author: JUSTICE McNAMARA PRESIDING JUSTICE RIZZI,

text:
    THE CHICAGO PARK DISTRICT, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (3rd Division)
    No. 84—450
    Opinion filed August 29, 1984.

      RIZZI, P.J., dissenting.
    Rick Halprin, of Chicago, for appellant.
    James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan and Philip L. Bronstein, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Chicago Park District (Park District) filed this action against defendant city of Chicago (the city), seeking a declaratory judgment that the Chicago boat-mooring tax was unconstitutional. On the Park District’s motion for a temporary restraining order and preliminary injunction to prevent the city from collecting the tax, the trial court ruled that the Park District did not have standing to sue, and did not demonstrate irreparable harm or a likelihood of success on .the merits. Following the denial of its motion, the Park District brings this interlocutory appeal.

In December 1983, the Chicago city council enacted chapter 200.8, the Chicago boat-mooring tax, requiring all persons who moor or dock watercraft in any body of water within the city’s corporate limits to pay a tax to the city. The tax, at a rate of 50% of the mooring or docking fee, is due on March 1 of each year for permits issued that year. The Park District controls eight harbor facilities providing moorings for approximately 7,200 boats. Each person issued a mooring permit by the Park District must pay the boat-mooring tax directly to the city. Additional moorings within the city limits, not controlled by the Park District, are also covered by the boat-mooring tax.

Following the adoption of the tax, the Park District filed suit alleging that the city’s ordinance is an unconstitutional interference with its grant of authority from the State to provide recreational harbors at a reasonable fee. At a hearing on February 17, 1984, the trial court denied the Park District’s motion for a temporary restraining order. On February 24, 1984, the court dénied the Park District’s motion for a preliminary injunction.

On appeal, the Park District contends that the trial court erred in denying its motion for a preliminary injunction because the State statutory scheme regulating recreational harbors preempts the city from enacting its own legislation under its home rule authority and the State legislation removes recreational harbors from the government and affairs of the city. The Park District also argues that it has standing to sue, and that the tax is in effect a regulatory measure which impermissibly burdens the Park District.

Initially, the city maintains that the appeal is moot because the trial court, on its own motion, has enjoined the city from collecting the mooring tax. We find, however, that since the preliminary injunction may be dissolved at any time before a final determination on the merits of the Park District’s cause of action, the appeal of the denial of the preliminary injunction is not moot.

We next address the trial court’s finding that the Park District did not have standing to sue. Section 2 — 701 of the Illinois Code of Civil Procedure allows the court to make a binding declaration of a party’s rights where an actual controversy exists. (Ill. Rev. Stat. 1983, ch. 110, par. 2—701; Exchange National Bank v. County of Cook (1955), 6 Ill. 2d 419, 129 N.E.2d 1.) A plaintiff has standing where he has a real interest in the subject matter of the controversy. (City of West Chicago v. County of Du Page (1979), 67 Ill. App. 3d 924, 385 N.E.2d 826.) The plaintiff must allege a direct injury to his rights and not merely that he will suffer in some indefinite way. Dolnick v. Redmond (1972), 4 Ill. App. 3d 1037, 283 N.E.2d 113.

In its complaint, the Park District alleges it has plenary authority over recreational harbors; that it has issued revenue bonds pursuant to its authority; that the boat-mooring tax interferes with its bond contracts and regulatory functions; and that the tax will cause an irreplaceable loss of boaters affecting its revenues. These allegations demonstrate a real interest in the subject matter of the controversy. Although the Park District is not required to pay or collect the tax, the impact of the tax on mooring benefit holders directly injures the District and its revenue planning. The Park District has standing to challenge the tax.

The trial court also found that the Park District had not shown an irreparable injury or the probability of success on the merits to warrant a preliminary injunction.

A preliminary injunction may be granted where the plaintiff demonstrates that there is no adequate remedy at law and that he will be irreparably harmed if the injunction is not granted; that the threatened harm to him is immediate, certain and great while the inconvenience to the opposing party is small; that he has a reasonable likelihood of success on the merits; and that granting the preliminary injunction will not have an injurious effect on the general public. (McCormick v. Empire Accounts Service, Inc. (1977), 49 Ill. App. 3d 415, 364 N.E.2d 420; Professional Business Management, Inc. v. Clark (1967), 83 Ill. App. 2d 236, 227 N.E.2d 371.) Our review is limited to whether the trial court abused its discretion in denying the requested injunction. Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 229 N.E.2d 536; Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 377 N.E.2d 1125.

In view of our belief that the Park District has not shown probable success on the issue of the constitutionality of the boat-mooring tax, we deem it unnecessary to consider the Park District’s claim that it has demonstrated irreparable harm.

While recognizing the city’s home rule power to tax, the Park District maintains that State law preempts the field of recreational harbors preventing the city from imposing its mooring tax. The Park District argues that the legislature has expressed an exclusive State interest' in recreational harbors through comprehensive legislation and that such action by the State removes recreational harbors from the government and affairs of the city.

Article VII, section 6(a), of the Illinois Constitution grants to home rule units the power to tax in those areas pertaining to its government and affairs. (Ill. Const. 1970, art. VII, sec. 6(a).) The taxing power is to be construed liberally (Ill. Const. 1970, art. VII, sec. 6(m); Mulligan v. Dunne (1975), 61 Ill. 2d 544, 338 N.E.2d 6), but is not without limitation. The General Assembly may deny or limit a home rule unit’s power to tax by a three-fifths vote of its members. Ill. Const. 1970, art. VII, sec. 6(g); Mulligan v. Dunne (1975), 61 Ill. 2d 544, 338 N.E.2d 6; compare Hutchcraft Van Service, Inc. v. City of Urbana Human Relations Com. (1982), 104 Ill. App. 3d 817, 433 N.E.2d 329.

The Park District, relying on its grant of authority to build, finance and regulate harbors, urges that the city is specifically precluded from any governmental participation in recreational harbors. A similar argument was presented to our supreme court in Mulligan v. Dunne (1975), 61 Ill. 2d 544, 338 N.E.2d 6, and Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 357 N.E.2d 1118. In Mulligan, plaintiffs contested the Cook County liquor tax, arguing that the State had preempted the area by its extensive regulation of the liquor industry. Similarly, plaintiffs in Town of Cicero argued that extensive regulation by the State in the field of horse racing precluded the municipality from imposing an amusement tax on horse racing events. In both cases the supreme court recognized a distinction between the power to regulate and the power to tax and held that extensive regulation did not preempt the power to tax. (See Greater Chicago Indoor Tennis Clubs, Inc. v. Village of Willowbrook (1976), 63 Ill. 2d 400, 349 N.E.2d 3.) Likewise, we hold in the present case that extensive regulation did not preclude the city from imposing a tax.

We also reject the Park District’s contention that recreational harbors are not within the government and affairs of the city. The Park District refers us to only one case in which a home rule unit tax was struck down. In Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 338 N.E.2d 15, the court invalidated a Cook County law library tax assessed against all parties in civil court actions. Central to that decision was the pervasive State interest in the courts mandated by the constitution. In construing Ampersand in a later case, the court said, “Ampersand merely reflects a longstanding principle that governmental bodies must operate subject to constitutional restraints ***.” Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 20, 338 N.E.2d 15; see Board of Education v. City of Peoria (1979), 76 Ill. 2d 469, 394 N.E.2d 399 (home rule unit may not impose tax on school district where State has constitutional power over schools).

The Park District also points to two statutes in its attempt to establish a pervasive State interest which removes recreational harbors from the government and affairs of the city. Section 26 of “An Act in relation to the regulation of the rivers, lakes and streams of the State of Illinois” provides that nothing in the Act shall be construed to impair the rights of Illinois citizens to enjoy such bodies of water. (Ill. Rev. Stat. 1983, ch. 19, par. 73.) Section 26.3(g) of “An Act in relation to *** the Chicago Park District” authorizes the Park District to establish and collect fees for all harbor facilities. (Ill. Rev. Stat. 1983, ch. 105, par. 333.23n(g).) However, neither of these provisions reflect a statewide constitutional interest in recreational harbors, such that the city may not impose its home rule power to tax.

We find no merit in the Park District’s argument that the mooring tax is not a tax but a usurpation of its authority to set fees for recreational harbors. The mooring tax in no way regulates access to recreational harbors, but appears to be strictly a revenue measure. While every tax on an activity increases the ultimate cost of that activity to the consumer, this factor does not change the tax from a revenue measure to a regulatory measure.

Relying on Board of Education v. City of Peoria (1979), 76 Ill. 2d 469, 394 N.E.2d 399, the Park District urges us to find that the 50% mooring tax imposes an unreasonable burden upon it. According to the Park District, the supreme court upheld Peoria’s 2% liquor and food sales tax because it was incidental, while this court should find the mooring tax invalid because a 50% tax is not incidental. From our reading of the City of Peoria case, the court was referring to the burden of collecting the tax, not to the amount of the tax. In the case before us, the city has not imposed any burden on the Park District to collect its mooring tax.

We hold that the trial court did not abuse its discretion in denying the Park District’s motion for a preliminary .injunction since the Park District did not demonstrate a reasonable likelihood of success on the merits.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

WHITE, J., concurs.

PRESIDING JUSTICE RIZZI,

dissenting:

I concur in the majority opinion to the extent that it holds that the appeal is not moot, that the Park District has standing to sue, and that the city, as a home rule unit, has the power to impose the tax at issue here. However, I disagree with the conclusion of the majority that the Park District has failed to show that it is entitled to the issuance of a preliminary injunction. Accordingly, I would reverse the order of the trial court denying the issuance of a preliminary injunction, and remand the case for the entry of a preliminary injunction and further proceedings to determine whether a declaratory judgment that the Chicago boat-mooring tax is unconstitutional should be entered in favor of the Park District.

In order to obtain a preliminary injunction, the movant must establish irreparable injury and the likelihood of success on the merits. Likelihood of success on the merits does not mean a showing which will in all events warrant relief in the final hearing. Rather, it means that the movant must demonstrate that he is probably entitled to the relief prayed for if the proof should sustain his allegations. In addition, the movant must establish that the granting of the preliminary relief outweighs any possible injury which the opposing party might suffer by its issuance. (The Packaging House, Inc. v. Hoffman (1983), 114 Ill. App. 3d 284, 287, 448 N.E.2d 947, 949; Booth v. Greber (1977), 48 Ill. App. 3d 213, 217, 363 N.E.2d 6, 9.) Finally, there must be no adequate remedy at law. Best Coin-Op, Inc. v. Old Willow Falls Condominium Association (1983), 120 Ill. App. 3d 830, 834, 458 N.E.2d 998, 1001.

I believe that the Park District has adequately demonstrated that it will be irreparably harmed by the city’s boat-mooring tax, which imposes upon any watercraft moored or docked in the Park District’s harbor system a tax equal to 50% of the fee charged by the Park District. Although the tax is imposed on those who dock and moor their vessels and not on the Park District itself, I believe that the record sufficiently establishes that the 50% tax will unconstitutionally usurp the Park District’s fee authority and unreasonably interfere with its statutory obligation to provide harbors for the recreational use and benefit of the public. See Ill. Rev. Stat. 1983, ch. 105, par. 333.23m.

The Chicago Park District is a unit of local government (Ill. Const. 1970, art. VII, sec. 1), and it has only those powers granted by law (Ill. Const. 1970, art. VII, sec. 8). The powers are enumerated in that portion of the Park District Code which specifically concerns the Chicago Park District (Ill. Rev. Stat. 1983, ch. 105, par. 333.1 et seq.). In particular, sections 26.1 through 26.10 (Ill. Rev. Stat. 1983, ch. 105, pars. 333.231 through 333.23u) relate to the Park District’s powers in regard to harbors for recreational purposes. Among the general powers granted to the Park District are the rights and powers to furnish complete harbor facilities and services, including mooring and docking facilities (Ill. Rev. Stat. 1983, ch. 105, par. 333.23n(a)) and to establish and collect fees for all facilities and services (Ill. Rev. Stat. 1983, ch. 105, par. 333.23n(g); see MacNeil v. Chicago Park District (1948), 401 Ill. 556, 82 N.E.2d 452).

The Park District is authorized to borrow money by issuing bonds in anticipation of its revenue from its harbors for recreational purposes and related facilities. The bonds must be authorized by ordinance. (Ill. Rev. Stat. 1983, ch. 105, par. 333.23q.) This section further provides that:

“No holder of any bond issued under this law shall ever have the right to compel any exercise of taxing power of the Chicago Park District to pay the bond or interest thereon. Each bond issued under this section is payable solely from the revenue derived from the operation of the harbor and facilities. The bond shall not in any event constitute a debt of the Chicago Park District within any statutory or constitutional limitations, and this shall be plainly stated on the face of each bond.”

In adopting the ordinance necessary for the issuance of bonds, the Park District may provide for covenants which shall be part .of the contract between the Park District and the bondholders. In general, the covenants pertain to obligations to be undertaken by the Park District “as may be deemed necessary or desirable to assure a successful and profitable operation of the harbor and facilities, and prompt payment of the principal of and interest upon the bonds ***.” Ill. Rev. Stat. 1983, ch. 105, par. 333.23r(l).

The statutory scheme further provides that when the revenue bonds are issued, “the revenues received from the operation of the harbor or facilities shall be deposited in a separate fund which shall be used only in paying the principal and interest of these revenue bonds and reserves therefor and the cost of maintenance, operation and depreciation of the harbor and facilities ***.” (Ill. Rev. Stat. 1983, ch. 105, par. 333.23s.) Any revenues in excess of those necessary to fulfill these requirements “may be used for rehabilitation of the harbor and facilities, necessary reconstructions and expansion, construction of new facilities or for retirement of any outstanding bonds issued for harbor purposes.” (Ill. Rev. Stat. 1983, ch. 105, par. 333.23s.) Revenues remaining after all such bonds have been paid may be transferred to the Park District’s general corporate fund. (Ill. Rev. Stat. 1983, ch. 105, par. 333.23s.) Finally the Park District may sell or pledge its revenue bonds to secure grants or loans from the Federal government or its agencies. Ill. Rev. Stat. 1983, ch. 105, par. 333.23t.

It is within this narrow statutory framework that the Park District must seek to secure its revenues for its recreational harbors. For this reason, I believe that taxes imposed by the city must be reasonable so they do not interfere with the Park District’s statutory right, granted pursuant to the constitution, to generate revenue. In my opinion, the Park District has adequately shown that it will be irreparably harmed in its fund raising abilities by the city’s 50% boat-mooring tax. As the Park District argues, the tax has the effect of limiting the fees that it can charge boat owners who moor or dock their boats .in the Park District’s recreational harbors. Each fee increase approved by the Park District as being an appropriate charge for its facilities is automatically increased by 50% pursuant to the tax. Thus, as the Park District states, if it decides that “this unanticipated acceleration of [its] fee schedule is too substantial of a burden on the public’s right to enjoyment of the waters, [one of its] only alternative^] would be to reduce the base fee ***” to an amount that would compensate for the 50% tax increase, but this in turn would reduce the Park District’s revenue.

Alternatively, the Park District contends, if it determines that a reduction in its fees is not feasible, then the effect of the city’s 50% tax will be to inhibit the Park District’s ability to raise funds through the issuance of bonds. The likely result of the boat-mooring tax will be that boat owners will no longer seek to moor or dock their vessels in Park District harbors. In this regard, it should be pointed out that it is the policy of the Park District to grant a full refund of payments made for mooring fees if it receives the request prior to May 15 and. to reimburse 50% of the fee paid if the request for a refund is made between May 15 and June 30. Moreover, according to the Park District, the waiting list for mooring spots has already been significantly reduced by the construction of additional harbor facilities. Absent a substantial waiting list, potential bondholders are not likely to be attracted, since the bonds are issued on the basis of anticipated revenues of a harbor and its facilities. Thus, if it appears that harbors may not be utilized to the fullest extent possible, the Park District’s potential bond market may evaporate, especially since the bonds do not constitute a debt of the Park District (Ill. Rev. Stat. 1983, ch. 105, par. 333.23q).

In addition, I believe that the Park District has adequately demonstrated for the purpose of the issuance of a preliminary injunction that the city’s 50% tax is so oppressive that it unreasonably interferes with the Park District’s statutory authority to maintain and operate harbors for the recreational use and benefit of the public. The 50% tax may well serve to eliminate from the Park District’s harbors those boat owners who have channeled limited discretionary income into the purchase of a pleasure boat but who will no longer be able to afford the exorbitant cost of mooring or docking. Plainly, the legislature did not intend that the Park District harbors become solely the province of the wealthy.

While the city, like the Park District, is a unit of local government (Ill. Const. 1970, art. VII, sec. 1), the city is also a home rule unit (Ill. Const. 1970, art. VII, sec. 6). As such, it is imbued with extensive powers, including a broad revenue-raising power. (Ill. Const. 1970, art. VII, sec. 6; Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, 572, 317 N.E.2d 3, 12.) I do not believe, however, that the city can run rampant with its taxing power so as to encroach upon the more restricted fund raising avenues available by statute to another coordinate unit of local government or to unreasonably interfere with the function of another coordinate unit of local government. Accordingly, I can only conclude that the Park District has adequately alleged that the burden imposed on it by the city’s 50% boat-mooring tax is not merely incidental (see Board of Education v. City of Peoria (1979), 76 Ill. 2d 469, 477, 394 N.E.2d 399, 403) and that the tax impermissibly frustrates the statutory rights and powers granted to the Park District by the legislature pursuant to the constitution.

For all of the above stated reasons, I would find that the Park District has sufficiently established that it will be irreparably harmed if the preliminary injunction is not issued and that it has a likelihood of success on the merits in the declaratory judgment action. As for the remaining two prerequisites for the issuance of a preliminary injunction, it is clear that both have been met. The lack of an adequate legal remedy is evident from the fact that the 50% tax will not only affect potential bond sales but will also affect the Park District in regard to its obligations to the public to provide and maintain recreational harbors. Clearly, this is a situation where the injury cannot be measured by pecuniary standards. (Best Coin-Op, Inc. v. Old Willow Falls Condominium Association (1983), 120 Ill. App. 3d 830, 834, 458 N.E.2d 998, 1001.) Regarding the last requirement, the Park District has sufficiently demonstrated that the granting of the preliminary relief outweighs any possible injury which the city may suffer by its issuance. No harm is accruing to the city other than that which would be inherent whenever the assessment or collection of any tax is enjoined.

Although the decision to grant or deny a preliminary injunction rests within the sound discretion of the trial court, there must be a sufficient showing to sustain the order of the trial court granting or denying the relief sought. (The Packaging House, Inc. v. Hoffman (1983), 114 Ill. App. 3d 284, 287, 448 N.E.2d 947, 949.) I do not believe that the record before us presents a sufficient basis on which to sustain the order of the trial court denying the relief sought. Rather, the Park District has sufficiently shown that the 50% tax will unconstitutionally encroach upon the Park District’s limited fund-raising abilities and unreasonably interfere with its statutory responsibility for providing recreational harbors for the use and benefit of the public. I would therefore reverse the order of the trial court and remand the case with directions to grant the preliminary injunction sought by the Park District, and for further proceedings to determine whether a declaratory judgment declaring the Chicago boat-mooring tax unconstitutional should be entered in favor of the Park District.


source: Caselaw Access Project

author: JUSTICE WEBBER JUSTICE BARRY,

license: Public Domain

text:
    WILLIAM K. REYNOLDS, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Caterpillar Tractor Co., Appellant).
    Third District (Industrial Commission Division)
    No. 3—84—0126WC
    Opinion filed August 7, 1984.
    Rehearing denied October 4, 1984.
    BARRY, J., dissenting.
    F. L. Simpson, of Peoria, for appellant.
    Clem & Triggs, P.C., of Peoria, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

This is a manifest-weight-of-the-evidence case. Petitioner filed a worker’s compensation claim against the respondent. The matter proceeded to arbitration and the arbitrator awarded petitioner permanent partial disability benefits and medical expenses for an injury to his knee. On review, the Industrial Commission reversed the award, finding that the petitioner failed to establish that the injury arose out of and in the course of his employment. On further review, the circuit court of Peoria County reversed the Commission and reinstated the award of the arbitrator. We, in turn, reverse the circuit court and affirm the Commission.

Petitioner was a 33-year-old core maker employed by respondent. His testimony tended to establish the following: on June 15, 1978, he and a fellow core maker, Albert Abies, noticed that a machine located near their work station had become disabled. Petitioner and Abies left their station to attend to the machine, with Abies in the van and petitioner following. On the way to the machine petitioner slipped on a patch of oil and fell on his knee. He noticed extreme soreness at the time, and after leaving the malfunctioning machine without repairing it, reported to the first aid office.

Abies testified that he left his work station and that petitioner followed a few moments later. He claimed that they repaired the machine and that petitioner left to return to his work station. At that time he heard petitioner groan and saw him clutching his left knee. He did not see petitioner slip.

Petitioner testified that he reported to an unknown nurse at the first aid office. He declined her offer of a heat pack and returned to work. The head nurse at the first aid office testified that there was no record of petitioner reporting to that office on June 15, 1978, although there were numerous other incidents of his reporting between 1970 and 1977. She also stated that she did not believe that there could be an error in the records because company policy was strict with regard to the memorializing of accidents and slip-ups do not occur. The nurse on duty at the time of petitioner’s purported injury was not called to testify.

Petitioner also testified that he reported the incident to his foreman, but the foreman was not called to testify

Petitioner took a scheduled vacation in July 1978 and after his return consulted with Dr. Giebelhausen regarding his varicose veins. During his examination the doctor noted “a little clicking sensation in the left knee which he attributes possibly secondary to an injury.” The varicose veins were operated upon in September 1978 and petitioner returned to work.

In January 1979 petitioner consulted with Dr. Smith, an orthopedie surgeon, regarding his knee. Dr. Smith noted in his history that petitioner stated he had fallen at work in June 1978. Dr. Smith continued to treat his patient and hospitalized him in March 1980 for knee surgery. At that time a hospital history was taken and a physical examination made by Dr. Froehling, who noted, “The patient states that he has had a slowly deteriorating condition in the left knee, which is not related to any specific trauma, but he has been treated over the past years by Dr. Smith.”

Caterpillar’s physician, Dr. Cooper, and Dr. Smith both believed that petitioner suffered from degenerative joint disease in the left knee and that this condition could have been aggravated by the alleged injury of June 1978. Petitioner returned to work in December 1980 after an arthrotomy and osteotomy were performed on the left knee on March 25,1980.

No evidence was presented on review before the Commission, and the Commission did not see the petitioner.

It has been said so often that it appears fatuous to repeat the doctrines that the petitioner has the burden of proof to establish all the elements of his claim, that it is the province of the Commission to evaluate the evidence and to draw inferences therefrom, and that its determination will be reversed only if it is against the manifest weight of the evidence.

In this case the evidence consisted primarily of the testimony of the petitioner himself as to how the accident happened. There was some corroboration by Abies, but their different versions undermined their credibility. The one clear thing is that Abies did not witness the alleged slip and fall. He only heard a groan and saw petitioner clutching his knee. In the same fashion, petitioner’s testimony that he visited the first aid office appears tenuous in the light of the testimony by the nurse that no record of it was made despite a strict company policy of recordation of accidents.

The medical testimony is also conflicting. Dr. Smith’s records indicated a statement by petitioner that he had fallen, but the hospital records made a year later indicate no specific trauma. The doctors agreed that petitioner suffered from degenerative joint disease and that this was susceptible of aggravation by an alleged fall. However, the causal connection between the disease and its potential aggravation seems extremely attenuated.

It was the job of the Commission to reconcile, if it could, these conflicting elements of evidence. It chose to do so adversely to the petitioner. We perceive no basis for upsetting that action.

Therefore, the order of the circuit court of Peoria County is reversed and the order of the Commission is reinstated.

Reversed.

SEIDENFELD, RJ, McNAMARA and KASSERMAN, JJ., concur.

JUSTICE BARRY,

dissenting:

I respectfully dissent.

It appears to me that the majority has lost sight of the fact that the petitioner’s burden of proof is to be measured by a mere preponderance of credible evidence standard-no less, no more. (Smith v. Industrial Com. (1983), 98 Ill. 2d 20; Keystone Steel & Wire Co. v. Industrial Com. (1978), 73 Ill. 2d 269, 383 N.E.2d 216.) Even though the mere fact that a petitioner’s version is unrebutted will not necessarily mandate an award, the petitioner’s proof of each element of his claim by what appears to be credible evidence cannot be ignored by the Commission in favor of negative and highly speculative circumstantial evidence offered by the respondent solely to attack the petitioner’s credibility.

In the instant case, it is particularly noteworthy that the Commission did not have an opportunity to evaluate the petitioner’s testimony and demeanor so as to assign more or less weight to the petitioner’s version of facts based on his credibility as a witness. The record before the Commission was as cold as the one we have on review. The only additional evidence considered by the Commission, which had not been before arbitrator Metis, was the one-page report of Dr. Cooper submitted by counsel for the respondent.

Affirmative evidence that the petitioner’s injury in fact resulted from an accident arising out of and in the course of his employment on June 15, 1978, was presented by the petitioner’s testimony of the slip and fall incident and corroborated by that of his co-worker, Albert Abies. Minor discrepancies of insignificant details of the two accounts — ie., whether petitioner was headed to or from the scene of the broken-down “roll over” — do not render the petitioner’s claim of an on-the-job injury unworthy of belief.

The petitioner allegedly reported to the nurse’s station the night of the accident, but did not feel that the heat pack treatment she suggested would do any good. Under the circumstances, it is not beyond credulity to find that the on-duty nurse might have failed to comply with the company’s policy of recording the visit on that occasion. Indeed, I find it incredulous that the company’s policy of reporting visits to the first aid station is sufficiently strict to guarantee that slip-ups never occur. Similarly, I do not find that the fact that the petitioner’s foreman failed to testify on the petitioner’s behalf provides any basis upon which to disbelieve the petitioner’s claim. The record before us contains an affidavit of the respondent’s personnel manager establishing that Mike Sumter, the foreman, left Caterpillar’s employ on March 23, 1981, nearly three months prior to the hearing before arbitrator Metis. The affiant further recited that no record of Sumter’s current address was available to him. Certainly the petitioner cannot be faulted, any more than can the employer, for not producing corroborative testimony from an unavailable witness.

The approximate date and fact of the injury were corroborated by medical evidence indicating that the petitioner complained of an injury to his left knee as early as September 1978, and by the report of Caterpillar’s physician, Dr. Hugh Cooper, Jr., who examined the petitioner on November 30, 1981, and stated his conclusions as follows:

“In my opinion this man has reached maximal benefit from treatment following a wedge osteotomy presumably for correction of knock-kneed .deformity associated with degenerative joint disease. The degenerative changes preexisted the injury of 1978 but presumably were aggravated by it. In my opinion, this man’s disability is due to this aggravation of a preexisting abnormality. Moderate permanent partial disability is present on that basis.” (Emphasis added.)

As aforesaid, the respondent relies solely upon negative and speculative evidence and innuendo. Rather than affirmatively demonstrating that the nurse on duty on June 15, 1978, did not see the petitioner about his knee, respondent relies on the absence of a report that should have been prepared by her, and suggests that the company policy of record-keeping produces infallible results. Further, rather than affirmatively demonstrating that the petitioner did not report the accident to Sumter, respondent relies on the petitioner’s failure to produce him at the hearing.

As I see it, the manifest weight of credible evidence supports the petitioner’s claim that his knee was injured on June 15, 1978, as a result of the accident as described by the petitioner, as substantially corroborated by his co-worker Abies, and as ultimately reported to the company doctor. That injury, as I view the credible evidence, aggravated a pre-existing degenerative joint disease and was compensable under the Workers’ Compensation Act. See Brandt Truck Lines, Inc. v. Industrial Com. (1983), 99 Ill. 2d 233.

The Commission’s undue reliance on negative and speculative evidence and innuendo, as pressed by respondent to impeach the petitioner, led to unreasonable inferences which were properly reversed by the circuit court as being contrary to the manifest weight of the evidence. I would affirm the judgment of the circuit court of Peoria County and reinstate the award.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES E. WILLIAMS, Defendant-Appellant.
    Third District
    No. 3—83—0788
    Opinion filed August 24, 1984.
    Rehearing denied September 27, 1984.

      Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, James E. Williams, appeals following a jury trial in the circuit court of Will County where he was convicted of armed robbery, armed violence and aggravated battery. The defendant was concurrently sentenced to serve 15, 10 and 5 years for each respective offense.

On appeal, the defendant contends that (1) the trial court erred when it refused to permit the defense to impeach a prosecution witness with evidence that the witness was on supervision for an unrelated offense; (2) the prosecutor engaged in an improper and inflammatory rebuttal argument which denied the defendant a fair trial; (3) he was denied the effective assistance of counsel when his court-appointed counsel continued to represent him at the post-trial proceedings after he had complained of his attorney’s trial performance; (4) his conviction for aggravated battery must be reversed because it was the underlying felony for his armed violence conviction.

The evidence indicated that on August 17, 1983, at approximately 9 p.m., Serena Walsh was walking along Patterson Road in Joliet on her way to pick up her car, which had been parked on South Chicago Street. As Ms. Walsh was walking down Patterson Road, she observed a man and a woman arguing about some children with another man, who was standing in the street under a streetlight. The man in the street, later identified as the defendant, was wearing a long-sleeved burgundy silk shirt and dark blue pants. Walsh had never seen the man before and kept walking.

Approximately a block from the scene of the argument, the defendant came up behind Walsh and asked her where she was going. Walsh was frightened and told him that she was going to the Sahara Lounge, which was just down the street. The defendant said he was going there, too, and continued walking next to Walsh.

As the two people continued down Patterson Road toward Chicago Street, it was necessary to pass under an unlighted viaduct with no sidewalk. In the dark viaduct the defendant grabbed Walsh by the arm and turned her around. He pulled a black gun from his pants and told Walsh to go into the weeds. When she refused, he struck her in the face and head, first with his hand and then the gun. Walsh knelt in the street to prevent her attacker from dragging her into the weeds. Her assailant kicked her several times, and Walsh offered him her purse if he just wouldn’t hurt her anymore. The defendant said he didn’t want the purse, he wanted her in the weeds. Two cars passed during the attack but did not stop. After the second car passed, the defendant put the gun to Walsh’s head. As a third car approached them, it began to slow down, and the defendant said, “Look what you did,” and grabbed her purse and ran. The purse contained $20 and some personal items.

After the defendant fled the scene, Walsh went to a restaurant but told no one of the attack. She did not call the police and did not know who did. Her head had been noticeably cut, and she had other marks on her face. A friend at the restaurant drove her home. As they passed the viaduct where she had been attacked, she noticed a police car and asked the officer if he was looking for her. The officer replied that he was if she had been the woman who had screamed for help. Walsh then accompanied the officer to the scene of the original argument over the children and learned that the defendant had pulled a gun on the man and woman there, too.

Walsh later viewed a photographic array of pictures which had been arranged in random order on a desk at the sheriff’s office. Walsh was not told that her assailant was included in the group or that she had to select someone. When she saw the defendant’s picture, she pointed him out immediately as the man who had robbed and beaten her. Walsh later identified the defendant at trial.

Ronnie Payton testified for the prosecution that it was the defendant who had argued with him about the children in the street and had pulled a gun on him, then left by going down Patterson toward Walsh. Police records indicated that they had received a call regarding a complaint about the unlawful use of weapons on Patterson Road at 9:17 p.m. and the incident involving Walsh at 9:20 p.m. The defendant lived within three blocks of the scene of the crime.

The defense presented its theory of misidentification and an uncorroborated alibi, which was impeached by the introduction into evidence of the defendant’s two prior convictions for armed robbery and theft.

The defendant’s initial claim of error concerns the trial court’s refusal to allow defense counsel to impeach a prosecution witness with evidence that the witness was on court supervision for retail theft, a misdemeanor.

Ronnie Payton had stipulated to the charge of retail theft and had been placed on one-year court supervision. The trial court refused to allow the impeachment, since the status of supervision does not involve a conviction and may end with a dismissal of the charge. Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—1(c).

We believe the trial court acted properly in refusing to allow court supervision to be used as a basis for impeachment. People v. Mason (1963), 28 Ill. 2d 396, 192 N.E.2d 835 (distinction between proof of conviction of a crime to impeach a witness’ credibility and use of an arrest or an indictment as evidence of bias or interest on the part of the witness).

The statutory scheme for supervision provides that a successful termination of supervision does not result in a conviction, but is more closely akin to an acquittal. (People v. Tarkowski (1981), 100 Ill. App. 3d 153, 426 N.E.2d 631.) Clearly, a witness may not be impeached by the mere fact that he was on supervision. (People v. Miller (1981), 101 Ill. App. 3d 55, 427 N.E.2d 987.) The defendant concedes that Pay-ton’s supervision was effectively the same as having a criminal charge pending. As such, it was an improper basis for impeachment.

Next, the defendant contends that the prosecutor engaged in an inflammatory and prejudicial closing argument by referring to the defendant as a “leech on the street *** preying off other individuals”; accusing defense counsel of “making jokes” and “a mockery” of the system by telling stories and “dropping a smoke bomb” which would “confuse” the jury. While such name-calling was unnecessary, we note there were no objections to most of these remarks which would have enabled the trial court to instruct the jury to disregard all comments not based upon the evidence. We believe the defendant has therefore waived the alleged error, and none amount to plain error. People v. Shepard (1983), 114 Ill. App. 3d 598, 449 N.E.2d 222 (failure to object to prosecutor’s remark calling defendant a “dog” held to be waiver).

A prosecutor has wide latitude during closing argument, and the trial court’s determination regarding the propriety of the argument will not be overturned on appeal absent a clear abuse of discretion. (People v. Richard (1980), 88 Ill. App. 3d 247, 410 N.E.2d 459.) Improper remarks in closing argument will not constitute reversible error unless they result in substantial prejudice to the defendant. People v. Kinion (1982), 105 Ill. App. 3d 1069, 435 N.E.2d 533.

While remarks such as “smoke screen” or “veil of smoke” are analogous to the “smoke bomb” reference here and are better left unsaid, they are hardly of sufficient magnitude to justify a reversal. People v. Palmer (1970), 47 Ill. 2d 289, 265 N.E.2d 627, cert, denied (1971), 402 U.S. 931, 28 L. Ed. 2d 866, 91 S. Ct. 1532.

Following his conviction, the defendant filed a pro se post-trial motion alleging that his court-appointed counsel had rendered ineffective assistance to his defense by failing to excuse certain jurors whom the defendant claimed he wanted excused and citing the failure to ask certain questions of the witnesses. The defendant also claimed that trial counsel had not presented all the evidence which the defendant had wanted to present. The defendant claims that the trial court’s refusal to appoint substitute counsel for the purpose of preparing and arguing a post-trial motion amounted to reversible error.

It is clear that no per se conflict of interest exists merely from a defendant’s allegations of ineffective assistance of counsel. (People v. Johnson (1981), 98 Ill. App. 3d 228, 424 N.E.2d 610.) Actual incompetence which results in substantial prejudice without which the outcome of the trial would probably have been different must be demonstrated. (People v. Ferguson (1981), 99 Ill. App. 3d 779, 425 N.E.2d 582.) The alleged incompetency must consist of more than merely the defendant’s disagreement with the trial attorney’s choice of trial tactics or judgment. (People v. Ferguson (1981), 99 Ill. App. 3d 779, 785, 425 N.E.2d 582, 586.) A general complaint of the attorney’s conduct is insufficient. People v. Gustafson (1979), 75 Ill. App. 3d 497, 393 N.E.2d 1315.

Our review of the record indicates that the defendant’s allegations of ineffective assistance of counsel suffer from the same basic infirmity, i.e., the general nature of the complaint, which lacks specificity as to (1) why certain jurors should have been excused, (2) what key questions in particular should have been asked by court-appointed counsel, (3) what additional evidence should have been presented.

Without such specificity, the trial court and certainly a reviewing court are left only to speculate in a vacuum as to what course the trial could have taken had the tactics and strategy of appointed counsel been different.

We believe, therefore, that an insufficient basis was shown by the defendant to require the appointment of substitute counsel, especially at such a late stage in the proceedings.

Finally, the defendant contends that his aggravated battery conviction should be vacated because it served as the underlying felony for the defendant’s conviction of armed violence. We agree. (People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.) Under the circumstances of this case, the defendant’s aggravated battery conviction is clearly a lesser included offense of his conviction for armed violence. People v. Whitaker (1980), 87 Ill. App. 3d 563, 410 N.E.2d 166; People v. Lewis (1981), 95 Ill. App. 3d 82, 419 N.E.2d 641.

For the foregoing reasons, the judgment of the circuit court of Will County is affirmed with respect to the defendant’s convictions for armed robbery and armed violence and reversed with respect to defendant’s conviction for aggravated battery.

Affirmed in part, reversed in part.

STOUDER and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE MEJDA JUSTICE PINCHAM,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYON COLLINS, Defendant-Appellant.
    First District (5th Division)
    No. 82—2193
    Opinion filed September 7, 1984.

      PINCHAM, J., specially concurring.
    Steven Clark and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Harry J. Devereux, Assistant State’s Attoneys, of counsel), for the People.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendant, Wayon Collins, appeals from a judgment entered on a jury verdict finding him guilty of two counts of murder and from a sentence of natural life imprisonment. Defendant contends that the prosecutors made prejudicial closing arguments to the jury which require a new trial. Defendant also contends in his brief that the trial court erred in concluding that a life sentence was mandatory. For the reasons which follow, we affirm the judgment of the trial court.

Defendant does not contend that the State failed to prove his guilt beyond a reasonable doubt. Accordingly, the facts related herein will be those required to address defendant’s assertions of error. The prosecution’s evidence included the testimony of an eyewitness, Lawrence Washington, that he saw defendant without provocation shoot two men to death in the parking lot of a Burger King restaurant. Assistant State’s Attorney Francis J. Mahon, Jr., testified that he interviewed defendant at a police station. Mahon testified that he advised defendant of his rights and that defendant acknowledged his understanding thereof. Mahon testified that defendant stated that he shot both men in the parking lot after hearing what he believed to be gunshots. He stated that he did not see any guns and that he fired his shotgun after hearing one of the men say, “There he is now.” The prosecution also presented evidence that the two men, identified as Donald Johnson and Glen Johnson, died as a result of shotgun wounds. Evidence was introduced that shotgun shells recovered from the parking lot were fired from a shotgun found in defendant’s residence. Defendant identified the weapon as his shotgun. His fingerprints thereon were identified by expert testimony. Defendant testified in his own behalf that he shot the two men after he heard gunshots and after one of the men said, “There he is now.” The jury was instructed, inter alia, on self-defense, voluntary manslaughter, and murder. The parties then made closing arguments.

One of the prosecutors began closing arguments by referring to photographs of the victims taken before and after their deaths. She stated that

“this is what he [defendant] did to each one of them. These are all of the holes that he put in Glen Johnson’s right chest when he shotgunned him to death that evening in the parking lot at Burger King. These are the seventeen or eighteen pellet holes that he put into that man’s chest as he stood about twenty feet away from him. *** And this is what he did to Donald Johnson when he shot him in the back. Look at the holes that he put in that man’s back.”

No objection was made to the foregoing argument.

On rebuttal, the other prosecutor argued that “Right now, you don’t have to concern yourself with sentencing. Before we get to the sentencing, you will have a lot more testimony, a lot more evidence, a lot more background.” Defendant moved for a mistrial based on these remarks, which motion was denied. Defendant subsequently filed a written post-trial motion which failed to cite any prosecutorial argument as a ground for a new trial.

The jury found defendant guilty of both murders and judgment on the verdicts was entered. A bifurcated hearing pursuant to section 9—1(d)(1) of the Criminal Code of 1961 was conducted before the same jury which had determined defendant’s guilt. (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(d)(1).) The jury determined that defendant was eligible for the death penalty under section 9—1(b)(3). (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(b)(3).) During the second phase of the hearing, evidence in aggravation and mitigation was presented and both sides delivered arguments concerning the imposition of the death penalty. After deliberating, the jury declined to impose the death penalty. A presentence investigation was ordered and a sentencing hearing was held. At the sentencing hearing, the trial court stated that, under the Unified Code of Corrections, “the Court has no authority but to impose a mandatory life imprisonment on this defendant,” inasmuch as defendant had previously been convicted of a double murder. See Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-l(a)(l)(c).

Opinion

In his brief, defendant initially contended that the trial court erred in failing to exercise any discretion in sentencing him to life imprisonment. At oral argument, defendant withdrew this issue from our consideration in light of the recent decision in People v. Taylor (1984), 102 Ill. 2d 201, 205-09, 464 N.E.2d 1059. The supreme court there held that the imposition of a natural life term under section 5—8—1(a)(1)(c) of the Unified Code of Corrections was mandatory and was not constitutionally objectionable. Accordingly, we do not further consider this issue.

Defendant also argues that certain comments made by one of the prosecutors during the death penalty hearing were improper. Without determining the propriety of the remarks, we find that defendant suffered no prejudice as a result thereof because under the statutory scheme, he was eligible only for a sentence of death (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(b)), or life imprisonment (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—1(a)(1)(c); People v. Taylor (1984), 102 Ill. 2d 201, 209, 464 N.E.2d 1059). Because the defendant’s life imprisonment sentence was the lesser of the only two possible sentences, he was not prejudiced by any prosecutorial comments made during the sentencing hearing. See People v. Stephens (1973), 13 Ill. App. 3d 642, 649, 301 N.E.2d 89; also see People v. Dixon (1984), 122 Ill. App. 3d 141, 147, 460 N.E.2d 858.

Our analysis of defendant’s remaining contention, that the prosecutors’ statements require a new trial, begins with our consideration of the prosecution’s argument that defendant has waived the alleged errors. The supreme court has recently reiterated the familiar principle that “the failure to raise an issue in the written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a grounds for reversal on review.” (People v. Caballero (1984), 102 Ill. 2d 23, 31, 464 N.E.2d 223.) The supreme court observed in Caballero that the failure to raise an issue in the trial court

“casts a needless burden of preparing and processing appeals upon appellate counsel for the defense, the prosecution, and upon the court of review. Without a post-trial motion limiting the consideration to errors considered significant, the appeal is open-ended. Appellate counsel may comb the record for every semblance of error and raise issues on appeal whether or not trial counsel considered them of any importance.” (102 Ill. 2d 23, 31-32.)

This statement applies directly to the instant case. The issue presented for decision was not raised in the post-trial motion.

The motion for new trial does contain a statement that because it was prepared without the benefit of a transcript, defendant does not “waive any point of error but includes in this Motion any and all errors which will entitle him to the relief sought.” This broad statement, standing alone, does not comport with the requirement that the post-trial motion “shall specify the grounds therefor.” (Ill. Rev. Stat. 1983, ch. 38, par. 116—1(c); see People v. Lawson (1980), 86 Ill. App. 3d 376, 397, 407 N.E.2d 899; cf. Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 349-50, 415 N.E.2d 337 (specificity standard in civil cases).) It has also been held that a post-trial motion which contains only general allegations, as in the instant case, is insufficient to preserve matters for review and that inclusion of a statement purporting to preserve “any and all errors” does not do so. (People v. Goble (1976), 41 Ill. App. 3d 491, 499, 354 N.E.2d 108; People v. Rogers (1975), 32 Ill. App. 3d 788, 790, 336 N.E.2d 784; also see People v. Turk (1981), 101 Ill. App. 3d 522, 533, 428 N.E.2d 510.) In Rogers, the post-trial motion stated that as defendant “is not in possession of a transcript of the trial proceedings and is unable to specify error that occurred, he hereby presents any and all errors ***.» appellate court noted that “[i]f such a request truly did preserve all errors, the rationale behind post-trial motions would be destroyed.” (32 Ill. App. 3d 788, 790.) The court in Goble followed Rogers and stated that such a statement is not sufficient to preserve the asserted error for review. Both cases noted that the errors should have been known to defense counsel even without a transcript. In the instant case, counsel for defendant manifested his awareness of one of «the complained of remarks by moving for a mistrial on that basis, and the other remark, coming as it did at the very beginning of closing arguments, cannot have gone unnoticed. Moreover, without quoting the prosecutors’ remarks, the post-trial motion could have included some mention of specific prosecutorial arguments as a basis for a new trial without consulting a transcript; this was not done, and we accordingly conclude that the issue has been waived. See People v. Carel (1976), 37 Ill. App. 3d 952, 954, 346 N.E.2d 186.

Defendant further asks this court to consider this issue under the plain error doctrine. The waiver doctrine is qualified by the plain error doctrine as embodied in Supreme Court Rule 615(a). (87 Ill. 2d R. 615(a); People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233.)

“A significant purpose of the plain error exception to the waiver doctrine is to correct any serious injustices which have been done to the defendant. It therefore becomes relevant to examine the strength or weakness of the evidence against him; if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved. Thus, this court has held that where the evidence is closely balanced, a court of review may consider errors that have not properly been preserved for review.” (People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233.)

In the instant case, eyewitness testimony, circumstantial evidence, and defendant’s own testimony lead inescapably to the conclusion that defendant was guilty of both murders. The evidence was not closely balanced and the alleged errors need not be noticed under the Carlson formulation of the plain error doctrine. See People v. Lawson (1980) , 86 Ill. App. 3d 376, 397, 407 N.E.2d 899.

A slightly different test employed by the courts to implement the plain error doctrine is that if the alleged errors “deprived the accused of substantial means of enjoying a fair and impartial trial,” the court may take notice of the errors. (People v. Burson (1957), 11 Ill. 2d 360, 370-71, 143 N.E.2d 239; see also People v. Pickett (1973), 54 Ill. 2d 280, 282-83, 296 N.E.2d 856.) In view of the overwhelming evidence of guilt introduced in the case at bar, the prosecutors’ statements cannot be said to have constituted a material factor in defendant’s conviction nor did they deprive him of a substantial means of enjoying a fair and impartial trial. Cf. People v. Lloyd (1981), 93 Ill. App. 3d 1018, 1025-27, 418 N.E.2d 131.

Moreover, in our view, the statements were not error. Substantial latitude is accorded attorneys in closing argument and a new trial will not be granted unless the remarks are so prejudicial as to materially contribute to a defendant’s conviction. (People v. Lloyd (1981) , 93 Ill. App. 3d 1018, 1025, 418 N.E.2d 131.) Defendant asserts error in the following argument: “This is what he [defendant] did to each of them. These are all of the holes that he put in Glen Johnson’s right chest when he shotgunned him to death that evening in the parking lot at Burger King. These are the seventeen or eighteen pellet holes that he put into that man’s chest as he stood about twenty feet away from him. *** And this is what he did to Donald Johnson when he shot him in the back. Look at the holes that he put in that man’s back.” The prosecutor is entitled to comment on the deceased and the nature of the killing when such is supported by the record, and an argument based on properly admitted photographs is permissible. (People v. Eckles (1980), 83 Ill. App. 3d 292, 301, 404 N.E.2d 358.) We perceive no error in the above comments.

Defendant also complains of the prosecutor’s statement that prior to the sentencing phase of the proceedings, “you will have a lot more testimony, a lot more evidence, a lot more background.” In light of the bifurcated nature of these proceedings (see Ill. Rev. Stat. 1983, ch. 38, par. 9—1(d)), the prosecutor’s argument was not improper.

For all of the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

SULLIVAN, J., concurs.

JUSTICE PINCHAM,

specially concurring:

I concur that the prosecutorial arguments of which the defendant complains were not improper or inflammatory under the facts and circumstances of this case. For this reason, in my opinion, the waiver and plain error issues are unnecessarily decided.


author: JUSTICE STAMOS

text:
    PATRICK BULLISTRON, Plaintiff-Appellant, v. NORTHERN BUILDERS, INC., Defendant-Appellee.
    First District (2nd Division)
    No. 83—2121
    Opinion filed September 4, 1984.

      Corboy & Demetrio, P.C., of Chicago (Todd A. Smith and David A. Novoselsky, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Charles H. Cole, and Joshua G. Vincent, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff Patrick Bullistron sued defendant Northern Builders, Inc., for injuries sustained by plaintiff while working on a job site owned by defendant. Defendant’s motion for summary judgment was granted and plaintiff appeals.

On July 17, 1979, plaintiff was employed by Millgard Corporation as a construction laborer at a work site located in Wheeling. Millgard was working as a subcontractor to prepare foundations for a partially built warehouse owned by defendant, Northern Builders, Inc. Plaintiff’s job involved working on a truck-mounted drilling rig which was being used to drill caissons for the building foundation.

At approximately 2 p.m. on July 17, 1979, plaintiff completed drilling the caissons for defendant’s building. Several of Millgard’s employees proceeded to change the oil in the drilling machine in order to prepare it to be moved from the job site. While changing the oil, the employees noticed that hydraulic fluid was leaking from an area surrounding a part called a Kelly bar. In order to reach the leaking hydraulic fitting, plaintiff’s supervisor directed that the machine be driven alongside a partially completed brick wall which had been put up by bricklayers to a height of approximately three feet.

In order to loosen the cup at the base of the Kelly bar to get at the packing which was causing the leak, the plaintiff and another employee used a “chain dog” wrench. Plaintiff and the other employee stood atop the three-foot wall and passed the wrench to each other as the cup rotated. Once the packing was replaced, they began tightening the cup with the wrench until it became too difficult. At this point, plaintiff and the other employee located a piece of scrap lumber and wedged it between the cup and a part of the machine. This allowed for further tightening of the cup by use of the machine’s power. As plaintiff stood atop the three-foot wall, the machine was turned on and the Kelly bar turned and the cup began tightening. As the tightening continued, the piece of wood apparently popped loose and struck plaintiff, knocking him off the wall and injuring him.

Based upon the foregoing facts, the trial judge granted defendant’s motion for summary judgment. Plaintiff appeals.

The statute which is the subject of this appeal is commonly referred to as the Illinois Structural Work Act and provides as follows:

“That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Ill. Rev. Stat. 1979, ch. 48, par. 60.)

In his complaint, plaintiff alleged that the wall he was standing on while repairing the truck-mounted drilling rig was constructed in an unsafe manner and that as a proximate result of this faulty construction, he was injured. In its motion for summary judgment, defendant asserted that the drilling rig which plaintiff was repairing did “not constitute a house, building, bridge, viaduct, or other structure within the requirements of the Illinois Structural Work Act” and that therefore no valid cause of action could be stated against Northern Builders, Inc. under the Act. Both parties argued their respective theories before the trial judge.

Initially, plaintiff submits that the trial court based its grant of summary judgment on the fact that no construction work was being done at the time plaintiff was injured. The record does contain colloquy indicating that the court was exploring the relevance of the fact that the drilling rig was being repaired after the construction work had ceased. However, the colloquy immediately preceding the court’s ruling revealed that the issue the court had focused on was whether the drilling rig was a “structure” under the Structural Work Act. In the course of granting defendant summary judgment, the court stated that:

“Granting, as the case of Cooley cites, he is standing on the structure. I think I agree with you that Cooley does not involve the man standing on the structure, but that seems to be immaterial because that portion of the act indicates what his activities are directed to. That is the problem we have. For that reason, I will sustain the motion.” (Emphasis added.)

Although the court was not as precise as it could have been, we find that the court’s ruling was based on the finding that the drilling rig did not qualify as a “structure” under the Structural Work Act. The court’s references to the Cooley case do not convince us otherwise because Cooley held, inter alia, that the crane involved in that case was not a “structure” under the Act. See Cooley v. Central Illinois Public Service Co. (1982), 110 Ill. App. 3d 685, 691-92, 442 N.E.2d 1330.

In determining what constitutes a “structure” under the Structural Work Act, we are guided by the supreme court’s rulings in McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 317 N.E.2d 573, and Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 328 N.E.2d 318. In McNellis, a workman received fatal injuries while unloading 20,000 pound pedestals from a railroad car located one-half mile from the construction site of a power-generating plant. The pedestals were to be installed as part of the plant’s steam generating units. As the metal plates which secured the pedestals were cut loose, one of the pedestals fell, pinning the workman to the railroad car. Cranes were available to assist in the unloading but were not used. The construction contract provided that the general task of erecting the generators within the power station would necessitate the incidental tasks of unloading and storage, and the nature of the work required that unloading be performed some distance from the actual building. -Defendant argued that the unloading of equipment was not a structural work activity. The supreme court rejected this argument, stating that “under the terms of this contract and facts of this case the unloading may fairly be viewed as an integral part of the erection operation.” 58 Ill. 2d 146, 151.

In Farley, the plaintiff was injured while aiding in the assembly of a self-propelled power shovel of mammoth proportions which was to be used to strip-mine coal. The issue before the court in Farley was whether this power shovel, which was admittedly larger than many buildings, was a “structure” within the meaning of the Structural Work Act. The court focused on that portion of the Act which provided that the work covered by the Act must be directed to “any house, building, bridge, viaduct, or other structure ***.” (Ill. Rev. Stat. 1981, ch. 48, par. 60.) Particular attention was directed to the legislature’s choice of the phrase “or other structure.” The court held that under the doctrine of ejusdem generis, the “plain purpose [of the Act was] to limit the application of our statute to structures of the general type specified therein.” (60 Ill. 2d 432, 436-37.) The doctrine of ejusdem generis provides that:

“where a statute or document specifically enumerates several classes of persons or things and immediately following, and classed with such enumeration, the clause embraces ‘other’ persons or things, the word ‘other’ will generally be read as ‘other such like,’ so that the persons or things therein comprised may be read as ejusdem generis ‘with,’ and not of a quality superior to or different from, those specifically enumerated.” (Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 436, quoting People v. Capuzi (1960), 20 Ill. 2d 486, 493-94, 170 N.E.2d 625.)

Applying this doctrine to the instant case, it is apparent that the drilling rig in issue is not a “structure” under the Act. Accordingly, we find that plaintiff was not engaged in work covered by the Structural Work Act at the time of his injury and that summary judgment was properly entered in defendant’s favor.

We note that the work involved in Farley was strip-mining rather than the conventional construction work involved in McNellis. In rendering its decision, however, the court in Farley did not suggest that this factor influenced its decision. Indeed, the Farley court alluded to its holding in McNellis and explained that the holding in that case was grounded in large part on the contract provisions involved. (60 Ill. 2d 432, 437.) Had the nature of the work involved in Farley been a critical factor in the court’s decision, the court would surely have pointed this out in its reference to McNellis. For the foregoing reasons, we interpret Farley as being applicable to Structural Work Act cases generally and as a limitation on the scope of the holding in McNellis. Upon reviewing the circumstances in McNellis together with the holding in Farley, we conclude that the Structural Work Act covers work performed on the structure itself or preliminary work involving material which will ultimately be incorporated as part of the structure.

We have examined Simmons v. Union Electric Co. (1984), 121 Ill. App. 3d 743, 460 N.E.2d 28, cited by plaintiff, and we find it to be unpersuasive. In Simmons, the plaintiff was sent to a power plant following some flooding in an ash pit. The plaintiff repaired permanent sump pumps which had malfunctioned and then endeavored to repair a temporary sump pump at the bottom of the pit which had also malfunctioned. While descending a ladder into the pit, the plaintiff slipped and fell and was injured. The plaintiff sued for his injuries and was granted judgment on his Structural Work Act count. On appeal, the defendant contended that the plaintiff was not involved in structural work at the time of his injuries because the temporary sump pump which was being repaired was not a “structure” under the Act. The Simmons court viewed this contention as an unduly narrow view of the scope of the Act. The court opted instead to view the situation in a broad context to determine if the plaintiff’s specific activity at the time of the injury was an integral part of a larger project which qualified as structural work under the Act. Under this approach, the Simmons court found that the plaintiff was sent to the power plant to repair the ash pit, which was found to be a structure, and that the repair of the temporary sump pump was an integral part of this work, thereby bringing the plaintiff’s activities within the Act’s coverage.

The court’s holding in Simmons does not contain a single citation to Farley. Rather, the analysis focuses on the propositions set forth in McNellis that the Act is to be liberally construed and that actions which are an integral part of the construction process are covered by the Act. (121 Ill. App. 3d 743, 751.) We deem it important to point out that the activities in McNellis were held to be covered under the Act because they were “an integral part of the erection operation.” (Emphasis added.) (58 Ill. 2d 146, 151.) This phrase does not extend the Act’s coverage to the myriad of activities which are a vital part of any construction project; rather, it serves as recognition that much of the preliminary construction directly leading to the erection of a building or other structure is not performed on the structure itself. (See 58 Ill. 2d 146, 150.) This interpretation finds its support in Farley, which circumscribed the seemingly boundless propositions contained in McNellis. We believe that the approach taken in Simmons expands the Act beyond its intended scope. Whether the hazards involved in Simmons and the instant case are such that the Act’s protection should be extended to them is for the legislature to determine. See Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 437, 328 N.E.2d 318.

For the reasons expressed herein, the judgment of the circuit court is affirmed.

DOWNING and PERLIN, JJ., concur.


author: JUSTICE McNAMARA

text:
    CHARLES BEATY et al., Plaintiffs-Appellants, v. LAND OF LINCOLN SAVINGS AND LOAN, Defendant-Appellee.
    First District (3rd Division)
    No. 83—3008
    Opinion filed August 29, 1984.
    Tenney & Bentley, of Chicago (Edwin H. Conger and Marc H. Ginsberg, of counsel), for appellants.
    Lillig, Kemp & Thorsness, Ltd., of Oak Brook (Armand E. Capanna and Russell R. Custer, Jr., of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Charles and Kay Beaty, brought this class action on behalf of themselves and others similarly situated against defendant Land of Lincoln Savings and Loan, an Illinois corporation. Plaintiffs alleged that defendant wrongfully collected interest on their mortgage loan for an entire month when the loan was completely prepaid on the second day of the month. The trial court granted defendant’s motion to dismiss the complaint in its entirety, and plaintiffs appeal.

The facts are undisputed. On November 27, 1981, plaintiffs purchased a home and assumed a $75,000 mortgage note held by defendant. The note provided for monthly installments of $752.85 on the first day of each month until April 1, 1984, when all principal and interest were due. The note specified the computation of interest as follows:

“Said monthly payments shall be first applied to interest and the balance to principal. Interest for each month shall be added to the unpaid balance on the first day of each month at the rate of one-twelfth (l/12th) of the annual interest rate and shall be calculated upon the unpaid balance due as of the last day of the preceding month and shall be considered earned as of the first day of each month.” (Emphasis added.)

The note also provided:

“We understand and agree that if advance payments are made, or if the entire balance of this Note is prepaid at any time, no additional interest charge will be required for such payment.
* * *
We further understand that payments on the within note may be made at any time during the month when due without being considered delinquent.”

On June 2, 1983, plaintiffs paid off the principal and were required to pay interest for the entire month of June. On June 14, 1983, they filed this four-count complaint alleging that defendant charged, collected and retained interest on fully prepaid notes; received unlawful interest, discounts and charges in violation of section 6 of “An Act in relation to the rate of interest ***” (Ill. Rev. Stat. 1983, ch. 17, par. 6413); imposed a prepayment penalty in violation of section 4 (Ill. Rev. Stat. 1983, ch. 17, par. 6404(2)(a)); and knowingly charged and retained prepaid interest and received unlawful interest, discounts and charges in violation of section 6 (Ill. Rev. Stat. 1983, ch. 17, par. 6413).

Plaintiffs first contend that interest is compensation for the loan or use of money and when the principal is fully paid the interest is no longer earned. Defendant relies on the contract language that interest for the month is earned on the first day of the month.

The collection of interest in advance is allowed in Illinois. (Maxwell v. Willett (1893), 49 Ill. App. 564.) Plaintiffs maintain, however, that they are entitled to a refund of interest paid in advance when the principal is prepaid.

A similar argument was unsuccessfully addressed to this court in Goodman v. Advance Mortgage Corp. (1975), 34 Ill. App. 3d 307, 339 N.E.2d 257, and Wishnoff v. Guardian Savings & Loan Association (1975), 34 Ill. App. 3d 107, 339 N.E.2d 494. Dealing with a contract similar to that in the present case, the court found the contract language controlling. In Wishnoff, the court stated:

“Earned interest is that to which the parties agree. Plaintiffs in effect contracted for the use of principal on a monthly basis with each month’s interest to be paid in advance. We fail to comprehend how the interest for the entire month of July was any less earned merely because plaintiffs chose not to make full use of the principal.” 34 Ill. App. 3d 107, 110.

Plaintiffs attempt to distinguish the holdings in Goodman and Wishnoff from the present case by arguing that the note here was ambiguous. They point to the clause which provides that payments on the note may be made at any time during the month, while the payments in the foregoing cases had to be made on the first day of the month. Plaintiffs also rely on the clause which states that there will be no additional charge for prepayment. According to plaintiffs, these provisions create an inconsistency and allow for an interpretation that interest is not earned until the end of the month.

We believe, however, that plaintiffs confuse the time when interest is earned with the time interest may be paid. The fact that the note provides a one-month grace period for each installment payment does not affect the clear language of the contract. Plaintiffs are bound by their agreement with defendant that interest “shall be considered earned as of the first day of each month.”

Plaintiffs also challenge defendant’s retention of interest, claiming it is a prepayment penalty in violation of section 4(2)(a) of “An Act in relation to the rate of interest ***.” (Ill. Rev. Stat. 1983, ch. 17, par. 6404(2)(a).) Having determined that defendant earned interest for the month of June on the first day of the month, we find that defendant did not charge a prepayment penalty. Defendant collected only those monies due under the terms of the note.

For the foregoing reasons, the judgment of the circuit court of Cook County dismissing plaintiffs’ complaint is affirmed.

Judgment affirmed.

RIZZI, P.J., and WHITE, J., concur.