State Employees’ Retirement System is a retirement and benefit system for employees of State departments which provides retirement, death, and disability benefits for employees and their dependents. (Ill. Rev. Stat. 1981, ch. 108½, par. 14 — 101.) Under section 14 — 123 of the Illinois Pension Code, an employee injured while in the performance of his duties becomes entitled to disability benefits of 75% of final average compensation until certain terminating events occur. (Ill. Rev. Stat. 1981, ch. 108, par. 14 — 123.) Plaintiff was paid such occupational disability benefits by the Retirement System in the amount of $3,400.69.

Section 14 — 129 of the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. 108½, par. 14 — 129) provides the system with a right of subrogation where certain benefits have been paid to an employee as a result of injuries sustained by such employee because of a third-party tortfeasor. The portion of section 14 — 129 which is the subject of this appeal is as follows:

“In those cases where the injury or death for which an occupational disability or death benefit is payable under this Article was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, all of the rights and privileges, including the right to notice of suit brought against such other person and the right to commence or join in such suit, as given the employer, together with the conditions or obligations imposed under paragraph (b) of Section 5 of the ‘Workers’ Compensation Act’, are also given and granted to the System to end that the System created by this Article may be paid or reimbursed for the amount of occupational disability or death benefit paid or to be paid by the System to the injured employee or his personal representative in the event of death by the System out of any judgment, settlement, or payment for such injury or death obtained by such injured employee or his personal representative from such other person, or be paid or reimbursed for such amount paid or to be paid by the System to the surviving spouse or children of such employee by virtue of the injury or the death of such employee from such injury.” (Emphasis added.)

Plaintiff does not dispute that he received “occupational disability benefits” as that term is used in the Code but argues that the statute does not require that the Retirement System be reimbursed but only that the system may be paid or reimbursed. Intervenor contends that the trial court' abused its discretion in denying the lien for disability benefits since the effect is to allow plaintiff a double recovery for the same injury. Intervenor argues that plaintiff has been reimbursed for his injuries by the personal injury settlement and should not be allowed to retain the disability payments as well, noting that one of the purposes of subrogation is to prevent a party from obtaining a double recovery for the same injury. (See Geneva Construction Co. v. Martin Transfer & Storage Co. (1954), 4 Ill. 2d 273, 122 N.E.2d 540; Railkar v. Boll (1970), 125 Ill. App. 2d 203, 260 N.E.2d 851.) Intervenor suggests that it was inconsistent for the trial court to award the Department a lien for workers’ compensation benefits but deny its lien and that the statute should be interpreted to require that the Retirement System be given a right of reimbursement. Intervenor disputes plaintiff’s interpretation of the word “may” in section 14 — 129 and quotes the following language from Hairgrove v. City of Jacksonville (1937), 366 Ill. 163, 173, 8 N.E.2d 187, 192:

“The rule is that the word ‘may’ shall be construed to mean ‘must’ or ‘shall’ in those cases, only, where the public interest and rights are concerned, and where the public or third persons have a claim de jure that the power shall be exercised, or where it is necessary to so construe .it to carry out the intention of the legislature. [Citation.]”

In interpreting a statute to determine the intent of the legislature, courts will give words their ordinary and usual meaning, in the absence of a legislative intent to the contrary. (Potts v. Industrial Com. (1980), 83 Ill. 2d 48, 413 N.E.2d 1285.) The word “may” generally denotes ability or power but a secondary definition of may is “shall,” or “must.” (Websters New World Dictionary 877 (2d College ed. 1976).) We conclude that the statute must be construed to require a right of reimbursement in light of the clearly expressed legislative intent that the Retirement System be afforded a right of subrogation. In construing a statute, each section and word should be considered in connection with the entire statute to ascertain its meaning and promote the statute’s essential purposes. (Miller v. Department of Registration & Education (1979), 75 Ill. 2d 76, 387 N.E.2d 300.) The purpose of granting subrogation in section 14 — 129 is to shift the ultimate responsibility for financial loss upon the third-party tortfeasor (Geneva Construction Co.). A construction favorable to plaintiff would have the effect of leaving the loss upon the Retirement System. Further, since the statute purports to incorporate section 5 of the Workers’ Compensation Act, which requires that the employer be reimbursed, the obvious legislative intent was to provide that subrogation and reimbursement be recognized. (See Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b).) To uphold the construction suggested by plaintiff would give the trial court the discretion of whether to allow the system reimbursement without any standards in the exercise of that authority. This result, far from providing guidance to interested parties, is avoided and the statute’s purposes promoted by interpreting the word “may” to mean “must.”

Plaintiff has also argued that should the statute be construed to require reimbursement, certain provisions of section 5(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b)) should be applied to section 14 — 129. Although intervenor has not briefed this issue, it agreed with plaintiffs construction at oral argument. The provisions of section 5(b) urged by plaintiff require a pro rata deduction from funds reimbursed to the employer for the cost of the suit as well as a deduction of 25% of the amount for attorney fees. Section 5(b) of the Workers’ Compensation Act provides, in part:

“Out of any reimbursement received by the employer pursuant to this Section [providing right of subrogation against third-party tort-feasors], the employer shall pay his pro rata share of all costs and reasonable necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement.” Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b).

No cases have considered whether this provision applies to section 14 — 129 of the Illinois Pension Code, but an examination of that statutory language supports plaintiff’s argument. Section 14 — 129 of the Code provides, in part:

“[A]ll of the rights and privileges, including the right to notice of suit brought against such other person and the right to commence or join in such suit, as given the employer, together with the conditions or obligations imposed under paragraph (b) of Section 5 of the ‘Workers’ Compensation Act’, are also given and granted to the System ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 108½, par. 14-129.

We hold that the above provision of section 5(b) which requires a reduction in reimbursement for a pro rata share of expenses and a reduction of 25% for attorney fees is applicable to section 14— 129 of the Illinois Pension Code as well. This construction is supported by the italicized language above which incorporates the obligations of section 5(b) and is consistent with the legislative purpose that subrogees bear a fair share of the cost of recovery from third-party tortfeasors. Since this issue was not considered by the trial court, on remand, the court should determine if the attorney’s services substantially contributed to the settlement, as required by section 5(b) and if so, the required 25% reduction should be made. In either event, the trial court should make a pro rata deduction for costs.

Intervenor next argues that the trial court abused its discretion in denying it a lien for contributions made to plaintiff’s retirement account in the amount of $1,213.94. During plaintiff’s period of disability the Retirement System made contributions to plaintiff’s retirement account in amounts plaintiff would have paid had he been working. Such payments are provided for in section 14 — 127 of the Code, which states in part:

“Credit during disability. A member shall receive credit during any period of nonoccupational or occupational disability for which benefits are paid of an amount representing the contributions the member would have made in active employment in the same position and in receipt of compensation at the rate in effect at the time disability occurred. Such amount shall bé credited to the account of the member in lieu of contributions that would otherwise have been made.” Ill. Rev. Stat. 1981, ch. 108½, par. 14-127.

Intervenor claims that the term “disability benefit” in section 14 — 129 is not defined in the Illinois Pension Code and should receive its ordinary and commonly understood meaning. Intervenor suggests that this meaning is simply a pecuniary advantage received during a period of disability as provided in section 14 — 127. In reply, plaintiff argues that section 14 — 127 makes no provision for a lien for retirement contributions and section 14 — 129 provides a lien for “occupational disability and death benefits” but not for retirement contributions.

The language of section 14 — 129 at issue here provides for reimbursement to the Retirement System “for the amount of occupational disability or death benefit paid or to be paid by the System.” (Ill. Rev. Stat. 1981, ch. 108½, par. 14 — 129.) Under article 14 of the Code, the term occupational disability benefit is a specific area of coverage provided for in section 14 — 123 of the Code, which is entitled “Occupational disability benefits,” in contradistinction to section 14— 124, which provides for “Nonoccupational disability benefit.” (Ill. Rev. Stat. 1981, ch. 108½, pars. 14 — 123, 14 — 124.) Likewise, the term “Occupational death benefit” is a specific category of coverage provided in section 14 — 128, in distinction to paragraph 14 — 117 which provides a “Nonoccupational death benefit.” (Ill. Rev. Stat. 1981, ch. 108½, pars. 14 — 117, 14 — 128.) Thus, despite intervenor’s suggestion that the terms “occupational disability or death benefit” are not defined by the Code, it is clear that such language makes reference to specific categories of benefit coverage provided. Where a word is used in different sections of the same legislative act, there is a presumption it is used with the same meaning throughout unless a contrary legislative intent is clearly expressed. (People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill. 2d 365, 432 N.E.2d 855.) The distinction between these categories of benefits is evident throughout article 14 of the Code and dispels intervenor’s contention that these terms are not defined. The literal language of the statute makes it evident that there is no statutory right of subrogation or reimbursement for retirement contributions made to a members account during a period of occupational disability. Section 14 — 129 contains no clear expression of a contrary legislative intent and the trial court correctly denied reimbursement for these amounts.

We find it unnecessary to address the final issue raised by the parties: Whether we should take judicial notice of a purported public document; our disposition is for the reasons stated. Accordingly, the order of the trial court is affirmed in part, reversed in part, and remanded for further proceedings.

Affirmed in part; reversed in part; and cause remanded.

MILLS, J., concurs.

PRESIDING JUSTICE WEBBER,

specially concurring:

I concur in the result and in nearly everything which is said in the principal opinion. However, I take umbrage at the additional confusion added to the jambalaya which the reviewing courts nationwide have made out of the “shall-may” syndrome. For many years I have complained about the ad rem use of words (see Illinois National Insurance Co. v. Trainer (1971), 1 Ill. App. 3d 34, 37, 272 N.E.2d 58), and I find the same deficiency here. There is no necessity to resort to the fiction that sometimes — “may”—means—“shall”—and—sometimes — vice versa.

The operative phrase in section 14 — 129 of the statute as emphasized in the principal opinion is “to the end that the System created by this Article may be paid or reimbursed.” This is a pure purpose clause. “To the end that” means “in order that.” (Webster’s Second New International Dictionary 843 (1959).) The same dictionary states that “in order to” means “for the purpose of.” Webster’s Second New International Dictionary 1716 (1959).

In a purpose clause “may” is the proper usage and indicates the obligatory nature thereof. An instructive article on the subject appears in Fowler, A Dictionary of Modern English Usage 287 (2d ed. 1965):

“[I]n order that is regularly followed by may and might; i.o.t. nothing may, or might, be forgotten. The use of the subjunctive without a modal auxiliary (i.o.t. nothing be forgotten) is archaic. In some contexts, but not in most, shall and should may pass instead of may and might (i.o.t. nothing should be forgotten) but certainly the second, and perhaps the first also, of the shall examples below is unidiomatic. The other examples, containing can and could, will and would, are undoubtedly wrong: The effort must be organized and continuous i.o.t. Palestine shall attract more and more of the race.! To influence her in her new adolescence i.o.t. we shall once more regain the respect and admiration we enjoyed under the old Russia./ It will conclude before lunchtime i.o.t. delegates can attend a mass meeting in London./ To supplement the work of the doctors on the panel i.o.t. every insured person in London will be able to obtain the very best medical attention./ If the duty had been left on wheat i.o.t. the farmer could have purchased the offals at a reasonable price ../ A special sign i.o.t. the motorist would be able to stop in time.
These solecisms are all due to ANALOGY, in order that being followed by what could properly have followed so that. Although in order that has its uses, as the examples show, that or so that is less stiff and should be preferred when it will serve.”

It follows that the statute is grammatically correct and need not be construed. It is mandatory by nature.


source: Caselaw Access Project

author: JUSTICE VAN DEUSEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL BENKA, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES RUSHING, Defendant-Appellant.
    Second District
    Nos. 82 — 426, 82 — 428 cons.
    Opinion filed August 18, 1983.

      Michael Null, of Chicago, for appellants.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Following a jury trial, defendants Michael Benka and James Rushing, and a third defendant who is not a party to this appeal, were found guilty of obscenity (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 20(a)(1)) and were each subsequently fined $150 plus costs and restitution. On appeal, defendants contend that (1) the trial court erred by permitting the joinder of three unrelated obscenity prosecutions and (2) defendants were denied effective assistance of counsel in view of defense counsel’s failure to object to the joinder of the prosecutions and his multiple representation of all defendants.

Defendants’ trial was brief. The evidence consisted of three separate stipulations, one with reference to each defendant. These stipulations stated in substance that on a particular date a named defendant had sold a particular issue of Swedish Erotica magazine with its cover exposed and in full view to a named detective. The only other evidence adduced were the three issues of the magazine which were duly marked and admitted into evidence. Each issue of the magazine was monotonously similar in content. Counsel for both sides then proceeded to closing arguments where they both argued that the principal issue in the case was the determination of whether or not the subject magazines were obscene. At the sentencing hearing, defendants were each fined $150 plus costs and restitution. The post-trial motion, subsequently filed by defendants Benka and Rushing, was heard and denied. This appeal followed.

Defendants first assert that under sections 114 — 7 and 111 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 114 — 7, 111 — 4), it was error for the trial court to permit the joinder of three unrelated obscenity prosecutions. Defendants are entirely correct that under sections 114 — 7 and 111 — 4 of the Criminal Code of 1961, joinder of criminal offenses is not permitted where the charges are not based upon the same act or are not based upon two or more acts which are part of the same transaction. (People v. Higgins (1979), 71 Ill. App. 3d 912, 927; People v. Hyche (1978), 63 Ill. App. 3d 575, 578, aff’d (1979), 77 Ill. 2d 229.) A defendant cannot be forced to trial on disassociated felonies. People v. Woodis (1961), 23 Ill. 2d 471, 473.

However, this does not mean that a defendant cannot agree to such joinder. As was stated in People v. Brisker (1974), 23 Ill. App. 3d 394, 396, “[I]t is axiomatic that a defendant may not be placed on trial, over his timely objection on an indictment charging separate offenses when it appears that these offenses are not part of one and the same transaction ***.” (Emphasis added.) In this case, however, despite defendants’ contention to the contrary, the record establishes that defendants actively participated in the motion to consolidate the three cases for trial.

It is true that we have not been furnished with a transcript of the proceedings concerning the actual consolidation of the cases, but it is the defendants, as appellants, who have the obligation to furnish this court with an adequate record. (People v. Kline (1982), 92 Ill. 2d 490, 509; People v. Smith (1969), 42 Ill. 2d 479, 483.) A review of the record, however, establishes with certainty that defendants’ counsel participated in the motion to consolidate the cases. During the course of the post-trial motion, wherein this issue was initially raised, the State asserted that it was the defense counsel who suggested the cases be joined and that the State merely acquiesced therein. Further, the record discloses that the court at that time recalled that the cases had initially been slated for individual trials. When suggestions were raised that the trials be consolidated, the trial court indicated to the parties he would consolidate the cases if they so desired.

The most compelling indication, however, of defense counsel’s participation in the motion of joinder is evidenced by comments he made during the course of closing arguments.

“MR. BOUREGOIS: These three people were charged in a bookstore in DuPage County, and there are three separate arrests.' I want you to understand that we consolidated these cases and decided to try them all together because even though they are unrelated to each other and they are individually entitled to a separate trial, for the expediency of courtroom time, lawyers’ time, and the State’s Attorney’s time, and that sort of thing, we brought them together. We are trying all three of the cases at the same time.
Each Defendant is entitled to a separate deliberation by you, and the Judge will instruct you on that. But the fact of the matter is that we consolidated all three of these cases, which have separate numbers, and two occurred on different dates - maybe all three, I am not sure.
In any event, we decided to bring them all together. ***”

It is well settled that a defendant cannot complain of error which was acquiesced in or invited by him. People v. Harris (1982), 104 Ill. App. 3d 833, 839; People v. Patterson (1980), 90 Ill. App. 3d 775, 784.

Further, under the unique circumstances of this case, defendants were not prejudiced by the joinder of their trials. The facts of each case were simple, stipulated to, not in dispute, and defendants’ defenses were not antagonistic. Moreover, the jury’s only function was to determine whether or not each of the magazines was obscene and whether a defendant knew the nature and contents of the magazine. In closing argument, counsel for both sides adequately pointed out that this decision had to be made on an individual basis and the guilt of one defendant would not reflect on the guilt of any other defendant. The court clearly and adequately instructed the jury on this point. Under the circumstances of this case, where the defendants at the minimum joined in the motion to consolidate the cases, the granting of that motion rested within the sound judicial discretion of the trial court. See People v. Higgins (1979), 71 Ill. App. 3d 912, 927.

Defendants also assert that they were denied effective assistance of counsel at trial in view of defense counsel’s failure to object to the joinder of trials and his multiple representation of all defendants. In order to establish ineffective assistance of counsel, defendants must show that counsel was actually incompetent in the performance of his duties and that substantial prejudice resulted from such incompetency without which the results of the trial would have been different. (People v. Haywood (1980), 82 Ill. 2d 540, 543; People v. Greer (1980), 79 Ill. 2d 103, 120-21; People v. Pugh (1982), 106 Ill. App. 3d 901, 908.) Competency is determined from the totality of counsel’s conduct at trial, and a defendant is entitled to competent not perfect representation. (People v. Ortiz (1981), 96 Ill. App. 3d 497, 503.) Errors in judgment or trial strategy do not establish incompetency. People v. Murphy (1978), 72 Ill. 2d 421, 437; People v. Pugh (1982), 106 Ill. App. 3d 901, 908.

In the instant case, defense counsel’s participation in the consolidation of defendants’ trials would not automatically demonstrate ineffective assistance of counsel. (People v. Joseph (1977), 46 Ill. App. 3d 835, 836.) Counsel’s decision would appear to have been a matter of trial strategy. Moreover, under the circumstances presented here, it does not appear that the consolidation prejudiced the defendants or that a different result would have occurred in the absence thereof.

With regard to counsel’s multiple representation, it is well settled that an attorney’s multiple representation of clients, standing alone, is not inadequate and does not demonstrate ineffective assistance. (People v. Joseph (1977), 46 Ill. App. 3d 835, 836-37; People v. Normant (1975), 25 Ill. App. 3d 536, 540.) It should be noted that defendants’ counsel on appeal, who raises the issue of incompetency of counsel because of multiple representation of the defendants, has himself actually been of record in each of the three cases since their inception as an associate of defendants’ trial attorney. While defendants should have separate trials and separate representation where the defenses are antagonistic, in this particular case, the defenses of the subject defendants were so closely alike that a joint trial agreed to by defendants was not improper and multiple representation was not required.

The judgments of conviction and fines and court costs levied against defendant Michael Benka in No. 82 — 426 and against James Rushing in No. 82 — 428 are affirmed. The motion of defendants to strike appellee’s brief taken with the case is denied.

Affirmed.

NASH and UNVERZAGT, JJ., concur.


text:
    BOWERS MANUFACTURING COMPANY, INC., Plaintiff-Appellant, v. CHICAGO MACHINE TOOL COMPANY et al., Defendants-Appellees.
    Second District
    No. 82 — 820
    Opinion filed August 17, 1983.

      Richard L. Lucas, of Breen, Lucas & Boris, of Addison, for appellant.
    Brigitte Schmit Bell and Gerald G. Saltarelli, both of Butler, Rubin, Newcomer & Saltarelli, of Chicago, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiff, Bowers Manufacturing Company, Inc. (Bowers), appeals the dismissal with prejudice of its three-count amended complaint against defendant Chicago Machine Tool Company (CMTC), a division of EJ.M. Corporation; Di-Acro, a division of Houdaille Industries, Inc.; and Mateo Leasing, Ltd., an affiliate and wholly owned subsidiary of Chicago Machine Tool Company. On appeal, plaintiff contends that counts I and II of its amended complaint stated a cause of action against CMTC for breach of oral contract and breach of express warranty, that count III stated a cause of action for breach of express and implied warranty, and that the defendants’ motion to dismiss did not assert affirmative matter sufficient to permit the dismissing of said complaint. Therefore, according to Bowers, the trial court erred in granting defendants’ motion to dismiss.

In the first count of its amended complaint, Bowers alleged that CMTC orally represented to Bowers that a certain turret punch manufactured by Di-Acro would meet all the specifications and requirements as given by Bowers to CMTC; that plaintiff agreed to purchase the machine based upon these oral representations; that CMTC arranged for financing through Mateo, which defendant believed to be an affiliate and wholly owned subsidiary of CMTC; that Bowers and Mateo executed an “Equipment Lease Purchase Agreement” for the lease and ultimate purchase of the machine, a copy of which agreement was attached to the complaint; that the equipment was delivered to Bowers; that, pursuant to the contract, Bowers caused $94,663 to be paid to Mateo, which Bowers alleged to be the purchase price; that defendant knew the intended use and that Bowers relied on their expertise at the time of the negotiation, order and delivery; that Bowers found the equipment to be defective and unsound and not useable for the intended purpose; and that such failure constituted a breach of contract.

Count II made basically the same factual allegations, but concluded that defendants expressly warranted that the machine would meet the specifications and. perform the work required and that the failure to do so constituted a breach of section 2 — 313 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 313). Count III realleged the same facts but concluded that the equipment failed in material respects to conform to the implied warranties of merchantability and of fitness for a particular purpose, in violation of sections 2— 314 and 2 — 315 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, pars. 2 — 314, 2 — 315).

Defendants Chicago Machine Tool Company and Di-Acro brought a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619), formerly section 48 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48). In their motion, defendants asserted that defendants had, as a matter of law, disclaimed all warranties upon which plaintiff relied. They claimed that, in conformity with section 2 — 316(2) of the Uniform Commercial Code, they expressly excluded the implied warranty of fitness for a particular purpose, the express warranty of fitness for a particular purpose, and the implied warranty of merchantability. Defendants attached to their motion a copy of the Matco-Bowers “Equipment Lease Purchase Agreement” wherein all express and implied warranties of fitness and merchantability were purportedly disclaimed and the lessee was extended the same warranty given by the manufacturer to the lessor; a copy of the written warranty of DiAcro, the manufacturer, in which, inter alia, all express and implied warranties of fitness and merchantability were also purportedly disclaimed; and a copy of Bowers’ sworn answers to interrogatories filed in an earlier suit over the same matter, which had been dismissed for want of prosecution. In those answers to interrogatories, John Bowers, the president of plaintiff, had stated that the warranties under which it was claiming were not oral but were written and furnished by Mateo Leasing on April 4, 1980, and Bowers also attached to these answers a copy of the Di-Acro warranty. Lastly, defendants alleged in their motion that section 2 — 202 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 202) forbids the introduction of parol evidence to contradict a written agreement such as the one under which plaintiff asserted to be claiming.

On August 26, 1982, after hearing argument on defendants’ motion, the court ruled that defendants had conspicuously disclaimed the warranties upon which the complaint rested, that the relevant warranty language in the Mateo lease and purchase agreement was not fatally ambiguous, that Bowers’ characterization of the negotiations leading up to the agreement as constituting an oral agreement was an attempt to avoid the terms of the Mateo lease and purchase agreement regarding warranties, and that the terms of the latter, written agreement did comply with the Uniform Commercial Code regarding warranty disclaimers. In response to Bowers’ requests for clarification, the court stated that, while count I was framed as a breach of oral contract, such purported oral contract was, in essence, a negotiation or an oral undertaking or discussion between the parties made prior to the execution of the written agreement, and that written agreement was binding between the parties. The court therefore granted defendants’ motion to dismiss as to all three counts. Plaintiff appealed.

To defeat a claim or demand, the alleged affirmative matter in a section 2 — 619 motion (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619) must be something more than evidence offered to refute a well-pleaded fact in the complaint, for such well-pleaded facts together with all reasonable inferences must be taken as true for purposes of the motion to dismiss; the alleged affirmative matter must negate the cause of action completely or refute a crucial conclusion of law or conclusions of material facts contained in or inferred from the complaint. (Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, 709-10.) With these principles in mind we have reviewed plaintiff’s contentions on appeal.

Two principal issues are present in this appeal: first, whether plaintiff can bring suit for breach of contract or breach of warranty arising out of an alleged oral contract to purchase a turret punch from CMTC or whether such an alleged agreement constituted preliminary matters which were superseded by its written contract with CMTC’s wholly owned subsidiary Mateo Leasing; and second, whether Mateo and Di-Acro effectively disclaimed the warranties of fitness for use for a particular purpose and merchantability.

In making his ruling in favor of defendants, the trial judge recognized that plaintiff had alleged an oral agreement, but he found that there was a written agreement between the parties, the “Equipment Lease Purchase Agreement,” attached to and incorporated in the complaint and that, as asserted by defendants in their motion to dismiss, section 2 — 202 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 202) does not permit evidence of a prior agreement or contemporary oral agreement that would contradict the written agreement to be introduced. The trial judge observed that Bowers was attempting to avoid the tenets of the written agreement by maintaining that the prior negotiations constituted, in and of themselves, an enforceable agreement.

Section 2 — 202 of the Uniform Commercial Code provides as follows:

“Sec. 202. Final Written Expression: Parol or Extrinsic Evidence. Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented
(a) by course of dealing or usage of trade (Section 1 — 205) or by course of performance (Section 2 — 208); and
(b) by evidence or consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.” (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 202.)

Clearly, if the alleged oral agreement in this case was a prior negotiation that contradicted the written contract, evidence regarding such oral agreement would be prohibited according to this provision.

Bowers posits several reasons why the parol evidence rule should not apply in this case. First, Bowers argues that the only written agreement is the Mateo agreement, which is a lease and not a sale contract and to which CMTC was not even a party. Therefore, Bowers maintains, evidence of the oral agreement and express warranties relative thereto should have been admissible because the Mateo agreement was distinct from and collateral to the contract made with CMTC. (See Service Iron Foundry, Inc. v. M.A. Bell Co. (1978), 2 Kan. App. 2d 662, 588 P.2d 463; Harriss, Magill & Co. v. Rodgers & Co. (1925), 143 Va. 815, 129 S.E. 513.) Second, Bowers likens the Mateo agreement to the security agreement in Drier v. Perfection, Inc. (S.D. 1977), 259 N.W.2d 496, since both relate to financing, and maintains that the Mateo lease was not a writing intended by the parties as a final expression of the agreement so that evidence of the oral warranty was admissible.

These cases, however, are inapposite based on the facts of the case at bar. In its amended complaint, Bowers alleged that Mateo was an affiliate and wholly owned subsidiary of CMTC and that payments made on the purchase of the equipment were made to CMTC via Bowers’ contractual arrangements with Mateo Leasing. Bowers cannot now claim that his dealings with CMTC were separate and apart from those with Mateo Leasing. Moreover, the “Equipment Lease Purchase Agreement” is not merely a financing document like a security agreement that is collateral to a contract of sale. By its terms, it establishes a 60-month lease and provides for the lessee, at its option, to purchase the subject equipment at the end of the lease term for $1.

We agree with the trial court. We conclude from our examination of the “Equipment Lease Purchase Agreement” that it constitutes a complete agreement for the lease and sale of the turret punch and explicitly covers the subject matter of warranties. We also conclude that it was intended by the parties to be a final expression of their agreement, and, therefore, under section 2 — 202 of the Uniform Commercial Code, evidence of any oral agreement with CMTC would not be admissible to contradict the terms of the written agreement (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 202).

Turning to what appears to be the more crucial issue in this case, Bowers maintains that both Mateo and Di-Acro failed to effectively disclaim the warranties upon which its claims rested. First, Bowers attacks the validity of the Mateo agreement on the basis that the warranty disclaimer therein is ambiguous because it first disclaims all express and implied warranties and then extends to the purchaser whatever warranties were extended by the manufacturer to Mateo. Therefore, according to Bowers, the disclaimer was not sufficiently clear and specific to apprise Bowers of what it was waiving (e.g., Imperial Stamp & Engraving Co. v. Bailey (1980), 82 Ill. App. 3d 835, 837).

The pertinent portion of the “Equipment Lease Purchase Agreement” is paragraph 4 which reads as follows:

“4. WARRANTIES. LESSOR MAKES NOT EXPRESS OR IMPLIED WARRANTY WHATSOEVER OF TITLE, MERCHANTABILITY, FITNESS FOR ANY PURPOSE OR OTHERWISE REGARDING THE EQUIPMENT OR ANY UNIT THEREOF except that [Lessor to delete (a) or (b)] (a) Lessor makes to Lessee the current manufacturer’s warranty with respect to the Equipment as set forth on the warranty form to be delivered to the Lessee in connection therewith, or (b) Lessor shall, at Lessee’s expense, make available to Lessee any rights of Lessor under any express or implied warranties of the manufacturer or vendor of the Equipment to the extent that any such rights are assignable. Lessee represents and warrants that it has full power and authority to execute, deliver and perform this Agreement and that this Agreement constitutes its legal, valid and binding obligation.”

Section 2 — 316(1) of the Uniform Commercial Code requires that words or conduct creating warranty and words or conduct limiting or negating warranty must be construed whenever reasonable as consistent with one another. (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 316(1).) The trial court here found that Mateo’s failure to delete phrase (a) or (b) from paragraph 4 of its agreement provided two modes by which comparable warranties could be passed from the manufacturer to the buyer but that there was no fatal inconsistency in the disclaimer. The interpretation, construction or legal effect of a contract is a matter to be determined by the court as a question of law, and a reviewing court may make an independent determination of such a question. Mazanek v. Rockford Drop Forge Co. (1981), 98 Ill. App. 3d 956, 959.

Here, it is evident that Mateo’s disclaimer apprised Bowers that Mateo was disclaiming all warranties subject to the stated exceptions allowing the manufacturer’s warranty, if any, to be extended to the buyer. The manufacturer’s (Di-Acro’s) warranty provision likewise disclaimed all warranties and limited its liability to repair or replacement of parts it determined to be defective, or, at its option, replacing the product or refunding the price. In fact, in its brief on appeal, Bowers admits that “Mateo’s obligation under the contract was to supply the same implied and express warranties as those given by Di-Acro.” Contrary to Bowers’ position, the Mateo warranty provision does not create a warranty in one breath and surreptitiously deny it in another (Alan Wood Steel Co. v. Capital Equipment Enterprises, Inc. (1976), 39 Ill. App. 3d 48, 58), and the trial court appears to have properly found no fatal ambiguity or inconsistency in that provision.

A disclaimer similar to Mateo’s was upheld in Walter E. Heller & Co. v. Convalescent Home (1977), 49 Ill. App. 3d 213, on the basis of conspicuousness. However, it is also important to note that, like the Mateo agreement, the disclaimer upheld in Heller appears after the word “Warranties” and passed on warranties made by the supplier of the goods while disclaiming all other express and implied warranties. In Blankenship v. Northtown Ford, Inc. (1981), 95 Ill. App. 3d 303, cited by Bowers, the court found a disclaimer of all warranties by an automobile dealer following the phrase “Factory Warranty” to be misleading in a consumer transaction. The transaction in Heller was between two business entities while that in Blankenship was a consumer transaction, and the courts are less reluctant to hold educated businessmen to the terms of contracts to which they have entered than consumers dealing with skilled corporate sellers. Cf. Dillman & Associates, Inc. v. Capitol Leasing Co. (1982), 110 Ill. App. 3d 335, 341; Walter E. Heller & Co. v. Convalescent Home (1977), 49 Ill. App. 3d 213, 219-20 (“[c]ourts are generally reluctant to use the unconscionability doctrine to rewrite the terms of negotiated contracts into which businessmen have entered”).

Next, Bowers asserts that Di-Acro did not effectively disclaim its warranties. Initially, Bowers makes a similar argument to the one raised against the Mateo agreement, that Di-Acro gave a warranty on one side of its warranty card and took it away on the other. The face of the warranty card states that any part found defective within one year of purchase will be replaced free of charge “per the complete warranty contract on the reverse side” (emphasis added), and the reverse side clearly sets forth Di-Acro’s liability including, in bold-face type, a statement that the warranty is in lieu of any other warranty express or implied including those of merchantability and fitness for use. A similar restrictive warranty has been held to be authorized and proper. Adams v. J.I. Case Co. (1970), 125 Ill. App. 2d 388.

Bowers inaccurately quotes the face of the warranty card in its brief on appeal as “the ‘complete warranty on the reverse side.’ ” If the card had the wording quoted by Bowers, an argument might legitimately be made that Di-Acro stated that there was a “complete warranty” on the reverse side and, in fact, did not furnish such a complete warranty. However, the face of the warranty card informed the buyer that the “complete warranty contract” was on the reverse side and that the extent of Di-Acro’s warranty liability would be determined by its terms. The ambiguity and inconsistency Bowers seeks to find in the Di-Acro disclaimer simply is not present.

Regarding the implied warranties of merchantability and of fitness, Bowers contends that the Di-Acro disclaimer was not “conspicuous,” as required by the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 316(2)). Section 1 — 201(10) of the Uniform Commercial Code provides as follows:

“A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NONNEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color. *** Whether a term or clause is ‘conspicuous’ or not is for decision by the court.” (Ill. Rev. Stat. 1981, ch. 26, par. 1-201(10).)

Bowers contends that “a reasonable person's attention would not have been drawn to the fine print on the reverse side of what appears to be a warranty.” However, unlike the situation in Anderson v. Farmers Hybrid Cos. (1980), 87 Ill. App. 3d 493, cited by Bowers, the face of Di-Acro’s warranty card specifically states that the warranty contract is on the reverse side; it does not simply state that the order is “subject to conditions on the reverse side” (87 Ill. App. 3d 493, 495). A reasonable person in Bowers’ position would have read the reverse side. Further, as defendants maintain, the conspicuousness of the disclaimers complies with the terms of the aforesaid section 1— 201(10) of the Uniform Commercial Code because the Mateo disclaimer is in larger type and capitalized, and the Di-Acro disclaimer is in bold-face type.

Whether a term or clause is “conspicuous” or not is for decision by the court. (Ill. Rev. Stat. 1981, ch. 26, par. 1 — 201(10).) The trial court properly found that the disclaimers in both agreements in question were conspicuous.

Bowers also argues that defendants’ motion to dismiss was insufficient to sustain a dismissal under section 2 — 619 of the Code of Civil Procedure because defendants failed to allege the timeliness of Di-Acro’s disclaimer. Bowers did not raise the issue of timeliness either in its complaint or by way of a counteraffidavit filed in response to defendants’ motion to dismiss. Bowers nevertheless insists that the defendants have the burden of proving the affirmative matters upon which their motion rests and have failed to do so regarding the timeliness issue.

In their motion to dismiss, defendants alleged that Di-Acro expressly excluded any express warranty of fitness or implied warranty of fitness or merchantability pursuant to section 2 — 316 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 316). That provision does not specify when such a disclaimer of warranties must be made, and defendants’ motion appears to meet the requirements that are set forth therein. Bowers has not cited authority for the proposition that the movant in this type of case must allege timeliness in the motion to dismiss.

The court in Gideon Service Division v. Dunham-Bush, Inc. (1980), 80 Ill. App. 3d 633, cited by Bowers, did not find that the motion to dismiss in that case was insufficient for failure to allege timeliness of the disclaimer. In Gideon, the affidavit in support of the motion to dismiss stated that the seller transmitted the sales order bearing its written disclaimer to the buyer about one month after the order and that it was the seller’s custom to transmit such order to the buyer when the goods were shipped. The court found that the record before it established that the seller attempted to disclaim warranties after the contract of sale was made, and the disclaimer, as alleged by the movant, was therefore ineffective.

The court in Gideon found that the record showed no assertion that any similar disclaimer was made at the time the goods were ordered or any indication that the buyer assented or even knew of the disclaimer and its conditions. Similarly, in Midland Supply Co. v. Ehret Plumbing & Heating Co. (1982), 108 Ill. App. 3d 1120, the seller could not rely on the manufacturer’s warranty disclaimer submitted to the buyer on delivery of the goods where no similar disclaimer was made by the seller when the goods were ordered. In this case, by contrast, defendants’ motion incorporated by reference the terms of the attached Mateo sales contract warranty disclaimer showing that Bowers was aware at the time of the agreement that its remedies would be limited to those not disclaimed by the manufacturer.

In sum, the disclaimers of Mateo and Di-Acro constituted affirmative matter which was a defense that negated Bowers’ cause of action completely and was a proper grounds for dismissal of Bowers’ amended complaint under section 2 — 619(a)(9). See Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 93.

The order of the trial court dismissing the complaint with prejudice is affirmed.

Affirmed.

NASH and UNVERZAGT, JJ., concur.


author: JUSTICE NASH

text:
    GEORGE A. HATCHER et al., Plaintiffs-Appellants and Cross-Appellees, v. KENT A. ANDERS, Defendant-Appellee and Cross-Appellant.
    Second District
    No. 82 — 868
    Opinion filed August 19, 1983.
    Donald L. Puckett and Tris Michels Baker, both of Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora, for appellants.
    John Dreyer, of Dreyer, Foote & Streit, of Aurora, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiffs, George A. Hatcher and Carol J. Hatcher, appeal from an order of the circuit court vacating a default judgment against defendant, Kent A. Anders, and defendant cross-appeals from that portion of the order denying his motion to quash service of summons. We first consider the cross-appeal.

On September 8, 1979, plaintiffs’ automobile was struck in the rear by an automobile driven by defendant. This action for damages was commenced and a summons directed to defendant was issued on August 21, 1981, and subsequently returned by the sheriff as not found with the following notation: “Unable to locate in Lee Co., Ill. Subject AWOL from Armed Service in Tenn.” Plaintiffs then sought to serve defendant by delivering a summons to the Secretary of State pursuant to the provisions of section 10 — 301 of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1981, ch. 95½, par. 10 — 301). Defendant failed to appear and on March 12, 1982, an order of default was entered against him on plaintiffs’ complaint. Damages were proved on April 16, 1982, and judgment entered in favor of George Hatcher for $5,000 and Carol Hatcher for $7,000. At no time prior to the entry of the default judgment did plaintiff file an affidavit regarding defendant’s military status as required under the provisions of the Soldiers’ and Sailors’ Civil Relief Act (Relief Act) (50 U.S.C.A. App. sec. 501 et seq. (1981)).

Thereafter, on August 20, 1982, defendant entered his “Special Appearance Contesting Jurisdiction and Motion to Vacate,” supported by affidavit in which he alleged that at the time of the occurrence defendant was a resident of Illinois; after the accident defendant was inducted into the United States Marine Corps and he was assigned to duty stations in California and Tennessee; and, that since discharge defendant continues to reside in Illinois. Defendant further alleged he was never a nonresident of Illinois and, accordingly, substituted service of process upon the Secretary of State was insufficient to confer jurisdiction on the court. He also alleged that plaintiffs’ failure to file an affidavit of military service prior to the entry of default judgment requires vacation of the judgment pursuant to the provisions of the Relief Act. Plaintiffs offered no response or counteraffidavits.

After hearing on October 6, 1982, the trial court denied defendant’s motion to quash the substituted service upon the Secretary of State and granted defendant’s motion to'vacate the default judgment. Plaintiffs appeal and defendant cross-appeals.

Service of a summons is a prerequisite to obtaining jurisdiction over a party and, if a defendant has not been properly served, any order the court enters against him is void ab initio regardless of whether he had actual knowledge of the proceedings. (In re Adoption of Miller (1982), 106 Ill. App. 3d 1025, 1028-29, 436 N.E.2d 611, 614-15; Stankowicz v. Gonzalez (1981), 103 Ill. App. 3d 828, 831-32, 431 N.E.2d 1272, 1274.) A void judgment may be attacked at any time, either directly or collaterally. Stankowicz v. Gonzalez (1981), 103 Ill. App. 3d 828, 831-32, 431 N.E.2d 1272, 1274; Clinton Co. v. Eggleston (1979), 78 Ill. App. 3d 552, 557, 397 N.E.2d 183, 187.

Section 10 — 301 of the Vehicle Code provides for service upon nonresidents of the State against whom a claim arising from the use of a motor vehicle in this State has been made through service upon the Secretary of State:

“(a) The use and operation by any person or his duly authorized agent or employee of a vehicle over or upon the highways of the State of Illinois, shall be deemed an appointment by such person of the Secretary of State to be his true and lawful attorney upon whom may be served all legal process in any action or proceeding against him, growing out of such use or resulting in damage or loss to person or property, and said use or operation shall be signification of his agreement that any such process against him which is so served, shall be of the same legal force and validity as though served upon him personally if such person is a non-resident of this State or at the time a cause of action arises is a resident of this State but subsequently becomes a non-resident of this State, or in the event the vehicle is owned by a non-resident and is being operated over and upon the highways of this State with said owner’s express or implied permission.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 95½, par. 10 — 301.)

If the requirements of the statute have been met, the service is valid even if the defendant did not receive actual notice of the litigation. (Kress v. O’Hara (1973), 14 Ill. App. 3d 54, 58-59, 302 N.E.2d 123, 126, appeal denied (1974), 55 Ill. 2d 602.) Moreover, this form of substituted service has long been held to comport with the requirements of due process. Hess v. Pawloski (1927), 274 U.S. 352, 71 L. Ed. 1091, 47 S. Ct. 632; Ogdon v. Gianakos (1953), 415 Ill. 591, 114 N.E.2d 686.

The parties appear to agree that defendant was a resident of Illinois at the time of the occurrence. Thus, the issue presented is whether defendant, by reason of his absence from Illinois during military service, became a nonresident for purposes of section 10 — 301. The definitions contained in the Vehicle Code are of little assistance. Section 1 — 173 provides that “[ejvery natural person who resides in this state shall be deemed a resident of this State.” (Ill. Rev. Stat. 1981, ch. 95½, par. 1 — 173.) Conversely, “nonresident” is defined as “[e]very person who is not a resident of this State.” (Ill. Rev. Stat. 1981, ch. 95½, par. 1 — 149.) Although there are no cases defining resident for the purposes of the Code, the Source Comment to section 1 — 173 states:

“There had been no determination prior to adoption of the Motor Vehicle Law of 1957 by Illinois courts of whether or not the term resident was synonymous with the term domicile in regard to natural persons, but it had generally been regarded as having the same meaning as domicile by the enforcement authorities.” (Emphasis added.) (Ill. Ann. Stat., ch. 95½, par. 1 — 173, Source Comment, at 58 (Smith-Hurd 1971).)

This comment is consistent with the long-standing rule that although the terms “residence” and “domicile” have different shades of meaning, they are generally construed synonomously when used in statutes unless their meaning is limited by express definition or by the context of the act. (Miller v. Police Board (1976), 38 Ill. App. 894, 897, 349 N.E.2d 544, 548, appeal denied (1976), 63 Ill. 2d 557; In re Estate of Quinn (1936), 283 Ill. App. 597, 604-05, appeal denied.) Since there is no express definitional limitation contained in the Vehicle Code and it appears to contemplate a synonomous definition, we consider that, for purposes of the Vehicle Code, the term “resident” is synonomous with “domicile.”

Thus the question is whether defendant’s induction into the military and absence from the State during service constituted a change of domicile. We think not. A person can have only one domicile or permanent residence and once it is established it is retained until a new domicile is acquired. (Schultz v. Chicago City Bank & Trust Co. (1943), 384 Ill. 148, 156-57, 51 N.E.2d 140, 144; In re Marriage of Weiss (1980), 87 Ill. App. 3d 643, 647, 409 N.E.2d 329, 333.) Affirmative acts must be proved to sustain the abandonment of an Illinois residence and a temporary absence from the State, no matter how protracted, does not equate with abandonment. (Hughes v. Illinois Public Aid Com. (1954), 2 Ill. 2d 374, 380-81, 118 N.E.2d 14, 17-18; Davis v. Davis (1973), 9 Ill. App. 3d 922, 926, 293 N.E.2d 399, 403, appeal denied (1973), 53 Ill. 2d 607.) To establish a new domicile, a person must physically go to a new home and live there with the intention of making it his permanent home. (Keck v. Keck (1974), 56 Ill. 2d 508, 514, 309 N.E.2d 217, 220; Stilwell v. Continental Illinois National Bank & Trust Co. (1964), 31 Ill. 2d 546, 548-49, 202 N.E.2d 477, 478.) Only when abandonment has been provén is residence lost. (Stein v. County Board of School Trustees (1968), 40 Ill. 2d 477, 479, 240 N.E.2d 668, 669.) Once a residence has been established, it is presumed to continue until the contrary is shown, and the burden of proof is on the person who claims there has been a change. In re Es tate of Jackson (1977), 48 Ill. App. 3d 1035, 1038, 363 N.E.2d 919, 921; Powers v. Kelley (1967), 83 Ill. App. 2d 289, 296-97, 227 N.E.2d 376, 380; In re Estate of McCalmont (1958), 16 Ill. App. 2d 246, 255-56, 148 N.E.2d 23, 27-28.

Defendant established through his uncontradicted motion to quash and supporting affidavit that he is now and was at the time of the occurrence a resident of Illinois. The only fact upon which plaintiffs could rely to show nonresidence is defendant’s temporary absence from Illinois during his military service. However, absent an intent to change residence or domicile, a mere absence from the State for military service is insufficient to show change of residency. (See Foster v. Holt (1953), 237 N.C. 495, 75 S.E.2d 319.) No evidence of an intent on the part of defendant to change his domicile appears in the record, and plaintiffs have not sustained their burden of proof to overcome the presumption of a continuing residency in this State. Accordingly, as defendant was not a nonresident of Blinois, substituted service of process upon the Secretary of State did not confer personal jurisdiction over him in the trial court.

We find support for this conclusion in State and Federal statutes which provide that absence from, or presence in, a State due to military service is insufficient, standing alone, to constitute a change of residence. Section 3 — 2 of the Illinois Election Code (Ill. Rev. Stat; 1981, ch. 46, par. 1 — 1 et seq.) states that “[n]o elector or his spouse shall be deemed to have lost his or her residence in any *** election district in this State by reason of his or her absence on business of the United States, or of this State.” (Ill. Rev. Stat. 1981, ch. 46, par. 3 — 2.) Additionally, the United States Code provides that for purposes of State taxation on an individual

“such person shall not be deemed to have lost a residence or domicile in any State, Territory, possession, or political subdivision of any of the foregoing, or in the District of Columbia, solely by reason of being absent therefrom in compliance with military or naval orders, or to have acquired a residence or domicile in, or to have become resident in or a resident of, any other State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, while, and solely by reason of being, so absent.” (50 U.S.C.A. App. sec. 574 (1981). See also Ill. Const. 1870, art. VII, secs. 4, 5.)

We conclude the trial court erred in denying defendant’s motion to quash substituted service of summons upon him and its judgment is reversed and the cause remanded with directions to enter an order quashing service of summons and vacating the judgments against defendant.

The disposition of defendant’s cross-appeal renders plaintiffs’ appeal moot, and we need not consider the further arguments of the parties.

Reversed and remanded with directions.

HOPF and VAN DEUSEN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN LONGORIA, Defendant-Appellant.
    Second District
    No. 81 — 928
    Opinion filed August 18, 1983.

      G. Joseph Weller and Joel Teibloom, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko, Martin P. Moltz, and Wendy S. Paul, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, John Longoria, was indicted in Kane County for the attempted murder and aggravated battery of a child, four-year-old Tracy Mays. (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4, 12 — 4.3(a).) He was found not guilty of attempted murder and guilty of aggravated battery of a child in a bench trial, and sentenced to the Department of Corrections for an extended term of 12 years.

The defendant contends (1) the court erred in refusing to strike testimony of a witness regarding statements he made due to (a) his illegal arrest, (b) failure of the police to give him his Miranda rights, (c) allowing the State to re-open its case and re-call a witness to testify regarding the Miranda rights given to the defendant, and (d) refusing to strike the witness’ testimony as being inherently incredible; (2) he was not proved guilty beyond a reasonable doubt because venue was not proved; and (3) the court considered improper factors when imposing sentence.

Additionally, in a motion ordered taken with this case, the defendant asks this court to take judicial notice of the geographical boundaries of Kane County, Illinois.

On June 17, 1981, the defendant, his girl friend Mary Mays and her four-year-old daughter, Tracy, were at the defendant’s residence at 608 Jay Street in Elgin. Mrs. Mays testified the defendant took Tracy to Lord’s Park in Elgin at 7:30 p.m. She said she thought Lord’s Park was in Cook County; but she was not sure. When they left, Tracy was healthy but she had a cut lip from an accident on a swing, and several other marks because she had fallen off her new “Jungle Gym.” Mrs. Mays said she had known the defendant since November 1980 and that Tracy called him “Daddy.” At 9 p.m., the defendant called her and said the car keys were locked in the car and that they would either get a ride home or walk. Tracy and the defendant returned from the park at 10 p.m. with the defendant’s brother, Rick. Tracy was pale, semiconscious, and her hair and clothes were damp. Mrs. Mays and Rick took Tracy to St. Joseph’s Hospital in Elgin.

An Elgin resident, Cheryl Moose, 607 South Liberty Street, located about a mile south of Lord’s Park, testified she observed Tracy, barefoot, walking south on Liberty about 9:40 p.m. Mrs. Moose said it was dark and about 55 to 60 degrees outside, so her husband went out to see if the little girl was lost. He brought her into the house. Mrs. Moose said Tracy was shivering, her clothes and her hair were damp, her lips were swollen, bloody and purple, her shirt torn, her legs scratched and dirty. She wrapped Tracy in a blanket and sat in a rocking chair with her. Mr. Moose went back outside and returned about a minute later with the defendant, who was barefoot and wearing only shorts. He said he and Tracy were swinging at Lord’s Park, that she had lost the car keys for the second time that day, and that she was “in big trouble.” Mrs. Moose told Tracy to go with the defendant; Tracy was holding onto Mrs. Moose’s leg. Tracy and the defendant left, walking southbound on Liberty. Mrs. Moose said she thought Lord’s Park was in Kane County, but she thought there was a Cook County dividing line there.

Emergency room personnel at St. Joseph’s Hospital testified Tracy was in shock and very slow to respond when she was brought in by her mother and defendant’s brother. Her skin was mottled, she had extensive bruises on the back of her head, her forehead and her inside upper thighs; there was a claw-like abrasion on her abdomen; her lip was cut and there was a laceration on the side of her tongue; there was hair missing from the back of her head; she vomited blood and there was blood in her urine.

Tracy did not respond to any of the nurses’ or the doctors’ questions about what happened until later when the questions were repeated after Mrs. Mays was asked to leave the room so they could X-ray Tracy. Tracy told the doctor who was treating her, Dr. Meenalochani Rengarajan, “My Daddy, *** my Mom’s friend hurt me. He kicked me, and he pushed my head. He pulled me in the pond, and he asked me to put out my tongue and then he closed my mouth.” Tracy stated to Nurse Lisa McCarthy that her father pushed her into the pond and pulled her out of the pond, that he kicked her in the tummy and the head, and that “My Daddy told me to stick out my tongue and to bite down.” Nurse Wilma Zimmerman said Tracy told her “My Daddy hit me with a stick this time and last time, too.” The hospital personnel contacted the Elgin police, and the Department of Children and Family Services.

Detective Mark Brictson and Detective Sergeant Cull went to the defendant’s residence at 1:40 a.m. and talked with him. Also present there was a person named Lawrence Hearly. The officers told the defendant they needed additional information with regard to Tracy’s injuries, and the defendant agreed to go with them to the police station. Detective Brictson said the defendant was not placed under arrest, was not handcuffed, and was not a suspect.

Over defense objection that the defendant had not been advised of his Miranda rights and that the defendant’s statements were not voluntary, Brictson was permitted to testify as an offer of proof that the defendant began speaking in the car on the way to the police station. The defendant related that Tracy had lost the car keys at Lord’s Park and that he was upset about that. He said they had been playing in the park and that they had to walk home from the park. He said he never had occasion to spank Tracy or any of his children (he had two children by his ex-wife), although he did yell at Tracy. Detective Brictson testified Lord’s Park is located in Kane County.

When they arrived at the police station, the defendant related that a week prior he had been bouncing Tracy on a bed, unaware there was a toy beneath the sheet that was hurting her, because she tolerated the pain. Detective Brictson then advised the defendant of his Miranda rights in the presence of Detective Sergeant Cull. He orally advised the defendant he had a right to see a lawyer and to have the lawyer present during questioning; that anything he said would be used against him in court; and that he had a right to cease answering questions. Defense counsel did not then object to the sufficiency of the warnings given. The court determined it would withhold its ruling on the above offer of proof subject to cross-examination, and allowed the State to proceed.

Detective Brictson then testified the defendant was shown color photographs of Tracy which were taken at the hospital. The defendant said the large bruises on the insides of Tracy’s thighs were because he had a tendency to play too roughly with her and to tickle her in that area. He related that she had been playing in the creek area at the park and that she threw his tennis shoe into the water. He lowered her into the water so she could get the shoe out, and that is how she got wet. He said he had been playing in the mud and Tracy, who did not like to get messy or dirty, began crying and asked him “Why are you making me eat this mud?” He stated the bruises on Tracy’s chest were from the bed-bouncing incident and that the injuries to the back of her head were caused when he grabbed her hair and pulled it back. After looking at the pictures of Tracy, the defendant stated that if he caused those injuries to her, he should seek professional help and stay away from her. The defendant, age 26 at the time, was then booked and processed. On cross-examination, Detective Brictson testified the defendant did not appear to be on medication of any sort at the time he was being questioned.

The State offered numerous exhibits for admission into evidence, primarily photographs of Tracy’s injuries, and the court accepted them over defendant’s general objection thereto. The State then rested, and defense counsel moved to strike Brictson’s testimony because the Miranda rights given to the defendant by Detective Brictson were incomplete, and because Miranda rights were not given to the defendant before he made the statements in the police car on the way to the station at which time defense counsel contended he was under arrest. The State countered the defendant was not under arrest on the way to the police station and, therefore, no Miranda warnings were necessary. Further, that the Miranda warnings that were given to the defendant were sufficient.

Defense counsel pointed out Brictson did not testify that he advised the defendant he had a right to remain silent or that if he could not afford an attorney, one would be provided to him. Consequently, there was no showing the waiver was knowing and voluntary. Further, defense counsel asserted an additional reason to suppress the defendant’s statements was that there was no probable cause to arrest him. If there was probable cause to arrest, defense counsel asserted the State could not then claim that no Miranda warnings were required. The State responded the officers had probable cause to arrest the defendant when he admitted at the police station that he played too roughly with Tracy. With respect to the Miranda rights that were given the defendant, the State asked to be allowed to reopen its case to ask Detective Brictson specially which rights he had advised the defendant of.

The court stated that it would not allow the State to reopen that portion of the proof, and withheld its ruling on the adequacy of the Miranda warnings pending its review of a case cited by the State. (No citation was included in the record.) With regard to the statements made prior to the giving of the Miranda warnings, the court stated it did not believe the defendant was in custody at the time he made the statements and they were admitted. The defendant moved for a directed finding as to both counts; the court reserved its ruling until the close of the case.

The court then read the case cited to it by the State and stated:

“[The Court]: It’s my conclusion that the Miranda warning as suggested by the officer does not meet with the requisite [sic] of either the State of California case or the earlier cases cited to this court, because of two critical items that were not listed.
MR. SPENCE [Prosecutor]: Judge, could I interrupt you just for a moment, ask the officer leave while we ***
THE COURT: Yes.”

The court then ruled that all comments and discussions held after the “purported Miranda warning” were stricken.

Citing section 114 — 11 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 11), the State pointed out the statute provides for a hearing on the motion to suppress. The State noted the earlier offer of proof related only to the question of whether the defendant was in custody, and it had no notice that the sufficiency of the warnings would be an issue. The State requested to be allowed to reopen its case, and the court allowed its request over objection.

Detective Brictson was recalled, and testified he advised the defendant of his right to remain silent, that anything he said would be used against him in court, that he had a right to a lawyer and to have the lawyer present during the questioning; that a lawyer would be appointed for him if he could not afford one, and that he could exercise the above rights at any time. On cross-examination, Detective Brictson stated he inadvertently omitted the fact he told the defendant a lawyer would be appointed for him if he could not afford one, and remembered that omission upon reviewing his testimony after he left the courtroom. He could not recall which other specific parts of his testimony he also reviewed, although it was his practice to review “what I say on the witness stand each time I testify.” Detective Brictson testified over objection that after he left the courtroom, he did not speak with anyone who had been in the courtroom during his earlier testimony. The court “revised” its earlier decision, and found against the defendant on his “motion [to strike] equivalent to the motion to suppress.” Defense counsel then moved Brictson’s testimony be struck as being inherently incredible; the court denied the motion.

The defendant presented two witnesses, Detective Brictson and Mrs. Mays. Brictson was questioned about whether prior to proceeding to the defendant’s residence, he had been informed by anyone at the hospital that Tracy had said defendant hit her. Detective Brictson did not recall hearing anything of that sort. Mrs. Mays testified the nurses kept asking Tracy questions about “What happened?” and “Who did this to you?” but that Tracy kept falling asleep and she was not coherent for any length of time. The defendant presented an offer of proof that if Scott Mays were called to testify, he would testify that he was Tracy’s natural father and that she called him “Daddy.” The court refused the offer since Mr. Mays was not on the list of witnesses and had remained in the courtroom during the State’s case-in-chief. After argument, the court found the defendant not guilty of attempted murder and guilty of aggravated battery of a child.

Suppression Issue

(a) Illegal detention.

Defendant first contends his statements should have been suppressed since they , were the fruit of his illegal detention, citing Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824; 99 S. Ct. 2248, and People v. Townes (1982), 91 Ill. 2d 32. He asserts his detention sufficiently resembled a traditional arrest such that “a reasonable man would not have believed he was free to refuse to comply with the police.” The defendant cites important factors considered in Townes and People v. Fitzpatrick (1982), 107 Ill. App. 3d 876, were that the defendants in those cases,, like the defendant here, were either not advised they were not under arrest, or were free to leave, or that they could refuse to cooperate in accompanying the police officers to the station. Defendant also cites People v. Moody (1981), 97 Ill. App. 3d 758, wherein the court found the defendant there had been illegally detained because although the officer testified the defendant was free to leave, the defendant was not so advised, and the police had confiscated his clothes. Further, the “unreasonable time and place of the detention” would likely indicate to a reasonable man that his compliance was required. (People v. Moody (1981), 97 Ill. App. 3d 758, 764.) After finding the defendant there had been involuntarily detained, the Moody court proceeded to a determination whether the detention was supported by probable cause; it determined that it was not, and reversed and remanded for a new trial. As the defendant notes, Moody was reversed by the supreme court. (People v. Moody (1983), 94 Ill. 2d 1.) However, he finds that since Moody was detained only after his explanation of the facts engendering suspicion had been determined to be inaccurate, the police there had additional cause to arrest the defendant and, thus, he finds it is distinguished from the case at bar. Additionally, we find distinguishing the fact that the supreme court did not reach the issue raised in the alternative by the State that the defendant had not been “arrested,” since it agreed with the State’s other argument that there was probable cause to arrest the defendant.

Lastly, the defendant notes the subsequent giving of Miranda warnings does not vitiate an illegal detention.

The State argues the trial court’s finding that the defendant was not in custody prior to the giving of the Miranda warnings is not against the manifest weight of the evidence. The State correctly points out that a “seizure” occurs within the meaning of the fourth amendment (U.S. Const., amend. IV) only when a reasonable person, innocent of any crime would believe that he was under arrest or not free to leave in view of all the circumstances surrounding the incident. (United States v. Mendenhall (1980), 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877; People v. Reed (1982), 104 Ill. App. 3d 331, 336; People v. Miller (1980), 89 Ill. App. 3d 973, 978, cert. denied (1981), 454 U.S. 871, 70 L. Ed. 2d 175, 102 S. Ct. 339.) Further, it points out it has been established that police officers may question citizens during a criminal investigation, and citizens have a duty to cooperate with the police. 89 Ill. App. 3d 973, 977.

In our opinion, the court’s judgment that the defendant was not in custody at the time he made statements prior to receiving Miranda warnings is not against the manifest weight of the evidence and no reversal is warranted. People v. Reynolds (1983), 94 Ill. 2d 160, 165.

“In determining whether a statement was made in a custodial setting, the court must look to all of the circumstances surrounding the questioning, with no single factor deemed controlling, and then objectively evaluate whether a reasonable, innocent person would have believed he was free to leave or was expressly or impliedly bound to remain in the presence of the police. People v. Wipfler (1977), 68 Ill. 2d 158, 166, 368 N.E.2d 870, 873; People v. Cart (1981), 102 Ill. App. 3d 173, 183, 429 N.E.2d 553, 562; see also People v. Kennedy (1978), 66 Ill. App. 3d 267, 383 N.E.2d 713.” People v. Savory (1982), 105 Ill. App. 3d 1023, 1028.

The record reveals the officers proceeded from the hospital to Longoria’s residence to obtain further information about Tracy’s injuries. At the hospital they had talked with two other officers and Tracy’s mother. When Detective Brictson was called to testify by the defendant, he stated he did not recall anyone at the hospital saying that Tracy had said it was Longoria who had hit her. During the State’s offer of proof, Detective Brictson testified when he arrived at the defendant’s residence, the defendant was not a suspect, nor had he been charged with any offense. When the defendant agreed to go with the officers to the police station, he was not under arrest. The defendant first looked for his glasses, but could not find them. Defendant walked out of the residence of his own free will, and he was not handcuffed. Detective Brictson further testified that it was the defendant who began speaking on the way to the police department. Although the police arrived at the defendant’s residence at an early hour (1:40 a.m.), there is no indication that it was an incommodius event; the record shows the presence of another man in the defendant’s residence at the time the detectives arrived. Further, as noted by the State in its argument, the record is simply silent as to whether or not the defendant was advised he was free to leave or was not under arrest, or could refuse to cooperate. It has been recognized that not every station house interrogation is necessarily so custodial as to indicate an arrest. (People v. Reed (1982), 104 Ill. App. 3d 331, 335; People v. Wipfler (1977), 68 Ill. 2d 158.) The extent of the defendant’s cross-examination of Detective Brictson was whether or not the defendant appeared to be nervous (yes) or to have been under the influence of any sort of medication that evening (no). Defense counsel made no further inquiry into the circumstances of the alleged illegal detention.

On this record, we believe the trial court’s judgment was correct. Under the circumstances, a reasonable man, innocent of any crime, would have believed he was not under arrest and was free to leave. Accordingly, no seizure may be said to have occurred and no error requiring reversal.

(b) Miranda warnings not timely.

The defendant next contends that assuming arguendo the police had probable cause to arrest him when they arrived at his residence, the statements made by him prior to the time Detective Brictson advised him of his Miranda rights should have been suppressed because the warnings were not timely. The record shows no arrest occurred when the defendant voluntarily agreed to go with the police. Further, the record shows no interrogation occurred until after he had been advised of his Miranda rights. The defendant began speaking in the car, telling the officers that he and Tracy had been at Lord’s Park, that she lost the keys for the car and that he had been upset about it. Later when they arrived at the station, the defendant voluntarily described an incident a week prior in which he stated Tracy had been injured when he bounced her on a bed. He was unaware at that time there was a toy beneath the sheet that was hurting her because she “tolerated the pain.” At that point, Detective Brictson advised him of his Miranda rights, and custodial interrogation commenced when the officer showed the defendant pictures of Tracy’s injuries and sought explanations from the defendant.

“Probable cause for arrest exists when facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. [Citations.]” People v. Lippert (1982), 89 Ill. 2d 171, 178.

The defendant’s statements were sufficient to warrant Detective Brictson’s belief that an offense had been committed and that the defendant committed it. The defendant’s statements reasonably inculpated him in that he admitted that he was with Tracy at the park and that he was upset with her, thus arguably establishing a motivation for the offense. He then related an alleged prior incident in which he admitted Tracy was injured as the result of his actions, but that he did not know she was being hurt because she did not tell him. Such comments evidence an attempt to exculpate himself of responsibility for at least one of Tracy’s injuries. After he received Miranda warnings, he identified a photo of a bruise on Tracy’s chest as being the result of the bed-bouncing incident.

We conclude this issue is without merit. But, in any event, any error was harmless beyond a reasonable doubt where the defendant made substantially the same statements after receiving the warnings.

The defendant disagrees with the State’s additional assertion in this regard that the evidence was overwhelming and, therefore, any error was harmless beyond a reasonable doubt. He argues that the only evidence aside from defendant’s own statements were repetitions of the victim’s statements which he finds less than overwhelming in view of Tracy’s age and condition at the time she made the statements. Again, we must concur with the State’s characterization of the evidence as overwhelming. Tracy’s mother testified the defendant took her to the park and that, although she had several marks already, she was basically healthy. Cheryl Moose testified the defendant told her he and Tracy were swinging at Lord’s Park, that she lost the keys for the second time that day, and was “in big trouble.” Also, the testimony of various witnesses as to Tracy’s statements in the emergency room were admitted over defendant’s objections as spontaneous declarations and as statements to a treating physician. Although we believe her statements more likely fell within the excited utterance exception, statements which are admitted as exceptions to the hearsay rule generally may be regarded as possessing an inherent reliability.

(c) Reopening of the State’s case.

(d) Inherently incredible testimony.

The defendant asserts his statements made after he received Miranda warnings should have been suppressed on the ground the court abused its discretion by allowing the State to reopen its case and recall Detective Brictson to testify as to the precise warnings given to the defendant. Alternatively, he contends Detective Brictson’s testimony was inherently incredible and should have been struck.

The State argues the court did not abuse its discretion in allowing the State to reopen, and that its ruling as to Brictson’s testimony was not against the manifest weight of the evidence. Alternately, the State argues any error in this regard was harmless beyond a reasonable doubt.

We find none of the cases cited by the defendant or the State dis-positive of this issue. All are distinguishable in that they do not involve the precise issue presented here. The defendant here made no pretrial motion to suppress the defendant’s statements on the basis the Miranda warnings given were insufficient, nor did he object to the sufficiency of the warnings as testified to by Detective Brictson prior to Brictson’s testimony about defendant’s statements after the Miranda warnings were given. Instead, Brictson’s testimony concluded and the State rested its case. The defendant then moved to strike Brictson’s testimony due to the insufficiency of the Miranda warnings as testified to by Brictson.

Although the preferred procedure would have been a pretrial motion to suppress pursuant to section 114 — 11 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 11), section 114 — 11(g) provides such motions may be made during trial as well.

A factually similar case is People v. Hoffman (1981), 84 Ill. 2d 480. There it was stated:

“In our opinion it is also within the discretion of a trial court to entertain a motion to suppress evidence made after trial has begun based on a violation of the principles announced in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. As the Supreme Court said in Miranda:
‘The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.’ (384 U.S. 436, 476, 16 L. Ed. 2d 694, 725, 86 S. Ct. 1602, 1629.) To hold that the circuit court was without discretion to hear an untimely motion to suppress in these circumstances would jeopardize the integrity of the constitutional principles upon which Miranda rests. The circuit court did not abuse its discretion in hearing defendant’s motion to suppress.
* * *
Once raised, the issue became one which the People were required to meet. As the Supreme Court said in Miranda: ‘[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.’ [Citations.]” People v. Hoffman (1981), 84 Ill. 2d 480, 485-86.

Hoffman is distinguished from the case at bar in that the State there had not yet rested its case when the defendant’s motion to suppress was made. The People here had rested before the defendant’s motion to strike was made, which the court treated as a motion to suppress. That distinguishing factor does not warrant a different result, however. First, as noted above, the defendant did not timely object to the sufficiency of the warnings prior to Brictson’s testimony concerning the defendant’s statements, immediately after Brictson testified as to the warnings given. Second, in People v. Lane (1982), 106 Ill. App. 3d 793, this court reversed and remanded the cause where it found the State had been improperly denied its right to present evidence answering or contradicting new affirmative matters raised by the defendant during the presentation of its case. In Lane, the defendant moved pretrial to suppress his confession. An officer testifying for the State stated the defendant had not requested to see a lawyer while in his presence. The defendant and his mother both testified he did make a request for counsel. The State then advised the court it was entitled to and needed to present rebuttal testimony. The defendant objected, and the court denied the defendant’s motion without permitting any rebuttal evidence by the State. On appeal, the defendant contended the court erred in admitting evidence of his confession made following his request for counsel. Given the circumstances of the case, this court was unable to conclude that the admission of the confession was harmless beyond a reasonable doubt. In light of its conclusion the State was denied the right to present rebuttal evidence at the hearing to suppress, it remanded the cause in order to give the State an opportunity to call rebuttal witnesses in further hearings of defendant’s motion to suppress. 106 Ill. App. 3d 793, 798.

Similarly here, had the court refused, instead of granted, the State’s request to reopen, it would have been reversible error since “[o]nce raised, the issue became one which the People were required to meet.” People v. Hoffman (1981), 84 Ill. 2d 480, 486.

The defendant’s last argument with regard to the suppression issue is that Detective Brictson’s testimony was inherently incredible because upon testifying after the State’s evidence was reopened, he stated he advised the defendant of his Miranda rights, including two of the rights which his earlier testimony was lacking; i.e., the right to remain silent and to have an attorney appointed if he could not afford one. The State counters that the trial court’s assessment of the credibility of the witnesses and the weight to be given his testimony will not be set aside unless it is against the manifest weight of the evidence. (People v. Patton (1975), 33 Ill. App. 3d 923; see also People v. Lewis (1979), 75 Ill. App. 3d 259.) We believe the court’s ruling that Brictson’s testimony was not so incredible to warrant striking it was not against the manifest weight of the evidence. On direct examination after reopening, Brictson correctly enumerated the Miranda warnings given to the defendant, and on cross-examination only recalled that he had forgotten to mention one of the rights, the right to an appointed attorney. No reversal on this basis is warranted.

Reasonable Doubt

The defendant claims venue was not proved beyond a reasonable doubt and his conviction must therefore be reversed. In this regard, he moved this court to take judicial notice of the geographical boundaries of Kane County. The State made no objection to this procedure. We will take judicial notice of the eastern boundary of Kane County, which runs in a north-south direction. People v. Meid (1970), 130 Ill. App. 2d 482.

The State has asked this court to judicially notice that 608 Jay Street, Elgin, Illinois, is in Kane County. The defendant did not object to this procedure. We will grant the request. People v. Pride (1959), 16 Ill. 2d 82; People v. Clark (1956), 9 Ill. 2d 400.

Venue is a material averment which must be proved beyond a reasonable doubt. (People v. Rodgers (1982), 106 Ill. App. 3d 741, 743.) The proof may be supplied by direct or circumstantial evidence. People v. Smith (1980), 91 Ill. App. 3d 242, 245.

It is not necessary that someone testify, in so many words, to the place where the offense was committed, but it is sufficient if the evidence as a whole leaves no reasonable doubt as to the act upon which the indictment is based having been committed at the place alleged in the indictment. (People v. Reynolds (1944), 322 Ill. App. 300, 303.) The venue is proved if there is evidence from which it can be inferred that the crime was committed within the jurisdiction where the prosecution took place. 322 Ill. App. 300, 303.

We believe the trial court could conclude beyond a reasonable doubt that the offense was committed in Kane County. Detective Brictson testified Lord’s Park was in Kane County. Mary Mays was uncertain as to which county Lord’s Park was located. Cheryl Moose thought it was in Kane County, but she thought there was a Cook County dividing line there. As the official map of the city of Elgin appended to the defendant’s motion shows, Lord’s Park is located in both counties. The northwest part of the park, including part of one of the park’s three ponds, is located in Kane County.

The undisputed evidence is that four-year-old Tracy Mays was severely beaten and kicked by the defendant. She was pushed into a pond by him at Lord’s Park. The aggravated battery was committed by the defendant between the hours of 7:30 p.m., when he and Tracy left his Kane County residence, and 10 p.m., when they returned to that Kane County address. In order to get to the park, they would have had to traverse a mile. It is undisputed that the return was made on Liberty Street, the location of which is wholly within Kane County. The stop at Mrs. Moose’s house was within Kane County.

In the instant case, we cannot say that the trial judge did not have sufficient proof of venue to warrant reversal. We believe venue was sufficiently proved. People v. Barksdale (1974), 24 Ill. App. 3d 489.

Sentencing; Consideration Of Improper Factors

Defendant contends that in sentencing, the court improperly considered that Tracy’s injuries included burns. The State concedes there is no evidence in the record that Tracy suffered any burns. However, it suggests the court meant burns in the sense of “abrasions.” Defendant effectively refutes this, noting the court specifically listed abrasions as one of her injuries.

At the sentencing hearing, the prosecutor made the first reference to burns on Tracy’s legs. Later, in allocution, the defendant denied Tracy’s legs were burned. However, when imposing sentence, the court repeated that Tracy’s injuries included burns.

The State’s assertion that defendant has waived this issue, citing People v. Baseer (1980), 90 Ill. App. 3d 866, is without merit insofar as the post-trial motion is concerned since the motion here was timely made and heard before the sentencing occurred. However, it is true that the record fails to show the defendant objected to the judge’s inclusion of burns as one of the injuries when iterating its reasons for imposing sentence. In our view, the defendant waived the issue of the court’s misstatement that Tracy also suffered burns by failing to object in a timely manner.

With regard to the extended term imposed, the People acknowledge that section 5 — 5—3.2(b)(1) of the Unified Code of Corrections was not applicable here. (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 5 — 3.2(b)(1).) The evidence fails to show that the defendant’s prior conviction in 1976 for possession of a controlled substance was “a felony of the same or greater class.” The defendant failed to object to the court’s erroneous remark, however, and waived this issue.

The defendant acknowledges the court’s imposition of an extended term was justified under section 5 — 5—3.2(b)(2) (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(2)) in that it found the offense brutal and heinous. (People v. Butler (1979), 78 Ill. App. 3d 809.) He asserts, however, that the court’s improper consideration of the degree of his prior conviction may have influenced it to impose a longer extended term than it may have otherwise.

The record here lends no support to the defendant’s argument, and we do not believe a remand is warranted. The court found only two mitigating factors: the defendant’s willingness to support his family and his industriousness. In aggravation, it found the defendant inflicted serious injury, had a prior record, and the sentence was necessary to deter others from committing the same or similar crime. The court commented in detail on the extent of the child’s injuries, stating immediately thereafter that it felt very strongly about the sentence which it was going to impose. The court then also found the defendant was over the age of 17, the crime was brutal and heinous, and (erroneously) that he had a prior felony conviction within the last 10 years.

It is clear from the record that the court was most influenced in imposing sentence by the extent of the injuries caused to the child, and nothing in the record indicates the court imposed a more severe extended term due to the defendant’s prior conviction. The simple fact defendant had any prior record is properly considered in imposing a more severe sentence, if not an extended one. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(a)(3).) A sentence will not be vacated where there is nothing to indicate that the trial court’s decision was influenced by an improper factor. People v. Rush (1980), 91 Ill. App. 3d 366, 371; People v. Merchel (1980), 91 Ill. App. 3d 285, 297.

The defendant has made no such showing, nor could the record support such a showing. Accordingly, we conclude no vacation or remandment for resentencing is warranted.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

NASH and VAN DEUSEN, JJ., concur.