author: MR. JUSTICE RYAN MR. JUSTICE CLARK,

text:
    (No. 50263.
    CHRISTINE E. KIRK, Appellee, v. FINANCIAL SECURITY LIFE INSURANCE COMPANY, Appellant.

      Opinion filed December 4, 1978.

      CLARK, J., and WARD, C.J., dissenting.
    Heyl, Royster, Voelker & Allen, of Springfield (Gary M. Peplow, of counsel), for appellant.
    W. J. Simhauser, of Springfield, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Christine Kirk brought this action as beneficiary under the double indemnity accident provision of her husband’s life insurance policy. The defendant insurer, Financial Security Life Insurance Company, moved to dismiss the complaint because the insured died 92 days after the accident. The double indemnity provision takes effect only if the assured dies within 90 days of the accident. The Sangamon County circuit court dismissed the complaint and the appellate court reversed, holding that the 90-day provision violates public policy. One justice dissented. 54 Ill. App. 3d 192.

The facts are not disputed. On January 26, 1974, John Kirk was seriously injured in an automobile accident in Jackson, Mississippi. From that day until his death, Kirk was given little chance of survival. He died at the University Hospital in Jackson on April 28, 1974, 92 days after the accident.

The defendant insurance company paid the face amount of Kirk’s life insurance policy, but refused to pay under the double indemnity provision because the assured died more than 90 days after the accident. The policy provided double indemnity benefits if the following provision was complied with:

“ACCIDENTAL DEATH BENEFIT. The Company, while this policy is in full force and effect, other than under the nonforfeiture provisions, WILL PAY an Accidental Death Benefit to the Beneficiary upon receipt at its Home Office of due proof of the accidental death of the Insured which directly shows the accidental death occurred; (1) death resulted directly and solely from an accidental bodily injury, and (2) death occurred within ninety (90) days after the bodily injury, and (3) both the injury and death occurred while this policy was in full force and effect.”

Thus, the benefit provision specifically limits double indemnity recovery to death occurring within 90 days of the fatal accident. The primary question posed by this appeal is whether this 90-day limitation on double indemnity recovery for accidental death is void as against public policy. We hold that this limitation is not against the public policy of Illinois and, as a consequence, we reverse.

As a preliminary matter, it is important to note that where the provisions of an insurance policy are clear and unambiguous, courts do not hesitate to enforce those provisions fully. (Cobbins v. General Accident Fire & Life Assurance Corp. (1972), 53 Ill. 2d 285.) If there is an ambiguity in the policy then that ambiguity is resolved against the maker of the policy, the insurance company. (Lenkutis v. New York Life Insurance Co. (1940), 374 Ill. 136.) Here, the 90-day provision is clear and unambiguous. In order to collect double the face amount of the policy, the assured must meet three requirements. The death must result directly and solely from an accident, the date of death must be within 90 days of the accident, and both the injury and death must occur while the policy is in full force. There is no ambiguity in these three requirements.

The primary question posed is whether this unambiguous 90-day requirement violates Illinois public policy. Similar limitation periods appear in many life insurance policies and until very recently every jurisdiction faced with a challenge to these provisions had upheld them. (Contois v. State Mut. Life Assur. Co. (7th Cir. 1946), 156 F.2d 44, 46 (Ill.); Spaunhorst v. Equitable Life Assur. Soc. of United States (8th Cir. 1937), 88 F.2d 849, 851 (Mo.); Barnett v. Travelers’ Ins. Co. (8th Cir. 1929), 32 F.2d 479, 480 (Mo.); Kerns v. Aetna Life Ins. Co. (8th Cir. 1923), 291 F. 289, 290 (S.D.); Orrill v. Prudential Life Ins. Co. of America (N.D. Cal. 1942), 44 F. Supp. 902, 904; Brown v. United States Casualty Co. (N.D. Cal. 1899), 95 F. 935, 936; Bennett v. Life & Casualty Insurance Co. (1939), 60 Ga. App. 228, 3 S.E.2d 794, 795; Clarke v. Illinois Commercial Men’s Association (1913), 180 Ill. App. 300, 303; Hickey v. Washington National Insurance Co. (1939), 302 Ill. App. 388; Mullins v. National Casualty Co. (1938), 273 Ky. 686, 688-89, 117 S.W.2d 928, 930; Fontenot v. New York Life Insurance Co. (La. App. 1978), 357 So. 2d 1185, 1188; Drinan v. Clover Leaf Casualty Co. (1919), 207 Mich. 677, 679, 175 N.W. 176, 177; Hudson v. Mutual Ben. Health & Acc. Ass’n (Mo. App. 1944), 184 S.W.2d 188, 189; Weickselbaum v. Commercial Travelers Mut. Acc. Ass’n of America (Sup. Ct. Kings County 1954), 129 N.Y.S.2d 612, 612-13; Rhoades v. Equitable Life Assurance Society of the United States (1978), 54 Ohio St. 2d 45, 374 N.E.2d 643, 645; Douglas v. Southwestern Life Insurance Co. (Tex. Civ. App. 1964), 374 S.W.2d 788, 791; Crowe v. North American Acc. Ins. Co. (Tex. Civ. App. 1936), 96 S.W.2d 670, 671; 1A J. Appleman, Insurance sec. 612 (1965); Annot., 39 A.L.R.3d 1311 (1971).) Recently, at least two courts have held these provisions invalid on public policy grounds. Burne v. Franklin Life Insurance Co. (1973), 451 Pa. 218, 301 A.2d 799; Karl v. New York Life Insurance Co. (1977), 154 N.J. Super. 182, 381 A.2d 62.

Though this precise issue has not previously been addressed by this court, several Illinois appellate courts have approved this type of time limitation. In Clarke v. Illinois Commercial Men’s Association (1913), 180 Ill. App. 300, the decedent had been injured on June 14, 1909, and died November 17, 1909. The insurer refused to pay under the double indemnity provision noting that the assured had died beyond the association’s 90-day limitation period. The appellate court affirmed the dismissal of the suit, noting:

“The proximate cause of death, especially when it follows at a time somewhat remote from the accident to which it may be attributed, is often the subject of controversy and litigation. Provisions of different kinds, designed to remove or limit a controversy on that subject, are found sometimes in the policies and sometimes in by-laws. Doubtless, the by-law in question had some such end in view.
Its reasonableness would seem to rest upon a theory that if death does not usually result from the injuries received from an accident within ninety days therefrom, it may be reasonably ascribed to other causes prior or intervening. We cannot say that such a time limit is unreasonable.” (180 Ill. App. 300, 302.)

A similar time limitation was upheld in Hickey v. Washington National Insurance Co. (1939), 302 Ill. App. 388, where the assured died 60 days after an accident and the accident policy provided benefits only if the assured died within 30 days. Finally, in Shelton v. Equitable Life Assurance Society of the United States (1961), 28 Ill. App. 2d 461, the assured lost his leg nearly 3 years after the precipitating accident. Benefits under his policy were denied when the court held that a 90-day provision in the policy violated no known public policy.

Until 1973 the Illinois cases reflected a unanimous rule. In that year the primary case relied on by the plaintiff, Burne v. Franklin Life Insurance Co., held that a 90-day time limitation for double indemnity accidental death benefits violated public policy. In Bume, the assured was kept alive 414 years by sophisticated medical techniques. The insurer conceded that the sole cause of death was the accident, but argued that under the 90-day requirement the assured’s death was outside the policy. The Pennsylvania Supreme Court held that requirement invalid. First, the court noted that the leading cases were well before modern advances in medical science. (451 Pa. 218, 301 A.2d 799, 801.) Such advances had, in that court’s view, made the 90-day limit obsolete. Second, the court felt that extraneous matters, such as the eventual receipt of insurance proceeds, should not be a factor in the deliberations on whether and how to prolong life. (451 Pa. 218, 301 A.2d 799, 802.) Third, the court considered it fundamentaUy unjust to allow full recovery to a beneficiary who has endured little or no prolonged expense and anxiety, and yet allow no recovery for those who suffer the longest and endure the greatest expense. 451 Pa. 218, 301 A.2d 799, 801-02.

In a similar case, a trial level court in New Jersey followed Burne and held both a 90-day and 120-day limitation invalid. (139 N.J. Super. 318, 353 A.2d 564.) A New Jersey appellate court upheld that decision on the premise that the life policy’s underlying purposes would not be frustrated where it was conceded that the assured died as a result of the accident, albeit beyond the 90-day limit. 154 N.J. Super. 182, 381 A.2d 62.

In contrast, the Ohio Supreme Court and Louisiana appellate court have recently rejected the policy arguments of Pennsylvania and New Jersey and upheld 90-day limitations. Rhoades v. Equitable Life Assurance Society of the United States (1978), 54 Ohio St. 2d 45, 374 N.E.2d 643, 645 n.3; Fontenot v. New York Life Insurance Co. (La. App. 1978), 357 So. 2d 1185.

The long line of authority supporting these time-limitations requirements in insurance policies, the recent departure from these holdings by the Pennsylvania Supreme Court in Burne and the New Jersey appellate court in Karl, and the subsequent rejection of Burne by the Ohio Supreme Court and Louisiana appellate court indicate that the issue is not one where there are clearly defined and objective rules and standards of public policy. This is not a matter where public policy is so clear that objective criteria compel us to hold the 90-day limitation invalid. Furthermore, public policy of a State or the nation is found imbedded in its constitution and its statutes, and, when these are silent on a subject, in the decisions of the courts. (Routt v. Barrett (1947), 396 Ill. 322; Pearson v. Adams (1946), 394 Ill. 391; Smith v. Board of Education (1950), 405 Ill. 143.) The legislature has not been silent on the matter of public policy as it relates to the contents of insurance policies. The Director of the Department of Insurance is required by statute to review policies of insurance in certain categories and approve or disapprove them, based on criteria including the established public policy of this State. The statute, section 143 of the Illinois Insurance Code, provides:

“No company transacting the kind or kinds of business enumerated in Glasses 1(a), 1(b) and 2(a) of section 4 shall issue or deliver in this State a policy or certificate of insurance, attach an endorsement or rider thereto, incorporate by reference by-laws or other matter therein or use an application blank, in this State until the form and content of such policy, certificate, endorsement, rider, by-law or other matter incorporated by reference or application blank has been filed with and approved by the Director. It shall be the duty of the Director to withhold approval of any such policy, certificate, endorsement, rider, by-law or other matter incorporated by reference or application blank filed with him if it contains provisions which encourage misrepresentation or are unjust, unfair, inequitable, ambiguous, misleading, inconsistent, deceptive, contrary to law or to the public policy of this State, or contains exceptions and conditions that unreasonably or deceptively affect the risk purported to be assumed in the general coverage of the policy. In all other cases the Director shall give his approval. Failure of the Director to act within sixty days after submission shall constitute approval unless the Director extends by not more than an additional 30 days the period within which he may approve or disapprove any such form by giving notice to the insurer of such extension before expiration of the initial 60 days period. The action of the Director in disapproving such form shall be subject to judicial review as set forth in Section 407.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 73, par. 755.

Additional statutory authority to proscribe certain policy provisions, by rule, is found in section 377 of the Illinois Insurance Code (Ill. Rev. Stat. 1977, ch. 73, par. 1013). Specifically, “The Director is charged with the rights, powers and duties appertaining to the enforcement and execution of all the insurance laws of this State. He shall have the power (a) to make reasonable rules and regulations as may be necessary for making effective such laws.” (Ill. Rev. Stat. 1977, ch. 73, par. 1013.) Through these two sections the Director of Insurance is clearly given the duty to make judgments as to the validity of the 90-day requirement.

Here, we may assume that the Financial Security Life insurance policy was approved pursuant to section 143 by the Department of Insurance. (Bernardini v. Home & Automobile Insurance Co. (1965), 64 Ill. App. 2d 465, 467.) In addition, the Department of Insurance has specifically authorized the use of the 90-day limitation in its rules and regulations. Rule 20.07 approved August 1, 1978, sets out the “Minimum Standards of Individual Accident and Health Insurance.” That rule authorizes the following:

“Accidental death and dismemberment benefits shall be payable if the loss occurs within 90 days from the date of the accident, irrespective of total disability.” Department of Insurance Rule 20.07, sec. 7(A)(10), 2 Ill. Reg. No. 30, at 57 (July 28, 1978).

The approval of the use of 90-day limitation periods in policies of insurance by the Department, although not conclusive upon the courts, is, however, entitled to great weight as against the contention that such a provision is against public policy. (Clark v. Federal Life Insurance Co. (1927), 193 N.C. 166, 171-72, 136 S.E. 291, 293, quoted in Shelton v. Equitable Life Assurance Society of the United States (1961), 28 Ill. App. 2d 461, 467.) In Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, this court upheld the constitutionality of legislation which allowed the Department of Insurance to prohibit conditions in fire insurance policies which “unreasonably or deceptively affect the risks.” (68 Ill. 2d 361, 374.) In that case it was acknowledged that the Department was acting to carry forward the mandate of the legislature and the court stated:

“We hold that the legislature may delegate to the Director the power to prescribe a uniform insurance contract containing a clause limiting the time during which actions may be brought by the insured against his insurer.” (68 Ill. 2d 361, 369.)

In our case, pursuant to the command of the legislature, we must assume that the Director has reviewed the provisions of the insurance policy in question to ascertain whether its provisions were “unjust, unfair,” etc., or “contrary to law or to the public policy of this State” (Ill. Rev. Stat. 1977, ch. 73, par. 755). The long-established approval of the usage of time limitations in insurance policies similar to that contained in the policy in question, in the absence of any action by the legislature countermanding the approval by the Director of such provisions, is strong evidence that the General Assembly does not consider the use of such limitation periods violative of public policy.

That this 90-day provision is a matter best left to the legislature and Department of Insurance is clear from an analysis of the issues involved. While there may be valid reasons which support the validity of the decisions in Burne and Karl (see Note, Death Be Not Proud—The Demise of Double Indemnity Time Limitations, 23 DePaul L. Rev. 854 (1974)), there are numerous policy arguments favoring the 90-day limitation.

It has been held in several cases that these provisions minimize uncertainty as to the cause of the assured’s death. (Clarke v. Illinois Commercial Men’s Association (1913), 180 Ill. App. 300, 303; see also Fontenot v. New York Life Insurance Co. (La. App. 1978), 357 So. 2d 1185; Rhoades v. Equitable Life Assurance Society of the United States (1978), 54 Ohio St. 2d 45, 374 N.E.2d 643, 645.) Without the finality of a time limitation, the accompanying uncertainty as to the cause of death as the time between that event and the injury increases will spawn a substantial amount of litigation as beneficiaries attempt to establish some injury-connected cause of their insured decedent’s death.

Also, several cases have acknowledged that these provisions reflect risk decisions. An insurance company sets policy rates based on the risks of recovery. As a consequence, the 90-day limitation, which clearly affects the risk, is reflected in the rate charged an assured. Thus, these cases hold, as a matter of contract law, that the assured is receiving what he has paid for. The limitation is thus reasonable as'a reflection of the insurer’s risk. Shelton v. Equitable Life Assurance Society of United States (1961), 28 Ill. App. 2d 461, 464; Brown v. United States Casualty Co. (N.D. Cal. 1899), 95 F. 935, 937; Fontenot v. New York Life Insurance Co. (La. App. 1978), 357 So. 2d 1185,1188.

We find unpersuasive the argument that the limitations on the time within which death must occur should be abandoned in light of the advancements made by the medical profession in the ability to prolong life or to defer death. (See Burne v. Franklin Life Insurance Co.; Note, Death Be Not Proud—The Demise of Double Indemnity Time Limitations, 23 DePaul L. Rev. 854, 860 (1974).) Regardless of the state of the art of healing or preserving life, there has always been and there always will be those who will die on the 89th day following the injury and those who will die on the 91st day following an injury. In the cases cited above, we note that this problem has been in litigation since prior to the advent of this century.

The suggestion that the injection of financial matters may detrimentally affect decisions by double indemnity life insurance beneficiaries is not substantiated by the case at bar. Indeed, the beneficiary appears to have done precisely the opposite of what she argues. She maintained her husband, despite the policy, for more than 90 days. The 90-day requirement did not act as a disincentive in the provision of medical services.

As a general matter, the suggestion that persons will be encouraged to “pull the plug” is already dealt with by the concept of “insurable interest.” A person may not purchase insurance on another unless he has a positive incentive to keep that person alive. (Colgrove v. Lowe (1931), 343 Ill. 360; Warnock v. Davis (1882), 104 U.S. 775, 26 L. Ed. 924.) The law already has a requirement that will protect the assured.

If the 90-day provision is invalid as injecting financial motives into life-saving decisions, then a whole host of other provisions and laws must be invalidated. What of term insurance? What of the termination of some insurance benefits at age 60? What of life insurance itself? Justice Holmes, speaking of insurable interest, noted aptly:

“The law has no universal cynic fear of the temptation opened by a pecuniary benefit accruing upon a death. It shows no prejudice against remainders after life estates, even by the rule in Shelley’s Case.” Grigsby v. Russell (1911), 222 U.S. 149, 155-56, 56 L. Ed. 133, 137, 32 S. Ct. 58, 59.

The implications of a decision invalidating 90-day limitations are quite broad. See, e.g., 1NA Life Insurance Co. v. Pennsylvania Insurance Department (1977), 31 Pa. Commw. 416, 376 A.2d 670 (invalidation of all time limits in accidental death provisions).

It is clear on review of the many arguments that favor and oppose the 90-day restriction that continued approval is best left to the Department of Insurance and the legislature. The regulation of insurance has long been the prerogative of the legislature, and we should not usurp that authority. Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361.

Because of the use of a 90-day limitation in a double indemnity accident clause of a life insurance policy is not clearly against public policy, the judgment of the appellate court is reversed and the judgment of the circuit court of Sangamon County is affirmed.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE CLARK,

dissenting:

I would affirm the appellate court for the reasons stated there. 54 Ill. App. 3d 192, 194-97.

The majority opinion has amassed an impressive array of cases and arguments supporting the 90-day limitation on double or additional indemnity payments in life insurance policies and evidencing that the limitation is not against public policy. Moreover, the majority’s view that deference, not absolute, should be given to decisions, made by the Director of the Department of Insurance pursuant to legislative command, is correct. (Ill. Rev. Stat. 1977, ch. 73, pars. 755, 1013; Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361.) However, I am not persuaded by the majority’s implication that the Director’s approval of the 90-day limitation was the only reasonable exercise of his discretion. I believe that consideration of public policy dictates disapproval of the 90-day limitation: “[W] henever any contract conflicts with the morals of the time, and contravenes any established interest of society, it is void as being against public policy.” 54 Ill. App. 3d 192, 196.

In Burne v. Franklin Life Ins. Co. (1973), 451 Pa. 218, 221-24, 301 A.2d 799, 801-02, the Supreme Court of Pennsylvania said:

. “There are strong public policy reasons which militate against the enforceability of the ninety day limitation. The provision has its origins at a much earlier stage of medicine. Accordingly, the leading case construing the provision predates three decades of progress in the field of curative medicine. Advancements made during that period have enabled the medical profession to become startlingly adept at delaying death for indeterminate periods. Physicians and surgeons now stand at the very citadel of death, possessing the awesome responsibility of sometimes deciding whether and what measure should be used to prolong, even though momentarily, an individual’s life. The legal and ethical issues attending such deliberations are gravely complex.
The result reached by the trial court presents a gruesome paradox indeed — it would permit double indemnity recovery for the death of an accident victim who dies instantly or within ninety days of an accident, but would deny such recovery for the death of an accident victim who endures the agony of prolonged illness, suffers longer, and necessitates greater expense by his family in hopes of sustaining life even momentarily beyond the ninety day period. To predicate liability under a life insurance policy upon death occurring only on or prior to a specific date, while denying policy recovery if death occurs after that fixed date, offends the basic concepts and fundamental objectives of life insurance and its [sic] contrary to public policy. Hence, the ninety day limitation is unenforceable.
*** [T] he decisions as to what medical treatment should be accorded an accident victim should be unhampered by considerations which might have a tendency to encourage something less than the maximum medical care on penalty of financial loss if such care succeeds in extending life beyond the 90th day. All such factors should, wherever possible, be removed from the antiseptic halls of the hospital. Rejection of the arbitrary ninety day provision does exactly that.
*** [Virtually every *** case [which has] construed a ninety day limitation provision, is based on considerations which have no pragmatic applicability to the factual situation here. The earlier judicial interpretation of the ninety day provision was that its underlying purpose was to govern situations where there existed some possible uncertainty over whether injuries sustained in an accident would actually result in death. The ninety day provision attempted to delineate a line governing cases where the injuries may or may not cause death. Ninety days was the arbitrary period advanced by the carrier within which to ascertain whether death will in fact result from the accident.” (Emphasis added.)

I agree with those statements. Accord, Karl v. New York Life Ins. Co. (1977), 154 N.J. Super. 182, 381 A.2d 62. See Note, Death Be Not Proud—The Demise of Double Indemnity Time Limitations, 23 DePaul L. Rev. 854 (1974).

I further believe that an insured is placed at a distinct disadvantage, as is frequently the case where insurance contracts and policies are concerned, of not having been able to negotiate any of the provisions. The 90-day limitation “within the provision is not reached by process of negotiation between the parties but is a standard time which the individual must accept if he desires the accidental death protection.” (23 DePaul L. Rev. 854, 861.) The insurance applicant is relegated to the role of either adhering to or rejecting, but not changing or amending, a standardized contract drafted by a party with greater bargaining strength.

The majority has missed an opportunity to establish a more humane practice of permitting additional indemnity recovery where causation is not at issue. Modern medical technology and medical ethics have dictated a public policy which requires terminating adherence to an arbitrary time limit devised decades ago.

MR. CHIEF JUSTICE WARD joins in this dissent.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 50684.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ALBERT BANKS, Appellee.

      Opinion filed January 26, 1979.

      William J. Scott, Attorney General, of Springfield, and Clyde L. Kuehn, State’s Attorney, of Belleville (Donald B. Mackay, Melbourne A. Noel, Jr., and Dale M. Bennett, Assistant Attorneys General, of Chicago, and Bruce D. Irish and Raymond F. Buckley, Jr., of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Charles L. Grotts, Assistant Public Defender, of Belleville, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The St. Clair County grand jury, in September 1975, charged the defendant, Albert Banks, and his wife, Debra Banks, with aggravated battery, and with robbery “in that they did take property, being two (2) rings from the person or presence of Zilphia Lauderdale, by the use of force” on August 11, 1975. Later the court granted a motion for severance. Well over two years after the indictment, the defendant’s motion to dismiss the count of robbery was granted by the circuit court “for failure to state the offense of Robbery in that Count I of the indictment fails to allege the necessary element of intent to permanently deprive the victim of the use or benefit of the property pursuant to People v. White” (1977), 67 Ill. 2d 107. Although the court gave the State leave to amend, the State refused and appealed (58 Ill. 2d R. 604(a)(1)). We allowed direct appeal to this court (58 Ill. 2d R. 302(b)).

The State urges us either to overrule People v. White (1977), 67 Ill. 2d 107, because, in its view, that decision’s holding that robbery is a specific intent crime was incorrect, or, at least, to modify White because, the State contends, the concept of permanent deprivation was not essential to the resolution of the case in White nor intended by the legislature. Alternatively, the State asks that White be applied prospectively. The defendant maintains permanent deprivation is crucial, both in White and here, and necessitates an explicit statement in a charging instrument. This is so, he believes, because permanent deprivation is an essential part of the specific intent to deprive a person of property; and the defendant planned to introduce evidence at trial of his intention of returning the rings to the alleged victim who, he claims, had taken credit cards from him and his wife.

We see the issue as whether the specific intent to permanently deprive a person of his or her property is an element which must be found present at the time of robbery, and must be charged in the indictment. In other words, whether People v. White should be overruled or modified.

The statutory provision for robbery states that:

“(a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.
(b) Sentence.
Robbery is a Class 2 felony.”
“(a) A person commits armed robbery when he violates Section 18 — 1 while armed with a dangerous weapon.
(b) Sentence.
Armed robbery is a Class 1 felony for which an offender may not be sentenced to death.” Ill. Rev. Stat.
1975, ch. 38, pars. 18-1, 18-2.

In People v. White (1977), 67 Ill. 2d 107, 119-20, the defendant, armed with a revolver and accompanied by an accomplice, had entered a motel, jumped over the desk, taken money from the cash register, and attempted to flee as police arrived. He argued that his intoxication had prevented formation of “the requisite intent to commit the offense” of robbery. (67 Ill. 2d 107, 109.) Neither the circuit court nor the appellate court was persuaded, the latter holding that intent was not an element of robbery, so that intoxication could not be a defense. This court held, to the contrary, that “the intent to deprive the person from whom the property is taken permanently of its use or benefit is an element” of robbery (67 Ill. 2d 107, 117), and that intoxication is a defense (67 Ill. 2d 107, 118-19). This court affirmed the appellate court, however, because the evidence insufficiently established negation of the intent by intoxication.

A literal reading of sections 18—1 and 18—2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, pars. 18—1, 18—2), quoted above, indicates permanent deprivation is not an essential character of the crime of robbery. However, at common law, it was. In Hall v. People (1898), 171 Ill. 540, 542, this court pointed out the distinction between larceny and robbery: “[T] he gist of the offense [of robbery] is the force or intimidation, and the taking from the person, against his will, a thing of value belonging to the person assaulted.” (Accord, e.g., Burke v. People (1893), 148 Ill. 70, 74, and People v. White (1977), 67 Ill. 2d 107, 110.) That is, the elements of robbery were the same as larceny plus two: (1) a taking from the person or presence of the victim (2) by force or intimidation. (W. LaFave & A. Scott, Criminal Law 692 (1972).) One of the elements of larceny at common law was the intent to deprive the owner of property permanently. (People v. De Stefano (1961), 23 Ill. 2d 427, 430; see People v. Pastel (1923), 306 Ill. 565, 568; cf. Ill. Rev. Stat. 1977, ch. 38, par. 16—1(d).) Hence, permanent deprivation was perceived as essential to the offense of robbery at common law. W. LaFave & A. Scott, Criminal Law 694 n.15 (1972).

Yet the concept of permanent deprivation was not, and is not, as uniformly accepted as that last statement might imply — and for good reason. It would be a dangerous policy indeed were the law to countenance the forcible but temporary taking by one person, with a claim or demand, real or imagined, from another. (M. Bassiouni, Criminal Law 337 (1978).) To secure a debt or, as aHeged here by the defendant, to guarantee the return of an object, allegedly taken from the defendant by the victim, simply does not justify the seizure of another’s property by the exercise of intimidation, sometimes violent. “There would be no longer need for courts of justice. Every creditor [or claimant] would carry his court of appeal in his hip pocket!” (Annot., 135 Am. St. Rep. 474, 487 (1911). Accord, W. LaFave & A. Scott, Criminal Law 694 n.14 (1972). See 36 C.J. Larceny secs. 105, 106 (1924).) Cases defining robbery simply did not mention permanent deprivation. (E.g., People v. Carpenter (1924), 315 Ill. 87, 89, People v. Steenbergen (1964), 31 Ill. 2d 615, 619.) Admittedly the failure to mention permanent deprivation is hardly decisive. Yet those cases emphasize what is essential to the offense of robbery, without precisely holding so: depriving a person, in his or her presence, of property, through force or intimidation. As a matter of policy, we do not think the duration of the deprivation is pertinent nor intended to be so by the legislature. (See People v. Williams (1961), 23 Ill. 2d 295, 301-02, and People v. Nevin (1931), 343 Ill. 597, 600.) The various definitions of “deprivation” or “deprive” emphasize this; for example, Webster’s Third New International Dictionary 606 (1971) defines “deprive” as “to take away: remove, destroy; to take something away from: divest, bereave; *** to keep from the possession, enjoyment, or use of something.” Black’s Law Dictionary 529 (rev. 4th ed. 1968) defines “deprive” as “[t]o take *** a taking altogether, a seizure, a direct appropriation, dispossession of the owner. *** It connotes want of consent.” What is relevant then is the substantial interference, temporary or permanent, with property rights without consent. And what is intended by the legislature is “to prevent the use of force and threats against persons as a means of inducing them to part with their property. The intent to steal may include the intent to permanently deprive but is not limited to it and extends to the taking away, stealing, or even preventing the owner from his or her continued and free enjoyment of his property.” (M. Bassiouni, Criminal Law 336-37 (1978).) Therefore, we conclude that, on its facts, White held that robbery requires a specific intent to deprive another, in his or her presence, of property, and that therefore intoxication would be a defense. Permanent deprivation was merely an adjunct to that holding, and is not required by section 18 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 18-1).

There remains for our consideration the State’s argument that White incorrectly held that robbery is a specific intent crime. This court’s deliberate analysis in White determined that the specific intent to deprive was an element of robbery despite decisions to the contrary. (67 Ill. 2d 107, 109-17.) The confusion developed, according to this court, because of its misreading, in People v. Emerling (1930), 341 Ill. 424, of People v. Hildebrand (1923), 307 Ill. 544. (67 Ill. 2d 107, 112-15.) From 1874 until 1919, the robbery statute provided:

“Robbery is the felonious and violent taking of money, goods or other valuable thing, from the person of another by force or intimidation. Every person guilty of robbery shall be imprisoned in the penitentiary not less than one year nor more than fourteen years; or if he is armed with a dangerous weapon, with intent, if resisted, to kill or maim ***.” (Emphasis added.) (Ill. Rev. Stat. 1874, ch. 38, par. 246.)

Two requirements of specific intent are set out above, according to White — the second specific intent referring to armed robbery (67 Ill. 2d 107, 114). White interpreted “felonious *** taking” to mean specific intent because larceny, considered a lesser included offense of robbery, is a specific intent crime, and because People v. Ware (1961), 23 Ill. 2d 59, 62, equated “felonious *** taking” with “criminal purpose.” (67 Ill. 2d 107, 110-12. Accord, Guffey v. Continental Casualty Co. (1921), 109 Kan. 61, 65, 197 P. 1098, 1099. See Note, Illinois Robbery Statute Construed: The Introduction of a Specific Intent Element—People v. White, 27 DePaul L. Rev. 837, 839-42 (1978).) People v. Hildebrand (1923), 307 Ill. 544, 555, had held that no question of intent to kill or maim, required by the robbery statute since 1874, was involved because that “second intent” of the robbery statute had been deleted in 1919 by the legislature (1919 Ill. Laws 427, 431; Hurd’s Rev. Stat. 1919, ch. 38, par. 246). People v. Emerling (1930), 341 Ill. 424, 428-29, then cited Hildebrand as authority for its holding that specific intent to rob or deprive need not be charged or proved. This court, in White, concluded that, on the contrary, specific intent to deprive had always been a requisite element of robbery; that Hildebrand had not held otherwise; and that Emerling, accordingly, was incorrect. This court also concluded, therefore, that at the time the Criminal Code of 1961 was adopted, specific intent had been a requisite element of robbery. Because the legislature intended no change (Ill. Ann. Stat., ch. 38, par. 18—1, Committee Comments, at 213 (Smith-Hurd 1970)), this court reasoned in White (67 Ill. 2d 107, 114-15) that specific intent to deprive has remained a requisite element.

Although the analysis in White is enticing, this court attributed to the legislature knowledge or an intention it never had when enacting the Criminal Code of 1961. Decisions prior to (and after) the enactment have held that specific intent is not an element of robbery: People v. Cassidy (1946), 394 Ill. 245, 246; People v. Johnson (1931), 343 Ill. 273, 277 (where intoxication, as in White, was involved); and People v. Bartz (1930), 342 Ill. 56, 67 (where intoxication was involved). (Those cases also misread Hildebrand, but that is not pertinent here. What is relevant is the legislature’s intention at the time it enacted the Code. At that time robbery was considered a general intent crime; and the legislature intended no change.) (Accord, e.g., People v. Whelan (1971), 132 Ill. App. 2d 2, 3-4; People v. Marshall (1968), 96 Ill. App. 2d 124, 127.) Other jurisdictions have interpreted similarly worded robbery statutes as requiring only general intent. (E.g., State v. Thompson (1976), 221 Kan. 165, 558 P.2d 1079, and Traxler v. State (1952), 96 Okla. Crim. 231, 251 P.2d 815.) Neither section 18—1 nor section 18—2 enumerates a requisite element of specific intent. (Ill. Rev. Stat. 1975, ch. 38, pars. 18—1, 18—2.) The committee comments to section 18—1, prior to this court’s holding in White, unquestionably state there is no such requirement: “This section codifies the law in Illinois on robbery and retains the same penalty. No change is intended. *** No intent element is stated as the taking by force or threat of force is the gist of the offense and no intent need be charged. (See People v. Emerling, 341 Ill. 424, 173 N.E. 474 (1930).)” (Ill. Ann. Stat., ch. 38, par. 18—1, Committee Comments, at 213 (Smith-Hurd 1970).) We feel compelled to rectify our error and defer to legislative prerogative. For these reasons, we hold that robbery does not require specific intent. People v. White (1977), 67 Ill. 2d 107, is overruled.

We turn finally to the question of whether the indictment sufficiently stated the offense of robbery. We believe it did. This court has consistently held that an indictment which charges an offense in the language of the statute is sufficient if the words of the statute particularize the offense so that an accused is apprised, with reasonable certainty, of the precise offense. (McCutcheon v. People (1873), 69 Ill. 601, 605-06; People v. Isaacs (1967), 37 Ill. 2d 205, 210; People v. Mills (1968), 40 Ill. 2d 4, 11; People v. Dickerson (1975), 61 Ill. 2d 580, 582.) Such specificity is required in order to inform the accused, thus facilitating a competent defense preparation, and to permit the accused to plead a judgment as a bar to a future prosecution for the same offense. (People v. Harvey (1973), 53 Ill. 2d 585, 588.) On the other hand, this court has discouraged verbosity:

“[T] hese great niceties and strictness in pleadings should only be countenanced when it is apparent defendant might be surprised on the trial or unable to meet the charge, and beyond this particularity of specification, might furnish a means of evading the law rather than defending against accusation.” McCutcheon v. People (1873), 69 Ill. 601, 605, citing Cannady v. People (1855), 17 Ill. 158, 160.

The determination of whether these standards have been met is accomplished by reference to the plain and ordinary meaning of the words of the charging instrument (People v. Dickerson (1975), 61 Ill. 2d 580, 582) as read and interpreted by a reasonable person. (See People v. Beck (1976), 42 Ill. App. 3d 923, 924, in which the court found sufficient a robbery indictment which had not specified the intent to permanently deprive the victim of property, because it “would be contrary to experience and reason” to conclude that the forcible taking of money from a stranger was not done with such intent.) In the instant case, the indictment, quoted above in the first paragraph, is set out in the language of the statute (Ill. Rev. Stat. 1975, ch. 38, par. 18—1). It would be contrary to reason and experience to assume that, first, the defendant was not informed of the precise charge against him and, second, that the intent to deprive a person of his or her property could not be inferred from the language employed.

For the reasons stated, the circuit court’s order dismissing the count of robbery was in error, and we reverse and remand for further proceedings.

Reversed and remanded.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 50358.
    JOHN DARRILL CONNELLY, Appellee, v. UNIROYAL, INC., et al.—(Uniroyal Englebert Belgique, S.A., Appellant.)

      Opinion filed January 26, 1979.

    Modified on denial of rehearing March 30, 1979.

      David J. Gibbons and Stephen A. Gorman, of Chicago (Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd., of counsel), for appellant.
    Norton, Bonifield & Associates, of Belleville, and Peter A. Fasseas, of Chicago (Edward J. Kionka, of Columbia, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, John Darrill Connelly, brought this action in the circuit court of Cook County against defendants, Uniroyal Englebert Belgique, S.A. (hereafter Englebert), and Uniroyal, Inc. (hereafter Uniroyal), and other defendants not involved in this appeal, seeking to recover damages for personal injuries. The circuit court denied both Englebert’s motion to quash the service of summons and Uniroyal’s motion for summary judgment and in its orders included the findings requisite to an application for leave to appeal. (S. Ct. Rule 308 (58 Ill. 2d R. 308).) The appellate court allowed defendants’ application for leave to appeal, affirmed as to Englebert, and reversed as to Uniroyal (55 Ill. App. 3d 530), and we have allowed defendant Englebert’s petition for leave to appeal.

It is alleged in plaintiff’s complaint, as amended, that in November 1970 he suffered personal injuries when a tire manufactured by Englebert and bearing Uniroyal’s trademark failed while his 1969 Opel Kadett was being operated on a highway in Colorado. Plaintiff’s father had purchased the automobile in September 1969 from a Buick dealer in Evanston. The tire bore the name “Uniroyal” and the legend “made in Belgium” and admittedly was manufactured by defendant Englebert, sold in Belgium to General Motors, and subsequently installed on the Opel when it was assembled at a General Motors plant in Belgium. The automobile was shipped to the United States for distribution by General Motors. It appears from answers to interrogatories that between the years 1968 and 1971 in excess of 4,000 Opels imported into the United States from Antwerp were delivered to dealers in Illinois each year; that in each of those years between 600 and 1,320 of the Opels delivered to Illinois dealers were equipped with tires manufactured by Englebert, and that the estimated number of Englebert tires mounted on Opels delivered in Illinois within each of those years ranged from 3,235 to 6,630.

Defendant Englebert alleged in its motion to quash the service of process that its principal place of business is in Belgium; that it is not registered to do business and has never had an agent, employee, representative or salesman in Illinois; that it has never possessed or controlled any real property or maintained any office or telephone listing in Illinois; that it has never sold or shipped any products into Illinois, either directly or indirectly; and that it has never advertised in Illinois. Defendant avers that the summons is “a nullity and [has] no legal effect in that Englebert Belgique has not done any of the acts enumerated in the Illinois Long Arm statute (ch. 110, sec. 17. Illinois Revised Stat.), nor has it otherwise submitted itself to the jurisdiction of the courts of this state”; and that “there is a total lack of contact between Englebert Belgique and the State of Illinois so that an assertion of jurisdiction by this court over this defendant would be contrary to substantial justice and would violate the rights of this defendant under the Constitutions of the United States of America and of the State of Illinois.”

The relevant statutes in pertinent part provide:

“Sec. 13.3. Service on private corporations.
A private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of said corporation found anywhere in the State; or (2) in any other manner now or hereafter permitted by law. A private corporation may also be notified by publication and mail in like manner and with like effect as individuals.” Ill. Rev. Stat. 1971, ch. 110, par. 13.3.
“Sec. 16. Personal service outside State.
(1) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication.” Ill. Rev. Stat. 1971, ch. 110, par. 16(1).
“Sec. 17. Act submitting to jurisdiction — Process.
(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(a) The transaction of any business within this State;
(b) The commission of a tortious act within this State;
* * *
(2) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this Section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State.
(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this Section.
(4) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law.” Ill. Rev. Stat. 1971, ch. 110, par. 17.

In affirming the order denying Englebert’s motion to quash, following a review of the authorities the appellate court said;

“Based on these authorities, we conclude that the phrase ‘commission of a tortious act’ as employed in the long-arm statute applies not only to an injury which occurs in Illinois, but also to all elements and conduct which significantly relate to or have significant causal connection with the injury suffered.” 55 Ill. App. 3d 530, 535.

In Braband v. Beech Aircraft Corp. (1978), 72 Ill. 2d 548, we considered the question whether Beech Aircraft was amenable to process in this State in an action for the wrongful deaths of two residents of Illinois who were killed when an airplane manufactured by Beech crashed in Canada. We noted that in Shaffer v. Heitner (1977), 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569, the Supreme Court had held “that the standards elucidated in International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154, continued to be the test of a State’s jurisdiction over a foreign corporation. The standards prescribed in International Shoe Co. are that ‘due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ (326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158.)” 72 Ill. 2d 548, 553-54.

We quoted from Shaffer v. Heitner the Supreme Court’s comment that:

“[T] he inquiry into the State’s jurisdiction over a foreign corporation appropriately focused not on whether the corporation was ‘present’ but on whether there have been
‘such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there.’ [326 U.S. 310, 317, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158.]
Mechanical or quantitative evaluations of the defendant’s activities in the forum could not resolve the question of reasonableness:
‘Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.’ [326 U.S. 310, 319, 90 L. Ed. 95, 104, 66 S. Ct. 154, 160.] ” 433 U.S. 186, 203-04, 53 L. Ed. 2d 683, 697, 97 S. Ct. 2569, 2580.

We reviewed this court’s earlier opinion in Nelson v. Miller (1957), 11 Ill. 2d 378, wherein the court said:

“The foundations of jurisdiction include the interest that a State has in providing redress in its own courts against persons who inflict injuries upon, or otherwise incur obligations to, those within the ambit of the State’s legitimate protective policy. The limits on the exercise of jurisdiction are not ‘mechanical or quantitative’ [International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945),) but are to be found only in the requirement that the provisions made for this purpose must be fair and reasonable in the circumstances, and must give to the defendant adequate notice of the claim against him, and an adequate and realistic opportunity to appear and be heard in his defense.” (11 Ill. 2d 378, 384.)

We agreed with the statement in Nelson that “Sections 16 and 17 of the Civil Practice Act reflect a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process clause.” 11 Ill. 2d 378, 389.

In Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, this court said:

“As a general proposition, if a corporation elects to sell its products for ultimate use in another State, it is not unjust to hold it answerable there for any damage caused by defects in those products. Advanced means of distribution and other commercial activity have made possible these modem methods of doing business, and have largely effaced the economic significance of State lines. By the same token, today’s facilities for transportation and communication have removed much of the difficulty and inconvenience formerly encountered in defending lawsuits brought in other States.
Unless they are applied in recognition of the changes brought about by technological and economic progress, jurisdictional concepts which may have been reasonable enough in a simpler economy lose their relation to reality, and injustice rather than justice is promoted. Our unchanging principles of justice, whether procedural or substantive in nature, should be scrupulously observed by the courts. But the rules of law which grow and develop within those principles must do so in the light of the facts of economic life as it is lived today. Otherwise the need for adaptation may become so great that basic rights are sacrificed in the name of reform, and the principles themselves become impaired.
The principles of due process relevant to the issue in this case support jurisdiction in the court where both parties can most conveniently settle their dispute.” 22 Ill. 2d 432, 442-43.

In support of its contention that to assert jurisdiction in this case would be violative of due process, Englebert argues that under Hanson v. Denckla (1958), 357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228, the requirements of due process are not satisfied unless a corporation has exercised the privilege of conducting activities within the State and thereby enjoyed the benefits and protections of the laws of that State and that there has been no action on its part by which it purposely availed itself of the privilege of conducting activities within Illinois and thereby invoked the benefits and protections of its laws.

The “quality and nature of the activity” in which a foreign corporation must engage within a State in order to be subject to the jurisdiction of its courts has been the subject of much litigation. (See Annots., 19 A.L.R.3d 13 (1968), 24 A.L.R.3d 532 (1969).) The diametrically opposed and irreconcilable views on the question whether a manufacturer whose product has been distributed in a State by a third party is insulated from in personam jurisdiction under the due process clause of the fourteenth amendment in a product liability case because the sale and distribution of the product into the forum State was through an intermediary, rather than by the manufacturer, are well demonstrated by the majority and dissenting opinions in the cases of Hudson v. Fehr Brothers, Inc. (8th Cir. 1978), 584 F.2d 833, and Hapner v. Rolf Brauchli, Inc. (1978), 404 Mich. 160, 273 N.W.2d 822. We find persuasive the opinion of the Supreme Court of California in Buckeye Boiler Co. v. Superior Court (1969), 71 Cal. 2d 893, 458 P.2d 57, 80 Cal. Rptr. 113. In Buckeye the court held that engaging in economic activity within the State “as a matter of commercial actuality” (71 Cal. 2d 893, 902, 458 P.2d 57, 64, 80 Cal. Rptr. 113, 120) met the requirement of Hanson v. Denckla that there be purposeful activity within the State (357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228, 1240). The court said:

“A manufacturer engages in economic activity within a state as a matter of ‘commercial actuality’ whenever the purchase or use of its product within the state generates gross income for the manufacturer and is not so fortuitous or unforeseeable as to negative the existence of an intent on the manufacturer’s part to bring about this result. (See, e.g., Gray v. American Radiator & Standard Sanitary Corp. [22 Ill. 2d 432, 442]; Metal-Matic, Inc. v. District Court, 82 Nev. 263 [415 P.2d 617]; DiMeo v. Minster Machine Co., 225 F. Supp. 569 [mere presence of product in state not enough to sustain jurisdiction]; Comment, supra, 63 Mich. L. Rev. 1028, 1033-1034; but see Gill v. Surgitool, Inc., 256 Cal. App. 2d 583, 588 [64 Cal. Rptr. 207].)
A manufacturer’s economic relationship with a state does not necessarily differ in substance, nor should its amenability to jurisdiction necessarily differ, depending upon whether it deals directly or indirectly with residents of the state. ‘With the increasing specialization of commercial activity and the growing interdependence of business enterprises it is seldom that a manufacturer deals directly with consumers in other States. The fact that the benefit he derives from [their] laws is an indirect one, however, does not make [those laws] any the less essential to the conduct of his business; and it is not unreasonable, where a cause of action arises from alleged defects in his product, to say that the use of such products in the ordinary course of commerce is sufficient contact with [such states] to justify a requirement that he defend [there].’ (Gray v. American Radiator & Standard Sanitary Corp. [22 Ill. 2d 432,442].)
A manufacturer whose products pass through the hands of one or more middlemen before reaching their ultimate users cannot disclaim responsibility for the total distribution pattern of the products. If the manufacturer sells its products in circumstances such that it knows or should reasonably anticipate that they will ultimately be resold in a particular state, it should be held to have purposefully availed itself of the market for its products in that state.” 71 Cal. 2d 893, 902, 458 P.2d 57, 64, 80 Cal. Rptr. 113, 120.

Defendant Englebert’s tires, introduced into the stream of commerce in obvious contemplation of their ultimate sale or use in other nations or States, came into Illinois on a regular basis and in substantial numbers, and we hold that its activities rendered it amenable to process under sections 13.3 and 16 of the Civil Practice Act. Given the nature and quality of its activities, we hold further that Englebert has purposefully invoked the benefits and protections of the law of Illinois, that as required by International Shoe and Shaffer there were present “such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there” (326 U.S. 310, 317, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158; 433 U.S. 186, 203, 53 L. Ed. 2d 683, 697, 97 S. Ct. 2569, 2580), and that requiring it to defend this action does not offend “traditional notions of fair play and substantial justice” (326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158). The judgment of the appellate court affirming the order of the circuit court denying Englebert’s motion to quash the service of summons is affirmed. We do not reach the question whether defendant committed a tortious act in Illinois within the contemplation of section 17(l)(b) of the Civil Practice Act and express no opinion concerning the correctness of the appellate court’s holding on that issue.

We consider next whether the appellate court erred in reversing the order of the circuit court denying Uniroyal’s motion for summary judgment. Plaintiff contends that the “same principles which justify liability for wholesalers and retailers (who are components of the distributive chain ‘downstream’ from the manufacturer) compel liability on the part of the entity which bears overall responsibility for the entire enterprise which produces and markets the product — the ‘upstream’ parent under whose aegis the entire enterprise functions.” Plaintiff bases this conclusion on the following assertions: “(1) Uniroyal sits at the pinnacle of the enterprise which produced the tire in question; (2) Uniroyal authorized the use of its trademark and trade name on the product in question, and thereby lent its good will and at least the appearance of responsibility for the product; (3) As one component of the Uniroyal enterprise, UEB [Englebert] and its products directly or indirectly affect the corporate financial health of the Uniroyal enterprise, and the profits from the sales of this and other UEB [Englebert] products ultimately enure to the benefit of Uniroyal [;] [and] (4) Uniroyal had the right to exercise control over the manufacturing and marketing of UEB [Englebert] products, including the tire in question.”

It appears from Uniroyal’s motion for summary judgment, the affidavits, and answers to interrogatories that at the time the tire in question was manufactured a wholly owned subsidiary of Uniroyal owned approximately 95%, and presently owns approximately 96%, of the outstanding shares of Englebert; that in 1966, Englebert Societe Anónyme became known as Uniroyal Englebert Belgique, S.A.; that in 1964 Uniroyal granted Englebert the nonexclusive license to use its registered trade name, “UNIROYAL”; and that in a contract, dated October 1, 1962, between Uniroyal [formerly known as United Rubber Co.] and Englebert, Uniroyal was to make available to Englebert detailed information as to the methods, processes and formulas used in the manufacture of tires and tubes and other products manufactured by Uniroyal. Also included was a provision whereby Uniroyal would supply technical services and instruction to Englebert, including recommendations and assistance in purchasing equipment, processes to improve operations, supplying of specifications, including testing procedure, and information concerning the construction of the products covered by the agreement, including “patterns and prints where necessary to describe constructions.” Englebert was free to send representatives to visit Uniroyal’s plant and investigate manufacturing methods and processes and formulas used in those plants. The agreement also provided for quarterly payments to Uniroyal and that Englebert “in its advertising *** may publicize *** the facts that in its manufacturing practices it practices and employs the manufacturing and technical methods used in the United States by [Uniroyal] and that Englebert adopted these methods after investigation and study of manufacturing and technical methods followed by manufacturers in the most promising and progressive.” Englebert was required to permit Uniroyal’s representatives “to have knowledge at all times of the goods and manufacturing operations *** associated with its business identified with the trademark and logo,” and under certain conditions preference was to be accorded Uniroyal in Englebert’s purchases of materials produced by Uniroyal.

It appears further that Englebert maintained its own books and accounts separate and distinct from Uniroyal, had its own banking sources and line of credit, and did not share common manufacturing facilities, offices, addresses, telephone numbers or employees with Uniroyal; that there were no employees of Uniroyal at Englebert’s plant in Belgium and Uniroyal had no control or direction over the production at that plant; that Englebeit’s liability insurance policy was separate and distinct from any insurance maintained by Uniroyal; and that there had never been any joint meetings of the separate boards of the directors of Uniroyal and Englebert. Uniroyal also stated that it has never advertised for sale any product produced by Englebert and was never in possession of the tire here involved; that all records which may exist relating to the tire have been in the exclusive possession of Englebert; and that Uniroyal has made no warranty of any kind to any person with respect to this tire.

The appellate court held that despite Uniroyal’s substantial ownership of Englebert’s stock the two corporations had always operated as separate entities and there was no basis to impose vicarious liability on Uniroyal. (55 Ill. App. 3d 530, 540.) We agree. We find nothing in the pleadings, depositions or answers to interrogatories which persuades us that the relationship between these two corporations arising out of stock ownership or representation on the board of directors provided a sufficient basis for the imposition of vicarious liability on Uniroyal.

We consider next the question whether, as contended by plaintiff, the doctrine of strict liability approved in Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, is applicable to Uniroyal on the basis that the allegedly defective tire bore its trademark.

In Suvada the court said:

“In addition to the manufacturer, liability in tort for a defective product extends to a seller, (Lindroth v. Walgreen Co. 407 Ill. 121,) a contractor, (Paul Harris Furniture Co. v. Morse, 10 Ill. 2d 28,) and a supplier, (Watts v. Bacon & Van Buskirk, 18 Ill. 2d 226,) one who holds himself out to be the manufacturer, (Lill v. Murphy Door Bed Co. 290 Ill. App. 328,) the assembler of parts (Rotche v. Buick Motor Co. 358 Ill. 507) and the manufacturer of a component part. (Gray v. American Radiator and Standard Sanitary Corp. 22 Ill. 2d 432.) Lack of privity of contract not being a defense in a tort action against the manufacturer, it is not a defense in an action against any of these parties.” (32 Ill. 2d 612, 617.)

In Dunham v. Vaughan & Bushnell Mfg. Co. (1969), 42 Ill. 2d 339, the court held that strict liability applied to the wholesaler defendant “despite the fact that the box in which this hammer was packaged passed unopened through Belknap’s [the wholesaler’s] warehouse.” (42 Ill. 2d 339, 344.) Our decision in Crowe v. Public Building Com. (1978), 74 Ill. 2d 10, confirms that the doctrine of strict liability applies not only to the lessor, but also to the former lessor of a defective product.

In support of his argument plaintiff cites Restatement (Second) of Torts, section 400 (1965), which provides:

“One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.”

Cases cited by plaintiff in which the owner of a trademark has been held liable for a defective product manufactured by another are Wojciuk v. United States Rubber Co. (1961), 13 Wis. 2d 173, 108 N.W.2d 149, Forry v. Gulf Oil Corp. (1968), 428 Pa. 334, 237 A.2d 593, Dudley Sports Co. v. Schmitt (1972), 151 Ind. App. 217, 279 N.E.2d 266, and Carter v. Joseph Bancroft & Sons Co. (E.D. Pa. 1973), 360 F. Supp. 1103, and cases collected at 51 A.L.R.3d 1344 (1973).

Uniroyal responds that section 400 of the Restatement is not here applicable because Uniroyal was not a seller of the tire, and that in all the cases cited by plaintiff the owner of the trademark held liable had in some manner constituted a link in the chain of the product’s distribution. From this, defendant argues, that absent some participation in the chain of distribution defendant cannot be held liable.

Although it appears that in the cases cited by plaintiff the defendants participated in the distribution of the product, we do not consider that such participation is an essential element in order that the doctrine of strict liability apply. Nor do we agree that in Forry v. Gulf Oil Corp. (1968), 428 Pa. 334, 237 A.2d 593, and Carter v. Joseph Bancroft & Sons Co. (E.D. Pa. 1973), 360 F. Supp. 1103, such participation was found to be an essential element. The seller in Forry was Gulf Tire and Supply Co., and a careful reading of the opinion shows that the court drew no distinction between that corporation and Gulf Oil Corporation, whose trademark the tire in that case bore. In Carter it does not appear that the liability of defendants, Indiana Head, Inc., and Joseph Bancroft & Sons Co., arose from actions other than licensing the use of the trademark “Ban-Lon.”

In Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, 82, the court said, “The major purpose of strict liability is to place the loss caused by defective products on those who create the risk and reap the profit by placing a defective product in the stream of commerce, regardless of whether the defect resulted from the ‘negligence’ of the manufacturer.” 62 Ill. 2d 77, 82.

A licensor is an integral part of the marketing enterprise, and its participation in the profits reaped by placing a defective product in the stream of commerce (2 J. Dooley, Modern Tort Law sec. 32.67, at 340 (1977)) presents the same public policy reasons for the applicability of strict liability which supported the imposition of such liability on wholesalers, retailers and lessors. The societal purposes underlying Suvada mandate that the doctrine be applicable to one who, for a consideration, authorizes the use of his trademark, particularly when, as here, the product bears no indication that it was manufactured by any other entity. The fact that the defendant may not have been a link in the chain of distribution is wholly irrelevant, for as the court, referring to a seller, contractor or supplier, said in Suvada, “Lack of privity of contract not being a defense in a tort action against the manufacturer, it is not a defense in an action against any of these parties.” 32 Ill. 2d 612, 617.

In Econo Lease, Inc. v. Noffsinger (1976), 63 Ill. 2d 390, 393, the court said:

“A motion for summary judgment will be granted if the pleadings, depositions, admissions and affidavits on file reveal that there is no genuine issue as to any material fact and that the movant is entitled to a judgment or decree as a matter of law. (Ill. Rev. Stat. 1975, ch. 110, par. 57(3); Carruthers v. B.C. Christopher & Co., 57 Ill. 2d 376.) A reviewing court must reverse an order granting summary judgment if it is determined that a material question of fact does exist.”

Because we have held that defendant Uniroyal’s participation in the chain of distribution is not an essential element of strict liability, we are unable to say that there are no material questions of fact presented by this record.

For the reasons stated, insofar as it reversed the order of the circuit court denying defendant Uniroyal’s motion for summary judgment, the judgment of the appellate court is reversed. The orders of the circuit court are affirmed, and the cause is remanded to that court for further proceedings consistent with this opinion.

Appellate court affirmed in part and reversed in part; circuit court affirmed; cause remanded.


author: MR. JUSTICE RYAN

text:
    (No. 50757.
    DALE BUNNEY et al., Appellants and Appellees, v. THE INDUSTRIAL COMMISSION et al.-(Howard Roll Long, Appellee and Appellant.)

      Opinion filed April 3, 1979.

      Rehearing denied May 30, 1979.

      UNDERWOOD, J., took no part.

      Heyl, Royster, Voelker & Allen, of Springfield (Gary M. Peplow, of counsel), for Dale Bunney et al.

    Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Ralph Schroeder, of counsel), for Howard Roll Long.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Howard Long has sought an award under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) and the Workmen’s Occupational Diseases Act (Ill. Rev. Stat. 1973, ch. 48, par. 172.36 et seq.) for a lung condition allegedly contracted from his work for Dale Bunney at the Saybrook Grain Company. An arbitrator awarded compensation under the Workmen’s Occupational Diseases Act and dismissed the application filed under the Workmen’s Compensation Act. Both employer and employee sought review by the Industrial Commission, which affirmed the decisions of the arbitrator as to both claims. The circuit court of McLean County confirmed the decisions of the Commission. Both the employer and the employee have appealed to this court under Rule 302(a) (58 Ill. 2d R. 302(a)).

Two issues are raised by this appeal. The first is whether the Workmen’s Occupational Diseases Act (Ill. Rev. Stat. 1973, ch. 48, par. 172.36 et seq.) allows an award for aggravation of Long’s preexisting lung condition. The second is whether Long may recover under the Workmen’s Compensation Act if the Workmen’s Occupational Diseases Act award is disaUowed.

Howard Long worked at the Saybrook Grain Company from March 1969 to July 16, 1973. He had only a second grade education and had been employed in heavy labor jobs for more than 20 years. In July 1973, Long was 42 years old, married and had no children under 18. At Saybrook, he performed a variety of jobs common to grain elevators. He drove a truck much of the time, but also loaded and unloaded grain, worked in the grain bins and on occasion cleaned those bins with dangerous cleaning compounds. While working around large amounts of dust, Long was to have worn a small mask, but he often chose not to wear one either because it was unavailable or because he believed it was unnecessary. Long testified that in 1969 he had no significant medical problems; however, after he worked for the grain company for a time, when he breathed the dust at work he felt a burning in his chest and lungs and found it difficult to breathe. After working there for a longer period, his condition “kept getting worse and worse.” The last six months that he worked he “was getting filled up” and he “was just slowing down more and more.”

On July 17, 1973, Long stated he blacked out while sweeping the bins. Although he used the term “blacked out” he stated that he was never unconscious, “but I was past maneuvering.” He stated that he had “blacked out” on several occasions. On the following day he was examined by Dr. Que and subsequently operated on for removal of a large bullous cyst and a moderate-size bullous bleb from the left lung. All the evidence indicates that the condition of the lung requiring the surgery was the result of Long’s emphysematous condition.

At the arbitration hearing, Dr. John Lawrence, who had examined and treated Long subsequent to the surgery, testified that Long’s condition could have been caused by the grain dust at Saybrook. However, he also noted, with an equal degree of medical certainty, that Long’s condition may have been caused by his sustained smoking. Dr. Lawrence testified that Long had told him that for nearly 20 years he smoked two packs of cigarettes a day. Long testified that he smoked no more than one pack of cigarettes a day and he also smoked a pipe. Long’s theory of recovery is that the dust that he breathed at work aggravated his preexisting emphysema. Dr. Lawrence testified that in his opinion Long had a preexisting condition of pulmonary emphysema which he had before he started to work in' the dust at the elevator and that the dust and working conditions aggravated “his underlying condition.”

This claim arose under the Workmen’s Occupational Diseases Act as it existed prior to amendment in 1975 (Ill. Rev. Stat. 1973, ch. 48, par. 172.36 et seq.). That act provided:

“Ordinary diseases of life to which the general public is exposed outside of employment shall not be compensable, except where the said diseases follow as an incident of an occupational disease as defined in this Section.
A disease shall be deemed to arise out of the employment only if there is apparent to the rational mind, upon consideration of all the circumstances, a direct causal connection between the conditions under which the work is performed and the occupational disease ***.” Ill. Rev. Stat. 1973, ch. 48, par. 172.36(d).

This court has previously held that emphysema is an ordinary disease of life. (International Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d 84, 88; Rockford Transit Corp. v. Industrial Com. (1967), 38 Ill. 2d 111, 113.) In addition, under the Workmen’s Occupational Diseases Act, as it existed prior to the 1975 amendment, this court held that since emphysema is an ordinary disease of life, the mere showing that the condition of one’s employment aggravated the preexisting emphysematous condition is not sufficient to support an award for compensation. (Lewis v. Industrial Com. (1967), 38 Ill. 2d 461, 465-66; Rockford Transit Corp. v. Industrial Com. (1967), 38 Ill. 2d 111, 114.) Thus, Dr. Lawrence’s testimony, instead of supporting the Industrial Commission’s award under the Workmen’s Occupational Diseases Act, places this case squarely within the holding of Rockford Transit and Lewis. In order to sustain an award under the Workmen’s Occupátional Diseases Act for the aggravation of a preexisting disease, the aggravation must follow as an incident of an occupational disease as defined in the statute. (Hansell-Elcock Co. v. Industrial Com. (1941), 376 Ill. 151; Stewart Warner Corp. v. Industrial Com. (1941), 376 Ill. 141; Rockford Transit Corp. v. Industrial Com.) Of course, if the preexisting condition had its origin in prior employment, the aggravation of the condition by subsequent employment is compensable. (Caterpillar Tractor Co. v. Industrial Com. (1976), 63 Ill. 2d 153.) In light of this, the Workmen’s Occupational Diseases Act award is against the manifest weight of the evidence and must be reversed.

Having reversed the Workmen’s Occupational Diseases Act award, we now consider the claim for benefits under the Workmen’s Compensation Act. In International Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d 84, this court considered a claim for the aggravation of a preexisting emphysematous condition under the Workmen’s Compensation Act. The facts in that case were very similar to those involved in the case before us. In International Harvester, as in this case, the claimant was suffering from pulmonary emphysema. He had no difficulty in breathing when he started to work for his employer, and a doctor testified that the claimant’s condition was aggravated by the irritants in the air at his place of employment. In each case the employee’s condition graduaUy worsened over an extended period of time until finally he was compelled to cease working. In International Harvester this court stated of the employee:

“He did not suffer from an accidental injury within the meaning of the Act. He suffered from a gradually debilitative disease. He was aware of the manifestation of this disease more than a year before the date on which he now claims he suffered an accidental injury. He suffered no sudden disablement from the aggravation, nor was there a sudden giving way of his body structure in the manner that that term has heretofore been used by this court. As to the cause, Dinwiddie can point to no definite time, place or cause of the aggravation except to say that it occurred over the six-year span of time during which he worked as a welder for Harvester.” (56 Ill. 2d 84, 90.)

In International Harvester this court distinguished Leason v. Industrial Com. (1973), 55 Ill. 2d 486, a case which this court decided at the same term. In Leason, the claimant also suffered from pulmonary emphysema. On July 11, 1967, he was assigned to clean the furnace wherein there were noxious fumes. An oxygen mask which he had previously used for his work was not available, and he entered the area without one. He collapsed while performing the work and was taken to the hospital. The parties stipulated that the employee had suffered an accidental injury on that date. Therefore, in Leason the controlling question in International Harvester, whether the employee had sustained an accidental injury, was not in issue but had been stipulated to.

The claimant also contends that this court’s holdings in Illinois Institute of Technology v. Industrial Com. (1975), 60 Ill. 2d 64, and Ajax Buff Co. v. Industrial Com. (1974), 56 Ill. 2d 575, have overruled International Harvester. This, of course, is not correct. Illinois Institute of Technology specificaHy states that that case is dissimilar to International Harvester, pointing out that the employee in the case it was considering suffered a sudden disablement. After distinguishing its case from International Harvester, the court in Illinois Institute of Technology, in support of its holding, cited Ajax. In Ajax the employee, who suffered from a congenital aneurysm in the brain, had a stroke while at work on May 22, 1968, which the medical testimony related to the carbon monoxide in the air which the claimant constantly breathed at his place of employment. Thus, in Illinois Institute of Technology and in Ajax the employee in each case suffered an “accident” within the meaning of the statute, whereas in International Harvester, and in the case we are now considering, the employee suffered from the gradual debilitative effects of an ordinary disease of life which ultimately incapacitated him.

The Workmen’s Compensation Act is meant to provide compensation for accidental injuries. This court has in the past fairly well defined the limits of the meaning of that term. As we stated in International Harvester, if recovery under the Workmen’s Compensation Act were permitted in this case, the distinction between the Workmen’s Occupational Diseases Act and the Workmen’s Compensation Act would be blurred. The Workmen’s Occupational Diseases Act was enacted to supplement the deficiencies in the Workmen’s Compensation Act. The particular disabling factual situation in the case now before us, and in the International Harvester case, was an area that had been omitted by the legislature when it enacted the Workmen’s Occupational Diseases Act. As we noted in International Harvester:

“The net result of our conclusion in this case coupled with the decision in Rockford Transit Corp. is to deny recovery under either act for certain disabilities arising from aggravations of pre-existing ordinary diseases of life.” (56 Ill. 2d 84, 93.)

In both Rockford Transit and International Harvester, this gap in the law was noted and the legislature was invited to change the provisions of the Workmen’s Occupational Diseases Act to eliminate this unprovided-for area. The legislature has responded and has amended the Workmen’s Occupational Diseases Act effective July 1, 1975. Section 1(d) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 172.36(d)) no longer refers to ordinary diseases of life and specifically states that the term “occupational disease” means “a disease arising out of and in the course of the employment or which has become aggravated and rendered disabling as a result of the exposure of the employment.” The italicized language has been added to cover the situations involved in this case and in International Harvester.

This case, however, must be decided on the law as it existed prior to the 1975 amendment to the Workmen’s Occupational Diseases Act. The facts here will not support recovery under the pre-1975 Workmen’s Occupational Diseases Act, and because of the absence of an accidental injury, which will satisfy the time, place and cause requirement, no recovery can be had under the Workmen’s Compensation Act.

Accordingly, the judgment of the circuit court of McLean County is reversed as to the Workmen’s Occupational Diseases Act and affirmed as to the claim filed under the Workmen’s Compensation Act, and the award of the Industrial Commission is set aside.

Affirmed in part and reversed in part; award set aside.

MR. JUSTICE UNDERWOOD took no part in the consideration or decision of this case.


author: MR. CHIEF JUSTICE GOUDENHERSH

text:
    (No. 50506.
    THE CITY OF CHICAGO, Appellant, v. SALVATORE CECOLA et al., Appellees.

      Opinion filed March 14, 1979.

      Rehearing denied May 30, 1979.

      William R. Quinlan, Corporation Counsel, of Chicago (Daniel Pascale and Mary Denise Cahill, of counsel), for appellant.
    Patrick A. Tuite, of Chicago, for appellees.
   MR. CHIEF JUSTICE GOUDENHERSH

delivered the opinion of the court:

Defendants, Salvatore Cecola, Juan Cruz, John Spadeas, Jeffrey C. Weiss and Norman McCray, doing business as Harem Leisure Spa, appealed from the order of the circuit court of Cook County permanently enjoining them from operating the business conducted at 839 North La Salle Street in Chicago. The appellate court reversed (56 Ill. App. 3d 143), and we allowed the city’s petition for leave to appeal.

The parties have stipulated that there is an establishment known as the Harem Leisure Spa located at 839 North La Salle Street owned by defendant Salvatore Cecola; that on September 3, 1974, Helena Roberts, a female employee of the Harem Leisure Spa, committed an act of prostitution there by offering to perform an act of oral copulation for money with Investigator Nicholas Ahrens of the Chicago Police Department, and that on September 29, 1974, the said Helena Roberts was convicted of an act of prostitution based on that conduct; that for money, in private cubicles, completely nude female employees of the Harem Leisure Spa on September 9, 1974, October 25, 1974, December 1, 1974, December 27, 1974, February 15, 1975, and on other occasions, had fondled and stroked the penises of investigators from the Chicago Police Department and customers of the Harem Leisure Spa; and that the foregoing conduct is a service offered by the Harem Leisure Spa to its customers upon payment of money.

The city alleged in its complaint that defendant Cecola was the owner of the Harem Leisure Spa, that defendants Cruz, Spadeas, Weiss and McCray were employed there; that the blatantly sexual conduct that occurred at defendants’ “spa” was deleterious and a menace to the health, safety or general welfare of the community and constituted a public nuisance; that the plaintiff city had no adequate remedy at law as the numerous summonses issued to the defendants and the arrests of their employees had had no effect in eliminating or in any way retarding the illegal activity; and that the only remedy that would halt this activity would be a permanent injunction permanently and perpetually enjoining the defendants from operating their business. In their answer defendants pleaded as affirmative defenses that insofar as the municipal ordinance attempts to punish persons for being found in places where allegedly lewd activity is carried on, the ordinance violates the due process clause of the fourteenth amendment because the word “lewdness” is so vague that a reasonable person cannot be expected to conform his conduct to the requirements of the law and the court cannot be reasonably expected to interpret and apply the law; that the conduct of sexual stimulation of male genitals is an activity that is permitted by law and that is conducted in a private room out of sight of the general public and is in no way deleterious or a menace to the health, safety or general welfare of the community; and that the plaintiff has an adequate remedy at law in the prosecution of the defendants under the ordinance which provides for a fine after conviction.

Section 192 — 1 of the Municipal Code of Chicago provides:

“Every house of ill-fame or house of assignation where men and women resort for the purpose of fornication, prostitution, or lewdness is hereby declared to be a nuisance.”

Pursuant to section 192 — 19 of the Municipal Code of Chicago, a fine of $5 to $200 may be imposed for a violation of a provision of chapter 192. Section 192 — 1 of the Municipal Code is similar to section 1 of “An Act regarding places used for purposes of lewdness, assignation, or prostitution ***” (the Act) (Ill. Rev. Stat. 1975, ch. 100½, par. 1), which in pertinent part provides:

“That all buildings and apartments, and all places, and the fixtures and movable contents thereof, used for purposes of lewdness, assignation, or prostitution, are hereby declared to be public nuisances, and may be abated as hereinafter provided. The owners, agents, and occupants of any such building or apartment, or of any such place shall be deemed guilty of maintaining a public nuisance, and may be enjoined as hereinafter provided.”

Section 2 of the Act (Ill. Rev. Stat. 1975, ch. 100½, par. 2) provides for injunctive relief perpetually enjoining all persons from maintaining or permitting the public nuisance to continue. Although this action was not brought pursuant to the Act, it is well settled that the statute was not intended to displace common law actions to abate public nuisances (People ex rel. Dyer v. Clark (1915), 268 Ill. 156); and under the common law, houses of prostitution were considered public nuisances (People ex rel. Dyer v. Clark (1915), 268 Ill. 156).

The defendants contend that in order to be considered a violation of the ordinance, and therefore a public nuisance, their conduct must constitute an act of “prostitution.” They argue, too, that the city council, in enacting the ordinance, intended that “prostitution” be defined, as in the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 11—14), to include only acts of sexual intercourse and deviate sexual conduct. We do not agree that such a narrow definition of “prostitution” was intended by the city council; nor is such an interpretation constitutionally required.

The activities of a house of prostitution involve commercial sexual acts of every sort. Clearly, a masturbatory massage parlor is engaged in commercial acts of sexual gratification involving the sex organs of one person and the hand of another. The definition contained in the Criminal Code defines the offense and does not purport to define or limit actions to enjoin a nuisance. It is axiomatic that not all forms of nuisances can be equated with criminal behavior; nor does it necessarily follow that all criminal acts constitute nuisances. In our opinion defendants’ activities fall clearly within the definition of prostitution and the ambit of the ordinance, and as such constitute a public nuisance, in terms of both the ordinance and section 1 of the Act (Ill. Rev. Stat. 1975, ch. 100½, par. 1). Because we hold that the activities in question involve a form of prostitution we need not discuss defendants’ contention that the term “lewdness,” contained in the ordinance, must be defined in the same manner as the term “prostitution” and may not independently encompass other types of conduct.

Defendants next contend that the city’s action in equity would not lie for the reason that there was an adequate remedy at law because the conduct proscribed by the ordinance had been held to be obscene (see People v. Taylor (1976), 35 Ill. App. 3d 418) and there could now be a prosecution under the ordinance. Equity has historically enjoined nuisances, and as the court said in Stead v. Fortner (1912), 255 Ill. 468, 476: “As to nuisances generally, not only is the existence of the method provided by the statute for their abatement not an obstacle to relief in a court of equity, but this court, in Minke v. Hopeman, 87 Ill. 450, held that the trial and acquittal of one indicted for a nuisance did not deprive a court of equity of its equitable jurisdiction, and it was said that the fact that the statute gave a remedy by indictment did not deprive the court of jurisdiction to enjoin the nuisance.” This court has consistently held that a criminal prosecution, which cannot prevent the continuance of a nuisance, is not a complete and adequate remedy for a wrong inflicted on the People. (See People ex rel. Dyer v. Clark (1915), 268 Ill. 156; People ex rel. Kerner v. Huls (1934), 355 Ill. 412; Village of Spillertown v. Prewitt (1961), 21 Ill. 2d 228.) A nuisance which affects the public welfare may be abated in equity on the application of the proper officer, and this is particularly true where the ordinary method of prosecution for the criminal offense either has proved ineffective or may in fact be ineffective. It is reasonable to conclude that the imposition of even the maximum fine of $200 a day may not be enough to dissuade defendants from this enterprise, and the circuit court did not err in permanently enjoining defendants’ activities.

For the reasons stated the judgment of the appellate court is reversed and the order' of the circuit court enjoining defendants’ operations is affirmed.

Appellate court reversed; circuit court affirmed.