text:
    PEGGY M. JEFFERS et al., Plaintiffs-Appellees, v. JESSE M. WEINGER, M.D., et al., Defendants-Appellants.
    Third District
    No. 3-84-0233
    Opinion filed March 21, 1985.

      Lyle W. Allen and Mark D, Howard, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellants.
    Raymond C. Rose, Ltd., of Peoria, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiffs, Peggy Jeffers and Philmon Jeffers, brought suit against the defendants, Dr. Jesse Weinger, an orthopedic surgeon specializing in back surgery, and the Orthopedic Surgery Group, S.C., in the circuit court of Peoria County alleging medical malpractice. The jury returned a verdict in plaintiffs’ favor, and defendants appeal.

In March 1977, Peggy began experiencing back problems. Her condition was diagnosed as a herniated disc by Dr. Weinger, who performed back surgery at that time. In 1979, Peggy again began experiencing back pain which was again treated by Dr. Weinger, this time without the need of further surgery. Neither of these events is at issue in the present appeal.

On August 11, 1980, Peggy had a severe recurrence of her back problem and had to be admitted to Methodist Medical Center. On August 26, Dr. Weinger performed a laminectomy and discectomy. The following afternoon Peggy complained to a nurse of numbness in her right leg. Later that evening she again complained of numbness. At 8 p.m. the charge nurse on the orthopedic floor called Dr. Weinger and reported that Peggy had been complaining of numbness in her foot and leg. Dr. Weinger advised the nurse to keep an eye on Peggy, monitor her carefully, and let him know if there was any change. Peggy complained of numbness once again at 10 p.m., but no further calls were made to Dr. Weinger.

Dr. Weinger saw Peggy at approximately 8 a.m. the following morning, August 28, 1980. He examined her and found an unusual sensory loss from the groin all the way down to her toes on her right side, with intact sensation on her left side. There was also motor weakness and paralysis on the right leg, while the left leg was normal. Peggy’s abdomen was distended and she had to be catheterized. A large volume of urine was removed. Upon examining Peggy, Dr. Weinger found that a neurological deficit existed and made a differential diagnosis that Peggy had a probable bleed in the wound site. He then ordered blood chemistry tests. As a result of his examination and the tests, Dr. Weinger decided surgery was necessary and he reoperated at approximately 5 p.m. on August 28 and removed a blood clot. It is undisputed that the blood clot was compressing a bundle of nerve roots called the cauda equina. These nerve roots serve all of the body from the hips downward, and transmit sensation and motor power or muscle power to the legs and lower extremities. They also control the bladder, bowels and sexual functions. The loss of function in the cauda equina is referred to as cauda equina syndrome, from which Peggy now suffers.

Following surgery on August 28, Peggy still had no feeling in her leg and she could not move it. Dr. Weinger advised her that in time her condition would improve. Peggy began having bladder problems when she left the hospital, and she consulted a urologist for this disorder. She no longer has any sensation that she has to urinate. When she does urinate, she is unable to completely void her bladder and, consequently, she has to catheterize herself twice every day. Also since August 28, 1980, she has had only two natural bowel movements. She has to try from one to four enemas to produce a bowel movement. Sometimes this is not sufficient, and she has to manually remove the fecal material. Peggy also suffers from electrical shocks which shoot up her right leg, and she has developed a neurological ulcer on her heel. Further, she has no sensation in the right side of her pubic and vaginal area, which has affected her sexual relationship with her husband. At the time of trial Peggy could walk; however, she favored her right leg and sometimes required the use of crutches.

Defendants moved for a directed verdict at the close of plaintiff’s case in chief and again at the close of all evidence. Both motions were denied. The jury returned a verdict in favor of Peggy in the amount of $800,000 and in favor of her husband in the amount of $100,000 (loss of consortium) and against both defendants. Following the denial of timely post-trial motions for a new trial or judgment n.o.v., this appeal was taken. For the following reasons, we affirm the decision of the circuit court of Peoria County.

The defendants have presented the following issues for our review: (1) whether the testimony of plaintiffs' experts was based upon a false assumption resulting in plaintiff’s failure to meet their burden of proof with regard to defendant doctor’s alleged malpractice on August 27, 1980; (2) whether the plaintiffs failed to meet their burden of proof regarding causation of Peggy’s injuries with respect to activities on August 28, 1980; (3) whether the defendant doctor’s judgment regarding Peggy’s treatment can be characterized as negligent; (4) whether the defendant, Orthopedic Surgery Group, S.C., was a proper party defendant; (5) whether the trial court erred in allowing testimony regarding the possible loss of a foot; (6) whether the trial court erred in failing to read an entire evidence deposition; (7) whether the trial court erred in giving a certain jury instruction; and (8) whether the trial court erred in allowing jury verdicts which were not itemized to reflect monetary distribution among economic loss and noneconomic loss.

No claim of medical malpractice was made by plaintiffs regarding Dr. Weinger’s skill in performing either surgery. Nor was any claim made that the blood clot which caused the cauda equina syndrome was the result of any negligence. The only claim made in the instant case is that Dr. Weinger’s activities on the night of August 27 and his delay in reoperating on August 28 constituted negligence.

The first three assignments of error relate to claims by the defendants that the evidence was insufficient to support the verdict of the jury and consequently the trial court erred in denying their motions for directed verdicts and their post-trial motions. The rules regarding the standard of review in determining the sufficiency of the evidence have been called to our attention, have been considered, and have been applied to the facts disclosed by the record and the claims of the appellants. See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504; Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 356 N.E.2d 779.

Although stated separately, the defendants’ arguments on the sufficiency of the evidence are interrelated and are specifically directed at either the inadmissibility or incompetence of the testimony of the plaintiffs’ experts or at the failure of such expert testimony to support any claim of negligence proximately causing Peggy’s injuries.

Defendants contend that plaintiffs’ experts based their respective opinions of malpractice on inaccurate data and presumed facts. Defendants claim this expert testimony should not have been considered by the jury, relying on Butler v. Palm (1962), 36 Ill. App. 2d 351, 184 N.E.2d 633, and Logsdon v. Baker (D.C. Cir. 1975), 517 E2d 174, for the general proposition that a plaintiff cannot meet the burden of proof required when that person’s expert bases testimony on inaccurate data. The gist of this argument is that both experts, Drs. Clarence Dossier and Saul Frankel, were under the impression that Dr. Weinger was informed on the evening of August 27 that Peggy had complained of “progressive” numbness in her right leg when, in fact, the term “progressive” was not used or charted by any nurse that night.

The record initially discloses Dr. Frankel never testified as to “progressive” numbness during direct examination nor did defendant mention “progressive” numbness on cross-examination. Therefore, there is no basis in defendants’ argument that Dr. Frankel’s opinion was based upon a false assumption.

Dr. Clarence Fossier, an orthopedic surgeon, testified in behalf of the plaintiffs and on direct examination the following questions and answers occurred:

“Q. Doctor, did you, at my request, review certain materials in connection with this case?
A. Yes, sir.
Q. Okay. And what materials did you receive from me?
A. I had hospital records, I had Dr. Weinger’s deposition. I have subsequently seen depositions from some of the other physicians, I had — I believe that’s the extent of it.
Q. Doctor, based upon those materials do you have an opinion based upon a reasonable medical certainty, based upon your knowledge, experience, and training in the area of back surgery whether the care extended by the defendant, Jessie Weinger in this case to Peg Jeffers was within the standard of care of a reasonably careful back surgeon performing such services in the same or similar circumstances in a community similar to Peoria, Illinois?
A. I do not think it was.
Q. Do you have an opinion, first?
A. Yes, sir, I do.
Q. And what is your opinion?
A. I think it did not conform to the standards as you outlined.
Q. And what are the reasons for your opinion, Doctor?
A. I think that the evening of the 27th which was slightly more than 24 hours after the surgery Mrs. Jeffers started complaints [sic] of tingling and then progressive numbness and weakness in her opposite leg. I believe according to the records Dr. Weinger was informed at about 8:00 o’clock in the night, did not come in and see the patient.”

During defendant’s cross-examination of Dr. Fossier, the following questions and answers appear in the record:

"Q. Is it a part of your opinion that progressive numbness was reported to Dr. Weinger?
A. That is my understanding, sir.
Q. And if that understanding is incorrect that would change your opinion then, wouldn’t it?
A. That would temper my opinion about that evening.”

Defendants actually clarified by use of cross-examination that Dr. Fossier was possibly relying to a certain degree on an inaccurate assumption; however, they were unable to persuade him to change his opinion. Therefore, any possibility that Dr. Fossier based his opinion on an incorrect assumption was nullified when the defendants clarified the situation on cross-examination. Further, the cases cited by the defendants are not dispositive of this issue, because in neither case was the inaccurate assumption disclosed to the expert allowing that person to change his opinion based upon a correct understanding of the legally significant facts. Additionally, the Logsdon court did not find an inaccurate assumption relied upon by the expert, but rather reversed the case to determine if he had. 517 F.2d 174, 175.

Next, we consider whether there was sufficient evidence from which it may be inferred that Dr. Weinger’s conduct was negligent and proximately caused Peggy’s injuries. These issues nearly always involve or result in a duel of the experts, with the jury determining to whom the trophy should be awarded.

Plaintiffs’ experts testified that the standard of care received by Peggy was not satisfactory and did not meet acceptable standards. Dr. Frankel testified that when the defendant examined Peggy on the morning of August 28, 1980, and determined there was a blood clot present causing paralysis to the right leg and bladder, Dr. Weinger had a “flat out” emergency on his hands, yet he failed to reoperate and take appropriate action for another 10 hours. Dr. Frankel further testified that if surgery would have been performed immediately, the outcome would have been much more favorable. Dr. Fossier testified that in his opinion the outcome would have been favorable if the surgery had been done promptly. Dr. Weinger’s testimony as well as that of two experts, Drs. Steward Bailey and Bernard Finneson, testifying in his behalf, presented contradictory opinions indicating that Peggy’s injuries were not the result of any delay in performing the second operation and, furthermore, that the decision not to operate earlier was one of judgment and not one of negligence.

Defendants have directed our attention to Spike v. Sellett (1981), 102 Ill. App. 3d 270, 430 N.E.2d 597, which in addition to setting forth the elements required to be proved in a medical malpractice case, concluded that as a matter of law the elements had not been proved. However, in the instant case there were, as we have earlier seen, contradictory opinions of experts, thereby presenting issues properly submitted to and resolved by the jury. The jury was asked to decide which experts to believe, and they chose plaintiffs’. The jury’s resolution of these issues was supported by sufficient evidence, and we find no error in the judgment of the trial court based on such verdict.

Turning then to a consideration of whether Orthopedic Surgery Group, S.C., was a proper party defendant, defendants argue that the act under which the corporation was formed does not provide that a medical corporation shall be liable for negligence of the licensed practitioners who formed it. While the record is not clear which corporation act the group was formed under, the letters “S.C.” following the group’s name indicate it was formed under the Medical Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 631 et seq.).

Section 3 of the Medical Corporation Act states, inter alia, that “[t]he Business Corporation Act *** shall be applicable to such corporations *** and they shall *** be subject to the duties, restrictions and liabilities of other corporations, except so far as the same may be limited or enlarged by this Act.” (Ill. Rev. Stat. 1981, ch. 32, par. 633.) The Business Corporation Act is silent as to the liability of the corporation for the acts of its employees; however, the law is well settled that a corporation may be held liable for torts committed by its servants, agents, or employees in the course of their employment. See Pfeffer v. Farmers State Bank (1931), 263 Ill. App. 360.

Defendant doctor was employed and paid a salary by defendant corporation. We see no reason why the doctrine of respondeat superior should not be applied to a corporation chartered under the Medical Corporation Act. Therefore, the trial court did not err in denying a directed verdict for defendant corporation.

The next issue raised is whether the trial court erred in allowing testimony concerning the possible loss of Peggy’s foot. Defendants contend it was reversible error to allow Dr. John Wood to testify that it “was within the realm of possibility” plaintiff could lose her foot as a result of a neurological ulcer on the heel. Defendants argue this statement was prejudicial because the neurological ulcer was never causally related by any medical expert to any alleged acts of negligence and, further, it was speculative. We disagree.

Dr. Wood is a medical doctor specializing in plastic and reconstructive surgery. As such, he qualifies as an expert concerning the testimony he gave in this trial. He testified for Peggy that the neurological ulcer on her foot developed “because of some sort of loss of sensation in the foot,” and that “[s]he had numbness of her foot and this is a reason for getting an ulcer.” This was admissible as competent medical testimony as to some of the consequences flowing from Dr. Weinger’s negligence.

Defendants base their speculation argument on Dr. Wood’s cross-examination answer that the possibility of Peggy’s losing her foot is less than 1%. We find that whether there is a 1% possibility or a 99% possibility, each is an element of damage which should be considered by the jury.

Defendants next argue the trial court erred by refusing to allow them to read the entire evidence deposition of Dr. Finneson to the jury. They contend this refusal prejudiced the outcome of the case. That portion of the deposition excluded concerned the cross-examination of Dr. Finneson by the Methodist Medical Center, then a party defendant. Subsequent to the taking of this deposition but prior to trial, the hospital settled with the plaintiffs and was dismissed from the case. The hospital’s questioning disclosed information concerning the dangers involved in resubmitting a patient to a second operation which closely follows the first operation. The trial court excluded these questions in the deposition for the sole reason they were elicited by the use of leading questions, while at. trial defendants were reading the deposition as direct testimony. Our review of the record, however, discloses that the same information was elicited at trial through other testimony. This being the case, whether such ruling was or was not erroneous is of no concern since it could not have resulted in prejudice and reversible error.

Defendants claim the issues instruction given as plaintiffs’ instruction No. 16 (based on Illinois Pattern Jury Instructions, Civil, No. 20.01 (2d ed. 1971)) is not supported by the evidence. This instruction provided:

“The plaintiffs claim that they were injured and sustained damage, and that the defendants were negligent in one or more of the following respects:
a. Failed to properly monitor the plaintiff following surgery;
b. Failed to recognize the significance of symptoms exhibited by plaintiff following surgery;
c. Failed to perform remedial surgery immediately upon learning of plaintiff’s complaints;
d. Failed to instruct hospital personnel of the significance of certain complaints.
The plaintiffs further claim that one or more of the foregoing was a proximate cause of their injuries.
The defendants deny that they were negligent and deny that any claimed act or omission on the part of the defendants was a proximate cause of plaintiffs claimed injuries. The defendants further deny that the plaintiffs were injured to the extent claimed.”

As we have previously stated, the testimony given by the parties’ experts presented questions of fact to be determined by the jury. The purpose of an issues instruction is to inform the jury of plaintiffs’ claims and defendants’ response. An issues instruction is taken from the plaintiffs’ complaint and the defendants’ answer. It is proper so long as it is succinctly stated without undue repetition or emphasis. (See Signa v. Alluri (1953), 351 Ill. App. 11, 113 N.E.2d 475.) It is error to give instructions where there is no evidence on which to base the instructions. (Magill v. George (1952), 347 Ill. App. 6, 105 N.E.2d 808.) We believe there was sufficient evidence for the giving of this instruction.

Finally, defendants argue that the trial court erred in allowing jury verdicts which were not itemized to reflect monetary distribution between economic loss and noneconomic loss as required by section 2 — 1109 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1109). Defendants never objected to the form of verdict or required the tender of an itemized verdict. Therefore, the defendants have waived this issue on appeal. (See Robinson v. Greeley & Hansen (1983), 114 Ill. App. 3d 720, 449 N.E.2d 250.

Accordingly, for the foregoing reasons the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

HEIPLE and BARRY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
    JOSEPH ZAMIAR, Plaintiff-Appellant, v. EUGENE LINDERMAN et al., Defendants-Appellees.
    First District (2nd Division)
    No. 84—1606
    Opinion filed April 30, 1985.

      Appel & Auwers, of Chicago (Warren H. Appel, of counsel), for appellant.
    Fraterrigo, Best & Beranek, of Chicago (Scott D. Hammer, of counsel), for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff, Joseph Zamiar, filed a two-count complaint against defendants. In count I plaintiff alleged that plaintiff, while a minor and a guest in defendants’ home, became intoxicated and incurred injuries when he tripped over a rug. Count I, seeking damages for defendants’ “negligent maintenance” of their home, remains pending in the trial court. In count II, plaintiff alleges that defendants “wilfully and wantonly permitted and allowed the said plaintiff to consume alcoholic beverages” in their home, that plaintiff became intoxicated and that defendants then “wilfully and wantonly failed to properly supervise the plaintiff after allowing and assisting him in the consumption of alcoholic beverages” and that plaintiff thereafter tripped on a rug and was injured.

Defendants filed a motion to dismiss count II on the basis that it failed to state a cause of action under Illinois law. The trial court granted defendants’ motion, dismissed count II with prejudice and made the order final and appealable pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)). Plaintiff appeals.

In deciding a motion to dismiss, the factual allegations of the complaint are taken as true; the court considers only the questions) of law presented by the pleadings. Lowe v. Rubin (1981), 98 Ill. App. 3d 496, 424 N.E.2d 710.

The question of law raised here is whether a noncommercial, or “social host,” supplier of liquor to a minor who becomes intoxicated and injures himself, can be held liable for failing to “supervise” the intoxicated minor.

Plaintiff concedes that he has not alleged a cause of action under the Liquor Control Act of 1934 (Act) (Ill. Rev. Stat. 1983, ch. 43, par. 94 et seq.); rather, he requests this court to recognize a common law action against social hosts who “wilfully and wantonly” “assist, permit and allow” minor guests to become intoxicated and who then “fail to supervise” the minor who subsequently injures himself.

Defendants respond that the long and unwavering law in Blinois is: (1) that the right to recover damages for the act of supplying liquor is purely statutory under the Act; and (2) Blinois courts have, for more than 100 years, refused to recognize any common law action based on the noncommercial supplying of liquor. We affirm.

The original Liquor Control Act, the “Temperance Bill” of 1872 (1871-72 Ill. Laws 552-56), precursor of the present act, imposed liability upon dramshops for supplying intoxicating liquors to persons who became intoxicated and then injured third parties. In 1889 the Blinois Supreme Court held that no cause of action existed under the Act against persons who were not engaged in the sale of or traffic in liquor. (Cruse v. Aden (1889), 127 Ill. 231, 20 N.E. 73.) The law in this State remains that “[n]oncommercial suppliers of liquor are not liable under the Dramshop Act [citation], and Blinois courts have consistently refused to enlarge the scope of the Act to impose statutory liability upon anyone not engaged in the liquor business.” (Richardson v. Ansco, Inc. (1979), 75 Ill. App. 3d 731, 732, 394 N.E.2d 801.) “The uncompensated social host is clearly not subject to liability under the act.” Heldt v. Brei (1983), 118 Ill. App. 3d 798, 800, 455 N.E .2d 842.

Plaintiff, however, requests this court to recognize a common law cause of action against defendants under the facts of this case, contending that our failure to do so would in effect cause this court to “indirectly give its blessing to unthinking adults who serve intoxicating liquor to minors in total disregard of their safety and after serving them do not even lift a hand to assist them while they are obviously incapacitated.” While we do not wish to be so understood, we must nonetheless decline plaintiff’s invitation to conjure a common law cause of action.

It has been repeatedly held that Blinois does not recognize a common law cause of action against suppliers of liquor, whether they be commercial suppliers (Cunningham v. Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153) or noncommercial suppliers (Heldt v. Brei (1983), 118 Ill. App. 3d 798, 455 N.E.2d 842). Rather, “the only remedy [against suppliers of liquor] is that provided by the legislature in the Dramshop Act. [Citation.]” Richardson v. Ansco, Inc. (1979), 75 Ill. App. 3d 731, 732, 394 N.E.2d 801.

Requests to the Illinois courts to fashion a common law action against social host suppliers of liquor have been repeatedly rejected:

“The issue presented in this appeal and the arguments presented by plaintiffs are not new to the supreme court and appellate courts of this State. These courts have consistently held that a social host is not liable under common law negligence for injuries sustained by a third party. Our courts have adhered to this position and make no distinction as to whether the intoxicated individual is a corporate defendant, a strong and able-bodied man, or a minor.” Coulter v. Swearingen (1983), 113 Ill. App. 3d 650, 652, 447 N.E.2d 561. See also Lowe v. Rubin (1981), 98 Ill. App. 3d 496, 424 N.E.2d 710.

Reasons advanced for the policy of nonliability for social hosts include that it is the act of drinking, not the supplying of the liquor, which is the proximate cause of intoxication (Cunningham v. Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153) and that liability for social hosts would be unlimited, whereas liability for each occurrence under the Act for commercial suppliers of liquor is limited to $35,000 (Ill. Rev. Stat. 1983, ch. 43, par. 135). Miller v. Moran (1981), 96 Ill. App. 3d 596, 421 N.E.2d 1046.

Nor do we find plaintiff’s efforts to distinguish the various relevant and controlling cases to be persuasive. He argues that because article I, section 12, of the Illinois Constitution of 1970 provides, in part, that “[e]very person shall find a certain remedy in the laws for all injuries which he receives,” a cause of action should be here recognized. First, it has been recognized that this provision is an expression of a philosophy, and not a mandate that a certain remedy be provided. (Berlin v. Nathan (1978), 64 Ill. App. 3d 940, 381 N.E.2d 1367.) Second, this constitutional provision, like its predecessor in the 1870 Illinois Constitution, has been found insufficient basis upon which to fashion a common law cause of action against liquor suppliers for the reason that such action is a legislative and not a judicial prerogative. Cunningham v. Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153; Gora v. 7-11 Food Stores (1982), 109 Ill. App. 3d 109, 440 N.E.2d 279; Miller v. Moran (1981), 96 Ill. App. 3d 596, 421 N.E.2d 1046.

Plaintiff attempts to distinguish the myriad of cases which hold that social hosts are not liable under the common law for providing liquor to guests by contending that this court should enunciate a common law duty of such hosts to “supervise” intoxicated guests. This we cannot do. As was held in Heldt v. Brei (1983), 118 Ill. App. 3d 798, 802, 455 N.E.2d 842, plaintiff has alleged no “special relationship” between plaintiff and defendants which would “have required” defendants to “take affirmative action to restrain” plaintiffs drinking. While plaintiff here does allege that defendants should be considered to have been “in loco parentis” to plaintiff at the time of the occurrence, the Act specifically provides:

“the consumption by a person under 21 years of age under the direct supervision and approval of the parents or parent or those persons standing in loco parentis or such person under 21 years of age in the privacy of a home, is not prohibited by this Act.” (Ill. Rev. Stat. 1983, ch. 43, par. 134a.)

Since the Act is “the only remedy” against suppliers of liquor in Illinois, and the legislature has specifically exempted parents from the liability plaintiff here argues, plaintiff’s theory must be rejected. See Richardson v. Ansco, Inc. (1979), 75 Ill. App. 3d 731, 394 N.E.2d 801.

Plaintiff cites to cases from other jurisdictions which recognized liability for social hosts who provide alcohol to persons who become intoxicated and injure themselves or others. However, we agree with the suggestion found in some Illinois decisions that the determination to expand Illinois liability to include social hosts who supply liquor requires an analysis of many competing social policy considerations, and that such responsibility is more appropriate for the legislature. (Miller v. Moran (1981), 96 Ill. App. 3d 596, 421 N.E.2d 1046; Thompson v. Trickle (1983), 114 Ill. App. 3d 930, 449 N.E.2d 910; Gora v. 7-11 Food Stores (1982), 109 Ill. App. 3d 109, 440 N.E.2d'279.) We feel it not inappropriate to observe that the increasing loss of life and property we have experienced in recent years due to intoxicated drivers and other persons suggests that this may well be an opportune time for our General Assembly to reexamine the liabilities and immunities embodied in the Liquor Control Act of 1934.

For the aforestated reasons, the trial court’s order dismissing count II of the amended complaint for failure to state a cause of action is affirmed.

Affirmed.

STAMOS, P.J., and HARTMAN, J., concur.


author: JUSTICE BARRY

text:
    GLEN F. CHAMBERS, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Kirk & Blum, Appellant).
    First District (Industrial Commission Division)
    No. 1—84—1486WC
    Opinion filed April 24, 1985.
    Gifford, Detuno & Gifford, Ltd., of Chicago (Scott T. Schreiber, of counsel), for appellant.
    Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago (Richard A. Lewin and Douglas A. Colby, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The plaintiff employer, Kirk & Blum, appeals from an order of the circuit court awarding benefits to the claimant, Glen E Chambers, for permanent total disability under the Workmen’s Compensation Act (Ill. Rev. Stat. 1965, ch. 48, par. 138.1 et seq.) (hereafter the Act). The sole issue on appeal is whether the circuit court had jurisdiction to review the cause. We reverse.

The facts in the instant case are not disputed. The claimant was a sheet metal worker employed by Kirk & Blum. On June 28, 1966, the claimant was struck by a sheet of metal which lacerated his left leg to the bone. Despite treatment, the wound failed to heal. Ultimately, skin was taken from his right leg for a graft over the wound. During the period from 1970 to 1978, the claimant was hospitalized for at least eight surgeries.

The arbitrator initially awarded benefits for temporary total disability and for permanent 40% loss of use of both legs. This award was entered June 30, 1970. Both the claimant and the employer sought review of the arbitrator’s award. From 1970 to 1978, the claimant sought and received several continuances, allegedly necessitated by continuing problems with his leg. In requesting these continuances, the claimant asserted that his injury had not yet stabilized to the point where the extent of his permanent injury could be assessed. The Commission ultimately denied the claimant’s request for still another continuance and entered judgment affirming the 1970 award.

The following sequence of events is critical to the issue on appeal. The Commission’s decision (hereafter the original decision) was issued on March 20 and was received by the claimant on March 22, 1978. On April 5, 1978, the claimant filed a “Motion to Reconsider and Remand Case Back to the Industrial Commission” with the Commission. This motion was denied by the Commission on June 28, 1978. The claimant then filed his writ of certiorari with the circuit court on July 12, 1978. One hundred twelve days elapsed from the receipt of the Commission’s original decision to the filing of the writ.

The appeal was heard in the circuit court of Cook County. The court vacated the Commission’s decision and remanded the cause back to the Commission in two orders dated March 6, 1980, and January 7, 1982, for the taking of additional evidence. The proceedings before the Commission on remand began on March 30, 1982. Additional medical evidence was presented. On January 24, 1983, the Commission rendered a decision awarding benefits to the claimant for permanent total disability. Kirk & Blum appealed the Commission’s decision to the circuit court. The circuit court confirmed the Commission’s decision in all respects. This appeal followed.

The sole issue on appeal is whether the circuit court had jurisdiction to hear the 1978 appeal where the claimant filed his writ of certiorari 112 days after receipt of the Commission’s original decision. Kirk & Blum argues that the circuit court lacked jurisdiction to hear the first appeal because 112 days elapsed between the entry of the Commission’s original order and the filing of the writ of certiorari to the circuit court. Kirk & Blum asserts that the sole method of reconsideration of a Commission decision is the appeal process set forth in section 19(f) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1965, ch. 48, par. 138.19(f)). Because the claimant failed to comply with section 19(f), Kirk & Blum asserts, the circuit court had no subject-matter jurisdiction.

Section 19(f) of the Act provides that the decision of the Commission shall, in the absence of fraud, be conclusive unless reviewed as provided within the section. (Ill. Rev. Stat. 1965, ch. 48, par. 138.19(f).) Section 19(f)(1) provides that the circuit court shall have the power to review all questions of law and fact. Section 19(f)(1) further provides that a proceeding for review “shall be commenced within 20 days of the receipt of notice of the decision of the Commission.” The Illinois Supreme Court has held that failure to file for writ of certiorari within the requisite 20-day period deprives the circuit court of jurisdiction to review a Commission decision. George Young & Sons, Inc. v. Industrial Com. (1977), 66 Ill. 2d 220, 362 N.E.2d 1040.

The provisions of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 1 — 101 et seq.), and the Supreme Court Rules (87 Ill. 2d R. 1 et seq.), are inapplicable to procedures regulated by section 19 of the Act. (Elies v. Industrial Com. (1940), 375 Ill. 107, 30 N.E.2d 615.) In workers’ compensation cases, the writ of certiorari is solely of statutory creation and is not the common law writ. Nierman v. Industrial Com. (1928), 329 Ill. 623, 627,161 N.E. 115,117.

No provision is made in the Act for motions before the Commission for rehearing or reconsideration. The only recourse available to the claimant Chambers following the entry of the Commission’s decision was to file a writ of certiorari under section 19(f) within the statutory time limit. Absent a timely filing in the instant cause, the circuit court had no jurisdiction to hear the claimant’s appeal in 1978. Accordingly, the circuit court’s order remanding the cause to the Commission was void for lack of jurisdiction. The order entered subsequently by the Commission on January 24, 1983, and confirmed by the circuit court on May 18,1984, must therefore be vacated.

The claimant asserts that the writ of certiorari was timely filed because the Commission’s decision of March 20, 1978, was itself void. The claimant bases his assertion on the ground that the Commission had failed to comply with the requirements of section 19(e) because it failed to hold a “hearing.” (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(e).) Absent a proper “hearing” under section 19(e), the claimant argues, there could be no decision under section 19(f) from which to appeal.

We reject the claimant’s assertion for two reasons. First, the record is devoid, due to an earlier motion for diminution of record, of any evidence as to what transpired at the time the Commission denied the claimant’s final request for continuance. There is no record of the 1978 proceedings before the Commissioner. Absent such a record, we cannot say that the Commission’s action was so arbitrary or improper as to deny the claimant a hearing.

Secondly, assuming that the Commissioner abused his discretion in refusing to take additional evidence, such error does not render the resulting decision by the Commission void as a matter of law. Instead, the Commission’s decision in such a case is an appealable order which is timely reviewable by the circuit court for any abuse of discretion. This rule allows for the finality of Commission decisions and for the certainty of orderly procedure as set forth in the Act.

For the foregoing reasons, the judgment of the circuit court of Cook County of May 18, 1984, and the order of the Industrial Commission of January 24, 1983, are vacated; the orders of the circuit court of March 6, 1980, and January 7, 1982, are reversed; and the order of the Industrial Commission of March 30,1978, is affirmed.

Circuit court reversed and vacated; Industrial Commission affirmed in part and vacated in part.

WEBBER, P.J., and SULLIVAN, LINDBERG, and KASSERMAN, JJ., concur.


author: JUSTICE JOHNSON

text:
      In re MARRIAGE OF JULIE A. MORIARTY, Petitioner-Appellee, and ROBERT V. MORIARTY, Respondent-Appellant.
    First District (4th Division)
    Nos. 84—168, 84—942 cons.
    Opinion filed May 2, 1985.

      Gerald W. Shea and Ira A. Rogal, both of Shea, Rogal & Associates, of Chicago, for appellant.
    John J. Caulfield, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Respondent appeals from a judgment of the circuit court of Cook County ordering him to pay the parochial high school tuition for two of his children and to pay attorney fees. Respondent contends that the trial court erred in rendering its judgment because (1) petitioner did not consult with him on the choice of high schools, and (2) he cannot afford to pay either the tuition or the attorney fees.

We affirm, as modified by this opinion.

The circuit court granted petitioner, Julie Moriarty (Julie), a judgment of divorce from respondent, Robert V. Moriarty (Robert), on October 22, 1975. The court granted Julie custody of their three children, Bob, Bridget, and Sean; Julie voluntarily transferred custody of Bob, who possesses behavior and learning disorders requiring special treatment, to Robert on or about January 22, 1982. The court originally ordered Robert to pay Julie $200 per month per child as child support, but, in answer to a petition by Julie, increased that amount to $335 per month per child. Robert appealed the order that increased the child support, and we affirmed in an unpublished opinion filed pursuant to Illinois Supreme Court Rule 23 (87 Ill. 2d R. 23).

In February 1982, Julie petitioned the circuit court to enforce certain provisions of the divorce judgment that covered the children’s education. She sought a judgment ordering Robert to pay the tuition for a parochial high school that the children were going to attend. Bridget enrolled in the school in September 1982 and Sean enrolled in the same school in September 1983. The court held a hearing where Robert argued that he should not be ordered to pay the tuition because Julie did not consult with him in choosing a high school and because he could not afford to pay it. In December 1983, the court granted Julie’s petition and ordered Robert to pay the tuition accrued since September 1983. At the conclusion of separate proceedings, the court also ordered Robert to pay Julie’s attorney fees totaling $6,204.90. Robert appeals.

I. High School Tuition

A. Consultation

Robert contends that the trial court erred in ordering him to pay the tuition for Bridget and Sean because Julie did not consult with him in the selection of a high school.

The divorce judgment of Robert and Julie incorporated a settlement agreement that provided for, inter alia, the education of the children. The applicable provisions follow.

“ARTICLE IV
Education of the Children * * *
3. ROBERT shall pay for the tuition and other expenses of the children if any of them desire to attend a parochial day school at any time during grades one through twelve, providing ROBERT has the reasonable financial ability to pay for said expenses.
4. The decisions affecting the education of the children, including the choice of parochial school, trade school, college and professional school shall be made jointly by the parties and shall consider the expressed preference of the child, provided, however, that neither party shall unreasonably withhold his or her consent to the expressed preference of the child.
5. In the event the parties cannot agree upon the school to be attended or in respect to any of the foregoing, a Court of competent jurisdiction shall make the determination upon proper notice and petition.” (Emphasis added.)

Robert claims that the decision to send the children to a parochial high school was not jointly made, in violation of paragraph 4.

The circuit court can properly enforce provisions of a settlement agreement incorporated into a divorce judgment (Vinci v. Vinci (1970), 131 Ill. App. 2d 496, 501, 266 N.E.2d 379, 383), and possesses considerable discretion in modifying support judgments (In re Marriage of Kessler (1982), 110 Ill. App. 3d 61, 72, 441 N.E.2d 1221, 1228-29). A court should construe settlement agreements incorporated into divorce judgments to give effect to the intentions of the parties. While all divorce judgments should be reasonably construed, those that seek to provide support to children receive the special care and consideration of the courts. Schwartz v. Schwartz (1966), 69 Ill. App. 2d 128,135, 216 N.E.2d 505, 509.

Robert cites Van Nortwick v. Van Nortwick (1967), 87 Ill. App. 2d 55, 230 N.E.2d 391, in arguing that Julie should have consulted with him on the selection of Bridget and Sean’s high school. In Van Nortwick, the wife selected a school, enrolled the child, paid the tuition, apd then sought a court order to force reimbursement from the husband. The court found it improper to present both the other parent and the court with a fait accompli. 87 Ill. App. 2d 55, 58, 230 N.E.2d 391.

We conclude that Van Nortwick is distinguishable from the case at bar. Unlike Van Nortwick, Julie petitioned the court to resolve the matter before the children were enrolled in school and, thus, did not present Robert and the trial court with a fait accompli. This is the preferred procedure that the Van Nortwick court suggested. (Van Nortwick v. Van Nortwick (1967), 87 Ill. App. 2d 55, 57, 230 N.E.2d 391; see In re Marriage of Sreenan (1980), 81 Ill. App. 3d 1025, 1030, 402 N.E:2d 348, 352.) Also unlike Van Nortwick, the settlement agreement in this case provided that neither party could unreasonably withhold his or her consent from the expressed preference of the child, which Bridget and Sean repeatedly expressed to Robert. We hold that the trial court did not abuse its discretion in ordering Robert to pay for the parochial high school tuition of his children Bridget and Sean.

B. Ability to Pay

Robert also contends that the trial court erred in ordering him to pay the parochial high school tuition of Bridget and Sean because he is financially unable to pay it.

Robert claims that his monthly net income of $2,650, after paying $670 per month in child support ($2,650 - $670 = $1,980), is approximately only $100 greater than Julie’s monthly net income ($1,216 + $670 = $1,886), but his debts total $12,700 while Julie’s debts total only $4,900. Julie claims that Robert’s monthly net income is approximately $500 greater than what he claims due to overwithheld income tax, a voluntary tax-sheltered annuity, and a lump-sum payment resulting from his new employment contract.

The determination of the proper amount of child support lies within the sound discretion of the trial court and will not be set aside absent an abuse of discretion. The court must make its determination by accommodating the needs of the children with the available means of the parties. The factors that the court should consider in making its determination include: the age of the parties, their health, their properties and incomes, and their stations in life. Knox v. Knox (1975), 31 Ill. App. 3d 816, 823, 334 N.E.2d 891, 896.

We find no abuse of discretion here. The record contains considerable testimony from both parties on their incomes, expenses, resources, debts, and obligations. We conclude that the record enabled the trial court to make a sufficiently accurate determination of the financial status of both parties and to thereby set an appropriate allowance for child support. Based on all of the evidence, we hold that the trial court’s allowance of high school tuition for Bridget and Sean was neither excessive nor an abuse of discretion.

II. Attorney Fees

Robert contends the trial court erred by ordering him to pay Julie’s attorney fees totaling $6,204.90. The trial court based the award on what it viewed as (1) the inequities in earning power between Robert and Julie and (2) Robert’s failure to obey the court’s original order in the divorce judgment to pay for the children’s educational expenses. Robert argues that he cannot pay two sets of attorney fees due to his obligations, increased child support payments, and his debts.

The allowance of attorney fees rests largely in the discretion of the trial court. To justify an award of attorney fees, the party seeking relief must demonstrate financial inability to pay and the ability of the other spouse to do so. When the financial and other circumstances of both parties are substantially similar and the wife’s inability and the husband’s ability to pay has not been shown, an award of attorney fees is an abuse of discretion. (In re Marriage of Miller (1980), 84 Ill. App. 3d 931, 937, 405 N.E.2d 1099, 1104.) However, a party who must use judicial process to enforce rights under, and to secure compliance with, the terms of a divorce judgment is entitled to reasonable attorney fees, even absent a showing of the party’s inability to pay. Tippet v. Tippet (1978), 65 Ill. App. 3d 1018, 1020, 383 N.E.2d 13, 14.

The trial court possessed ample evidence to find that the enforcement proceeding was based on Robert’s failure to obey the court’s divorce judgment. The record shows that Robert not only refused to pay his children’s high school tuition, but that he did not attempt to resolve the matter at any step in the proceedings. We hold that the trial court did not abuse its discretion in awarding attorney fees to Julie.

Neither Robert nor Julie argues that the amount of attorney fees is unreasonable. Our examination of the record, however, reveals that Robert cannot possibly pay fees totaling $6,204.90 in light of his financial circumstances. We, therefore, reduce the award of Julie’s attorney fees from $6,204.90 to $2,000. 87 Ill. 2d R. 366(a)(5); In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 652, 420 N.E.2d 555, 567.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed, as modified by this opinion.

Affirmed as modified.

LINN and ROMITI, JJ., concur.


author: JUSTICE BILANDIC

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SALAHUDDIN A. MUHAMMAD, Defendant-Appellant.
    First District (2nd Division)
    No. 83—0976
    Opinion filed April 23, 1985.
    Rehearing denied May 28,1985.
    James J. Doherty, Public Defender, of Chicago (Patricia J. Handlin, Assistant Public Defender, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Karen C. Wirth, and Edward V. Edens, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BILANDIC

delivered the opinion of the court:

The defendant, Salahuddin A. Muhammad, was charged by indictment with nine criminal counts, including two counts of murder, three counts of armed violence, three counts of aggravated battery, and one count of attempted murder. Prior to trial, the State dropped one count of armed violence based upon great bodily harm (Ill. Rev. Stat. 1979, ch. 38, pars. 33A— 2, 9 — l(aX2)), and proceeded on all other counts. A jury found the defendant guilty on all counts, and the court vacated all but the murder and attempted murder convictions. The defendant was sentenced to 30 years for the murder of George Gayles and 30 years for the attempted murder of Ava Williams, the sentences to run concurrently.

On appeal, the defendant raises the following points of error: (1) that the defendant was denied his right to a fair and impartial jury and the right of peremptory challenge by the court’s refusal to question prospective jurors about their opinions concerning the use of deadly force for self-defense; (2) that the defendant was not proved guilty beyond a reasonable doubt; (3) that the trial court erred when it denied the defendant’s request to have the complainant, Ava Williams, fingerprinted to check for a possible criminal record; (4) that the court erred in failing to sua sponte instruct the jury on voluntary manslaughter; and (5) that the court abused its discretion in sentencing the defendant to concurrent terms of 30 years for attempted murder and murder. We affirm the convictions and the sentences.

The defendant was working at a newspaper stand on the corner of 75th and Exchange streets in the city of Chicago, in the early morning of July 19, 1981. Also present was a Mr. Malek and Yusef Ali. The defendant carried a .357 Magnum revolver that he used while employed as a part-time security guard and because he believed that the newsstand was in a high-crime area. In his words, “At that location we handle a lot of money, and that is a bad location.”

At about 4:30 a.m., the complainant, Ava Williams, came to the comer where the newsstand was located. She stood on the corner at a bus stop and against the newspaper stand. What happened next is disputed. The defendant testified that he left the stand, walked over to Williams, and asked if he could help her. They had a “few words,” she said something to Malek, and she left. Williams testified that she was standing on the corner because she was looking for her boyfriend, George Gayles, who had left their apartment about an hour earlier to buy liquor Williams testified that the defendant called her a prostitute, which she denied, and that the defendant “called me a bitch and told me that I better be off the comer when he gets back.”

Whatever the contents of their conversation, Williams left and found Gayles, who had just bought a bottle of beer at a liquor store across the street. Williams told Gayles what happened, and they both returned to the defendant’s stand. Police Officer Jerry Johnson, who knew Gayles and saw him at the liquor store minutes before the shooting, testified that, in his opinion, Gayles was “cold sober.” The coroner’s report, however, showed that Gayles had “an alcohol level of 208 mg.% in his blood.”

While Gayles' condition is disputed, it is not disputed that Gayles demanded an apology from the defendant, who tried to ignore him. The defendant may have grabbed the front of Gayles’ shirt, although that is unclear, but it is clear that Gayles hit the defendant’s head with the bottle that he was carrying.

What happened next is disputed and is the heart of the case. The defendant testified that after he was hit, he felt dizzy and weak and that his head was bleeding. According to the defendant, Malek grabbed Gayles and they struggled to the ground, with Williams then jumping on top of Malek. The defendant told Malek to release Gayles, which he did, but Gayles, in the words of the defendant, “came at me, lurged [sic] at me with his hands up.” In response, the defendant drew his revolver and fired four shots in rapid succession, two at Gayles and two at Williams because the defendant allegedly saw her make a “fast move” out of the corner of his eye. The defendant did not explain specifically what this movement was or whether he perceived it as threatening, but that is the implication of his testimony.

Williams, on the other hand, testified that after the defendant was struck in the head with the bottle, he drew his gun and fired three shots, one at Gayles and two at her. According to Williams, the defendant shot Gayles, shot her in the neck, knocking her down, and then walked over to her and shot her again as she was lying on the sidewalk.

Officer Johnson, who was off-duty and in the liquor store when the shooting occurred, testified that he heard two shots in succession. He went outside, saw the prone bodies, went back inside the store and called 911, relayed the information, went back outside, and saw the defendant walk over to the victims and fire another shot into each of them. Johnson walked toward the stand and stopped in the middle of the intersection, which has a railroad crossing. He crouched behind the railroad crossing signal, identified himself, and told the defendant to drop the gun. He repeated the message. Finally, Johnson came up behind the defendant, placed his revolver in the defendant’s back, and arrested him. The incident was over: George Gayles was dead, and Ava Williams is now a quadriplegic.

The defendant was taken into custody and questioned by Assistant State’s Attorney Henry Lazzaro at about 9:30 a.m. He informed the defendant of his rights, and he later signed a written statement. At trial, Lazzaro testified that the defendant admitted to him that “he shot them to make sure that they were dead and the reason he shot them was to make an example for the other pimps and prostitutes in the neighborhood ***.” This admission was later put in writing and signed by the defendant.

At trial, the defendant admitted that he shot the victims, but that he was acting in self-defense. The jury found him guilty and he was sentenced to 30 years for murder and 30 years for attempted murder, the sentences to run concurrently. The defendant filed this timely appeal.

I

In the pre-voir dire conference, which was not transcribed, the defendant offered two questions for the court’s consideration. They were:

“1. Would the fact that the complainant Ava Williams is paralyzed prevent you from requiring the State to prove beyond a reasonable doubt that Mr. Muhammad was not acting in self-defense?
2. Will you be able to follow the law that a person may use deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself?”

The court asked the venire the first question but refused the second. The court instead told the venire members that they would be instructed on the law at the proper time and that, once the law was given to them, it would become their duty to accept it as proper, regardless of their own feelings. Additionally, each juror was asked whether he could follow the law as given. After the verdict, the defendant filed a motion for a new trial, claiming that the court erred in refusing to ask the second proffered question.

Defendant does not cite any Illinois case in support of his contention. We find no Illinois case that confers upon a defendant the right to a question in voir dire which would probe the potential jurors’ attitudes toward the justifiable use of deadly force in defense of person.

The voir dire examination of jurors is governed by Supreme Court Rule 234 (87 Ill. 2d R. 234). The rule states in part:

“The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions.” (Emphasis added.)

The purpose of voir dire is to permit counsel “to ascertain whether the minds of prospective jurors are free from bias or prejudice.” (People v. Stack (1984), 128 Ill. App. 3d 611, 616, 470 N.E.2d 1252.) In determining what is proper questioning, the court must provide an opportunity to probe' potential prejudice and yet avoid attempts at indoctrination or education. (Gasiorowski v. Homer (1977), 47 Ill. App. 3d 989, 365 N.E.2d 43.) The manner and scope of the questioning is within the court’s discretion. People v. Teague (1982), 108 Ill. App. 3d 891, 894, 439 N.E.2d 1066, cert, denied (1983), 464 U.S. 867, 78 L. Ed. 2d 179,104 S. Ct. 206.

In this case, the second of defendant’s proffered questions was clearly prohibited by rule. In construing Rule 234, our reviewing courts upheld the trial court’s refusal to ask questions on voir dire dealing with self-defense in murder prosecutions. People v. Bradley (1981), 97 Ill. App. 3d 1100, 1102, 424 N.E.2d 33, appeal denied (1981), 85 Ill. 2d 578, and People v. DeSavieu (1983), 120 Ill. App. 3d 420, 427-28, 458 N.E.2d 504, appeal denied (1984), 99 Ill. 2d 531.

Our supreme court has ruled that a court’s failure to ask supplemental questions concerning „a defendant’s privilege against self-incrimination, the State’s burden of proof, and the presumption of innocence required a new trial because each of those inquiries “goes to the heart of a particular bias or prejudice which would deprive defendant of his right to a fair and impartial jury.” (People v. Zehr (1984), 103 Ill. 2d 472, 477, 469 N.E.2d 1062.) That is not the case before us. The Zehr questions concerned constitutional rights that are fundamental to the criminal justice system. The question proffered here, in contrast, neither concerns a constitutional right nor the right to a fair and impartial jury. Rather, it concerns a question of law to which the jury was instructed when all the evidence was presented. Thus, the trial court did not err in refusing to ask the question.

II

The defendant also claims that his convictions should be reversed because the evidence was insufficient to convict him beyond a reasonable doubt. Generally, a criminal conviction will not be reversed unless the evidence is so improbable that a reasonable doubt about the defendant’s guilt is raised. (People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671, cert, denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858.) The testimony of a single credible witness is enough to sustain a conviction, even when that testimony is contradicted by the accused. (People v. Sullivan (1970), 46 Ill. 2d 399, 401, 263 N.E.2d 38.) A court of review will not substitute its judgment for that of the trier of fact when the evidence is merely conflicting. People v. Akis (1976), 63 Ill. 2d 296, 298-99, 347 N.E.2d 733.

In his brief, the defendant essentially reargues the same facts that were considered by the jury. He also attacks the credibility of the prosecution witnesses. The weight and credibility to be given their testimony is for the trier of fact to determine. People v. Novotny (1968), 41 Ill. 2d 401, 411-12, 244 N.E.2d 182.

There was sufficient evidence for a jury to find the defendant guilty beyond a reasonable doubt. Officer Johnson, who arrested the defendant, testified that he saw the defendant fire two shots into the prone bodies of Gayles and Williams. Williams testified that she was first shot in the neck — the wound that paralyzed her — and that the defendant shot her again as she was lying on the ground. Robert H. Kirschner, a county deputy medical examiner, testified that the second gunshot at Gayles was the fatal one and that the cause of death was a “gunshot wound to the chest and neck with penetration of the brain.” Gayles’ body did not have any stippling — powder burns— around the wounds, and its absence implies that the shooting was not done at close range and not in self-defense.

The most damaging testimony, however, came from Assistant State’s Attorney Lazzaro, who testified that the defendant admitted shooting the victims while they were on the ground to make sure that they were dead. The defendant also signed a written statement to that effect.

Thus, the evidence was sufficient for a jury to find the defendant guilty beyond a reasonable doubt.

Ill

The defendant also claims that the trial court erred when it denied his request that the complainant Ava Williams be fingerprinted so that a complete criminal history could be obtained. At issue is the scope of Supreme Court Rule 412(aXvi) (87 Ill. 2d R. 412(aXv)), which reads in pertinent part:

“Rule 412. Disclosure to Accused (a) Except as is otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
* * *
(vi) any record of prior criminal convictions, which may be used for impeachment, of persons whom the State intends to call as witnesses at the hearing or trial.”

The defendant insists that Williams is a prostitute, which is based on statements made by members of Gayles’ family. The record, however, reveals no evidence to sustain the allegation. Defendant claims that he hoped to impeach Williams with evidence of a prior conviction.

Pursuant to defendant’s request under Rule 412(a), the State provided the defendant with a “name check” search of the Chicago police department’s records, which showed that Williams had no criminal record. Defendant claims that the search was insufficient, but the defendant fails to comprehend the nature of impeachment.

In Illinois, a prior conviction for impeachment purposes may be one that goes to the truth or veracity of a witness. (People v. Montgomery (1971), 47 Ill. 2d 510, 516, 268 N.E.2d 695 (adopting Fed. R. Evid. 609).) Our supreme court has held that a conviction for prostitution “would not afford a basis for the impeachment of a witness.” (People v. Sawyer (1971), 48 Ill. 2d 127, 129, 268 N.E.2d 689.) Thus, there is no showing that the defendant was prejudiced in any way by the State’s failure to fingerprint the complainant.

IV

The defendant also argues that the trial court committed reversible error when it failed to sua sponte instruct the jury in the law of voluntary manslaughter. The record, however, shows that the defendant never tendered a voluntary manslaughter instruction to the court, nor did he object to the court’s failure to sua sponte instruct the jury. Under Illinois law, the failure to give an instruction for voluntary manslaughter where none is offered is not reversible error. (People v. DeSavieu (1983), 120 Ill. App. 3d 420, 425, 458 N.E.2d 504, appeal denied (1984), 99 Ill. 2d 531.) Also, we concur with the reasoning of the DeSavieu court, which concluded that “the decision by counsel as to whether a manslaughter instruction should be submitted is a tactical one involving various strategy considerations which would militate against imposing a duty to instruct the jury sua sponte.” 120 Ill. App. 3d 420, 425.

In this case, the defendant chose to present a self-defense theory, which was inconsistent with a voluntary manslaughter theory. The defense was a tactical decision, which the defendant now tries to mitigate by attempting to impose a duty on the court to instruct the jury in the absence of a tendered instruction. This we refuse to do, and the point is overruled.

V

The trial court sentenced the defendant to 30 years for the murder of George Gayles and 30 years for the attempted murder of Ava Williams, the sentences to run concurrently. On appeal, the defendant claims that the court abused its discretion in imposing the sentences because he had a high potential for rehabilitation and had no prior criminal record.

Our supreme court has established that sentencing is a matter of discretion and, absent an abuse of discretion, the sentence may not be altered on review. (People v. Willingham (1982), 89 Ill. 2d 352, 364, 432 N.E.2d 861.) The sentencing court’s determination involves the consideration of the subjective circumstances presented in each individual case, i.e., the defendant’s mentality, habits, character, and his inclination or aversion to commit crime. (People v. Dukett (1974), 56 Ill. 2d 432, 452, 308 N.E.2d 590, cert, denied (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 226.) The court also has the duty to fashion a sentence that protects the interests of society. People v. Perruquet (1977), 68 Ill. 2d 149,159, 368 N.E.2d 882.

Under the Unified Code of Corrections, the defendant could have been sentenced to a term of not less than 20 years and not more than 40 years for murder. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 1(a)(1)(a).) Where the facts show that the nature of the crime was exceptionally brutal or wanton, however, the defendant could have been sentenced to an extended term of 40 to 80 years. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(a)(1).) For attempted murder, the defendant could have been sentenced to a term of 6 to 30 years (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(3)), or to an extended term of 30 to 60 years (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(b)(2)).

To determine the proper sentence, a hearing in aggravation and mitigation was held on April 30, 1983. In aggravation, the State submitted that the defendant and his associates had determined that there was a prostitution problem; they expected trouble, and they were going to be ready for it. The State also presented the defendant’s signed statements made to Assistant State’s Attorney Lazzaro, in which the defendant admitted that he wanted to make the victims an example and that he wanted to make sure that they were dead. Finally, the State showed that one victim was dead and the other paralyzed.

The defendant, in mitigation, offered the fact that he is the father of six children, was working three jobs to support his family, and had no prior criminal record. Three witnesses testified to his good character in the community.

In sentencing the defendant, the court concluded that the jury had rejected correctly the self-defense theory presented by the defendant. The judge also seemed to rely on the following reasoning:

“I have heard the evidence that Mr. Muhammad is not violent or dangerous and [that] nobody feels threatened by him, but a man that would take that gun and shoot this lady is very puzzling to me; and then, of course, there was testimony and evidence that while lying on the ground she was shot again. That is a very tragic and unnecessary thing. People who are helpless and lying on the ground are surely no threat to anyone ***.”

Because the jury reached the proper verdict, the court’s sentencing was not an abuse of discretion. The fact that the defendant was not sentenced to an extended term for murder shows that perhaps the court did consider some mitigating circumstances. We will not disturb the sentences merely because a reviewing court would have balanced the factors differently. People v. Pittman (1982), 93 Ill. 2d 169, 178, 442 N.E.2d 836.

For the reasons set out herein, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

STAMOS, P.J., and PERLIN, J., concur.


author: JUSTICE SULLIVAN

text:
    EVANSTON BANK, Plaintiff-Appellee, v. FIRST NATIONAL BANK OF WHEATON, Defendant-Appellant.
    First District (5th Division)
    No. 85—0208
    Opinion filed April 26, 1985.
    Irving Faber and Richard Karr, both of Irving Faber & Associates, Ltd., of Chicago, for appellant.
    W. Scott Porterfield, of Fishman, Merrick & Perlman, P.C., of Chicago, for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant appeals from an order appointing a receiver to take possession of a certain 11-apartment building. It contends that the trial court had no authority to appoint the receiver and, alternatively, that the grounds presented for the appointment were insufficient.

It appears that plaintiff had loaned $300,000 to Gary-Wheaton Bank, as trustee, and Patricia Christiansen, as beneficiary, taking a first mortgage on the property as security. In 1983, pursuant to a Uniform Commercial Code sale, the First National Bank of Wheaton (FNBW) purchased the beneficial interest of Christiansen, following which the Gary-Wheaton Bank conveyed the deed to FNBW. Later in 1983, when Christiansen defaulted on plaintiff’s loan, plaintiff brought proceedings resulting on September 18, 1984, in a judgment of foreclosure and sale in its favor. There was an amendment as to the amount of the judgment on November 13, 1984, after which plaintiff purchased the property on November 14, 1984, at the foreclosure sale in which there was no deficiency.

Subsequently, on December 20, 1984, plaintiff, by an unverified petition, requested that it be placed in possession of the property; or, in the alternative, that a receiver be appointed on allegations that defendant, in possession as owner of the equity of redemption, was impairing its security (a) by failing to pay 1983 real estate taxes; (b) because it was informed that three of the 11 apartments in the building were not rented; and (c) because “it is concerned that the premises will not be reasonably maintained.”

Defendant filed a verified answer to the petition which (a) admitted that it did not pay the 1983 taxes, but denied that it was obligated to do so; (b) denied that there were three vacancies in the premises; and (c) denied that the property was not reasonably maintained. Supporting this answer was the affidavit of its officer in charge of the management of the premises, in which she stated, in pertinent part, “that all the utility bills were paid; that a realtor had been hired during the months of August through September to rent vacant apartments; and that, although there had been four vacancies, two had been re-rented.” The affidavit also set forth considerable maintenance work performed on the premises.

No hearings were held on the petition, but on September 20, 1984, after arguments by the parties, the trial court, finding “that the petitioner herein has the right, pursuant to the terms of the mortgage, to seek the appointment of a Receiver to preserve, protect and manage the above-captioned property during the pendency of this action,” appointed the receiver “with all of the usual powers of Receivers, including the management of said premises, collections of rents, payment of necessary taxes and other necessary expenses, ***.” This appeal followed the entry of that order.

Sections 15 — 306 and 15 — 307 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 15 — 306, 15 — 307) are involved in defendant’s first contention that the trial court was without authority to appoint the receiver. Section 15 — 307 provides, in substance, that in foreclosure proceedings the court’s authority ceases after a foreclosure sale in which there is no deficiency. Section 15 — 306, in pertinent part, states that nothing in part 3 of article XV (which includes section 15 — 307) “shall preclude any court from appointing a receiver at any time upon application of the mortgagee, or other plaintiff or party in foreclosure proceedings.”

Defendant initially argues, in his brief, that following the foreclosure sale here in which there was no deficiency, the trial court under section 15 — 307 no longer had the authority to appoint a receiver. On oral argument in this court, however, defendant agreed — as we do — with plaintiff’s contention that under section 15— 306 a receiver could be appointed at any time where an adequate basis therefor is shown. Defendant did suggest, however, that by virtue of the language in section 15 — 307, the court’s authority here ceased after the foreclosure sale, and thus the application for the appointment of a receiver should have been in a separate action. We disagree. It appears to us that the language in that section permitting “any court” to appoint a receiver “at any time” is unrestricted and was not intended to preclude the court’s hearing foreclosure proceedings from doing so — particularly, as here, where they remained pending.

We turn, then, to the contention of defendant that the grounds presented did not warrant the appointment of the receiver. In this regard, we note that the appointment of a receiver is a drastic remedy which should be exercised with great caution and only where there is imminent danger of loss (Iowa Structures Unlimited, Inc. v. First National Bank (1981), 99 Ill. App. 3d 180, 425 N.E.2d 64; Klass v. Yavitch (1939), 302 Ill. App, 229, 23 N.E.2d 936), and the application for appointment should set forth specific facts and cannot be supported by mere conclusions of the applicant (People ex rel. Scott v. Silverstein (1980), 86 Ill. App. 3d 605, 408 N.E.2d 243; Cohen v. Financial Acceptance Co. (1965), 56 Ill. App. 2d 359, 206 N.E.2d 308).

Here, the only factual basis in plaintiff’s application for appointment of a receiver is the allegation that the 1983 real estate taxes had not been paid. The other allegations in the application, that it was informed of three vacant apartment units and that it was concerned that the premises will not be reasonably maintained, are clearly not factual. Thus, the seminal question is whether the appointment was proper on the basis that 1983 taxes had not been paid. While defendant refers to a number of cases holding that unpaid real estate taxes justify the appointment of a receiver, we note that each of them concerns an appointment made prior to a foreclosure sale, and we agree with plaintiff that after a foreclosure sale the nonpayment of real estate taxes does not justify the appointment of a receiver during the redemption period, because the rents accruing in the operation of the property during that period may not be used by a receiver for the purpose of paying real estate taxes. (See McKenerick, v. Levin (1940), 305 Ill. App. 532, 27 N.E.2d 536, and cases cited therein.) This is so because a purchaser at a judicial sale takes the property subject to all outstanding liens. (Community Savings & Loan Association v. Cosmopolitan National Bank (1966), 72 Ill. App. 2d 202, 219 N.E.2d 103.) In Davis v. Dale (1894), 150 Ill. 239, 244, 37 N.E. 215, 216, the court prevented a receiver from applying to the payment of taxes any sums collected as rents and profits, emphasizing that the purchaser at a foreclosure sale

“took the estate *** subject to all prior liens to which it would have been subject in the hands of the mortgagor. He was required to know that the mortgagor would be entitled to the possession, and rents, issues and profits, of the premises pending the running of the period of redemption, and that taxes would accrue which would be a lien upon the property, before the time of redemption would expire, and he voluntarily purchased subject to such accruing lien.”

In the light thereof, we think it clear that, as here, where the only basis for the appointment of the receiver was the unpaid real estate taxes, the appointment should not have been made, since income received from the operation of the property could not be used to pay the real estate taxes.

Accordingly, the order appointing the receiver is reversed.

Reversed.

MEJDA, P.J., and LORENZ, J., concur.


author: JUSTICE LINDBERG

text:
    VITO GRISANZIO, d/b/a Capri Restaurant, Plaintiff-Appellee, v. ROCKFORD NEWSPAPERS, INC., et al., Defendants-Appellants.
    Second District
    No. 84—0745
    Opinion filed April 26, 1985.
    Francis E. Hickey and Robert G. Coplan, both of Connolly, Hickey & Oliver, of Rockford, and William S. Brandt, of Nixon, Hargrave, Devans & Doyle, of Rochester, New York, for appellants.
    Peter S. Switzer, of Bar rick, Jackson, Switzer, Long & Balsley, of Rockford, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Vito Grisanzio, d/b/a the Capri Restaurant, in Rockford, brought an action for defamation against defendants Rockford Newspapers, Inc., Gannett News Service, Inc., Tom Schafer and Dave Daley in the circuit court of Winnebago County. Defendants’ motion to dismiss for failure to state a cause of action (Ill. Rev. Stat. 1983, ch. 110, pars. 2 — 615, 2 — 619) was denied. However, the trial court found that its order involved a question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation, and we allow the appeal. (87 Ill. 2d R. 308.) The question served to us by the trial court is whether an article published by defendants is libelous per se of the plaintiff. We hold it is not and reverse the order of the circuit court.

The article complained of by plaintiff was written by Tom Schafer, under whose name appears “Gannett News Service,” and was printed on pages 1A, 6A, and 7A of the March 4, 1984, edition of the Sunday Register Star in Rockford. On page 1A the headlines of two articles by Schafer were entitled respectively,

“THE MOB IN ROCKFORD
Local underworld is simple network with roots planted in time of economic needs”
and,
“THE ‘HAND’ IN BUSINESS
Mob kingpins are landlords to local legitimate enterprise.”

On pages 6A and 7A, the articles which began on page 1A are continued under these headlines respectively:

“THE MOB IN ROCKFORD
A Special Report of Business.”

The exhibit attached to plaintiff’s complaint containing photocopies of the articles apparently reflects only a part of what appears on pages 6A and 7A but appears sufficient for the purpose of our disposition.

Plaintiff’s allegations of libel per se specified in his complaint are that the articles damaged plaintiff in that they: (1) charged plaintiff with the commission of a crime; (2) induced the reader to reasonably believe a crime was committed by plaintiff; (3) impeached plaintiff’s reputation for honesty and integrity; and/or (4) prejudiced or injured plaintiff in his business or trade. The article forming the basis of plaintiff’s complaint follows. The specific assertions in the article upon which plaintiff bases his allegations of defamation are underscored. Further, the paragraphs are serially numbered in brackets for the convenience of the reader.

“THE ‘HAND’ IN BUSINESS MOB KINGPINS ÁRE LANDLORDS TO LOCAL LEGITIMATE ENTERPRISE
By Tom Schafer
Gannett News Service
The white-stuccoed Capri Restaurant, 313 E. State St., a frequent stop for politicians, the media and pasta lovers, stands out amid the turn-of-the-century redevelopment projects preferred by city planners.
It also stands out in law enforcement intelligence files. Some of the Capri’s patrons may know — most probably don’t —that the East' State Street building and property are owned by Joseph Zammuto, the longtime head of the Rockford Mafia family, who investigators now believe serves as a semi-retired counselor.
The lot and building housing the Capri in downtown Rockford are part of the network of legitimate business interests of people with underworld ties that spreads throughout Rockford and northern Illinois.
Zammuto owns the downtown Capri property, according to Winnebago County tax records. He also owns, those same records show, the property housing Giuseppi’s Italian Restaurant and the now-closed North Towne Mini Golf at 950 Halsted Road and property at 111 Kilburn Ave.
Rockford police say they suspect he owns other properties through secret trusts or front-men. At one time he also owned, or held interest in, the North Towne Lounge, Reliable Distributing Co., the Dr. Pepper Bottling Co. and Blackhawk Bottling Co., according to police and FBI intelligence reports and the Rockford City Directory.
But no one except Zammuto and his intimates may ever learn all he owns. While authorities have some ideas about what the mob does and owns, for the most part such knowledge is elusive, in part because Mafia members have become expert at cloaking their legitimate business holdings. As one veteran federal investigator put it: ‘These people are like cockroaches. You step on them one place and they turn up somewhere else.’
In Rockford, for example, Nancy Vince, wife of Charles Vince, whom FBI files say is among the Rockford Mafia’s top leaders, held a liquor license for StaVon Tap at State and Avon Streets, according to city records. She transferred it to Salvatore Galluzzo, identified in police reports as a mob soldier.
Galluzzo moved the business to 1049 W. State St. and opened Night and Day Disco. When Galluzzo closed the troubled nightspot, the license was transferred to Frank A. Buscemi, son of reputed mob-boss Frank J. Buscemi. Buscemi opened Plaza Suite, 640 Hollister Ave., which went bankrupt in 1983. Bankruptcy records filed in Winnebago County Circuit Court show that Buscemi’s father had a substantial interest in the business.
Beside his interest in Plaza Suite, Frank J. Buscemi owns the property and business of Sam’s Pizza, 1029 E. Harlem Road, Rondinella Foods, Inc., 1128 S. Winnebago St., and Stateline Vending and Amusement Co., 326 W. Jefferson St., according to county tax records.
Buscemi sold Rondinella in about 1981, but not the building and property, to Salvatore DiGiacomo and Alfonso DiGiacomo, according to reports filed with the Illinois Secretary of State. The DiGiacomos are connected with Galluzzo in the pizza business.
Who are these reputed mobsters? To hear from family, friends and acquaintances, they are ‘nice guys,’ strong family men. Other acquaintances call them mysterious and to be feared; few seem to know what they do for a living.
Joseph Zammuto Jr. told FBI agents in 1967 his father feels bad about the adverse publicity he has received as an alleged Mafia leader because of the effect it might have on his grandchildren.
‘He said his father was heartbroken when his photograph appeared in Life magazine, in the late 1960s, *** and he actually cried when he learned that his grandson had become aware of it,’ the FBI report states.
Others identified in FBI documents aren’t described in such flattering terms. Both Joseph Maggio, who was gunned down in 1980, and Joseph ‘Gramps’ Marinelli, who died of natural causes the same year, were to be considered ‘armed and dangerous,’ FBI reports say.
Rockford’s small ‘family’ of about 20 is part of a nationwide criminal cartel known as the La Cosa Nostra to the FBI, and the Mafia to most everyone else. Those formally welcomed in the family are known as ‘made’ members and are sponsored by other members and initiated. No one knows for sure what criteria are used to determine who should become a member, but in the old days, according to government informants, a prospect had to kill someone in order to join some families.
Across the country, the Mafia is a loose-knit organization of 25 active outfits or families, located mostly in Northern industrial cities, that work together on criminal and legitimate activities.
For example, local police believe the local mob approved of New York Mafia families controlling pornography in Rockford, in exchange for letting Rockford mobsters operate franchise schemes on the East Coast.
No one knows how much money the mob earns, because obviously they don’t keep ledger sheets on profits and losses and report to the IRS each April 15. Admittedly inexact estimates, by the FBI, of the Mafia’s annual take begin at $120 billion a year and go up from there.
Those estimates don’t include the mob’s move into legitimate businesses, and the unfair advantages they have when it comes to untaxed capital to invest and the fear they instill in citizens.”

An action for defamation based on libel per se requires that the words used are in and of themselves so obviously and naturally harmful that proof of special damages is unnecessary. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 348.) In Illinois, for a writing to be libelous per se, it must contain a false statement which imputes to the plaintiff any of the following offensive categories: “(1) the commission of a crime; (2) the infection with a loathe-some disease; (3) the unfitness or want of integrity in performing the duties of an office or employment; or (4) words which adversely reflect on a particular party’s abilities in his business, trade or profession.” Levinson v. Time, Inc. (1980), 89 Ill. App. 3d 338, 340-41, 411 N.E.2d 1118, 1121. Accord, Fried v. Jacobson (1983), 99 Ill. 2d 24, 27.

The Supreme Court of Illinois has employed the rule of innocent construction to determine whether the particular language used constitutes libel per se. That rule, as recently modified by the supreme court, states:

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the state-merits may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff.” Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352.

Plaintiff alleges that defendants’ statements were defamatory in that they falsely accused him of committing a crime and harmed him in Ms business. An allegation that a statement falsely accuses a person of committing a crime is sufficient to support a defamation action against the person making the statement. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 El. 2d 345, 348; Cartwright v. Garrison (1983), 113 Ill. App. 3d 536, 540, 447 N.E.2d 446, 448; Fogus v. Capital Cities Media, Inc. (1982), 111 Ill. App. 3d 1060, 1062, 444 N.E.2d 1100, 1101; Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 456, 395 N.E.2d 1185, 1189.) Thus, we must determine whether the statements in issue here accuse plaintiff of the commission of crimes.

In determining whether these statements accuse plaintiff of committing crimes, the innocent-construction rule must be applied. This rule requires that the statements be “considered in context, -with the words and the implications therefrom given their natural and obvious meaning” (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352.) If, under this construction the statements may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff, then it is not actionable as a matter of law. 92 Ill. 2d 344, 352.

Here, the context in which the allegedly defamatory statements appear is in an article dealing with the Mafia. More specifically, the article describes businesses of alleged Mafia leader Joseph Zammuto, who is identified as the owner of the property and building housing the business of the Capri Restaurant.

The article, and particularly those sentences emphasized by plaintiff in his complaint and set out above, fails to identify plaintiff, Vito Grisanzio, individually at any time. Further, the article cannot be read reasonably to accuse plaintiff as the operator of the Capri Restaurant of having committed a crime or to lack honesty or integrity in his trade or business. Even if the reader were to carelessly conclude from the headlines and the first two paragraphs that the Capri Restaurant business was owned by Zammuto or was Mafia-owned, he would be disabused of that misapprehension by a continued reading of the article which reinforces the statement in the second paragraph of the article that the building and property are the business interests of Zammuto.

At best, from the standpoint of the plaintiff, it would appear that mention of the Capri Restaurant, a frequent stop for politicians, the media and pasta lovers was a “hook” to interest readers to read the story. However, a reading of the entire article together with its headlines and, according to plaintiff, “Black Hand” graphics, would not lead a reasonable person to ascribe criminal activities to the Capri. The article may be reasonably interpreted as referring to persons and businesses other than plaintiff’s business and therefore is not actionable as a matter of law. Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352; Cartwright v. Garrison (1983), 113 Ill. App. 3d 536, 541, 447 N.E.2d 446, 449.

Essential to plaintiff’s theory is that a reader of the article reasonably would not perceive the distinction between the ownership of the business of the restaurant and ownership of the property wherein the restaurant is operated. However, our reading of the article satisfies us that a reader reasonably would perceive the distinction. For example, the article includes a statement that the lot and building housing the Capri in downtown Rockford are part of the network of legitimate business interests of people with underworld ties. Not only does the statement not mention the business of the Capri, but immediately following that statement the article ascribes ownership of the Capri property, as well as other properties, to Zammuto.

Nor do we believe the article, or statements alleged to be specifically defamatory, impute the commission of crimes to plaintiff. (See Fogus v. Capital Cities Media, Inc. (1982), 111 Ill. App. 3d 1060, 1062, 444 N.E.2d 1100, 1101.) On appeal, plaintiff contends that the articles charge he is engaged in mob action (Ill. Rev. Stat. 1983, ch. 38, par. 25 — 1), or conspiracy (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 2), which are crimes in Illinois. While a statement need not charge a person with a criminal offense with the precision of an indictment in order to be actionable (Catalano v. Pechous (1980), 83 Ill. 2d 146, 157; Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 457, 395 N.E.2d 1185, 1189), words are not actionable if they reasonably may be innocently interpreted. (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352; see generally Antonelli v. Field Enterprises, Inc. (1983), 115 Ill. App. 3d 432, 450 N.E.2d 876.) No person could reasonably conclude from reading the article that the business of the Capri Restaurant or its owner were involved in mob action or a conspiracy. It would require an entirely unreasonable and strained reading of the article to arrive at such a conclusion. Contrary to plaintiff’s assertions, the article simply does not make charges of the commission of criminal offenses by plaintiff individually or doing business as the Capri Restaurant.

Plaintiff also argues that the statements injured his profession. A false statement which imputes that a person lacks ability in his profession or is unfit to perform his employment duties is actionable as defamation. (Cartwright v. Garrison (1983), 113 Ill. App. 3d 536, 542, 447 N.E.2d 446, 449.) Applying the innocent-construction rule, we conclude that the allegedly defamatory statements may reasonably be read as not imputing any unfitness or lack of ability on plaintiff’s part. Again, the article states in part that the lot and building housing the Capri Restaurant in downtown Rockford are part of a network of legitimate business interests of people with underworld ties that spreads throughout Rockford and northern Illinois. Neither the expressions to which plaintiff directs our attention nor the article read as a whole can be reasonably interpreted as imputing unfitness or lack of ability on plaintiff’s part or on the part of his business and therefore are not actionable as a matter of law. Matchett v. Chicago Bar Association (1984), 125 Ill. App. 3d 1004, 1010, 467 N.E.2d 271, 276.

As a result of our disposition of these issues on the basis of the innocent-construction rule, we need not consider the other arguments of the parties. The judgment of the circuit court of Winnebago County is reversed.

Reversed.

SCHNAKE and STROUSE, JJ., concur.