author: Mr. JUSTICE WILSON Mr. JUSTICE WILSON

text:
    M. A. LOMBARD & SON COMPANY, Plaintiff-Appellant, v. PUBLIC BUILDING COMMISSION OF CHICAGO, Defendant-Appellee.
    First District (5th Division)
    No. 79-1659
    Opinion filed August 21, 1981.
    — Supplemental opinion filed on denial of rehearing November 30, 1981.

      James G. O’Donohue, of Chicago, for appellant.
    William R. Quinlan, of Chicago (Earl L. Neal and Anne L. Fredd, of counsel), for appellee.
   Mr. JUSTICE WILSON

delivered the opinion of the court:

M. A. Lombard & Son Company (Lombard) appeals from a judgment of the trial court in favor of the Public Building Commission of Chicago (Commission). Lombard presents two issues for review: (1) that it is fraudulent for a public body to advertise for bids knowing that the. construction plans are incomplete and later make material departures in the plans and specifications; and (2) the “no damage for delay” clause does not absolve a public body under all conditions and circumstances. The pertinent facts follow.

Lombard submitted the lowest bid of $8,794,000 in accordance with certain plans and specifications, and was awarded the general works contract from the Commission on December 14,1971, for construction of the Archer-Pulaski High School. The contract encompassed the construction of two buildings: building “A” to be completed in 360 days or by December 28, 1972, and building “B” to be completed in 420 days or by March 7,1973.

Prior to the general contract, there were preliminary contracts awarded to prepare the site for construction. George Lombard, president of Lombard, testified Lombard was aware of the prior contracts as well as the contractual provisions concerning changes in the work and delays.

At a meeting on December 21, 1971, Fred Coleman, the project manager for the joint venture, informed George that Lombard was going to get a notice to proceed on December 28, 1971. George informed him that the job site was not ready and asked that the day of the notice to proceed be extended to some future date. However, the notice to proceed was given on December 28,1971.

Lombard exhibits indicated that there were numerous charges made throughout the contract period in the drawings and specifications. Lombard contends that Bulletin No. 2, dated March 24, 1972, materially changed the bid drawings with the issuance of construction drawings and additional compensation in the amount of $221,871.40 was authorized. Bulletin No. 8, issued on May 25,1972, changed the revisions set forth in Bulletin No. 2 and contained 17 pages of revisions. This bulletin authorized extra compensation in the amount of $126,135. Further, on February 8, 1972, the Commission had accepted Lombard’s bid of $634,624 for Alternate No. 2, the integrated ceiling in Building “A”, in accordance with the bid drawings. Subsequent to this acceptance, numerous changes were made and Lombard was not able to proceed with this work until December 19, 1972. Bulletin No. 40, issued January 31, 1973, required additional work to the ceiling at an added cost of more than $45,000 because of lack of information at the time of installation of the electrical and mechanical work. A stop-work order on all ceilings was issued on January 29, 1973, by the city ventilation department and was not lifted until April 5, 1973. Further, Ernest Burkhardt, field representative for the joint venture architects, testified that the work involved here was new construction, but it became a remodeling job before they were through with it.

Robert Christiansen, executive director of the Commission, testified that bids were sought before the drawings were completed to avoid the increased costs of labor and materials. However, he believed that the changes, compared to the size of the contract, were minor and reasonable from the standpoint of the Commission and were done at a later stage so as not to impede the contractor in his work. Christiansen also indicated that Addenda were issued to bidders which specifically provided that they would be incorporated into the terms of the contract. These revisions would be reflected in the construction drawings which are issued after a contract is awarded.

The Commission introduced pertinent provisions of its contract with Lombard, which are as follows:

“GC-22. Changes in the Work
a. The Owner may make changes in the work of the Contractor by making alterations therein, or by making additions thereto, or by making deductions or omissions therefrom without invalidating the Contract, and without releasing or relieving the Contractor from any guarantee given by him pursuant to the Contract provisions, and without affecting the validity of the guarantee or performance bond, and without relieving or releasing the surety or sureties of said bond. All such work shall be executed under the conditions of the original contract. The Contractor shall submit to Architects ‘As Built’ or revised drawings clearly showing the revised work, all as required by Section 1 — 7 of the Technical Specifications.
GC-24. Delays and Extensions of Time
O # O
b. If the Contractor be delayed at any time in the progress of the work by any act or omission of the Owner or the Architects, or of any employee of either, or by any other contractor employed by the Owner, or by changes ordered in the work, or by strikes, lockouts, fire, unusual delay in transportation, unavoidable casualties, or any causes beyond the Contractor’s control which would not reasonably be expected to occur in connection with or during performance of the work, or by delay authorized by the Architects pending a decision, or by any cause which the architects and Owner shall decide to justify the delay, the time of completion shall be extended for such reasonable time as the Architects and Owner may decide. d. It is further expressly understood and agreed that the Contractor shall not be entitled to any damages or compensation, or be reimbursed for any losses, on account of any delay or delays resulting from any of the aforesaid causes or any other cause whatsoever.”

Further, the Commission points out that the contract sets forth the method to be used in determining the amounts of additional compensation to be paid Lombard on account of changes in the work. The payment formula allowed Lombard or the subcontractor performing the work to receive payment for labor and materials, plus 10 percent for overhead and 10 percent for profit. With respect to work performed by its subcontractors, Lombard, as the general contractor, received an additional 10 percent for overhead and profit.

Lombard was granted a time extension of 104 days and 112 days for the “A” and “B” buildings respectively and was paid an additional sum of $2,122,767.70 This action was filed to recover the sum of $1,336,082.58 on account of delay damages.

Opinion

Lombard initially argues that the Commission advertised for bids knowing its construction plans were incomplete and later made material changes in the plans and specifications.

In Mohr v. City of Chicago (1904), 114 Ill. App. 283, aff'd (1905), 216 Ill. 320, 74 N.E. 1056, the appellate court there stated that “The law clearly contemplates that before bids are advertised for, the city should determine just what work was to be done and the kind, character and quality of materials to be used therein, and should prepare a plan or profile of the work, with specifications so definite and sufficiently detailed that anyone experienced in such matters would be able to determine therefrom the particular work to be done in all its details * ° (114 Ill. App. 283, 289.) Further, Illinois law supports the view that one who contracts to provide labor and materials for a construction project with the reasonable expectation that it will be done within a particular period, and who is thereafter delayed through no fault of his own, but by virtue of the other contracting party, will be entitled to recover for any consequential damages. (J. F. Edwards Construction v. Illinois State Toll Highway Authority (1975), 34 Ill. App. 3d 929, 931, 340 N.E.2d 572; Annot., 16 A.L.R. 3d 1252 (1967).) However, potential loss from delay is inherent in any construction project. (McDaniel v. Ashton-Mardian Co. (9th Cir. 1966), 357 F.2d 511, 517; Edwards Construction.) And if the contract expressly provides for delay or if the right of recovery is expressly limited or precluded, then these provisions will control. (Edwards Construction.) All of the language in a written contract is deemed applicable to both parties. (Consumers Construction Co. v. County of Cook (1971), 1 Ill. App. 3d 1087, 275 N.E.2d 696.) Where material delays in the completion of a public works contract arise without fault or culpability of the contractor, he has an action against the owner for such damages as reasonably and proximately resulted from the delays, subject to applicable provisions of the contract. (Underground Construction Co. v. Sanitary District (1937), 367 Ill. 360, 11 N.E.2d 361.) The amount of damages, if any, that is recoverable, must be fixed with due regard for contract provisions. Consumers Construction Co.

In the present case, the delays in the construction of the Archer-Pulaski High School caused Lombard to incur additional expenditures and costs in the performances of its contract work. However, we believe that Underground Construction Co. v. Sanitary District and subsequent cases control the determination of delay damages where there are applicable contract provisions. In Underground Construction Co. construction work on a bridge was delayed for 10 months due to defendant’s lack of funds. The contract provided that no damages would be recoverable on account of days, except for certain expense items particularly specified. Our supreme court upheld the contract provision which specified the measure of damages. See also Herlihy Mid-Continent Co. v. Sanitary District (1945), 390 Ill. 160, 60 N.E.2d 882, (delay of two years caused by the district’s default); Unicon Management Corp. v. City of Chicago (7th Cir. 1968), 404 F.2d 627 (delays caused by incompletion of the site work and City’s failure to approve materials); Consumers Construction Co. v. County of Cook (delays more than doubled the originally agreed time for the total work), which all support the proposition that a contractor has the right to recover damages sustained by a delay which has been brought about by the contractee’s fault; however, such an award of damages is precluded where the contract provides otherwise. The contract, in this instance, specifically declares that Lombard shall not be entitled to damages on account of delays resulting from any cause whatsoever. It is presumed that the parties deliberately inserted clauses in the contract with specific objectives in mind. Bowler v. Metropolitan Sanitary District (1969), 117 Ill. App. 2d 237, 254 N.E.2d 144.

Nor do we believe that Lombard has sufficiently proved that the Commission committed misrepresentation and fraud which would negate the “no damage for delay” provision. “Fraud is never presumed, but must be proved, like any other fact, by clear and convincing evidence. Something more than mere suspicion is required to prove allegations of fraud. * * * [Pjublic officials in the performance of official acts are presumed to act in good faith and with honest motives.” Michuda v. Sanitary District (1940), 305 Ill. App. 314, 347-48, 27 N.E.2d 582.

In the pending case, the contract contained a specific provision allowing the owner to make changes. Addenda were issued during the bid period, and bidders were notified to incorporate the changes in the contract documents; and where changes were inconsistent with the bid contract documents, the changes governed. Lombard was aware that preliminary contracts were issued prior to its contract and thus must be chargeable at the outset with all that was observable from inspection of site conditions. Further, Lombard’s experience with public construction projects should have enabled it to protect itself from risks by either increasing its bid or negotiating the deletion of this contractual provision before executing the agreement with the Commission. Some changes were requested by the Commission’s lessee, the Chicago Park District; while other delays were caused by reasons beyond the Commission’s control, i.e., inclement weather conditions and three strikes during the contract period. In any event, the Commission bargained for the right to delay with the insertion of the “no damage” provision. Moreover, Lombard was fully compensated for its expenditures due to changes in the work per the contract provisions; was granted time extensions beyond the contract period due to delays and changes, and made a profit on the contract, though less than the anticipated profit. “The dashing of one’s expectations is not sufficient reason to set aside the lawful responsibilities of a contract.” (Edward Electric Co. v. Metropolitan Sanitary District (1973), 16 Ill. App. 3d 521, 526, 306 N.E.2d 733. Damages recoverable in any action for breach of contract are limited to those reasonably foreseeable and within the contemplation of the parties at the time the contract was executed. (Wasserman v. Rosengarden (1980), 84 Ill. App. 3d 713, 406 N.E.2d 131.) In this instance, the parties contemplated no damages for any delay whatsoever. This is the contract of the parties and we must declare the rights of the parties only by the contract, as the language of that instrument dictates. Underground Construction Co.

For the foregoing reasons, we affirm the order of the trial court.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Mr. JUSTICE WILSON

delivered the opinion of the court:

In their petition for rehearing, Lombard argues that our opinion did not consider the issue of whether there is a quantitative or monetary limitation on changes in the work that might be ordered by a public body. It is their contention that because of the numerous changes the Commission made in the contract plans in excess of $2,500, the Commission was required, purusant to section 20 of the Public Ruilding Commission Act (Ill. Rev. Stat. 1969, ch. 85, par. 1050), to advertise for competitive bidding. We reject this contention because the interpretation of this section strains the intent of the statute. Section 20 is entitled “Contract let to lowest responsible bidder — Competitive bidding — Advertisements for bids,” and contains the requirements for all contracts to be let for construction, alteration, improvement, repair, enlargement, demolition or removal of any building or other facilities, or for materials or supplies to be furnished, where the amount thereof is in excess of $2,500. Essentially, Lombard asks us to require the Commission to advertise for bids on any changes in plans or specifications in excess of $2,500 on a contract already awarded pursuant to this section. We think this section applies where a contract has not been previously awarded. Where a contract has already been awarded to the lowest bidder (in this instance Lombard) and has a specific provision allowing for changes in the work, to advertise for changes already contemplated in the contract would in effect nullify the contract and negate the process for bidding. As a practical matter, this would hinder any construction projects undertaken by a public body. Changes were contemplated in the contract awarded to Lombard, and Lombard was fully compensated therefor.

The remaining issues Lombard raises for review were fully discussed in the text of the opinion.

Lombard’s petition for rehearing is denied.

SULLIVAN, P. J., and LORENZ, J., concur.

       Lombard specified the damages as follows:
      A. Directed Labor Loss $390,300.00
      (Budgeted Labor $1,207,600.00
      (Actual Cost $1,595,917.00
      B. Directed Cost Charges for Labor F.I.C.A. State and Federal Unemployment-Workmen’s Compensation General Liability Insurance $ 70,254.00
      C. Equipment Rental After Original Contract Completion Date $ 74,602.72
      D. Energy Supplied For Buildings After Original Completion Date $ 60,166.20
      E. Plus 10% Overhead $ 59.532.22
      F. Plus 15% Profit $ 98,228.16
      G. Indirect Labor costs $420,000.00
      H. Plus 15% Profit $ 62,000.00
      I. Estimated Int. on Funds Borrowed $100,000.00


source: Caselaw Access Project

author: Mr. JUSTICE LORENZ Mr. JUSTICE LORENZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN L. TURK (Impleaded), Defendant-Appellant.
    First District (5th Division)
    No. 79-2024
    Opinion filed October 9, 1981.
    — Supplemental opinion filed on denial of rehearing November 20, 1981.

      Ralph Ruebner and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Richard F. Burke, and Robert J. Kaiser, Jr., Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was convicted of the murder of Milton Daniels and the attempt murder and aggravated battery of Angela Lusk. He was sentenced to three concurrent terms of imprisonment of not less than 50 nor more than 100 years. Defendant appeals, contending that: (1) he was denied a fair trial when the jury was improperly instructed as to the intent requirement for the offense of attempt murder; (2) the prosecutor’s closing arguments were prejudicial and deprived him of due process of law; and (3) the trial court abused its discretion in imposing a sentence not considerate of restoring him to useful citizenship.

The pertinent evidence adduced at trial can be summarized as follows:

In April of 1976, Angela Lusk lived in an apartment on the second floor of a high-rise building in Chicago with her fiance, Milton Daniels, and one Leroy Damon. On April 25, 1976, she had a conversation with Damon, who was using narcotics, about the theft of her fur stole. He told her that he was getting narcotics from James Everette, who lived on the fifth floor of the building. She later ordered Damon to leave her apartment. That night, Lusk and Daniels went upstairs to Everette’s apartment, but he was not home. They left a message for him to come down to their apartment when he returned.

At about midnight, Everette came down to Lusk’s apartment. Everette told Lusk, who was alone, that Damon had given him her fur stole, and that it was in the possession of one of his friends. He then went into her bedroom, placed his gun on the dresser and took all of his clothing off. He told her that he would return her fur if she had sex with him, and when she refused, he dressed and left the apartment. When Daniels returned, Lusk told him what had transpired. Daniels later met with Everette to discuss the whereabouts of the fur.

The following morning, Lusk and Daniels went up to Everette’s apartment and told him not to worry about the fur stole, and that she “was going to let the police handle it.” They then returned to her apartment and called the police. Meanwhile, Daniels placed a gun in the back of his pants. Minutes later, Daniels answered a knock at the door. He let Everette and defendant into the apartment. Everette immediately pulled out a gun. Defendant also had a gun drawn and pointed it at Lusk. Lusk had never seen defendant before, and his name was never mentioned in connection with the disappearance of her fur stole.

Everette said that he was “tired of being hassled.” Lusk told him that his actions were “not necessary,” and that she had already called the police. However, defendant told them to “shut up and get on the floor.” Everette approached Lusk and Daniels, who were kneeling on the floor. While defendant kept his gun trained on them, Everette struck Daniels with a pair of handcuffs that he was carrying, and also slapped Lusk with the back of his hand. Then, Everette handcuffed Daniels’ hands behind his back. Grabbing him by the arm, Everette led Daniels into the bathroom. As Everette stood outside the bathroom door, Lusk suddenly stood up and said, “Lord, have mercy.” Defendant, who had previously told her not to move, shot her twice in the legs. Lusk fell on her side behind a chair that faced the couch. While on the ground, she was able to see the hallway where Everette stood. Everette, who was grinning, stated, “this nigger got a gun,” and then fired his gun about five times inside the bathroom. Daniels screamed out Lusk’s name a few times, but after the shots, he said nothing.

Lusk, who remained on the floor, played dead. She opened her eyes once and noticed defendant, who was standing near the door to the apartment. He opened the door, looked outside, returned and stated “we’re not going to be able to make it out of here.” Everette replied, “shoot that bitch in the head.” Lusk then felt a gun on the skin behind her ear. Somebody shot her in the head and she felt numb and “saw red.” A short time later, the police appeared at the scene.

Officer Edward Bluett of the Chicago Police Department arrived at Lusk’s apartment between 10:30 and 11:00 a.m. on the day of the incident to take a theft report. Bluett took the stairs to the second floor apartment. While in the stairwell, he heard three or four loud banging noises in succession, but did not know what those noises were. When he arrived at Lusk’s apartment and knocked on the door, someone inside yelled, “help, please, help, please.” With revolver drawn, Bluett entered and saw Lusk and Daniels on the living room floor bleeding. Defendant stood over Daniels and was wiping his hands on a towel. Bluett ordered defendant to drop the towel, raise his hands and come out into the hallway. One of the residents of the building assisted the police officer in handcuffing defendant. With his foot in the apartment door, Bluett radioed for assistance. He then saw Everette come out of the bedroom area of the apartment wearing a bathrobe. When Everette saw Bluett, he attempted to close the apartment door. Bluett ordered Everette to lie down on the floor, but the latter ignored him, retrieved two pairs of handcuffs from the front room floor and walked back into the bedroom area.

Soon, two other police officers arrived. Bluett and one of the officers found Everette in the bedroom holding the two pairs of handcuffs. Everette, who was bleeding from a gunshot wound to the leg, was placed under arrest, handcuffed to defendant and brought to the police station.

The officers found Lusk in the living room of the apartment with her head positioned behind a chair and her feet at the center of a table, while Daniel’s head rested near a television, with his feet towards a chair. Lusk was speaking incoherently. A knife was found on the floor near her head. Daniels was also alive and mumbling that he could not breathe. A .38-caliber Smith and Wesson revolver was found beneath his head. Expended .25-caliber shell casings were also recovered from the living room floor and from the top of a coffee table.

The officers searched the apartment for a gun to match the expended cartridges. They only found a .38-caliber five-shot revolver on a vanity across from the bathroom. Blood was splattered all over the bathroom toilet, sink, bathtub and floor, and there was another expended .25-caliber in the sink. One of the officers noticed two broken window panes in the bathroom, and later investigated the gangway under the window on the theory that a weapon may have been thrown through it to the ground below.

Later that day, Lusk was examined by Dr. Javid Hekmatpanah, a neurosurgeon. According to his testimony, the victim had paralysis of the arms and of the legs, which was caused by a bullet which had entered the left side of her neck, passed through her spinal cord, and lodged underneath the skin on the right side of the neck. Lusk also had six bullet wounds in her thighs; four on the right and two on the left. These wounds were “through and through,” and the bullets exited her body.

Daniels was examined by Dr. Yuksel Konacki an assistant Cook County Medical Examiner. In his opinion, Daniels’ death was caused by two bullet wounds, one to his right shoulder and one to the right side of his chest.

It was stipulated between the parties that Everette’s bond was forfeited for his failure to appear in court, and a warrant was issued for his arrest.

Four character witnesses then testified on defendant’s behalf as to his good reputation for being a peaceful, law abiding and truthful person.

Defendant, John Turk, testified on his own behalf that on April 26, 1976, he had been unemployed for two weeks and went to a construction site at 24th and Pulaski in Chicago at about 7 or 8 a.m. to search for work. Since he was not hired, he caught a bus to a White Castle at 79th and Pulaski, bought some hamburgers and a newspaper, and then took another bus to 71st and Jeffrey. Defendant, who had performed services for Everette in the past, proceeded to Everette’s apartment in order to put some locks on the door and bathroom of his apartment. He had known Everette since November of 1975 and was aware that he was a drug dealer. Defendant arrived at Everette’s apartment at about 9 a.m., but could not immediately start the work since it was “too early to be banging on any doors.” He read his newspaper, ate his hamburgers and slept for about an hour. Defendant was then awakened by a knock at the door. Everette answered the door and went into the hallway, closing the door behind him. Defendant did not hear or recognize the voices of the people to whom Everette was speaking.

About 10 minutes after Everette returned, he stated to defendant: “John; I have a beef with some people downstairs, I want you to go downstairs with me.” They took the elevator to Lusk’s apartment. Defendant had no knowledge of any stolen fur and did not know Lusk, Daniels or Damon. Everette knocked on the door and Daniels allowed them into the apartment. Then, Everette pulled out a gun and ordered Daniels and Lusk to get on the floor. This was the first time defendant saw a gun in Everette’s possession. Defendant had no gun that morning and said nothing to Lusk or Daniels. He merely remained near the apartment door.

Everette told Lusk that he did not take her fur. She replied, “I didn’t say you took it,” and was then slapped by Everette. Daniels got up from the floor and ran toward the bathroom. Everette chased Daniels^- At-this point, defendant ran down the hallway and heard shooting. After he reached the end of the hallway, about 15 or 20 yards away, he stopped, listened to the shots, and returned to the apartment. Entering, he saw Everette in the living room between the bathroom and the bedroom striking Daniels about the head with two sharp objects that he held in each hand. Shortly thereafter, the police arrived. Defendant denied shooting Lusk or Daniels, and stated that Everette did not order him to shoot Lusk in the head. On cross-examination, defendant admitted that he had been convicted on October 28, 1969, of criminal trespass to a vehicle and sentenced to six months probation.

Other relevant facts will be discussed during the analysis of the issues raised on appeal.

Opinion

Defendant first contends that he was denied a fair trial when the jury was improperly instructed as to the intent requirement for the offense of attempt murder. The tendered definitional instruction for attempt murder reads as follows:

“A person, or one for whom he is responsible commits the crime of attempt, who, with the intent to commit the crime of murder, does any act which constitutes a substantial step toward the commission of the crime of murder. The person, or one for whom he is responsible, must have intended to kill.”

The crime attempted need not have been committed. The jury was also given the “issue” attempt murder instruction:

“To sustain the charge of attempt, the State must prove the following propositions:
First: That the defendant performed an act which constituted a substantial step toward the commission of the crime of murder; and
Second: That the defendant did so with the intent to commit the crime of murder.
If you find from your consideration of all the evidence that each of these propositions had been proved beyond a reasonable doubt, then you should find the defendant guilty. If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

Finally, the jury received the definitional murder instruction:

“A person, or one for whom he is responsible, commits the crime of Murder, who kills an individual if, in performing the acts which cause the death,
He, or one for whom he is responsible, intends to kill or do great bodily harm to that individual; or he, or one for whom he is responsible, knows that such acts will cause death to that individual; or he, or one for whom he is responsible, knows that such acts create a strong probability of death or great bodily harm to that individual.”

Defendant asserts that these instructions, when read in conjunction with each other, are erroneous and misled the jury into believing that defendant’s attempt murder conviction could be sustained on a finding that he intended to cause great bodily harm to Lusk, instead of the required finding that he intended to kill her. The defect or ambiguity in the instructions allegedly arises from the conflicting intent requirements found in the definitional and the issue instructions for attempt murder. The former instructs that defendant, to be guilty, must have “intended to kill,” while the latter states that he must have had the “intent to commit the crime of murder.” The meaning of “intent to kill” is self-explanatory. However, “intent to commit the crime of murder” is described by the definitional murder instruction as intent to kill, or, inter alia, to “do great bodily harm to that individual.” Hence, defendant argues the jury may well have concluded that proof of his specific intent to kill was unnecessary in order for them to return a guilty verdict of attempt murder, and that a lesser showing of his intent to do great bodily harm would suffice.

In response, the State argues that any alleged defects in the instructions are waived by defendant by his failure to sufficiently object to them at trial and in his motion for a new trial. The State also maintains that the instruction properly informed the jury of the required specific intent to kill, and alternatively, that any alleged error contained therein is harmless. We shall first address the waiver issue.

At the instructions conference, defense counsel objected to both the definitional and the issue attempt murder instructions on the basis that they did not adequately convey to the jury that attempt murder is a specific intent crime. Considerable discussion was given this matter by the prosecutor and defense counsel in the trial court’s presence. In addition, defendant specifically listed these instructions as erroneous in his written motion for a new trial. The reason for the waiver rule is that timely objections to defective instructions permit the court to correct the defects before the instructions are given and do not therefore permit a party failing to object to gain the advantage of obtaining a reversal based upon his own failure to act. (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331.) In our opinion, defense counsel’s objections to the instruction made at the instructions conference and in the motion for a new trial gave the trial court sufficient notice of the issue that is now before us on review. Invocation of the waiver rule is, therefore, inappropriate.

Turning to the propriety of the tendered instructions, we start with the undisputed rule that to obtain a conviction for attempt murder, the jury must be unambiguously instructed that defendant had the intent to kill the victim; intent to cause great bodily harm is not enough. (People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888.) As we have discussed, the jury in this case was informed in the definitional instruction for attempt murder that proof of defendant’s “intent to kill” was required, yet was also told in the issue instruction that “intent to commit murder” need be proven. The offense of murder, however, does not always require specific intent to kill. Specific intent to do grave bodily harm or knowledge that one’s actions will cause or could cause death or bodily harm are also sufficient mental states for murder. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a).) Thus, we believe that the instructions are erroneous since they could have permitted the jury to return a verdict of guilty of attempt murder upon evidence that defendant only intended to cause the victim great bodily harm short of death.

Our supreme court has held, however, that where the intent to kill is “blatantly evident from the circumstance,” error in the jury instructions can be deemed harmless. (People v. Jones (1979), 81 Ill. 2d 1, 10, 405 N.E.2d 343, 346; see also People v. Lindsay (1978), 67 Ill. App. 3d 638, 384 N.E.2d 793.) In Jones, defendant, a juvenile, and his adult accomplice approached a man on the street who was waxing his car. Armed with weapons, they seized his wallet and brought him to an abandoned house. As the man was marched toward the house by the assailants, he was knocked to the ground due to several blows he received to the back of his head. Medical testimony adduced at trial revealed that the victim suffered four gunshot wounds to the back of his head and to his back. Defendant admitted participating in the robbery, but denied any involvement in the shooting, alleging that he fled from the abandoned house when his accomplice ordered him to shoot the victim.

Upon his conviction for attempt murder and armed robbery, the defendant in Jones alleged that the attempt murder instruction and the definitional murder instruction were fatally deficient, since the former incorporated by reference the latter, which included mental states other than the specific intent to kill. The court held the error in the instructions to be harmless, noting that the defendant’s intent to kill was obvious from the facts of the case, and that the only question was whether the defendant was the perpetrator or one of the perpetrators. The court distinguished earlier cases where the evidence was not evaluated to determine whether it was so overwhelming as to withstand the damage of erroneous attempt murder instructions, (Harris; Trinkle; People v. Tamayo (1978), 73 Ill. 2d 304, 383 N.E.2d 227) on the basis that, in those cases, defendants’ intent to kill was highly questionable.

We find the harmless error doctrine espoused in Jones to be applicable to the instant case in light of the abundant evidence of defendant’s intent to kill Lusk. Here, as in Jones, defendant alleged that he fled from the scene of the crime, and denied participating in the shooting. Likewise, the issue in this case was whether defendant was one of the perpetrators. The jury in the instant case rejected defendant’s testimony and chose to believe that of the victim. Lusk testified that defendant ordered her to “shut up and get on the floor,” and later shot her twice in the legs. On Everette’s command, someone shot Lusk at point blank range behind her ear, paralyzing her. From these actions, intent to kill is clear.

Defendant argues that the error created by the instructions cannot be harmless since there is evidence that Lusk was neither shot at close range nor in a calculated manner. Defendant points to Officer Bluett’s testimony that he heard three or four noises in succession while in the stairwell, and also stresses the absence of physical evidence corroborating a close range gunshot wound, in an effort to show that Lusk was hit in a “shoot-out” rather than in the way she described. According to defendant, this evidence, if believed by the jury, would have shown that defendant did not intend to kill the woman. This argument is without merit. The testimony and physical evidence shows that Daniels was shot while in the bathroom, nowhere near Lusk. Furthermore, Bluett did not even identify the banging noises as gunshots, nor did he state that they came from Lusk’s apartment. As to the absence of corroborating evidence of the point blank range of the shot, it is apparent that the jury preferred Lusk’s testimony to that of defendant and was satisfied with her explanation of the wound to her neck. Therefore, we believe that even if a corrected instruction had been given, the jury could only find that defendant acted with specific intent to kill Lusk and was guilty of attempt murder.

Defendant next contends that he was denied a fair trial by the prosecutor’s closing arguments to the jury. More specifically, defendant asserts that certain of the prosecutor’s comments improperly suggested that he ingested drugs during his visit to Everette’s apartment on the morning of the crime. Those remarks were as follows:

“PROSECUTOR: The first thing he does when he gets to Everette’s place, he doesn’t fix the lock; what does he do? The first thing, he eats the hamburgers, then he falls asleep. Now what do you suppose it is, ladies and gentlemen, that would cause him to be sleepy so soon after arriving at a known dope dealer’s house? What do you suppose it would be? What do you suppose would cause you to have a strange look in your eye when you went down to another person’s apartment?
DEFENSE COUNSEL: Objection, Judge, there is no testimony about that.
THE COURT: Sustained as to the strange look in the eye.”

Reference to these remarks is not made in defendant’s written motion for a new trial. The motion for a new trial only generally alleges that the closing arguments were inflammatory, prejudicial, invaded defendant’s right to counsel and “exhorted the jury to convict the defendant based on matters which [are] dehors the record in violation of the defendant’s rights under the Sixth and Fourteenth Amendment to the United States Constitution.” At oral argument on the motion for a new trial, defense counsel neglected to allege the impropriety of these particular remarks. In fact, defense counsel emphasized as error another comment not raised for review, wherein the prosecutor allegedly informed the jury that defendant had lied to his lawyer.

Based upon these facts, we hold that the remarks in question were not sufficiently brought to the attention of the trial court and are therefore waived for purposes of review. See People v. Witherspoon (1975), 33 Ill. App. 3d 12, 337 N.E.2d 454.

Finally, defendant contends that his sentences are excessive. Defendant first argues that his sentence for aggravated battery must be reduced since it exceeds the maximum period allowed by statute. He also maintains that his sentences for murder and attempt murder should be reduced since they do not consider defendant’s potential for rehabilitation.

We agree with defendant that he was improperly sentenced for the crime of aggravated battery. After the jury returned its verdict of guilty for the murder of Daniels and the attempt murder and aggravated battery of Lusk, the trial court entered judgment on the findings for all three offenses. Defendant elected to be sentenced pursuant to the law as it existed at the time of the offense. (Ill. Rev. Stat. 1979, ch. 38, par. 1008 — 2—4(b).) After the sentencing hearing, defendant was sentenced to three concurrent terms of no less than 50 nor more than 100 years in the penitentiary. The offense of aggravated battery, a Class 3 felony, as it existed in April of 1976, provided for a minimum sentence of one and a maximum of ten years, and the minimum sentence could be no greater than one-third of the maximum. (Ill. Rev. Stat. 1975, ch. 38, pars. 12 — 4(a), 1005 — 8—1(b)(4), (c)(4).) Since defendant’s sentence of 50 to 100 years clearly exceeds the applicable statutory range, his sentence for aggravated battery is hereby vacated and remanded for proper concurrent sentencing.

We do not agree, however, with defendant’s contention that the trial court abused its discretion in sentencing him to 50 to 100 years for the offense of murder and attempt murder. Nor do we accept his argument that the sentences imposed are not considerate of the constitutional objective of restoring him to useful citizenship. (Ill. Const. 1970, art. I, §11). It is well established that a reviewing court may alter the sentencing judge’s disposition only upon a finding of an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Before setting the sentence, the court noted the seriousness of the crimes for which defendant stands convicted, which involved “the death of one person and the living death of another.” The trial court also considered defendant’s prior conviction for criminal trespass to vehicle. On the other hand, the trial court specifically acknowledged defendant’s family background and 0 ° grievefd] for the defendant’s family, his wife, his three children.” Also brought to the trial court’s attention were the following factors pertaining to defendant’s rehabilitation: his strong family ties, his good employment record, that he was 40 years old with no history of violent crimes; and that he was convicted under an accountability theory. The record reflects that the sentence bestowed upon defendant by the court was rendered after full consideration of all factors presented in aggravation and mitigation. In light of the heinous nature of the offenses committed by defendant, we see no reason why his sentences should be disturbed.

For the reasons stated, the judgment of the circuit court is affirmed. Defendant’s sentences for murder and attempt murder are affirmed. His sentence for aggravated battery is vacated and this cause is remanded for resentencing on that crime alone.

Affirmed in part; vacated and remanded in part.

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

SUPPLEMENTAL OPINION ON DENIAL OF REHÉARING

Mr. JUSTICE LORENZ

delivered the opinion of the court:

In his petition for rehearing, defendant contends that this court improvidently ruled on two of the issues raised for review. First, defendant argues that we erroneously waived the issue concerning the allegedly improper remarks by the prosecutor in closing arguments. Second, it is maintained that the tender of the erroneous attempt murder instruction to the jury is not harmless error as we have held, but constitutes reversible error and requires a new trial.

As to the first contention, defendant claims that the issue concerning the prosecutor’s comment suggesting defendant’s use of drugs on the morning of the offense was sufficiently brought to the trial court’s attention since it was objected to at trial and included in his motion for a new trial. We believe this contention to be without merit.

Contrary to defendant’s assertion, it is our opinion that this issue was neither raised with sufficient specificity in the motion for a new trial, nor was it objected to at trial. As a result, no opportunity was given to the trial judge to review his own ruling, and we were deprived of the benefit of that ruling. Recently, in Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337, our supreme court emphasized the importance of specificity in post-trial motions and described its purpose as threefold:

“First, it allows the decision maker who is most familiar with the events of the trial, the trial judge, to review his decisions without the pressure of an ongoing trial and to grant a new trial if, on reconsideration, he concludes that his earlier decision was incorrect. [Citations.] Second, by requiring the statement of the specific grounds urged as support for the claim of error, the rule allows a reviewing court to ascertain from the record whether the trial court has been afforded an adequate opportunity to reassess the allegedly erroneous rulings. Third, by requiring the litigants to state the specific grounds in support of their contentions, it prevents them from stating mere general objections and subsequently raising on appeal arguments which the trial judge was never given an opportunity to consider. (Citations.)” Brown, 83 Ill. 2d 344, 349-50, 415 N.E.2d 337, 339.

An examination of defendant’s post-trial motion reveals that it fails to meet the criteria set forth in Brown, since the trial judge was afforded no opportunity to rule on the issue presented for review. The inadequacy of the motion for a new trial in this case is made apparent by the conspicuous absence of the specific remarks now claimed to be erroneous. Instead, the motion merely claims that the arguments were “inflammatory, prejudicial and invaded the defendant’s Sixth Amendment right to counsel and exhorted the jury to convict the defendant based on matters which [are] dehor [sic] the record in violation of defendant’s rights under the Sixth and Fourteenth Amendments of the United States Constitution.” Normally, omission of the specific remark alleged as erroneous from the motion for new trial precludes its consideration on appeal. (See People v. Rodriguez (1978), 58 Ill. App. 3d 562, 374 N.E.2d 904.) The failure to include the specific comment must be viewed as fatal for purposes of review in this particular case since its mention was again neglected at the hearing on the motion for a new trial. At the hearing, defense counsel only argued that error in closing argument occurred when the prosecution 0 ° said to the jury that John Turk had even lied to his lawyer.” Hence, the trial judge was not made aware of the remark now complained of.

Defendant argues that we have overlooked defense counsel’s statement to the trial court at the hearing that his failure to “argue the totality of the motion” should not be construed as his abandonment of it. We have not overlooked this statement. Indeed, we also note defense counsel’s next statement at the hearing: “I see no useful purpose in going back into arguments we have extensively had at one time or another already.” Turning to the" record, it is evident that there were neither extensive arguments nor objections made to the prosecutor’s inference of defendant’s drug use on the day of the crime.

During closing arguments, defense counsel chose not to object to the prosecutor’s remarks questioning defendant’s behavior in going to a “known dope dealer’s house.” Rather, objection was only interposed to the reference to the “strange look” in defendant’s eye when he was at the victim’s apartment. The trial court sustained the objection “as to the strange look in the eye.” Defense counsel did not request that the court encompass the rest of the prosecutor’s comment in the sustained objection, nor did he ask that the jury be admonished to disregard it. It is clear from this exchange that defense counsel did not object to the inference of defendant’s drug use, but only to the fact that there was no testimony as to the “strange look” in defendant’s eye at the time of the crime. Earlier, during the direct examination of the victim, defense counsel’s objection was sustained to her testimony that defendant looked “strange” and “mean,” on the grounds that it “callfed] for a conclusion.” The objection at closing arguments was no more than a renewal of this earlier objection and was properly sustained on this basis. Since no objections were raised at trial to the remarks concerning defendant’s use of drugs, it cannot be said the general assertions contained in the motion for a new trial sufficiently alerted the trial judge to this issue.

Defendant cites People v. Rivera (1978), 62 Ill. App. 3d 401, 378 N.E.2d 1293, in support of his position that his post-trial motion is sufficiently specific to preserve the alleged error in closing arguments. In Rivera, the court found that defendant’s motion for a new trial contained sufficient particularity to afford the trial court identity of the error in the prosecutor’s closing argument (i.e., that defendant’s prior conviction was evidence of guilt in the pending prosecution). The motion stated that the State’s Attorney’s “prejudicial inflammatory and erroneous statements in closing argument” denied him a fair trial. However, in Rivera, the point raised in the motion for a new trial and on appeal was specifically objected to at trial, unlike in the instant case. In addition, there is no indication in that case that defendant pointed to a prosecutor’s remark at the hearing on the motion for a new trial that differed from the one offered on appeal. Therefore, Rivera is distinguishable from this case and is of no aid to defendant.

Defendant next contends that our holding that no reversible error occurred when the jury received an erroneous instruction on attempt murder is based upon a misapprehension of facts. In short, he argues that his intent to kill Lusk is not evident from the testimony adduced at trial.

Defendant first relies on Officer Bluett’s failure to hear the isolated gunshot Lusk testified had been fired following Daniels’ shooting when the assailants detected the presence of the police. According to defendant, this testimony lends support to his theory that Lusk was not shot in the manner she described, but was the victim of a stray bullet in a shootout between Everette and Daniels. However, as we have previously stated, Bluett did not identify the three or four noises he heard while in the stairwell as gunshots, nor did he state that they came from Lusk’s apartment. It is noteworthy that Bluett did not draw his revolver after hearing these noises. Hence, his testimony fails to show that the noises were related in any way to the commission of the crime, or that it would have been likely for him to hear the single gunshot which followed the others. Moreover, since these noises were not identified as gunshots, the jury could have properly concluded that all of the shooting, including the isolated shot fired into Lusk, occurred before Bluett even entered the stairwell.

Defendant also argues that Lusk’s testimony as to the timing and manner of her shooting is contradicted by Bluett’s failure to observe defendant looking out the apartment door as he approached the scene, and by Officer Jones’ testimony that one could not see the apartment door from the stairwell. It is asserted that this testimony is inconsistent with Lusk’s testimony that she was shot immediately after defendant looked out the apartment door and said, “We’re not going to be able to make it out of here.” We disagree.

Defendant’s statement does not establish that he saw a police officer when he looked out the door. It is equally as likely that he saw residents of the apartment building who were alerted by the initial gunshots, or that he simply heard someone say that the police had arrived. These possibilities find support in the record. It was, in fact, a resident of the building who later assisted Bluett in handcuffing defendant in the hallway. The failure of Bluett to observe defendant looking out the door would be consistent with Bluett’s testimony that he did not hear the lone gunshot, which would have been fired before he came within the range of hearing it.

Finally, defendant maintains that the presence of firearms evidence in the living room and hallway near the bedroom negates Lusk’s testimony that Daniels was shot in the bathroom, and supports the theory that she received a bullet meant for him. While it is true that such evidence was found in locations outside the bathroom, and that Lusk and Daniels were found by the police lying on the living room floor bleeding, this evidence is consistent with the State’s theory that the assailants placed the bodies and evidence together in an effort to make it appear that the victims had shot each other. For the jury to have believed that Daniels was shot while in the living room, they would have been required to disbelieve Lusk’s testimony that it took place in the bathroom and also to ignore the evidence of the blood which was spattered throughout the bathroom, the expended .25 cartridge in the sink, and the broken window panes in the bathroom.

In conclusion, we reiterate that defendant’s intent to kill is clear from his actions at Lusk’s apartment. Lusk, the only witness to the murder of Daniels, testified that defendant ordered her to “shut up and get on the floor,” and not to move. He held his gun on the victims while Everette struck Daniels, and later shot her in the legs when she attempted to get up. According to Lusk, the paralyzing shot to her neck was not received during a “shoot-out” but at point blank range after Everette stated: “Shoot that bitch in the head.” The evidence convincingly demonstrates that the jury could only have found that defendant intended to kill Lusk and is guilty of her attempted murder.

We, therefore, reject defendant’s contention that reversible error occurred when the jury received the defective attempt murder instruction.

Accordingly, the petition for rehearing is denied.

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

       It is irrelevant, of course, as to which of the two assailants actually shot Lusk, since they are legally accountable for each other’s conduct.


author: Mr. JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH MERNEIGH, Defendant-Appellant.
    Second District
    Nos. 80-217, 80-805 cons.
    Opinion filed November 13, 1981.
    Mary Robinson and David S. Morris, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago, and J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Thomas E. Holum, Assistant Attorney General, of counsel), for the People.
   Mr. JUSTICE VAN DEUSEN

delivered the opinion of the court:

Following a jury trial, the defendant Joseph Merneigh was convicted of rape (Ill. Rev. Stat. 1973, ch. 38, par. 11 — 1) and deviate sexual assault (Ill. Rev. Stat. 1973, ch. 38, par. 11 — 3(a)) and was subsequently sentenced to concurrent terms of 20 to 60 years in the Illinois State Penitentiary.

This court affirmed the defendant’s conviction on direct appeal, and a petition for leave to appeal to the Illinois Supreme Court is now pending. During the pendency of his direct appeal, the defendant filed both a petition for post-conviction relief (Ill. Rev. Stat. 1979, ch. 38, par. 122 — 1 et seq.) and a section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72). The post-conviction petition alleged, inter alia, that at the original sentencing hearing the trial court had considered two prior convictions which were later reversed and that the defendant had not discovered this fact until after the sentencing for the instant crimes. These same allegations formed the basis of defendant’s section 72 petition wherein he requested that he be granted a new sentencing hearing.

At defendant’s sentencing hearing, the State had presented evidence of four prior Georgia convictions and commented that these convictions and the presentence report showed the defendant’s long, extensive criminal past. Certified copies of these four convictions had been admitted into evidence at a bond hearing prior to sentencing. In Georgia, defendant had pleaded guilty to the felonies of robbery in 1965 and burglary in 1971 and was found guilty after a jury trial of two misdemeanors, simple battery and filing a false report of a crime, in 1970. The misdemeanor convictions were set aside for constitutional infirmities by a Georgia Federal court in 1971 and vacated by the State court on August 8, 1978. The presentence report also revealed four additional Georgia convictions since 1959, including an additional robbery conviction in 1963.

The same trial judge, who had presided at defendant’s trial and conducted the original sentencing hearing and imposed sentence on the defendant, considered and dismissed both petitions on the State’s motion. Defendant appealed from the dismissal of his two petitions in this consolidated appeal.

It is undisputed that it is improper for the sentencing judge to consider prior convictions subsequently reversed for constitutional flaws as aggravating factors in determining an appropriate sentence. (United States v. Tucker (1972), 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589; People v. Chellew (1974), 20 Ill. App. 3d 963.) It is also undisputed in this matter that the defendant’s misdemeanor convictions in Georgia for simple battery and filing a false report of a crime were vacated and that they had been considered by the trial judge in imposing sentence at the original sentencing hearing. This court has held in People v. Buckley (1977), 44 Ill. App. 3d 1038, that where, as here, an invalid conviction was included in the presentence report and referred to by the prosecutor at the sentencing hearing, the trial court “obviously considered the [invalid] conviction in pronouncing sentence,” and the case must be remanded for reconsideration of the defendant’s sentence even if the sentence given may have been warranted because of the background information in the presentence report excluding any invalid convictions. 44 Ill. App. 3d 1038, 1039.

In this case, however, the trial judge’s error in considering the prior constitutionally infirm convictions in the original sentencing hearing was brought to the attention of the same trial judge in the defendant’s section 72 petition and petition for post-conviction relief. In denying the defendant’s section 72 petition, the trial judge made clear that he had reviewed his original sentence after excluding the invalid misdemeanor convictions and found the sentence imposed to be proper. The trial judge’s order denying the petition stated that briefs and arguments had been presented on the issues and the court found as follows:

“[I]n view of the heinousness of the offenses, the pre-sentence report, and the two prior convictions, any additional effect of the two misdemeanor offenses on the severity of the sentence imposed would be insignificant.”

Because the trial judge in the instant case did consider the impact, if any, of the invalid misdemeanor convictions on the sentences imposed, this case is distinguishable from United States v. Tucker and People v. Buckley. The “real question” in Tucker was whether the sentence imposed would have been different if the sentencing judge had known that two prior convictions had been unconstitutionally obtained. (404 U.S. 443, 448, 30 L. Ed. 2d 592, 597, 92 S. Ct. 589, 592.) The Supreme Court approved, remanding the cause to the District Court for resentencing without consideration of any prior invalid convictions, finding that “the [defendant’s] background would have appeared in a dramatically different light at the sentencing proceeding” if the sentencing judge “had been aware of the constitutional infirmity of two of the previous convictions.” 404 U.S. 443, 448, 30 L. Ed. 2d 592, 597, 92 S. Ct. 589, 592.

In Crovedi v. United States (7th Cir. 1975), 517 F.2d 541, the court found that in dismissing a section 2255 petition, the district court sentencing judge had applied-the Tucker principle when he reconsidered the sentence imposed on the assumption that the prior convictions in question were to be disregarded ancf found that the sentence was appropriate. The Crovedi court found that the sentencing judge in that case was in the same position as the trial judge in Tucker would have been following remand and that “[a] remand Jpr reconsideration could accomplish no more than that which [had] alréády occurred.” (517 F.2d 541, 547.) In Farrow v. United States (9th Cir. 1978), 580 F.2d 1339, 1354, the Court of Appeals for the Ninth Circuit found that the sentencing judge may determine out of his own recollection whether the defendant’s sentence was enhanced because of consideration of invalid prior convictions or, where the judge lacks effective recollection of his previous mental state, he may reconsider the appropriateness of sentence from a reconstruction of the record assuming the invalidity of the prior conviction. “ ‘[T]he judge’s own estimation of the deleterious impact of the prior convictions on his determination of sentence’ will not be reversed absent clearly contradictory evidence in the record.” 580 F.2d 1339, 1355, citing Wilson v. United States (9th Cir. 1976), 534 F.2d 130, 132.

In the case before us, the defendant has failed to point to any evidence in the record which would indicate that the trial judge did not clearly recall the matters which he originally took into consideration in imposing sentence on the defendant. The record does not contradict the trial judge’s assertion that defendant’s sentence for the instant offenses was not enhanced because of his consideration of the two prior invalid misdemeanor convictions in question at the original sentencing hearing. (See 580 F.2d 1339, 1355-56.) Therefore, the trial judge’s determination that the effect of those convictions on the sentence imposed was insignificant will not be disturbed. In light of this determination, the trial judge’s consideration of the two prior invalid misdemeanor convictions at the original sentencing hearing produced no substantial denial of defendant’s rights under the Federal or State constitutions.

The orders of the trial court dismissing the defendant’s section 72 petition and his petition for post-conviction relief are affirmed.

Affirmed.

SEIDENFELD, P. J., and REINHARD, J., concur.


author: Mr. JUSTICE STAMOS

text:
    WAYNE NELSON, Plaintiff-Appellant, v. SPEED FASTENER, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 80-2016
    Opinion filed July 28, 1981.
    — Modified on denial of rehearing December 1, 1981.

      John S. Adler, of John D. Hayes and Associates, Ltd., of Chicago, for appellant.
    David Acker, of Winston & Strawn, of Chicago, for appellee Speed Fastener, Inc.
    Sweeney & Riman, Ltd., of Chicago, for appellee Brosius Bros., Inc.
    Francis Higgins, of Bell, Boyd, Lloyd, Haddad & Burns, of Chicago, for appellee Underwriters Laboratories, Inc.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff Wayne Nelson brought an action to recover damages resulting from a construction accident. Plaintiff was injured when some small metal particles entered his left eye, leading to an eventual loss of vision in that eye. Plaintiff asserts that his injury was caused by a defectively designed tool. The tool in question is a Speed Fastener Model 825 powder actuated stud driver, commonly called a stud gun. The tool was designed and marketed by Speed Fastener, Inc., and manufactured by Brosius Brothers, Inc. Speed Fastener and Brosius were joined as defendants under the theory of strict liability in tort. Underwriters Laboratories, Inc., which had tested and approved the Model 825, was joined in a negligence count.

The cause went to trial and the jury heard testimony from 13 witnesses for the plaintiff. At this juncture, defendants filed a joint motion in limine to exclude the testimony of Ralph Barnett, plaintiff’s expert witness. The trial court found plaintiff’s evidence insufficient to support an expert opinion that a defect in the stud gun proximately caused plaintiff’s injuries, and on this basis the court granted the motion to exclude plaintiff’s expert witness. All three defendants then moved for directed verdicts, which the trial court granted. Plaintiff appeals.

The principal issue on appeal is the propriety of the trial court’s exclusion of plaintiff’s expert witness. Since the trial court based its ruling on the lack of factual support for the expert’s conclusions, the facts as elicited from plaintiff’s witnesses must be reviewed in some detail.

Plaintiff was a carpenter employed by Dewitt Clinton Bend, a construction contractor in Sterling, Illinois. Bend was involved in the construction of an addition to the Faith Baptist Church in Sterling. On April 18,1973, the date of the occurrence, Bend’s crew was engaged in the erection of exterior walls and interior partitions on a concrete slab floor. The addition to the church was a prefabricated building, so the principal tasks of the construction crew at this time were the unloading of numbered wall segments and the fastening of these wall segments to each other and to the concrete floor.

Prior to erecting the wall segments, the workers snapped chalk lines on the floor to fix the location of the exterior walls and interior partitions. The workers then fastened steel plates to the concrete floor. These plates, which the men called “angle iron,” were heavy sheet metal pieces approximately 48 inches long, 3/2 inches wide on the horizontal surface (the side fastened to the floor), and 1/2 inches high on the vertical surface. The plates were 16-gauge steel (approximately 1/16-inch thick) and had holes drilled on the vertical surface. The plates were fixed to the floor, end to end, and the wall segments were then lowered by a crane to rest on the plates. The workmen next attached the wall segments to the plates by driving nails through the predrilled holes and into the wood framing of the wall segments. When the walls have been plumbed and fastened at the top, the roof can be laid and the building is complete.

Bend’s crew used a stud gun to fasten the steel plates to the concrete floor. This tool is called a “powder actuated stud driver” because it uses the force of an exploding powder charge to drive a fastener (the stud) into concrete or metal surfaces. The tool resembles a large pistol, with a pistol-type grip and trigger and a large, thick barrel. At the end of the barrel is a saucer-shaped guard assembly. In order to operate the tool, the barrel is opened, a powder load is inserted, and a fastener is placed in the barrel. The fastener can be a high-strength nail or a stud with a threaded shaft. The tool cannot be fired unless the guard at the end of the barrel is pressed against the work surface. In this configuration, the guard acts to contain any flying debris that might result from the fastener’s being impelled into the work surface. This feature also prevents the tool from being used as a weapon.

The design of the tool, however, does not require that the guard be absolutely flush or that the work surface be perfectly flat. While the tool must be pressed against the work surface with several pounds’ pressure, the tool may be fired while tilted a few degrees from the perpendicular. This aspect of the tool’s design enables the tool to be used on uneven surfaces. When the tool is fired from a tilted position, the guard is no longer flush with the work surface, so some debris may be emitted. The amount of allowable tilt depends on the position of the guard. In its fully opened position, the guard is roughly circular in shape and is approximately 4*2 inches in diameter. By loosening a thumbscrew, the shape of the guard can be altered. In its fully closed position, the guard is a rectangle 3/2 inches by 4 inches. The closed position allows studs to be driven in close proximity (1 inch) to a wall or other obstruction. With the guard in the fully opened position, the maximum angle of fire (the angle by which the tool may deviate from the perpendicular and still be fired) is 5°. At this angle, the gap between the guard and the work surface is one-quarter inch. With the guard in the fully closed position, the maximum angle of fire is approximately 11°, and the gap between the guard and the work surface is nearly three-quarters of an inch.

The angle of fire and the gap between the guard and the work surface are of vital concern to plaintiff, since he maintains that he was struck in the eye by flying metal chips that escaped from beneath the guard of the stud gun. At the time of his injury, plaintiff was kneeling on the floor, snapping a chalk line. A co-worker, Leo Coble, was holding the other end of the chalk line. A third man, John McGava, was using a Speed Fastener stud driver to fasten the angle iron plates to the concrete floor. No other workmen were in the vicinity. At one point, while McGava was between 8 and 20 feet from plaintiff, plaintiff felt something enter his left eye. The injury occurred simultaneously with a loud noise, similar to the sound of a stud gun. Plaintiff did not immediately tell his co-workers of the injury, but instead went to a washroom to wash his eye. Later that day, his co-workers noticed the bloodshot condition of his eye, and suggested that plaintiff see a doctor. Plaintiff completed the day’s work and made an appointment to see a doctor the next day. It was not until a few days after the accident that plaintiff concluded that there was a connection between the operation of the stud driver and the injury to his eye.

Several minute metal chips were removed from plaintiff’s eye. The largest particle was approximately 1 millimeter long. A metallurgical analysis of these chips indicated that they in all likelihood had come from the metal plates that were being fastened to the floor. Plaintiff contends that the stud gun, which was shooting hardened metal fasteners through the metal plates into the concrete floor, allowed high-velocity debris to escape from beneath the guard and penetrate his eye. Plaintiff’s expert witness, had he been allowed to testify, would have concluded that the stud gun was defectively designed and unreasonably dangerous because, with the guard in the closed position, the tool could be fired 10° to 12° from the perpendicular, and this angle produced an unacceptably large gap of nearly three-quarters of an inch between one side of the guard and the work surface. Plaintiff’s expert witness acknowledged that, with the guard in the open position, the angle of fire and the gap are much smaller (5° and one-quarter inch, respectively), and the tool is not unsafe when so used. While it is still possible for debris to escape through the one-quarter inch gap, plaintiff’s expert found this to be an acceptable risk, since it is desirable that the tool be able to operate on an uneven work surface.

Defendants argue that plaintiff’s expert witness was properly excluded because his opinion that the tool is unsafe was based on facts not in evidence. Specifically, defendants point out that, according to the expert’s opinion, the tool is only unreasonably dangerous when it is operated at a tilt exceeding 5°, and the tool will not operate at such an angle unless the guard is in the closed position. Since no witness testified that the tool was being fired at an angle or that the guard was in the closed position, defendants maintain that an expert opinion that the tool is dangerous under these conditions is incompetent.

There was little testimony as to the actual operation of the stud gun on the day of plaintiff’s injury. The evidence established that DeWitt Bend had completed nearly all of the stud driving on that day. When asked at trial what position the guard was in, Bend testified, “I think it was down here this way.” Defense counsel noted for the record that Bend was referring to the “rectangular position” of the guard; this is the closed position. Bend was later impeached on that point, as he had stated at a deposition that he could not remember the position of the guard. John McGava testified that, while Bend was attending to another matter, McGava “took the stud gun and whacked a couple plates in for him.” If Bend’s trial testimony is believed, the jury could have inferred that Bend operated the tool with the guard in the closed position and McGava did not alter that configuration when he took the tool to “whack a couple plates.” Both men testified that they operated the tool in the perpendicular position with the guard flush against the plates and did not see any debris emitted.

The trial court relied in large part on the case of Forney v. Calvin (1975), 35 Ill. App. 3d 32, 340 N.E.2d 603. The Forney case recites the accepted rules concerning lay and expert testimony. Lay witnesses can only testify to facts within their personal knowledge; expert witnesses, on the other hand, are allowed to draw conclusions from the facts, provided that the jury is incompetent to draw such conclusions, and only if the expert’s opinion is based on facts adduced at trial. The expert’s conclusions may not be based on “mere conjecture.” (See Forney v. Calvin (1975), 35 Ill. App. 3d 32, 38.)

Plaintiff contends that his expert witness’ opinion was based on more than conjecture. It is undisputed that plaintiff’s eye was penetrated by metal fragments, and it is highly probable that these fragments came from the steel plates being installed with the stud gun. Plaintiff was in the vicinity of the stud gun and no workman, other than the stud gun operator, was working with the steel plates. On the basis of these facts, the jury could have inferred that the fragments which entered plaintiff’s eye were debris caused by the firing of the stud gun. This inference, however, only provides an explanation for plaintiff’s injury. Defendant’s liability must be based on an injury and the finding that a defective condition-of the stud gun proximately caused that injury. (See Barr v. Rivinius, Inc. (1978), 58 Ill. App. 3d 121, 127, 373 N.E.2d 1063.) The alleged defect in the stud gun is that it will fire when the gap between the guard and the work surface exceeds one-quarter inch. According to plaintiff’s expert, the tool’s ability to fire with a gap of less than one-quarter inch is not a defect. If plaintiff is to prove that the defective condition of the stud gun caused his injury, he must show that it was the tool’s ability to fire with a wide gap (exceeding one-quarter inch) that caused his injury. The trial court correctly concluded that plaintiff’s expert witness had no basis for giving an opinion regarding the issue of causation: the expert had no way of knowing how the tool was being used or how the injury occurred.

The jury, however, need not have relied on expert testimony to form an opinion on proximate cause. The more significant subject for expert opinion is whether the tool is unreasonably dangerous. Plaintiff’s expert could have testified that the tool is unreasonably dangerous under certain conditions (i.e., operated at an angle with the guard in the closed position), and it is the function of the jury to decide whether those conditions obtained, whether the tool was in fact unreasonably dangerous, and whether the alleged dangerous condition proximately caused plaintiff’s injury. (See Anderson v. Hyster Co. (1977), 56 Ill. App. 3d 41, 50, 371 N.E.2d 279, aff'd (1979), 74 Ill. 2d 364, 385 N.E.2d 690.) “[T]he issue of proximate cause ‘is pre-eminently one for the jury ° ° " Stanfield v. Medalist Industries, Inc. (1975), 34 Ill. App. 3d 635, 641, 340 N.E.2d 276, quoting Wells v. Webb Machinery Co. (1974), 20 Ill. App. 3d 545, 553, 315 N.E.2d 301, 309.

The fundamental requirement with respect to expert testimony is that the assumptions that support the expert’s opinion must be within the realm of direct or circumstantial evidence, supported by the facts or reasonable inference from the facts. (See Guardian Electric Manufacturing Co. v. Industrial Com. (1973), 53 Ill. 2d 530, 535, 293 N.E.2d 590.) Defendants contend that, in the instant case, this requirement is not met because the men who operated the stud gun testified that they fired the gun with the guard flush against the steel plates and saw no debris emitted. Defendants argue that, on these facts, there was no basis in the evidence to conclude that the tool was dangerous or defectively designed. Nevertheless, the fact that metal chips penetrated plaintiff’s eye belies the observations of the stud gun operators, and the jury could reasonably have inferred that, on at least one occasion, John McGava operated the tool while the guard was not flush. Generally, it is the function of the trial court to decide if the facts assumed in expert testimony have a basis in the evidence. (Grabner v. American Airlines, Inc. (1980), 81 Ill. App. 3d 894, 898, 401 N.E.2d 1196.) Here, however, we find that the trial court took a needlessly restrictive view of what facts were in evidence. The better course would have been to admit the testimony of plaintiff’s expert witness and allow extensive cross-examination with respect to the disputed and unclear facts. (See Grabner v. American Airlines, Inc. (1980), 81 Ill. App. 3d 894, 898; see also Sanchez v. Black Bros. (1981), 98 Ill. App. 3d 264, 271, 423 N.E.2d 1309, (finding, in a case involving the same expert witness as the instant case, that the expert is usually a hired partisan, so cross-examination should be given the widest possible latitude).) The defense attorneys could certainly have elicited plaintiff’s expert’s views that a one-quarter-inch gap between the guard and the work surface presents an acceptable risk, and that the tool is not dangerous when used with the guard in the open position. Furthermore, even though it would have been proper to exclude the expert’s opinion as to probable cause, we believe that the trial court erred in wholly excluding the witness’ testimony. The expert had personally examined the stud gun involved in the accident. He could therefore have testified concerning the tool’s characteristics on the basis of his personal knowledge. We conclude, then, that the trial court erred in granting the motion in limine. It is undisputed that the exclusion of the expert’s testimony seriously prejudiced plaintiff’s case, so the cause must therefore be remanded for a new trial.

The judgment of the trial court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

DOWNING and PERLIN, JJ„ concur.


author: Mr. PRESIDING JUSTICE SEIDENFELD Mr. JUSTICE UNVERZAGT,

text:
    RICHARD M. BRITTON, Plaintiff-Appellant, v. THE WINFIELD PUBLIC LIBRARY et al., Defendants-Appellees.
    Second District
    No. 81-61
    Opinion filed November 9, 1981.
    UNVERZAGT, J., dissenting.
    David S. Miller and Michael S. Britton, both of Chicago, for appellant.
    Gerald J. Brooks and Heidi H. Katz, both of Fawell, James and Brooks, of Naperville, for appellees.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiff, the former Winfield village administrator, filed a complaint against the defendants on May 20,1980, for libel per se as the result of the publication on November 21, 1979, of the following letter composed and approved by the defendants and addressed to local newspapers and members of the village and library boards:

“In the November 14,1979 issue of The Examiner there appeared an article in which it was stated ‘Winfield Village officials have expressed some concern about the upcoming November 17 referendum in which voters will decide on the issuance of public library building bonds’.
Although we respect and expect that our elected Village officials be concerned with any project involving our Village and increases in taxes, we expected and would have appreciated having these concerns expressed to the Winfield Library Board of Directors. This would have allowed us to satisfy any questions.
The Library Board, along with its attorney, architect and financial consultant, attended several meetings of the Board of Trustees in order to answer questions. None of the concerns outlined in the November 14, 1979 article were raised by any of the trustees at these meetings.
We as a Board do not feel we were treated fairly by your expressing these concerns without giving us a chance to answer before the referendum was held.
In checking on the article, we found that Mr. R. Britton, Village Administrator, called the press release into the Examiner on Monday, November 12. This type of cheap and dishonest government is not needed nor should be allowed in the Village of Winfield.
Mr. Britton was so concerned about the future of the Village, in which he does not reside nor pay taxes, that he made himself a spokesman for the other Village officials who are all residents and tax payers, and resorted to ‘dirty tricks’.
Therefore, the Winfield Library Board of Directors asks that Mr. Britton be reprimanded, instructed as to proper procedures in dealing with the press and publicly apologize so that honest and upright government can come back to our Village.
Passed by motion, Winfield Library Board of Directors November 21, 1979.”

Plaintiff’s complaint alleged, in substance, that the words concerning plaintiff in the letter were false, malicious and defamatory, imputing plaintiff’s want of skill and integrity, dishonesty, collusion and conspiracy to violate statutes and ordinances for personal gain; were published concerning plaintiff in his capacity as a public official, and falsely and maliciously impugned plaintiff’s ability and fitness to serve the community in a position of trust; charged plaintiff with dishonest, illegal conduct, and with fraudulent and unethical practices, and with collusion and conspiracy to defraud the taxpayers and residents of the Village of Winfield.

It further alleged that defendants made such statements knowing that they were false; that the statements prejudiced plaintiff and injured his reputation for honesty, integrity and ability in the performance, of his duties as a public official and the conduct of his business as a village administrator; and that they subjected plaintiff in his capacity as a public official and in his capacity as a village administrator to public hatred, contempt, ridicule and distrust.

The defendants’ amended motion to dismiss with prejudice, filed pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45), raised three legal defenses to the complaint: failure to allege actual malice, the rule of innocent construction, and privilege and fair comment. The court granted the motion, basing the decision on the rule of innocent construction, and plaintiff’s timely filed notice of appeal limited the issue to the court’s finding that the letter was not actionable because it came within that rule.

Essentially the rule of innocent construction provides that an allegedly defamatory writing must be read as a whole and the words given their natural and obvious meaning, and that all words which could be libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law. John v. Tribune Co. (1962), 24 Ill. 2d 437, 442.

Certain classifications of words have been found to be so naturally and obviously hurtful that damage is presumed and no allegations or proof of special damages are necessary. Words falling within these four classes are considered to be libel per se; (1) words which impute the commission of a criminal offense; (2) words which impute infection with a communicable disease which, if true, would exclude one from society; (3) words which impute the inability to perform or want of integrity in the discharge of duties of office or employment; (4) words which prejudice a particular party in his profession or trade. Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 259; Coursey v. Greater Niles Township Publishing Corp. (1967), 82 Ill. App. 2d 76, 81-82, aff'd (1968), 40 Ill. 2d 257.

In its letter of December 15, 1980, directing that an order dismissing the complaint be drafted and submitted for its approval, the trial court found that: “Defendants’ letter does not impute the commission of any crime to plaintiff but clearly relates to the discharge of the duties of his office as Village Administrator and to his profession.” The court then found that: “Read as a whole, however, defendants’ letter complains only of a news release shortly before a library referendum to which the library board had no opportunity to respond.” Thus, the trial court held that “defendants’ letter is not actionable because it comes within the rule of innocent construction.”

We agree that the defendants’ words, read in the context of the entire letter and surrounding circumstances, must be declared nonactionable under that rule. Although harsh and uncomplimentary, these words amount to criticism of the plaintiff’s conduct in a particular instance and not a personal attack on the plaintiff’s honesty or character in general. Earlier cases have held nonactionable similar attacks that were, if anything, more easily read as defamatory and dismissed suits for libel per se based on these attacks.

Read in context, the defendants’ accusations of “cheap and dishonest government” and “dirty tricks,” and the charges that the plaintiff did not follow “proper procedures” or practice “honest and upright government” are simply harsh criticisms of the plaintiff’s conduct in this particular instance rather than attacks on his honesty or character in general. This case thus appears nearly on “all fours” with two earlier cases, in each of which the appellate court upheld a motion to dismiss a suit for libel per se that was based on a publication calling the plaintiff a “liar” in connection with a specific incident.

In Wade v. Sterling Gazette Co. (1965), 56 Ill. App. 2d 101, the plaintiff, a candidate for mayor, published an advertisement in the defendant’s newspaper charging that the defendant had denied him the right to reply to assertions made by one of the newspaper’s writers. The defendant retaliated by running an editorial entitled “NO WORD TAKES PLACE OF ‘LIAR’.” which stated that the plaintiff’s charge was “a ‘lie’ of the common garden variety, which means that [plaintiff], in the parlance of the street, is an ‘unadulterated liar.’ ” (56 Ill. App. 2d 101, 104.) The court defined libel per se as words that are “clearly defamatory on their face, 000 unambiguous and incapable of an innocent meaning” (56 Ill. App. 2d 101, 106), and held defendant’s editorial nonactionable as a matter of law. The court stressed that the editorial “did not brand the plaintiff as a liar in general terms, and one who was unworthy of belief under any circumstances, but stated that he was untruthful in a particular instance. * ° * [T]he word ‘liar’ is not a complimentary name, however, it does not follow that its use is libel per se.” (56 Ill. App. 2d 101, 108.) While the court’s exact rationale is somewhat unclear, it upheld a motion to dismiss a suit for libel per se involving a publication that, if anything, was more personally insulting to the plaintiff than the one at issue here.

The innocent construction rule was explicitly involved in Delis v. Sepsis (1972), 9 Ill. App. 3d 217. There the defendant was sued for libel per se for writing a letter that accused the plaintiff of sabotaging the installation of a statue in a city square by surrounding the statue with self-promoting “advertising plaques,” resulting in the division of the ethnic organization of which plaintiff was secretary into warring camps. The defendant’s letter stated in part that

“ ‘The dishonorable Secretary of the New Association of Piano-tans attempts through his publication to conceal the entire historical truth of the subject and to shift the blame for his false step and the resulting disgrace of the entire affair to the treachery and wickedness of a few Pianotans. The deluded Secretary and the adviser who is concealing himself behind him, writing and publishing lies, cast elsewhere his responsibilities 0 * V ” 9 Ill. App. 3d 217, 218.

The letter further described the plaintiff as “ ‘sly, coy and evasive,’ ” e ° ‘deluded, deceptive and possessing a disordered state of mind,’ and ‘being a deliberate liar and distorter of truths’ ” (9 Ill. App. 3d 217, 220); it further accused him of “ ‘scandalous and aimless maneuvering’ ” in order to “ ‘satiate his avaricious craving’ ” and “ ‘satiat[e] his egocentricities’.” 9 Ill. App. 3d 217, 219.

The court held this torrent of abuse nonactionable, explaining that “<* o e the words ‘liar,’ ‘dishonorable’ and the other allegedly disparaging remarks used by defendant in his letter of November 23,1970, are capable of being read innocently. They did not imply that the plaintiff was generally a dishonest person or one who could not be believed under oath. It would not seem reasonable to conclude that the words complained of posed any serious threat to plaintiff’s reputation. Under the facts and circumstances set forth in the record, it appears that the words ‘liar,’ ‘dishonorable’ and the other allegedly disparaging remarks are not libelous per se. The words are no more than ‘name-calling’ and are not libelous.” 9 Ill. App. 3d 217, 221-22.

The writing here also concentrates all of its allegedly defamatory words on the plaintiff’s conduct in connection with one incident. There is actually less hint of a generalized character attack here than in Wade or Delis; there, each defendant called the plaintiff himself a “liar,” whereas here the defendants’ harsh adjectives modify the plaintiff’s action, e.g., “cheap and dishonest government,” “dirty tricks,” and “[im]proper procedures.” Indeed, the defendants’ suggestion that a reprimand and public apology would enable “honest and upright government” to come back to their village implies that they believed the plaintiff not to be generally irresponsible or untruthful.

The defendants’ writing, when read in context, emerges as a harsh criticism of plaintiff’s actions in a single case rather than an assault on his character in general. As such, it would appear to be indistinguishable from the writings involved in Wade and Delis.

The dissent suggests that as an importation of misconduct in office, the letter falls within two categories of libel per se. But words capable of innocent construction have been held nonactionable even where plaintiffs have alleged harm to their profession or trade or an importation of want of integrity in the discharge of duties of office. Wade is an example of the first type of allegation; Delis of the second. (See also Krass v. Froio (1975), 24 Ill. App. 3d 924; Valentine v. North American Company for Life and Health Insurance (1973), 16 Ill. App. 3d 277; Lundstrom v. Winnebago Newspapers, Inc. (1960), 27 Ill. App. 2d 128.) The issue of innocent construction is antecedent to that of libel per se; that latter issue need be addressed only if it is first determined that the writing cannot be innocently construed. See also Delis v. Sepsis (1972), 9 Ill. App. 3d 217, 219-20.

For these reasons, the judgment of the circuit court of Du Page County dismissing the plaintiff’s complaint is affirmed.

Judgment affirmed.

LINDBERG, J., concurs.

Mr. JUSTICE UNVERZAGT,

dissenting:

I cannot agree that the letter, read as a whole, is capable of an innocent construction. The library board’s letter does not only complain of lack of opportunity to respond to the village board’s concerns, it accuses the village administrator of “cheap and dishonest government” because he called in a press release setting forth the village board’s concerns about the impending referendum. It charges the plaintiff with “[making] himself a spokesman for the other village officials who are all residents and tax payers [of the village]” and of resorting to “dirty tricks” because he was “so concerned about the future of the Village, in which he does not reside nor pay taxes e ° The fourth paragraph of the letter in question admits in effect that the village board did have concerns. Notwithstanding that, however, the library board’s letter requested the plaintiff be reprimanded for having called in that information to the press — ostensibly an act not within the realm of “proper procedures”— and that he publicly apologize, thus restoring “honest and upright government” to the village.

When read in the context of the first four paragraphs of the letter which are directed against the village board members, the remaining paragraphs of and concerning the plaintiff give rise to the factual inferences that he acted clandestinely without the knowledge and/or authority of the village board, that he failed to observe appropriate public relations procedures, that he was guilty of taking a “cheap shot” in order to defeat the referendum, and that he wrongfully presumed to speak for the officials of a village in which he had no financial stake or abiding interest. Such inferences smack of untoward aggressiveness and personal power unbecoming a village administrator who is hired to implement, not initiate. The suggestion flows from the letter as a whole that, although the village board had concerns, the village administrator should not have made them public knowledge because they were not formulated by the village board in a timely enough fashion to suit the defendants. Further, the letter imputes that the responsibility for making the concerns a matter of public information was totally the dishonest and underhanded doing of the plaintiff. Such an imputation is highly prejudicial to the perceived role of a professional municipal administrator and, as such, falls within the last two of the four categories of libel per se, noted in the majority opinion. Although the parties there were aligned differently than here, it was held in Springer v. Harwig (1981), 94 Ill. App. 3d 281, that a village administrator has an absolute privilege within the scope of his duties to discuss matters that are legitimately related to the official responsibilities of that office. Further, I believe most citizens commonly regard the village administrator as the spokesperson for their elected officials. The imputation in the letter that the administrator spoke without authority in the instant case severely, if not irreparably, damaged one of his most essential management tools: his credibility. Application of the innocent construction rule in this case would only add more metal to a rule that is practically iron-clad now.*

Upon review of an order dismissing a complaint, we must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. A complaint must not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the plaintiff to relief. (Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 633; Kenneke v. First National Bank (1978), 65 Ill. App. 3d 10.) I cannot agree with the trial court that the letter is capable of an innocent construction or that it therefore clearly appears that no set of facts could be proved which would entitle the plaintiff to relief. I agree, though, as the trial court found, that the arguments as to privilege and fair comment cannot be determined as a matter of law on the pleadings. Because the trial court dismissed the complaint on the basis of innocent construction, it made no determination of the sufficiency of the “actual malice” allegation which is required here since plaintiff admits he is a public official (see New York Times Company v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710), nor have defendants presented any argument here as to that issue. I believe that actual malice has been sufficiently alleged in the complaint when considered in light of the factual inferences arising from the face of the allegedly libelous statements in the context of the letter itself which was attached to the complaint in full as an exhibit. Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257; Colson v. Stieg (1980), 86 Ill. App. 3d 993.

I therefore am of the opinion that the judgment of the circuit court of Du Page County should be reversed and the cause remanded for further proceedings.

       See Polelle, The Guilt of the “Innocent Construction Rule” in Illinois Defamation Law, 1 N. Ill. U.L. Rev. 181 (1981).