author: PRESIDING JUSTICE WILSON

text:
    PAMELA WRIGHT, a Minor, by Thelma Wright, Her Mother and Next Friend, Plaintiff-Appellant, v. YELLOW CAB COMPANY et al., Defendants-Appellees.
    First District (5th Division)
    No. 81—1760
    Opinion filed June 30, 1983.

      William J. Lamed, of Chicago, for appellant.
    Jesmer and Harris, of Chicago (Charles E. Tannen and Bernard H. Ostrowsky, of counsel), for appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Plaintiff sued defendants for injuries she received when struck by a taxicab owned by defendant Yellow Cab Company and driven by defendant Harvey. After extensive testimony, the jury returned a verdict of $25,000 in favor of plaintiff. Subsequently the trial court granted defendant’s motion for judgment notwithstanding the verdict and also entered a conditional order for a new trial in the event the judgment notwithstanding the verdict was reversed on appeal.

On appeal, plaintiff contends that: (1) the trial court usurped the jury’s function when it entered a judgment notwithstanding the verdict; and (2) the trial court erred in entering a conditional order for a new trial where no grounds for such an order existed. For reasons that follow, we reverse the circuit court.

The pertinent facts reveal that on July 30, 1973, approximately 6 p.m., plaintiff, age seven, was struck by a cab owned by Yellow Cab Company and driven by Tristano Harvey in the 2500 block of West Harrison Street in Chicago. Harrison Street is a four-lane, east-west street with the two center lanes used for traffic and the two outer lanes for parking. As a result of the accident, plaintiff suffered multiple fractures, an abrasion and contusion to the forehead and an injury to the lip.

Pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 60), plaintiff called defendant Tristano Harvey as her first witness. Harvey stated that on July 30, 1973, as he approached the 2500 block of West Harrison, he noticed children playing on the grass and on the porches. Harvey indicated that there were no speed limit signs posted on Harrison. However, he knew that when no speed limit signs are posted, the maximum speed limit is 30 miles per hour.

When questioned by defense counsel, Harvey stated that he was traveling about 25 miles per hour as he approached the 2500 block of Harrison, heading west. He saw cars parked on the north side of the street. As he approached the parked cars, a little girl darted out from between two of them in front of his cab, and ran across the street. Harvey reacted by patting his brakes, thereby reducing his speed to 15 miles per hour. When the cab was even with the first parked car, Harvey then saw plaintiff standing in front of the second parked car. When she darted out into the street, defendant pulled to the left and slammed on the brakes. As he pulled to the left, he heard a thump on the side of his cab. He hit the brakes harder and the cab went into a counterclockwise skid. When the cab finally stopped, it was headed in an easterly direction.

On recross by plaintiff’s counsel, Harvey somewhat altered his description of where the parked cars were in relationship to the children. Harvey indicated that he was at “the tail end of the first parked car” when the first child darted out between the second and third parked cars, and plaintiff was standing two cars away from the first child. At the time of the collision, Harvey stated that he was traveling approximately 15 miles per hour.

Next, Thelma Wright, plaintiff’s mother, testified that she was at home with her husband at 2533 West Harrison, Chicago, when Frank Williams, a neighbor, came to their window and told them that their daughter had just been hit by a car. When Mrs. Wright arrived at the scene of the accident, plaintiff was lying on her side on the north side of the street with her arm folded back and her leg twisted at the ankle. When queried as to plaintiff’s safety training, Mrs. Wright stated that she had instructed plaintiff to look in both directions before crossing streets and that plaintiff appeared to follow her instructions.

On cross-examination, Mrs. Wright testified that she started giving safety instructions to plaintiff before she started kindergarten, including instructions not to cross the street if an oncoming car was too close. However, she never defined “too close.” Mrs. Wright further admitted that she took plaintiff to see Dr. Sheinkop the weekend before trial for the sole purpose of helping him prepare his testimony.

Next, Salita McDowell, passenger in defendant’s cab at the time of the accident, testified on behalf of plaintiff. McDowell stated that in the early evening of July 30, 1973, she entered defendant’s cab in front of a medical clinic that she had just visited. When she entered the cab, defendant told her that he did not have time to take her anywhere. However, when she told him that she did not feel well, he agreed to take her home. Because she was not feeling well, McDowell laid down on the back seat of the cab. Suddenly, as the cab was heading west on Harrison, it started sliding around, causing McDowell to fall to the floor and hit her head. Prior to this sudden movement, she had not heard any thumps on the side of the cab or the cab’s horn. Further, although she did not actually look at the speedometer, McDowell testified that, in her opinion, the cab was traveling between 40 and 45 miles per hour right before the accident. McDowell further stated that when the cab stopped spinning, defendant turned around in his seat and asked McDowell if she was all right. He then told her to stay in the cab, and he got out. McDowell also left the cab for a few minutes and started to walk around. She noticed several people looking at something further down the street. While she was walking, someone approached her and asked her if she was all right and advised her to sit in the cab.

On cross-examination, McDowell stated that she never saw the cab strike anything, but she felt it. Moreover, at one point during the cab ride, McDowell had complained to defendant Harvey that he was driving too fast, but he never slowed down. When she got out of the cab after the accident, she saw a little girl lying in the street next to some parked cars. McDowell admitted that on the day after the accident, she signed a statement which stated that other than driving a little fast, defendant Harvey was driving “safe and okay.”

Next, Frank Williams, eyewitness to the accident, testified on behalf of plaintiff. On July 30, 1973, Williams was sitting on a log on the south side of Harrison Street, facing the street. From this vantage point, he saw the entire accident in which plaintiff was injured. According to Williams, defendant Harvey was driving west on Harrison at approximately 35 to 45 miles per hour. When plaintiff was struck by the cab, she was standing in the parking lane approximately eight to 10 feet in front of a parked car. There were no parked cars to the west of plaintiff. Williams stated that he never heard a horn, screech of tires or any other type of warning. After the cab struck plaintiff, it continued westward until it hit a viaduct, spun around and faced east. Williams further testified that plaintiff was “laying to the left, up from the left fender of the parked car.” Her arm was folded up her back and her leg was bent underneath her. After the accident, Williams knocked on the Wrights’ window and told Mrs. Wright that plaintiff had been hit by a car.

On cross-examination, Williams stated that the cab was in the traffic lane, going west, until it reached the spot where plaintiff was standing. It then veered right toward the parking lane and struck plaintiff. THe cab did not hit the parked car, nor did it go up on the curb. Further, after striking plaintiff, the cab swerved to the left and continued west until it hit the viaduct about a block west of where plaintiff was hit. At this point in his cross-examination, defense counsel asked Williams to look at an unsigned statement allegedly given by him several years earlier to an insurance investigator. When asked if it was a true and correct statement, Williams answered, “No, Sir,” although he admitted to making certain parts of the statement. Williams further testified that the front end and side of the cab were damaged when it scraped the curb, and he thought one of the tires blew out and a hubcap fell off.

On redirect, Williams stated that the man who took the statement from him in the presence of Williams’ wife and a small child, offered to pay him if he signed the statement. Williams refused.

Thereafter, outside the presence of the jury, defense counsel argued that Dr. Sheinkop was not plaintiff’s treating physician and, thus, should not be permitted to testify as to any diagnosis. In response, plaintiff’s counsel stated that the records indicate that Dr. Sheinkop was the attending physician and that all treatments of plaintiff at the hospital were performed by interns or residents directly under Dr. Sheinkop’s control and supervision. Defendants’ motion was denied.

Dr. Mitchell B. Sheinkop, orthopedic surgeon, then took the stand on behalf of plaintiff. Dr. Sheinkop testified that as assistant professor of orthopedics at Rush-Presbyterian Medical Center, he oversees the work of certain interns and residents, verifies their filed reports, and discusses cases with them. In plaintiff’s case, Dr. Richard Sidell, orthopedic resident in training, and Dr. Ellen Divine, senior orthopedic resident on the service, saw plaintiff in the emergency room on July 30, 1973. Their findings were discussed with Dr. Sheinkop and a treatment plan was approved. Further, all written reports filed by the residents were personally reviewed by Dr. Sheinkop.

On cross-examination, Dr. Sheinkop admitted that he did not personally examine plaintiff before treatment. However, he did supervise and approve the treatment given by the attending residents. Moreover, Dr. Sheinkop stated that, on occasion, he personally treated plaintiff. When queried as to why his treatment was not recorded on the hospital chart, Dr. Sheinkop replied that he rarely makes entries on any chart because that is “a responsibility for which house staff is compensated.” Regarding his examination of plaintiff on March 14, 1981, Dr. Sheinkop testified that the purpose of the exam was to evaluate her disability in preparation for trial, and not for any particular treatment.

On redirect, Dr. Sheinkop reviewed the surgical discharge summary which contained a notation that plaintiff suffered from pain when admitted. In addition, he read portions from the pediatric physical and examination report and the neurosurgical consultation report, which verified plaintiff’s condition upon admittance. In response to the court’s query as to whether Dr. Sheinkop himself made any entries on those documents, the doctor stated that he had not, but that his signature appears on the face sheet of the record, which means that he assumes all burdens and responsibilities for the care of the patient.

Next, Pamela Wright, plaintiff, testified that although she did not remember anything about the accident itself, or about the period shortly before or after the accident, she did remember being in the hospital, having a cast on her left leg and on her right arm, and experiencing a great deal of pain.

After plaintiff rested her case, defendants’ motion for a directed verdict on contributory negligence was granted as to Mrs. Wright and reserved as to the minor plaintiff.

Next, Harry Krope, a Chicago police officer assigned to accident investigation and motor enforcement, testified on behalf of defendants that on July 30, 1973, he investigated an automobile/pedestrian occurrence at 2542 West Harrison, Chicago. When he arrived at the scene, he noticed two or three parked cars on the north side of HafHson. Plaintiff was lying near the center of the street, “out to thb tibrth side of the street,” in the westbound traffic lane. She had not been moved. Defendant Harvey refused to give a statement at the scene. Krope further stated that he spoke with plaintiff at the hospital, in the presence of nurses and a doctor, and she told him that she had run across the street into the side of a cab.

On cross-examination, Krope testified that he interviewed plaintiff while she was in the emergency room and nurses were putting her leg in a cast. He did not talk to her doctor or ask anyone for permission to see her. Further, there was nothing in his police report indicating that plaintiff had made those statements. Moreover, there were no names in the report of witnesses Krope allegedly interviewed at the scene.

Next, Anthony Winrow testified on behalf of the defendants that on April 8, 1977, he took a statement from Frank Williams regarding the accident which had occurred on July 30, 1973. In an effort to impeach Williams’ testimony, Winrow read the following portion of Williams’ statement into evidence:

“*** I witnessed Pamela Wright attempting to cross Harrison from north to south. And she walked into the right front side of the Yellow Cab, that was westbound on Harrison. *** Pamela ran from between the parked vehicles that was [sic] parked at the north curb, facing west. The cab driver tried to avoid Pamela by cutting to the left. After the child ran into the side of the cab, the driver lost control and ran over to the south curb. The cab was traveling at about 20 miles per hour.
And the streets were dry.”

On cross-examination, Winrow stated that unless he refreshed his recollection by looking at his report, he could not remember anything more about the actual taking of the statement. He could not remember where the statement was taken, and “vaguely” remembered that Williams’ wife had been present, or at least someone else had been present. Winrow did recall, however, that Williams had asked Winrow to pay him for his signature on the statement. When Winrow refused, Williams would not sign. At the time Winrow took the statement, he was employed by Calumet Insurance Company and was paid a weekly salary.

Next, defendant Harvey took the stand and testified that: (1) he never turned the cab to the right at any time after he saw the first child; (2) the cab never veered from the traffic lane into the parking lane; (3) the cab never came within two feet of the north curb; and (4) the speed of the cab never exceeded 25 miles per hour between Denver and Rockwell Streets (cross streets south and north, respectively, of the accident scene).

On cross-examination, defendant stated that, as far as he could remember, his left rear tire blew out after the accident. Furthermore, the first child darted out into the street from in front of the second parked car. After the impact with plaintiff, the car went out of control, the tire blew out, and the cab went into a skid. However, it did not strike the viaduct. Defendant further testified that, prior to the accident, he had had no conversation with McDowell other than regarding her destination. However, he did admit that she said something to him, but he could not hear her through the cab’s glass shield. The defense then rested its case.

On rebuttal, Mrs. Wright testified that she was with her daughter at all times when she was in the emergency room at the hospital and never saw Officer Krope. On cross-examination, Mrs. Wright admitted that she saw defendant Harvey at the hospital, but she did not have a conversation with him.

After defendants rested, the trial court reserved its ruling on their motion for a directed verdict. Thereafter, the court instructed the jury, stating, inter alia, that Thelma Wright had been found guilty of contributory negligence as a matter of law. Thus, medical and hospital bills were not to be considered in the determination of damages. Closing arguments ensued. During his closing argument, plaintiff’s counsel summarized the scene of the accident as follows:

“There has been an impact with Pamela Wright by the cab. Mr. Harvey is in his cab. He said, he’s worried about the crowd out there. The police officer arrives. The police officer talked to him. He doesn’t explain about the case or the accident to the police officer. He doesn’t even give his version: ‘Officer, the girl ran out in front of the street. I was going 15 miles an hour. I was doing real well.’ He said, ‘I’ll give my report to the insurance company or my associates or something.’ ”

At this point, defense counsel objected and moved for a mistrial on the ground that there was no such evidence presented. The court overruled the objection, stating that the name of the insurance company had been brought out earlier. Shortly thereafter, the court interrupted plaintiff’s closing argument and stated:

“I was at error before when I said that the Defendant gave the name of the insurance company. The Defendant did not give the name of his insurance company. The Defendant said that he would make his statement to his supervisor. I was wrong when I ruled that. I want to correct that. All right.”

As plaintiff’s closing argument continued, defendant objected to the following comments: (1) adults have a duty to protect children; (2) the ambulance ride was “terrifying”; and (3) the accident had a psychological effect on plaintiff. The trial court sustained the objections and, except for the objection to “terrifying,” advised the jury to disregard the remarks.

During plaintiff’s rebuttal argument, defense counsel objected to: (1) plaintiff’s suggestion that defendants had the burden of proof regarding their arguments about plaintiff’s scar; and (2) plaintiff’s remark to the jury that it is difficult to think back to when we were seven years old. The court sustained the objections and advised the jury to disregard the remarks.

Thereafter, the jury returned with its verdict in favor of plaintiff and assessed plaintiff’s damages in the sum of $25,000. Subsequently, defendants’ post-trial motion for judgment notwithstanding the verdict was granted and the court entered a conditional order for a new trial in the event the judgment notwithstanding the verdict was reversed. Plaintiff’s timely appeal followed.

Opinion

Plaintiff first argues that the trial court erred in granting defendants’ motion for judgment notwithstanding the verdict. In particular, plaintiff contends that the court improperly usurped the jury’s function to decide the factual issue of plaintiff’s contributory negligence. Further, plaintiffs argue that defendants’ post-trial motion insufficiently set forth the grounds for entry of a judgment notwithstanding the verdict.

The standard for determining contributory negligence as a matter of law on a motion for judgment notwithstanding the verdict is whether all the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Hayes v. Alsburg (1978), 72 Ill. 2d 560, 566, 382 N.E.2d 239.) Therefore, where the evidence demonstrates a substantial factual dispute, or where the assessment of the credibility of witnesses or determination regarding conflicting evidence may be decisive of the outcome, it is error to direct a verdict or enter judgment notwithstanding the verdict. (Reynolds v. American Oil Co. (1975), 32 Ill. App. 3d 905, 909, 337 N.E.2d 403.) In addition, the jury’s resolution of disputed facts may not be set aside by the trial court simply because it believes a different result is more reasonable. (Nacvich v. Downing (1977), 50 Ill. App. 3d 935, 940, 365 N.E.2d 1343.) Under our system of jurisprudence, jury determinations can be set aside only when a court of review, or a trial court upon proper motion, is clearly satisfied that they were occasioned by passion or prejudice or found to be wholly unwarranted from the manifest weight of the evidence. Riley v. Johnson (1981), 98 Ill. App. 3d 688, 691, 424 N.E.2d 842.

After a careful review of the record in this case, we find a reasonable basis exists in the facts for the jury’s conclusion, and find no indication that the jury’s decision was occasioned by passion or prejudice. The following facts support our findings. Testimony by Frank Williams, sole eyewitness to the accident, indicated that plaintiff was struck by defendants’ cab while she was standing in the parking lane of Harrison Street. Although there was no testimony that plaintiff looked both ways, Williams testified that plaintiff was standing motionless in the parking lane while defendant proceeded westward down the street. Defendants argue that Williams’ testimony was incredible because the westbound cab could not possibly have swung into the parking lane, hit plaintiff, and then swung out again without hitting another parked car or curb on the north side of the street. Contrary to defendants’ contention, there is testimony that the cab scraped the north curb and also that the cab’s right front fender was damaged. Furthermore, both Williams and defendant Harvey testified that there were two or three cars parked along the north curb of Harrison and that plaintiff was standing in front of the last parked car. According to Williams, plaintiff was standing in front of the last parked car. According to Williams, plaintiff was standing approximately eight to 10 feet in front of the last parked car and approximately two feet away from the curb. Williams also testified that there were no additional parked cars to the west of where plaintiff was standing. Confronted with these facts, we cannot conclude that the evidence, when viewed in the aspect most favorable to plaintiff, so overwhelmingly favors defendant that the verdict for plaintiff could not stand.

Furthermore, it is well-established in Illinois that a child between the ages of seven and 14 is presumed to be incapable of contributory negligence. (Hardy v. Smith (1978), 61 Ill. App. 3d 441, 443, 378 N.E.2d 604.) However, this presumption can be rebutted by offering proof that the particular child, based on age, mental capacity, intelligence and experience, was accountable for his actions. (Riley v. Johnson (1981), 98 Ill. App. 3d 688, 692, 424 N.E.2d 842.) Once such proof is presented, the question of contributory negligence becomes a question of fact which must be left to the jury to determine. Pellegrini v. Chicago, Rock Island & Pacific R.R. Co. (1980), 91 Ill. App. 3d 1091, 1093, 415 N.E.2d 615.

Upon reviewing the record, it is our opinion that defendants did not effectively rebut the presumption. Accordingly, because the jury could properly have reached its verdict based upon the evidence presented, we hold that the trial court abused its discretion in granting a judgment notwithstanding the verdict in favor of defendants.

We next consider plaintiff’s contention that the trial court erred in granting defendants a new trial in the event the judgment notwithstanding the verdict was reversed. Initially, plaintiff argues that defendants waived their right to seek or obtain a new trial when they failed to move for a mistrial after their objections were sustained. In support of her position, plaintiff relies on Bauer v. Timucci (1975), 33 Ill. App. 3d 1051, 339 N.E.2d 434. After reviewing Bauer, we find it to be inapplicable to the pending case on the ground that the prejudicial conduct alleged in Batter was not brought to the attention of the trial court by either an objection or a motion for mistrial. By contrast, in the pending case, objections were immediately entered on all points raised by defendants in their motion for a new trial. Illinois law has long recognized that a simple objection is enough to preserve the issue of misconduct for consideration of a post-trial motion. (Appel v. Chicago City Ry. Co. (1913), 259 Ill. 561, 102 N.E. 1021.) Therefore, we conclude that because defense counsel entered timely objections to plaintiffs remarks at trial and specifically set forth the errors in his post-trial motion (Harrison v. Chicago Transit Authority (1977), 48 Ill. App. 3d 564, 566, 363 N.E.2d 81), the issue of whether defendants were denied a fair trial was properly preserved.

We next address plaintiffs contention that if defendants’ allegations of misconduct were properly preserved, none were sufficient, separately or cumulatively, to properly warrant a new trial. Specifically, the post-trial motion stated the following grounds for a new trial: (1) plaintiff’s attorney misquoted defendant Harvey, thereby injecting the topic of insurance into a portion of the trial where no such topic had been mentioned by defendant; (2) the court erred in not granting defendants’ motion for a mistrial when plaintiff’s attorney asked for a stipulation as to the introduction of certain photographs in the presence of the jury; (3) the trial court erred in admitting Dr. Sheinkop’s testimony; (4) plaintiff’s attorney misquoted the evidence during closing argument; (5) plaintiff’s attorney misstated the law; (6) plaintiff’s attorney attempted to inflame the jury by describing plaintiff’s ride in the ambulance as “terrifying”; (7) plaintiff’s attorney misrepresented the burden of proof; (8) plaintiff’s attorney asked the jurors to put themselves in plaintiff’s position; and (9) the damages awarded by the jury were grossly excessive, unreasonable, and unwarranted by the evidence to the degree that they cannot be cured by remittitur.

Regarding the issue of insurance, defendants alleged that plaintiff’s counsel interjected the issue of insurance on cross-examination in a deliberate effort to prejudice the defendants and to bring before the jury the irrelevant fact of insurance. A review of the record reveals this allegation to be patently untrue. Defendants themselves introduced the issue of insurance into the case when they put Anthony Winrow, claims adjuster for Calumet Insurance Company, on the stand in an effort to impeach the testimony of Frank Williams with a statement allegedly taken by Winrow during the course of his employment several years after the accident. On cross-examination of Winrow, plaintiff asked for the name of Winrow’s employer at the time the statement was taken. Defense counsel’s objection was overruled and Winrow answered, “Calumet Insurance.” We find no error in eliciting this testimony on the ground that the identity of the person taking a statement, the nature of his employment and the name of his employer are material for the purpose of showing his interest, if any, in the litigation. (Yelm v. Masters (1967), 81 Ill. App. 2d 186, 195-96, 225 N.E.2d 152.) In fact, during the hearing on defendants’ post-trial motion, defense counsel admitted that he had introduced Winrow as a witness at his own peril. Further, we do not find that plaintiff’s attorney’s misstatement of defendant Harvey’s testimony, wherein he said that Harvey gave his accident report to the insurance company, was ground for reversible error. While there is no question that the remark was improper, we recognize that the almost universal prevalence of automobile liability insurance, especially with regard to taxicab companies, has resulted in an increasing judicial tolerance toward references to insurance. (Kitsch v. Goode (1977), 48 Ill. App. 3d 260, 266, 362 N.E.2d 446.) Moreover, a reference to insurance during trial is not per se reversible. Rather, prejudice must be shown. (Joynt v. Barnes (1979), 71 Ill. App. 3d 187, 198, 388 N.E.2d 1298.) In this regard, the Illinois supreme court in Sheley v. Guy (1976), 63 Ill. 2d 544, 348 N.E.2d 835, held that where a finding of liability has a complete basis in the evidence and the damage award is reasonable, the courts will conclude that the jury was not prejudiced by the remark. (63 Ill. 2d 544, 546.) Accordingly, because the evidence in our case supports the jury's verdict and there is no contention on appeal that the damages were unreasonable, we find no indication that the jury was prejudiced by the insurance remark. Thus, it is not grounds for reversible error.

Regarding plaintiff’s request that defense counsel stipulate to certain photographs of the damaged cab in front of the jury, defendants argue that this conduct on the part of the prosecution forced an objection by defense counsel and thereby raised an inference that defendant was attempting to hide probative evidence of guilt. We do not agree. While an offer to stipulate to the admission of evidence in the presence of the jury is improper (People v. Hovanec (1976), 40 Ill. App. 3d 15, 351 N.E.2d 402), such conduct does not constitute reversible error without a showing of prejudice. People v. Burdine (1978), 57 Ill. App. 3d 677, 685, 373 N.E.2d 694.

In the pending case, during cross-examination, defendant Harvey was shown a photograph of the cab taken after the accident. After he identified it as being a photograph of his cab, his counsel was asked if he would stipulate to the introduction of the photo into evidence. An objection was made, and at the side-bar conference, defense counsel’s motion for a mistrial was denied. The court then discussed with both counsel whether a statement should be made to the jury regarding the fact that plaintiff’s counsel should not have made the request to stipulate in the presence of the jury. Defense counsel agreed that it might help. Subsequently, the trial court made a lengthy statement to the jury, informing them that the request was improper and that no unfair implication should arise because of defense counsel’s refusal to stipulate.

While we do not condone the action of plaintiff’s counsel, we note that the exchange was an isolated incident, the photographs were not inadmissible evidence if properly presented, and the jury was properly admonished as to the impropriety of counsel’s remarks. These facts plus the ample evidence supporting the jury’s verdict lead us to conclude that the request to stipulate was not so prejudicial as to warrant reversal. In reaching this conclusion, we further note that People v. Hovanec (1976), 40 Ill. App. 3d 15, 351 N.E.2d 402, relied upon by defendants, is factually distinguishable from the pending case. In Hovanec, the court noted that “the more reprehensible conduct was the persistent asking of the question after an objection to it had been sustained.” (40 Ill. App. 3d 15, 18.) As stated, the request to stipulate in our case was an isolated occurrence, more than adequately remedied by the trial court.

Regarding defendants’ contention that it was error for Dr. Sheinkop to testify from hospital records not prepared by him, we find People v. Ward (1974), 19 Ill. App. 3d 833, 313 N.E.2d 314, aff’d (1975), 61 Ill. 2d 559, 338 N.E.2d 171, dispositive of the matter. In Ward, a psychiatrist expert testified that it was his opinion that the accused was sane at the time of the crime. While the doctor admitted that he based his conclusion as to the defendant’s sanity in part on the examination and report of another psychiatrist, he also asserted that he directly supervised the other psychiatrist and that the official opinion was rendered at his direction. On appeal, defendant claimed that he was denied his constitutional right to cross-examine a witness when the report of an examining psychiatrist who was not called to testify was admitted. In affirming the trial court’s judgment, the appellate court stated:

“In our opinion, the defendant was not denied his constitutional right of confrontation. We believe that the report signed by Dr. Reifman was a staff report reflecting the official opinion of the Psychiatric Institute. Dr. Kelleher, as chief of staff of the Psychiatric Institute, appropriately testified regarding the official opinion rendered by his subordinates and at his direction. Since the report was made under the direction and supervision of Dr. Kelleher, he was fully capable of testifying to the matters in the report and was available for cross-examination on the report.” 19 Ill. App. 3d 833, 838.

Similarly, in the case at bar, the residents who examined plaintiff in the hospital were directly under Dr. Sheinkop’s supervision. In this regard, Dr. Sheinkop testified that in teaching hospitals like the one at which plaintiff was treated, it is customary practice for residents to institute emergency room care of the patient, then contact the attending orthopedic surgeon to discuss problems, their interpretations and findings, and to determine the treatment plan to be followed. Dr. Sheinkop further stated that this customary practice was followed plaintiff’s situation and that he was the attending orthopedic surgeon. Therefore, we conclude that because Dr. Sheinkop had direct supervisory control over the attending residents, reviewed their filed reports and proposed treatment plans and was also fully capable of being cross-examined as to the matters contained in the reports, the trial court did not err in admitting Dr. Sheinkop’s testimony.

We next address defendants’ contention that they were denied a fair trial when plaintiff’s attorney asked the jury to place themselves in the position of a seven-year-old. In support of their position, defendants rely on Copeland v. Johnson (1965), 63 Ill. App. 2d 361, 211 N.E.2d 387. After reviewing Copeland, we find that it rebuts, rather than supports, defendants’ position. In Copeland, defense counsel directly asked the jurors to put themselves in the position of defendant. No objection was made by plaintiff. On appeal, although the court recognized defense counsel’s statement as being improper, it noted, “We feel this error could have been cured by the court upon proper objection.” 63 Ill. App. 2d 361, 367.

We concur with the Copeland court’s analysis. In the case at bar, defendants’ objection to the reference was sustained and the jury was advised to disregard the remark. Thus, we conclude that the error was cured and presented no ground for a new trial.

Finally, defendants claimed that plaintiff’s misstatement of the law, misstatement of the evidence and inflammatory characterization of the ambulance ride denied them a fair trial.

Initially, we note that it is improper for an attorney to misstate the law before the jury (Northern Trust Co. v. Skokie Valley Community Hospital (1980), 81 Ill. App. 3d 1110, 1126, 401 N.E.2d 1246), and to argue outside the limits of admitted or uncontroverted facts. (Hopwood v. Thomas Hoist Co. (1966), 71 Ill. App. 2d 434, 444, 219 N.E.2d 76.) However, when a remark is objected to, the objection is sustained, and the jury is instructed to disregard the remark, there is no reason to believe that the jury was prejudiced. (Zindrick v. Drake (1979), 75 Ill. App. 3d 702, 706, 393 N.E.2d 1277.) In the case at bar, each of the aforementioned statements was objected to at trial and the objections were sustained. Moreover, the jury was instructed to consider only the testimony of the witnesses in making their determination of facts, and that neither opening statements nor closing arguments could be considered as evidence. In view of the evidence presented at trial, we cannot conclude that plaintiffs closing argument and rebuttal influenced the result or that the verdict would have been otherwise had the remarks not been made.

In our judgment, the trial court should have denied defendants’ post-trial motion in its entirety. Accordingly, for the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause remanded with instructions to reinstate the verdict for $25,000 in favor of plaintiff.

Reversed and remanded with instructions.

SULLIVAN and MEJDA, JJ., concur.

      This conclusion obviates the need to discuss the sufficiency of that portion of defendants’ post-trial motion which requested entry of a judgment notwithstanding the verdict.

      We further note that defendants’ reliance on Cecil v. Gibson (1976), 37 Ill. App. 3d 710, 346 N.E.2d 448, for the proposition that “the mention of insurance during trial is per se reversible error” is rendered unpersuasive by the Sheley court’s holding.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL BAILEY et al., Defendants-Appellees—(The Department of Corrections, Intervenor-Appellant).
    First District (2nd Division)
    No. 82—2586
    Opinion filed June 28, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Leslie J. Rosen, Assistant Attorney General, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Peter M. Delongis, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Frank P. Madea, Assistant Public Defender, of counsel), for appellees Michael Bailey and Alerich Banks.
   JUSTICE HARTMAN

delivered the opinion of the court:

This appeal by the Department of Corrections (Department) involves only the propriety of sentences imposed upon two juvenile, criminal defendants, Michael Bailey, 14, and Alerich Banks, 16, who, in two separate and unrelated cases, were tried as adults (Ill. Rev. Stat. 1981, ch. 37, par. 702—7) and found guilty of robbery. Each was given four years’ probation conditioned on their serving the first six months in the custody of the Juvenile Division of the Department. Neither defendant appealed his conviction or sentence.

After sentencing, the Department sought leave to file a limited appearance for the sole purpose of vacating the commitment orders, contending that the sentences were contrary to section 5—6—3(d) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—3(d)). The circuit court denied the Department’s motions, holding that section 5—6—3(d) did not apply to juvenile defendants. This appeal followed. The substantive issue presented for review is whether juvenile defendants may be placed on probation conditioned on first serving a term of six months or less in the Juvenile Division of the Department. We affirm.

I

A. Defendants move to dismiss the appeal, arguing that the circuit court lacked jurisdiction to hear the department-intervenor’s motion for leave to file a limited appearance. They contend that although intervention is permitted in civil matters under section 2 — 408 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 408), it is barred in criminal controversies. Their contention was not presented to the circuit court, however. The failure of a litigant to object to the decision of the court permitting intervention precludes the raising of the issue for the first time on appeal. (People v. Rockford Silver Plate Co. (1944), 388 Ill. 534, 537, 58 N.E.2d 599; In re Leyden Fire Protection District (1972), 4 Ill. App. 3d 273, 275, 280 N.E.2d 744.) Accordingly, that issue here has been waived. Rasmussen v. Village of Bensenville (1965), 56 Ill. App. 2d 119, 128, 205 N.E.2d 631.

B. Citing People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760, defendants and the State (appellees) contend that this controversy is moot, observing that both defendants have already been released from custody of the Department. In Smith, defendant was placed on five years’ probation conditioned upon his serving the first nine months in the House of Corrections. The supreme court held that defendant’s completion of the period of incarceration rendered moot defendant’s attack on the propriety of his sentence, as distinguished from the conviction, even though the term of probation apparently had not expired. 59 Ill. 2d 236, 237; see also In re B.S. (1979), 73 Ill. App. 3d 507, 509, 392 N.E.2d 62; People v. Armstrong (1976), 43 Ill. App. 3d 586, 599, 357 N.E.2d 84.

Smith is inapposite. There defendant was challenging the validity of a sentence he had already served. (People v. Smith (1973), 16 Ill. App. 3d 100, 104, 305 N.E.2d 714, rev’d on other grounds (1974), 59 Ill. 2d 236.) Here, the Department is litigating the use of its facilities to house certain juvenile defendants, rather than the validity of the sentence as such. More importantly, this controversy falls within that exception to the general mootness doctrine for cases “ ‘capable of repetition, yet evading review.’ ” (Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 236, 437 N.E.2d 638; see August H. Skoglund Co. v. Department of Transportation (1978), 67 Ill. App. 3d 276, 280, 384 N.E.2d 849; cf. People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273.) This exception is limited to those situations where: (1) the chailenged action is in its duration too short to be fully" litigated prior to its cessation; and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again. Murphy v. Hunt (1982), 455 U.S. 478, 71 L. Ed. 2d 353, 102 S. Ct. 1181; Gannett Co. v. DePasquale (1979), 443 U.S. 368, 377, 61 L. Ed. 2d 608, 620, 99 S. Ct. 2898, 2904.

The foregoing conditions are satisfied here. First, the sentences at issue are of short duration; the law prohibits a sentence of probation conditioned on a term of imprisonment in excess of six months. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—3(d).) Thus, ordinarily, any defendants so sentenced will have completed their period of incarceration prior to the time in which the appeal can be determined. This assertion is exemplified by the present facts, wherein although the Department successfully moved to expedite its appeal, defendants were released from custody many months before oral argument. Second, given the inherent ambiguity in the statutory scheme, discussed infra, and the need to place certain juveniles on probation conditioned on a period of incarceration, it is reasonable to assume that the Department will be ordered to house minors similarly sentenced in the future. Therefore, we will consider the merits of this appeal.

II

The Department argues that defendants’ sentence of four years’ probation conditioned on their serving the first six months in the Juvenile Division of the Department must be vacated, since they were contrary to section 5—6—3(d) of the Code. That section states, in part: “*** Persons committed to imprisonment as a condition of probation *** shall not be committed to the Department of Corrections.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—3(d).) The Department maintains that juvenile defendants, therefore, may not be sentenced to the Juvenile Division of the Department as a condition of probation. The Department’s reliance on People v. Toler (1975), 32 Ill. App. 3d 793, 801, 336 N.E.2d 270, to support this assertion is unwarranted, since that case involved an adult, rather than juvenile, defendant. Appellees respond that the sentences were proper and in accordance with section 5—8—6(c) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—6(c)), which reads: “All offenders under 17 years of age sentenced to imprisonment shall be committed to the Juvenile Division of the Department of Corrections ***.”

The Department urges that the latter proviso is silent with respect to imprisonment as a condition of probation. Thus, it asserts, the statutes do not conflict and the clear, unambiguous language of section 5—6—3(d) controls. We disagree.

A salutary principle of statutory construction requires that section in pari materia must be considered with reference to each other so that both sections may be given harmonious effect. (People v. Scheib (1979), 76 Ill. 2d 244, 250, 390 N.E.2d 872; Galvin v. Galvin (1978), 72 Ill. 2d 113, 118, 378 N.E.2d 510.) Both sections 5—6—3(d) and 5—8—6(c) concern the location of imprisonment for sentencing purposes. Thus, the term “persons” in section 5—6—3(d) must be construed, in light of section 5—8—6(c), to refer to those 17 years of age or older. This construction affords meaning to both paragraphs, and follows the mandate of section 5—8—6(c) that all offenders under age 17 sentenced to imprisonment be committed to the Juvenile Division of the Department. The purpose of the latter statute is to protect minors from the “hardening influence and possible abuse from fellow inmates” over 17. People v. Taylor (1979), 76 Ill. 2d 289, 310, 391 N.E.2d 366.

Yet another principle of construction applies here: specific statutory provisions prevail over general provisions on the same subject. (People ex rel. Oller v. Cairo & Thebes R.R. Co. (1936), 364 Ill. 329, 333, 4 N.E.2d 482; Waldbillig Woodworking, Inc. v. King Arthur’s North, Ltd. (1982), 104 Ill. App. 3d 417, 421, 432 N.E.2d 1048.) On balance, section 5—8—6(c) is more particular than 5—6—3(d), in reference to the issue at bar; it expressly pertains to the place of confinement for those under age 17, whereas 5—6—3(d) deals with the broader subject, “conditions of probation.” Therefore, to the extent that the legislative enactments may be said to disagree, section 5—8—6(c) must govern.

The Department’s construction that juvenile defendants cannot be committed to the Juvenile Division as a condition of probation, creates additional problems and questions. It does not affirmatively answer the question of where minors sentenced to imprisonment as a condition of probation are to be committed. The determination of where juvenile criminals shall be placed is purely a legislative function, with courts possessing no discretion in the matter. (People v. Fowler (1958), 14 Ill. 2d 252, 259, 151 N.E.2d 324.) In Illinois, the legislature and courts have always required that juvenile offenders be detained or incarcerated separately and apart from the general prison population. (See 1975 Ill. Att’y Gen. Op. S—910.) The fact that a juvenile has been tried as an adult does not preclude his being required to serve his sentence in the Juvenile Division of the Department. (See, e.g., People v. Cater (1979), 78 Ill. App. 3d 983, 398 N.E.2d 28.) The concern for a juvenile’s incarceration may well address considerations different from those contemplated in selection of the trial forum before which his guilt or innocence is to be adjudicated. The Department suggests that juvenile defendants receiving the type of sentence in question should be placed in a “county facility” other than “Cook County Jail,” but does not refer to any statutory authority in support thereof, nor has any been found.

The Department also maintains that if the legislative enactments are viewed as conflicting, section 5—6—3(d) should control, because it represents the most recent manifestation of legislative intent. The pertinent part of section 5—6—3(d) became effective July 1, 1974 (Ill. Ann. Stat., ch. 38, par. 1005—6—3(d), Historical Note, at 518 (Smith-Hurd 1982)); the relevant portion of section 5—8—6(c) was effective January 1, 1973. (Ill. Ann. Stat., ch. 38, par. 1005—8—6(c), Historical Note, at 209 (Smith-Hurd 1982).) The rule of construction relied upon by the Department provides: “If there is an irreconcilable conflict between the new provision and the prior statutes relating to the same subject matter, the new provision will control as it is the later expression of the legislature.” (2A J. Sutherland, Statutes & Statutory Construction sec. 51.02 (4th ed. 1973).) This rule, however, is inapplicable because there is no “irreconcilable conflict” between the enactments involved here. When construed with reference to each other, they are indeed compatible. As noted in Sutherland, “[statutes in pari materia, although in apparent conflict, are so far as reasonably possible construed to be in harmony with each other.”

The State’s request for costs is denied. Department of Revenue v. Appellate Court (1977), 67 Ill. 2d 392, 367 N.E.2d 1302.

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

Affirmed.

DOWNING, P.J., and STAMOS, J., concur.


author: PRESIDING JUSTICE McNAMARA

text:
      In re ESTATE OF JERRY A. ORZOFF, Deceased—(Heidi M. Feder, Petitioner-Appellant, v. Joseph E. Davis, Ex’r of the Estate of Jerry A. Orzoff, Respondent-Appellee).
    First District (3rd Division)
    No. 82—1117
    Rule 23 order entered April 20, 1983.
    Opinion filed and rehearing denied July 6, 1983.
    Burditt & Calkins, of Chicago (Constantine D. Kasson, Robert G. Epsteen, and David W. Heppelwhite, of counsel), for appellant.
    Joseph E. Davis, of Chicago, for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Heidi M. Feder, brought this action against respondent, Joseph Davis, who is the executor of the estate of Jerry A. Orzoff, in order to amend the order of heirship to include her as the legal heir of the decedent. Petitioner had been adopted by the decedent but was later readopted by her natural mother’s new husband subsequent to her mother’s divorce from the decedent. In her petition, petitioner maintained that under the Illinois Probate Act and the first divorce decree she was an heir of the decedent. The trial court granted respondent’s motion to strike and dismiss the petition on the ground that the subsequent adoption cut off petitioner’s right to inherit from the decedent. Petitioner appeals.

Decedent married petitioner’s natural mother on September 2, 1965. On January 10, 1966, decedent adopted petitioner. The adoption decree provided the petitioner:

“[S]hall be to all legal intents and purposes the child of the petitioners, Jerry Orzoff and Edyce Orzoff, his wife; and for the purposes of inheritance and all other legal incidents and consequences, shall be the same as if she had been born to the petitioners in lawful wedlock.”

At the time she was adopted, petitioner was 20 months old.

Decedent and petitioner’s natural mother were divorced in 1968. A property settlement agreement was made part of the divorce agreement. Pursuant to that settlement agreement, decedent retained visitation rights and assumed child support responsibilities. Those responsibilities included the payment of $175 per month to petitioner’s natural mother until petitioner attained the age of 21 years.

Petitioner’s natural mother remarried Franklin Feder and thereafter, on February 9, 1973, Feder adopted petitioner. The subsequent adoption decree did not attempt to modify the previous decree by which petitioner was adopted by the decedent.

The decedent died on April 23, 1981. On May 6, 1981, decedent’s will, dated August 28, 1979, was admitted to probate and respondent was named executor. In his will, decedent made specific bequests of the assets of his estate, but petitioner was not named as a beneficiary of any of these bequests. Based on an affidavit of heirship made by a cousin of the decedent, the court also entered an order declaring decedent’s mother, brother, and two sisters to be decedent’s only heirs.

On November 5, 1981, petitioner filed a petition to amend the order of heirship to include petitioner as an heir to the decedent. Respondent moved to strike and dismiss the petition, claiming that petitioner’s right to inherit from decedent was divested by virtue of the subsequent adoption by Franklin Feder. Petitioner filed a response stating that a second adoption does not, by operation of law, cut off the inheritance rights of the adoptee regarding the first adoptive parents. After considering arguments of counsel and memoranda of law, the trial court granted respondent’s motion to strike and dismiss the petition, ruling that the holding in In re Estate of Leichtenberg (1956), 7 Ill. 2d 545, 131 N.E.2d 487, controlled the present controversy.

On appeal petitioner contends that the trial court erred in applying the Leichtenberg decision to the facts of the present case; that the trial court's expansive reading of that decision contravenes the legislative trend toward equal treatment for natural and adopted children; and that the trial court’s construction of the Probate Act created an arbitrary and capricious classification of adoptees which violates the equal protection clause of the United States Constitution.

In Leichtenberg, Victor Mueller, who was a resident of the State of Wisconsin and who had resided with his natural parents until he was 10 years old, was brought to Chicago in 1918 where he was adopted by his aunt and uncle, Barbara and John Leichtenberg. After two weeks, Meuller was returned to his nátural parents in Wisconsin. The parents filed a petition to readopt the child, and the Leichtenbergs consented to such action. The decree which was subsequently entered provided “that said child shall be fully restored to its natural parents as fully as though no prior adoption had been made.” In 1936, John Leichtenberg died testate, and it was held without objection, that he left no surviving natural or adopted children. The same finding was made in 1952 after the death of Barbara Leichtenberg, but this time objections were filed by Meuller. The trial court held that the readoption of Mueller did not alter his right to inherit from the Leichtenbergs, but this court reversed that order. Upon review by our supreme court, that court, after examining the law of various States, held that a child, having been readopted prior to the death of his first adopting parents, may not share in their estate. In re Estate of Leichtenberg.

Petitioner here attempts to distinguish the factual situation in Leichtenberg. She points out that the child in that case lived with his adoptive parents for only two weeks and then was returned to his natural parents, while petitioner lived with decedent for a much longer period of time. Petitioner also notes that in Leichtenberg there was evidence that the adoptive father was merely attempting to avoid military service by claiming the adopted child as a dependent while there is no ulterior motive suggested in the present case. Petitioner further notes that her adoption decree specifically provided that she was to be the legal heir of the decedent, “the same as if she had been born to the petitioners in lawful wedlock,” while the Wisconsin re-adoption decree in the Leichtenberg case modified the previous Illinois decree since it provided “that said child shall be fully restored to its natural parents as fully as though no prior adoption had been made.” Petitioner thus argues that the Leichtenberg court was compelled to treat the first adoption as a nullity because it had to give full faith and credit to the subsequent Wisconsin decree. Petitioner contends here that the first decree, granting her full rights of inheritance from the decedent, must be given effect.

We do not believe that the differences in the two cases are significant. It is well established that an adopted child may inherit from his natural parents (In re Estate of Tilliski (1945), 390 Ill. 273, 61 N.E.2d 24), and also from his adoptive parents. (In re Estate of Leichtenberg.) Accordingly, if, upon the death of his adopting parents and after his rights of inheritance have vested, a child is readopted, that child then becomes the adopted child of the second adoptive parents with all the rights and privileges that attach thereto. (In re Estate of Leichtenberg.) Although, as petitioner asserts, since 1956 when the Leichtenberg case was decided, the legislative and judicial attitudes have tended to take the position that adopted children should be treated as co-equal with natural children, the relevant section of the Probate Act of 1975 provides only that:

“An adopted child is a descendant of the adopting parent for purpose of inheritance from the adopting parent and from the lineal and collateral kindred of the adopting parent.” (Ill. Rev. Stat. 1981, ch. 110½, par. 2—4(a).)

The act makes no provision for inheriting from former adopting parents. A fundamental principle of statutory construction is that the enumeration of certain things in a statute implies the exclusion of all others. (In re Estate of Leichtenberg.) Because of this, we must presume that such a right was not intended by the General Assembly. Moreover, a contrary position would result in confusion. As the supreme court stated in Leichtenberg:

“For us to hold otherwise' would be to add confusion to a tranquil field of law. This problem is, clearly, not a one-way street. If a child is allowed to inherit from successive sets of adopting parents, no reason exists why he should not also take from the lineal and collateral kindred of both present and former adopting parents, or why all sets of such adopting parents should not inherit from his estate. Yet, one can but imagine the injustices that would result. Not only would this allow one set of adopting parents to benefit from the generosity of another, but as a practical matter, would make the tracing of heirship exceedingly difficult, and in many cases, necessitate the drafting of a will to avoid the possibility of an unknown adopted heir sharing in the estate. Such, of course, is not desirable.” (In re Estate of Leichtenberg (1956), 7 Ill. 2d 545, 552.)

We believe that the same observations are applicable here.

Regarding petitioner’s assertion that the trial court’s construction of the act created an arbitrary and capricious classification of adoptees, it is true that a statutory classification must be reasonable in light of its purpose. (McLaughlin v. Florida (1964), 379 U.S. 184, 13 L. Ed. 2d 222, 85 S. Ct. 283.) Where there is no “suspect classification” being considered, the test for determining if a legislative classification is in line with the fourteenth amendment’s guarantee of equal protection, is whether the line drawn by the legislature bears a rational relationship to a legitimate State purpose. See Weber v. Aetna Casualty & Surety Co. (1972), 406 U.S. 164, 31 L. Ed. 2d 768, 92 S. Ct. 1400.

Our supreme court has recently held that the class of adoptees is not a suspect classification. (In re Roger B. (1981), 84 Ill. 2d 323, 418 N.E.2d 751.) We believe, as did the Leichtenberg court, that facilitating the task of ascertaining an individual’s heirs in regard to an adopted child is a rational reason for holding that a child, who has been readopted prior to the death of his first adopting parents, may not share in the estate of the first adopting parents.

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

Judgment affirmed.

McGILLICUDDY and WHITE, JJ., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBBIE LEE JORDAN, Defendant-Appellant.
    Third District
    No. 82—21
    Opinion filed July 8, 1983.

      Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Robbie Lee Jordan, was found guilty, after a jury trial, of the offenses of felony murder and burglary, in violation of sections 9—1(a)(3) and 19—1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9—1(a)(3), 19—1, respectively). The defendant was sentenced to concurrent terms of imprisonment of 25 years (for felony murder) and seven years (for burglary). The defendant raises three issues on appeal, as follows: (1) whether the trial court improperly denied the defendant’s motion to suppress where an informant was planted in the defendant’s jail cell for the purpose of eliciting incriminatory statements in violation of his sixth amendment right to counsel; (2) whether the trial court erred in answering a question from the jury during deliberations where the question required the judge to respond with a conclusion based on his own evaluation of the evidence and where, in any event, the court’s answer was inaccurate; (3) whether the defendant’s conviction and concurrent sentence for the felony of burglary must be vacated because it is a lesser included offense of felony murder.

On September 22, 1980, the defendant broke into Herb’s Lounge, in Joliet, in order to steal money. In the course of the burglary, the defendant shot and killed the night watchman. The defendant was arrested and jailed. While in jail, the defendant was placed in a cell with Mr. Allen. Allen had, just a few days earlier, provided a deputy of the jail, Officer Miller, with statements made by a cellmate concerning the cellmate’s crime. In return for the information, Allen was allowed extra phone privileges. Apparently, the defendant shared his cell with two other men, besides Allen. They were Mr. Cummings and Mr. Williamson. At the trial, Allen testified he overheard the defendant tell Cummings how he had broken into Herb’s Lounge and killed the night watchman. Allen relayed this information to Officer Miller. Defense counsel moved to suppress the admissions obtained by Allen on the ground the incriminating statements were elicited from the defendant in violation of his sixth amendment right to counsel because Mr. Allen was actually a paid informant. On cross-examination, Officer Miller admitted he and Allen had, at some point, discussed Allen’s becoming an informant for the State. Miller believed this conversation took place after the defendant had been moved into Allen’s cell. But, he was not sure exactly when the conversation took place. Officer Miller did not recall talking to Allen about obtaining information from the defendant. Williamson testified Allen often asked fellow prisoners about their cases. However, Williamson did not recall Allen questioning the defendant about his crime. After hearing arguments of counsel, the trial court, relying upon the United States Supreme Court’s decision in United States v. Henry (1980), 447 U.S. 264, 65 L. Ed. 2d 115, 100 S. Ct. 2183, denied the motion to suppress because Allen, whether he was an informant or not, did not actively elicit the statement by the defendant.

The first issue is whether the trial court improperly denied the defendant’s motion to suppress where an informant was planted in the defendant’s jail cell for the purpose of eliciting incriminatory statements in violation of his sixth amendment right to counsel. The trial court never decided whether Allen was in fact a paid informant for the police. The trial court did find that Allen simply overheard the statements of the defendant and did not engage in conversation with the defendant. The leading case, applicable to the issue at hand, is United States v. Henry. In Henry, a paid police informant engaged in some conversation with the defendant and the defendant’s incriminatory statements were the product of this conversation. The court noted three important factors. First, the informant was acting under instructions as a paid informant; second, the informant was ostensibly no more than a fellow inmate of the defendant; and third, the defendant was in custody and under indictment at the time he was engaged in conversation by the informant. (447 U.S. 264, 270, 65 L. Ed. 2d 115, 122, 100 S. Ct. 2183, 2187.) The Henry majority’s opinion did not decide whether the exclusionary rule, as established in Massiah v. United States (1964), 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199, could be extended to a case where a paid informant overhears but does not engage the defendant in conversation in order to elicit the incriminating information from the defendant. Nonetheless, in light of the narrow holding of the majority opinion (447 U.S. 264, 271 n.9, 65 L. Ed. 2d 115, 123 n.9, 100 S. Ct. 2183, 2187 n.9), the instructive concurrence of Justice Powell (447 U.S. 264, 276-77, 65 L. Ed. 2d 115, 126, 100 S. Ct. 2183, 2190), and the dissent of Justices Blackmun and White (447 U.S. 264, 278-80, 287, 65 L. Ed. 2d 115, 127-28, 133, 100 S. Ct. 2183, 2190-92, 2195), and the dissent of Justice Rehnquist (447 U.S. 264, 302, 65 L. Ed. 2d 115, 142-43, 100 S. Ct. 2183, 2203), it is appropriate to conclude that Massiah does not prohibit the introduction of statements of a defendant which were overheard by a paid police informant. In the case at hand, the trial court found the alleged informant, Allen, only overheard the defendant’s statements and did not engage in conversation with the defendant in order to elicit the incriminatory statements. Therefore, the trial court was correct in detiding that the testimony of Allen, concerning the admissions of the defendant, was admissible, regardless of whether Allen was a paid informant, because the incriminating information was not elicited by Allen.

The second issue presented by the defendant concerns the trial court’s review of the testimony given at the trial. It is not disputed that it is within the trial court’s discretion to allow a jury’s request to review the testimony. Indeed, it is error for the court not to exercise this discretion. (People v. Briggman (1974), 21 Ill. App. 3d 747, 750.) The defendant questions the manner by which the trial judge reviewed the testimony. The defendant argues the trial court erred in answering a question from the jury during deliberations where the question required the judge to respond with a conclusion based on his own evaluation of the evidence and where, in any event, the court’s answer was inaccurate. We shall review the allegation of inaccuracy first.

Among the three questions sent to the trial court during deliberations was the following:

“In reference to the latent fingerprints, where were all the latent prints specifically found[?]”

Over a defense objection, the trial court responded as follows:

“The latent lifts on People’s Exhibit 4, according to the testimony, were found on the inside face of the cash register.
The latent lifts on People’s No. 3, according to the testimony, were found on the gum box.”

The correct answer would have been as follows: In People’s exhibit No. 3, two latent prints were found on the “face of the cash register drawer front.” A third latent print was recovered from the outside of the door which houses the money box on the pinball machine. In People’s exhibit No. 4, latent prints were found on the gum box. •

First, the mix-up of the exhibit numbers is inconsequential. The jury did not inquire as to which exhibit showed what facts. The jury simply asked where the prints were found. Second, the failure of the court to mention the print on the cash box of the pinball machine was not harmful, but beneficial, to the defendant. At trial, the defendant attempted to explain the presence of his prints on the cash box and pinball machine. Defendant’s witnesses testified the defendant often “helped out” at the Lounge and worked behind the bar. The owners of the Lounge testified the defendant never “helped out” and the defendant was not allowed behind the bar. If the jury believed the defendant’s witnesses, then the presence of prints on the pinball machine would have been meaningless to the State’s case. As for the defendant’s defense, they would have been just another set of prints. However, if the jury did not believe the defendant’s witnesses (the verdict against the defendant strongly suggests the jury did not believe the defendant’s witnesses), then the omission of the prints was beneficial to the defendant because there was, thus, one less bit of evidence against the defendant. The defendant cannot complain of error which favors his case. (See People v. Pierce (1974), 56 Ill. 2d 361, 364.) Third, the defendant also points to the court’s incorrect statement that the prints were found on “the inside face of the cash register.” The correct response would have been that the prints were found on the “face of the cash register drawer front.” The defendant argues the statement of the trial judge influenced the conclusion of the jury and prejudiced the defendant because the statement suggests the defendant tampered with the cash register. Whereas, apparently, the correct response suggests the print on the front of the cash register was placed by the defendant when he was “helping out.” We believe the judge stated the fact as it substantially appeared in the record and the statement of the trial judge did not change the meaning of the original testimony. The State did not, at trial, argue the defendant tampered with the cash register. The prints were used to show that the defendant had his hands in the till. Furthermore, the statement of the judge does not state or imply the defendant tampered with the cash register. Again, the importance of the location of the prints depended upon the decision of the jury to believe or not to believe the witnesses and explanation of the defendant. Obviously, the trial judge would have done better by answering the question of the jury with a response directly from the record. Had he consulted the record, this issue would not now be before this court. However, the slight inaccuracies found in the court’s response do not take on the proportions of reversible error.

This court also finds that the trial judge did not respond with a conclusion based on his own evaluation of the evidence. The judge informed the jury of the fingerprint evidence which was established by the undisputed testimony of the police officers. The trial judge did not suggest any conclusions as to why the defendant’s prints were found at the scene of the crime. The judge simply told the jury where the prints were found at the scene. It cannot be said that the trial court invaded the province of the jury with regard to findings of fact, nor can it be said that the judge’s response influenced the findings of the jury. Therefore, for the foregoing reasons, we find the trial court did not commit reversible error in its review of the testimony for the jury.

The third, and final, issue is whether the defendant’s conviction and concurrent sentence for the felony of burglary must be vacated because it is a lesser included offense of felony-murder. In Illinois a lesser included offense is statutorily defined as follows:

“Included offense. ‘Included offense’ means an offense which
(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or
(b) Consists of an attempt to commit the offense charged or an offense included therein." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 2—9.)

Felony murder in Illinois is defined as:

“A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
* * *
(3) He is attempting or committing a forcible felony other . than voluntary manslaughter.” (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)(3).)

Forcible felony is defined as follows:

“ ‘Forcible felony’ means treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnaping, aggravated battery and any other felony which involves the use or threat of physical force or violence against any individual.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 2—8.

In the case of felony,murder the underlying felony is a lesser included offense because the felony, which in the case at bar was burglary, is established by proof of the same or less than all of the facts required to establish the offense of murder in the course of a burglary. This form of a lesser included offense has been further defined judicially as “ ‘ “one composed of some, but not all of the elements of the greater offense, and which does not have any element not included in the greater offense [citation] so that it is impossible to commit the greater offense without necessarily committing the lesser offense.” ’ ” People v. Devine (1981), 98 Ill. App. 3d 914, 924.

For the foregoing reasons the defendant’s burglary conviction is reversed and his sentence for said offense vacated.

Affirmed in part; reversed in part.

BARRY and SCOTT, JJ., concur.


author: JUSTICE LINN

text:
    PAUL GABRENAS, Plaintiff-Appellee, v. R. D. WERNER COMPANY, INC., Defendant-Appellant.
    First District (4th Division)
    No. 82—967
    Opinion filed June 30, 1983.

      Willis R. Tribler, Thomas A. Kiepura, and James V. Marcanti, all of Chicago (Haskell & Perrin, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Jeffrey J. Asperger, and Lisa D. Marco, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Paul Gabrenas, brought a tort action in strict liability against defendant, R. D. Werner Company, Inc., seeking to recover damages for injuries caused by a defectively designed ladder stabilizer that was designed, manufactured, and sold by defendant. Following a jury trial in the circuit court of Cook County, a verdict for plaintiff in the amount of $89,292.96 was returned and judgment was entered thereon. Defendant appeals, arguing that (1) the trial judge erred in permitting plaintiff to present testimony during rebuttal that did not in fact rebut testimony of any defense witnesses but did present a new theory concerning the defect in the ladder stabilizer, and (2) the verdict was contrary to the manifest weight of the evidence.

We affirm.

Facts

Plaintiff worked as a janitor in the building where he lived in La-Grange, Illinois. He purchased an R. D. Werner aluminum extension ladder in 1968. In 1970, he purchased a Model 75 Mark I Sta-Safe Stand-Off ladder stabilizer, which was designed, manufactured, and sold by defendant. He assembled the stabilizer, and never took it apart. He used the ladder with the stabilizer twice a year to install and remove window screens.

On June 18, 1974, plaintiff attached the stabilizer to the ladder and installed 34 to 36 window screens. After a dinner break he went to the courtway of his building to install two remaining screens. He placed the ladder against the building with the base five feet away on ground that was soft on the surface but hard just beneath the surface. Two feet to the right was a wall perpendicular to the wall against which the ladder was leaning. The arms of the ladder stabilizer rested immediately below the window sill where plaintiff was going to work, a little more than 10 feet above the ground.

Plaintiff tested the ladder by stepping on the first two rungs to make sure both legs were resting firmly and evenly on the ground. He climbed the ladder and cleaned the sill, descended to get a silicone spray, climbed up again to spray the screen track, and descended again. He picked up two screens in his left hand and climbed the ladder a third time, stopping on the third or fourth rung from the top. As he began to install the screen on the left he felt a sensation of movement to the right, forward toward the building, and downward. He turned to look; the next thing he remembered was lying on his back on the ground with the ladder on top of him, the stabilizer arms up in the air.

Plaintiff suffered a comminuted fracture of the right humerus near the shoulder. A physician who had examined plaintiff testified that at the time of trial the fracture site had healed, but there was considerable overriding of bone and a resulting ¾-inch shortening of the arm, a one-third loss of normal movement, chronic pain, and severe degenerative arthritis.

After he came home from the hospital, plaintiff examined the ladder stabilizer. “It was broke, bent up, sheared through at the top bolt hole on the right-hand side, but still confined to the rest of the unit by a crossbar.”

On June 18, 1976, plaintiff filed a strict liability suit against defendant. As amended, the complaint alleged that the stabilizer was defective and unreasonably dangerous because it failed to stabilize the ladder when used in a reasonably foreseeable manner; it failed to support reasonably foreseeable loads and stresses; the tubing was severely weakened by bolt holes; the bolt holes were placed in an area where stresses are concentrated; the bolts did not fit the bolt holes adequately; the bolt holes were ragged and bolt fittings loosened with use, thereby increasing stress concentrations; the bolts and nuts faced directly into the tubing, thereby increasing weakness; bracing was inadequate; there was no clamp to keep the stabilizer centered on the ladder; the stabilizer lacked an adequate safety factor; and the stabilizer forced the user to lean to one side of the ladder. The complaint further alleged failure to warn that the stabilizer had a propensity to become distorted, bend, break, or otherwise fail.

At trial, plaintiff called Marvin Salzenstein, a mechanical engineer, to give expert testimony about the defective condition of the ladder stabilizer. In November 1981, Salzenstein had examined the fractured stabilizer, a new model 75 stabilizer, all the drawings that defendant had provided for that model, a metallurgist’s report on the strength of the material, and a Werner model 77 stabilizer. He also photographed the fractured stabilizer. The purpose of his examination was to determine where and how the failure occurred and whether the stabilizer was adequately designed for its anticipated use. He concluded that the stabilizer design was inadequate; while the ladder was in an upright position the right arm bent toward the user of the ladder and then fractured across two of the bolt holes that held the arm to the bracket. The fracture caused an instability that permitted the ladder to collapse. He stated that the appearance of the fracture surface was inconsistent with the theory that the ladder slipped and slid down the wall to the right and that the stabilizer fractured when the arm hit the ground. He stated further that because of the wall beside the window where plaintiff was working, it would have been impossible for the ladder to slip to the right and fall in that manner.

Salzenstein testified that when a ladder stabilizer is in use the weight of the user and the reaction force from the stabilizer bearing against the wall create stress forces that are transferred entirely through the structure of the stabilizer and the ladder. The presence of bolt holes reduces the area available to carry the load and also concentrates stress factors around the holes. The stress concentration in the stabilizer in question was three or four times greater near the edge of the hole than in an area unaffected by the hole. Using a metallurgist’s report on the yield strength of the aluminum of the stabilizer and applying a safety factor of four, Salzenstein had determined that the maximum allowable stress at the bolt holes was 7,500 pounds per square inch. After correcting an earlier error in his calculations, Salzenstein testified that the actual stress at the bolt holes had been 10,000 pounds per square inch, which exceeded the maximum safe amount.

A further problem, Salzenstein stated, was that the stabilizer design included space between the bolts and the holes. Where cyclic loading occurs, the loose fasteners will “rack,” or wobble, causing “fretting,” which will lead to microscopic cracking and ultimate failure. Another design defect was the use of threaded bolts, which increased the friction between the surfaces and hastened destruction. Salzenstein had found evidence that racking and fretting had occurred at the bolt holes on the stabilizer in this case. His opinion was that the stabilizer was in an unreasonably dangerous condition as a result of its design, that this condition was the proximate cause of the fracture of the arm at the bolt hole, and that this fracture was the cause of plaintiff’s fall.

Defendant called two expert witnesses. Gene Litwin, a mechanical engineer, stated that he had examined the broken stabilizer and a new stabilizer of the same model, and reviewed defendant’s design specifications. Litwin testified that he had found errors in Salzenstein’s calculations and conclusions that discredited Salzenstein’s opinions. He challenged Salzenstein’s stress calculations, stating that a stress concentration factor of 1.25 should have been used. He admitted on cross-examination that this factor would be substantially increased if the bolt did not fit the hole. His “best estimate” was that under the conditions at the time of plaintiff’s accident the maximum stress concentration would be 7,321.5 pounds per square inch. Litwin’s calculations indicated “a proper and adequate safety factor” and led him to “the conclusion that the product is adequately and safely designed and one would not expect failures in normal usage.” His opinion was that “the fracture was caused by a sudden sideward load applied to the tip of the right stabilizer arm” as a result of the ladder’s falling, causing the right arm of the stabilizer to strike the ground. He stated that the stabilizer could not have failed in an upright position.

Defendant also called Lyle Jacobs, a metallurgical engineer, to testify as an expert witness. Jacobs stated that there was nothing internally wrong with the aluminum of which the stabilizer was constructed. He also said there was no evidence of fatigue and no evidence that repetitive loading had caused the fracture; the stabilizer arm bent and broke off instantaneously when the ladder fell and the arm struck the ground. He also stated that the bolts in the broken stabilizer did not fit well in the bolt holes; however, he found no evidence of fretting. Jacobs testified that he could find no physical evidence to support Salzenstein’s theory.

Plaintiff called Thomas Losey to testify about his personal experience with a model 75 ladder stabilizer manufactured by defendant. Losey stated that while using a ladder with the stabilizer attached to paint a house he felt the top of the ladder move and then he fell, breaking both feet. The ladder fell straight down the side of the house. After returning from the hospital that day he examined the stabilizer and found that the right arm was broken.

Plaintiff informed the court that he wished to call Dr. Paul Gordon, a metallurgical engineer, as a rebuttal witness. Gordon previously had been deposed by defendant. Defendant objected to plaintiff’s calling this witness on the grounds that his testimony would be cumulative and prejudicial and that it should have been presented in plaintiff’s case in chief. Defendant did not object that Gordon’s testimony would exceed the scope of proper rebuttal. Plaintiff responded that although he had not intended originally to call a metallurgist as an expert witness, he felt it necessary to rebut the testimony of Jacobs, the metallurgist who had been called by defendant, because Jacobs “testified to certain things that were not in his deposition.” Furthermore, Litwin, a mechanical engineer, also had stated his opinion on metallurgical matters. The trial judge denied defendant’s motion and ruled that it was proper for plaintiff to call Gordon to rebut the testimony given by defendant’s metallurgist.

Gordon testified that he had examined the broken stabilizer. He agreed with Jacobs’ opinion that there was nothing internally wrong with the aluminum itself. He disagreed with Jacobs in that he found evidence that fretting had occurred between the bolts and the bolt holes. Gordon also testified that just before the fracture occurred the right stabilizer arm had been bent toward the user on the ladder and away from the wall at about a 20° angle. His opinion was that this bending, which was produced by the forces exerted by the user’s weight on the ladder in service, “was the source of the trouble in this case.” The bend occurred while the stabilizer was intact and in an upright position against the wall. Gordon also found a second bend, made at a different time, that had the appearance characteristic of an impact. His opinion was that during service the right stabilizer arm bent slowly for a while and then, on the occasion of this accident, bent suddenly, upsetting the ladder and causing the fall. The second bend was caused by the impact of the fall. Defendant did not object to Gordon’s testimony as being outside the proper scope of rebuttal.

The jury returned a verdict in favor of plaintiff and assessed damages of $89,282.96. At the hearing on defendant’s post-trial motion for a new trial, defendant argued that it had been error to allow Gordon to testify. The trial judge stated, “You certainly had the right to bring back both Jacobs and Whitman [sic] if you wanted to. ***[I]t wasn’t as though you didn’t have an opportunity to call them back if it would have made any difference.” In denying defendant’s motion for a new trial, the trial judge said, “I do want the record to clearly reflect that Dr. Gordon’s deposition had previously been taken. There was no claim of surprise, and the Court offered to counsel for the defense the opportunity *** to present a witness, in effect, in surrebuttal to counter Dr. Gordon’s testimony, whether he brought back one of their prior witnesses or would bring somebody else in. One of the things that I try to accomplish on each trial is to avoid trial by surprise. And I don’t have the feeling that there was a trial by surprise in this particular case.”

Opinion

Defendant’s first argument on appeal is that it was error for the trial court to permit plaintiff to present testimony during rebuttal that did not in fact rebut, contradict, or disprove testimony of any defense witnesses but did present a new theory concerning the defect of the ladder stabilizer. Plaintiff argues that defendant's objection has been waived for failure to make a proper objection to the introduction of this testimony at the time of trial, citing Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 418 N.E.2d 1079, Escher v. Norfolk & Western Ry. Co. (1979), 77 Ill. App. 3d 967, 397 N.E.2d 9, aff'd (1980), 82 Ill. 2d 110, 411 N.E.2d 864, and Klatt v. Commonwealth Edison Co. (1964), 55 Ill. App. 2d 120, 204 N.E.2d 319. The record indicates that the only objections defendant made regarding Dr. Gordon’s prospective testimony were that it might be cumulative and that it should have been presented in plaintiff’s case in chief. At the time the testimony that defendant now finds objectionable was elicited, defense counsel was silent. Accordingly, defendant is precluded from arguing on appeal that Dr. Gordon’s testimony went beyond the proper scope of rebuttal because failure to object results in a waiver of the issue. Greig v. Griffel (1977), 49 Ill. App. 3d 829, 364 N.E.2d 660.

Even if defendant had preserved this issue for appeal, we could find no merit in the claim that the admission of Dr. Gordon’s testimony was reversible error because the testimony exceeded the permissible scope of rebuttal. Defendant concedes that a portion of Gordon’s testimony was unobjectionable: “Gordon did in fact attempt to rebut some of the conclusions made by Jacobs ***.” Accordingly, defendant cannot logically complain that the trial judge abused his discretion in permitting Gordon to testify. Defendant asks this court to find that, although this part of Gordon’s testimony was proper rebuttal, it was nevertheless reversible error to permit him to testify that a bend in the stabilizer had upset the ladder and caused plaintiff’s accident. Defendant argues that this opinion of Gordon’s, “of course, is inconsistent with Salzenstein’s theory that a fracture in the arm of the stabilizer caused the ladder to become unstable and was improper rebuttal.” In our view, defendant’s effort to raise to the level of reversible error this nice distinction between whether a “bend” or a “fracture” in the stabilizer arm upset plaintiff’s ladder lacks substance.

“Rebuttal evidence is that which answers, explains, repels, contradicts, or disproves evidence introduced by the defendant.” (Brown v. Sexner (1980), 85 Ill. App. 3d 139, 149, 405 N.E.2d 1082, 1090; see also People v. King (1978), 61 Ill. App. 3d 49, 377 N.E.2d 856; Apicella v. Mace (1977), 47 Ill. App. 3d 43, 361 N.E.2d 756.) “ ‘[Wjhere a defendant introduces evidence of an affirmative matter in defense or justification, the plaintiff, as a matter of right, is entitled to introduce evidence in rebuttal as to such affirmative matter.’ ” (Pellico v. E. L. Ramm Co. (1966), 68 Ill. App. 2d 322, 328, 216 N.E.2d 258, 261, quoting Loftus v. Loftus (1907), 134 Ill. App. 360, 362.) While “[a] party holding the affirmative can introduce in rebuttal only such evidence as tends to answer *** or dispose of new affirmative matter introduced by the defendant” (Rodriguez v. City of Chicago (1974), 21 Ill. App. 3d 623, 625, 316 N.E.2d 88, 90), “[ajdmission of rebuttal testimony is a matter left to the discretion of the trial court and its exercise thereof will not be interfered with by a court of review unless an abuse of discretion is shown.” People v. King (1978), 61 Ill. App. 3d 49, 56, 377 N.E.2d 856, 861.

Furthermore, where testimony offered in rebuttal might have been introduced in plaintiff’s case in chief, its admission in rebuttal is a decision committed to the discretion of the trial judge (Kupcikevicius v. Fitzgibbons (1976), 41 Ill. App. 3d 405, 354 N.E.2d 434; Rodriguez v. City of Chicago), and a reviewing court will not interfere in the absence of a showing of an abuse of that discretion (Department of Public Works & Buildings v. Chicago Title & Trust Co. (1950), 408 Ill. 41, 95 N.E.2d 903, cert. denied (1951), 341 U.S. 931, 95 L. Ed. 1360, 71 S. Ct. 804; Brown v. Sexner; People v. King). In our view, no such abuse of discretion by the trial judge has been demonstrated in this case. Plaintiff’s theory of liability was that the stabilizer failed while in an upright position. Defendant argued through its witnesses that the stabilizer failed only as a result of striking the ground after plaintiff had fallen. We can discern neither a new theory of liability nor improper rebuttal in Gordon’s statement that the cause of plaintiff’s accident was the failure of the stabilizer arm while the ladder was upright against the wall, and the cause of the failure was a bend rather than a fracture of the arm. At most, Gordon’s opinion was a variation on Salzenstein’s theme. We find defendant’s argument that Gordon’s opinion was “inconsistent” with Salzenstein’s and therefore improper rebuttal to be meritless.

Defendant’s second argument for reversal is that the jury’s verdict was contrary to the manifest weight of the evidence. We disagree. “[A] verdict based on conflicting evidence should not be disturbed on appeal unless it is contrary to the manifest weight of the evidence.” (Career Opportunities, Inc. v. Grant, Wright & Baker, Inc. (1980), 91 Ill. App. 3d 984, 987, 415 N.E.2d 463, 465; see also Haag Brothers, Inc. v. Artex International, Inc. (1978), 60 Ill. App. 3d 141, 376 N.E.2d 636.) It is the function of the jury to resolve controverted issues of fact and to determine the credibility of witnesses and the weight to be accorded their testimony. (Didier v. Jones (1978), 61 Ill. App. 3d 22, 377 N.E.2d 572; Haag Brothers, Inc. v. Ar tex International, Inc.) A verdict is considered to be against the manifest weight of the evidence only when the opposite conclusion is clearly evident (Career Opportunities v. Grant, Wright & Baker; Didier v. Jones; Murray v. Kleen Leen, Inc. (1976), 41 Ill. App. 3d 436, 354 N.E.2d 415), or when the jury’s verdict is palpably erroneous (Didder v. Jones) or appears to be unreasonable, arbitrary, and not based on the evidence (Murray v. Kleen Leen, Inc.).

“Whether the court would differ with the jury’s conclusion is not important so long as reasonable persons could differ in their conclusions.” (Kern v. Uregas Service of West Frankfort, Inc. (1980), 90 Ill. App. 3d 182, 199, 412 N.E.2d 1037, 1050.) “Where there is a conflict in the testimony, a reviewing court may not substitute its judgment for that of the jury in passing on the weight of the evidence and on the credibility of the witnesses. (E. A. Meyer Construction Co. v. Drobnick (1964), 49 Ill. App. 2d 51, 199 N.E.2d 447.) A verdict may not be set aside merely because the jury could have determined the credibility of the witnesses differently or drawn different inferences of fact, and where credible evidence supports the verdict, the court may not say that the conclusions other than the ones drawn by the jury are more reasonable. McCottrell v. Benson (1961), 32 Ill. App. 2d 367, 178 N.E.2d 144.” Didier v. Jones (1978), 61 Ill. App. 3d 22, 27, 377 N.E.2d 572, 576.

As outlined in the statement of facts, evidence was presented in support of plaintiff’s claim by, among others, plaintiff himself, two expert witnesses, and another person who had suffered an accident using a ladder stabilizer manufactured by defendant. Applying the above principles' regarding the determination of whether a verdict is contrary to the manifest weight of the evidence to the facts of this case, we find it clear that controverted issues regarding the credibility of witnesses and the weight to be accorded their testimony, as well as controverted issues of fact were presented to the jury. Defendant has failed to demonstrate that the jury’s verdict was “Palpably erroneous” or that it appears to be “unreasonable, arbitrary, and not based on the evidence.” Under these circumstances we would be entirely unjustified in setting aside the verdict as defendant requests, and we decline to do so. The judgment of the trial court accordingly is affirmed.

Affirmed.

ROMITI, P.J., and JOHNSON, J., concur.