author: JUSTICE MOEAN

text:
    (No. 55946.
    VULCAN MATERIALS COMPANY v. BEE CONSTRUCTION et al. (Waner Heating and Air Conditioning Corporation, Appellee, v. Chicago Title Insurance Company, Appellant).

      Opinion filed April 13, 1983.

      Robert S. Cushman, Minard E. Hulse, Jr., and Monica L. Thompson, of Keck, Mahin & Cate, and Stuart Finkle, all of Chicago, for appellant.
    Di Monte & Lizak, of Chicago (Alan L. Stefaniak, Eugene A. Di Monte, and Bruce A. Salk, of counsel), for appellee.
   JUSTICE MOEAN

delivered the opinion of the court:

Two cases appealed from the circuit court of Cook County were consolidated by the appellate court. Both involved the foreclosure of numerous mechanics’ liens on title to property located in the village of Niles commonly known as the Green Lakes Shopping Center. Appellant, Chicago Title Insurance Company (Chicago Title), insured a mortgage interest in the property which included protection against losses from mechanics’ liens.

In 1973, a subcontractor, Vulcan Materials Company (Vulcan), brought one of the cases to foreclose its mechanic’s lien on the property. Appellee, Waner Heating and Air Conditioning Corporation (Waner), who had also filed mechanic’s liens against the property, was allowed to intervene in the case in 1976 (lien case). In the other case, Dovenmuehle, Inc., a mortgagee of the shopping center property, filed an action to foreclose its mortgage in 1977 and named Wanér as a defendant. Waner subsequently answered and by way of counterclaim also sought to foreclose its liens in this case (mortgage case). It is the lien and mortgage cases that are before us on appeal.

In a separate proceeding, the property involved was sold for taxes (tax case). The tax purchasers at the tax sale assigned their interest to two individuals. These individuals later petitioned the court in the tax case to order the issuance of tax deeds. Waner was given notice of this proceeding but failed to appear. Tax deeds were issued to the two assignees, who subsequently quitclaimed their interest in the property to Chicago Title.

Chicago Title then filed motions to dismiss all of the mechanics’ lien claims in both the lien and mortgage cases. The court granted these motions, finding that Chicago Title’s tax deeds represented superior title, and extinguished all prior claims. Only Waner appealed. A majority of the appellate court reversed (101 Ill. App. 3d 30), holding that Chicago Title’s motions to dismiss were improperly granted because Chicago Title had fraudulently invoked the jurisdiction of the court in the tax case to obtain the tax deeds. We granted Chicago Title leave to appeal.

Chicago Title has raised various issues. Our review of the record reveals one issue to be dispositive of the appeal: Was the trial court in the tax case without jurisdiction to order the tax deeds to issue?

The record reveals that in 1972 American National Bank and Trust Company (American) held legal title, in various land trusts, to the property involved. The beneficiary of these trusts, Morris Suson, was the owner of Bee Construction Company, which acted as developer and general contractor for construction of the shopping center. In 1973, after some initial construction was completed, Bee Construction failed to pay Vulcan for materials supplied and Vulcan instituted the lien case.

In August of 1974, Dovenmuehle made a loan of $7.3 million to American, on Suson’s behalf, to further the construction of the shopping center. Dovenmuehle was given a mortgage as security for the loan. To protect its mortgage interest, Dovenmuehle obtained a mortgage insurance policy from Chicago Title which included protection against any losses from mechanics’ liens.

In 1975, Suson experienced financing problems. He failed to pay numerous subcontractors, and construction delays ensued. Thereafter, Suson defaulted on Dovenmuehle’s construction loan and did not pay the 1975 real estate taxes. The shopping center property was then sold, pursuant to court order, at the annual tax sale in November 1976 to Interstate Bond Company and Thornton, Ltd. There is no dispute over the validity of this sale. Any person with an interest in the property had two years from the date of this sale to redeem the property. (Ill. Rev. Stat. 1975, ch. 120, par. 734.) Two months after the sale Dovenmuehle instituted the mortgage case. In August 1978, while the lien and mortgage cases were pending, Interstate Bond Company and Thornton, Ltd., assigned their certificates of purchase of the tax-delinquent property to George Mergili and Janice Zondlo Wajda, claimed employees of Chicago Title. In November 1978, Mergili and Wajda, ostensibly as individuals, filed petitions in the tax case requesting an order for tax deeds to the shopping center pursuant to section 266 of the Revenue Act of 1939 (Act) (Ill. Rev. Stat. 1975, ch. 120, par. 747). Under this section, a tax-sale purchaser or his assignee, within five months of the expiration of the redemption period, may file a petition for tax deeds in the same proceeding in which the judgment for sale was entered. The Act provides that the purchaser or his assignee must give notice of the sale and the expiration date of the redemption period to owners, occupants and parties interested in the property. (Ill. Rev. Stat. 1975, ch. 120, par. 744.) The initial two-year redemption period on the shopping center property was to expire in November 1978 when the petitions were filed. However, Mergili and Wajda extended the redemption period to November 1979. See Ill. Rev. Stat. 1975, ch. 120, par. 744.

Waner admits being served with notice, but neither appeared in nor objected to the proceedings in the tax case. After a hearing on November 30, 1979, the tax court entered an order directing the issuance of tax deeds to Mergili and Wajda. In doing so, the court expressly found that the redemption period had expired and the property had not been redeemed; that all taxes and special assessments had been paid; and that the petitioners had complied with all the provisions of law entitling them to tax deeds, including the notice provisions. On December 3, 1979, Mergili and Wajda quitclaimed to Chicago Title their interests obtained in the property through the tax deeds.

In February 1980, Chicago Title filed motions to dismiss all of the mechanics’ lien claims in the lien and mortgage cases. In response, Waner requested time to discover the relationship between Chicago Title and Dovenmuehle in an attempt to prove that Chicago Title’s tax deeds were acquired fraudulently and were therefore void. On May 9, 1980, the court in both the lien and mortgage cases denied Waner’s request and granted Chicago Title’s motion to dismiss. Waner then appealed to the appellate court from these orders.

After filing its notices of appeal, Waner discovered three letters attached to the pleadings in a separate class action suit, then pending trial in the circuit court, concerning the relationship between Chicago Title and Dovenmuehle. Waner was not a party in that suit, but requested that the appellate court take judicial notice of and consider the contents of these letters in ruling on the pending appeals in the lien and mortgage cases.

The appellate court, without mention in its opinion, took judicial notice of these letters and considered the facts alleged in them in ruling on the propriety of Chicago Title’s motion to dismiss. Based upon the unproved pleadings in the pending class action suit, the court found that Chicago Title, through its employees Mergili and Wajda, had misrepresented facts before the tax court in order to obtain the tax deeds. The majority then concluded Chicago Title had fraudulently invoked the jurisdiction of the tax court and that this rendered both its jurisdiction and subsequent order issuing the tax deeds void.

Waner admits that its challenge of the tax deeds in the lien and mortgage cases constitutes a collateral attack upon the tax court’s order for issuance of tax deeds. It does so on the basis that the tax court’s order is void.

An order is rendered void not by error or impropriety but by lack of jurisdiction by the issuing court. (Farlow v. Oliver (1963), 29 Ill. 2d 493, 499.) This court has repeatedly held that a tax-sale proceeding is in rem and the court acquires jurisdiction over the land when the county collector makes his application for judgment and order for sale. (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 35; First Lien Co. v. Markle (1964), 31 Ill. 2d 431, 436; Urban v. Lois, Inc. (1963), 29 Ill. 2d 542, 546; Shapiro v. Hruby (1961), 21 Ill. 2d 353, 358; Cherin v. R. & C. Co. (1957), 11 Ill. 2d 447, 454.) Once acquired, the court retains its jurisdiction to make all necessary findings and enter all necessary orders supplemental to the original tax sale. Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 35.

It is well established that once a court acquires jurisdiction, subsequent fraud, concealment, or perjury will not render its order void. (Schwarz v. Schwarz (1963), 27 Ill. 2d 140, 144-45; Barnard v. Michael (1945), 392 Ill. 130, 136-37; People v. Sterling (1934), 357 Ill. 354, 364.) Here the court, in the tax case, acquired jurisdiction over the shopping center property in 1976 when the county collector filed his application for judgment and order for sale. It retained jurisdiction to issue all necessary orders, not only to effectuate the sale, but to order issuance of tax deeds. In the instant case, the alleged, but unproved, fraud occurred after the property had been sold at the tax sale, which was after the tax court had acquired jurisdiction. Fraud, if any, subsequent to that time would render the tax court’s orders voidable, but not void for lack of jurisdiction.

Our determination that the tax deeds were at most voidable renders Waner’s collateral attack in the lien and mortgage cases improper. Under section 266 of the Act, tax deeds were incontestable except by direct appeal or by filing a motion under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72).

On appeal, the parties have not disputed the appellate court’s use of judicial notice. We note that judicial notice may be taken of factual evidence where the facts are capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy. (People v. Davis (1976), 65 Ill. 2d 157, 165.) However, where the facts are derived from pleadings in a case not involving the same parties and are not proved, judicial notice is improper. (But cf. Walsh v. Union Oil Co. (1972), 53 Ill. 2d 295 (judicial notice of other proceedings may be proper where the same parties are involved and the allegations from those proceedings have been proved).) Moreover, what was said in Ashland Savings & Loan Association v. Aetna Insurance Co. (1974), 18 Ill. App. 3d 70, 78, is applicable here:

“[A] court will not take judicial notice of critical evidentiary material not presented in the court below, and this is especially true of evidence which may be significant in the proper determination of the issues between the parties.”

Waner also filed a motion in this court to strike certain portions of Chicago Title’s reply brief. This motion was taken with the case. The disputed sections of Chicago Title’s reply brief refer to a subsequent section 72 proceedings brought by Waner in the tax case. Those proceedings are beyond the record in this appeal and, for the reasons stated above, have not been considered in determining the propriety of Chicago Title’s motions to dismiss Waner’s mechanic’s lien claims in the lien and mortgage cases. Therefore, Waner’s motion to strike is allowed.

For the reasons stated, the judgment of the appellate court is reversed and the judgments of the circuit court of Cook County in cases 73—CH—978 and 76—CH—477 (cons.) and 77—CH—613 are affirmed.

Appellate court reversed; circuit court affirmed.


source: Caselaw Access Project

author: JUSTICE CLARK

license: Public Domain

text:
    (No. 55192.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CURTIS J. BROWNELL, Appellant.

      Opinion filed May 18, 1983.

      Peter B. Nolte and Paul E. Gaziano, of Rockford, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Michael B. Weinstein, Marcia L. Friedl, and Kenneth A. Fedinets, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE CLARK

delivered the opinion of the court:

On September 13, 1978, Curtis J. Brownell was found guilty, by the circuit court of Boone County, of the murder, aggravated kidnaping and rape of Louise Betts. The State requested a sentencing hearing for the purpose of imposing the death penalty. The defendant waived a jury proceeding and was sentenced by the court to death. Upon appeal to this court, the convictions for murder, aggravated kidnaping and rape were affirmed and we found that the sentences imposed for the offenses of aggravated kidnaping and rape were justified. In sentencing the defendant to death, the trial court found that two aggravating factors existed. While this court upheld the finding of the trial court that a murder was committed in the course of the felonies of aggravated kidnaping and rape, the death sentence was vacated because this court found that one of the aggravating factors — “that the murdered individual was an eyewitness or possessed other material evidence against the defendant” (Ill. Rev. Stat. 1977, ch. 38, par. 9—1(b)(7)) did not exist. Since this court found that one aggravating factor was erroneously included in the court’s sentencing decision, the sentence of death was vacated and the cause remanded to the circuit court of Boone County for resentencing. 79 Ill. 2d 508, 544.

On remand, prior to the second sentencing hearing, the defendant filed a number of prehearing motions. Specifically, he filed a motion to declare the death penalty statute unconstitutional, to preclude a capital sentencing hearing based upon a promise of the prosecutor not to ask for the death penalty, and to fund the testimony of expert witnesses. He made a motion for change of venue, a motion challenging voir dire questions, and a motion to excuse for cause any juror who knew of the prior death sentence. He also made a motion for a ruling that the State had the burden of proof beyond a reasonable doubt in all matters that arise at a capital sentence hearing. All of the motions made by the defendant were denied.

The defendant waived a determination by the jury of the existence of a statutory aggravating factor, and stipulated that a statutory aggravating factor had been found beyond a reasonable doubt.

On April 17, 1981, the jury impaneled to hear evidence in mitigation at the second phase of the second sentencing hearing concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty. On May 18, 1981, the trial court again entered a judgment and sentence order of death on the verdict. The defendant appealed directly to this court (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill. 2d R. 603; Ill. Rev. Stat. 1979, ch. 38, par. 9—1(i)), alleging a number of errors.

We first address the issue of whether the prosecuting attorney was precluded from requesting a capital sentencing hearing based upon a promise of the prosecutor not to ask for the death penalty.

The State contends that the issue is waived because it was not raised in the first direct appeal (79 Ill. 2d 508), until a supplemental argument was filed following the filing of a petition for rehearing. On remand, the trial court did consider the issue raised as one of the defendant’s prehearing motions. Because the matter was raised and considered in the trial court, we find that it is not waived and is properly before us on appeal.

Since our original opinion was handed down in this case (79 Ill. 2d 508), this court has issued an opinion in the death penalty appeal of People v. Walker (1981), 84 Ill. 2d 512, which we find controlling in our disposition of the issue we now address.

In People v. Walker (1981), 84 Ill. 2d 512, the defendant, Eugene A. Walker, Jr., had initially pleaded guilty to charges of murder, attempted murder, armed robbery and armed violence. Walker had made that plea pursuant to an agreement with the prosecuting attorney that the defendant would receive a 60-year sentence. The defendant made a subsequent motion to vacate the plea, which was granted. However, when the case proceeded to trial, the defendant entered an unnegotiated plea of guilty. Following a sentencing hearing, the circuit court sentenced the defendant to death. This court found it necessary to vacate the death sentence, finding the State’s Attorney’s request that the death sentence be imposed violated the due process clause of the fourteenth amendment of the United States Constitution. This court found such a holding was required to prevent “a vindictive prosecutor from punishing a defendant for doing something the law allows him to do.” 84 Ill. 2d 512, 525.

The defendant in the instant case cites to Justice Ryan’s concurring opinion in Walker in asserting that the due process clause of the fourteenth amendment and the eighth amendment proscription against cruel and unusual punishment require that the death sentence in the case at hand be vacated. In his concurring opinion, Justice Ryan concluded that imposing the death penalty on Eugene A. Walker, Jr., “would constitute an arbitrary application of the statute, unguided by any standards except the whim of the prosecutor,” and therefore would constitute “a violation of the due process clause of both the State and Federal constitutions, as well as cruel and unusual punishment proscribed by the eighth amendment of the Federal Constitution.” (84 Ill. 2d 512, 529 (Ryan, J., concurring).) Justice Ryan explained:

“Under the facts of this case, when the State’s Attorney negotiated a guilty plea from the defendant in exchange for a 60-year sentence on the murder charge, death was not a possible penalty since it could not be imposed without the State’s Attorney’s request for a penalty hearing. The prosecutor, having exercised the discretion vested in him by statute, informed the court, the defendant and the public that death was not an appropriate penalty in this case and the court, by concurring in the negotiated plea, confirmed this conclusion. However, within three months the prosecutor decided that death was an appropriate penalty and requested the penalty hearing, which activated the statutory machinery ultimately enabling the court to sentence the defendant to death. The defendant was the same; the offense was the same; no new evidence had surfaced; and the conviction was obtained in the same way, by a plea of guilty. Now, just three months later, the appropriate penalty, the price tag, for this offense was no longer 60 years, but death. The prosecutor explained to the court: ‘[A]nd prosecutors, your Honor, make decisions. Somebody has to. And we make mistakes. Mine was in not seeking the death penalty earlier. I was wrong then. I am right now.’
*** Death is a drastic penalty. Its finality demands certainty in that the prosecutor’s decision to request a penalty hearing must have a rational basis. His explanation that his previous recommendation of a 60-year sentence was a mistake does not satisfy what the Supreme Court in the above cases [Lockett v. Ohio (1978), 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954; Gardner v. Florida (1977), 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct. 1197; Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978; Roberts v. Louisiana (1976), 428 U.S. 325, 49 L. Ed. 2d 974, 96 S. Ct. 3001] has deemed essential. If death was the appropriate penalty in this case, the State’s Attorney should not have vacillated but should have sought it following the first guilty plea. Thus, it does not appear that there is a meaningful basis for distinguishing between the imposition of the death penalty on the second guilty plea and the foreclosing of it on the first, when nothing in the case had changed except that the prosecutor stated he made a mistake.
It is a denial of due process to subject the defendant facing death to the vacillation of the prosecutor’s office ***. When the prosecutor forgoes his right to seek the death penalty, enters into plea negotiations, and reaches an agreement that is acceptable to him and the court, notions of basic fairness and due process prevent him from seeking the death penalty at a later date absent a change in circumstances beyond a mere recognition that he made a mistake.” (Emphasis added.) 84 Ill. 2d 512, 529-33, Ryan, J., concurring.

In reviewing the record it is uncontested that at approximately 10 p.m. on April 1, 1978, the State’s Attorney of Boone County offered to the defendant’s counsel an agreement whereby the State’s Attorney would not seek the death penalty if the defendant would confess in writing to the murder of Louise Betts. Defense counsel conferred with the defendant regarding the proposed agreement and the defendant did not accept the offer.

One more meeting took place in the early morning hours of April 2, 1978, with the defendant, defense counsel and two Winnebago County detectives. At the conclusion of that meeting at approximately 1 a.m., the defendant was again asked if he wished to talk to the police. The defendant said that he needed more time. At this point, the meeting ended.

Approximately one hour later, at 2 a.m. on April 2, 1978, the defendant indicated that he wanted to talk, said that he did not want counsel to be present, that he understood his rights and then confessed.

In the first opinion issued in this case (79 Ill. 2d 508), the court outlined the events prior to April 1, 1978, and the details of what happened on April 1, and April 2,1978.

“By 6:15 p.m. on March 31, 1978, the defendant was represented by counsel. At that time the defendant appeared in a lineup, concerning the Winnebago County offense. The defendant met with counsel before and after the lineup. After the lineup, Gary Arbisi, a Winnebago County detective investigating the previously referred to offenses informed the defendant that he could speak to the police whether his attorney was present or not. The defendant stated he would follow counsel’s advice. Arbisi started to say something else but counsel prevented him from doing so.
The next day, April 1, 1978, at approximately 6 p.m., Arbisi and another detective went to the defendant’s home to speak with the defendant’s wife concerning information they had received that the defendant had told Mrs. Brownell he was guilty of murder. Mrs. Brownell asked to speak with her lawyer. When counsel arrived he advised Mrs. Brownell not to speak to the detectives. Mrs. Brownell eventually agreed to talk to the detectives, but only if she could first speak with the defendant. The detectives then arranged a visit at the jail between the defendant and his wife. The defendant met separately with counsel, then with his wife and, later, again with counsel. Mrs. Brownell agreed to tell the police, ‘everything’ but, after a phone call with the defendant’s stepfather, an attorney, she declined to make a statement.
The defendant’s counsel, after his later meeting with the defendant, stated to a detective that he thought negotiations should begin with the State’s Attorney to waive the death penalty in any ensuing proceeding. Counsel then met with the State’s Attorneys of Boone and Winnebago counties and two assistant State’s Attorneys until 10 p.m. An offer was made by the State’s Attorneys that if the defendant made a written confession of murder, the death penalty would not be sought at trial. Thereafter the defendant, after conferring again with counsel, declined the offer.
A final conference took place among the defendant, defense counsel, and Detective Arbisi and Rollins. Arbisi asked the defendant if he wished to speak to the detectives. Counsel advised the defendant not to do so. Arbisi then asked counsel for permission to speak to the defendant. Counsel granted permission. Arbisi told the defendant that while the defendant did not have to speak to the police, if he changed his mind and wanted to speak to the police, with or without counsel present, the defendant could do so. The defendant said he would follow counsel’s advice. A few minutes later, on the way to his cell, the defendant was asked again by Arbisi whether he wished to talk. The defendant answered that he needed more time. Counsel informed the other attorneys that the defendant needed more time to consider their offer. It was approximately 1 a.m. on April 2, 1978, when all parties dispersed.
Approximately one hour later, the defendant told the jailer he wanted to talk to the police. Detectives Arbisi and Packard were summoned. When they met the defendant in an interview room, Arbisi asked the defendant whether the defendant desired to have counsel present. The defendant said he did not want counsel to be present. The defendant was advised of his Miranda rights. The defendant said he understood his rights and signed a statement to that effect. He then gave an incriminating written statement to the police.” 79 Ill. 2d 508, 517-19.

It is clear that the prohibition against cruel and unusual punishment prohibits the arbitrary imposition of the death penalty based upon caprice or emotion. Rather, the decision to impose the death penalty must be, and appear to be, based upon reason and not caprice or emotion. Gardner v. Florida (1977), 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct. 1197.

We feel that the reasoning Justice Ryan articulated in his concurring opinion in People v. Walker (1981), 84 Ill. 2d 512, is persuasive in our resolution of the issue at hand. The State’s Attorney made a conscious decision to agree not to seek the death penalty if the defendant would provide him with a confession. Once such a conscious decision has been made by the prosecuting attorney, we feel that it is incumbent on the State’s Attorney to abide by the agreement absent a change in circumstances. Otherwise, we run the risk that the change in position by the prosecuting attorney in seeking the death penalty is based upon caprice or emotion.

Basic fairness and due process require that the State’s Attorney be bound by his promise not to seek the death penally. Between 10 p.m. on April 1, 1978, and August 29, 1979, when the State’s Attorney requested the death penalty be imposed, not one circumstance had changed. No reason has been offered for the prosecutor’s vacillation. The defendant gave the State’s Attorney what he had bargained for — a confession. The confession having been obtained, the State has offered no conceivable justification for not abiding by that promise. The defendant was given no indication that the offer not to seek the death penalty had lapsed simply because a few hours time had passed from the hour at which the proposed agreement had been made known to the defendant. No one told the defendant that the State’s Attorney had changed his mind. Nothing in the record shows that the offer had been revoked. We must prevent vindictiveness or the appearance of vindictiveness on the part of the prosecuting attorney. (People v. Walker (1981), 84 III. 2d 512; see Blackledge v. Perry (1974), 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098.) When, in the absence of any other change in circumstances, the prosecutor changes his mind and asks that a defendant be put to death after agreeing that he would not seek the death penalty, that reversal creates an appearance of a vindictive motive on the part of the prosecutor. The prosecutor must be held to his part of the bargain.

This court said in People v. Walker (1981), 84 Ill. 2d 512, that “[t]here is also the appearance of vindictiveness, at the minimum to the individual defendant, when a prosecutor changes his mind in the absence of any alteration in the facts other than a defendant’s invocation of a right the law plainly affords. Under any test, then, the prosecutor here is required to point out objective facts which justify a change of mind, as well as to put the defendant on notice prior to withdrawal of his plea what he will face.” 84 Ill. 2d 512, 524.

The State’s Attorney would have us construe the agreement in strict contractual terms. But we are not attempting to sort out those bids that failed to meet the midnight deadline of a general contractor’s invitation to bargain. Rather, we are talking about a situation where the State has agreed not to seek the penalty of death for Curtis Brownell.

The State proffers no credible answer as to why the State’s Attorney should not be held to his part of the agreement. The death sentence of Curtis Brownell cannot stand. Because our resolution of this issue is dispositive, it is unnecessary for the court to consider the other alleged mistakes raised by defense counsel concerning the defendant’s sentencing. The sentence of death is vacated and the cause is remanded to the circuit court of Boone County for resentencing of the defendant. In the resentencing of Curtis Brownell, the death penalty is not to be considered as an alternative.

Sentence vacated; cause remanded, with directions.


author: CHIEF JUSTICE RYAN

text:
    (No. 55822.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHNNY McKIBBINS, Appellee.

      Opinion filed May 18, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield and Richard M. Daley, State’s Attorney, of Chicago (Melbourne A. Noel, Assistant Attorney General, of Chicago, and Michael E. Shabat, Joan S. Cherry, and Lawrence T. Krulewick, Assistant State’s Attorneys, of counsel), for the People.
    Steven Clark, Deputy Defender, of Chicago (Nancy G. Abrahams, of counsel), for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

A jury in the circuit court of Cook County found the defendant, Johnny McKibbins, guilty of murder, armed robbery, and armed violence in connection with his participation in the armed robbery and murder of a parking lot attendant which occurred on February 14, 1979. The appellate court reversed and remanded for a new trial (100 Ill. App. 3d 787), holding (1) that detailed testimony and argument concerning a subsequent armed robbery should not have been admitted into evidence, since it confused the issue and deprived the defendant of a fair trial, and (2) the trial court erred by admitting for impeachment purposes evidence of all of the defendant’s 20 prior misdemeanor theft convictions. We granted the People’s petition for leave to appeal, and we now reverse the appellate court.

The evidence introduced at trial indicates that on February 14, 1979, Clinton Hutchinson went to work at a parking lot located on Milwaukee Avenue in Chicago. When he left his home at approximately 5 a.m., he had in his possession a French coin dated 1811 with a hole in the center.

At approximately 11 a.m., Dennis Murphy, an investigator with the Chicago police department, found Hutchinson’s body in a small shack in the center of the parking lot. The victim was handcuffed with handcuffs which were made in Taiwan and had “STOP” imprinted on them. Investigator Murphy observed that Hutchinson had been shot in the right temple, his pockets had been reversed, and the knees of his pants were dirty.

At defendant’s trial, detailed evidence of another offense was introduced by the State. In summary, it showed that on February 16, 1979, defendant, Johnny McKibbins, James Matthews and John Brown robbed Phillips Jewelers, which is located in the same area of the city of Chicago as the parking lot. At about 10:50 a.m., one of the three men walked up to Harold Phillips, the proprietor of the jewelry store, and announced a robbery. McKibbins and the other man went behind the counter to collect the merchandise.

In response to a telephone call informing the police a robbery was in progress, Officer William Jaconetti went to Phillips Jewelers. He saw Officer Louis Trafillio entering the store. He also saw James Matthews, one of the three robbers, remove a revolver from his waistband and point it at Officer Trafillio’s head. Jaconetti, who was approximately 10 paces behind Trafillio, told Matthews to “[h]old it.” Matthews fired a shot at Jaconetti. The shot removed the zipper from Jaconetti’s jacket. Jaconetti fired back, wounding Matthews, who dropped to the sidewalk. The three robbers were then arrested.

Another officer, James Kehoe, searched Brown and found a French coin dated 1811 with a hole in it. He also found two pairs of handcuffs lying on the floor with the letters “STOP” imprinted on them.

Investigator Murphy, who had also been assigned to investigate the jewelry store robbery, interrogated Mc-Kibbins about his possible participation in the murder of Hutchinson. The defendant then confessed his involvement in the robbery of the jewelry store. Also, he later gave a statement concerning his involvement in the robbery and murder of Hutchinson. He told Officer William Baldree and, on different occasions, Assistant State’s Attorney Magnuson and Investigator Murphy, that on February 14, 1979, he and John Brown drove to the Federal Correctional Center in Chicago. They picked up James Matthews and purchased some revolvers. The three men then drove to the parking lot on Milwaukee Avenue where Hutchinson worked. Carrying the revolvers and a pair of handcuffs with them, Matthews and Brown entered the shack while McKibbins stayed in the car. When they returned, Matthews instructed McKibbins to drive away fast because they had just “burned a guy.” Brown then produced a rare coin with a hole in the center which was taken in the robbery and remarked they could get some money for it, although the hole would diminish its value. Matthews complained that they had not obtained as much cash from their crime as they had hoped.

At defendant’s trial for the murder of Hutchinson, other evidence concerning the jewelry store robbery was introduced in addition to that stated above. It was shown that during the robbery the proprietor of the store and several others were forced to lie on the floor. Pictures of the interior of the store were introduced. The proprietor identified these photographs and described how the three robbers had come into the store and described their conduct during the course of the robbery. He also testified as to the amount of money that had been taken and the merchandise that was missing, which was later returned to him by the police.

Generally, evidence of other crimes is inadmissible if relevant merely to establish the defendant’s propensity to commit crime. (People v. Lindgren (1980), 79 Ill. 2d 129.) Evidence of the commission of other crimes is admissible, however, when such evidence is relevant to prove modus operandi, intent, identity, motive, or absence of mistake. (People v. Baptist (1979), 76 Ill. 2d 19; People v. Gonzales (1978), 60 Ill. App. 3d 980; see generally 2 Wigmore, Evidence sec. 304 (Chadbourn rev. ed. 1979).) In fact, this court has held that evidence of other offenses is admissible if it is relevant for any purpose other than to show the propensity to commit crime. People v. McDonald (1975), 62 Ill. 2d 448, 455; People v. Dewey (1969), 42 Ill. 2d 148, 157.

The appellate court relied upon People v. Diaz (1979), 78 Ill. App. 3d 277, in holding that a limited amount of evidence of the jewelry store robbery was admissible but that the detailed evidence of the robbery was error. In Diaz the defendant was tried for an armed robbery of a tavern, during which he had taken a gun from the tavern owner. The next day two women were robbed as they were emerging from their automobile. They notified the police, who later arrested three people for this offense. The gun taken in the tavern robbery was found on one of the persons arrested. At the defendant’s trial for the robbery of the tavern, detailed evidence was given concerning the robbery of the two women, including threats that were made to them and their children. The court held that evidence of the subsequent offense would have been admissible to show the circumstances of defendant’s arrest and the recovery of the gun. However, the court held that the detailed evidence concerning the subsequent robbery of the women was error.

In Diaz, the defendant was not arrested during the robbery of the two women but after that robbery had been completed as a result of a report by the two women to the police. The court in that case held that although the evidence that the women had been robbed was relevant to show the circumstances of the defendant’s arrest, details concerning the robbery of the women and the threats made to them were not. The robbery of the women had been completed and the robbers had left the scene of the crime before they were arrested. The relevant part of that crime to show the circumstances of their arrest would therefore be very limited.

In the case now before us, the robbery of the jewelry store was in progress when the arrests were made. It would be difficult to explain or describe circumstances surrounding the defendant’s arrest without introducing a substantial amount of the evidence concerning the jewelry robbery. The facts in this case more closely resemble those in People v. Lehman (1955), 5 Ill. 2d 337, than those in Diaz.

In Lehman, an employee of a telephone company who made collections from public pay telephones was robbed while he was making his collections. Besides taking the money, the robbers also took the route book which showed the telephones from which the employee collected and the amount collected from each telephone. At defendant’s trial the employee testified that about eight weeks after the robbery, while making his collections, he saw an automobile following him; that he communicated this information to the police; that about an hour and a half later he saw police force the car that had been following him during this time to the curb and that he got out of his truck and joined the police, where he recognized the defendant as the man who had previously robbed him.

A police officer testified in detail how he had followed the defendant and another person, who were in the defendant’s car, who, in turn, were following the telephone company vehicle. This tailing covered about an hour and a half period. The officers testified as to the manner that the defendant followed the telephone company vehicle and as to its starts and stops; how the police forced the defendant’s car to the curb, forced the defendant and his companion to get out, and how the defendant attempted to dispose of a gun when he got out of the vehicle. Following the defendant’s arrest, sunglasses and other equipment similar to those that had been used in the previous robbery were recovered. The court stated:

“The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime. And so, as a matter of policy, where the testimony has no value beyond that inference, it is excluded. But where the evidence is independently relevant it is admissible as, for example, where it shows motive or intent, identity, absence of mistake or accident, or the existence of a common scheme or design.” People v. Lehman (1955), 5 Ill. 2d 337, 342-43.

In the case now before this court, in addition to its relevance to show the circumstances of the defendant's arrest, evidence concerning the jewelry store robbery is also relevant to specifically connect the three individuals who perpetrated this robbery with the Hutchinson murder. As noted above, following the arrest of the three robbers in the jewelry store, a search of the defendant’s companion Brown produced the French coin with a hole in it that had been taken from Hutchinson when he was murdered.

There were also certain similarities between the two crimes. The same type of handcuffs were recovered from the three jewelry store robbers as were used on the murdered man. Although it was shown at the defendant’s trial that this make of handcuffs could be readily purchased by anyone, the use of the same brand of handcuffs in the commission of this crime was relevant evidence, as was the evidence that the same three men were involved in both crimes and evidence that the robbers had forced the occupants of the jewelry store to lie on the floor. There was testimony that the murdered man’s pants were soiled at the knees, from which it could be inferred that he, too, had been forced to kneel or lie down before he was shot.

The defendant contends that these similarities are only superficial and that it was error to permit á jury to conjecture from these similar circumstances that the jewelry robbers committed the murder. In establishing design or plan, there must be a degree of identity between the facts of the crime charged and those of the other offense in which the defendant was involved. The reason, of course, is that the defendant’s participation in the crime charged may be inferred from his involvement in the other offense. Thus, to avoid the general rule of nonadmissibility of evidence of other crimes, the two offenses must be so similar that evidence of one offense tends to prove the defendant guilty of the offense charged. 2 Wigmore, Evidence sec. 304, at 249 (Chadboum rev. ed. 1979).

However, the same degree of identity of the two offenses is not necessary when evidence of defendant’s involvement in another offense is not offered to prove the commission of the crime charged, but is offered to prove the absence of an innocent frame of mind or the presence of criminal intent. In such a case, mere general areas of similarity will suffice. If these general similarities are shown, evidence of the defendant’s involvement in another offense may be shown to establish the necessary criminal intent of the defendant in the offense charged. 2 Wigmore, Evidence secs. 302, 304, at 241-47, 249-51 (Chadboum rev. ed. 1979).

In the case before us the defendant’s involvement in the murder was established by his statements to the police officers and to the assistant State’s Attorney. His companion Brown’s involvement in the murder was established by his possession of the rare coin with a hole in it. However, in the defendant’s statement he said that he had remained in the car while his two companions had entered the shack in the parking lot to rob Hutchinson, who was killed during the robbery. Evidence that the defendant, just two days later, was involved in another armed robbery with the same two companions, in which the other similarities noted were also present, was admissible to dispel any idea that the defendant had been somehow innocently involved in the robbery-murder. Although he may not have directly and actively participated in the actual robbery and murder, his involvement in the subsequent offense with the same two companions and the other similarities noted tend to establish that he participated in the previous offense with the necessary criminal intent. The evidence was thus relevant for a purpose other than to show the defendant’s propensity to commit crime and was therefore admissible. People v. Cole (1963), 29 Ill. 2d 501, 505; People v. Dewey (1969), 42 Ill. 2d 148, 157; People v. McDonald (1975), 62 Ill. 2d 448, 455.

The appellate court was critical of the detailed evidence of the jewelry store robbery that was admitted at the trial of the murder case. We agree that it was not necessary to conduct a mini-trial of the jewelry store robbery case in order to establish acts from which defendant’s criminal intent with regard to the robbery-murder could be inferred, and for the sake of economy of judicial time, we advise against such detailed evidence of other offenses. However, we cannot say that the detailed evidence in this case constituted prejudicial error. Also, the statements concerning the armed robbery of the jewelry store contained in the prosecutor’s opening statement and closing arguments do not constitute reversible error. The statements merely referred to and summarized the testimony introduced at trial which we have found to be admissible.

The defendant made a motion in limine to bar the State from introducing any evidence of his prior convictions by way of impeachment should he elect to testify. The court, in looking over the defendant’s record, noted that in the previous 10 years the defendant had been convicted 20 times. It appears from the record that most, if not all, of these convictions were for theft offenses, most of which were misdemeanors. The court denied the motion and ruled that the State could introduce evidence of all these convictions should the defendant testify. The defendant contended on appeal that because of this ruling by the trial court he was effectively prevented from testifying because of his fear of the prejudicial impact the disclosure of his prior convictions would have upon the jury. The appellate court held that it was error for the trial court not to limit the number of convictions the State could introduce by way of impeachment. This court has held that misdemeanor theft convictions may be used for impeachment purposes. People v. Spates (1979), 77 Ill. 2d 193.

We do not find that the failure by the trial court to limit the number of prior convictions the State could introduce indicates a failure to balance the probative value of this evidence against its prejudicial impact. Prior holdings of this court vest discretionary authority in the trial judge whether or not to allow evidence of prior convictions. In exercising this discretion, the trial judge is expected to balanee the probative value of the evidence of prior convictions against the prejudicial impact of such convictions upon the jury. People v. Spates (1979), 77 Ill. 2d 193; People v. Ray (1973), 54 Ill. 2d 377; People v. Montgomery (1971), 47 Ill. 2d 510.

Defendant argued, and the appellate court agreed, that the trial judge did not perform the balancing test required by Montgomery. We do not agree. Defense counsel, in arguing the motion in limine, pointed out to the court that the balancing test must be applied. The court stated that it understood the appropriate test. The mere fact that he, nonetheless, ruled that all of the convictions could be introduced does not mean that the balancing test was not applied. The test to be applied is whether the prejudicial impact outweighs the probative value. The probative value with which we are concerned relates to the weight the offered evidence may have in destroying the credibility of the witness. Montgomery refers to various factors to be considered in making this determination:

“[T]he nature of the crime, nearness or remoteness, the subsequent career of the person, and whether the crime was similar to the one charged.” (People v. Montgomery (1971), 47 Ill. 2d 510, 518.)

The crimes involved in the convictions appear to be theft misdemeanors. It does not appear that any of them were crimes of violence from which the jury might infer that the defendant had a propensity for committing such crimes and thus probably committed the murder with which he was charged. The career of the defendant subsequent to these convictions does not demonstrate a change of character but rather a continuation of deceitful conduct. The prior convictions covered the entire 10-year-period limit of Montgomery. Therefore, although some may have been remote, defendant’s conduct demonstrated a consistent pattern of dishonesty. The probative value of such evidence as it relates to the defendant’s credibility was extremely convincing and far outweighed any prejudicial impact that the evidence would have on the question of the defendant’s guilt of the violent crime of murder. We noted above that the discretion in performing the balancing test is vested in the trial court. We do not find that this discretion was abused. Defendant can have no expectation that evidence of this nature will not be introduced simply because it is detrimental to his cause.

The appellate court indicated that some number of convictions less than the total could have been properly introduced to impeach the defendant if he testified. The question would then become which of these convictions would be admitted, those nearest in point of time to the crime charged or those most distant? Also, how many convictions would be sufficient to impeach the defendant’s credibility? It may be that a single theft conviction would be enough to impeach the defendant in the eyes of one juror, whereas something more would be required for others. The defendant had compiled an overwhelming record of dishonesty. He had furnished the prosecution with substantial ammunition. A trial is an adversary proceeding. The State had the right and the obligation to use all of the impeaching evidence it possessed in order to destroy the credibility of the defendant if he were to testify. After compiling such a record, the defendant should not now expect the court to prevent the State from showing to the jury that he is utterly unworthy of belief. If the defendant in this case was thus prevented from testifying, this is a consequence of his own wrongdoing.

Accordingly, the judgment of the appellate court is reversed and the judgment of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.


author: JUSTICE WARD JUSTICE GOLDENHERSH,

text:
    (No. 56282.
    SALLY PODGORSKI PORTER, Special Adm’r, Appellant, v. FORD MOTOR COMPANY, Appellee.

      Opinion filed May 18, 1983.

      Leonard M. Ring & Associates, of Chicago (Leonard M. Ring, Jay M. Smyser and Judith E. Fors, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Tobin and Richard H. Donohue, of counsel), for appellee.
   JUSTICE WARD

delivered the opinion of the court:

Sally Podgorski Porter brought this appeal from an affirmance by the appellate court of a judgment of the circuit court of Cook County which dismissed her suit as special administrator of the estate of her deceased husband against the Ford Motor Company (Ford). We granted her petition for leave to appeal under our Rule 315 (73 Ill. 2d R. 315).

On October 12, 1974, Arthur M. Podgorski was killed while driving his 1972 Ford Pinto station wagon which was struck by a vehicle driven by Charles Rainwater. The National Bank of Bloomington, as administrator of the estate of Podgorski, filed suit against Rainwater in 1976, charging him with the negligent operation of his automobile. The complaint claimed damages of $325,000. Rainwater carried a $50,000 liability insurance policy issued by the State Farm Insurance Company. In February 1977 the claim was settled for $49,000, and the bank executed an “Administrator’s Release” which read in part:

“KNOW ALL MEN BY THESE PRESENTS, that the undersigned, National Bank of Bloomington, as Administrator of the Estate of Arthur M. Podgorski, deceased, in consideration of the payment of the sum of Forty Nine Thousand and no/100 Dollars ($49,000.00) to me in hand paid by Charles W. Rainwater and State Farm Insurance Company, the receipt of which is hereby acknowledged, the undersigned does hereby release, acquit and discharge the said Charles W. Rainwater and State Farm Insurance Company and any person, firm or Corporation liable in his stead of any and from all claims of action, causes of action, damages or demand of whatever name or nature in any manner arisen, arising or to grow out of any and all occurrences and especially due to the death of Arthur M. Podgorski, which occurred October 12, 1974 at or near Saybrook, Illinois.
The consideration for this release is the sole consideration therefor, and there is no agreement or promise on the part of the said Charles W. Rainwater and State Farm Insurance Company to do or to omit to do anything or act not herein mentioned and the above consideration is in full settlement of any and all damages to the undersigned arising out of or any claims, in all matters aforesaid mentioned including any claims by the next of kin by virtue of the death of Arthur M. Podgorski.
That the said Charles W. Rainwater and State Farm Insurance Company is paying the sum of Forty Nine Thousand and no/100 Dollars ($49,000.00) as herein set forth, does so in compromise of claim or claims, action or actions, cause or causes of action, damages or demands, not admitting liability on his part.”

On October 11, 1978, the suit considered here was filed to recover damages against Ford under the theory of breach of implied warranties of fitness. Ford’s motion to dismiss on the grounds that the “Administrator’s Release” operated as a bar to any and all claims arising out of the collision on February 9, 1977, was granted. As stated, the appellate court affirmed the dismissal. 103 Ill. App. 3d 848.

The judgment of the appellate court was grounded on the common law rule that a full or unqualified release of one of several joint tortfeasors releases all. (Wallner v. Chicago Consolidated Traction Co. (1910), 245 Ill. 148; Benjamin v. McConnel (1847), 9 Ill. 536.) The court stated that the language of the release was clear and unambiguous and constituted a full release which was a bar to further legal action. The court noted that “[t]here is no reservation contained in the release or qualified language which would lead us to conclude otherwise.” 103 Ill. App. 3d 848, 850.

The only question presented is whether the suit against Ford was barred by the release.

The plaintiff, relying primarily on Parmelee v. Lawrence (1867), 44 Ill. 405, and City of Chicago v. Babcock (1892), 143 Ill. 358, contends that the appellate court should have focused on the intent of the parties in executing the release rather than looking at the language of the document standing alone. The intent of the parties, the plaintiff contends, was to release only Rainwater and his insurer from liability. The prime indicator of this intention, it is said by the plaintiff, is that “at the time the document was executed, the only defendant in the lawsuit was Rainwater and a claim against Ford had not even been contemplated by the plaintiff.”

At common law, the full release of one of several joint tortfeasors released all, even if the release contained an express reservation of rights against the others. (Rice v. Webster (1857), 18 Ill. 331; Benjamin v. McConnel (1847), 9 Ill. 536; Prosser, Torts sec. 49, at 301 (4th ed. 1971); 4 Corbin, Contracts sec. 931, at 737 n.72 (1951).) This rule was widely criticized and was modified so that if a release contained an express reservation of rights against others it would be interpreted to be a covenant not to sue which would have the practical effect of releasing only the person or persons named in the instrument. (J. Calamari & J. Perillo, Contracts sec. 20—3, at 745 (2d ed. 1977); Williston, Contracts sec. 338, at 710 (3d ed. 1959).) In Parmelee, the court stated:

“If [the instrument executed] is to be regarded as an absolute and unconditional release of [one co-obligor], it must also operate as a discharge of his co-obligors, and the mere fact that, when a release is executed, the parties are ignorant that such will be its legal effect, will not prevent its so operating if executed and delivered unconditionally and without reference to its bearing upon other parties. But a release, like every other written instrument, must be so constructed as to carry out the intention of the parties. This intention is to be sought in the language of the instrument itself when read in the light of the circumstances which surrounded the transaction.” 44 Ill. 405, 410.

The plaintiff interprets this language as support for her contention that her claim against Ford is not barred in the absence of a showing that the administrator bank and Rainwater specifically intended that the effect of the document was to release Ford. That interpretation of Parmelee is not reasonable.

The court in Parmelee stated that whether the party executing the instrument intended it to serve as “an absolute and unconditional release” of one co-obligor or concurrent tortfeasor was the intent to be examined. If “the language of the instrument itself when read in the light of the circumstance which surrounded the transaction” expresses such an intention, the instrument “must also operate as a discharge of his co-obligors” or concurrent tortfeasors whether or not “the parties are ignorant that such will be its legal effect” unless there is an express “reference to its bearing on other parties.” See Pate v. City of Sesser (1979), 75 Ill. App. 3d 233; Mitchell v. Weiger (1977), 56 Ill. App. 3d 236.

Unlike the case before us, the instrument in Parmelee contained an express provision that it should in no way “affect my rights or demand against said Parmelee, Gage or Johnson.” (44 Ill. 405, 408.) The Parmelee court rejected the strict common law rule “in favor of the more reasonable rule, that where the release of one of several obligors shows upon its face, and in connection with the surrounding circumstances, that it was the intention of the parties not to release the co-obligors, such intention, as in the case of other written contracts, *** shall be construed as a covenant not to sue.” (Emphasis added.) (44 Ill. 405, 413-14.) The Parmelee holding does not require, as the plaintiff suggests, that a release be construed as a release of only those persons expressly named. Rather, it holds that an unconditional release of one co-obligor releases all unless a contrary intent appears from the face of the instrument.

Parmelee concerned the release of co-obligors on a contract, but its rationale is applicable to releases involving joint tortfeasors. (Pate v. City of Sesser (1979), 75 Ill. App. 3d 233; Mitchell v. Weiger (1977), 56 Ill. App. 3d 236.) In addition to Parmelee, Pate, and Mitchell, the case of Holt v. A.L. Salzman & Sons (1967), 88 Ill. App. 2d 306, cited by the plaintiff, also involved the construction of an instrument which contained an express reservation of rights.

City of Chicago v. Babcock, which the plaintiff cites, is also distinguishable. The involved language there read:

“ ‘It is hereby agreed that no action shall be begun against Joseph LeCardi, by reason of any matters existing at this date, by the undersigned. Given for good consideration.’ ” (143 Ill. 358, 364.)

The court noted the common law rule that “[a] release to one of several joint tort feasors is a release to all” (143 Ill. 358, 366), but recognized that the questioned language “on its face, was simply an agreement or covenant not to sue” (emphasis added) (143 Ill. 358, 366).

We do not have here an instrument which on its face is a covenant not to sue or which contains an express reservation of rights. It is clear from its language that it is a full release. A full or unqualified release as to one indivisible injury given to any of those concurring in its cause releases both joint and independent concurrent tortfeasors. Artoe v. Navajo Freight Livies, Inc. (1978), 65 Ill. App. 3d 119.

The plaintiff states “that at the time the document was executed the only defendant in the lawsuit was Rainwater and a claim against Ford had not even been contemplated by the plaintiff.” This indicates of course that the administrator and Rainwater did not specifically intend that the instrument would operate to release Ford, but it also indicates that the payment of $49,000 was accepted, as the instrument states, “in full satisfaction” of the estate’s claim. The phrase “in full satisfaction” does not mean necessarily that the plaintiff recovered all he desired or felt he was entitled to by way of damages. It may simply express agreement to accept a given sum in lieu of seeking an additional or larger recovery. Wilhston described the legal consequence of agreeing that a release is executed in full satisfaction. He wrote: “[W]here two or more persons are liable for the same injury though their tort was not joint, the only question when a release has been given to one, should be: Has the plaintiff obtained full satisfaction, or what he agreed to accept as such, for his injury?” (Emphasis added.) (Williston, Contracts sec. 338A, at 725 (3d ed. 1959).) At least as of the time the release here was executed, the estate was willing to and agreed to accept $49,000 in settlement without any expectation of recovering an additional amount from either Rainwater or another. The release, taken in full satisfaction, serves as a bar to further legal action “because all of the plaintiff’s injury is compensated for in the eyes of the law and, because of this, those tortfeasors paying for the satisfaction can be said to have paid as well for any damages, if any, caused by nonpaying negligent parties.” Albertstett v. Country Mutual Insurance Co. (1979), 79 Ill. App. 3d 407, 410.

We need not consider what effect, if any, the provisions regarding releases in “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.) would have had here, since the relevant events in this case preceded its enactment.

For the reasons given, the judgment of the appellate court affirming the circuit court of Cook County’s dismissal of the cause of action is affirmed.

Judgment affirmed.

JUSTICE GOLDENHERSH,

dissenting:

I dissent. I would reverse the judgment of the appellate and circuit courts and remand the cause for further proceedings.

While it is true that the opinions have not always been consistent, it is clear from an analysis of the cases that this jurisdiction long ago rejected the strict common law rule that a release of one tortfeasor releases all tortfeasors. The rule is well stated in Essington v. Parish (7th Cir. 1947), 164 F.2d 725:

“However conflicting the authorities may be in respect to the proper construction of the instruments here involved, we think the law is now settled in Illinois that the substance of the agreement is the controlling factor, and that the essential fact to be determined is ‘what was the intention of the parties.’ Illinois looks to all the circumstances to determine whether or not the transaction was intended as, and was in substance, a settlement and satisfaction, or merely an agreement not to sue, and that, as was held in City of Chicago v. Babcock, supra, 143 Ill. 367, 32 N.E. 271, is a question of fact.” 164 F.2d 725, 729.

There is nothing to indicate that at the time of the execution of the release it was contemplated, or even suggested, that there might be an action against Ford Motor Company. The briefs fail to suggest how it could have been intended to release a tortfeasor against whom no claim had been suggested or asserted. Furthermore, the document in question contains no all-inclusive language of the type frequently found in releases. It does not purport to release Rainwater, State Farm Insurance Company and “any and all other persons, firms or corporations who might in any manner be liable ***.” It releases only Rainwater, State Farm and “any person, firm or corporation liable in his stead ***.” This creates at least the possibility that the release was intended to include only those whose liability derived from Rainwater. There is an ambiguity sufficient to render the intent of the parties a question of fact.

A second rule of law is applicable here. A release is a contract in which, for a consideration, a claimant releases a claim against a tortfeasor. There is nothing in the release which in any manner indicates that it was intended to benefit any other tortfeasor. A long-established rule in this jurisdiction is that a third-party beneficiary of a contract must show an intent on the part of the contracting parties that he be benefited thereby. (Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44.) The intent here indicated is to limit the benefits to the parties named: Rainwater, State Farm Insurance Company, and “any person, firm or corporation liable in his [Rainwater’s] stead.”

In my opinion the dismissal was error and the question of the intent of the parties was an issue to be determined by the trier of fact. The case should be remanded to the circuit court for further proceedings.

JUSTICE SIMON joins in this dissent.


author: JUSTICE SIMON

text:
    (No. 56290.
    GILES R. LYONS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Greyhound Lines, Inc., Appellee).

      Opinion filed May 18, 1983.

      Rooks, Pitts, Fullagar & Poust, of Chicago (Douglas F. Stevenson and John J. O’Leary, of counsel), for appellant.
    Brody, Gore & Fineberg, Ltd., of Chicago (Nehemais Terry, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

This is an appeal from a ruling of the circuit court of Cook County confirming the Industrial Commission’s decision that Giles Lyons had suffered no accident. The issues on appeal are whether that judgment is against the manifest weight of the evidence, whether proper notice of an accident was given, and whether Lyons is permanently and totally disabled.

Lyons was a bus driver for Greyhound Lines for 33 years. In 1961 he had suffered a mild back injury for which he received a back brace, but he wore this only occasionally in response to pain and could recall no instance of such pain more recent than “a year, *** about two years” prior to the incident which is the subject of this case. On September 4, 1978, Lyons was driving a bus from Minneapolis to Chicago and stopped at Eau Claire, Wisconsin, to load some boxes onto his bus from another bus. He claimed that he felt a sharp twinge in his back as he was doing so, but there were no witnesses to corroborate this. He resumed driving and stopped at Greyhound terminals in Madison and Chicago, but did not inform any Greyhound personnel of any accident or any incident of lifting that day. He reported for work for several days but kept experiencing pain in his back and legs, and on September 11, which was to be one of his days off, he consulted Dr. U. Feldman. Dr. Feldman treated him conservatively but kept him off work, and on September 27, 1978, he visited Dr. H. William Schmidt, who hospitalized him. A myelogram revealed signs of an “accute disc problem” [sic], as Dr. Schmidt phrased it in a letter to Lyons’ attorney dated November 7, 1979. An operation to remove a ruptured disc at L-4 was performed on October 10 or 11, 1978. Lyons’ pain alleviated somewhat after that, although he continued to feel weak in his right leg.

Lyons did not return to work. He received follow-up care at Dr. Schmidt’s office following his surgery and was examined by Dr. Ben Camacho on September 10, 1979, at Greyhound’s request. In his report Dr. Camacho concurred with Dr. Schmidt that Lyons was disabled from his occupation as a bus driver but noted that “the man had a previous low back injury with right leg involvement and it is conceivable that the low back problem with right leg radiculitis has been a long-standing affair,” recommending payment of benefits “if it can be shown that the surgery done was due to the [lifting] episode in question.” Dr. Feldman indicated on a form sent by Greyhound and completed on September 28, 1978, that Lyons’ injury arose out of the employment. Dr. Schmidt, in his 1979 letter, expressed the opinion that “lifting the luggage September 4, 1978, accutely [sic] reinjured or aggravated his back condition.”

An arbitrator for the Industrial Commission found that Lyons’ injuries arose out of and in the course of the employment but that Lyons had failed to give timely notice of an accident, and denied compensation. On review, the Industrial Commission found that timely notice had been given but that no accident had occurred. The circuit court confirmed this finding.

It is the province of the Industrial Commission to resolve conflicting testimony, including medical testimony, and draw inferences from the evidence. (Walden v. Industrial Com. (1983), 93 Ill. 2d 527; Keystone Steel & Wire Co. v. Industrial Com. (1978), 72 Ill. 2d 474.) Its determinations will not be set aside if there is credible evidence in the record that supports them. (Benson v. Industrial Com. (1982), 91 Ill. 2d 445.) In this case the Industrial Commission could have concluded, on the basis of Dr. Camacho’s report, that Lyons’ discomfort was caused by a degenerative condition in his back which may have been the result of prolonged stress on his body not related to his 1961 injury, rather than by a lifting incident which occurred on September 4, 1978. This view is supported by the fact that Lyons had had occasional episodes of pain as recently as 1976 and that he told no one of his “accident” for several days after it occurred, even when he asked Greyhound to replace him with another driver because he was having back pain. There were no witnesses on the scene, and Lyons admitted on cross-examination that he told neither Dr. Feldman nor Dr. Schmidt of an accident. While Dr. Schmidt noted on November 7, 1979, that a lifting episode had exacerbated a preexisting back ailment, Lyons stated in a letter to the Greyhound claims department dated February 3, 1979, that “after surgery [October 1978, slightly more than a month after the alleged incident occurred], Dr. Schmidt affirmed that it took a long time for the disc and nerves to get into the state they were in at time of surgery.” Lyons himself was not entirely consistent in advancing the theory that he had suffered an accident while lifting boxes of fish: he stated in September 1979 on a form requesting sick leave benefits that he was “driving” at the time of the injury, not that he was “lifting,” and on the same form he left blank the spaces which asked if an “accident” had occurred at work. Only later did he decide to seek a workers’ compensation remedy.

Lyons argues that no significance should be attached to his omissions on the form requesting sick leave benefits, for “driving” should be interpreted as a general reference to his work and “accident,” in the context of a bus driver’s work, can be reasonably understood by applicants as referring only to collisions between vehicles rather than as being a legal term of art with broader definition. He points out that this court has refused to hold claimants responsible for their misunderstanding of the legal meaning of “accident” where there were no witnesses to the alleged incident but no other explanation for their discomfort could be inferred from the record. (Jacobson v. Industrial Com. (1981), 84 Ill. 2d 153; see also Sohio Pipe Line Co. v. Industrial Com. (1976), 63 Ill. 2d 147; Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32.) He contends that this court having reversed the Industrial Commission’s decision that no accident had occurred in Jacobson, it would be anomalous not to do so here.

We do not agree. In Jacobson there were affirmative indications in the record that the alleged accident occurred as the claimant said it had, and this court said “no other reasonable explanation has been offered or is readily inferable as to how the claimant was injured.” (84 Ill. 2d 153, 156.) In this case, by contrast, there is no direct evidence of a lifting injury aside from Lyons’ own assertions that one occurred, and there is undisputed evidence of a preexisting physical condition which may not have been work related and which may have culminated in a herniated disc. A claimant bears the burden of establishing that his injuries arose out of and in the course of the work (Newgard v. Industrial Com. (1974), 58 Ill. 2d 164) and that it was attributable to a “specific time, place and cause” rather than to the effects of prolonged stress on his body (Lambert v. Industrial Com. (1980), 79 Ill. 2d 243, 247; see International Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d 84). The Industrial Commission could have determined, on the evidence in this record, that Lyons did not meet this burden.

It is possible that we have here the case of a loyal and dedicated employee who did suffer an accident in the course of his employment but, instead of complaining about it promptly, went on working as long as he could. We are not, however, the fact finder, and so long as the Industrial Commission’s decision cannot be viewed as being against the manifest weight of the evidence, we are required to uphold that decision. In this case we cannot conclude that the Industrial Commission’s determination was contrary to the manifest weight of the evidence, and so it must be confirmed.

In view of our conclusion, we need not consider whether notice of an accident was given in proper fashion or whether Lyons was totally and permanently disabled. We affirm the judgment of the circuit court, which confirmed the decision of the Industrial Commission.

Judgment affirmed.


author: JUSTICE WARD

text:
    (Nos. 56451, 56539 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GERARD STRONER, Appellee.

      Opinion filed May 18, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and Edward F. Petka, State’s Attorney, of Joliet (Michael B. Weinstein and Michael V. Accettura, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Verlin R. F. Meinz and Stephen Omolecki, Assistant Defenders, of the Office of the State Appellate Defender, of Ottawa, and Thomas A. Tonozzi, of Spring Valley, of counsel, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

On November 5, 1980, Gerard Stroner was indicted for solicitation to commit murder, conspiracy to commit murder and attempted murder. The attempt charge was based on the theory of accountability. Following a jury trial in the circuit court of Will County, he was convicted on all charges and sentenced to three concurrent terms of six years. The appellate court affirmed the conviction for attempted murder, but reversed the other two, vacated the sentence on the attempted-murder conviction and remanded for resentencing on that count. (104 Ill. App. 3d 1.) Both parties filed petitions for leave to appeal under our Rule 315 (73 Ill. 2d R. 315). We allowed both petitions and consolidated the appeals. Subsequently, the defendant advised us that he had abandoned his appeal in which he sought a new trial on the attempt conviction because of a claimed conflict of interest on the part of his attorney. We consider therefore only those issues raised on the People’s appeal: whether solicitation is a lesser included offense of conspiracy and whether conspiracy to commit murder is a lesser included offense of attempted murder on the theory of accountability.

The evidence showed that in late February 1980 the defendant, a Crest Hill police officer, asked Dennis McCallister if he could arrange to have someone beaten or killed. On March 7, 1980, Stroner told McCallister that it was William McGrath that he wanted killed. McCallister, who subsequently became a prosecution witness, told Stroner that he would kill McGrath for $500. The defendant told McCallister that he was in love with Mc-Grath’s wife, Susan, and that McGrath frequently beat her. Mrs. McGrath testified that, although she had met Stroner several times, he was no more than a mere acquaintance.

During the next several weeks, the defendant and McCallister met on numerous occasions, according to McCallister. One time they followed McGrath home from work so that McCallister could identify the proposed victim. They eventually agreed on a price of $1,000 for McGrath’s murder. Stroner gave McCallister a $200 advance with which he was to purchase a shotgun. Instead, McCallister used the money to buy liquor and drugs.

McCallister testified that on April 21, 1980, Stroner told him that McGrath must be killed that evening. When McCallister told him that he had been unable to obtain a gun, Stroner said that he would meet him “with everything.” Stroner took a shotgun from the armory of the Crest Hill police department and gave $800 to the assistant manager of a restaurant with instructions to hold the money until he or somebody sent by him came to claim it.

Stroner had the shotgun and shells for it when he picked up McCallister that evening. His plan to have McGrath killed outside a bowling alley had to be abandoned because a Bolingbrook police car was in the vicinity. They decided that the shooting would take place as McGrath arrived home. Stroner drove McCallister to a location near McGrath’s house and agreed to pick him up in the next block after the shooting.

As McGrath arrived at his house, two shots were fired at him by McCallister, but he was not struck. He ran to a neighbor’s house and phoned the police. After shooting at McGrath, McCallister ran to the planned meeting place, where he was met by Romeoville police officers instead of Stroner. The record does not explain the presence of the Romeoville officers. He was arrested and gave a statement implicating Stroner. Stroner was arrested the following morning.

McCallister subsequently pleaded guilty to conspiracy to commit murder under a plea agreement. He testified for the prosecution, which recommended a sentence of five years’ imprisonment.

Stroner admitted asking McCallister to kill McGrath. Stroner testified it was not his true intent to have McGrath killed. His real intent was to obtain evidence against McCallister regarding several murders in which Stroner believed McCallister had taken part. Stroner testified that he had met McGrath and was threatened by him because he suspected that Stroner was having an affair with his wife. Stroner had not told anyone at the Crest Hill police department about his dealings with Mc-Callister, as he felt the other officers could not be trusted. He admitted taking the shotgun from the police armory but claimed that the shotgun shells he gave to McCallister had been loaded only with salt. On cross-examination, Stroner acknowledged that when the Mc-Grath murder was being planned McCallister admitted having been involved in a shooting in Rockdale and in a bank robbery in Tennessee. Nevertheless, Stroner continued with his ostensible murder plan and did not take steps to arrest McCallister for those crimes.

The appellate court, in reversing the solicitation and conspiracy convictions, held that solicitation to commit murder is a lesser included offense of conspiracy to commit murder and, further, that conspiracy to murder is a lesser included offense of attempted murder on the theory of accountability.

In considering whether solicitation is a lesser included offense of conspiracy, the appellate panel in this case stated that there are divided opinions on the question. Prior to the panel’s decision here and in the preceding case of In re S.D.S. (1982), 103 Ill. App. 3d 1008, which the panel also decided, the appellate court in the first and fifth districts had held that solicitation is not a lesser included offense of conspiracy. People v. Harvey (1st Dist. 1981), 95 Ill. App. 3d 992; People v. Latham (5th Dist. 1979), 73 Ill. App. 3d 995.

A lesser included offense is one which is established by proof of “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 ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 2—9(a); People v. Wisslead (1983), 94 Ill. 2d 190.) The offense charged must include every element of the lesser offense, plus an additional element or elements, so that one cannot commit the offense charged without committing the lesser offense. Solicitation is committed “when, with intent that an offense be committed, [a person] commands, encourages or requests another to commit that offense.” (Ill. Rev. Stat. 1979, ch. 38, par.8—1(a).) Section 8—2(a) of the Criminal Code of 1961 defines conspiracy:

“A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is alleged and proved to have been committed by him or by a co-conspirator.” (Ill. Rev. Stat. 1979, ch. 38, par. 8—2(a).)

Considering the definitions of the offenses, it can be seen that one can commit the offense of conspiracy without having first committed the offense of solicitation and that solicitation is not a lesser included offense of conspiracy.

Solicitation requires a command, encouragement, or request to another to commit a crime; conspiracy requires an agreement to commit a specific crime and an overt act in furtherance of the agreement. Comparing the elements of the two offenses makes it obvious that two or more persons can conspire or agree to commit an offense without there first having been a command, encouragement or request to another to commit an offense. If one person tells another that he is going to commit a robbery or other crime, the other person may volunteer to join in its commission without having been commanded, encouraged or requested to do so.

The appellate court panel erred here in holding that “[a] conspiracy or agreement would necessarily include a command, an encouragement or a request. One of these elements would have to precede the agreement.” (104 Ill. App. 3d 1, 10.) The contrary appellate court holdings in People v. Harvey (1981), 95 Ill. App. 3d 992, and People v. Latham (1979), 73 Ill. App. 3d 995, were correct. The crime of conspiracy does not necessarily include a command, encouragement or request by one person to another to commit a crime. Simply, one can agree or conspire with another to commit a crime without one of the persons having been solicited to commit that crime.

We next consider whether the appellate court was correct in holding that conspiracy to commit murder, as charged here, is a lesser included offense of attempted murder on an accountability theory. Section 5—2(c) of the Criminal Code of 1961 provides:

“A person is legally accountable for the conduct of another when:
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. However, a person is not so accountable, unless the statute defining the offense provides otherwise, if:
(1) He is a victim of the offense committed; or
(2) The offense is so defined that his conduct was inevitably incident to its commission; or
(3) Before the commission of the offense, he terminates his effort to promote or facilitate such commission, and does one of the following: wholly deprives his prior efforts of effectiveness in such commission, or gives timely warning to the proper law enforcement authorities, or otherwise makes proper effort to prevent the commission of the offense.” (Ill. Rev. Stat. 1979, ch. 38, par. 5—2(c).)

An attempt occurs “when, with intent to commit a Specific offense, [a person] does any act which constitutes a substantial step toward the commission of that offense.” (Ill. Rev. Stat. 1979, ch. 38, par. 8—4(a).) Thus, in order for a person to have committed attempted murder by accountability under section 5 — 2(c), he must have had the requisite intent to commit murder; he must solicit, aid, abet, agree or attempt to aid another person to murder a third person; and the other person must have committed attempted murder. The intent element involved in conspiracy to commit murder and in attempted murder on an accountability theory is the same. The former offense additionally requires an agreement to commit murder and an overt act in furtherance of the agreement. The latter offense requires that one of the co-felons perform an act which is a substantial step toward the commission of murder and that the defendant have either solicited, aided, abetted, agreed or attempted to aid his co-felon. Although an agreement to commit murder may be an element of attempted murder on an accountability theory, it is not a necessary element, since the offense may be committed in absence of an agreement if the defendant either solicits or aids.

Here, the defendant was charged with attempted murder on an accountability theory in that he “aided the said McCallister in the planning and commission of the said offense.” No agreement with McCallister to commit murder was alleged as the ground to convict him for attempted murder. Aiding or abetting the commission of a substantive offense is a crime different from conspiracy to commit the same substantive offense. (United States v. Krol (7th Cir. 1967), 374 F.2d 776, cert. denied (1967), 389 U.S. 835, 19 L. Ed. 2d 97, 88 S. Ct. 46; accord United States v. Lord (2d Cir. 1977), 565 F.2d 831.) Conspiracy to commit murder is not a lesser included offense of attempted murder on an accountability theory as charged by the indictment here. Cf. State v. Looney (1978), 294 N.C. 1, 11, 240 S.E.2d 612, 618 (held that neither conspiracy to commit murder nor being an accessory before the fact is a lesser included offense of the other).

Each of the defendant's convictions had a different factual basis. Although the acts in furtherance of the conspiracy or agreement to commit murder, i.e., Stroner’s transportation of McCallister and provision of the shotgun, constituted aid that made the accountability statute operative, the attempted-murder conviction required more, that is, a substantial step toward the commission of murder. The substantial step here was McCallister’s act of discharging the shotgun at McGrath, which was separate and distinct from the defendant’s acts in aid to McCallister. See People v. Vettese (1978), 61 Ill. App. 3d 279.

For the reasons given, that part of the judgment of the appellate court reversing the defendant’s convictions for solicitation to commit murder and conspiracy to commit murder is reversed and that part of the judgment affirming the conviction for attempted murder is affirmed. In view of the disposition we make, that part of the appellate court judgment remanding for resentencing on the attempt conviction is also reversed. The judgment of the circuit court of Will County is affirmed.

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


text:
    (No. 56593.
    McLEAN TRUCKING COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (John Schackney, Appellee).

      Opinion filed May 18, 1983.

      Musschoot, Womack & Galich, of Chicago (Andrew A. Galich and Peter Fedij, of counsel), for appellant.
    Perry M. Laks, of Laks & Forman, of Chicago, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

On December 18, 1979, John Schackney filed an application for adjustment of claim alleging that he sustained a heart attack on July 25, 1979, which arose out of and in the course of his employment by the respondent, McLean Trucking Company (McLean Trucking). On October 7, 1980, an arbitrator decided that the claimant did not sustain accidental injuries arising out of and in the course of employment on the date alleged. After taking additional evidence, the Industrial Commission granted the claimant’s unopposed motion to amend the application for adjustment of claim by substituting July 23, 1979, as the date of the accident. The Commission later found that Schackney had sustained an accidental injury arising out of and in the course of employment on July 23, 1979. The Commission awarded temporary total disability, reimbursement for medical expenses, compensation “for treatment, instruction and training necessary for *** physical, mental and vocational rehabilitation” as provided in section 8(a) of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a)), and interest as provided in section 19(n) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(n)). The Industrial Commission remanded to the arbitrator “for further proceedings consistent with this Decision.” On April 1, 1982, the circuit court of Cook County set aside that portion of the finding of the Industrial Commission pertaining to the payment of interest, but confirmed the balance of the finding. The employer brought this direct appeal under our Rule 302(a) (73 Ill. 2d R. 302(a)).

McLean Trucking, complains on this appeal that the Commission erred in allowing Schackney to amend the application, that the Commission’s finding that the claimant’s injuries arose out of and in the course of employment was contrary to the manifest weight of the evidence, and that the Commission should not have awarded vocational and rehabilitative training in the absence of evidence of the need for rehabilitation and before it was determined whether the claimant’s disability is permanent.

At the hearing before the arbitrator, the 59-year-old claimant testified that he had been employed by the respondent as a truck driver for 27 years. Prior to July of 1979, he had never missed a day of work, had never had a work-related accident, and was in good health. His daily duties included lifting approximately 400 cartons and placing them on a conveyor belt leading from his truck. Each carton weighed between 80 and 100 pounds. His formal education ended at the completion of seventh grade.

He said that on July 23, 1979, his first day of work following a three-week vacation, he unloaded 485 cartons, each weighing from 80 to 110 pounds, between 8:30 a.m. and 2 p.m. Afterwards, he experienced sharp pains in his chest and right arm. He reported the pains to his dispatcher, who instructed him to drop the empty trailer at a location two or three miles away. Following his return to the terminal at 4:30 p.m., he again notified the dispatcher of his pain and went home. The claimant rested at home the next day but he was still experiencing chest pains when he arrived for work on July 25, 1979. He hooked up a trailer and made a three-mile trip but did not have to unload the trailer. He returned to the terminal and told the dispatcher that he was not feeling well and was going home. His wife drove him to South Suburban Hospital, where his condition was diagnosed as an acute myocardial infarction. He was in an intensive-care unit for five days. He was released from the hospital on August 8, 1979, but was hospitalized again from August 26, 1979, to September 8, 1979, because of a recurrence of chest pains. On September 8, he was admitted to Presbyterian-St. Luke’s Hospital, underwent a cardiac catheterization, and was released on September 25, 1979. He testified that he suffers from extreme fatigue.

South Suburban Hospital’s medical record, which shows an admission date of July 25,1979, notes:

“chest pain for the past 2-3 days c some diaphorisis, is not aware of past cardiac hy.”

However, the case history completed by a Dr. Purdy , on July 31, 1979, notes “complaints of chest pain one day prior to admission *** denies any past history of heart disease or chest pains. He has had no serious illnesses. This is his first hospital admission.” A consultant’s report completed by Dr. W. Padamadan, a cardiologist, and dated July 25, 1979, contains the finding that Schackney complained of chest pain “which started yesterday.”

Dr. Joseph Muenster treated the claimant during his hospitalization at Presbyterian-St. Luke’s. A discharge summary signed by Dr. Muenster, but apparently dictated by a Dr. T. Bleck on September 21,1979, states:

“He was in his usual state of good health until 7/25/79. *** The pain lasted for 5-10 minutes. It was brought on while he was lifting heavy cartons.”

A “patient data base nursing assessment” completed the day Schackney was admitted to Presbyterian-St. Luke’s noted:

“the first chest pain came 7/23/79, lasted longer than 1 day *** had 1st heart attack on 7/23/79.”

Dr. Nathaniel D. Greenberg, an internist, testified for the claimant. After examining Schackney on March 4, 1980, he was of the opinion that there was a direct causal connection between the claimant’s work activities on July 23 and July 25 and his myocardial infarction. Dr. William B. Buckingham examined the claimant on March 4, 1980, at the request of the employer, and declared there was not a causal connection. Both doctors testified that the claimant’s condition is permanent and that he would not be able to drive a truck again or perform any physically demanding labor.

There was no error by the Commission’s allowing Schackney to amend his claim by changing the date of the accident. The holding in Lake State Engineering Co. v. Industrial Com. (1964), 31 Ill. 2d 440, which the respondent cites, is not relevant. The decision there concerned the statute of limitations and whether the employee’s claim was timely filed. It did not concern whether, as here, an employee may amend his application for adjustment of claim to conform to the evidence adduced at the hearings before the arbitrator and the Industrial Commission.

“In pleadings under a compensation act, calling things by wrong names, or bringing a petition under a wrong title, or making other harmless mistakes as to details such as dates, are immaterial if the intention of the pleading is clear.” (3 A. Larson, Workmen’s Compensation sec. 77A.42 (1983).)

Larson goes on to state:

“As to variance between pleadings and proof, wide latitude is allowed.” (3 A. Larson, Workmen’s Compensation sec. 77A.45 (1983).)

We consider that the Commission’s finding that the “Respondent had ample opportunity to meet the change [in date of the accident], that the change did not require additional evidence, and that it was simply a motion to amend the pleadings to conform to the evidence already in the record” was not against the manifest weight of the evidence. At the hearing on the same issue, the circuit court said:

“I think anybody reading the testimony of the Petitioner would agree that he was talking about July 23rd. It wouldn’t make any sense to talk about any other date.”

It is clear from the record that the employer was not prejudiced by the amendment. Too, any complaint McLean Trucking has to the amendment was waived by its failure to object to the motion.

The Commission found that Schackney’s injuries arose out of and in the course of his employment with McLean Trucking. The Commission’s determination of factual issues, including the resolution of conflicting medical evidence, and the credibility and weight of testimony, will not be disturbed unless against the manifest weight of the evidence. (Hart Carter Co. v. Industrial Com. (1982), 89 Ill. 2d 487.) We cannot say that the Commission’s decision was contrary to the manifest weight of the evidence.

McLean Trucking argues, too, that the Commission should not have awarded the claimant compensation' for physical, mental, and vocational rehabilitative training under section 8(a) of the Act. Both Dr. Greenberg and Dr. Buckingham testified as to the claimant’s inability to perform physically demanding labor. The claimant testified that he was 59 years old, has a seventh-grade education, and has worked as a truck driver since the age of 17. We consider that the Commission had sufficient evidence before it to direct that an arbitrator conduct a hearing on the question of rehabilitation.

McLean Trucking complains that there has not been any evidence presented concerning the type of rehabilitation best suited to the claimant and that there has not yet been a decision regarding whether the claimant is permanently disabled. We consider that the Industrial Commission remanded the cause for a hearing to determine what type of treatment and training for rehabilitation purposes is necessary and appropriate. The necessity for and details of the specific character and extent of rehabilitation have been left for future determination, and we consider that “any objections that [the employer] may have to any particular type of rehabilitation on the ground that it is unnecessary can be advanced at a future hearing.” (Kropp Forge Co. v. Industrial Com. (1981), 85 Ill. 2d 226, 230.) As this court noted in Hunter Corp. v. Industrial Com. (1981), 86 Ill. 2d 489, trained rehabilitation personnel can be called as witnesses so that any vocational rehabilitation award that may be made will be appropriate. Considering the Commission’s heavy responsibilities, it was not inappropriate for it to refer the question to an arbitrator for the hearing.

That there has not yet been a ruling on whether the claimant’s disability is permanent does not preclude an award of the costs of rehabilitative training. What we said in Hunter may apply here: “Until the claimant has completed a prescribed rehabilitation program, the issue of the extent of permanent disability cannot be determined.” 86 Ill. 2d 489, 501.

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

Judgment affirmed.