author: JUSTICE GOLDBERG JUSTICE McGLOON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACKIE HANCOCK, Defendant-Appellant.
    First District (1st Division)
    No. 80—0901
    Opinion filed November 29, 1982.

      McGLOON, J., dissenting.
    Randolph N. Stone, of Stone & Clark, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and Rhoda W. Davis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GOLDBERG

delivered the opinion of the court:

After a jury trial, Jackie Hancock (defendant) was found guilty on two counts of armed robbery. He was sentenced to 15 years. He appeals.

In this court, defendant raises a variety of issues. In an effort to attain an orderly ruling thereon we will first state a summary of the evidence. We will augment this statement as required in considering the various issues raised.

On June 27, 1978, about 11:30 a.m., a bartender and four patrons were in a well-lighted tavern. The doors and a window were all open. A person identified as defendant entered with an automatic pistol drawn. He stated it was a “stickup” and he wanted everyone’s wallet. One patron threw his wallet on the floor. The others placed them on the bar. The bartender put some $45 on the bar.

At that point, Rose Carter, a friend of the bartender, entered. She testified that defendant seized her and pulled her in front of him. She struck at the defendant but the bartender cautioned her to obey. Defendant took the money and required all persons to enter the bathroom. This lasted from three to five minutes. One witness was two feet from the defendant.

At trial there were six in-court identifications of defendant, by all four of the patrons (Wright, Peters, Monroe and Martin), by Rose Carter and by the bartender. In addition, two of the patrons (Wright and Peters) identified defendant at a police lineup. Two photographs of this lineup were received in evidence after testimony by the two witnesses concerning them. In addition, two of the patrons (Peters and Martin), Rose Carter and the bartender, also testified each had made a photographic identification of the defendant from an album of photographs shown to them by the police.

Defendant called Geraldine Gilliam. She is defendant’s cousin. She testified defendant was at her home about 7 o’clock on the morning in question. She left for work shortly after 8 a.m. She attempted to call her home about 9 a.m. and could not get the line until about 11 a.m. Defendant also called Ernestine Gilliam, a sister-in-law of defendant’s mother. She testified defendant called her at 10:30 on the morning in question and said he was coming “to paint some burglary bars for me and put them up.” Defendant came to her home about 11:30 a.m. and remained until 12 o’clock.

Defendant testified he went to his mother’s home about 6 a.m. He left the house for a short time about 9 a.m. only to buy some cigarettes. He tried to reach a lady named Linda Mellis, a social worker at a hospital where his wife had gone. About 11:30 he went to the home of Ernestine Gilliam. He talked to her about installing some burglary bars. She told him she would have the money shortly and he agreed to do the work. Defendant testified he had never been in the tavern in question and he categorically denied he had ever robbed anyone there.

I

Defendant moved in limine to exclude evidence of his prior convictions for theft of services in 1977 and for armed robbery in 1973. The trial judge denied the motion and certified copies of these convictions were received. Defendant urges this was an abuse of discretion.

Since People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, admission of prior convictions has been held proper in the exercise of sound discretion of the trial court. (People v. Washington (1973), 55 Ill. 2d 521, 523, 304 N.E.2d 276.) The problem to be considered by the trial court and to be reviewed by this court involves a comparison of the probative value of the prior conviction “against the potential for unfair prejudice which might result.” (People v. Spates (1979) , 77 Ill. 2d 193, 205, 395 N.E.2d 563.) The crucial factors are set forth in Spates and Montgomery.

In the instant case we find the trial court exercised its discretion with care and came to the correct result. The crimes of theft of services and armed robbery relate directly to credibility and veracity. (People v. Ridley (1975), 25 Ill. App. 3d 596, 601, 323 N.E. 2d 577, appeal denied (1975), 58 Ill. 2d 598.) The trial judge is given wide latitude in the exercise of his discretion in this situation. (People v. Fleming (1980), 91 Ill. App. 3d 99, 108, 413 N.E.2d 1330, appeal denied (1981), 83 Ill. 2d 571.) We find no breach of discretion in this regard.

II

On cross-examination of the defendant, the State inquired: “Were you ever on the phone with Mrs. Mellis [Linda Mellis] that morning of the 27th?” The defendant answered, “No, I wasn’t.” The State then inquired as to whether defendant had told an assistant State’s Attorney and an investigator he had received a telephone call from Linda Mellis; and whether that call took approximately one hour and 15 minutes. The defendant categorically denied both of these statements.

On rebuttal, the State called Assistant State’s Attorney Quinn. He testified he interviewed the defendant shortly after arrest. Defendant told him he had received a telephone call about 10:45 a.m. on the day in question. Defendant was at his mother’s home. The caller was Linda Mellis, a psychiatric social worker at a hospital. She and defendant spoke about the defendant’s wife. This conversation lasted one hour and 15 minutes.

The State also called Linda Mellis in rebuttal. She testified she did not speak to the defendant on the date in question, June 27, 1978. The witness specifically recalled on that particular day she and her husband had doctor’s appointments at 10 a.m.

Defendant now contends the testimony of the two rebuttal witnesses was prejudical and improper. Defendant made no objection to the rebuttal testimony given by either of these witnesses at the time they testified. After final arguments had been completed and after the jury retired, counsel for defendant for the first time told the court he wished to object to the testimony of Linda Mellis on the ground that it was not proper rebuttal. The trial court overruled this objection and stated that the rebuttal was properly admissible. Since no timely objection to this rebuttal evidence was “made at the time of admission” the point, if any, is therefore waived. People v. Baynes (1981), 88 Ill. 2d 225, 230, 430 N.E.2d 1070.

Even assuming the absence of waiver on this strong ground, we conclude the admission of this rebuttal evidence was entirely proper within the exercise of sound discretion by the trial court. (People v. Waller (1977), 67 Ill. 2d 381, 387, 367 N.E.2d 1283.) We find no breach of discretion in this regard.

Ill

Defendant filed a motion to suppress identification testimony. The motion alleged the identification witnesses did not have an adequate opportunity to view the person who robbed them; after the robbery the individuals gave descriptions of the offender which substantially differed from defendant’s description; identification was made by photographs containing no other persons who resembled the defendant; the photographic identifications were made by the witnesses in the presence of each other; and in the lineup defendant was identified by two people who were in the presence of each other so that the identification evidence should be suppressed. Defendant contends the trial court violated his right to due process by refusing to permit relevant questions regarding reliability of the identification at the pretrial hearing on the motion to suppress.

Defendant relies primarily upon People v. Robinson (1970), 46 Ill. 2d 229, 263 N.E.2d 57. There, a conviction was reversed because the trial judge arbitrarily curtailed the right of defendant to make a showing of suggestive matters which occurred during the identification process. (46 Ill. 2d 229, 232-33.) We do not find Robinson applicable here.

In support of the motion to suppress the identification, defendant called the two patrons of the tavern who had participated in the lineup (Wright and Peters) and also Rose Carter. On the motion to suppress, the trial court ruled defendant should proceed to make proof in support of his petition regarding any improper or suggestive police conduct. However, the trial court also ruled that the hearing of evidence with reference to an adequate opportunity of the witnesses to view the offender should be reserved to hearing of the case in chief. Counsel for defendant proceeded to examine these three witnesses in connection with his motion to suppress. After this hearing the trial judge denied the motion.

We find no reversible error in this regard. The record shows this case was most ably presented to the jury by counsel for defendant. Each and all of the witnesses who identified defendant in court, the lineup identifications and the photographic identifications were subjected to able and complete cross-examination. All of these contentions thus made by defendant regarding the identification were completely brought out before the jury.

The evidence shows clearly that the tavern in question was well lighted. The front and rear doors, and a window were all open. The holdup took place about 11:30 a.m. There is no evidence to the contrary. It is also agreed and verified that the incident lasted from three to five minutes. The defendant spoke to Rose Carter. At various times all of the persons in the tavern were very close to the defendant. Two witnesses testified the defendant urged them to “take a good look” at him. Beyond any reasonable doubt there was ample and adequate opportunity for each and all of the identification witnesses to see and observe the defendant fully.

As regards the photographic identification, the witness Carter went to the police station about one hour after the robbery. She looked through seven albums of photographs taken by the police. She picked out defendant’s picture. On the motion to suppress, she testified the defendant’s name appeared below his picture together with a number. On cross-examination during the case in chief, she stated she could not remember whether or not defendant’s name appeared on the photo. There was testimony by other witnesses that the name did appear below the picture.

The record also shows a police officer accompanied Carter back to the tavern. She testified she did not talk to the police any further about her photographic identification. The officers showed the album individually to each of the remaining identification witnesses. The officer could not remember at trial whether or not he told the other witnesses that Carter had identified one of the photographs. In addition, several of the identification witnesses were strongly cross-examined by counsel for defendant regarding the description of the offender, allegedly given to them by the police. Theodore Peters, one of the witnesses at the pretrial hearing, testified the album of photographs was shown to him by the police when he was standing outside the tavern. Similarly, Carter testified she was alone when the police officer showed her the album of photographs.

Based upon the entire record before us, we cannot find that “the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States (1968), 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253, 88 S. Ct. 967, 971, cited in People v. AUender (1977), 69 Ill. 2d 38, 42, 370 N.E.2d 509.

On the issue of the lineup identifications, the police conducted a lineup on July 4, 1978. The only two witnesses available for the lineup were Theodore Peters and Thomas Wright. Both of them testified they were put in a closed room together before the lineup. They did not speak to each other at the lineup. In fact, they were not together when they viewed the lineup. The witness Wright never saw the photographic albums. The witness Peters selected the defendant’s picture from a police album. Pictures of the lineup were exhibited to both of these witnesses in open court. They identified the pictures and identified the defendant and his position in the lineup. “The burden of proving that the lineup procedure was unfair was upon the defendant.” (People v. Brown (1972), 52 Ill. 2d 94, 100, 285 N.E.2d 1.) We find beyond reasonable doubt that the lineup procedure was not unnecessarily suggestive or conducive to mistaken identification.

In the case before us, in-court identification of the defendant by six credible witnesses would seem to eliminate any risk of misidentification. However, the courts of this jurisdiction have carefully considered the various tests which should be applied and satisfied before it can be concluded that there is no reasonable likelihood of misidentification. These tests are well set out in People v. McTush (1980), 81 Ill. 2d 513, 521, 410 N.E.2d 861:

“The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. [Citations.] This court has added another factor in determining whether a witness’ identification has an independent origin: ‘any acquaintance with the suspect prior to the crime.’ People v. Blumenshine (1969), 42 Ill. 2d 508, 514.”

Finally, to close the matter, it has been repeatedly held that any possible suggestibility in connection with the photographic identification and the lineup identification is rendered irrelevant where the in-court identification of the defendant- has an adequate origin independent of the photographic and lineup procedures. (See People v. Allender (1977), 69 Ill. 2d 38, 43; see also People v. McTush (1980), 81 Ill. 2d 513, 523, and cases there cited.) In our opinion the adequate, independent origin has been established beyond any reasonable doubt.

IV

Defendant urges there is a reasonable doubt as to his guilt. He takes the position that the testimony of his cousin Geraldine Gilliam and his family member Ernestine Gilliam is adequate to overcome the massive arid convincing evidence supplied by the eyewitnesses.

We find from this record that defendant himself was thoroughly discredited. The rebuttal evidence above summarized shows that defendant told the investigators he had a telephone conversation with a social worker which lasted 1 hour and 15 minutes on the morning of the armed robbery. On the contrary, the social worker, a reputable witness, not discredited or impeached in even the slightest respect, testified she did not speak to defendant on that day. She supported her testimony by the statement that she remembered the specific day because she and her husband had appointments with the doctor on that date. Insofar as the witness Geraldine Gilliam testified her telephone line at home was busy about that time for close to two hours; her testimony is simply irrelevant to any alibi. As for Ernestine Gilliam, she testified defendant told her he was coming to paint and install some burglary bars. Defendant testified the work had not been done and he agreed to do it on a later date. It seems clear that the attempted alibi was weak and thoroughly overcome by the overwhelming identification testimony. The issues raised by defendant do not affect the positive identifications but simply raise an issue of credibility for the jury to decide.

As we view this entire record, it presents simply an issue of credibility for resolution by the jury. It has been repeatedly held that, “the jury had no obligation to believe defendant’s alibi evidence.” (People v. Tennant (1976), 65 Ill. 2d 401, 412, 358 N.E.2d 1116, cert. denied (1977), 431 U.S. 918, 53 L.Ed. 2d 229, 97 S. Ct. 2184; People v. Jones (1980), 82 Ill. App. 3d 386, 401, 402 N.E.2d 746, appeal denied (1980), 81 Ill. 2d 596.) In this type of situation this court may “not set aside a jury’s verdict unless the evidence presented at trial is so improbable as to raise a reasonable doubt of guilt.” (People v. Yarbrough (1977), 67 Ill. 2d 222, 227, 367 N.E.2d 666.) On the contrary, our examination of the record convinces us that the verdict of the jury is most strongly supported by the evidence beyond reasonable doubt to the point of being overwhelming.

V

The trial court read to the jury all of the 11 written instructions. The jury then retired. Counsel for defendant then immediately spoke to the court concerning an objection to rebuttal evidence not previously made. After some colloquy the court overruled this objection. The jurors began their deliberation about 1:30 p.m. About 5 p.m. the jury informed the bailiff they had reached a verdict. It was then realized for the first time that the jury had not been given the written instructions and the verdicts to take with them to the jury room.

Defense counsel objected but the trial court ordered the bailiff to take the instructions and verdicts to the jury. This took place shortly after 5 p.m. About 5:30 there was a verdict and defendant’s counsel moved for a mistrial because the jury had been permitted to deliberate without the written instructions. The court denied this motion. The individual jurors were all polled without incident. Defendant contends this incident constitutes reversible error.

All of the written instructions appear in the record. All of them are taken from Illinois Pattern Instructions. The rules of the supreme court provide:

“Instructions in criminal cases shall be tendered, settled, and given in accordance with section 2 — 1107 of the Code of Civil Procedure, but substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.” (87 Ill. 2d R. 451(c).)

The pertinent statute, section 2 — 1107 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1107(b)), previously section 67 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 67(2)), provides:

“The original written instructions given by the court to the jury shall be taken by the jury to the jury room ***.”

Thus, the disposition of the written instructions during jury deliberations, required in civil cases as a matter of statutory compliance, is made applicable to criminal cases by rule of the supreme court.

Defendant cites and depends upon a number of cases which can immediately be differentiated. In each of these cases the trial judge instructed the jury as to the law only in oral instructions. No written instructions were prepared, given to the jury or filed. (People v. Callopy (1934), 358 Ill. 11, 12, 192 N.E. 634; People v. Kelly (1931), 347 Ill. 221, 222-23, 179 N.E. 898; and People v. Grandstaff (1926), 324 Ill. 70, 73-74, 154 N.E. 448.) In addition, in Ellis v. People (1896), 159 Ill. 337, 338, 42 N.E. 873, the trial court read written jury instructions but supplemented them with a series of oral instructions. The remaining case cited by defendant is Hart v. State (1926), 21 Ala. App. 621, Ill So. 47.

In our opinion, Hart should not be followed by this court for these reasons: the opinion was filed over 50 years ago; also, the situation in Hart is different from the instant case. There, written instructions were read to the jury by the trial judge. These instructions were never given to the jury, either before or during their deliberations. The matter was brought to the attention of the court only on defendant’s motion for new trial. 21 Ala. App. 621, 622, Ill So. 47, 47.

In the instant case, the attention of the trial judge may possibly have been diverted by the colloquy with counsel for defendant concerning a tardy objection to rebuttal evidence. Be that as it may, when the matter was brought to the attention of the trial judge he acted immediately. The instructions were forthwith given to the jury for their information without any further communication to them. No one knows the nature of the jury deliberation or the tentative result reached by them when they asked for the instructions. In fact, we may readily assume that the verdicts were delivered to the jury only with the written instructions.

The majority of the Hart court summarily reversed the judgment because the written instructions were never given to the jury. There is a strong dissent on the grounds that this ruling would enable a defendant “through skillful or careless counsel, to procure a new trial in practically every case of conviction.” (21 Ala. App. 621, 622, 111 So. 47, 48 (Rice, J., dissenting).) The dissent pointed out the atmosphere of confusion which may exist during retirement of the jury. The dissent added, it “is perfectly clear that the said charges were left out of the jury room through nobody’s fault, but through an inadvertent oversight on the point of all concerned.” (21 Ala. App. 621, 623, 111 So. 47, 48 (Rice, J., dissenting).) Finally, the dissenting judge stated this matter “does not affirmatively appear to have injured [defendant’s] rights, and which arose out of no adverse ruling of the trial court.” 21 Ala. App. 621, 623, 111 So. 47, 48.

Thus, it appears that we have no Illinois authority on the precise point here involved. Our own research has led us only to a civil case, Kunz v. Nelson (1938), 94 Utah 185, 76 P.2d 577. There, in a trover action involving certain crops, the trial court read his instructions from notes. Counsel for defendants assumed the judge was reading written instructions which would be given to the jury. However, no written instructions were given and counsel for defendants immediately objected. The court cited a number of authorities and held that the duty of the court to instruct in writing only was mandatory and allowed a new trial. (94 Utah 185, 200-01, 76 P.2d 577, 584.) The case is factually different from the instant case. Here, the written instructions were in fact furnished to the jury before they had completed their deliberations and signed the verdicts.

In the case before us, particularly in view of the strength of the evidence of guilt, we are impelled to conclude that any conceivable error arising from this matter was harmless. (People v. Warmack (1980), 83 Ill. 2d 112, 128-29, 413 N.E.2d 1254.) We find nothing in this record to indicate that this defendant was prejudiced in any manner by this trial incident. None of the 12 jurors raised any point or indicated any problem or lack of knowledge when the jury was polled. In this type of situation, it is not within the province of a reviewing court to seek out and validate any claim of prejudice which is “founded on mere conjecture.” (People v. Lewis (1975), 60 Ill. 2d 152, 158, 330 N.E.2d 857.) We “can safely conclude that a trial without this error would produce no different result.” People v. Warmack (1980), 83 Ill. 2d 112, 128-29.

The judgment is accordingly affirmed.

CAMPBELL, P.J., concurs.

JUSTICE McGLOON,

dissenting:

I do not dispute the facts as set out by my colleagues in the majority opinion. However, I must differ with my colleagues on their interpretation of section 67 of the Civil Practice Act. That section is unambiguous and provides that “[t]he court shall give instructions to the jury only in writing.” (Ill. Rev. Stat. 1981, ch. 110, par. 67.) The statutory requirement that jury instructions must be in writing has remained unchanged since 1907. (Ill. Laws 1907, at 458, secs. 72-76; Ill. Rev. Stat. 1933, ch. 110, par. 191; Ill. Rev. Stat. 1935, ch. 110, par. 195; Ill. Rev. Stat. 1937, ch. 110, par. 191; Ill. Rev. Stat. 1941, ch. 110, par. 191; Ill. Rev. Stat. 1955, ch. 110, par. 67; Ill. Rev. Stat. 1973, ch. 110, par. 67.) Thus, the legislature has clearly and consistently provided that the court shall instruct the jury in writing. Although the statute does not specify when the written instructions are to be given, the requirement that the instructions “shall be taken by the jury to the jury room” demonstrates the intent on the part of the legislature that the jury have access to the instructions during its deliberations.

Ellis v. People (1896), 159 Ill. 337, 42 N.E. 873, and People v. Grandstaff (1926), 324 Ill. 70, 154 N.E. 448, construe similar versions of the statute. In Ellis, the court stated that in criminal cases, where the accused is not presumed to waive any of his legal rights, the statute requiring written instructions must be strictly complied with. Strict compliance necessarily dictates that the jurors receive written instructions prior to reaching their verdict. In the case at bar, the jury indicated that they had reached its verdict by signalling the bailiff. The following colloquy between the defense counsel and the court further demonstrates that the jury had reached its verdict without the benefit of written instructions:

“MR. STONE: I think it is clear that the jury had already reached their verdict before the instructions were sent back.
THE COURT: I have no quarrel with the representation, Mr. Stone.”

Furthermore, my interpretation of People v. Grandstaff (1926), 324 Ill. 70, 154 N.E. 448, differs from that of my colleagues. I could find no reference to whether or not written instructions were prepared, given to the jury, or filed. In Grandstaff, a burglary conviction was reversed due to the State’s failure to bring the defendant to trial within four months, however, the Illinois Supreme Court stated that giving oral instructions to the jury, in violation of the Practice Act, was a procedural error which would cause a judgment to be reversed.

Few Illinois cases address the issue of whether a violation of statutory provisions that jury instructions be in writing constitutes reversible error. In light of the absence of Illinois case law, it is necessary to look to our sister States for their interpretation of similar statutes. I find the majority opinion of Hart v. State (1926), 21 Ala. App. 621, 111 So. 47, and Kunz v. Nelson (1938), 94 Utah 185, 76 P.2d 577, to be persuasive on this issue.

In Hart, the court of appeals reversed a defendant’s conviction because the requested instructions were read to the jury but were not taken by the jury upon their retirement, as required by a statute similar to the Illinois statute. The court concluded that “[w]hen there is a plain mandate of the statute, a failure to observe such cannot be said as a matter of law to be error without injury. The Legislature has fixed it as being a necessary part of a trial before a jury, and the courts must abide by it.” Hart v. State (1926), 21 Ala. App. 621, 622, 111 So. 47, 47.

The instant case is unlike Hart in that after it was discovered that the jury had reached its verdict without receiving written instructions, defense counsel immediately moved for a mistrial thereby preserving this issue for appeal. Had counsel failed to promptly object and move for a mistrial, his failure would be construed to be a waiver by agreement of counsel. (See Johnson v. Shell Oil Co. (1970), 131 Ill. App. 2d 1032, 264 N.E.2d 278 (abstract of opinion).) However, the above distinction strengthens the defendant’s case.

The supreme court of the State of Utah has held that the failure to reduce all substantial instructions to writing for the use of the jury in the jury room is itself reversible error. (Kunz v. Nelson (1938), 94 Utah 185, 201, 76 P.2d 577, 584.) In Kunz, the court emphasized that it could not inquire as to whether the failure to furnish the jury with written instructions was in fact actually prejudicial, stating, “[I]t will be irrebuttably presumed to be prejudicial. The requirement to instruct in writing does not mean for the purpose of the record only, but for the purpose of use by the jury in the jury room ***.” (94 Utah 184, 201, 76 P.2d 577, 584.) I find the reasoning in Kunz to be applicable to the case at bar.

The majority holds that any conceivable error arising from this matter was harmless. I cannot agree.

The sixteen instructions (including the verdict forms) covered sophisticated and abstract legal concepts such as: burden of proof, consideration of evidence and reasonable inferences drawn therefrom, the elements of the offense charged, presumption of innocence, reasonable doubt, the weight to be given the testimony heard, inconsistent statements, what the State must prove, and the limitation of evidence regarding prior convictions for impeachment purposes only. While the case is not complex in that there was no scientific evidence presented or expert testimony heard, the jurors were denied the opportunity to review the principles of law and to apply those principles to the facts of the case and arrive at the proper verdict. As stated in People v. Plum (1976), 44 Ill. App. 3d 922, 925, 358 N.E.2d 1235, 1237, citing People v. Anthony (1975), 30 Ill. App. 3d 464, 467, 334 N.E.2d 208:

“The function of instructions is to convey to the jurors the correct principles of law applicable to the facts so that the jury can arrive at a correct conclusion according to the law and evidence. [Citation.] Where the evidence is conflicting, it is even more important, for a proper consideration of the facts, that the jury be properly instructed.”

Here, the jury was not properly instructed in accordance with the plain mandate of the statute. The essential function of the instructions was vitiated by the trial court’s failure to comply with the statute thereby prejudicing defendant. Moreover, the error cannot be cured by delivering instructions after submission of the case to the jury for deliberation. Vanmeter v. True (1894), 16 Ky. L. Rep. 320 (abstract of opinion).

I therefore conclude that defense counsel’s objection to submitting instructions to the jury after it had reached a verdict was well-founded. The trial court should have granted defendant’s motion for a new trial.


source: Caselaw Access Project

author: JUSTICE McGLOON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE JOHNSON, Defendant-Appellant.
    First District (1st Division)
    No. 80—2842
    Opinion filed November 29, 1982.

      James J. Doherty, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney of Chicago (Michael E. Shabat, Dean P. Karlos, and Louis F. Stalzer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court;

After a jury trial, defendant Willie Johnson was convicted of burglary and sentenced to four years in the Illinois Department of Corrections. On appeal, defendant contends (1) the trial court erred in denying his motion to bar use of a prior conviction; (2) a voluntary intoxication instruction tendered by the State was improperly given; (3) the voluntary intoxication instructions as given were incomplete and misleading; (4) a police report was improperly admitted as substantive evidence; and (5) prejudicial comments during the State’s closing argument deprived him of a fair trial.

We affirm.

At trial, Richard Hujar, a police officer assigned to the canine unit, testified that at 3:20 a.m. on April 8, 1980, he received a call to assist other officers at Bethune School. When he and his partner Officer Delaney arrived, Hujar observed that a window had been removed. Hujar, Delaney and their dogs entered the school. Hujar released his dog on the first floor. Delaney went to the second floor. When Hujar released his dog, the dog went around a comer and shortly thereafter Hujar heard yelling. He found defendant in a hallway. His dog was biting defendant’s arm. Hujar took defendant out of the school and placed defendant in Officer Tabor’s custody.

Officer Tabor and his partner were the first officers to arrive at the school. Tabor testified that he noticed an open window and when he approached it, found that the glass had been removed. He radioed for assistance. Tabor then crawled through the window into the classroom, where he found books and papers scattered on the floor. Drawers in the teacher’s desk and storage closet doors were open. Tabor left the classroom when the canine unit arrived. Other officers entered the school with dogs and soon thereafter exited the school with defendant whom they placed in Tabor’s custody. Tabor further testified that he did not detect the odor of alcohol on defendant’s breath. Defendant was able to walk without assistance and did not stagger or stumble. On cross-examination Tabor testified that no burglary tools were found after defendant was searched, nor were any tools found on the school premises. When defendant was placed in Tabor’s custody, Tabor was told defendant was apprehended in the washroom.

Defendant called his sister, aunt, and mother to testify on his behalf. Defendant’s sister, Lucinda Logan, lived with her mother and defendant. She testified she had a party at home on April 7, 1980. The party began about 1 p.m. Defendant had been drinking at the party and was “high,” but he was able to walk and speak coherently.

Queenola Starling, defendant’s aunt, testified that on April 7, 1980, between 8 and 10:30 p.m., she played cards with defendant. While playing, she and defendant drank 12 cans of beer and one-half pint of whiskey. Defendant became drank and Staffing asked him to take a nap. Defendant refused and left Starling’s home.

Ollie Adams, defendant’s mother, testified that when she returned home at 1:30 a.m. on April 8, 1980, defendant and a few of his friends were drinking. She smelled alcohol on his breath and knew he was drunk. She also testified that Bethune School was across the street from her home.

First, defendant contends the trial court erred in denying his motion in limine to bar use of his prior burglary conviction as impeachment evidence in the event he testified. He maintains the trial court did not consider the prejudicial impact of the prior conviction and therefore did not properly balance the factors relevant to deciding the motion. Defendant further maintains he chose not to testify because of the trial court’s ruling, was thereby prohibited from explaining his reasons for entering the school and was prejudiced in this manner.

Prejudice which might occur from evidence of a witness’ prior conviction is one of three factors to be considered in determining the admission of such evidence. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695; People v. Singletary (1979), 73 Ill. App. 3d 239, 391 N.E.2d 440.) The evidence of crime is inadmissible if its probative value is outweighed by the prejudice. (Montgomery; Singletary.) However, in People v. Thibudeaux (1981), 98 Ill. App. 3d 1105, 1114, 424 N.E.2d 1178, 1187-88, the court stated:

“[I]t is normally assumed that the trial court gives appropriate consideration to relevant factors without being required to articulate these in open court {People v. Washington (1973), 55 Ill. 2d 521, 304 N.E.2d 276), and a trial court is not required to specify and evaluate such factors when ruling on a motion to exclude use of prior convictions for impeachment (People v. Fought (1980), 85 Ill. App. 3d 732, 407 N.E.2d 231; People v. Bassett (1980), 84 Ill. App. 3d 133, 404 N.E.2d 1125; People v. Comes (1980), 80 Ill. App. 3d 166, 399 N.E.2d 1346).”

In the case at bar, it is clear from the record that the trial court was advised of the prejudice which might have resulted if the prior conviction had been introduced. Thus, we will assume the trial court considered this factor and exercised its discretion properly. Defendant’s decision not to testify is not a proper basis for excluding such evidence. (Thibudeaux.) We therefore conclude the trial court did not err or abuse its discretion in denying defendant’s motion in limine.

Second, defendant contends the trial court erred in giving, at the State’s request and over defendant’s objection, the following instruction:

“An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting knowingly.”

Defendant argues this instruction should not have been given because he did not raise intoxication as a defense, but only introduced the evidence to explain that he entered the school to seek shelter from inclement weather and to use the washroom.

In People v. Loden (1975), 27 Ill. App. 3d 761, 327 N.E.2d 58, a similar issue was decided. In Loden, the State tendered and the trial court gave an instruction identical to that tendered and given here. In holding that the instruction was properly given even though voluntary intoxication was not raised as an affirmative defense, the court held that the State was entitled to an instruction that protected against adverse inferences which might have been drawn from the evidence of intoxication presented by defendant. Similarly, in the case at bar, defense witnesses repeatedly testified to defendant’s excessive alcohol consumption on the evening in question. Thus, the State was entitled to an instruction limiting the inferences to be drawn from that evidence. We find no error in giving the requested instruction.

Third, defendant contends the voluntary intoxication instruction quoted above was incomplete and inaccurate and therefore prejudicial. He specifically argues the instruction should have included a phrase regarding defendant’s ability to act intentionally. Additionally, defendant contends the failure to give Illinois Pattern Jury Instructions, Criminal, No. 25.02 (1968) resulted in reversible error. This instruction provides that the State must prove beyond a reasonable doubt that at the time of the offense, defendant was capable of acting knowingly and intentionally. Defendant contends this instruction must be given whenever the voluntary intoxication instruction is given. However, defendant failed to raise these issues in his post-trial motion and is precluded from raising these issues on review. People v. Simon (1981), 101 Ill. App. 3d 89, 427 N.E.2d 843; People v. Goodman (1981), 98 Ill. App. 3d 743, 424 N.E.2d 663.

Fourth, defendant contends Officer Hujar’s police report was improperly used as substantive evidence. During redirect examination of Hujar, the State asked whether Hujar had completed a police report on the incident. When Hujar responded he had, the State asked him whether the report had indicated where defendant had been apprehended. Over defendant’s objection, Hujar responded that defendant was apprehended in a corridor. Defendant maintains the report was used to divulge substantive evidence, to bolster Hujar’s testimony on direct examination, and to contradict Tabor’s testimony that defendant was found in a washroom.

The general rule is that police reports may be used for impeachment, admitted as a past recollection recorded or used to refresh a witness’ recollection, but are inadmissible as substantive evidence. (People v. Banasik (1981), 93 Ill. App. 3d 612, 417 N.E.2d 790; People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056; People v. Morris (1978), 65 Ill. App. 3d 155, 382 N.E.2d 383.) Here, the report was not used for any excepted purpose. Although defense counsel elicited a contradiction between the testimony of the police as to where in the school defendant was found, defense counsel did not use the police report. Therefore, it was improper for the State to use the report. (Banasik.) However, in view of the evidence of guilt, it appears that use of the police report did not contribute to the jury’s verdict and was therefore harmless. People v. Walls (1980), 87 Ill. App. 3d 256, 269, citing People v. Rose (1979), 77 Ill. App. 3d 330, 395 N.E.2d 1081, and People v. Castillo (1976), 40 Ill. App. 3d 413, 352 N.E.2d 340.

Finally, defendant contends that comments made by the State during closing arguments deprived him of a fair trial. Defendant objects to the comments that the reasonable doubt standard was not a shield behind which defendant could hide, that every criminal convicted was convicted under this standard, and that proving guilt under this standard was not as impossible as defendant made it appear to be.

Case law holds that comments similar to those complained of in this case are improper because they have the effect of lessening the State’s burden of proof. (People v. Belton (1982), 105 Ill. App. 3d 10, 433 N.E.2d 1119; People v. Ayala (1981), 96 Ill. App. 3d 880, 422 N.E.2d 127; People v. Martinez (1979), 76 Ill. App. 3d 280, 395 N.E.2d 86.) Nonetheless, the evidence proved defendant guilty beyond a reasonable doubt and the comments were harmless. Belton; Ayala.

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

Judgment affirmed.

CAMPBELL, P.J., and O’CONNOR, J., concur.


author: JUSTICE MEJDA

text:
    GRAY PANTHERS et al., Plaintiffs-Appellants, v. THE DEPARTMENT OF INSURANCE et al., Defendants-Appellees.
    First District (5th Division)
    No. 81—1366
    Opinion filed November 29, 1982.
    Phillip H. Snelling, Debora A. Taylor, and Dodge Wells, all of Legal Assistance Foundation, and Ellis B. Levin, both of Chicago, for appellants.
    Kirkland & Ellis and Brian R. Van Vlierbergen, both of Chicago, for appellee Health Care Service Corporation.
    Tyrone C. Fahner, Attorney General, of Springfield (Russell C. Grimes, Jr., Assistant Attorney General, of counsel), for appellees Department of Insurance of the State of Illinois, Philip R. O'Connor, and Dan K. Webb.
   JUSTICE MEJDA

delivered the opinion of the court:

This action was brought upon a complaint for administrative review of the order of defendant Director of the Department of Insurance of the State of Illinois (Director) which granted a rate increase to defendant Health Care Service Corporation (HCSC). The circuit court affirmed the decision of the Director and entered judgment for defendants from which this appeal is taken. We remand for further hearings.

Plaintiffs raise three issues on appeal: (1) whether the Director erred in determining that the cost containment standards of section 5 of the Non-Profit Health Care Service Plan Act (the Act) (Ill. Rev. Stat. 1981, eh. 32, par. 555) should not be applied to the October 7, 1980, rate filing of HCSC; (2) whether plaintiffs’ rights of due process of law were violated by the refusal of the hearing officer and the Director to consider evidence on the cost containment issue; and (3) whether the hearing officer and Director erred in taking official notice after the close of the record and without notice to the parties.

On October 7, 1980, defendant HCSC initiated this proceeding by filing with the Director a letter notifying him that HCSC intended to increase the premium for its Medicare Part A supplemental insurance coverage. The notice of hearing on HCSC’s proposed rate increase identified two issues for determination: (1) whether the proposed changes constituted a change in “rates,” and (2) whether the proposed changes are subject to the cost containment standards of section 5 of the Act. At the hearing, however, only the former question was considered and the hearing officer excluded any evidence concerning the latter issue.

On January 6, 1981, the Director issued an order finding that although the charges to subscribers described in HCSC’s October 7, 1980, filing constitute a “rate” increase within the meaning of section 5 of the Act, such rate increase was not subject to the cost containment standards made pursuant to section 5 due to the remoteness of the effect of the standards upon HCSC’s rates. The Director allowed $2.28 of the $2.48 requested increase.

Plaintiffs appealed to the circuit court contending that the Director’s conclusion that the section 5 cost containment standards did not apply to HCSC’s rate application was erroneous. Plaintiffs also contended that due process was denied by the hearing officer’s refusing to permit evidence on the cost containment issue and by his taking official notice of certain facts after the hearing, which facts were then used as the sole factual basis of his determination.

On May 4, 1981, the circuit court affirmed the Director’s order. Plaintiffs appeal.

Opinion

The first issue raised by plaintiffs is whether the Director erred in determining that the charges described in HCSC’s October 7, 1980, filing are not subject to the cost containment standards of section 5.

Section 5 of the Act states in pertinent part:

“Rates to be charged to subscribers or subscriber groups shall be deemed unreasonable if the Director of Insurance finds that the health care service corporation has failed to make a vigorous, good-faith effort to contain rates of reimbursement to hospitals and other participating health care providers as well as to promote cost-effective alternative forms of health care.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 32, par. 555.

An interpretation placed upon a statute by an administrative official cannot alter the plain language of the statute. (Burlington Northern, Inc. v. Department of Revenue (1975), 32 Ill. App. 3d 166, 174, 336 N.E.2d 170, 178.) In the instant case, although the Director found that HCSC’s October 7, 1980, filing constituted a “rate to be charged,” which finding is not disputed, he granted the rate increase without making a determination regarding HCSC’s cost containment efforts. This action was contrary to the plain language of the statute, which provides that rates to be charged shall be deemed unreasonable “if the Director shall find” that efforts at cost containment have not been made. The phrase “if the Director shall find” requires the Director to make a determination. The statute by its terms does not grant the Director discretion to allow a rate increase without making this determination, and we find that the Director erred in doing so.

An administrative' official must follow the expressed statutory mandate and may not put into the statute a limitation which the legislature did not prescribe. (Morrill v. Jones (1883), 106 U.S. 466, 27 L. Ed. 267, 1 S. Ct. 423.) In the case at bar the Director predicated his decision to disregard the cost-containment standards of section 5 upon the remoteness of HCSC’s cost-containment activities in relation to the action of the Federal government in increasing the amount of the deductible. We hold that the Director erred in limiting the requirement of cost-containment determinations to only those situations where the requested rate increase could have been affected by cost-containment activities. The legislature did not distinguish between rate increases which are caused by failure to comply with cost-containment standards and increases caused by other factors, but stated unequivocally that rate increases shall be deemed unreasonable if the corporation has failed to make appropriate efforts to contain costs. Because the statute does not require that rates charged to subscribers be affected by cost-containment activities, we find that the Director erred in predicating his decision.on the existence of such a requirement and granting the rate increases without assessing HCSC’s cost-containment efforts.

Because of our disposition of this issue, we find it unnecessary to reach the other issues raised by plaintiffs.

Accordingly, the orders of the circuit court and of the Director are reversed and the cause is remanded for further administrative proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

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

      This coverage, also referred to as Blue Cross 65 insurance, provides benefits to those subscribers eligible for Medicare in the amount of the deductible and co-payment amounts not covered by Medicare. Medicare pays for the first 60 days of hospitalization except for the base deductible (deductible) but the Medicare subscriber’s liability increases significantly after the 60th day. The patient is responsible for 25% of the deductible each day between the 61st and 90th day of hospitalization and for 50% of the deductible each day between the 91st and 150th day of hospitalization. The deductible is equal to the national average per diem hospital cost and is controlled at the Federal level in conformance with Federal statute. Although the deductible increased from $124 in 1977 to $204 in 1981, HCSC has not been granted a rate increase since 1977.


author: PRESIDING JUSTICE CAMPBELL

text:
    CARLA ODELL, Plaintiff-Appellant, v. THE VILLAGE OF HOFFMAN ESTATES, Defendant-Appellee.
    First District (1st Division)
    No. 81—2740
    Opinion filed November 29, 1982.

      William J. Haddad, of Alito, Haddad & Reyna, of Chicago, for appellant.
    Richard N. Williams, of Hoffman Estates, for appellee Village of Hoffman Estates.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Carla Odell, appeals from a decision of the circuit court of Cook County affirming the finding of the village manager of defendant, village , of Hoffman Estates, that cause existed for discharge of plaintiff from her position as civilian radio dispatcher.

On appeal, plaintiff raises the following issues: (1) whether the hearing before the village manager failed to meet the minimum requirements of due process; (2) whether there was “cause” for dismissal of plaintiff; (3) whether the information which plaintiff allegedly revealed was learned in the course of employment and was confidential; and (4) whether the decision of the village manager was against the manifest weight of the evidence.

Plaintiff was charged by the chief of police of Hoffman Estates with revealing confidential information learned in the performance of her duties as civilian radio dispatcher for the Hoffman Estates Police and Fire Departments in violation of the village policy manual and the radio operators procedures manual. An administrative hearing was held before the village manager at which plaintiff was represented by counsel. The village manager found that plaintiff had committed a breach of confidentiality which adversely affected members of the public and plaintiff was discharged for cause. Plaintiff filed a common law writ of certiorari in the circuit court seeking review of the village’s decision. The circuit court affirmed.

The record discloses that the confidential information concerned an incident in which two juveniles, sons of Mrs. J.M., were arrested on suspicion of shoplifting on January 29, 1981. One boy, age 13, reportedly quipped to police, “Do I get to kiss my mother before they throw me in the slammer?” During a shift change at the station, the radio operations supervisor related this comment to other civilian personnel, including plaintiff.

Barbara Pierce, a bartender at a restaurant and lounge called the Neighborhood Inn, testified that at about 11 o’clock that night plaintiff came into the lounge after work and spoke with Pierce at the bar. Pierce testified that when she mentioned that Mrs. J.M. was late for her job as cook at the Neighborhood Inn, plaintiff told her about the arrest of Mrs. J.M.’s sons and the boy’s humorous comment. Pierce testified that later that evening several police officers joined plaintiff but that Pierce did not learn of the boys’ arrest by overhearing the conversation of the police who were in the bar that night.

Mrs. J.M. testified that when she arrived for work the next day Pierce asked about her sons. Further conversation revealed that Pierce knew about the boys’ arrest. When asked how she learned of this information, Pierce replied that plaintiff had told her. Mrs. J.M. testified that she was “very upset” to find out that others knew about her sons’ arrest. She reported the incident to' the radio operations supervisor.

Approximately five weeks later the chief of police ordered an investigation and confronted plaintiff with Mrs. J.M.’s accusation. At the hearing, plaintiff testified that on January 29, 1981, she entered the Neighborhood Inn with several police officers and that they sat together at the bar. Plaintiff testified that they discussed police work generally including the comment made by the juvenile. Plaintiff testified that she was aware of the confidentiality requirement and that she never mentioned the incident to any civilian and especially not to Pierce, whom plaintiff does not consider to be a friend. Plaintiff further testified that she has a college degree in criminology, that her chosen career is in criminal justice and that she had been an employee of Hoffman Estates for 13 months.

A Hoffman Estates police officer testified that on the evening in question, he, plaintiff and a group of five or six police personnel entered the Neighborhood Inn together after work. The officer testified that they stood by the bar and that several people in the group discussed the juvenile incident. Also, two co-workers of plaintiff’s testified to her good character for honesty, integrity and hard work.

Plaintiff seeks review of the decision of the village manager under the common law writ of certiorari. Historically, an interested party who has been aggrieved by a ruling of an administrative body has a right to have the proceeding reviewed by the common law writ of certiorari. (People ex rel. Elmore v. Allman (1943), 382 Ill. 156, 46 N.E.2d 974.) “[T]he substantial differences that at one time existed between common law and statutory certiorari have been all but obliterated.” (Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 541, 367 N.E.2d 1286, 1293; see Penrod v. Department of Corrections (1979), 72 Ill. App. 3d 649, 391 N.E.2d 59.) Under the writ, the trial consists only of a review of the administrative records. The reviewing court must ascertain whether the agency had jurisdiction and acted within its jurisdiction, whether it proceeded according to law and acted on the evidence, and whether there is anything in the record which fairly tends to sustain the action of the agency. Quinlan & Tyson, Inc. v. City of Evanston (1975), 25 Ill. App. 3d 879, 884, 324 N.E.2d 65, 70.

Plaintiff first contends that the hearing before the village manager did not protect plaintiff’s due process rights under the fourteenth amendment (U.S. Const., amend. XIV). Defendant, however, contends that plaintiff did not have a property interest in the job of civilian radio operator which requires due process of law before she may be dismissed under Board of Regents v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701. In view of our decision that the hearing afforded plaintiff the minimum requirements of due process, we need not consider whether plaintiff had a property interest in her job.

Plaintiff argues that the failure to require an oath or affirmation of the witnesses denied plaintiff due process of law. Plaintiff contends that sworn testimony is inherent to the due process right to confrontation since such testimony is given under pain of perjury. Plaintiff has not shown that the administration of an oath at the administrative hearing below was required by law. “A voluntary oath neither required nor authorized, that is, not provided for by law, cannot constitute perjury.” (People v. Watson (1980), 85 Ill. App. 3d 649, 652, 406 N.E.2d 1148, 1151; Ill. Rev. Stat. 1981, ch. 38, par. 32 — 2(a).) Furthermore, plaintiff has not called to our attention any Illinois authority suggesting that the absence of testimony under oath, as in this case, invalidates the hearing and voids the administrative decision. We note that neither party objected to the failure to administer oaths during the hearing and, hence, we find that this issue has been waived.

Plaintiff also argues that her right to due process was violated because the appearance of witness Barbara Pierce was coerced by a subpoena which was not within the authority of the village manager to issue. A document which proported to be a subpoena was issued by the village manager “pursuant to authority vested by the statutes of the State of Illinois,” ordering Barbara Pierce to appear at the hearing on May 29, 1981. She did not appear and the hearing was continued until June 6. On June 1 the village attorney applied for enforcement of the subpoena in the Federal District Court and that court ordered that a Federal subpoena shall not issue. The village then issued a duplicate subpoena to Pierce and she attended the June 6 hearing.

Plaintiff argues that section 32 — 7 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 32 — 7) makes it a crime to issue any document which proports to be any civil or criminal process. To establish the invalidity of the subpoena, plaintiff relies upon the refusal of the Federal Court to issue a Federal subpoena to enforce the village’s subpoena. Plaintiff is arguing, in effect, that because the issuance of the subpoena is allegedly defective, the entire testimony of Pierce is without force and should be struck from the record. We disagree. We observe from the record that the witness did appear and testified and was subjected to extensive cross-examination. Plaintiff has'not cited any authority to support her position that the proceedings should be in any way voided because of the purported defective subpoena. Nor has plaintiff argued or demonstrated that any prejudice resulted therefrom.

The trial court found that the minimum requirements of due process were met at the village hearing. Plaintiff was notified of the charges against her. She was represented by an attorney. She had the opportunity to be heard, to present evidence and to confront the witnesses against her. The hearing was held before a fair and impartial tribunal whose rulings were based on the evidence presented. Under the facts of this case, plaintiff was given the minimum requirements of due process of law. Gigger v. Board of Fire & Police Commissioners (1959), 23 Ill. App. 2d 433, 163 N.E.2d 541; Lakeland Construction Co. v. Department of Revenue (1978), 62 Ill. App. 3d 1036, 379 N.E.2d 859.

Plaintiff next contends that the trial court erred in sustaining the administrative finding that there was cause for discharge. Plaintiff relies upon Sutton v. Civil Service Com. (1981), 94 Ill. App. 3d 134, 418 N.E.2d 791, and Fox v. Civil Service Com. (1978), 66 Ill. App. 3d 381, 383 N.E.2d 1201, in which the appellate court reversed an administrative agency’s finding that there was cause for discharge. In both cases, the court found that the employee’s misconduct was not of such severity as to warrant the sanction of discharge.

Recently, the supreme court has reversed the Sutton decision (Sutton v. Civil Service Com. (1982), 91 Ill. 2d 404, 438 N.E.2d 147). In Sutton, the court set forth the proper inquiry to be made by a reviewing court in determining whether there was sufficient cause for discharge. The court stated:

“The question, though, is not whether this court would decide upon a more lenient sanction than discharge were it to determine initially what discipline would be appropriate. Nor is it whether this court would conclude in view of the mitigating circumstances suggested by Sutton that a different penalty would be more appropriate. The question is whether, in view of the circumstances presented, this court can say that the Civil Service Commission, in opting for discharge, acted unreasonably or arbitrarily or selected a type of discipline unrelated to the needs of the service.” 91 Ill. 2d 404, 411, 438 N.E.2d 147, 150-51.

Although Sutton gave the standard of review appropriate for an action filed pursuant to the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 264 et seq.), this standard may be applied to review of an administrative decision under the common law certiorari. In Penrod v. Department of Corrections (1979), 72 Ill. App. 3d 649, 391 N.E.2d 59, this court recognized that “there is no longer a viable difference between these two types of proceedings.” (72 Ill. App. 3d 649, 651, 391 N.E.2d 59, 61.) Furthermore, the standard of review adopted in Sutton is consistent with that traditionally recognized under common law certiorari in which a reviewing court would not substitute its judgment for that of the agency unless the agency’s decision was arbitrary or unsupported by the evidence. Quinlan & Tyson, Inc. v. City of Evanston (1975), 25 Ill. App. 3d 879, 324 N.E.2d 65.

A substantial shortcoming which renders an employee’s continuance in office “in some way detrimental to the discipline and efficiency of the service” and which “the law and a sound public opinion recognize as a good cause for his not longer occupying the place,” constitutes cause for discharge. (Sutton v. Civil Service Com. (1982), 91 Ill. 2d 404, 410, 438 N.E.2d 147, 150; Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360, 189 N.E.2d 275, 277.) Plaintiff argues that her alleged indiscretion was not serious, espeeially since the information was freely disseminated among police and civilian personnel in the department and the information “never went further” than to two persons outside the department. Plaintiff contends that such an incident is not sufficient to end an otherwise unblemished career of a hardworking and honest employee.

The trial court affirmed the administrative finding of dismissal, stating that “confidentiality of juvenile matters is a serious concern.” The village manager could well conclude that retention of an employee in the sensitive position of radio operator who had breached the confidentiality of a juvenile arrest could undermine the good will the police department hopes to maintain in the community. Furthermore, plaintiff is privy to much confidential information, and she testified that she was aware of the requirement of confidentiality. The village manager found that plaintiff’s violation of this requirement in the area of juvenile matters was a serious infraction warranting discharge and was good cause for her no longer occupying the position of radio operator. It cannot be said that in so determining the village acted unreasonably or arbitrarily or selected a type of discipline unrelated to the needs of the service. Sutton.

Plaintiff next contends that the information she allegedly revealed was neither confidential nor learned in the course of her duties. Plaintiff asks us to find that since the information about the arrest and the boy’s quip was freely discussed amongst police personnel in the bar, it was no longer secret and, that since plaintiff learned the story from her supervisor during a shift change, it was not learned in the performance of her duties. We find both these arguments to be without merit. The village manager found that Pierce learned the information directly from plaintiff and not from overhearing the conversation of the police officers. Moreover, the fact that the police officers discussed the incident among themselves does not diminish the confidential nature of the information. Information learned in the course of duties certainly includes information given to plaintiff while she was at the police station during her shift change.

Lastly, plaintiff contends that Pierce’s testimony is unworthy of belief and is against the manifest weight of the evidence. Courts of review, however, may not “reweigh the evidence, but are limited to a determination whether the final decision of the administrative agency is just and reasonable in light of the evidence presented.” (Davern v. Civil Service Com. (1970), 47 Ill. 2d 469, 471, 269 N.E.2d 713, 714; Penrod.) The village manager determined that the testimony of Pierce was more credible than the testimony of plaintiff. Pierce’s reluctance to testify does not suggest that her testimony was not credible espedally since Pierce stated that she did not want to “hurt anybody” and that she realized that plaintiff had not revealed the information maliciously. We find that the decision of the village manager is amply supported by the record.

Accordingly, for the reasons stated herein, the decision of the circuit court of Cook County is affirmed.

Judgment affirmed.

GOLDBERG AND O’CONNOR, JJ., concur.

      The name of Mrs. J.M. is in the record but not used in this opinion because of the juveniles involved.


author: JUSTICE DOWNING PRESIDING JUSTICE STAMOS

text:
    LADDY A. CIBOROWSKI, Plaintiff-Appellee, v. PHILIP DRESSLER & ASSOCIATES et al., Defendants.—(Gold Seal Builders, Inc., Defendant-Appellant and Third-Party Plaintiff-Appellee, v. James Mansfield & Sons, Inc., Third-Party Defendant-Appellant.)
    First District (2nd Division)
    No. 81—1098
    Opinion filed November 30, 1982.
    Rehearing denied January 11, 1983.

      STAMOS, P.J., concurring in part and dissenting in part.
    Ruff, Weidenaar & Reidy, Ltd., of Chicago, for appellant Gold Seal Builders, Inc.
    Crooks & Gilligan, Ltd., of Chicago, for appellant James Mansfield & Sons, Inc.
    William J. Harte, Ltd. and Wiedner & McAuliffe, both of Chicago, for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

Laddy Ciborowski brought this action against Philip Dressier & Associates (Dressier) and Gold Seal Builders, Inc. (Gold Seal), under the Structural Work Act for personal injuries he received while working on a roof under construction. Dressier was the owner-contractor of the project and Gold Seal was the general contractor. Dressier and Gold Seal filed separate third-party actions against James Mansfield & Sons, Inc. (Mansfield), who was plaintiff’s employer, based on implied indemnity. Dressier also filed a counterclaim against Gold Seal for indemnity.

Jury verdicts were returned in favor of plaintiff against Gold Seal in the amount of $600,000, and in favor of third-party plaintiff Gold Seal against third-party defendant Mansfield for indemnity. Dressier was found not liable to plaintiff. In addition, the jury answered in the affirmative a special interrogatory asking whether Gold Seal was guilty of major fault. Judgment was entered on the general verdict. Gold Seal appeals, contending the trial court erred in denying its motion for judgment notwithstanding the verdict, denying its motion for a new trial, and denying its motion for a remittitur. Mansfield appeals, contending that the general verdict against it should be set aside because of the jury’s answer to the special interrogatory.

The facts surrounding plaintiff’s injuries are not critical to this appeal and will be recited only briefly. On August 7, 1974, plaintiff was working on the roof of a tennis club under construction in Glen Ellyn, Illinois. The roof, which is about 20 feet off the ground at the edges, has a rise of four inches for every 12 inches of roofing. Part of this roofing consisted of corrugated steel sheets which were placed on the structural members. At about 7:15 a.m. on August 7, plaintiff slid from near the peak of the building and fell to the ground. He asserted that oil on the sheets caused him to slip. Plaintiff, who was 29 years old at the time, sustained extensive injuries from the fall, including two fractured vertebrae and sciatic nerve damage. He underwent surgery on his hip and back for the placement of metal supports and further surgery to remove the supports and to fuse spinal members. There was conflicting testimony as to whether plaintiff would ever be able to return to work.

The posture of the parties is critical, particularly with respect to Mansfield’s appeal. Dressier entered into a number of contracts to build a tennis facility. This facility was to consist of an exterior steel building with an interior “core” building. Gold Seal was retained as the general contractor for the exterior building. Gold Seal then subcontracted the roofing for the exterior building to Mansfield. Plaintiff was an employee of Mansfield. Gold Seal’s representative at the construction site was Edward Jaster, who was superintendent of the project. His duties were to see that the workmen were present and had adequate materials. He did not instruct the workmen on how they should perform their work. Dressler’s foreman admitted that he had the duty to see that the work of all the subcontractors was done properly.' Jaster was at the site three or four days per week spending lVz to 2xlz hours on each visit. He was not at the construction site on the morning of the accident but was there the previous day. He testified that on the day prior to the accident he observed the presence of “chicken ladders” (ladders hung from the roof), “toe boards” (boards nailed vertically at the eave line), and “life lines” (ropes dangling from the roof) on the building. These safety measures were denied by plaintiff and four other witnesses.

Mansfield’s foreman at the site was Robert Dimock. Any complaints regarding the condition of the roof were to be directed to Di-mock or the other Mansfield supervisor. There was testimony that Mansfield’s employees informed Dimock that the roof was slippery. Jaster testified that these complaints were not communicated to him or anyone else at Gold Seal. While Dimock testified that it was only after plaintiff’s accident that he (Dimock) learned of the oil on the roofing sheets, other witnesses testified they had informed Dimock earlier. During cross-examination, Dimock admitted discussing the problem of oil on the roofing panels with Jaster prior to plaintiff’s accident. Dimock had safety equipment installed on the roof after the accident. Gold Seal’s contract with Mansfield specifically provided that Mansfield assumed sole responsibility for the safety of its employees and would take all necessary measures to prevent injuries to its employees.

Gold Seal’s first contention on appeal is that its motion for judgment n.o.v. should have been granted by the trial court. It asserts that plaintiff failed to present sufficient evidence that Gold Seal knew or should have known that safety devices were necessary on the roof being constructed. In particular, Gold Seal argues that there was no evidence that Jaster or anyone else connected with Gold Seal was aware of the oil on the roofing sheets or had an opportunity to learn of the slippery condition on the roof. Its position is that Mansfield was completely responsible for the condition of the roof and had exclusive control over the roofing work.

Judgments n.o.v. are proper only in those cases where all the evidence, viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) The issue before us is therefore whether the trial court properly applied the Pedrick standard when it denied Gold Seal’s motion for judgment n.o.v. A review of the record reveals that the trial court acted within its discretion when it denied the motion. There was ample evidence that Gold Seal knew, or in the exercise of ordinary care should have known, that the condition of the roof necessitated safety devices and that it failed to provide such devices.

Gold Seal was the general contractor for the outer shell of the structure. Its superintendent, Edward Jaster, had the responsibility of inspecting the work of subcontractors such as Mansfield and had the authority to stop the work with three days notice for unsafe practices by those subcontractors. Jaster inspected the subject building three or four times a week for IV2 to 2V2 hours each time. He also inspected the roofing materials that were delivered to the site and climbed onto the roof a number of times to inspect the sheeting and insulation being installed. Although Jaster and Dimock testified that ladders and supports were in place prior to the accident, plaintiff and four other witnesses denied the existence of these or any other safety devices. Additionally, Dimock admitted during cross-examination that he informed Jaster of the oily condition of the roofing sheets prior to the accident. There was also expert testimony from a consulting engineer that the general rule is that if safety precautions are not provided by the employer they are the responsibility of the general contractor. In view of this evidence, we find that the trial court properly applied the Pedrick standard when it denied Gold Seal’s motion for judgment n.o.v.

Gold Seal’s next contention is that its motion for a new trial should have been granted by the trial court. The standard of review of a trial court’s denial of a motion for a new trial is whether the jury’s verdict was against the manifest weight of the evidence. (See Spankroy v. Alesky (1977), 45 Ill. App. 3d 432, 439, 359 N.E.2d 1078.) Our analysis concerning the trial court’s denial of Gold Seal’s motion for judgment n.o.v. is applicable here. In light of the evidence that Gold Seal knew or should have known of the need for safety equipment on the roof, we do not believe the jury’s findings in this regard were against the manifest weight of the evidence.

It is also claimed by Gold Seal that the trial court should not have permitted plaintiff’s attorney to comment on Gold Seal’s failure to call as a witness a doctor it engaged to examine plaintiff. Plaintiff’s attorney asked the jury to infer that the doctor was not called by Gold Seal because his testimony would have been adverse to its position. Gold Seal’s motion in limine to bar such comments was denied. It claims that the witness was not under its control and, therefore, these comments and the submission to the jury of Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971) (hereinafter cited as IPI Civil) — requiring an adverse inference for failing to call a witness in certain instances — were improper. (See Wetherell v. Matson (1977), 52 Ill. App. 3d 314, 318-19, 367 N.E.2d 472.) In Biel v. Wolff (1970), 126 Ill. App. 2d 209, 223-24, 261 N.E.2d 474, appeal denied (1970), 44 Ill. 2d 583, this court quoted an earlier Illinois opinion quoting McCormick, Evidence sec. 249, at 533-34 (1954), as follows:

“ ‘When it would be natural under the circumstances for a party to call a particular witness *** his adversary may use this failure as the basis for invoking an adverse inference ***.
Most of the controversy arises in respect to the failure to call a witness. It is generally agreed that when a potential witness is available, and appears to have special information relevant to the case, so that his testimony would not merely be cumulative, and where his relationship with one of the parties is such that the witness would ordinarily be expected to favor him, then if such party does not produce his testimony, the inference arises that it would have been unfavorable.
It is often said that if the witness is “equally accessible” to both parties, no inference springs from the failure of either to call him. This can hardly be accurate, as the inference is frequently allowed when the witness could easily be called or subpenaed by either party. What is probably meant is that when so far as appears the witness would be as likely to be favorable to one party as the other, there will be no inference. But even here, it seems that equality of favor is nearly always debatable, and that though the judge thinks the witness would be as likely to favor one party as the other, he should permit either party to argue the inference against the adversary.’ ”

We believe this logic to be fully applicable to the instant case. Despite the fact that plaintiff could have subpoenaed the witness, that witness was hired by Gold Seal with the intention of having him testify on Gold Seal’s behalf. Under the circumstances before us, we find that for purposes of testifying the witness was under Gold Seal’s control. That plaintiff’s attorney commented on the failure to call this witness was not reversible error. Nor was it reversible error for the trial court to submit IPI Civil No. 5.01 to the jury. See Leming v. Oltman (1967), 87 Ill. App. 2d 97, 104-06, 231 N.E.2d 621, appeal denied (1968), 37 Ill. 2d 627.

Gold Seal next contends that the trial court erred when it refused to instruct the jury that its award to plaintiff would not be taxable. The recent case of Christou v. Arlington Park-Washington Park Race Trades Corp. (1982), 104 Ill. App. 3d 257, 432 N.E.2d 920, is dispositive. There the court acknowledged that the law in Illinois is that the income tax jury instruction is not required. (104 Ill. App. 3d 257, 262.) We see no reason to deviate from this position.

Gold Seal’s final contention is that the damages awarded by the jury were excessive and unsupported by the evidence and that the trial court erred in denying Gold Seal’s motion for a remittitur. It specifically argues that the trial court should not have given jury instructions which, among other things, required the jury to compute and award plaintiff the present value of earnings reasonably certain to be lost in the future. (See IPI Civil Nos. 30.01, 34.04.) Gold Seal claims that there was no evidence as to what amount of earnings, if any, would be reasonably certain to be lost in the future and that the jury’s award was based solely on the statements of plaintiff’s attorney during closing argument.

We note at the outset that the instructions given did not require the jury to make any award. The instructions merely informed the jury that if plaintiff prevailed on the liability, he could be compensated for certain elements of damage if the jury determined that those elements were proved by the evidence. The jurors were also informed that they were to decide if the various elements of damage, such as loss of future earnings, were proved. We also note that counsel for Gold Seal presented no evidence on the issue of damages.

A review of the record reveals nothing to indicate that the jury award was based on passion or prejudice. In addition to the cash value of earnings reasonably certain to be lost in the future, evidence was presented on five other elements of damage: the nature, extent and duration of the injury; disability and disfigurement; pain and suffering; past wage loss; and medical expenses. The issue before us is whether the verdict falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience. (Barango v. E.L. Hedstrom Coal Co. (1957), 12 Ill. App. 2d 118, 138, 138 N.E.2d 829, appeal denied (1957), 10 Ill. 2d 631.) Considering the evidence presented at trial showing the severity of plaintiff’s injuries, and the deference properly accorded to the discretion of the jury and to the trial judge in denying the remittitur (see Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 453, 158 N.E.2d 63, cert. denied (1959), 361 U.S. 127, 4 L. Ed. 2d 180, 80 S. Ct. 256), we are convinced that the amount of the verdict is within the limits of fair and reasonable compensation. The trial court did not err in denying Gold Seal’s motion for a remittitur. The portion of the judgment finding in favor of plaintiff against Gold Seal in the amount of $600,000 is affirmed.

Mansfield’s basic contention on appeal is that judgment should not have been entered on the general verdict against it because the jury-determined, as expressed in the special interrogatory, that Gold Seal was guilty of major fault. Gold Seal argues that the jury found it guilty of major fault only in relation to Dressler’s fault, not in relation to Mansfield’s fault.

If the fault of the indemnitee is primary, active, or major, then he is not entitled to indemnity regardless of the fault of the indemnitor. (See Carver v. Grossman (1973), 55 Ill. 2d 507, 514, 305 N.E.2d 161; Doerge v. Wabash R.R. Co. (1972), 4 Ill. App. 3d 914, 917-18, 282 N.E.2d 226, appeal denied (1972), 52 Ill. 2d 594.) The jury in the instant case was given three separate instructions defining major fault. Dressier offered one as to Dressler’s counterclaim against Gold Seal. Dressier also offered one related to its third-party claim against Mansfield. Gold Seal offered one as to its third-party claim for indemnity against Mansfield. All three instructions followed IPI Civil No. 500.22. The instruction offered by Gold Seal as to its claim against Mansfield read:

“When I say that Gold Seal Builder’s, Inc. claims that James Mansfield & Sons, Inc.’s conduct was the ‘major fault,’ I mean they claim James Mansfield & Sons, Inc.’s conduct was the primary and significant cause of Laddy A. Ciborowski’s injury when compared with that of Gold Seal Builders, Inc. When I say that Gold Seal Builders, Inc. claims that they were ‘free from major fault,’ I mean they claim that their fault was insignificant when compared with that of James Mansfield & Sons, Inc. because it was secondary, technical or minor.” (Emphasis added.)

The two special interrogatories tendered to the jury read:

“Was the Defendant-Third Party Plaintiff Phil Dressier & Associates, guilty of major fault which was a proximate cause of the Plaintiff’s injuries and damages?”
“Was the Defendant-Third Party Plaintiff Gold Seal Builders, Inc., guilty of major fault which was a proximate cause of the Plaintiff’s injuries and damages?”

At the instruction conference, Gold Seal’s attorney said:

“Judge on the Gold Seal 10, it is on the way over. It is a special interrogatory of major versus minor fault which will be in the same form as (Mansfield’s). If I may I will hand this to the court when it comes in.
The Court: (Referring to Gold Seal’s Instructions No. 1 — 10) Those instructions will be given.”

However, our search of the record indicates Gold Seal did not submit its form of a special interrogatory.

The jury answered negatively as to the Dressier major fault interrogatory and affirmatively as to Gold Seal. It is Mansfield’s contention that because the jury answered the second interrogatory in the affirmative, the general verdict in favor of Gold Seal and against Mansfield cannot stand.

Section 65 of the Illinois Civil Practice Act provides that “[w]hen the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly.” (Ill. Rev. Stat. 1979, ch. 110, par. 65.) The key inquiry, therefore, is whether the special finding of fact, i.e., the answer to the special interrogatory, is inconsistent with the general verdict. If it is, and the special finding is not against the manifest weight of the evidence, judgment should be entered on the special finding rather than on the general verdict. (See Borries v. Z. Frank, Inc. (1967), 37 Ill. 2d 263, 265-66, 226 N.E.2d 16; Houston v. Leyden Motor Coach Co. (1968), 102 Ill. App. 2d 348, 351-53, 243 N.E.2d 293.) The basis for this rule is that a jury is thought to more clearly understand a particularized special interrogatory than a composite of all the questions in a case. 37 Ill. 2d 263, 266.

We note, however, that in determining whether the special findings are inconsistent with the general verdict so that the latter must be controlled by the former, the evidence itself should not be considered. (Wicks v. Cuneo-Henneberry Co. (1925), 319 Ill. 344, 350, 150 N.E. 276.) “All reasonable presumptions will be entertained in favor of the general verdict, while nothing will be presumed in aid of the special findings of fact.” 319 Ill. 344, 350.

This court explained section 65 of the Civil Practice Act in Cohen v. Sager (1971), 2 Ill. App. 3d 1018, 278 N.E.2d 453, where we stated:

“Judicial interpretation of this section has established that statutory inconsistency exists only when the special findings are clearly and absolutely irreconcilable with the general verdict. (Wicks v. Cuneo-Henneberry Co. (1925), 319 Ill. 344, 150 N.E. 276; Devine v. Federal Life Insurance Co. (1911), 250 Ill. 203, 95 N.E. 174.) Where an examination of the jury findings reveals that a reasonable hypothesis consistent with the general verdict exists, the special findings cannot be said to be absolutely irreconcilable. (Devine v. Federal Life Insurance Co., supra; Smith v. McCarthy (1889), 33 Ill. App. 176.) Therefore, if the special findings do not cover all the issues submitted to the jury and are not solely determinative of the case, a reasonable hypothesis consistent with the general verdict exists. In such a case, the general verdict is responsive to those issues not reached by the special findings. And because these issues remain as possible controlling factors in the jury’s decision, the statute does not apply.” 2 Ill. App. 3d 1018, 1019; see also Bittner v. Wheel Horse Products, Inc. (1975), 28 Ill. App. 3d 44, 49-50, 328 N.E.2d 160.

In essence, the issue before us is whether the special finding (as expressed in the special interrogatory) is clearly and absolutely irreconcilable with the general verdict. In other words, does a reasonable hypothesis exist which is consistent with the general verdict in favor of Gold Seal and against Mansfield.

A review of the record convinces us that such a reasonable hypothesis does not exist. As to the plaintiff’s basic case, the jury found Gold Seal liable and Dressier not guilty. As to the third-party action, both Gold Seal and Dressier sued Mansfield on the theory of “major-minor” fault. The jury found Dressier not guilty of major fault and found Gold Seal guilty of major fault which was the proximate cause of the plaintiff’s injuries and damages.

Gold Seal now complains that the special interrogatory might have created confusion in the minds of the jury. If there was confusion, Gold Seal bears the responsibility for taking no action to correct it before the jury commenced its deliberations. Gold Seal tendered an instruction on the third-party claim against Mansfield but failed to present to the court a suggested version of the special interrogatory. Gold Seal should have set forth with specificity the nature of its objection to the special interrogatory and tendered a proper instruction. (Cf. Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 387, 385 N.E.2d 664.) From our review of the instructions, we cannot say that the jury was misled. In fact, as to Gold Seal’s third-party action against Mansfield, the jury was instructed that Gold Seal had the burden of proving that it was free from major fault.

The answer to a special interrogatory may not be set aside by the trial court unless it is contrary to the manifest weight of the evidence. (Duffek v. Vanderhei (1980), 81 Ill. App. 3d 1078, 1085, 401 N.E.2d 1145.) From our review of the record, we are satisfied that the answer to the special interrogatory is supported by the evidence. We, therefore, believe the trial court was in error in setting aside the special interrogatory. Based upon the response to the special interrogatory, the trial court should have rendered judgment on Gold Seal’s third-party claim in favor of Mansfield (pursuant to section 65). Accordingly, as to the third-party claim, the judgment in favor of Gold Seal against Mansfield is reversed and the cause is remanded with direction to enter judgment in favor of Mansfield against Gold Seal.

For the reason stated herein, plaintiff’s judgment against Gold Seal is affirmed, and Gold Seal’s judgment against Mansfield is reversed and remanded.

PERLIN, J., concurs.

PRESIDING JUSTICE STAMOS

concurring in part and dissenting in part:

I dissent only from that portion of the majority’s opinion which reverses Gold Seal’s verdict against Mansfield. I believe that a reasonable hypothesis that would reconcile the answer to the special interrogatory with the general verdict exists, and that the general verdict should be allowed to stand.

As noted by the majority, the fault of a party seeking indemnity is measured in comparison to the fault of other parties. The special interrogatory finding Gold Seal guilty of major fault does not specifically state with which party Gold Seal’s fault was being compared. The jury might have been comparing Gold Seal’s fault with that of Mansfield. It is also quite possible that the jury was measuring Gold Seal’s fault in comparison with Dressier’s fault. A number of factors convince me that it is a reasonable hypothesis that the jury was comparing the relative fault of Gold Seal and Dressier when they answered the special interrogatory finding Gold Seal guilty of major fault. The jury was specifically instructed that in order to return a general verdict for Gold Seal against Mansfield, they had to find that Gold Seal was free from major fault when compared with the fault of Mansfield. Additionally, the jury had found in favor of Dressier and against Gold Seal in the cross-complaint action. This finding is totally consistent with a finding that Gold Seal was guilty of major fault only in relation to Dressier.

In this case, the jury was faced with a trial involving four distinct causes of action, three of which required the jury to compare the fault of various parties. The jury was instructed to compare the fault of Gold Seal with the fault of both Dressier and Mansfield. The majority’s holding rests on the assumption that the jury understood the special interrogatory to refer to the third-party action between Gold Seal and Mansfield only, rather than to any other facet of the case. The fact that the special interrogatory refers to Gold Seal as “third-party plaintiff” supports the view that the interrogatory refers to Gold Seal’s third-party action by its very terms. However, I think that it is plausible to assume that the jury paid little attention to the technical term “third-party plaintiff” in the interrogatory. The technical designations of the parties were used sparingly in the presence of the jurors. The jury was instructed extensively on the posture of the parties in the litigation without the use of the terms “third-party plaintiff,” “third-party defendant,” “cross-plaintiff,” or “cross-defendant.” It is also significant that the jury was presented with an identically worded interrogatory requesting a finding of whether Dressier was guilty of major fault. It is reasonable to think that the jury, because of the symmetry of the interrogatories, assumed that it was being asked to compare the fault of Dressier and Gold Seal relative to the claim between those parties despite the use of the term “third-party plaintiff” in both interrogatories. In its general verdict, the jury absolved Dressier of all fault, found that Gold Seal was liable to the plaintiff, but found that Gold Seal was entitled to indemnity from Mansfield. The verdict and the answers to the special interrogatories are consistent with the view that the jury constructed a hierarchy of fault, with Gold Seal being more at fault than Dressier but qualitatively less at fault than Mansfield. Therefore, the jury could well have found that Gold Seal was guilty of major fault as compared with the innocent Dressier, but was still entitled to reimbursement from Mansfield. In view of the rule that “[a]ll reasonable presumptions will be entertained in favor of the general verdict, while nothing will be presumed in aid of special findings of fact” (Wicks v. Cuneo-Henneberry Co. (1925), 319 Ill. 344, 350, 150 N.E. 276), I find that the use of the technical term “third-party plaintiff” in the special interrogatory does not make it unreasonable to think that the jury was comparing the fault of Gold Seal with that of Dressier, and that therefore the affirmative answer to the special interrogatory can be reconciled with the general verdict.

The majority cites Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 385 N.E.2d 664, in support of its view that Gold Seal cannot rely on any ambiguity in the special interrogatory on appeal because it did not object to or attempt to clarify the special interrogatory at trial. In Saldana, the trial court presented the jury with a special interrogatory on its own motion. Our supreme court held that the question of the sufficiency of the interrogatory was not preserved for review because the party raising the issue on appeal had neither made a specific objection to the content of the interrogatory nor tendered an alternative interrogatory. (74 Ill. 2d 379, 387.) In the instant case, the proponent of the interrogatory contends that the trial court erred in finding that the interrogatory was too ambiguous to be allowed to control the general verdict. Although Gold Seal is, perhaps, the beneficiary of that ambiguity, I would hold that it is incumbent upon the party who wishes to have the answer to a special interrogatory control the general verdict to draft the interrogatory with enough specificity to achieve the desired result. Therefore, I believe that Gold Seal’s failure to clarify the interrogatory that was offered by its adversary does not preclude Gold Seal from arguing on appeal that the trial court’s finding that the interrogatory was ambiguous was correct.

For the reasons stated above, I do not believe that the special interrogatory finding Gold Seal guilty of major fault is clearly and absolutely irreconcilable with the general verdict requiring Mansfield to indemnify Gold Seal. Therefore, I would affirm.

      Effective July 1, 1982, section 2 — 1108 of the new Code of Civil Procedure superseded section 65 without change of substance.