author: JUSTICE STOUDER

text:
    KAREN SPIKE, Plaintiff-Appellee, v. A. J. SELLETT, M. D., Defendant-Appellant.
    Third District
    No. 81-197
    Opinion filed December 22, 1981.

      Lyle W. Allen and David R. Sinn, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.
    Edward R. Durree, of Strodel, Kingery & Durree, of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff Karen Spike filed a four-count complaint to recover damages allegedly occasioned by the negligence of defendant A. J. Sellett, M.D. After a jury trial in the circuit court of La Salle County, the court entered judgment on a verdict in plaintiff’s favor.

Necessary to an understanding of the issue herein is a rather extensive recitation of the evidence adduced at trial. In the late winter of 1976, plaintiff became pregnant and selected defendant as her physician. Defendant, while a general practitioner, had completed his residency in obstetrics and pediatrics, and had delivered approximately 6,000 babies in his career. During the first seven months of plaintiff’s term, no complications arose.

On October 24, 1976, plaintiff awoke feeling nauseous. As the day progressed, she began vomiting and experienced the onset of severe pain beginning in her right abdomen and radiating down into the upper part of her leg. Plaintiff went to St. Margaret’s Hospital in Spring Valley and was seen by a physician who ordered an enema and medicine to control the nausea. When her problems persisted after her return home, she went to St. Mary’s Hospital in La Salle and was seen by defendant’s brother, Dr. L. V. Sellett. Plaintiff told Dr. Sellett of her nausea and vomiting, and described her sensations as more cramp-like than generalized pain. She also stated that she had had a bloody show, which may indicate the onset of labor, the previous evening. Dr. Sellett diagnosed plaintiff pregnant with acute gastritis, admitted her to the hospital, and ordered a blood test. Defendant then came to the hospital to examine his patient. He discovered mild uterine contractions, a partially phased cervix, and he could feel the head of the fetus. Plaintiff complained of pain in her lower right abdomen but no point tenderness was present. The blood test revealed a white count of 12,200, essentially normal for the third trimester of pregnancy. Defendant diagnosed the problem as extreme gastroenteritis and did not order an X ray because of the danger this posed to the unborn child.

The symptoms continued intermittently throughout the evening and into the morning of October 25. By 1:30 a.m., plaintiff was moaning, crying and complaining of severe intermittent pain. Suspecting the onset of labor, Nurse Patty Dominy requested an obstetric nurse. Nurse Kathy Kohr examined plaintiff and found no dilation of her cervix. Defendant was contacted twice that morning by Nurse Dominy and prescribed some Demerol for the pain. At 7 a.m., he again examined his patient and transferred her to the obstetric ward, where plaintiff was examined by the head obstetric nurse, Dorethy Kisiazkiewicz. Another blood test revealed a white count of 14,400 with a shift to the left, which defendant attributed to dehydration. At 12:30 p.m., plaintiff’s vital signs were normal. She was relaxing and falling asleep by the early afternoon, when she pulled out her IV exclaiming, “I have had enough of that.” Plaintiff continued to have irregular uterine contractions throughout the day and by evening was feeling better, eating, and showering. The parties discussed the possibility of plaintiff going home, but the pain and vomiting returned by late evening. During this day, defendant examined plaintiff five or six times, last checking his patient at 11:30 p.m. before he went home.

At 2 a.m. on October 26, plaintiff was moaning, restless, and unable to sleep. Her parents had Nurse Kohr call defendant, who returned to the hospital. Plaintiff’s father demanded an operation. When defendant explained it would be necessary to call in from out of town surgical nurses, an associate surgeon, and others, Mr. Spike replied, “I don’t care how many doctors you get, do something for her now or I am taking her.” He further stated that “it did not make any difference about the baby.”

Plaintiff was surgically opened shortly after 3 a.m. and purulent material, with an odor which indicated it came from the bowel, was discovered. From this defendant knew there was a rupture of the bowel, and likely of the appendix. It was the judgment of defendant that to remove the appendix without first removing the baby by caesarean section would have resulted in a dead fetus before plaintiff was even removed from the operating table. Defendant brought the entire uterus outside the abdomen, and the ruptured appendix, unexpectedly located directly beneath the area where the child’s head had been, was first visualized. It was removed, the abdomen was cleansed, drains were inserted, and the patient was placed on intensive antibiotic therapy. White counts before her November 9 discharge ranged from 12,100 to 21,700. The baby was healthy and older than expected at the time of delivery.

On November 25, plaintiff was readmitted to St. Mary’s with a recurrence of lower abdominal pain, which defendant treated with intravenous antibiotics. Plaintiff’s parents, seven hours later, had her transferred to University Hospital in Iowa City, Iowa. Plaintiff was there treated by the chief resident in charge of obstetric services, Dr. Norman Diebel. Plaintiff’s white count was elevated to 22,500 and the initial diagnosis was peritonitis with pelvic abscess, secondary to the prior operation. A pelvic examination confirmed a 14-centimeter mass poorly separable from the uterus. Plaintiff was again treated with antibiotic therapy, as her surgeons all agreed surgery was unnecessary. By December 3, she was feeling well, with no vomiting, nausea, or fever. Upon her discharge two days later she was instructed to return in four weeks and to telephone if she had any pain, fever, nausea, or vomiting. As upon her previous discharge from St. Mary’s, plaintiff was given a prescription for an antibiotic. While she claimed at trial she was diligent in her antibiotic therapy, her first prescription was not filled until eight days after her initial discharge, and the record suggests the second prescription may never have been filled. Plaintiff never returned to, nor called, Iowa City.

On December 8, plaintiff was again afflicted with abdominal pain and was admitted to Rockford Memorial Hospital by Dr. Ronald Burmeister. His subsequent examination revealed two masses, one 12 centimeters and the other 5 centimeters. On December 10, without consulting with anyone at University Hospital, Dr. Burmeister removed plaintiff’s uterus, both ovaries and both fallopian tubes. An anaerobic culture of an abscess taken as soon as the abdomen was opened revealed no anaerobic growth in 48 hours. A culture taken from tubo-ovarian abscesses revealed the presence of four types of bacteria. The uterus showed a minor stitch infection on its outer surface but no gross infection within the organ itself.

The elements necessary to establish medical malpractice are the same as in any negligence action. A plaintiff must prove that a defendant owed him a duty, which was breached or not performed, proximately causing injury, resulting in damages. A plaintiff must also prove that he was in the exercise of ordinary care and caution for his own safety. (Borowski v. Von Solbrig (1973), 14 Ill. App. 3d 672, 303 N.E.2d 146, aff’d (1975), 60 Ill. 2d 418, 328 N.E.2d 301.) The element of duty, or standard of care as it is more commonly expressed, must be, with exceptions not here relevant, established by expert testimony. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279.) A plaintiff must then prove that, in light of this standard, the doctor was unskillful or negligent and that his want of skill or care caused the injury to the plaintiff. Walski v. Tiesenga.

Proof that a good result was not achieved is not proof of a breach of a physician’s duty. A plaintiff must demonstrate what the average, reasonable physician in good standing, practicing in the same or a similar community or hospital, would have done in a similar case. Proof of a bad result or a mishap is no evidence of lack of skill or negligence. If a doctor has given a plaintiff the benefit of his best judgment, assuming that judgment to be equal to that ordinarily used by reasonably well-qualified doctors in similar cases, he is not liable for negligence, even if that judgment is erroneous. Borowski v. Von Solbrig (1973), 14 Ill. App. 3d 672, 303 N.E.2d 146, aff'd (1975), 60 Ill. 2d 418, 328 N.E.2d 301.

The four counts of plaintiff’s complaint allege that defendant was negligent in his diagnosis and treatment of appendicitis, in performing the caesarean section, and in his postoperative care. Considering first the diagnosis and treatment of appendicitis, every expert to testify on the subject agreed that in one of every five cases of appendicitis in pregnant women, the diagnosis cannot be made until after the organ has ruptured. Defendant’s expert, Dr. John Long, a board-certified obstetrician and professor of obstetrics and gynecology at Rush Medical College, characterized the diagnosis of appendicitis in pregnant women as “the hardest diagnosis to make in the practice of obstetrics.” It is fortunate that the illness only occurs once in every 1,200 to 2,000 pregnancies, because pregnancy masks its symptoms. While every expert agreed this is true, we note that plaintiff’s expert Dr. Ronald Burmeister, the board-certified obstetrician and gynecologist who removed plaintiff’s reproductive organs, admitted that the pain which plaintiff experienced can also be a symptom of “renal stone, an infection in the kidney, a gallbladder problem, a twisted ovary, an obstruction of the bowel in which the bowel is twisted on itself, or it could be an obstetrical complication, such as a separation of the uterus, called an abruptio placentae.” Defendant testified that he considered the possibility of appendicitis, bowel obstruction, gallbladder, peptic ulcer, abruptio placentae, tortion or infarction of an ovarian cyst, pyelonephritis and other disorders. No expert disagreed that nausea, vomiting, and an elevated white count with a shift to the left may be diagnostic only of pregnancy. Under these circumstances, we cannot characterize defendant’s exercise of judgment as negligent.

Considering next the performance of the caesarean section, it would appear that this was the issue upon which the case turned. When plaintiff’s appendix ruptured, releasing the purulent material into the abdomen, she developed peritonitis from the bacterial release. Her later complications apparently stemmed from the presence of these bacteria, which evidently entered the reproductive tract as a result of the caesarean.

Two factors must here be considered. The first concerns the presence of obstetric indications that a caesarean section was necessary. Plaintiff’s experts testified that absent such indications, the procedure is inappropriate when an appendix has ruptured. Dr. Long testified that obstetric indications are not necessary, but the record reflects no substantial disagreement with the proposition that, if possible, a caesarean should be avoided in the presence of local or generalized infection within the peritoneal cavity. While the experts disagreed as to whether specific obstetric indications were present, plaintiff had a bloody show, uterine contractions, and a phased cervix. All experts agreed that in determining whether there is an obstetric reason to perform the procedure, it is a question of judgment on the part of the surgeon.

The second factor to be here considered is the effect of the medical judgment on the fetus. While not passing on the morality of the matter, we note its influence on the judgments and opinions herein. It was the opinion of defendant that an appendectomy without a previous caesarean section would have resulted in a dead fetus before plaintiff left the operating table. He considered both the 90 percent infant mortality rate in this situation as well as the 10 percent to 17 percent of mothers who die from ruptured appendix and peritonitis. Dr. Burmeister recognized these risks:

“With regard to the pregnancy, then we have to take the risk that the patient might go into labor. That she might deliver the baby prematurely vaginally. That she might even lose the baby because of the severity [sic] toxicity that the baby might die in uteral. But we have tried to prevent the possibility of increasing the infectious risk to the patient by not opening the uterus. The risk of developing abscesses after the appendix is ruptured without the uterus being opened is much less than if the uterus is opened and therefore, even if the baby were to die, we could say that probably, in all medical probability, this patient would be able to conceive again and have another baby.”

Defendant testified that to havé performed the appendectomy without the prior caesarean would have required an incision from the pubis to the chest, and considerable manipulation of the uterus to gain access to, and visualization of, the appendix, which was under the baby’s head. This he believed would have resulted in the death of the fetus. Both defendant and his brother, who assisted in the operation, agreed the prior caesarean was necessary. There was arguably evidence of obstetric indications and definite indications in the judgment of defendant. While the procedure should have been avoided, if possible, it was defendant’s judgment that it was not possible if the fetus’ life was to be preserved. Under these circumstances we do not find defendant’s exercise of judgment to be negligent.

Considering last the matter of postoperative care, this issue was one of the sufficiency of antibiotic therapy. After surgery, plaintiff was treated with intravenous ampicillin and intramuscular terramycin. Defendant then prescribed 500 milligrams of ampicillin every four hours and 100 milligrams of terramycin first every eight hours and later every 12 hours. Sumycin was also prescribed. After an antibiotic sensitivity test revealed that the peritonitis had been caused by an E. coli infection, defendant prescribed 150 milligrams of cleosin four times a day. Upon her later discharge from University Hospital, Dr. Diebel prescribed 500 milligrams of tetracycline four times a day for three weeks. As indicated earlier, it is questionable whether plaintiff was responsible in following these regimens.

Dr. Burmeister testified that the amount of antibiotics was less than optimal, the routes were inappropriately administered, and the wrong antibiotic was in one case prescribed. Dr. Diebel, who stated that plaintiff was in no need of surgery, particularly not a hysterectomy, when discharged from his care, testified that defendant’s choice of antibiotic treatment was reasonable. Dr. Long and Dr. Russell Simonetta agreed with defendant’s treatment. Dr. Edward Fesco found it to be excellent. Again we find no basis to characterize defendant’s judgment as negligent.

In each of the areas where we have found no negligence, defendant gave plaintiff his best judgment. While an unfortunate result here obtained, this is insufficient to establish defendant’s negligence. Plaintiff has established that other physicians may have handled her case differently, but we find that a reasonably well-qualified doctor might well have proceeded in the same manner as defendant. We therefore do not reach the various procedural questions also presented in this cause. We believe under the application of the Pedrick rule the trial court should have directed a verdict at the close of the evidence or, failing to do so, it erred in failing to grant defendant’s motion notwithstanding the verdict.

Accordingly, the judgment of the circuit court of La Salle County is reversed.

Reversed.

SCOTT, P. J., and HEIPLE, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re ADOPTION OF LOUISE SAVORY.—(Y. T. SAVORY, Petitioner-Appellant, v. OFFICE OF STATE GUARDIAN, Respondent-Appellee.)
    Third District
    No. 81-335
    Opinion filed December 22, 1981.

      Chester C. Fuller, of Peoria Heights, for appellant.
    James A. Wrigley, of Guardianship and Advocacy Commission, of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

In 1977 the petitioner, Y. T. Savory, was found to have neglected his retarded, minor daughter, Louise Savory, whereupon the circuit court ordered that all of his parental rights and responsibilities in Louise be terminated. The court also authorized the Department of Children and Family Services to place and consent to her adoption. Except for the petitioner’s unsuccessful attempt to adopt Louise in 1980, which the Department objected to and was sustained, no one attempted to adopt Louise. In March 1981, the circuit court of Rock Island County appointed the Office of State Guardian (State Guardian) to serve as Louise’s plenary guardian in place of the Department of Children and Family Services because Louise had become a disabled adult (111. Rev. Stat. 1979, ch. 110%, par. 11a — 2). The State Guardian refused to consent to the petitioner’s instant petition to adopt Louise and moved to dismiss his petition, arguing that its consent as Louise’s plenary guardian was mandatory before the circuit court could consider the petition on its merits and that, because the State Guardian refused to consent, the court must dismiss the petition. The circuit court granted the State Guardian’s motion, from which the petitioner now appeals. The issue presented for appeal is whether the refusal of the State Guardian to consent to the adoption of its disabled adult ward completely and automatically abrogates the circuit court’s jurisdiction over the petition to adopt. We think not and remand the cause to the circuit court for further proceedings consistent with the opinions herein expressed.

Section 12 of the Adoption Act provides that upon fulfillment of certain conditions an adult may be adopted upon his or her consent, but if the adult is mentally ill or mentally retarded, a court may waive the consent requirement (Ill. Rev. Stat. 1979, ch. 40, par. 1514). The State Guardian argues that such consent cannot be waived by the court where the adult who is mentally ill or retarded is made a ward of a guardian for disabled adults appointed in accordance with article XIa of the Probate Act (Ill. Rev. Stat. 1979, ch. 110/2, pars. 11a — 1 to 11a — 23). Upon appointment as a guardian for a disabled adult, the guardian is empowered to make all necessary decisions concerning the ward’s development toward self-reliance and independence. (See Ill. Rev. Stat. 1979, ch. 110/2, par. 11a — 17.) Given such broad authority to protect the ward’s best interests, we agree that the adult’s consent to adoption proceedings vests in the guardian upon appointment and, thus, a court may not waive the section 12 requirement before proceeding to the merits of the adoption petition.

Notwithstanding our rule that a court may not waive the consent requirement where a guardian has been appointed, we do not conclude that the guardian’s refusal to consent to the adoption petition will summarily divest the circuit court of its jurisdiction to review the State Guardian’s decision not to consent.

The instant situation is analogous to that presented in Stines v. Vaughn (1974), 23 Ill. App. 3d 511, 319 N.E.2d 561. In Stines the circuit court denied the petitioner’s request to adopt a child who was in the custody of the Department of Children and Family Services. They appealed, arguing that the circuit court’s decision was founded in part upon the Department’s refusal to consent to the adoption petition, which the petitioners charged was made arbitrarily and capriciously. The Department argued that because the agency must ultimately consent to adoption and since it did not consent, nor was its consent statutorily excused, the appellate court was unable to review the petition. The court rejected the implication that the agency’s mandatory consent requirement operated to divest the circuit court of its jurisdiction to fully hear and determine an adoption petition. The Stines court first examined several sections of the Adoption Act which emphasize that the tantamount concern in an adoption proceeding was the best interests of the child. It then quoted with approval In re Haun (1972), 31 Ohio App. 2d 63, 66, 286 N.E.2d 478, 480, where the court said:

“The trial court held that the refusal of consent, apparently without more, raised the question of the best interest of the child for adjudication. We find it unnecessary to go so far to support the trial court’s decision. It is enough, in our view, to simply subject the withholding of agency consent to judicial scrutiny to determine whether the agency is acting unreasonably, arbitrarily, or capriciously.”

We completely agree with the reasoning of Stines and Haun and find it persuasive in the instant case. For us to accept the State Guardian’s argument that its consent acts as a condition precedent to a circuit court’s jurisdiction over the adoption petition would result in no judicial review of the agency’s decision where it has withheld its consent. The practical effect of this abrogation would be to place a judicial imprimatur on arbitrary, capricious, and even unlawful agency actions which fundamentally affect the best interests of its ward.

The State Guardian attempts to distinguish Stines by arguing that the agency does not stand in the same relationship to Louise as the Department of Children and Family Services did to the child sought to be adopted in Stines. The agency submits that because its authority over its ward does not terminate when Louise reaches a certain age and because the agency has no duty to actively find an adoptive family for her as was the case in Stines, the agency’s involvement in the affairs of its ward may be significantly greater than was that of the Department of Children and Family Services in Stines. For this reason, the State Guardian concludes that judicial review is unwarranted in the case at bar. Such a distinction is at best casuistry. Yet, even assuming the existence of a meaningful distinction between Stines and the instant case, the agency’s conclusion that less judicial review is required is antithetical. Instead of limiting judicial review as the agency’s “involvement” with an individual increases, the need for judicial review, which is intended to protect individuals from agency abuses, increases as the significance and duration of the agency’s regulation of its ward increases.

Absent an express statutory provision to the contrary, we will not deny access to the courts of this State to aggrieved parties who seek to review the actions of an agency that is specifically responsible for the best interests of its ward. In so ruling, we make no comment concerning the merits of the instant adoption petition. Moreover, we limit the circuit court’s review upon remand to whether the State Guardian adhered to its own administrative decision-making procedures and whether the agency’s decision not to consent to the instant petition was unlawful or arbitrary and capricious. We also admonish the circuit court to be cognizant of and deferential to the State Guardian’s expertise in caring for its adult wards.

For the foregoing reasons, we reverse the order of the circuit court of Peoria County and remand for further proceedings.

Reversed and remanded.

SCOTT, P. J, and HEIPLE, J., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CECIL L. MORTON, Defendant-Appellant.
    Third District
    No. 81-385
    Opinion filed December 30, 1981.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

A Peoria County jury found defendant, Cecil Morton, guilty of burglary and arson. After a sentencing hearing, defendant was sentenced to the penitentiary for two concurrent six-year terms. A more complete recitation of the events leading up to those convictions appears in our previous opinion. People v. Morton (1981), 95 Ill. App. 3d 280.

Review is sought a second time. Previously, we affirmed defendant’s burglary conviction but reversed his arson conviction for lack of evidence. Furthermore, since, the trial judge considered that defendant received compensation for the crime from the proceeds of the burglary (People v. Conover (1981), 84 Ill. 2d 400, 402-05), we vacated the sentencing order. The cause was remanded for a new sentencing hearing on the burglary conviction.

The sentencing hearing commenced a second time. The trial judge did not order a new presentence report. After evidence was submitted in aggravation and mitigation, a sentence of six years’ imprisonment for the burglary conviction was imposed.

On appeal, Morton contends the trial judge erred in not ordering a new presentence report at the second hearing. He also argues that his six-year prison term is excessive. We affirm.

The preparation of a second presentence report is not mandated by law, although it would be discretionary with the sentencing judge to order a supplemental report if he felt it would be beneficial. In the case at bar, a presentence report was presented to the judge at the time defendant was originally sentenced. The second hearing occurred only 11 months after the first one. The same judge presided at both hearings. At the resentencing hearing, both sides had the opportunity, and did in fact, present evidence to fully supplement the original report.

Contrary to defendant’s argument, his six-year prison sentence was not excessive. In mitigation, the trial judge considered the extensive testimony of defendant’s conduct since incarceration. He weighed this information against the defendant’s previous criminal convictions in fashioning a just punishment. On the basis of the instant burglary conviction alone, defendant was not only eligible for a determinate term of three to seven years’ imprisonment (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(5)), but, due to his prior burglary conviction, faced a possible extended term of seven to 14 years (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a) (4)).

When a trial court’s sentencing order is vacated on appeal and remanded for a new sentencing hearing, such action should not be construed as mandate to a trial judge that upon resentencing a lesser sentence should be imposed. Rather, the judge should simply consider the matter anew without relying on any factors which were pointed out to be improper. In the case at bar, sufficient reasons exist for imposing a six-year sentence.

It has been held consistently by the Illinois Supreme Court that it is not the function of an appellate tribunal to serve as a sentencing court. Sentencing is a trial court function. Merely because we might have balanced the appropriate factors differently, thereby reaching a different result, is no reason to substitute our judgment for that of the trial court. People v. Cox (1980), 82 Ill. 2d 268, 280; People v. Bolyard (1975), 61 Ill. 2d 583, 589.

For the reasons stated, we affirm the judgment of the Circuit Court of Peoria County.

Affirmed.

SCOTT, P. J., and BARRY, J., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAX PETROVIC, Defendant-Appellant.
    First District (5th Division)
    No. 80-1899
    Opinion filed November 6, 1981.
    Rehearing denied January 6, 1982.

      Thomas J. Organ, of Carey, Cisco & Organ, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Sharon Eiseman, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a bench trial, defendant was convicted and sentenced to six years for armed violence and a concurrent three year term for aggravated battery. On appeal, it is contended that (1) defendant was not proved guilty beyond a reasonable doubt; (2) the trial court erred in failing to grant defendant a continuance to obtain a necessary witness, in failing to grant an evidentiary hearing on his motion for rehearing of his motion for new trial, and in allowing testimony as to a telephone conversation; and (3) defendant was improperly sentenced.

The record discloses that on the date set for trial defendant moved for a continuance because a necessary witness was purportedly hospitalized. In .denying the request, the court stated that, if necessary, it would give defendant another day to bring in his witnesses.

Thomas Jackson testified that on July 25,1979, about 11 p.m., he and 15 to 20 others were in Horner Park, celebrating a friend’s birthday, when the passenger on a passing motorcycle yelled certain remarks and obscenities and Jackson and his friends yelled back at them. He stated that the park was well-lighted and that the slowly moving motorcycle came within 15 to 20 feet of him, but that he was unable to describe the motorcycle or to identify either man except that the driver had dark hair and was wearing dark pants and the passenger also had dark hair, dark pants, and a dark tank top. Jackson and Thomas Okienowski followed them in a car and, after the motorcycle made a right turn onto Montrose and a left turn onto Manor, it pulled up on the sidewalk and, when the passenger got off, Okienowski suggested that they probably had a gun and they decided to leave. About two blocks from where they had last seen the motorcycle, he (Jackson) was shot in the head near his right eyebrow. He testified that he heard four shots altogether and that he is blind in one eye as a result of one of the shots.

Richard Sheldon testified that he was with a group in Horner Park about 11 p.m. on July 25 when two persons on a passing motorcycle yelled at them. The motorcycle came within seven feet of him, and he was able to clearly see the people on it because the park lights were on. He had seen the passenger several times before, on his way to school, and he identified defendant as the passenger in a lineup the next day and again at trial.

Thomas Okienowski testified that he was also in the park about 11 p.m. on July 25 when two people passing on a motorcycle yelled certain things to his group. At that time, he was about five feet from the slowly moving motorcycle in an area lighted with street lights. Okienowski had seen the passenger around school and knew him as “Little Hugo.” He and Jackson got in Jackson’s car and followed it to show them that they were not afraid. The motorcycle turned right on Montrose and then turned again on Manor and, when the passenger started to get off the bike, he said that they might have a gun — to which Jackson responded, “Well, we better get out of here.” They passed the motorcycle and, after they had turned around and began driving in the opposite direction on Montrose, he heard a shot and saw Jackson bleeding from above the eye. He turned and saw the motorcycle and heard another shot. Two people were on the motorcycle and the passenger had a black handgun and was shooting at them, firing four or five shots. He said that the closest they got to the motorcycle while following it was 10 to 15 feet and that it was a silver Honda 750, the same one he had seen in the park. He made a photo identification the next day and also identified defendant in the courtroom as the passenger on the motorcycle.

The defense called Patricia Cunningham, who stated that she had known defendant for four to five years and had been with him and other friends from about 8 p.m. to 10 p.m. on July 25. When she first saw defendant it was at Roosevelt School, and he was with his girl friend, Frank Shockey, and Robert Taylor. Later, they all left and went to a store at Central Park and Wilson, a usual meeting place, from which defendant left about 10 p.m. to drive his girl friend home in Frank Shockey’s car. When she next saw him about 10:30, he was back at Central Park and Wilson with Shockey, Robert Taylor, Michael Mihaus, and two sisters named Roxanne and Carrie. She left about 11 p.m., and defendant was still there. She also stated that defendant was wearing gray khaki pants and a white sleeveless T-shirt and that none of the people present that evening had motorcycles with them. She admitted talking to an assistant State’s Attorney over the telephone the next day but denied telling him that the last time she had seen defendant on July 25 was at 5:30 p.m.

Roxanne Whited testified for the defense that she saw defendant and others in front of her house on Central from about 10 p.m. to 12:30 a.m. on the evening of July 25; that defendant was there around 11 p.m. when she called her sister Carrie in, and that none of those present had motorcycles.

Frank Shockey testified for the defense that he arrived at Central and Wilson about 8:30 p.m., that evening and that at about 9:30 p.m. defendant left for about 40 minutes to take his girl friend home, but that defendant did not leave again until midnight. Shockey said that defendant was wearing dark baggy pants and a white Dago T-shirt and that he thought Mike Mihaus had his bright orange Kawasaki motorcycle at Central and Wilson that evening.

Defendant testified that at 8:30 or 9 p.m. on July 25, he went alone to Central Park and Wilson. Many friends were there, including Frank Shockey, Mike Brouer, Patsy and Roxie. He was wearing a white sleeveless T-shirt and light-colored khakis. Defendant denied leaving on a motorcycle of any kind, going to Horner Park, having a gun or access to a gun, or firing shots at a car driven by Thomas Jackson. He testified that he had seen Jackson only once before and had no reason to quarrel with him and, although he had seen Richard Sheldon at Roosevelt School, he never had an argument with him. He testified also that he and Okienowski used to go to school together, that “we used to be fairly decent friends. We always talked. Basically, we used to sit right next to each other in Draft Shop” and that nothing had ever occurred between them to cause Okienowski to make his accusations.

William Kopec, an assistant State’s Attorney, testified in rebuttal that on the day after the shooting defendant told him he was with Patsy Cunningham from early evening to midnight on July 25 and with Frank Shockey from 8:30 to 11 p.m. Kopec said he then called the telephone number for Patsy Cunningham by either looking in the telephone book or by using a number given him by someone from her place of employment. The person answering identified herself as Patsy Cunningham and told him that the last time she had seen defendant on July 25 was about 5:15 p.m.

The court denied defendant’s motion for a new trial and found him guilty of armed violence and aggravated battery, “causing great bodily harm to Thomas Jackson by shooting him in the head with a firearm.”

Opinion

Defendant first contends that his guilt was not proved beyond a reasonable doubt, arguing that the testimony of Thomas Okienowski was inconsistent and illogical and that his alibi testimony was corroborated by three witnesses.

We note initially that in a bench trial the credibility of witnesses, the weight to be given to their testimony, and the inferences which may be made therefrom are for the trial court (People v. Pride (1959), 16 Ill. 2d 82, 156 N.E.2d 551; People v. Mays (1980), 81 Ill. App. 3d 1090, 401 N.E.2d 1159), and the reviewing court will not reverse a conviction unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513). Moreover, the testimony of a single witness as to the identification of the accused will suffice to support a conviction where the witness was credible and made a positive identification, even though his testimony is contradicted (People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631), and such testimony is strengthened to the extent of any prior acquaintance with defendant (People v. Lumpkin (1975), 28 Ill. App. 3d 710, 329 N.E.2d 262). Furthermore, where a positive identification has been made, precise consistency on collateral matters is not necessary to establish guilt beyond a reasonable doubt, and the credibility of an eyewitness is not destroyed by minor discrepancies. People v. Mays (1980), 81 Ill. App. 3d 1090, 401 N.E.2d 1159.

Here, Thomas Okienowski testified he twice observed defendant— first, when he was only five feet from the motorcycle as it was driven by him in the well-lighted park, at which time he recognized the passenger as defendant, whom he knew around school as “Little Hugo.” That he knew defendant is supported by the latter’s testimony that he and Okienowski used to be “fairly decent friends,” and that they always talked and sat next to each other in a class at school. Okienowski also testified that after Jackson was shot, he saw the motorcycle and the passenger shooting at them. Defendant was identified as the passenger by Okienowski in a photo identification the next day and also at trial.

Several inconsistencies in Okienowski’s testimony are pointed out by defendant, but we do not believe that they were such as to render his testimony improbable or unsatisfactory. Other than some confusion as to which direction he and Jackson turned onto Manor while chasing defendant and as to whether it was dark or light at the site of the shooting, all other aspects of his testimony are corroborated by the testimony of Sheldon and Jackson. Furthermore, Sheldon, who was only seven feet from the motorcycle in the park, also recognized the passenger as someone he had seen several times before on his way to school and identified defendant in a lineup as the passenger.

Little significance should be attached to defendant’s argument that Okienowski’s failure to inform the police at the scene that he knew defendant seriously affects his credibility, as it appears that Okienowski did mention “Little Hugo” to the police a short time later while at the hospital with Jackson.

While defendant’s testimony that he was elsewhere on the evening in question was corroborated by three witnesses, the trier of fact is not required to accept alibi testimony even if presented by a greater number of witnesses. (People v. Setzke (1961), 22 Ill. 2d 582, 177 N.E.2d 168; People v. Horobecki (1977), 48 Ill. App. 3d 598, 363 N.E.2d 1.) The witnesses giving this testimony were all good friends of defendant and, in addition, the testimony of defendant and Patricia Cunningham that she was with him that evening was contradicted by that of the assistant State’s Attorney, who said that she told him she had last seen defendant on July 25 at 5:15 p.m. In light thereof, we are unable to say that defendant’s guilt was not proved beyond a reasonable doubt.

Defendant next asserts error in the failure of the court to grant him a continuance to obtain the testimony of a necessary witness pursuant to section 114 — 4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 4). A motion for a continuance may be made when a material witness is unavailable, but whether a continuance is granted or denied depends on the particular facts and circumstances surrounding the request. (People v. Arndt (1972), 50 Ill. 2d 390, 280 N.E.2d 230.) Such motions are addressed to the sound discretion of the trial court (Ill. Rev. Stat. 1979, ch. 38, par. 114—(e); People v. Rivera (1978), 64 Ill. App. 3d 49, 380 N.E.2d 1018), and are considered in light of whether failure to grant a continuance impeded preparation of his defense or prejudiced his rights (People v. Solomon (1962), 24 Ill. 2d 586, 182 N.E.2d 736, cert. denied (1962), 371 U.S. 853, 9 L. Ed. 2d 87, 83 S. Ct. 94; People v. Harris (1981), 95 Ill. App. 3d 1, 419 N.E.2d 489).

Here, on the date set for trial, counsel for defendant requested a continuance, stating that he was informed by defendant earlier that morning that Yung Kil Park, a witness essential to the defense, was hospitalized and that without him “we would be in a very bad posture proceeding in this matter.” The State responded that it had four witnesses ready and that the case had been set with subpoenas on prior occasions. The following colloquy then took place:

“COURT: Well, then, why couldn’t we proceed? As long as the State is to — if your intention is to have a trial by the Court, let the State put on their witnesses and we don’t have to try it all in one day, so we can give you a date to bring in your — if it requires putting on any defense witnesses, and you intend to do that, and if you have to bring in anyone we’ll give you another day.
ZIMMERMAN [defense counsel]: The only objection I have to this procedure, Judge, it’s not just in this particular case but I found out from procedure that invariably I learned that I find out something from another witness on cross-examination that I don’t—
COURT: Well, if that happens I’ll let you go on.”

The record reflects that no offer of proof was made at that time as to the testimony of the witness; that no written motion or supporting affidavit was filed pursuant to section 114 — 4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 4(a)); and that no statement or showing was made that the refusal of a continuance interfered with the preparation of the defense pr otherwise prejudiced defendant’s rights. Moreover, the failure to make an offer of proof prevented the State from stipulating to his testimony, as provided in section 114 — 4(b)(3) (Ill. Rev. Stat. 1979, ch. 38, par. 114-4(b)(3)). Under these circumstances, we find no abuse of discretion in the failure to grant a continuance.

Defendant next asserts that the trial court erred in failing to grant him an evidentiary hearing on his motion for rehearing of his motion for new trial based upon newly discovered evidence. According to People v. Baker (1959), 16 Ill. 2d 364, 374, 158 N.E.2d 1, 6, the rule in evaluating newly discovered evidence is as follows:

“To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence.”

Whether to grant or deny a motion for a new trial based on newly discovered evidence is discretionary with the trial court whose ruling will not be disturbed on review absent a showing of manifest abuse. People v. Reese (1973), 54 Ill. 2d 51, 294 N.E.2d 288.

Defendant grounds his motion for a new trial on information allegedly discovered and obtained (a) from an alibi witness (Yung Kil Park) who would testify that he and defendant were together on the evening of July 25 from 8:30 p.m. until 12:15 a.m. and were nowhere near the vicinity of the shooting and (b) from another witness (Rita Jamina) who purportedly would testify that the real offender had indicated to her on the date of sentencing that he was letting defendant take the “rap” for him.

In applying the standards set forth in People v. Baker, we are of the opinion that the trial court did not manifestly abuse its discretion on this issue. Initially, we note that the proposed testimony of Yung Kil Park is cumulative and would not likely have changed the result on retrial since defendant had already presented three alibi witnesses at trial. (See People v. Mitchell (1978), 60 Ill. App. 3d 598, 376 N.E.2d 1036, cert. denied (1979), 440 U.S. 916, 59 L. Ed. 2d 466, 99 S. Ct. 1233.) Furthermore, it appears that his testimony was not newly discovered evidence since the absence of the witness was the basis of the request for a continuance prior to trial and, although defendant was told he would be given the opportunity to call the witness on a later date, the record discloses that he failed to do so.

The purported testimony of Rita Jamina is hearsay concerning which, as the trial court recognized, “It has long been the general rule that ‘extrajudicial declarations of a third party, not made under oath, that he committed the crime, are purely hearsay, and even though they are declarations against interest, are inadmissible’ (People v. Lettrich (1952), 413 Ill. 172, 178, 108 N.E.2d 488, 491.)” (People v. Black (1980), 80 Ill. App. 3d 116, 120, 399 N.E.2d 647, 650.) However, the supreme court stated that this rule should not be applied mechanically and suggested that four factors be considered in determining the trustworthiness of the third-party declaration. (Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038.) Those factors are whether the statement was made in a spontaneous manner to a close acquaintance a short while after the crime; whether the statement was corroborated by other evidence; whether the statement was, in fact, against the declarant’s interest; and whether the declarant was available for cross-examination. (410 U.S. 284, 300-01, 35 L. Ed. 2d 297, 311-12, 93 S. Ct. 1038, 1048-49.) Illinois courts have excluded statements as hearsay where any one or more of these factors has been absent. (People v. Foster (1978), 66 Ill. App. 3d 292, 383 N.E.2d 788.) Here, there was no representation that the declarant was or would be available for cross-examination, and there was no assertion that it was made spontaneously shortly after the crime; in fact, it was apparently made quite some time after the crime. Additionally, it was also not corroborated by other evidence. We are of the opinion, therefore, that the trial court did not abuse its discretion in the refusal of an evidentiary hearing on the motion to reconsider.

Defendant also argues that a proper foundation was not established for the telephone conversation between Patricia Cunningham and assistant State’s Attorney, William Kopec. “The rule is that telephone conversations, the substance of which is relevant and material to the issues, are competent provided the identity of the person with whom the conversation was had is established by direct evidence or facts and circumstances.” People v. Nichols (1941), 378 Ill. 487, 490, 38 N.E.2d 766, 767.

Assistant State’s Attorney Kopec testified in rebuttal that defendant told him he was with Patricia Cunningham from early afternoon until midnight on the evening of the shooting. Although defendant did not know her telephone number, he told Kopec where she worked. Kopec called that restaurant and then called her home number by using a number he got either from the restaurant or by looking up a Cunningham that lived on the street where she was supposed to live. He said that the person who answered the telephone identified herself as Patricia Cunningham and told him she knew Max Petrovic and had seen him the day before. Patricia Cunningham had previously testified to a conversation with an assistant State’s Attorney who called her on the telephone at home on the evening of July 26, 1979. In light thereof, we believe a sufficient foundation was laid for the telephone conversation.

Defendant also suggests that the admission of the telephone conversation constituted grave error because there was confusion with respect to which dates the parties were referring. He specifically calls attention to the following answer by William Kopec as it appears in the record:

“A. I asked her if she saw Max Petrovic or was with Max Petrovic one day before the 25th of July, 1979 #

We find no merit in this assertion since the date of the conversation and of the shooting had already been clearly established at the beginning of Kopec’s testimony and because it is unclear whether a comma ought to have been inserted in the record after the word “before” to reflect the fact that Kopec was referring to the conversation of July 26.

Defendant’s final contention is that the imposition of the sentence for armed violence was improper. Defendant relies on the recent Illinois Supreme Court decision, People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, which prohibited double enhancement under the armed violence statute.

Armed violence is defined as the commission of a felony while armed with a dangerous weapon (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2), and section 12 — 4(b)(1) of the Criminal Code of 1961 provides that a person who uses a deadly weapon in the commission of a battery commits aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)).

At the close of the trial, the court concluded that it was not satisfied beyond a reasonable doubt that there was an attempt to kill but was convinced that defendant was guilty of the crime of aggravated battery, “causing great bodily harm to Thomas Jackson by shooting him in the head with a firearm” and that he was guilty of armed violence in that defendant, “while armed with a dangerous weapon, intentionally and knowingly without legal justification caused bodily harm to Thomas Jackson by shooting him with a firearm.” In the court’s order of sentence and commitment, the two counts of aggravated battery were merged and defendant was sentenced to six years for armed violence and a concurrent three years for aggravated battery.

Initially, it appears that the trial court correctly merged the aggravated battery count based on great bodily harm (par. 12 — 4(a)) into the aggravated battery count based on use of a deadly weapon (par. 12 — 4(b)) in sentencing defendant. The shot which blinded Thomas Jackson was the same shot which served as the basis for both counts of aggravated battery and, furthermore, the count of aggravated battery based on great bodily harm also resulted from the use of the deadly weapon.

In People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, the defendant was charged with armed violence, the underlying felony of which was aggravated battery based on use of a deadly weapon. In reviewing the language of the armed violence statute, the court concluded that the General Assembly did not intend that the presence of a weapon should serve to enhance a misdemeanor to a felony and also serve as the basis of a charge of armed violence. It concluded, therefore, that the armed violence statute requires a predicate offense which is a felony without enhancement through the presence of a weapon and, consequently, dismissed the armed violence count.

In this case, as in Harón, the enhancement of the offense of battery to aggravated battery was based on the use of a deadly weapon, and the presence of the weapon also served as the basis for the armed violence charge. Thus, the armed violence conviction and sentence imposed thereon was improper.

With regard to sentencing, defendant also contends that the armed violence statute is unconstitutional. In the instant case, because we have found that defendant was improperly convicted under the statute, it will not be necessary to address the constitutionality question.

For the reasons stated, defendant’s conviction for armed violence is reversed and his sentence vacated, and the conviction and sentence for aggravated battery is affirmed.

Affirmed in part; reversed in part.

LORENZ and WILSON, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE CITY OF CHICAGO, Plaintiff-Appellee, v. SCANDIA BOOKS, INC., et al., Defendants-Appellants.
    First District (4th Division)
    No. 80-2313
    Opinion filed November 12, 1981.
    Rehearing denied December 29, 1981.

      Adam Bourgeois and Michael Null, both of Chicago, for appellants.

      Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Maureen J. Kelly, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendants appeal from the order for a permanent injunction issued by the circuit court restraining them from operating or permitting the operation of an adult bookstore as defined in the Chicago Adult Use Ordinance (Ordinance) (Municipal Code of the City of Chicago 1977, ch. 194C, §§2, 3, 4.1(4)).

On appeal, defendants present the following issues for review: (1) whether chapter 194C of the Municipal Code of the City of Chicago or, in the alternative, section 3A thereof, is unconstitutionally vague and indefinite so as to violate the due process clauses of the Illinois and the United States constitutions; (2) whether the trial court’s order of January 23,1981, amending its order of August 20,1980, is void as being an invalid exercise of judicial authority; and (3) whether the trial court erred by granting a permanent injunction against defendants. We affirm.

On September 24,1979, the City of Chicago (City) filed a complaint for injunctive and other relief against defendants. The complaint alleged that Scandia Books, Inc., doing business as Broadway Book Shop, located at 3120-22 North Broadway, was doing business as an adult bookstore within the definitions of sections 3A, 3E, and 3F of the Ordinance. The City prayed for a preliminary injunction and permanent injunction to enjoin defendants from operating and maintaining an adult bookstore in any zoning district other than a C-2 zoning district. Municipal Code of the City of Chicago 1977, ch. 194C, §4.1(4).

On October 19, 1979, defendants filed a motion to dismiss. On December 18, 1979, after a hearing, plaintiff’s motion for a preliminary injunction was denied. On March 25, 1980, the court denied defendants’ motion for dismissal.

On August 13, 1980, an evidentiary hearing was held on plaintiff’s motion for a permanent injunction. At that hearing, Harry Manley, the zoning administrator for the city of Chicago, testified that the zoning for the property in question is B4-4, and that the zoning for an adult use is C-2 commercial district.

Thomas Bohling, a policeman for the Chicago Police Department, testified that on August 24,1979, he visited Scandia-Broadway Book Shop at 3120-22 North Broadway. He observed magazines in racks along the walls in the store. Arthur Martinez was working as a clerk at the store. At the entrance to the bookstore, magazines such as Time, Life and Newsweek were displayed. As the witness walked through the store, the magazines on display depicted human nudity and sex acts between human beings. After browsing through several magazines, Bohling selected one of the sex-illustrated magazines, Hustler. When he attempted to pay for the magazine, Martinez refused his money. Bohling gave him a receipt for the magazine. The magazine was admitted into evidence over defendants’ objection.

In an affidavit attached to plaintiff’s complaint, Officer Bohling stated that on August 27, 1979, he issued a complaint against Arthur Martinez, employee of Scandia Books, Inc., owner of Broadway Book Shop. The complaint alleged a violation of the Ordinance (Municipal Code of the City of Chicago 1977, ch. 194C, §4.1(4)), which provides that no adult use shall be located in any zoning district except a C-2 zoned area. Subsequently, on August 29,1979, Bohling arrested Martinez, charging him with a violation of the obscenity statute (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 20(a)(1)).

Robert Eggert testified that he is a police officer of the city of Chicago, and that he was sent to investigate the bookstore in question in June 1980. The store was divided into two parts by a swinging door and a counter. The front area of the store has racks containing magazines such as Time and Life, and Bibles and paperback books. In the back area, there were rubber paraphernalia, magazines and books pertaining to sexual acts between members of the same sex and the opposite sex. On June 13, 1980, Officer Eggert returned to the bookstore to have an evidence technician take pictures of the interior of the store. Those photos were taken with the cooperation of the office of the corporation counsel and Adam Bourgeois, attorney for defendants.

Eggert identified photo group exhibit 2 as a depiction of the front part of the store on June 13, 1980. Photo group exhibit 1 showed the outside of the store front and the entrance. Photo group exhibit 3 was identified by Eggert as the back area of the bookstore. The photos showed the different booths which contained adult films, the south wall with books on lesbianism, and the area where rubber products are displayed.

On redirect examination, Eggert indicated that the peep show he viewed portrayed a female and a male engaged in intercourse. Two peep shows per booth were offered at the bookstore and there were six booths.

The defense presented Arthur Martinez as their witness. He testified that on August 15, 1979, he was the manager of the Scandia Book Shop. He also stated that exhibit 2 did not accurately portray the store as it existed in August 1979. In the front section of the store were popular titles and in the rear, the store was being remodeled. Martinez indicated that during the months of August and September 1979,20 to 25 percent of the bookstore material was adult material.

On cross-examination, Martinez indicated that during August and September 1979, the store had about 125 pieces of film depicting sexual activities, and the floor area used to display condoms and other sex-related materials consisted of approximately 30 square feet.

The trial court ruled that the regulated uses of the Ordinance had been violated and enjoined further use of the premises as an adult bookstore.

On December 10, 1980, plaintiff filed a petition for a rule to show cause, claiming that defendants were in violation of the court’s order for injunction. On January 23, 1981, a hearing was held on this petition. At issue was the meaning of the definition of an adult bookstore as defined in the Ordinance (Municipal Code of the City of Chicago 1977, ch. 194C, §3A). The trial court explained its order of August 20,1980, and restrained defendants from exhibiting for sale or selling all books, magazines or films depicting, describing or relating to specified sexual activities or specified anatomical areas.

It is from the orders of August 20, 1980, and January 23, 1981, that defendants appeal.

Defendants contend the Ordinance (Municipal Code of the City of Chicago 1977, ch. 194C, §3A) is so vague and indefinite as to violate the due process clause of both the United States Constitution and the Illinois Constitution. Furthermore, in section 3A, the words, “substantial” and “significant” do not reveal what quantity of adult materials may be sold in order to fit within the definition of an adult bookstore.

Section 3A of the Ordinance provides:

“Section 3. Definitions.
A. Adult Book Stores. An establishment having as a substantial or significant portion of its stock in trade, books, magazines, films for sale or viewing on premises by use of Motion Picture devices or any other coin-operated means, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to ‘Specified Sexual Activities,’ or ‘Specified Anatomical Areas,’ or an establishment with a segment or section devoted to the sale or display of such material.”

Moreover, defendants argue, the laws regulating speech protected by the first amendment should be narrowly drawn and measured by stricter standards.

The test for an ordinance which affects first amendment rights was succinctly stated in United States v. O’Brien (1968), 391 U.S. 367, 377, 20 L. Ed. 2d 672, 680, 88 S. Ct. 1673, 1679:

“[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

Applying this test to the instant case, we hold that the right of the City to reasonably regulate and restrict the location of certain uses, whether business, residential or industrial, is clear. (Village of Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114.) Further, the ordinance in question was enacted by the City to deter the decrease in property values, increase in crime, neighborhood decline, and the adverse effect on business and residential districts caused by the influx of adult bookstore businesses. The primary control or regulation of the Ordinance is the prevention of concentration of these kinds of uses (adult) in any one area. Chicago has provided that no adult use shall be located within 1000 feet of any zoning district which is zoned for residential use. (Municipal Code of the City of Chicago 1977, ch. 194C, §4.1(2).) Thus, the restriction on first amendment freedoms is no greater than is necessary to further Chicago’s interest in the protection of its citizenry and neighborhoods.

In support of their claim that the provision of the Ordinance which defines adult bookstores is vague, defendants point to the words, “substantial or significant” as being unconstitutionally vague. We find defendants’ argument without merit. The word, “substantial” as used in the definition of adult bookstores is not so indefinite as to render the Ordinance void and unenforceable. That term has been construed as having an ascertainable meaning in numerous statutory schemes. (See Roop v. Richardson (W.D. Va. 1971), 324 F. Supp. 1130; State ex rel. Saveland Park Holding Corp. v. Wieland (1955), 269 Wis. 262, 69 N.W.2d 217.) Additionally, the definition of an adult bookstore in the Ordinance includes an establishment with a segment or section devoted to the sale or display of adult material. Clearly, the record shows that defendants’ bookstore contained a section devoted to the sale or display of adult material.

We cannot say that the Ordinance is so vague as to violate the due process clause of the Illinois or the United States constitutions. The language in question gave defendants a sufficiently definite warning and fair notice as to the forbidden conduct regulated by the Ordinance. See Young v. American Mini Theatres, Inc. (1976), 427 U.S. 50, 49 L. Ed. 2d 310, 96 S. Ct. 2440.

Defendants next contend that the trial judge’s order of January 23, 1981, amending its order of August 20, 1980, was an invalid exercise of judicial authority and must be held as void. Plaintiff maintains that the trial judge’s order of January 23, 1981, is not properly before this court. Hence, plaintiff contends the appellate court has jurisdiction to review only those questions which were present on the record as it existed on the date when the notice of appeal was filed — August 20, 1980. Plaintiff is correct in this assertion (see City of Chicago v. Myers (1967), 37 Ill. 2d 470, 472-73, 227 N.E.2d 760, 762). However, we will address defendants’ contention because it is generally accepted that a notice of appeal is to be liberally construed. Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433, 394 N.E.2d 380, 382.

It is undisputed that upon filing a notice of appeal, the circuit court is divested of jurisdiction to enter any order involving a matter of substance, and the jurisdiction of the appellate court attaches instanter. (Rickard v. Pozdal (1975), 31 Ill. App. 3d 542, 545, 334 N.E.2d 288, 291.) Of course, once the jurisdiction of the appellate court attaches by reason of the filing of a notice of appeal, the trial court is without jurisdiction to take any further action insofar as the notice of appeal affects the subject that the trial court might seek to act upon. (Cygnar v. Martin-Trigona (1975), 26 Ill. App. 3d 291, 293, 325 N.E.2d 76, 78.) However, the trial court retains jurisdiction to hear and determine matters arising independent of and unrelated to that portion of the proceeding that pends on appeal. (MartinTrigona, at 293), and purely collateral or supplemental matters are left under the control of the trial court (Southland Corp. v. Village of Hoffman Estates (1970), 130 Ill. App. 2d 311, 316, 264 N.E.2d 451, 455.) Further, while an appeal is pending, the trial court may amend the record to correct matters of inadvertence or mistake, but it is denied the power to remedy defects of substance which would make it a new case. Southland Corp., at 315-16.

We believe the above authorities establish that a trial court’s post-appeal jurisdiction is not completely abrogated by the filing of a notice of appeal. We are of the opinion that the trial judge’s order of January 23, 1981, was merely explanatory and was not a change of substance that would present a new case to this court. Therefore, we reject defendants’ argument that the trial judge’s order is void.

Defendants contend there was not sufficient evidence presented at trial to grant a permanent injunction. First, defendants assert that the trial judge erroneously allowed Hustler magazine to be admitted into evidence. It has been established that objects are subject to seizure and may be introduced into evidence if these objects fall in plain view of an officer who has a right to be in a place where he has such a view. (Harris v. United States (1968), 390 U.S. 234, 236, 19 L. Ed. 2d 1067, 1069, 88 S. Ct. 992, 993.) Accordingly, commercial premises which are open to the public may be reasonably inspected in many more situations than private homes. (United States v. Golden (4th Cir. 1969), 413 F.2d 1010, 1011.) Officer Bohling entered the bookstore and attempted to purchase Hustler magazine, which was no more than an ordinary customer would do. The store was open to the public; thus, the officer had a right to be there and could seize items that were in plain view.

Finally, defendants assert that the admission of the June 13, 1980, photographs depicting the interior of the bookstore was clearly erroneous because those photographs did not accurately reflect the interior of the bookstore as of September 1979.

The admissibility of photographs has been held to be within the sound discretion of the trial court. (Casson v. Nash (1977), 54 Ill. App. 3d 783, 796, 370 N.E.2d 564, 574.) In order for a photograph to be admitted into evidence, it is necessary that the photograph be identified by a witness as a portrayal of certain facts relevant to a particular issue and be verified by such witness on personal knowledge as a correct representation of these facts. (Nash, at 795.) Verification may be furnished by the testimony of any competent witness who has sufficient knowledge to testify that the photograph fairly represents what it purports to portray. (Nash, at 795.) Officer Bohling’s testimony verified that the June 13,1980, photographs were a fair and accurate depiction of the store as he observed it in August 1979 except for the construction work that was occurring in August.

Further, where the appearance and condition of inanimate objects are sought to be shown at a certain time, photographs taken after a material change in such appearance and condition are generally inadmissible. (Nash, at 795.) However, this does not mean that the situation or condition must be precisely the same. The photographs are admissible if the condition is substantially unchanged or if, as here, the things sought to be shown by the photograph remain truthfully represented, or if the photograph is satisfactorily shown to be such an accurate representation that it is immaterial when the photograph was taken. Nash, at 795.

After carefully examining the record, we hold that the trial judge did not err by admitting Hustler magazine into evidence, and he did not abuse his discretion by admitting the photographs into evidence. Accordingly, the issuance of the permanent injunction is upheld.

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

Judgment affirmed.

ROMITI, P. J, and LINN, J, concur.


author: JUSTICE JIG ANTI

text:
    GATEWAY ERECTORS DIVISION OF IMOCO-GATEWAY CORP., Plaintiff, v. LUTHERAN GENERAL HOSPITAL et al., Defendants.—(INTERNATIONAL CONCRETE CORP., Defendant and Third-Party Plaintiff-Appellant, v. MORSE/DIESEL, INC., Third-Party Defendant-Appellee.)
    First District (4th Division)
    No. 80-2752
    Opinion filed November 12, 1981.
    Rehearing denied December 22, 1981.
    Wildman, Harrold, Allen & Dixon, of Chicago (Robert E. Kehoe, Jr., of counsel), for appellant.
    Barnett and Beigel, Ltd., of Chicago (Harvey J. Barnett, of counsel), for appellee.
   JUSTICE JIG ANTI

delivered the opinion of the court:

Lutheran General Hospital constructed a building on its property in Park Ridge. It contracted with Morse/Diesel, Inc. to act as its construction manager. Lutheran also contracted with International Concrete Corporation (International) to furnish and install the reinforced concrete system for the building. International in turn subcontracted a portion of that work to Gateway Erectors Division of Imoco-Gateway Corp. (Gateway). Gateway began this litigation by bringing a mechanics’ lien claim against Lutheran and others. Lutheran in turn brought an action against International alleging that International breached its contract because the work performed was defective. All of these facts provide a background and are on the periphery of this appeal. This appeal specifically involves International’s action in turn against Morse/Diesel, Lutheran’s construction manager. Count I of International’s action sounds in tort and alleges that Morse/Diesel negligently directed International to proceed with the concrete work and carelessly failed to supervise Gateway’s work. Count II alleged that Morse/Diesel owed contractual duties to International on the contract between Morse/Diesel and Lutheran and that Morse/Diesel was in breach of that contract. The trial court dismissed both counts of the complaint.

Considering first the tort action alleged in count I, Morse/Diesel asserts that the heart of its position is that at all times it was an agent of International. It contends that since it was the agent of International and acting within the scope of its agency it is not liable for its torts. Morse/Diesel concedes that an agent may be liable for independent torts committed within the scope of its agency. For the reasons that follow, we believe that the agency between Morse/Diesel and Lutheran does not affect its tort liability and, further, that the case law shows that the allegations in International's complaint against Morse/Diesel present an independent tort.

In Baird v. Shipman (1890), 132 Ill. 16, 18, 23 N.E. 384, the court said:

0 ° It is not [the agent’s] contract with the principal which exposes him to or protects him from liability to third persons, but his common law obligation to so use that which he controls as not to injure another. That obligation is neither increased nor diminished by his entrance upon the duties of agency, nor can its breach be excused by the plea that his principal is chargeable. [Citation.]
If the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts * *

It has also been stated that “[i]f a servant owes a duty to a third person because of a contract with his master, there is no reason why he should not be liable for injury caused by its nonperformance.” (Annot., 20 A.L.R. 97, 99 (1922).) The Restatement (Second) of Agency takes the position that:

“An agent who does an act otherwise a tort is not relieved from liability by the fact that he acted at the command of the principal or on account of the principal * * Restatement (Second) of Agency §343 (1958).

The law is abundantly clear, therefore, that the appropriate inquiry does not concern whether Morse/Diesel is an agent but rather whether Morse/Diesel owes any duty to International. International cites two cases as persuasive authority that there is a duty on the part of a construction manager, to the contractor on the job under similar circumstances. In Normoyle-Berg & Associates, Inc. v. Village of Deer Creek (1976), 39 Ill. App. 3d 744, 350 N.E.2d 559, the plaintiff contracted with the Village of Deer Creek to act as a general contractor on a sewer construction project. The defendant agreed to serve as the engineer on the project with the duty of supervising the construction. There was no contract between the plaintiff and the defendant. The plaintiff general contractor brought an action against the defendant engineer as supervisor of construction alleging that the engineer had acted negligently in failing to have the project properly staked, failing to give timely responses to requests for instructions, and failing to complete the details of the plans and similar acts which resulted in extra expenses for the plaintiff general contractor. The court in reversing the dismissal of the complaint stated that “a supervising engineer owes a duty to a general contractor to avoid negligently causing extra expenses for the contractor in the completion of a construction project.” (Normoyle-Berg, 39 Ill. App. 3d 744, 746, 350 N.E.2d 559, 561.) A similar result was reached relying on TV ormoyle-Berg in the case of W. H. Lyman Construction Co. v. Village of Gurnee (1980), 84 Ill. App. 3d 28, 403 N.E.2d 1325. See Prosser, Torts §92, at 614 (4th ed. 1971).

Count I of the complaint alleges a similar duty on behalf of Morse/ Diesel to International and therefore states a cause of action against Morse/Diesel in tort. The dismissal of count I is reversed and the cause is remanded.

Count II pleads that Morse/Diesel is liable on the contract between International and Lutheran. The general proposition is that an agent for a disclosed principal is not liable for the nonperformance of the contract. International concedes the proposition but states that there are exceptions. The first stated exception is that a disclosed agent is liable if he takes an active part in violating any duty the principal owes to the contracting party. International argues that Morse/Diesel was directly involved in the contract breach in question because the contract expressly refers to many tasks that are to be carried out by Morse/Diesel itself and Morse/Diesel failed to fulfill those obligations. To support that allegation International cites Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 394 N.E.2d 1273. Grover states that a disclosed agent is liable if he takes an active part in violating any duty the principal owes to the contracting party. International does not argue the particular facts of Grover as applicable to this situation. It only argues the general proposition of law and states, as we indicated before, that Morse/Diesel is directly involved in the breach of contract because of the tasks that were carried out by Morse/Diesel itself and that Morse/Diesel failed to fulfill those obligations.

We find that the proposition of law stated by the plaintiff that a disclosed agent incurs liability on the contract if he actively participates in violating a duty owed by the principal to a contracting party to be inconsistent with Chicago Title & Trust Co. v. De Lasaux (1929), 336 Ill. 522, 168 N.E. 640, and with section 320 of the Restatement of Agency (Restatement (Second) of Agency §320 (1958)). Furthermore, we find no stated rationale for such a theory in contract. The proposition relied on by International was stated in Grover, which relied on Landau v. Landau (1951), 409 Ill. 556, 101 N.E.2d 103, where the court stated “an agent is not liable for the acts of a disclosed principal, unless he takes some active part in violating some duty the principal owes to a third person.” (Landau, 409 Ill. 556, 564, 101 N.E.2d 103, 108.) Landau does not involve a contract. It deals with the fiduciary relationship that an agent of a successor trustee owes to a third party. Landau cites De Lasaux and the Restatement of Agency. De Lasaux says that the agent of a disclosed principal “is not liable on the contract unless he agrees to become personally liable.” (De Lasaux, 336 Ill. 522, 526, 168 N.E. 640, 642.) De Lasaux does not support the proposition that an agent is liable on a contract with a disclosed principal where the agent takes an active part in violating a duty the principal owes to a third person. Nor does section 320 of the Restatement (Second) of Agency support that concept. It says, “Unless otherwise agreed, a person making or purporting to make a contract with another as agent for a disclosed principal does not become a party to the contract.” Section 328 of the Restatement (Second) of Agency states that an agent is not liable for the nonperformance of the contract.

Morse/Diesel was the agent of a disclosed principal and did not agree to become personally liable under the contract. Consequently, it is not personally liable on a contract theory.

International cites two other grounds for imposing contractual liability. It states that a disclosed principal is personally liable if, by reasonable inference, his agreement to be personally liable can be implied. International notes a portion of the contract which provides that International agrees to be bound to Morse/Diesel by the terms of the contract documents and to assume toward Morse/Diesel all obligations and responsibilities that International assumes toward Lutheran. The principle is well stated in the previously quoted Restatement of Agency, section 320, that an agent of a disclosed principal is not a party to the contract and section 328 states that an agent for a disclosed principal is not liable for its nonperformance. There is nothing asserted in the pleadings that would support an inference that there was any personal agreement on the part of Morse/Diesel to become a party to the contract.

International’s third and last argument in support of its contention that Morse/Diesel is responsible on the contract theory is that the disclosure of the agency may be merely descriptio personae, meaning that the reference to Morse/Diesel as “agent” was merely a description and in essence the entire contract was that of Morse/Diesel. The contract clearly and unambiguously shows that it was Lutheran’s contract and that Morse/ Diesel was merely acting as its agent. We do not believe International’s position can be sustained.

The dismissal of count I, on the theory of tort, is reversed and remanded. The dismissal of count II is affirmed.

Affirmed in part, reversed in part and remanded.

JOHNSON and LINN, JJ., concur.